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Tuuau v Iona [2025] WSDC 5 (12 September 2025)

IN THE DISTRICT COURT OF SAMOA
Tuuau v Iona; Sinapati v Iiga; Tevagaena v Iiga & Anor [2025] WSDC 5 (12 September 2025)

IN THE DISRICT COURT OF SAMOA
HELD AT MULINUU

IN THE MATTER: of Section 85 of the Electoral Act 2019 and the electoral Constituency of ALATAUA WEST

BETWEEN:

ALIIMALEMANU MOTI ALOFA TUUAU, a candidate for the Alataua West constituency
Applicant

AND:

TAITUAVE LAFAITELE VALOAGA TAAITITI IONA, the declared successful candidate for Alataua West constituency
First Respondent

IN THE MATTER: of section 85 of the Electoral Act 2019 and the electoral Constituency of FAASALELEAGA 1

BETWEEN:

PIPI PAULI TEVITA TARIU SINAPATI, a candidate for Faasaleleaga 1 constituency
Applicant

AND:
LEATIGAGA MATAFAI LAUINA IIGA, the declared successful candidate for Faasaleleaga 1 constituency
First Respondent

IN THE MATTER: of Section 85 of the Electoral Act 2019 and the electoral Constituency of Faasaleleaga 5

BETWEEN:

PESETA VAIFOU TEVAGAENA, a candidate for the Faasaleleaga 5 constituency
Applicant

AND:

VUI IIGA SIONE IIGA, the declared successful candidate for Faasaleleaga 5
First Respondent

AND:

THE ELECTORAL COMMISSIONER
Second Respondent

Counsel: Ms Leone Su’a-Mailo for Aliimalemanu Moti Alofa Tuuau

Mr Alex Su’a for Pipi Pauli Tariu Sinapati and Peseta Vaifou Tevagaena

Ms Muriel Lui for First Respondents

Ms Shalom Time for the Second Respondent

Recounts: 10^th and 11^th September 2025

Decision: 12^th September 2025

WRITTEN RULING IN RELATION TO APPLICATIONS FOR ELECTORAL RECOUNT

Introduction

1. Before me are applications for electoral recounts for Electoral Constituencies of Alataua West, Faasaleleaga 1 and Faasaleleaga 5. The recount application for Aana Alofi 3 was withdrawn. The recount hearings were separately conducted. However, for purposes of this decision, I am incorporating the conclusions in this single decision.

ALATAUA WEST

2. The Applicant has initiated an application to the District Court for a recount of the number of votes received by the First Respondent. The Applicant must rely on the two (2) grounds stipulated under section 85(1) of the Electoral Act 2019 (hereinafter referred to as the Act:
   1. that she has reason to believe that the declaration by the Electoral Commissioner of the number of votes received by the First Respondent was incorrect; and
   2. that on a recount the Applicant might be found to be elected.
3. In support of the application, the Applicant filed two (2) affidavits from Faleie Lafoia and the Applicant herself.
4. In her affidavit sworn 7^th September 2025, the Applicant alleges concerns not only to the “counting process” but also to the “conduct of the electoral process as a whole”. The Applicant supports this claim by alleging:
   1. that the failure of the Electoral Office to allow her matai title “MOMOEMAUSU” on the ballot papers “materially impacted her chances of success” in the election
   2. an impersonating scrutineer on pre-polling day 27^th August 2025 at Matagilelei, Neiafu-uta, affected voter perception and ultimately her vote count
   3. she was unable to reconcile the number of votes casted against the roll as the Electoral Office personnel collected all the copies of the rolls used by the scrutineers
   4. the validity of the special votes ballot papers as they were handwritten “by voters”, no photographic identification, whether the special voters were registered constituents and the possibility of alteration
   5. general systemic issues based on reporting from main media outlets specifically about the personnel of the Electoral Office alleging “unlawful and negligent conduct”, “ignoring basic procedures and bias”, allowing a convicted prisoner and about 20 unregistered individuals to vote “across multiple constituencies”; and
   6. the admission of the Electoral Commissioner generally to errors and mistakes in the voting process amounted to the official count of her Constituency being improperly conducted
5. The second affidavit attested by Faleia Lafoia relates to the concern of the scrutineers supplementary roll that is alleged to have been collected by the Electoral Officers before the preliminary counting of the votes impeding the Applicant from being able to conduct a personal scrutiny of the roll. The affidavit does not identify the polling booth concerned.

