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Samoa Law Reports |
SUPREME COURT APIA
ELECTION PETITIONS RE PALAULI NORTH (FALEFA)
Territorial Constituency No. 41
LEOTA PITA v MAPUILESUA MALO ET AL
MAPUILESUA MALO v LEOTA PITA ET AL
27, 28, 29, 30 March; 18, 23 July 1973
Donne CJ
ELECTIONS (Qualification of electors) - Holders of a Matai title whose names appear on the Register of Matais: Electoral Act 1963 s 16(1) (a) & (b) - "Holder" must be read as "lawful holder" within the meaning of s 27 of the Samoan Land and Titles Protection Ordinance 1934 as amended by the Samoan Land and Titles Protection Amendment Act 1969 -Petition of Leota Pita questioning election result pursuant to s 104 of the Act alleging certain invalid entries in the Register of Matais obtained by false representations and certain others made despite objections to appointments to the title - Onus on petitioner to prove registrations invalid - Power of Supreme Court under s 111 (4) "to enquire into and adjudicate on any matter relating to the petition" for the purpose of disallowing the votes of every person "whose name has been wrongly placed or retained on the roll" - Power including jurisdiction to enquire into how electors came to be entered in the Register of Matais - Such jurisdiction not affected by s 61 of the Samoan Land and Titles Protection Ordinance 1934: Election Petition re Vaisigano No. 1 Territorial Constituency [1960-1969] WSLR 179 not followed - Entries obtained by false representations being nullities ab initio the right to object to their inclusion cannot be waived by failure to do so within any stipulated time: Ridge v Baldwin [1963] UKHL 2; [1963] 2 All ER 66 applied - Petitioner alleging wrongful entry in Register by reason of objection lodged against appointment to title must establish the right of the objector to object: vide Election Petition re Vaisigano No. 1 Territorial Constituency, supra, at p. 184.
(Unauthorized method of polling votes) - Petition of Mapuilesua Malo praying that votes of two electors obtained in contravention of ss 59, 60 and 62 of the Electoral Act 1963 be disallowed -No power in Court to disallow votes polled in unauthorized manner -General directive under s 115 of the Act empowering Court to declare election void if irregularities are proved to be such that the election was not conducted in substantial compliance with the law relating to elections and that they affected the result - Such declaration may be made if the grounds appear in the petition although there is no specific prayer for such relief - Court finding the irregularities alleged did not constitute any substantial non-compliance with the law and did not affect the result of the election.
PETITIONS for declarations disallowing certain votes for Members of the Legislative Assembly in the General Election of February 24, 1973. Registrar of Voters and Chief Returning Officer joined as respondents.
Petition of Leota Pita allowed.
Petition of Mapuilesua Malo dismissed.
Apa for Leota Pita.
Clarke for Mapuilesua Malo.
Slade for Registrar of Electors and Voters.
Attorney-General Hay for Chief Returning Officer.
Cur adv vult
DONNE CJ. These two petitions under the Electoral Act 1963 were heard together by me as required by Section 108 of the Act on the 27th, 28th, 29th, 30th March, 1973. They each seek an inquiry
into the Election held in the Palauli North (Falefa) Constituency and request a declaration by the Court disallowing certain votes
which were cast in the General Election for the Members of the Legislative Assembly held on the 24th February, 1973.
At the conclusion of the hearing the counsel sought leave to make submissions in writing which was granted. There has been some delay
in the filing of these, the last being received by me on the 27th June, 1973.
I indicated to the parties that I would record in writing certain findings of fact. After weighing the evidence and considering on whom the burden lay in the case of each petition, I was completely satisfied as to certain facts, a record of which was delivered to the parties on the 9th April, 1973 in the following form.
Findings of Fact
The following findings of fact are not exclusive, but are findings on matters which the Court believes to be of relevance.
On The Practice and Procedure of the Land and Titles Court in Relation To Registration of Matais
A. Prior to the coming into force of the Samoan Land and Titles
Protection Amendment Act 1969 (No. 29)
1. The saofa'i certificate was forwarded to the Registrar.
2. If the certificate on the face of it showed there were no objections to the conferment of the title, or, if there were objections, but these were shown to be settled, the Registrar entered the name of the matai in the Register of Matais.
3. If the certificate recorded that there were objections, then the Registrar did not enter the name of the matai in the Register of Matais.
4. An objection to the conferment of a title could be lodged at any time by any interested party. In such a case the Registrar would delete the name of the matai from the Register if it had been recorded therein.
5. No particular form of objection was required.
6. On being advised of an objection, the Registrar or other authorised officer would call all parties together for a meeting in an endeavour to settle the question in dispute.
