Regulator’s inclusion in the defamation proceedings not justified

By Lagi Keresoma

Apia, Samoa – 24 November 2023: The Supreme Court has reserved its decision on the Regulator Lematua Gisa Fuatai Purcell’s strike out motion against a defamation lawsuit filed by former Electric Power Corporation (EPC) Board Chairman, Pepe Christian Fruean against her.

The Regulator is the First Defendant, the Second Defendant is Samoa Observer and the Plaintiff is Pepe and others.

Defense counsel Leota Tima Leavai submitted that there is no law to justify her client as a defendant in the legal proceedings.

In their response to the defamation claim, the First Defendant argued that the Plaintiff’s Statement of Claim failed to disclose a cause of action against the First Defendant who was being sued as a Regulator exercising her responsibilities and functions under the Electricity Act 2010.

Leota said the Regulator’s duty is to advise the Minister and make recommendations on what has happened, furthermore, section 11(2) of le Electricity Act 2010 speaks of the Regulator’s immunity from any civil liability.

Electricity Act 2010 – Civil Liability 11(2)  Despite any other law, no suit or proceeding for an act or omission in connection with the responsibilities, functions or duties imposed on the Regulator by this Act is to be brought or maintained against a person who:

 (a) has been or is the Regulator where such person has been or is acting in good faith; or

 (b) has been or is acting under the authority of the Regulator under the Act where such person has been or is acting in good faith.”

Central to the defamation claim against the First Defendant is the letter dated 15 December 2022 to the Minister of Communications Information & Technology (MCIT).

The Plaintiff argued that the Regulator did not follow proper procedures of writing to the EPC Board first for their stance on the allegations against them, instead she wrote directly to the Minister.

The plaintiff also claimed that the letter should have been directed to the Minister for Public Enterprises (MPE) and not the Minister for MCIT which the Regulator’s office is under.

They claimed the letter was leaked out and published by the Samoa Observer in a “frivolous, vexatious and lack any tenable grounds.”

The First Defendant however said the letter of 15 December 2022 to the Minister of Communications was done in good faith and in connection with the responsibilities, functions and duties imposed on her by the Act.

She also clarified that the particular words in the Statement of Claim alleged to be defamatory “plainly comprised the First Defendant’s views and advice to the Minister or the Government expressed in her capacity and role as a Regulator and not her personal views.”

The Court will deliver its decision on the strike out motion next month.