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Esau v Neri [2001] WSSC 12 (29 March 2001)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

IN THE MATTER of the Electoral Act 1963.

AND

IN THE MATTER concerning the election of a Member of Parliament
for the Territorial Constituency of Gagaifomauga No. 2.

BETWEEN

FEO NEMAIA ESAU
of Vailoa and Lefagaoalii, a Candidate for the General Election 2001.
Petitioner

AND

SAFUNEITUUGA PAAGA NERI
of Vaivase and Fatuvalu, a Candidate for the General Election 2001.
First Respondent

AND

MASE DR TOIA ALAMA
Chief Electoral Officer.
Second Respondent

Coram: Sapolu CJ, Vaai J, Nelson J

Counsel: TV Eti for petitioner
KM Sapolu for first respondent
T Lawson and M Betham-Hunter for second respondent

Hearing: 28 March 2001
Reasons for Judgment: 29 March 2001

REASONS FOR JUDGMENT
The reasons of the Court were delivered by Sapolu CJ.

In the recent general election held on 2 March 2001, the official results of the poll for the territorial constituency of Gagaifomauga No. 2 show the first respondent having polled the highest number of votes, 525, followed by the petitioner who polled 271 votes, and then by other candidates, whose names need not be mentioned here, who each polled a much smaller number of votes. The first respondent was therefore officially declared on 12 March to be elected. Following the official declaration of the poll, the petitioner filed an election petition on 19 March seeking declarations to have the election of the first respondent voided and to have himself declared duly elected. It is an application filed on behalf of the first respondent to strike out the election petition that the Court is concerned with in these proceedings.

When dealing with the strike out application in these proceedings, the Court also dealt with other interlocutory applications relating to three other election petitions. At the conclusion of the hearing of all interlocutory applications at about 12 noon on Wednesday, 28 March, the Court indicated that its conclusions on all applications will be delivered at 1.30 pm the same day, but the reasons for its conclusions in relation to each petition will be reduced to writing and copies made available to counsel. These are the first of such reasons. The Court’s conclusions have already been delivered as just indicated.

In the course of her submissions, counsel for the first respondent went through all the allegations contained in the petition and submitted that the whole petition should be struck out, but if that is not accepted, then the Court should, at least, strike out those allegations in the petition which are found to be untenable. The grounds on which the strike out application is based are as follows:

(a) the petition does not disclose any cause or ground upon which the first respondent could be disqualified as a candidate for election as a Member of Parliament;

(b) the petition does not disclose any causes or grounds upon which the election of the first respondent could be declared void pursuant to s. 112 or s. 113 of the Electoral Act 1963; alternatively,

(c) the allegations contained in the petition are so untenable that the petitioner is unlikely to succeed.

Senior counsel for the second respondent, the Chief Electoral Officer, neither supported nor opposed the strike out application, but was willing to await whatever decision will be given by the Court. He also did not oppose the joining of the Chief Electoral Officer as second respondent in these proceedings.

After considering the submissions made by counsel for the first respondent to strike out the whole petition, we have decided those submissions cannot succeed. We therefore move on to consider counsel’s alternative submission that the Court should, at least, strike out those allegations in the petition which are untenable in law. In this regard, we will consider the allegations in the numerical order they are set out in the petition.

The first allegations, which are contained in paragraphs 4 and 5 of the petition, are that the first respondent did not reside in Samoa for a period of three years as she was residing in Fiji in the period prior to the 2001 general election, and therefore she was not qualified as a candidate for election under s. 5 of the Electoral Act 1963, and the second respondent should not have accepted the first respondent’s nomination as a candidate for election. Counsel for the first respondent pointed out that s. 5(4) provides that a person shall be disqualified from being a candidate for election unless he or she had resided in Samoa for a period of not less than three years, ending with the day he or she lodged his or her nomination paper for election with the Chief Electoral Officer. This residential requirement of three years is defined in s. 5(7) to mean that a person seeking nomination as a candidate for election shall be in Samoa for at least 240 days in each year for the period of three consecutive years ending on nomination day. Counsel for the first respondent submitted that to simply allege the first respondent did not fulfil the residential requirements provided in s. 5 as she resided in Fiji prior to the 2001 general election, without showing whether the first respondent was in Samoa for not less than 240 days in the relevant year or in any one year during the period of three consecutive years ending on nomination day, is insufficient and paragraphs 4 and 5 of the petition should therefore be struck out.

We have decided not to strike out paragraphs 4 and 5 of the petition, at least, at this stage of proceedings. Instead, we have decided to order the petitioner to file and serve further and better particulars of his allegations in paragraphs 4 and 5, as the court is empowered to do under r. 30 of the Election Petition Rules 1964, within the time to be specified in this judgment. Our reason for taking this course, is that, we are not certain at this stage from the present state of the allegations, whether they have any merit or substance. We cannot conclude with a sufficient degree of confidence from the general nature of the allegations concerning residency whether they are tenable or untenable in law, unless we order further particulars to show whether the first respondent, as a candidate for election, fulfilled the residential requirements under s. 5(4) and (7). Should the petitioner fail to furnish any or sufficient particulars as required within the time to be specified, then the Court may either strike out paragraphs 4 and 5 or take some other appropriate action. We will therefore await the outcome of the order for further and better particulars.

As we have decided to allow the allegations contained in paragraphs 6, 7 and 8 of the election petition to remain, we prefer to say no more about them, as those allegations will now proceed to trial. Having said that, it is unfortunate the terms “voters” and “voter” are used in paragraphs 6 and 7. We accept the submission by counsel for the first respondent that the correct terms which should have been used are “electors” and “elector”: see the definitions of “elector” and “voter” in s. 2(1) of the Act.