7. No payment of fee was required on the lodging of an objection.
8. If the objection was not resolved at the meeting of the parties, the officer conducting the meeting would direct who should petition to the Court for an order in the matter and who should pay the requisite filing fee.
9. No time limit was fixed for either the filing of a petition or the lodging of an objection.
B. After the coming into operation of the Samoan Land and Titles Protection Amendment Act 1969 (No. 29)
1. On receipt of the saofa'i certificate, notice of the appointment is published in the Savali on two occasions.
2. If no objections are received within three months of the first publication the name of the matai is entered on the Register.
3. If objections are received the Registrar, or other authorised officer, calls the parties together with a view to effecting a settlement of the dispute.
4. No particular form of objection is required.
5. If the objection cannot be resolved the officer conducting the meeting requires the objector to prepare sign and file a petition to the Court for the purpose of determining his objection.
6. Before October, 1972 only $5 was required to be paid by way of fee on the filing of a petition pursuant to an objection.
ON THE PETITION OF LEOTA PITA
A. As to the persons described in the Petition as Mapuilesua Nonu, Mapuilesua Sea and Mapuilesua Vaito'elau:-
1. These three titles were registered by the Registrar of the Land and Titles Court in the Register of Matais on the 20th day of February, 1966 after the receipt by him of saofa'i certificates each dated on that day and signed by the respective matais and the Pulenu'u.
2. The said saofa'i certificates contained false information in that they each contained the following statements:-
| Were there any objections? Has it been settled or not? How were they settled? | Yes. There were. It has been settled. It was settled through the pule of Laulu and Mapuilesua M. and Leulua'i |
I am satisfied that an objection was made to the conferment of each of these titles on the 5th February, 1966, the day the saofa'i ceremonies were held at Gataivai by Siologa Mapuilesua, an untitled person who agreed to allow the village council orators, who had already made preparations, to proceed with the ceremony on the understanding that his objection was accepted by the village council. The village council accepted his objection on that day. The following Monday a meeting was held, but the objection was not settled, and indeed, has not been settled to this day.
3. A formal objection to the said appointments was lodged with the Land and Titles Court by Siologa and Tuiavi'i Iosefa Mapuilesua on the 11th March, 1966 by attending the Deputy Registrar of the Court at Tuasivi. No fee was paid to the Court.
4. The Deputy Registrar at Tuasivi on the 15th March, 1966 called a meeting of the objectors and the sponsors of the saofa'i as well as the appointees of the titles. The objections were not settled, and the Deputy Registrar refused to make an interim order stopping the said appointments, basing his ruling on the decision of the Land and Titles Court in L.C. 2315. The objectors were notified they could apply to the Registrar of the Court at Mulinu'u for a ruling.
5. The decision of the Court in L.C. 2315 was at this hearing subject to a ruling by me that in law it did not preclude the objectors from filing a further petition seeking the same order as sought in the former petition.
6. The Deputy Registrar at Tuasivi, who recorded minutes of the said meeting of the 15th March, 1966 in a Memorandum of the 5th April, 1966, did not forward the said Memorandum to the Registrar at Mulinu'u.
7. On the 13th April, 1966 Siologa called at the Office of the Land and Titles Court and made to an officer there, one Aiolupo Palemene, the following objection:-
When I learned of the proposed appointment of Vaito'elau Slade and two others to the title Mapuilesua, I immediately lodged my complaint to the village authorities and the sponsors of the appointments. Discussion ensued and both claims were very strong. The other party backed up by the village went ahead and made appointments against our will. I then lodged my complaint to the Tuasivi Office. A meeting was called. Twice we met but no settlement reached. Distribution of fine mats was made. Sponsors claim that we are no longer included in the title pursuant to judgment of case in 1963. I seek assistance.
Siologa was told by the officer that if the appointees to the title wanted to use them, they would be required to petition to the Court.
8. No further action was taken by the Land and Titles Court in the matter of the objection of Siologa until it received a petition from him which was filed at the Court on the 13th March, 1973.
9. The objector Siologa was unaware of the registration of the Titles Mapuilesua Nonu, Mapuilesua Sea and Mapuilesua Vaito'elau until he went to the Registrar of the Land and Titles Court at Mulinu'u in February, 1972 to object to the conferring of other Mapuilesua Titles.
10. The objector has petitioned in March, 1973 to the Land and Titles Court seeking, inter alia, an annulment of the appointments of Nonu, Sea and Vaito'elau to the Title Mapuilesua in Gataivai, Savai'i.
10. The three said title holders voted at the General Election on the 24th February, 1973 by each casting his vote at Gataivai.