The Application

6. Section 85 of the Act provides for the commencement of an action by the filing of an application with the District Court seeking for a recount of the votes. The Applicant stipulates that she has reason to believe that the declaration by the Commissioner of the number of votes received by the successful candidate is incorrect. The reference to “reason to believe” requires the Applicant to state the specific circumstance or circumstances that amounted to a reasonable belief that the declaration by the Commissioner of the number of votes received by the First Respondent was incorrect.
7. The legal meaning of “reasonable belief” is usually applied in criminal cases of an objective person. It refers to a belief held objectively by an ordinary and prudent person in similar circumstances. In relation to section 85(1), “reason to believe” I would define as a genuine reason for believing on a set of established facts that would most likely bring about a certain result in an event relevant to the issue.
8. Given this definition, the first step is to consider whether there are established facts. The Applicant has annexed copies of news items generally referring to systemic issues faced by the Electoral Office relating to polling day as listed above. Secondly, whether these allegations, if true, would bring about the result alleged by the Applicant. That is, these systemic issues generally compromised the integrity of the electoral and especially the counting process. Finally, the counting integrity so compromised, that this was a consequence leading to the Second Respondent incorrectly declaring the number of votes received by the First Respondent.
9. It therefore follows that the Applicant must file supporting sworn evidence specifically to substantiate her reasonable belief.
10. Given the time constraints provided by the Act, it has hindered the opportunity for the First and Second Respondents to respond to the application. Notwithstanding that, the Court must still require the Applicant to meet the threshold of the Application required by legislation before a count is activated.

The Issue

11. The Applicant moves for an order to recount the votes received by the First Respondent during the general elections of the 29^th August 2025 and on Pre-polling on Wednesday 27^th August 2025. The provision for recount provides for flexibility as to the purpose of the application whether it be for a complete recount of all the votes or limited to the declared successful candidate and the Applicant subject to the Applicant meeting the threshold.

1. Systemic issues

12. Although the Applicant has raised general systemic issues across the board, there were no sworn testimonies to show, if true, led to the Electoral Commissioner incorrectly declaring the First Respondent the successful candidate from the Alataua i Sisifo Constituency. I would emphasize that general systemic issues that may question the integrity of the elections process is not a ground for a recount unless one of more of these issues occurred in the Constituency of the Applicant. No specific systemic issue was raised here other than a person impersonating the Applicants scrutineer during pre-polling and the supplementary roll being collected prior to the preliminary count as attested by Faleie Lafoia. In both of these two instances, they are not sufficient grounds for a recount as it did not cause an incorrect result.

2. Special votes unaccounted

13. The Applicant further alleges the validity of the special votes given that they were “handwritten by voters” and that 102 of the 138 were unaccounted for. Furthermore, her chances of receiving more votes was impeded by the fact that her other matai title “MOMOEMAUSU” was not included in the ballot paper.
14. Having individually scrutinized the Master Roll against the used ballot papers of the 60 special voters who casted their vote from outside the Constituency, 58 were valid and 2 set aside as informal. The 138 special votes cast at Tuanaimato were all accounted for. I am satisfied that the Applicant along with the First Respondent were sufficiently identified in the special ballot paper, distinct from each other and without any evidence of alteration. The concern that she may have lost votes because of her missing matai title is not a recount issue rather it goes to the secret choice of the voter and that cannot be inquired into.

Conclusion

15. I find no evidence of systemic issues affecting the result of the election for Alataua West nor any evidence of incompetence or bias on the part of the Second Respondent in conducting the election on polling day.
16. I certify that the declaration made by the Second Respondent on the 5^th September 2025 of the number of votes received by the First Respondent and Applicant were correct and accurate declaring the First Respondent the successful candidate for Alataua West.

