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Mene v Sekuini [2021] WSSC 26 (2 June 2021)

IN THE SUPREME COURT OF SAMOA
Mene & Ors v Sekuini & Ors [2021] WSSC 26 (02 June 2021)

MISC80/21

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

IN THE MATTER:

of an Election Petition pursuant to Part 14 of the Electoral Act.

BETWEEN:

SOOALO UMI FEO MENE, GATOLOAIFAANA AMATAGA GIDLOW, ILI SETEFANO TAATEO, SUA TANIELU SUA, LOPAOO NATANIELU MUA, NAMULAUULU PAPALII LEOTA SAMI, IFOPO MATIA FILISI JAHNKE, SILI EPA TUIOTI, AFAMASAGA TOELESULUSULU RICO TUPAI, TAUEVA FAAFOUINA MUPO, SALAUSA JOHN AH CHING, LAUFOU ALOFIPO FAAMANU MANASE, TUPAI AVALA SAVAIINAEA, AFUALO LUAGALAU WOOD SALELE, Petitioners

First Applicants/Second Respondents

A N D:

VAELE PAIAAUA IONA SEKUINI, MAGELE SEKAUTI FIUAI, AGASEATA TANUVASA PETO, MASINALUPE MAKESI MASINALUPE, NIUAVA ETI MALOLO, PAPALII LIO MASEPAU, AUAPAAAU MULIPOLA ALOITAFUA, MATAMUA SEUMANU VASATI SILI PULUFANA, TOELESULUSULU CEDRIC POSE SCHUSTER, FESOLAI APULU TUIGAMALA, MANULELEUA PALETASALA TOVALE, TUALA TEVAGA PONIFASIO, MULIPOLA ANAROSA MOLIOO, FEPULEAI FAASAVALU FAIMATA SUA, Elected Candidates.

First Respondents/Second Applicants

BETWEEN:

ELECTORAL COMMISSIONER

Third Applicant

A N D:

SOOALO UMI FEO MENE, GATOLOAIFAANA AMATAGA GIDLOW, ILI SETEFANO TAATEO, SUA TANIELU SUA, LOPAOO NATANIELU MUA, NAMULAUULU PAPALII LEOTA SAMI, IFOPO MATIA FILISI JAHNKE, SILI EPA TUIOTI, AFAMASAGA TOELESULUSULU RICO TUPAI, TAUEVA FAAFOUINA MUPO, SALAUSA JOHN AH CHING, LAUFOU ALOFIPO FAAMANU MANASE, TUPAI AVALA SAVAIINAEA, AFUALO LUAGALAU WOOD SALELE, Petitioners.

Third Respondents

Coram: Chief Justice Satiu S Perese
Justice Vui Clarence Nelson
Justice Niavā Mata Tuatagaloa

Counsel: E. Schmidt & V. Leilua for Electoral Commissioner

A. Lesa, S. Wulf & J. Brunt for First Applicants/Second Respondent/Third Respondents

T. Toailoa & S. Ponifasio for the First Respondents/Second Applicants

Hearing: 26 May 2021
Oral Ruling: 26 May 2021
Written Decision: 02 June 2021

DECISION OF THE COURT

Proceedings

1. There were three (3) Applications or Motions that were filed before the Court and the Court dealt with each Application in the following order:
   • (i) The Motion by the First Applicants to have the counter-petitions filed by the First Respondents struck out;
   • (ii) The Motion by the Second Applicants seeking leave of the Court to amend their counter-petitions; and
   • (iii) The Motion by the Third Applicant naming the Electoral Commissioner as a party struck out.
2. The Court’s decision dismissing the Motion to strike out the counter-petitions has been delivered but the reasons are provided herein.
3. Following the Court’s decision to dismiss the Motion to strike out counter-petitions, the Second Respondents sought to withdraw their opposition to the Motion by the Second Applicant to amend their counter-petitions. The Court granted the application by the Second Applicants to amend their counter-petitions by deleting the relief of ‘claiming the seat’ from the prayer of reliefs they are seeking.
4. The Third Respondents whose petitions named the Electoral Commissioner as a party consent to the application by the Third Applicant (Electoral Commissioner) to have the petitions struck out against the Electoral Commissioner as none of the petitions plead any complaint against the Electoral Commissioner or any electoral official. Costs of $4,000 was awarded to the Electoral Commissioner as against the Third Respondents.
5. We now address the reasons for the decision to dismiss the Motion to Strike out the counter-petitions as in paragraph [1](i) above.