B. As to the person Leota Uili:
1. Uili was appointed to the Title Leota on the 5th April, 1969.
2. As a result of objection to the conferment of the said title on Uili and a consequent petition to the Land and Titles Court, that Court by a decision recorded on the 28th August, 1970, inter alia, set aside the appointment of Uili to the title. The Court reference is L.C. 3380.
3. A document lodged with the Land and Titles Court at Tuasivi records the unanimous agreement of the family of Palealofa in Gataivai on the 22nd October, 1970 to the conferment of the Title Leota on Uili and five others.
4. On the 15th March, 1971 the Land and Titles Court received a saofa'i certificate dated the 23rd October, which related to the saofa'i ceremony held in respect of Uili on the 5th April, 1969 at Gautavai. This certificate is signed by Uili and the Pulenu'u Fiu V.
5. In pursuance of the saofa'i certificate referred to in the last preceding statement hereof, the Registrar registered the name of Leota Uili in the Register of Matais on the 3rd September, 1972 after having advertised the said appointment in the Savali on the 30th May, 1972.
6. On the 22nd June, 1972 Leota Pita notified the Land and Titles Court of his objection to the appointment of Uili to the Title Leota and paid the cashier of the Court the sum of $5, which was recorded to be an objection fee.
7. No record of such objection and fee payment was transferred to the file at the said Court relating to the said appointment of Uili and the Registrar was unaware of it until the receipt by him of a letter from Leota Pita on the 18th January, 1973. That letter refers, inter alia, to the payment of the objection fee in regard to Uili. The letter indicates a copy thereof was sent to Chief Justice. No such copy was in fact sent to that person.
8. Leota Pita has not taken any further steps to petition to the Land and Titles Court in pursuance of his objection.
9. Uili was not notified of the aforesaid objection, nor has his name been removed from the Register of Matais.
10. I am unable to hold on the evidence that there was a second saofa'i held in respect of the conferment of the title on Uili.
11. Leota Uili voted at the General Election 1973 by casting his vote at Gataivai on the 24th day of February, 1973. I am satisfied he identified himself to the Deputy Returning Officer as Leota Viliamu Uili, and that on the issue to him of a voting paper, the name on the roll recorded as Number 115 was crossed out indicating the issue of the said voting paper to Uili.
C. As to the Persons described in the Petition as Mapuilesua La'a, Mapuilesua Fa'asisila, Mapuilesua Talau, Mapuilesua Popolelemaveve:-
1. Saofa'i certificates in respect of these said persons were dated and received by the Registrar of the Land and Titles Court as follows:-
Mapuilesua La'a dated 23rd January, 1972
received 24th January, 1972;
Mapuilesua Fa'asisila dated 23rd January, 1972
received 24th January, 1972;
Mapuilesua Talau dated 23rd January, 1972
received 24th January, 1972;
Mapuilesua Popolelemaveve dated 19th July, 1972
received 20th July, 1972.
2. The first publication in the Savali of the particulars of each of the aforesaid appointments was the 3rd August, 1972.
3. By a letter to the Registrar of the Land and Titles Court dated the 9th February, 1972 Siologa Mapuilesua and Tuiavi'i Iosefa Mapuilesua objected to the appointments of persons to the Title Mapuilesua including La'a, Fa'asisila, and Talau.
4. On the 17th March, 1972 the then President of the Land and Titles Court, on being shown the letter referred to in the last preceding statement hereof, made the following directions:-
I suggest that if the Petitioners in L.C. 2315 wish to have the pule determined of the Title Mapuilesua they are free to file a fresh petition. The new appointments should be stopped until the Court gives a decision.
Signed B.C. Spring, C.J.
The President's direction related to La'a, Fa'asisila, and Talau.
5. On the 22nd August, 1972 Siologa Mapuilesua attended at the Land and Titles Court at Mulinu'u where he saw a Court officer and lodged an objection against the appointments of certain persons to the Titles Mapuilesua, including La'a, Fa'asisila, Talau, and Popolelemaveve. He paid what was said to be an objection fee of $5 at the request of the officer.
6. On the 25th August, 1972 by letter the Registrar acknowledged the objection of Siologa Mapuilesua and Dr Iosefa Mapuilesua and advised them the matter would be dealt with at Tuasivi. At the same time the Deputy Registrar at Tuasivi was directed to "conduct it (the objection) in the normal procedure" and to direct the opposing party to pay "the full amount of $10 in order that this matter may be forwarded to Court."
