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Pao v The Electoral Commissioner [2025] WSDC 8 (9 September 2025)

IN THE DISTRICT COURT OF SAMOA
Pao v The Electoral Commissioner [2025] WSDC 8 (09 September 2025)

IN THE DISTRICT COURT OF SAMOA
HELD AT MULINUU

IN THE MATTER

of an Application for a Recount of Ballots by the District Court in respect of the Electoral Constituency of PALAULI NUMBER 2, pursuant to Section 85 of the Electoral Act 2019.

BETWEEN

FAAOLATANE FIU TUALA IONA PAO, Independent Candidate of Sili, Palauli, Registered under the Electoral Act 2019 to contest the Electoral Constituency seat of Palauli Number 2 and a duly registered Voter.

Applicant

A N D

THE ELECTORAL COMMISSIONER appointed under the Electoral Act 2019.

Respondent

Mr. Matafeo George Latu for the Applicant
Ms. Fetogi Vaai for the Respondent

WRITTEN RULING IN RESPECT OF APPLICATION FOR JUDICIAL RECOUNT

THE APPLICATION

1. This is an application for a Judicial Recount of votes cast in the Electoral Constituency of Palauli Number 2. There is only one vote behind the Applicant and the Winning Candidate Fiu Faaolatane Ponifasio Vasa.
2. The Applicant has reason to believe that the Declaration of Official Results for Palauli No 2 Constituency issued by the Respondent in the early morning of Tuesday 2^nd September were incorrect and that on a recount, the Applicant who is duly registered as an Independent Candidate and voter in Palauli No 2, might be found to be elected;
3. The Applicant relies upon the following grounds:
   • (a) THAT the process under which the votes were dealt with by the Respondent (including the Staff of the Electoral Commission and/or any polling officials authorized to undertake the tasks by the Respondent during the Election) was not in accordance with the provisions of the Electoral Act 2019 in so far as:
     • (i) (a) Counting of 16 Pre polling votes cast at Tuanaimato Gym 2 with Special Votes during the Official Count.
     • (ii) (b) No Informal Votes recorded or announced publically by the Electoral Office Commission for Palauli No 2 during the Official Count. There were however 7 Informal votes recorded by the Applicant’s scrutineers.
     • (iii) (c) The Special Vote cast by Taulia Fiapule at Matautu Falelatai for the Applicant which he mistakenly placed in the Ordinary Votes Box had not been accounted for.
     • (iv) (d) Discrepancy in Total votes recorded in the Official Results of 1740 as compared to the Applicant’s scrutineers’ record of 1745.
   • (b) THAT the Candidates have the same matai titles and raises a significant issue as to the risk of the votes being miscounted due to the similarity of the registered Candidates names.

THE RECOUNT PROCESS FOR THE JUDICIAL RECOUNT

4. The Recount was conducted on Tuesday 9^th September 2025 from 2pm until 10.30pm. In attendance were the representatives of the Respondent (3 Assistant Chief Executive Officers and 3 Principal Officers) and the Scrutineers for both the Applicant and the winning Candidate.
5. The Recount was conducted by the Deputy Registrars, Assistant Registrars and Associates of the District Court in my presence as the presiding District Court Judge.
6. There were two stages of the process. The first stage was to compare the Main Rolls for each Booth to the Master Roll. Secondly, the verification of the forms filled and submitted by the Presiding Officer for each of the Booths. The purpose was to confirm the number of ballots issued to each Booth, the used Ballots and the unused Ballots.
7. The second stage was to recount every vote cast for each Booth and examine all the informal votes, spoilt ballot papers and invalid votes for each of the Booths.