The Motion to Strike Out Counter-petitions

6. The Motion to Strike Out the Counter-petitions is premised on the ground that pursuant to section 115 (7) of Electoral Act 2019 (“the Act”), a counter-petition can only be filed against a Petitioner where the Petitioner is claiming the seat for some person. The First Applicants claim that each of their petitions do not seek to claim a seat for some person but rather to void the election(s) of the Respondent(s) by reason of corrupt practice prescribed by the Act.
7. The First Applicants therefore say, given that they are not claiming the seat for some person(s) the Respondents cannot file counter-petitions pursuant to section 115(7) of the Act. The First Applicants rely on Pita v Liuga^[1] where the respondent made application to be allowed to file a counter-petition against the substituted petitioner but was denied by the Court saying, “in terms of s.111 (now s.115) of the Act a counter-petition may only be filed against a petitioner where he is claiming the seat for some person. The substituted petitioner has done no such thing.”
8. The essential issue in Pita v Liuga^[2] was one of ‘qualification’, that the respondent was not qualified to be a candidate in the 2001 General Elections. The issue was not corrupt practices as in the present case. The reference to section 111 (currently s.115) in Pita v Liuga, in our view, is obiter and not to be held as a binding interpretation on s.111 or currently s.115(7).
9. The First Respondents do not agree with the interpretation of section 115(7) by the First Applicants and submit the following:
   • (i) The Electoral Court in Posala v Su’a^[3] clearly stated that counter-petitions is a recognized and accepted practice under the corresponding provisions in the Act. The Court did not read any restrictions into this provision, nor did it set out any pre-condition that the counter-petition is dependent upon the petitioner ‘claiming the seat.’ The only remarks made by the Court in examining s.111(6) or equivalent of s.115(7) was to confirm the practice that the Respondent who files a counter-petition is “that person may be the person who polled the highest number of lawful votes and the person whom the petitioner wishes to unseat.” The Court further said:

“we do not countenance a view that this Court should accept that the pleadings confine this Court or provide the parameters of the matters within which the petition or counter-petitions is to be tried. The Act s.111(4) (currently s.115(4) provides the court (“Subject to this Act”) with “jurisdiction to inquire into and adjudicate on any matter relating to the petition in such manner as it thinks fit....”

• (ii) The scheme and the spirit of the Electoral Act allows the Electoral Court to regulate and criminalize any corrupt acts committed in relation to the petitions filed. Accordingly, the Electoral Court is not restricted by s.115(7); s.115(7) cannot narrow the jurisdiction of the Court so that only allegations against the respondent can be examined without examining the conduct of the petitioner themselves. This is especially so, when the petitioner is required by s. 111(1)(a) of the Act to submit a statutory declaration that they themselves committed no illegal or corrupt practices.
• (iii) The First Respondents say one cannot claim a seat for their own or for some other person because as a matter of law it goes to a by-election.

The relevant law

10. Section 115(7) of the Electoral Act 2019 provides:
    • 115. Trial of petition
    • .......
    • (7) On the trial of an election petition:
    • (a) complaining of an unlawful election declaration or report; and
    • (b) claiming the seat for some person, the respondent may give evidence to prove that that person was not duly elected,in the same manner as if the respondent had presented a petition against the election of that person.
11. The following are relevant sections of Part 4 of the Act to the issue at hand:
    • 107. Method of questioning election:
    • (1) No election and no declaration of result or report to the Head of State is to be questioned except by petition complaining of an unlawful election or unlawful declaration or report (in this Act referred to as an election petition) presented in accordance with this Part.
    • 111. Statutory declaration by petitioner
    • (1) At a time a petitioner presents an election petition, the petitioner must also produce statutory declarations:
    • (a) .....
    • (b) ......
    • (2) Where in the course of a petition hearing, a counter-petition produces evidence accepted beyond reasonable doubt by the Court that a declaration under subsection (1) is false in a material particular, the Court may make a finding, in addition to any other findings available to the Court under this Act, that the person who made the false declaration has committed an offence and is liable to the penalties provided under section 23 of the Oaths, Affidavits and Declarations Act 1963.
    • 115. Trial of petition
    • ......
    • (4) Subject to this Act, the Court has jurisdiction to inquire into and adjudicate on a matter relating to the petition in any manner it thinks fit, ...
    • 118. Real justice to be observed
    • On the trial of an election petition, the Court:
    • (a) shall be guided by the substantial merits and justice of the case without regard to legal forms or technicalities; and
    • (b) may admit such evidence as in its opinion may assist it to deal effectively with the case, despite that the evidence may not otherwise be admissible in the Supreme Court.