7. There is no evidence of any meeting at or direction from Tuasivi following the said letter of the 25th August, 1972.
8. On the 7th November, 1972 the names Mapuilesua La'a, Mapuilesua Fa'asisila, Mapuilesua Talau, and Mapuilesua Popolelemaveve were entered in the Register of Matais.
9. On the 23rd January, 1973 the said names referred to in the last preceding statement hereof were deleted from the Register of Matais, on which is recorded the following Minute signed by the Registrar:-
Obi. lodged & fee pd. before expiry of Savali publication. See L.C. 2315.
10. On the 23rd January, 1973 the Registrar of the Land and Titles Court wrote to the Registrar of Electors requesting the deletion of the said names hereinbefore referred to from the Electoral Roll on the grounds that objection to their appointment had been lodged and that their names had been removed from the Register of Matais.
11. By letter of the 30th January, 1973 the Registrar of Electors advised Mapuilesua La'a, Mapuilesua Fa'asisila, Mapuilesua Talau, and Mapuilesua Popolelemaveve that, objections to their appointments having been received from Tuiavi'i Iosefa and Siologa Mapuilesua, the Registrar of Matais had "set aside your title from the Register of Matais", and that consequently they would be taken off the Electoral Roll.
12. The names of Mapuilesua La'a, Mapuilesua Fa'asisila, Mapuilesua Talau, and Mapuilesua Popolelemaveve were not removed from the Electoral Roll and were still recorded thereon at the day of the said General Election, viz., 24th February, 1973.
14. Mapuilesua La'a, Mapuilesua Fa'asisila, Mapuilesua Talau, and Mapuilesua Popolelemaveve each voted at the General Election by casting his vote at the Polling Booth at Gautavai on the 24th February, 1973.
14. Siologa Mapuilesua filed on the 13th March, 1973 a petition in the Land and Titles Court seeking an order confirming pule and the setting aside of certain appointments to the Title Mapuilesua, including those appointments of La'a, Fa'asisila, Talau, and Popolelemaveve.
ON THE PETITION OF MAPUILESUA MALO
1. Deputy Returning Officer on the Polling Day, the 24th February, 1973, accompanied by the Scrutineers appointed by Mapuilesua Malo and Leota Pita and with their consent, went to the homes of Fiu Laumata and Fa'aolo Pepe, both of the Village of Sili, and obtained the votes of those said persons.
2. The Deputy Returning Officer went to the aforesaid persons to obtain their votes at the request of Mapuilesua Iosefa, the Scrutineer for Mapuilesua Malo.
3. The Deputy Returning Officer took with him the Book of Voting Papers, which never at any stage left his custody.
4. The Deputy Returning Officer and the Scrutineers were absent from the Polling Booth for approximately half an hour during which time the said Booth was in charge of the Poll Clerk and a Police Constable. The Ballot Box remained in the said Polling Booth at all times in the custody of these latter persons during the absence of the Deputy Returning Officer.
5. The Deputy Returning Officer did not detach the Voting Papers from the Book of Voting Papers until he returned to the Polling Booth at which time he, on detaching them, deposited the same in the Ballot Box in the presence of the two Scrutineers.
6. The said Fiu Laumata and Fa'aolo Pepe were both too incapacitated to be taken to the Polling Booth.
The Electoral Act 1963 creates in this Court a special jurisdiction to deal with disputed elections and any person seeking to question an election must do so by presenting an election petition in accordance with the provisions of the Act: see Section 104. The jurisdiction of the Court is defined in Section 111(4) of the Act as follows:-
(4) Subject to this Act, the Court shall have jurisdiction to inquire into and adjudicate on any matter relating to the petition in such manner as it thinks fit, and in particular may at any time during the trial direct a recount or scrutiny of the votes given at the election, and shall disallow the vote of every person proved to have been guilty of any corrupt practice, or whose name has been wrongly placed or retained on the roll:
Provided that the vote of any person who on polling day was entitled to be registered as an elector or voter of the constituency or individual voters in question shall not be disallowed on the ground that his name has been wrongly placed or retained on any roll.
The aim of the Act is clear. It is that only qualified persons should vote, and it is a breach of the law if a person unqualified to vote falsely answers the question as to qualification which may be put to him by the presiding officer at the Polling Booth: see Section 69 (4). The proviso to Section 111, which prevents the disallowing of votes of persons who on polling day were entitled to be registered as electors or voters on the ground that their names have been wrongly placed or retained on any roll, is some evidence of the desire of the Legislative to get all qualified to vote. If, then, an Election Court finds that a person who has voted was not qualified, and could not have been entitled to be enrolled or to vote, then the Court must disallow his vote.
