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Wilex Cocoa and Coconut Products v Electric Power Corporation [2004] WSSC 21 (9 December 2004)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

WILEX COCOA AND COCONUT PRODUCTS
a duly incorporated company having its registered office at Apia
Plaintiff

AND:

THE ELECTRIC POWER CORPORATION
a statutory corporation duly established under the Electric Power Corporation Act 1972 and continued under the Electric Power Corporation Act 1980.
Defendant

Counsel: Mrs R Drake for the plaintiff
Mrs Brenda Heather-Latu for the defendant

Hearing: 3 December 2004
Ruling: 9 December 2004

RULING OF VAAI J

The plaintiff a registered company carrying on business as trader, exporter and manufacturer had its factory burnt to the ground on the 1st June 2003. By Statement of Claim dated the 21st July 2004 the plaintiff seeks damages against the defendant totaling over $10 million for losses arising from the fire which the plaintiff alleges was due to the negligence of the defendant.

The defendant was established under the Electric Power Corporation Act 1972 and continued under the 1980 Electric Power Corporation Act. Counsel for the plaintiff objects to the office of the Attorney General representing the defendant. Counsel’s oral application to restrain the Attorney General from representing the defendant is based on article 41(2) of the Constitution which provides:

“The Attorney General shall advise on legal matters referred to him by the Head of State, and shall have power exercisable in his discretion, to institute, conduct or discontinue any proceedings for an offence alleged to have been committed.”

In support of her application counsel for the plaintiff relies on sections 8 and 9 of the Government Proceedings Act 1974 which provides that any civil proceedings against the government shall be instituted against the Attorney General and shall be commenced, heard and determined in similar fashion as in suits between subject and subject. And as the Electric Power Corporation is not a government department counsel submits the Attorney General has no constitutional right to assume its legal representation.

I accept that the defendant pursuant to the Government Proceedings Act is not a government department; it is a statutory corporation, a quasi-government corporation. Membership of the corporation, pursuant to section 5 Electric Power Corporation Act 1980 consists of seven (7) directors; a Cabinet Minister who is also the chairman, three head of government departments (or ministries as they are now called) and three other persons appointed by the Head of State on the advice of Cabinet. The rates of remunerations and expenses of the seven (7) directors pursuant to section 9 shall be determined by Cabinet; and in the exercise of its functions and powers the corporation pursuant to section 18 shall have regard to the general policy of Cabinet as communicated in writing by the Minister. In so far as the finances and accounts of the corporation are concerned the Controller and Chief Auditor pursuant to section 22 inspects and audits the accounts of the corporation; audited copies of the accounts and reports are to be tabled before the Legislative Assembly and the balance of the profits of the corporation after deductions authorised by the Act shall be transferred to the Treasury Fund for the benefit of the public revenue as required by section 19. It follows that the Minister of the corporation as the Chairman of the Board of Directors is answerable to Parliament for the performance and conduct of the corporation and he can at any time seek the advice of the Attorney General on legal issues pursuant to Article 41(2).

It is true that sections 8 and 9 of the Government Proceedings Act 1974 provides for the Attorney General to be cited as the defendant when civil proceedings are instituted against the government. It is a matter of convenience to any intending plaintiff to cite the Attorney General who is the legal adviser rather than to cite the Minister or the Administrative Head of the department. But it does not follow as the plaintiff argues that the role of Attorney General to represent government or government department in court is confined to those civil proceedings in which the Attorney General is sued on behalf of the government. Sections 8 and 9 are directive. They do not confer on the Attorney General the right of legal representation which has already been conferred by article 41(2) of the Constitution. In fact the Attorney General is not obliged under sections 8 and 9 to represent the government in court as circumstances may arise which may obligate her to instruct other counsels outside her department. Her obligation to advise on legal matters referred to her by a Minister is not confined to oral or written advice or prohibits her from court representation. Provided the referral emanates from the Minister on matters pertaining to the Minister’s constitutional and statutory duties the court in my view has no jurisdiction to entertain any challenge to the constitutional right of the Attorney General to legal representation unless of course legal representation by the Attorney General will impair the integrity of the judicial process.

Disqualification of counsel to represent any party in any court proceedings is the obvious and in some cases the only effective remedy when the interests of justice truly demands disqualification. If the integrity of the judicial process will be impaired by counsel’s adversarial representation of one party against the other then disqualification is the appropriate remedy. The court’s power to restrain arose from the court’s inherent jurisdiction where the interests of justice so required. See R v Connelly (1964) 2 All ER 401; Rosita L. Nickel v Westpac Bank and Ana Fane (Unreported decision Vaai J 30/10/03). No allegation of conflict of interest have been levelled at the Attorney General; the only allegation levelled at her is that she has superseded her constitutional functions by representing the defendant in the action filed by the plaintiff.

The application to restrain the Attorney General from representing the defendant is denied. Costs are reserved.

JUSTICE VAAI