FAASALELEAGA 1

17. In relation to Faasaleleaga 1, the Applicant brings an action to recount the votes received by the First Respondent during the general elections on 29^th August 2025 and on pre-polling on Wednesday 27^th August 2025. There were four candidates who contested this seat and the Applicant is only challenging the results of the First Respondent. It was therefore not necessary to undertake a whole recount but for that in relation to the First Respondent and the Applicant where a recount may present a changed result making the Applicant the elected candidate.
18. The application is supported by four sworn affidavits: the Applicant, Seumanu Sione Amosa (a voluntarily disclosed voter) and Avau Kirisimasi (a voluntarily disclosed voter).
19. The Applicant raises the same systemic issues as in the Alataua West matter without submitting the appropriate evidence to substantiate the claim of Electoral Officers incompetence, bias and negligence specific to Faasaleleaga 1. Taken at its highest, even if the allegation relating to denied assistance to the elderly and persons with disabilities to vote were true, the instances do not amount to a recount as it goes to the choice of the voter. Furthermore, the instances attested are so minimal given the winning margin of votes being 141 that it would not have changed the result of the votes counted. There is no provision in the Act that allows for an inquiry into determining how the voter voted and the intention of the voter as to who he/she voted for.
20. I find that there was no evidence of Electoral Officers bias, incompetence or negligence in conducting the election on polling day as well as pre-polling. I also find that there is no evidence that the systemic issues raised affected the result of the election in Faasaleleaga 1. This application based on the evidence had no prospect of success.
21. I certify that the declaration made by the Second Respondent on the 5th September 2025 of the number of votes received by the First Respondent and Applicant were correct and accurate declaring the First Respondent the successful candidate for Faasaleleaga 1.

FASALELEAGA 5

22. Applicant brings an action to recount the votes received by the First Respondent during the general elections on 29th August 2025 and on pre-polling on Wednesday 27th August 2025. There were three candidates who contested this seat and the Applicant is only challenging the results of the First Respondents. It was therefore not necessary to undertake a whole recount but for that in relation to the First Respondent and the Applicant where a recount may present a changed result making the Applicant the elected candidate.
23. The application is supported by one sworn affidavit, that of the Applicant.
24. The Applicant raises the same systemic issues as in the Alataua West matter without submitting the appropriate evidence to substantiate the claim of Electoral Officers incompetence, bias and negligence specific to Faasaleleaga 5. The only concern specific to this application worth mentioning is the suspicion raised by the Applicant that because the First Respondent had the same matai title as the third candidate, there is a possibility that voters who were supposed to vote for the third candidate instead cast their vote for the First Respondent. Two matters arise from this: firstly, a suspicion falls well short of “reason to believe” required by section 85. Secondly, and as alluded to in the reasoning with the previous applications, such an instance does not amount to a recount as it goes to the choice of the voter. If a voter mistakenly but validly ticked the wrong box that had a candidates name, it is not due to the negligence or bias of the Second Respondent unless it can be shown the ballot papers were faulty or an assisted voter testifies that he/she was misled or influenced by someone to vote for a candidate that was not of his/her choosing. Neither of the two circumstances is claimed here.
25. I find that there was no evidence of Electoral Officers bias, incompetence or negligence in conducting the election on polling day as well as pre-polling. I also find that there is no evidence that the systemic issues raised affected the result of the election in Faasaleleaga 5. This application based on the evidence had no prospect of success notwithstanding the margin of votes between the Applicant and the First Respondent.
26. I certify that the declaration made by the Second Respondent on the 5^th September 2025 of the number of votes received by the First Respondent and Applicant were correct and accurate declaring the First Respondent the successful candidate for Faasaleleaga 5.

Obiter dictum

27. Having dealt with three other constituencies of Faasaleleaga 1, Faasaleleaga 5 and Aanalofi 3, I must as a judicial officer and part of the third branch of this democratic government, raise a point of concern relating to all four applications. In filing these applications, all three individual law firms involved as counsels for the Applicants provided affidavit material for the Applicant with exactly the same annexures and exactly the same grounds for systemic issues to question the official count of the Second Respondent. This is quite unusual in a legal fraternity notwithstanding whether it’s the size of Australia or Niue. A proper legal analysis of the annexed information in relation to the issue should have led to the conclusion that it assisted not an application under section 85 unless these were instances within the said constituencies. The further absence of specific evidence to support such a general statement is a real concern that was not to be expected from an ancient profession.
28. This in my view shows an absence of professional legal impartiality, professional legal independence, professional legal analysis and professional legal intuition so far as to assessing the crucial and specific nature of the election process in each of the four (4) Applicants unique Constituency of which the law firms represented. In a volatile political climate, the independence and sound voice of the legal fraternity is crucial to overcome legal uncertainty and clarify processes in a situation where every individual with or without legal training seems to have an opinion about the law. Lawyers must rise above emotions, loyalties, biases, talking points, innuendos and hyperboles to provide sound legal advise in order for people to make sound and prudent choices.
29. This is telling especially on the issue as to whether the application was frivolous and/or vexatious given the First Respondent has already filed for costs of which the Applicants are given the opportunity to respond. The application deposit shall be withheld for now until determination of the issue of costs.

JUDGE MATA’UTIA RAYMOND SCHUSTER