Court indicates to family they can sue Government for damages

CJ Patu
Former Chief Justice, Patu Tiavaasue Falefatu Sapolu.



“The judgement obviously is unsafe, and we have the greatest sympathy for Mrs. Drake and her client for having suffered from this deplorable delay,” stated the Court of Appeal.


APIA, SAMOA – 18 AUGUST 2020: The Court of Appeal has indicated in their decision that the owners of the Vaivaimuli Corporation Ltd of Sataua, Savai’i can sue the Government for damages over the delay of the court decision.

Vaivaimuli Corporation waited 22 years for the decision in the case against the National Pacific Insurance (NPI). The decision by former Chief Justice, Patū Tiava’asu’e Sapolu was delivered August 2019 in their favour and was awarded ST$245,000 but NPI appealed the decision.

Vaivaimuli Corporation lost the appeal and the judgement was set aside.

The Court of Appeal pointed out in its decision, issues that could assist the family should they file damages against the Government.

The basis of the claim can be on the breach of their constitutional rights to a hearing within a reasonable time.

Article 9(1) of the Constitution of Samoa declares that in the determination of his civil rights and obligations, every person (which will include a company) is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established under the law.”

The Court of Appeal said it would not be appropriate for them in this judgement how that guarantee might apply to what has occurred in this case.

“But it is certainly at least arguable that a right to a hearing within a reasonable time includes a right to have a judgement pronounced within a reasonable time of trial,” states the Court of Appeal.


Ruby Drake A
Counsel for Vaivaimuli Corporation, Ruby Drake.

Trial counsel’s perseverance met silence from the bench

Counsel for Vaivaimuli Corporation Ruby Drake wrote 16 times to Patū since 1998 for a decision but never received a response.

On 28 June 2019, Ruby wrote to the Minister of Justice requesting his assistance.

“Her letter related to the present case, but also to other long delayed judgements of Chief Justice Sapolu,” noted the Court of Appeal.

On 26 September, Ruby again wrote to the Minister suggesting that the Chief Justice should refrain from taking on new cases, but concentrate on his decisions.

QC Upton for NPI, did the same but “got nowhere and eventually closed the file.”

Nearing his retirement, Patū called on Ruby twice asking her to provide a list of outstanding decisions and her notes for the NPI and Vaivaimuli case. She provided both.

The Court of Appeal feels that Patū’s notes seem to be unavailable to him when he prepared his decision, all case files are lost, no transcribed materials to guide him hence the request for Ruby’s notes.

A superficial judgement

The Court of Appeal noted several lapses in Patu’s decision.

“The judgement obviously is unsafe, and we have the greatest sympathy for Mrs. Drake and her client for having suffered from this deplorable delay,” stated the Court of Appeal.

Furthermore the judgment itself in particular the way in which the evidence is assessed and conclusions reached without any analysis at all is very superficial,” stated the Court of Appeal.

Without a court file to help remember a trial from so long ago, Sapolu must have been particularly handicapped by the absence of defence affidavits and witness statements.

They commended Ruby for her perseverance and persistence in getting a judgement and that she had done everything she could for her client.

Protocol for timely delivery of judgement to be in place

The 22 year delay is something the Court of Appeal has never encountered before.

Counsel for NPI, QC Upton indicated his surprise at this delay noting that he was unable to find any case in the Commonwealth where there has been a delay since trial of this length.

The Court of Appeal also noted that when delivering his decision last year, Patū never gave any apology or reasons for the delay.

Whilst the Court of Appeal is unaware of any problems of delay in delivering judgement in any Supreme Court, they however wish for the Samoa Court to have a better system in place.

“It is desirable that the Court should as soon as possible develop and promulgate a protocol for Judges concerning expectations for timely delivery of judgments,” noted the Court of Appeal.

Presiding Judges of the Court of Appeal were Honourable Chief Justice Satiu Simativa Perese, Honourable Justice Fisher and Honourable Justice Blanchard.

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