In respect of paragraph 9 of the petition, it is there alleged that attached to the petition is a list of “unqualified electors” from the villages of Samalaeulu and Patamea in the territorial constituency of Gagaemauga No. 1 who were unlawfully registered and subsequently voted for the first respondent, who, of course, was a candidate for election in the territorial constituency of Gagaifomauga No. 2. The problem with this allegation is that there was no list of “unqualified electors” attached to the petition that was filed in Court or to the copies of the petition that were subsequently filed for the members of the Court. Counsel for the first respondent also advised the Court there was no list of “unqualified electors” attached to the copy of the petition served on her and the first respondent. During his submissions, counsel for the petitioner made no reference to such a list or produced such a list notwithstanding the advice from counsel for the first respondent. This is a fatal flaw to the allegation in paragraph 9 which is therefore struck out.

In respect of paragraph 10 of the petition, it is there alleged that on polling day, 2 March 2001, the first respondent’s campaign committee set up camp in an open house about tem metres from the entrance to booth 173 at Faletagaloa, and from there maintained an influential direct eye view with electors going in to cast their votes. Under the Electoral Act 1963, the election of a candidate shall be voided under s. 112 where the candidate is proved guilty of a corrupt practice at the trial of an election petition, or under s. 113 where it is reported by the Court on the trial of an election petition that corrupt or illegal practices had so extensively prevailed in promoting or procuring the election of a candidate, that those corrupt or illegal practices may be reasonably supposed to have affected the result of the election. The petitioner in his petition has sought declarations pursuant to s. 112 and s. 113 to void the election of the first respondent on the grounds of corrupt and illegal practices.

The problem this presents for the petitioner in relation to the allegation contained in paragraph 10 of the petition, is that the alleged conduct of which he complains is neither a corrupt nor an illegal practice under Part IX of the Act. The conduct complained of can be an offence under s. 89 for which those involved can be prosecuted, but it is not a corrupt or illegal practice for which the election in this case can be voided. We have therefore come to the view that the allegation in paragraph 10 is untenable in law and should be struck out as it provides no basis for voiding the election, as claimed by the petitioner.

In respect of paragraph 11 of the petition, the allegation is that on polling day, a sister of the first respondent stood about ten metres from booth 173 at Faletagaloa and continuously talked to electors who were queuing up to go into the booth to cast their votes. Again the conduct complained of can be an offence under s. 89 for which the sister of the first respondent can be prosecuted if the allegation is true, but it is not a corrupt or illegal practice. For the same reasons as we have given in respect of the allegation in paragraph 10, the allegation in paragraph 11 is untenable in law and is therefore also struck out.

In respect of paragraph 12 of the petition, the allegation is that on polling day at booth 173 at Faletagaloa, two members of the first respondent’s campaign committee repeatedly said to electors “manatua o le numera tolu tatou ma manatua le faasa’o” (bear in mind number three is us and bear in mind the tick). Again this kind of conduct can be an offence under s. 89 for which those alleged to be involved can be prosecuted, but it is not a corrupt or illegal practice for the purpose of voiding an election. Accordingly, paragraph 12 is struck out.

In respect of paragraph 13 of the petition, the allegation is that of undue influence committed by the chairman of the first respondent’s campaign committee. As we have decided that this allegation should remain and proceed to trial, we prefer to say no more about it at this stage.

Then it is alleged in paragraph 14 that on polling day, a pick up vehicle from the village of the first respondent was driven around with a poster displaying a picture of the first respondent taped to the rear windscreen. Again this is not a corrupt or illegal practice in terms of the Act. It is also seriously doubtful whether it amounts to an offence under s. 89. Accordingly paragraph 14 is struck out.

The petitioner then complains in paragraph 15 of the petition that on polling day a sister of the first respondent was seen bringing electors in a bus and truck from the villages of Samalaeulu and Patamea to vote for the first respondent at booth 170 at Paia. To transport electors to cast their votes at a booth is not a corrupt or illegal practise. It is one of the activities that election candidates or their supporters normally engage in on election day, particularly as there are electors who need transport to be able to go to the booth to cast their votes and others who would not vote unless someone provides them with transport. Such provision of transport to electors for them to go to the booths to cast their votes is not prohibited. The complaint in paragraph 15 is untenable in law and is therefore struck out.

Finally, the petitioner complains in paragraph 16 of the petition that the first respondent’s sister was on polling day seen talking to electors as she accompanied and transported them from the villages of Samalaeulu and Patamea to the booth to cast their votes. Again this is not corrupt or illegal practice for which an election can be voided. Paragraph is also struck out.

All in all then, the Court makes the following orders:

(a) paragraphs 9, 10, 11, 12, 14, 15 and 16 of the petition are struck out as untenable in law;

(b) the petitioner is to file and serve by 4pm on Thursday, 29 March, further and better particulars to show that the first respondent was not qualified to be a candidate at the 2001 general election on the ground that she did not reside in Samoa for a period of three consecutive years as required under section 5(4) and (7) of the Electoral Act 1963 and as alleged in paragraphs 4 and 5 of the petition.

(c) there is no order as to costs.

(d) this matter is adjourned for re-mention at 9.30am on Friday 30 March 2001.

Solicitors:
TV Eti for petitioner
Sapolu Lussick for first respondent
Attorney General’s Office for second respondent