FINDINGS

16 Unregistered Pre Polling Votes

8. During the official count, there were No votes recorded at Booth 49.9 at Gym 2 Tuanaimato Gym 2 for the pre polling votes cast on Wednesday 27^th August 2025. These 16 pre polling votes cast on Wednesday 27^th August 2025 were sorted with 75 Special Votes recorded for the Palauli No 2 Constituency and counted as Special Votes.
9. The reason provided by the Officials for adding and counting the Pre polling votes cast at Tuanaimato Gym 2 with Special votes was to minimise the identification of the 16 voters by the Candidates and to protect the secrecy of the ballots cast by 16 pre pollers at Tuanaimato.
10. Infringement of Secrecy under Section 93 of the Electoral Act 2019 does not justify the decision of the Officials to count these pre polling votes with Special Votes. Pre polling and Special Votes are treated separately under Part 9 of the Electoral Act 2019 and pursuant to Section 78(2) of the Electoral Act 2019 are required to be sorted separately and counted separately.
11. Nevertheless, all 16 pre polling votes were accounted for during the Recount and these votes have already been counted as Special Votes during the Official Count under the Candidates as follows:
    • (i) FAAOLATANE FIU TUALA Iona Pao 1
    • (ii) FAASUALAU NAIFOUA Salu Asiata Selesele Tanielu 0
    • (iii) FIU FAAOLATANE Ponifasio Vasa 7
    • (iv) LEOTA Laki Lamositele 6
    • (v) TIATIA Faleupolu Tevita 1
    • (vi) TUSIATA TIATIA FIU Hay Dempsey Kalapu 1
12. At the Conclusion of the Recount, Special Votes were readjusted from 75 to 59. Pre Polling votes were recorded under Booth 49.9 at Tuanaimato Gym 2.

Informal Votes

13. There were 2 Informal Votes recorded during the Official Count. There were however 7 Informal Votes found in the parcels for this Constituency. There were 4 Informal Votes for Booth 49.1, 2 Informal Votes for Booth 49.2 and 1 Informal Vote for Booth 49.3.
14. Pursuant to Section 85(6) of the Electoral Act 2019, I reversed the decision of the Commissioner (or representative) in respect of 3 of the Informal Votes that were rejected in Booth 49.1 and 1 in Booth 49.2 These ballots were treated as informal because either the voter’s tick went outside the box or a mark other than a tick was used. I found that there was a clear intention by the voter in each of the 4 votes cast of their candidate of choice. ^[1]
15. The Commissioner must not reject as informal a ballot paper by reason of some informality in which the voter has dealt with the ballot paper if the intention of the voter is clearly indicated.
16. The informal votes in Booth 49.1 and 49.2 were recounted as follows:

Booth 49.1

FAAOLATANE F IONA 1

FIU FAAOLATANE Ponifasio Vasa 2

Booth 49.2

LEOTA Laki Lamositele 1

I found that the remaining 3 informal votes were correctly rejected by the Commissioner because the voter did not clearly indicate the Candidate they were voting for. ^[2] The voter either did not tick a box or ticked more than one box.

Special Vote cast at Matautu Falelatai

17. The Recount Process involved the examination of all the Ordinary Votes cast at the Matautu Falelatai Booth. There was no Special Vote found in the Parcel for this Booth but it was recorded that it had already been transferred to the Special Votes Parcel for this Constituency. The Special Votes Parcel for the Constituency was examined and the special Vote cast by this voter was found in the Special Votes Parcel for Palauli 2 Constituency and it has already been counted under the Applicant during the Official Count.

Similar Names of Candidates

18. The ordinary ballot papers, pre Polling and Special Papers were all examined. All the Ballot Papers clearly identified the Applicant as FAAOLATANE FIU TUALA IONA PAO while the winning candidate was identified as FIU FAAOLATANE PONIFASIO VASA. The Applicant was the first named Candidate while the winning Candidate was the third listed Candidate. The names were clearly distinguished from one another and I am satisfied that the similarities in the names of the Candidates could not have been attributed to the Applicant having less votes than the winning candidate.

Total Votes Cast

19. At the conclusion of the Recount of all ballot papers used and unused, a Total Valid Votes Cast of 1744 was confirmed. Additionally, there were 3 Informal Votes, 3 unregistered invalid votes and 1 Spoilt Ballot. The Total Votes Cast for this Constituency is1751. The Results of the Recount is attached as “Annexure 1.”

ORDER

20. I certify that the Results of the Official Poll for this Constituency is incorrect. The Commissioner is ordered to amend the results in accordance with the results of the Recount.
21. I hereby certify that the Commissioner was correct in declaring the Winning Candidate for Palauli 2 Constituency as FIU FAAOLATANE PONIFASIO VASA.

DEPOSIT AND COSTS

22. The Application was genuine and met the threshold for the filing of an application for a Recount. The Respondent has not filed any application for costs.
23. Court Costs of $500 is ordered against the Applicant. The Costs to be paid by Friday 19^th September 2025.
24. The deposit is to be refunded upon the payment of Court Costs. Alternatively, the Applicant by written consent can opt for the forfeiture of the deposit for Court Costs.

JUDGE SAAGA

^[1] Section 71 of the Electoral Act 2019.
^[2] Section 83(3)(b)(ii)