IN THE SUPREME COURT OF SAMOA
HELD AT APIA

IN THE MATTER of the Electoral Act 1963.

AND

IN THE MATTER of an application by TAPUAI PILI of Lepea and Sagone,
an elector of the Electoral Constituency of Salega for a Writ of Mandamus
to issue against the Chief Electoral Officer.

Counsel: TRS Toailoa for applicant
R Schuster for respondent

Hearing: 2 November 2001
Judgment: 2 November 2001

JUDGMENT OF SAPOLU CJ

This is an application for an order directing the Chief electoral Officer, the respondent to accept the nomination of the applicant as a candidate for the by-election to be held for the territorial constituency of Salega on Friday, 9 November 2001. The application was made ex parte but the Court ordered it should be served on the respondent so that she could appear if wished to do so.

The brief facts which have given rise to this application are as follows. On Tuesday 23 October the applicant and one other elector of the Salega constituency nominated one Tupai Faasalafa as a candidate for the forth coming Salega by-election. On Thursday 25 October the applicant went and discussed with the respondent his intention to run as a candidate himself in the said by-election. He was advised by the respondent that he could not put up his name as a candidate unless he could bring in another elector who could replace him as one of the two nominators for the said Tupai Faasalafa. On Friday 26 October the applicant brought in another elector to replace him as a nominator for Tupai Faasalafa. He also bought in his completed nomination form and written consent for filing. This was close to 12 noon the same day which was the closure of nominations for the Salega by-election. According to the applicant in his affidavit filed in these proceedings, the respondent decided to decline his nomination as Tupai Faasalafa’s attendance was also necessary to show whether he consented to the substitution of the application as one of his nominators. In her oral testimony, the respondent stated this was a novel situation where someone had nominated someone else as an election candidate but very soon thereafter wanted to be a candidate himself and to run against the candidate he had already nominated. The Electoral Act 1963 is silent on what to do in this kind of situation. Thus she advised the applicant to take the matter to Court.

It is undisputed that the applicant holds the qualifications to be an election candidate as provided under s.5 of the Act. Thus in terms of s.5 he is qualified to run as a candidate in the forthcoming by-election. He duly completed a nomination form and tried to file it before the closure of nominations but was not accepted because he had already nominated someone else to be a candidate and was advised to take the matter to Court.

It is true the Act is silent as to whether a person who has nominated another person to be an election candidate can himself choose to be candidate in the same election. One would expect as a matter of good faith that a nominator will not later turn around and wish to run as a candidate in the same election as the candidate he had already nominated. However, there is nothing in the Act to prohibit such a thing from happening; the Act is simply silent on the matter. In this situation where there is no prohibition against the applicant running as an election candidate, and given that the applicant is in all respects qualified to run as a candidate, and he tried to lodge his nomination form within time but was not accepted by the office of the respondent, I am of the view the application should succeed.

The applicant’s nomination as a candidate in the forthcoming Salega by-election should have been accepted. He should therefore be allowed to run as a candidate in the said by-election.

CHIEF JUSTICE

Solicitors:
Toailoa & Associates for applicant
Attorney General’s Office for respondent