I now turn to a consideration of each petition, the first of which is that of Leota Pita who bases his prayer seeking the dis-allowing of certain votes on the following allegations:-
4. Your Petitioner says that:-
(a) the result of the poll as declared was:-
| Mapuilesua Malo polled Your Petitioner polled Mata'utia Fouvale polled Informal votes Total:- | 102 97 17 3 219 | votes " " " |
(b) The following persons' names were wrongfully placed or retained on the roll for the said Territorial Constituency, namely:-
| No. in Electoral Roll | Title | Taule'ale'a Name | Village |
| 143 147 149 95 141 139 148 145 | Mapuilesua Mapuilesua Mapuilesua Leota Mapuilesua Mapuilesua Mapuilesua Mapuilesua | Nonu Sea Vaito'elau Uili La'a Fa'asisila Talau Popolelemaveve | Gautavai " " Gautavai " " " " " " |
(c) All the above-named persons voted at the said Election except the last two named Mapuilesua Saufo'i Keki and Mapuilesua Pelenato and your Petitioner believes all voted for the candidate Mapuilesua Malo.
(d) All the above persons were disqualified to be registered as electors of the said Constituency because they were not valid holders of the matai titles appearing beside their names and/or their respective titles were by administrative error or otherwise entered on the Register of Matais established and kept pursuant to the Land and Titles Protection Ordinance 1934.
(e) Objections to the conferring of their respective titles were duly lodged with the Office of the Registrar of Lands and Titles at both Tuasivi and Mulinu'u and such objections are still current and have not yet been dealt with in accordance with law and the registration of their respective titles are invalid.
At the hearing, the Petitioner deleted the names of Mapuilesua Aokuso, Mapuilesua Analei, Mapuilesua Pelenato, and Mapuilesua Saufo'i Keki from the names referred to in the said Clause 4 (b) above. This was clearly because the Master Roll which was produced showed that these persons did not vote at the Elections although they were on the roll.
The question the Court must decide in this petition is whether the names of the persons specified therein have been wrongly placed or retained on the Electoral Roll. The qualifications of an elector of a constituency are set out in Section 16(1) of the Act which reads:-
Subject to the provisions of the Constitution and of this Act every person shall be qualified to be registered as an elector of a constituency if -
(a) He is the holder of a matai title; and
(b) His name appears for the time being on the Register of Matais established and kept pursuant to the Land and Titles Protection Ordinance 1934; and
(c) He is not disqualified as a candidate for election by virtue of any of the provisions of Section 5 of this Act; and
(d) He is over the age of 21 years.
The contention of the Petitioner is that these persons named in the petition should not have been entered on the Matai Register and in view of this they must be considered wrongfully placed or retained on the roll.
The entry of the names of Mapuilesua Nonu, Mapuilesua Sea, and Mapuilesua Vaito'elau in the Register of Matais was made by the Registrar on the 20th February, 1966 on the receipt by him of saofa'i certificates signed by them and bearing date the same day. Now, a prerequisite to registration in the Matai Register, and the authority therefor, is the receipt by the Registrar of this saofa'i certificate, which must contain particulars prescribed by him in order that he may be satisfied, inter alia, that the appointment to a title has been properly made, and that there have been no objections to its conferment. As I have already found on the evidence that at the time of registration as matais of these three persons it was the practice of the Land and Titles Court that where an objection was made to the conferment of the title, and this was shown in the saofa'i certificate, the Registrar did not enter the name of an appointee matai in the Register. In the case of each of the certificates of Nonu, Sea, and Vaito'elau it has been found that there was contained therein false information to the effect that, although there had been an objection to the conferment of the title, such objection had been settled. This was not so, since on the day of the saofa'i, Siologa Mapuilesua, a member of the Aiga Potopoto of the title made his objection known. That objection has not yet been settled. Had this fact been recorded in their certificates, their names would not have been entered in the Register.
There is no question that at the time of the compilation of the roll by the Registrar of Electors, each of these persons possessed, on the face of it, the qualification of an elector. However, there is also no question that had the Registrar of Matais received a saofa'i certificate correctly recording the particulars of the conferment in each case, he would not have registered their names in the Register. Does that fact affect their position, since despite it, their names were "for the time being", i.e., at the date of the compilation of the rolls, on the Register of Matais? I think it does. On the facts so found, each appointee by signing his saofa'i certificate must be presumed to know it contained false information thereby enabling his registration as a matai. The Respondent in evidence said at page 68 of the Notes:-
Q. Now Mapuilesua, you were one of the persons who sponsored the appointment of Nonu, Sea, and Vaito'elau. Did you know that there was an objection by Siologa on the very date of the saofa'i?