Strike out jurisdiction and approach to strike out application

12. The approach which has been followed by the Samoan Courts when dealing with a motion to strike out a statement of claim is well settled.^[4] They can be summarized as follows:
    • (a) The Court derives its jurisdiction to strike out all or part of a statement of claim or counterclaim from either r 70 of the me Court (Civil Proceduocedure) Rules 1980, or itsrent jurisdiction, oon, or both.
    • (b) A strike out application is dealt with on the the footing that the pleaded facts can be proved.
    • (c) The pleading should be struck out if the Court is satisfied that even on the most favourable interpretation of the facts pleaded or available, the plaintiff could not succeed in law.
    • (d) However, where the claim depends on a question of law capable of decision on the material before it, the Court should not shrink from determining the question even if extensive argument may be required.
13. We now apply those principles to the present case.

The issues are

(a) Can the Respondent to an election petition file a counter-petition under section 115(7) of the Act?
(b) Can the Respondent file a counter-petition under Part 4 of the Act other than section 115(7)?

Discussions

14. The filing of counter-petitions has been accepted as the norm and recognized practice by the Electoral Court since 2006 in the case of Posala v Su’a.^[5]
15. However, the Electoral Act seems to contemplate two types of petitions:
    • (i) The petitions alleging corrupt practices where a seat cannot be claimed for a person because as a matter of law such allegations if proven means the seat goes to by-election. In respect of these petitions, in our view the respondent can file counter-petitions under section 107 and section 111; and
    • (ii) The petitions complaining of unlawful election and claiming a seat for some person pursuant to section 115(7).
16. Section 107 of the Act provides the method by which an election can be questioned by way of petition complaining of an unlawful election or unlawful declaration or report. Section 107 does not have as a prerequisite the “claiming of a seat for some person” in order for a counter-petition to be filed. It just simply says that a person^[6] can file an election petition alleging that the election was unlawful.
17. However, section 111(2) provides the mechanism by which a counter-petition can be filed because of the requirement that a petitioner declare by way of statutory declaration that they themselves are free of any corrupt practice during elections. By making this statutory declaration, their conduct therefore comes under the scrutiny of the Electoral Court. We agree with the First Respondents that the respondents of petitions are allowed to adduce evidence under s.111(2) that the petitioner himself was not corrupt free during and/or at elections. This as a matter of practice must be done by way of counter-petition to prevent surprise at trial and to fully inform all parties at the outset of the nature of the allegations to be made against the petitioner.
18. The Electoral Court pursuant to section 115(4) has a wide jurisdiction “to inquire into and adjudicate on a matter relating to the petition in any manner it thinks fit”, i.e. to inquire into any matter in relation to or arising out of an election petition. This does not limit the Court to the strict allegations of the Petition and in accordance with its general supervisory role, the Court is empowered to investigate matters ancillary to or arising out of an election petition. The legislation further provides that the Court in doing so shall be guided by the substantial merits and justice of the case pursuant to s.118 and can admit such evidence as in its opinion may assist with any matter before the Court that may not otherwise be admissible.
19. The only circumstances where the Court can declare a petitioner as duly elected as opposed to proceeding to a by-election is in relation to those involving counting errors or wrongly registered/unqualified voters or where the names of voters were ordered struck off the electoral roll.^[7] It is our view that s.115(7) refers to these sorts of circumstances and there, the petitioner claims the seat because of such errors, but not due to allegations of corrupt practices. The Electoral Act recognises the need to preserve both kinds of circumstances and allow for a counter-petition to be filed in respect of both.

Conclusion

20. For these reasons the Court as a matter of law dismissed the motion to strike out by the First Applicants.
21. Costs to be assessed as costs in the cause in due course.
    

CHIEF JUSTICE PERESE
JUSTICE NELSON
JUSTICE TUATAGALOA

^[1] Re the Electoral Act, Pita v Liuga [2001] WSSC 20 (19 July 2003).
^[2] Supra, note 1
^[3] Posala v Su’a [2006] WSSC 29 (16 August 2006).
^[4]Sapolu v Saaga [2018] WSCA 9 (25 October 2018) for the latest exposition of the principles regarding strike out aapplications.
^[5] Posala v Su’a [2006] WSSC 29 (16 August 2006).
^[6] The person or petitioner must have polled 50% or more of the total number of votes polled by the person elected – s.108(2) of Electoral Act 2019
^[7] Laki v Pa’u [2001] WSSC 35 (31 August 2001); Election Petitions Re Palauli North (Falefa) Territorial Constituency No.41 [1973] WSLAWRP 4; [1970-1979] WSLR 68 (23 July 1973)