Ah Him v Poto [2025] WSDC 10 (11 September 2025)

IN THE DISTRICT COURT OF SAMOA
Ah Him v Poto & The Electoral Commissioner [2025] WSDC 10 (11 September 2025)

Case name:	Ah Him v Poto & The Electoral Commissioner
Citation:	[2025] WSDC 10
Decision date:	11 September 2025
Parties:	TUALA OLIVETTI AH HIM (Informant) SALA PAULO TUALA POTO (First Respondent) THE ELECTORAL COMMISSIONER (Second Respondent)
Hearing date(s):
File number(s):
Jurisdiction:	District Court-CIVIL
Place of delivery:	District Court of Samoa, Mulinuu
Judge(s):	Judge Atoa-Saaga
On appeal from:
Order:	While I am satisfied that there was a systemic breach for this Constituency, I have found no evidence of any impact of that breach on this Candidate. In the absence of any evidence specific to the Candidate I will order costs to be paid by the Applicant to the First Respondent.
Representation:	Ms. Sio-Ofoia for the Applicant Ms. Lui for the First Respondent
Catchwords:
Words and phrases:	Recount Recount-electoral constituency-independent candidate-election-systemic breach-constituency
Legislation cited:
Cases cited:
Summary of decision:

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 SAGAGA 3, pursuant to Section 85 of the Electoral Act 2019.

BETWEEN

TUALA OLIVETTI AH HIM, a Candidate for the Constituency SAGAGA NUMBER 3

Applicant

A N D

SALA PAULO TUALA POTO
a Candidate for the Electoral Constituency for SAGAGA 3 appointed under the Electoral Act 2019
.
First Respondent

A N D

THE ELECTORAL COMMISSIONER appointed under the Electoral Act 2019.
Second Respondent

Ms Sio Ofoia for the Applicant
Ms Muriel Lui 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 Sagaga No 3. The results of this Constituency after the Official Count was as follows:
   • (a) SALA PAULO TUALA POTO 939
   • (b) SALA VAIMILI II 118
   • (c) TUALA OLIVETTI AH HIM 917
   • (d) TUALA TELE’A LILII 535
2. The Applicant believes that the numbers are very close that a recount is essential in determining the accuracy of the number of votes he received.
3. The Applicant has reason to believe that the Declaration of Official Results for Sagaga No 3 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 Candidate of this Constituency, might be found to be elected;
4. The Applicant relies on systemic breach as reported by the Media:
   • (i) The news on Tuesday 2^nd September 2025 titled, “Electoral Officer blamed for Safata 2 results error” which was in respect of an error discovered at one of the polling booths which resulted in an error in the results of the Constituency.
   • (ii) The news on Wednesday 3r^d September 2025 titled, “Four Electoral Officers investigated” which was in respect of an investigation conducted against electoral officers whose actions caused the error.
   • (iii) The news on Thursday 4th September 2025 titled, “Unregistered people voted” which was in respect of 20 people from different constituencies who were not registered but were able to cast their votes.
   • (iv) The news on Friday 5^th September 2025 titled, “Special Votes missing from Salega 1” which was in respect of special votes missing during the final Official Count.
   • (v) The news on Saturday 6^th September 2025 titled, “10 Polling Officials could be charged” which was in respect of 10 polling officers who could be investigated and charged with tampering with ballots.
   • (vi) The news on Sunday 7th September 2025 titled, “OEC to change hiring of polling officials” which recommended major changes to the hiring of polling officers in the future.

THE RECOUNT PROCESS FOR THE JUDICIAL RECOUNT

5. The Recount was conducted on Thursday 11^th September 2025 from 10.00am to 2.00pm. 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.
6. 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.
7. 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.
8. 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

9. There were 6 Booths including two for Pre Polling and Special Votes.

Unregistered Voters

10. There was a Systemic breach for this Constituency. There were 4 unregistered voters that were set aside by the Electoral Commissioner during the Official Count for this Constituency.

Dual Voter

11. There was one dual voter who cast a vote on Wednesday and again at Booth 11.2 on Polling Day on Friday 28^th August 2025.
12. The Electoral Commissioner had addressed this issue during the Official Count also.
13. All the used and unused ballot papers were accounted for. Please find attached “Annexure 1” for Results of the Recount.

MEMORANDUM OF COSTS

14. A Memorandum of Costs for $2,000 was subsequently filed by the First Respondent against the Applicant on the grounds:
    • (A) The First Respondent had 22 votes ahead of the Applicant. At the conclusion of the Recount, the First Respondent is still ahead with 22 votes. There was never a possibility of the applicant being found elected.
    • (B) The grounds the Applicant relied on are general matters that were addressed by the Electoral Commissioner with all the scrutineers at the time of the Official Count. To raise as grounds for a Recount is an abuse of process.
    • (C) The First Respondent has had to recall all their scrutineers, seek legal advice and arrange for a scrutineer to be present during the Recount.
15. In response, Counsel for the Applicant has submitted:
    • (a) That no costs should be ordered against the Applicant as the application was reasonable, lawful and brought in good faith.
    • (b) That the Applicant held a reasonable belief that the result may have been incorrect and grounded in evidence including the Affidavit of the Applicant dated 8^th September 2025 and Supporting Affidavits, Oral Statements, Media Reports and Admissions from Office of the Electoral Commissioner.
16. Systemic Breach is not a ground for the filing of a Recount unless there is evidence of the impact of the breach on the Candidate. There were no Supporting Affidavits or Oral Statements provided by the Applicant’s scrutineers detailing any impact of the breach on the Candidate. There was only an Affidavit filed by the Applicant attaching Media Reports.

ASSESSMENT OF COSTS

17. The most relevant article for this Constituency was news article on Thursday 4^th September 2025.
18. There were 4 unregistered voters for this Constituency. The issue however affects all the Candidates for this Constituency and is not specific to this Candidate. There was no evidence specific to this Candidate in respect of the systemic breach.
19. There was a margin of 22 between the winning bidder and the Applicant after the count and the results remain the same after the recount. There were no unresolved issues and all the concerns were addressed by the Electoral Commissioner at the Official Count and immediately after the Official Count. The Electoral Commissioner invalidated the unregistered voters and ordered an investigation into the handling of the special votes by the Officials at the Booths.
20. While I am satisfied that there was a systemic breach for this Constituency, I have found no evidence of any impact of that breach on this Candidate. In the absence of any evidence specific to the Candidate I will order costs to be paid by the Applicant to the First Respondent.

QUANTUM OF COSTS

21. The Official Count was conducted by the Court Officers ONLY. Only one Scrutineer was permitted to attend and was present to observe the RECOUNTING OF THE BALLOTS. The scrutineer was not there as an active participant.
22. The lawyers were consulted by the parties and were responsible for the filing of the application and attendance of the mentions of the matter. The mentions took 15 minutes prior to the Recount. The lawyers did not attend and were not required to attend the RECOUNT which took 4 hours.
23. Having assessed the costs involved in the Application, I am inclined to award Court Costs of $500.00 and $500.00 to the First Respondent. The parties can pay for their own legal costs and for the First Respondent, pay the sum in excess of the sum ordered.
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 and pay the sum of $500.00 to the First Respondent through Counsel for the First Respondent. The Costs are to be paid by Wednesday 24^th September 2025.
    

JUDGE SAAGA