A. Yes.
Q. Was there a Village meeting whereby it was hoped that this objection might be settled?
A. There was a meeting, but I think Siologa was not present on that day.
Mapuilesua Vaito'elau at page 73 said:-
Q. On the day of your saofa'i, were there any objections made to your saofa'i at the Village?
A. Yes.
Q. Who objected?
A. Siologa and Tuiavi'i Iosefa.
Q. What happened to their objection when they made it at the Village on the day of your saofa'i?
A. They agreed to carry on with the ceremony of the saofa'i on that day, but they will have the right to take the matter to Tuasivi.
Q. Was the matter taken to Tuasivi?
A. Yes.
Q. Was there a meeting at Tuasivi between yourself and the objectors?
A. Yes.
Q. And what was the result of this meeting in Tuasivi?
A. Yes, the result of that discussion was that the Deputy Registrar had decided and ruled that they, the objectors, can't show any right to have the title stopped from being used because of a Court decision of a previous Court case in the same matter, and if the objectors wish to take the matter further they are at liberty to make application through the Deputy Registrar to the Registrar for a ruling.
And again at page 75 he said:-
Q. In your saofa'i certificate it is stated that there had been an objection made on the date of the saofa'i, would I be correct to say that that was the objection made by Siologa?
A. Yes.
I did not have the benefit of hearing from the other persons concerned, but, it is manifestly clear from the evidence that the objections to the conferment of all these titles were not settled as stated in the certificates "through the pule of Laulu, Mapuilesua M. and Leulua'i"; and I am satisfied that by being a party to and signing their respective saofa'i certificates containing this false information Mapuilesua Nonu, Mapuilesua Sea, and Mapuilesua Vaito'elau were fully aware of this falsity and knew that registration depended on there being no objection. In the result, I am left in no doubt that they were parties to a fraudulent misrepresentation and that as a result of such fraud, their names were entered in the Register of Matais when, in fact, they were not lawfully entitled to such registration. However, in spite of such a finding, counsel for the first respondent would suggest that this Court can do nothing. He contends that the Court must treat the entries in the Register of Matais as properly made and must not inquire into the circumstances under which they were made. Such an inquiry, he submits, would be tantamount to the embarking on an inquiry into matters which are exclusively within the jurisdiction of the Land and Titles Court and this, this Court cannot do. In support he relies on the case of Election Petition re Vaisigano No. 1 Territorial Constituency [1960-1969] WSLR 179,a decision of Spring C.J. in which he said at page 188:-
The Supreme Court has no power to investigate and control decisions of the Land and Titles Court and Section 61 of Land and Titles Protection Ordinance 1934 states:-
61. Neither the Supreme Court of New Zealand nor the High Court shall exercise control over the Land and Titles Court (whether in respect of want of jurisdiction or otherwise) by way of appeal certiorari mandamus prohibition or otherwise howsoever.
In my respectful view, to so construe Section 61 of the Samoan Land and Titles Protection Ordinance 1934 in such a way as to preclude this Court from "investigating" decisions of the Land and Titles Court is adopting an interpretation that cannot be supported by the wording of the Section. An investigation of a decision does not in any sense imply control over it or the Court which made it. Section 61 ensures that the decisions of the Land and Titles Court shall be final and conclusive, that its jurisdiction shall not be questioned nor its proceedings controlled in any way by the Supreme Court. Its judgments are final in the first instance.
This Court has been conferred with a special jurisdiction to inquire into all matters relating to disputed elections and it would be absurd if, as in this case, fraud is discovered in the attainment of a qualification of a person as an elector that it must be disregarded because it was discovered as a result of an inquiry into the procedures of the Land and Titles Court. Of course an entry of a name in the Register of Matais is prima facie evidence that the name is lawfully there, but if the evidence establishes some substantive ground why the title should not be registered, as in this case, then I consider this Court is quite entitled to find that the registration is bad.
The fraud employed to obtain one of the qualifications of an elector, namely, that prescribed by Section 16(1) (b) of the Electoral Act 1963 vitiates completely the qualification of Nonu, Sea, and Vaito'elau as electors. Consequently, they were never at any time entitled to have their names placed on the Electoral Roll pursuant to Section 17 (3) of the Act.
