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Iiga v Tariu [2025] WSSC 55 (5 August 2025)

IN THE SUPREME COURT OF SAMOA
Iiga v Tariu & Anor [2025] WSSC 55 (5 August 2025

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

IN THE MATTER OF:

an application pursuant to section 47(3) of the Electoral Act 2019

BETWEEN:

LEATIGAGA MATAFAI LAUINA IIGA, candidate of Faasaleleaga 1

Applicant

A N D:

PIPI PAULI TEVITA TARIU, candidate of Faasaleleaga 1

First Respondent

A N D:

THE ELECTORAL COMMISSIONER

Second Respondent

Hearing: 4 August 2025

Counsel: T. Toailoa for the Applicant
S. Ainuu for the First Respondent
S. H. Wallwork for the Second Respondent

Decision: 5 August 2025

DECISION AS TO COSTS

1. The Court has already granted the Applicant leave to withdraw the application. The only issue for consideration is the question of costs.
2. For the record:
   1. The First Respondent consents to the granting of leave to the Applicant to withdraw the application, but seeks costs.
   2. The Second Respondent consents to the granting of leave to the Applicant to withdraw the application, but does not seek costs.
3. Ms Toailoa says the Applicant is withdrawing his challenge in recognition of the greater good of his community to ensure that there is no conflict within his community. Ms Toailoa had already signalled her client’s intention to withdraw, for the reason noted above, but was awaiting final instructions. Ms Toailoa’s advice of her client’s intention to withdraw was given to the Court while Mr Ainuu was attending on his witnesses in Savaii, and accordingly ahead of Mr Ainuu filing and serving the affidavits he briefed in Savaii.
4. Mr Ainuu, understandably, complains that his client has been required to prepare to defend the challenge. This meant incurring costs for advising his client, drafting a motion of opposition, briefing and deposing eight witnesses, legal research, travel to Savaii and other administrative tasks such as photocopying costs at a rate of $1 per page.
5. Mr Ainuu says he will eventually invoice the client his fees of SAT$8,546.00, and he seeks from the Court an order that he may recover 85% of that sum, SAT$7,264.10, from the Applicant.
6. This case involves the withdrawal of a challenge ahead of a hearing of the evidence and issues. For all intents and purposes, the merits of the challenge remain undecided. Neither party was able to put before me any relevant authority on this issue. The authorities they did refer to concerned the award of costs in matters that involved a hearing of the evidence and issues and the delivery of a judgement on the merits of the claim. I respectfully consider it wrong to apply the principles in those costs judgments to cases that have not been the subject of a hearing and determination of the merits.
7. Mr Ainuu’s request for 85% recovery is unrealistic; it is a percentage of recovery that is amounts to almost an indemnity of costs. There is no plausible basis for this claim.
8. Parliament has determined that there should be pre-general election challenges. These challenges are an integral part of a transparent process of scrutinising and maintaining the integrity of the electoral roll and the eligibility of candidates to stand for election. Costs should therefore never become a barrier to these important principles.
9. It is accepted the First Respondent has incurred costs, but such is the nature of challenges a candidate faces, more so in the context of a condensed pre-general election process brought about by the early dissolution of Parliament.
10. I am satisfied that the Applicant withdrew his challenge at the first available opportunity. There was no evidence that the challenge was frivolous, vexatious or an abuse of the courts processes. Had there been such evidence, then costs for the preparation of a defence may have been awarded. Each case will turn on its peculiar facts. In this case, the basis for and timing of the withdrawal appear genuine.
11. Counsel made reference to awarding costs in line with the costs awarded in applications to strike out candidate challenges. Strike out applications involve an analysis of the merits of a case and it was appropriate for costs to be awarded, as they were.
12. The First Respondent’s application for costs is dismissed.
    

CHIEF JUSTICE