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Salele v Su'a [2021] WSSC 41 (25 August 2021)

IN THE SUPREME COURT OF SAMOA
Salele v Sua [2021] WSSC 41 (25 August 2021)

MISC 93/21

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

IN THE MATTER:

of the Electoral Act 2019

AND:

IN THE MATTER:

Concerning the territorial constituency of Salega 1

BETWEEN:

AFUALO LUAGALAU WOOD SALELE candidate for the constituency of
Salega 1

Applicant

AND:

FEPULEAI FAASAVALU FAIMATA SUA elected candidate for the constituency of Salega 1

Respondent

Coram: Justice Niavā Mata Tuatagaloa
Justice Fepulea’i Ameperosa Roma

Counsel: L. Su’a-Mailo for the Respondent

M. Lui for the Petitioner

Hearing: 25 August 2021
Judgment: 25 August 2021

ORAL RULING OF THE COURT

1. The Applicant was a Petitioner in an electoral petition against the Respondent following the General Elections in April 2021. In a judgment delivered on 25 June 2021, we dismissed his petition and found him guilty of one (1) count of bribery on the counter petition by the Respondent.
2. In a Notice of Motion dated 19 August 2021 supported by an affidavit, the Applicant seeks an Order from this Court that he not be reported in writing to the Speaker of the Legislative Assembly as the Court is required to under s122 of the Electoral Act 2019. The application is premised on s122(2)(b) which states:
   • “(2) In the case of:
   • (a) someone who is not a Party to the petition; or
   • (b) a candidate on behalf of whom the seat is claimed by the petition,
   • the Court, before reporting him or her to have been proven guilty of a corrupt or illegal practice, shall:
   • (aa) first cause notice to be given to that person; and
   • (bb) if that person appears under the notice, give an opportunity of being heard and of calling evidence in that person’s defence to show why that person should not be so reported.”
3. Essentially the Applicant claims that he qualifies under s122(2)(b) and that he should accordingly be given the opportunity to be heard and defend why he should not be reported.
4. The application is opposed by the Respondent.
5. After hearing both Counsel, we are not satisfied that the Applicant qualifies under s122(2)(b) to bring the application. We need not therefore consider the matters referred to in his affidavit in support. We rely on the following reasons:
   • (i) Other than seeking to void the seat, the applicant’s petition before the Electoral Court did not claim the seat and no one else claimed the seat on his behalf. We reject the submission by Counsel for the Applicant that we should nevertheless simply infer from his petition that he was also claiming the seat. Apart from referring to s118 on real justice to be observed which we find does not apply, no authority was provided in support of the submission by Counsel;
   • (ii) We agree with the submission for the Respondent that claiming the seat for a candidate under s122(2)(b) is available only when a petition is founded on an irregularity on the roll where some electors were not qualified to vote. Clearly the petition by the applicant was not founded on such irregularity. Counsel helpfully referred to Laki v. Pa’u [2001] WSSC 35 and Election Petition Re Palauli North (Falefa) Territorial Constituency No 41 [1970 – 1979] WSLR 68. We refer to Sooalo Umi Feo Mene & Others v. Vaele Paiaaua Iona Sekuini & Others (Misc80/21, 2 June 2021 at para 19);
   • (iii) We consider that the purpose of s122(2) is to afford the opportunity to those who were not parties to an electoral petition and therefore had no notice of the Court’s findings of guilty of corrupt or illegal practice(s) against them to be heard and defend themselves before a decision is made on whether or not they be reported. The Applicant was a party to the petition. He was heard in response to the allegations against him. The Court made a finding. He does not qualify for another opportunity under s122(2)(b);
   • (iv) We are mindful that if we grant the application on the basis as submitted by Counsel for the Applicant, it would open the floodgates and give every other candidate / party to a petition against whom a finding of guilty of corrupt or illegal practice was made, a second opportunity to be heard. We find that such exercise is not intended by the spirit and purpose of the Act.
6. For the above reasons, we dismiss the application by the Applicant.
7. Whilst mindful of the duty that Counsel owe to their clients, we wish to remind them of their overriding duty to the Court. Such includes carefully considering each application before it is filed and providing authorities in support.
8. Costs follow the event. We award costs of $500.00 in favour of the Respondent.
   

JUSTICE TUATAGALOA
JUSTICE ROMA