It is true, of course, that these persons have been on the Electoral Roll for the previous General Election and that no steps were taken by the Petitioner Leota Pita to object to the inclusion of their names on the roll in accordance with the provisions of Section 26 of the Electoral Act 1963. Does this inactivity on the part of the Petitioner amount to a waiver of his rights to object now? I think not. Clearly, due to fraud, the registering of their names in the Register of Matais was a nullity ab initio and nothing that occurred subsequently can make it valid. In a decision of the House of Lords Ridge v Baldwin [1963] UKHL 2; [1963] 2 All ER 66, in which the question of whether an unsuccessful appeal against an invalid act of a Police Disciplinary Body amounted to a waiver of the right to contend that the act was invalid, Lord Morris at page 106 (line Il) to page 107 (line A4) said:-
In the result, in my judgment, nothing occurred on March 18 to give validity to what the watch committee had purported to do on March 7. Nor, in my view, did the action of the appellant in appealing to the Secretary of State have any such effect. If the decision of March 7 was a nullity and void the fact that the appellant appealed made no difference. The decision of March 7 remained a nullity . . . In these circumstances, the provision in S. 2 (3) of the Police (Appeals) Act 1927, that the decision of the Secretary of State on an appeal is to be "final and binding upon all parties" cannot produce the result that validity is given to that which is a nullity.
And Lord Hodson at page 116 (lines E5 to G2) said:-
I doubt whether any question of waiver arises, but I appreciate the force of the opinion expressed by my noble and learned friend Lord Evershed that if Parliament has stated that the appeal is final, that is an end of the matter and the appellant cannot, as it were, start again and by an action for a declaration seek to undermine the decision from which he has unsuccessfully appealed. The answer to this point is, I think, and here again I find myself in disagreement with the Court of Appeal, as well as with my noble and learned friend Lord Evershed, that the decision of March 7, 1958, taken by the watch committee was at all times a nullity, and nothing that was done thereafter by way of appeal could give it validity.
I, therefore, hold that in the circumstances, the inactivity of the Petitioner as above referred to, does not prejudice his right now to contend that the persons concerned are wrongly placed on the roll, nor can it affect the nullity of the act of entering them on the Register of Matais.
In the result, I hold that Nonu, Sea, and Vaito'elau were wrongly placed on the Electoral Roll from the beginning of their respective enrolments and have been wrongly retained thereon since.
Dealing now with Leota Uili, this man was originally appointed to the title on the 5th April, 1969. However, as a result of a decision of the Land and Titles Court delivered on the 28th August, 1970 his appointment was set aside because there had not been the unanimous consent of the Aiga Potopoto, which was defined in that decision. Then, on the 22nd October, 1970 the Aiga Potopoto purportedly reached unanimous agreement on his appointment and a document containing what was said to be the signature of the whole Aiga Potopoto was lodged with the Land and Titles Court. A saofa'i certificate was lodged with the Registrar on the 15th March, 1971, which gave particulars of a saofa'i ceremony of the 5th August, 1969. His appointment was advertised on the 30th May, 1972 and he was registered in the Register of Matais on the 3rd September, 1972. The Petitioner notified the Court of his objection to the appointment on the 22nd June and paid $5 as an objection fee. He gave no grounds of objection and has taken no further steps. He did not make an objection under Part V of the Act to the inclusion of Leota Uili's name on the roll.
Counsel for the Respondent contends that the failure of the Petitioner to challenge the inclusion of Leota Uili in the Electoral Roll pursuant to Section 26 of the Act precludes this Court considering his petition now. He submits that only the Magistrates' Court under Part V of the Act can inquire into how a person came to be entered in the Matai Register in order to determine whether his name can be removed from the roll. This submission I consider to be untenable. Section 111 (4) gives this Court jurisdiction "to inquire into and adjudicate on any matter relating to the petition", and under Section 104 (1) a petition complaining of an unlawful election may be presented by any of the persons referred to in Section 105. The Petitioner pursuant to Section 105(1) (b) (c) qualifies as one of those persons. Section 111 (4) requires the Court to disallow the vote of every person whose name has been wrongly placed or retained on the roll. The petition concerns an unlawful election and if the Legislative had intended to restrict the right of this Court in an inquiry thereon as to a voter's qualifications in the manner suggested, it would certainly have said so.
However, I feel the petition must fail in relation to Leota Uili. Although the saofa'i certificate presented to the Registrar related to the ceremony in 1967, which conferred the title on Uili, and that conferment was subsequently annulled by the Land and Titles Court, it was not presented until after what appears to have been unanimous agreement of the Aiga Potopoto made after the Court decision. I feel it is probable that it was considered by Uili that this new agreement entitled him to present this certificate and obtain registration in the Matai Register. This, indeed, would appear to be the view of the Registrar, who proceeded to take the necessary steps to this end. The Petitioner, on whom the burden lies, is unable to prove otherwise. It would surely follow that upon such agreement by the Aiga Potopoto the way would be clear for Uili to proceed to registration as the obstacle preventing the Court's confirming his appointment had been removed. As to whether all steps in accordance with the customs and usages of the Samoan people were taken to confer what really was a new appointment, I am unable to find from the evidence, although the Registrar of the Land and Titles Court called by the Petitioner was inclined to the view that they were. However, it is for the Petitioner to satisfy me that proper steps had not been taken, not for Uili to prove they were, and in this respect the Petitioner has failed. Nevertheless, he further contends that Uili was not entitled to be entered in the Register of Matais because valid objection to his appointment was made by him within the time prescribed by notice published in the Savali. Now, in my view, in order to sustain that ground, it is not just necessary to show an objection has been lodged, but, it is also necessary to establish that the objector has the right to object. As Spring C.J. said in the case of Election Petition re Vaisigano No. 1 Territorial Constituency, supra, at page 184:-
The objection to a matai title must in general in the practice of the Land and Titles Court be made by a member of the Aiga Potopoto of the said title. If made by anyone other than a member of the Aiga Potopoto of that title, the Land and Titles Court and/or the Registrar of that Court would not entertain the objection on the grounds that such person would not have any valid right to make any such objection.
Of course, too, any person claiming the pule of the title may object. The Petitioner has not given evidence, but from the correspondence produced and the evidence of the Registrar of the Land and Titles Court called by him, it is not clear whether the Petitioner has an interest which would entitle him to object. At page 42 of the Notes of Evidence (lines 4 to 23) the Registrar says:-
Q. So the fee paid on the 22nd June, 1972 with no particulars to show exactly who the fee relates to, Leota did not inform you until the 18th January this year?
A. Yes
Q. Did you have a discussion with Leota about this so called objection; what were the grounds and so forth?
A. Yes, I did. I asked him that I could not find in the file that an objection was filed, what I mean was records. Then he said that he is connected to the Palealofa branch. He said he is connected through his father's side to the Palealofa branch. Then I told him you can't possibly do that because you have a letter addressed to the President that there is no such branch of that family in the Village. This is a very strong letter protesting the Order of the Court creating a branch of the Palealofa. You said that there is, according to the traditions of the Village, no such Palealofa branch existed.
Q. This is the letter you are referring to as the letter dated the 14th May, 1972?
A. Yes. In that talk I said to Leota it is up to you to include this name or otherwise in your petition, but I suggest not to include, but it is up to you because you are free to prepare your own petition.
I am not satisfied from the evidence that the Petitioner has in fact the right to object in the case of Leota Uili, and since he must establish his case to my satisfaction I reject his submission and refuse to hold that Leota Uili was wrongly placed, or retained on the roll.
I now consider the case relating to Mapuilesua La'a, Mapuilesua Fa'asisila, Mapuilesua Talau, and Mapuilesua Popolelemaveve.
In my view, it is indisputable that these persons' names should not have been entered in the Register of Matais. Counsel for the Respondent contends that there never was an objection lodged against the conferment of the title on Popolelemaveve, but I am satisfied objections to the conferment on all these persons of the title were made within the time prescribed by Section 31(7) of the Samoan Land and Titles Protection Ordinance 1934 as amended by Section 4 of the Samoan Land and Titles Protection Amendment Act 1969 by Siologa Mapuilesua, whom I have held to be a member of the Aiga Potopoto of the title. It is true that when Siologa objected to the Land and Titles Court by letter on the 9th February, 1972 he did not refer to Popolelemaveve, but only to those whose titles were conferred on the previous 8th January. At the stage of the letter, the Registrar had received the saofa'i certificates of La'a, Fa'asisila, and Talau, but not that of Popolelemaveve. His conferment occurred on the 10th January, 1972 and his saofa'i certificate was not received until the 20th July, 1972. His conferment was therefore not before the Registrar at the time the first objection was lodged. The President of the Land and Titles Court on the 19th March, 1972 directed that in view of the objection of Siologa and Tuiavi'i I. Mapuilesua the new appointments to the title should be stopped until the Court has determined the pule of the title. At this stage also Popolelemaveve's appointment was not known to the Court, but obviously would have to be stopped when it became known in view of the President's direction. Publication in the Savali of the conferment of the title on La'a, Fa'asisila, Talau, and Popolelemaveve was made on the 3rd August, 1972. On the 22nd August, 1972 Siologa attended the Office of the Land and Titles Court at Mulinu'u, paid the objection fee required of him, and lodged his objection to the conferment of the titles. In view of the publication of all the new appointments' names in the Savali on the 3rd August I find it quite improbable that Siologa would not include Popolelemaveve in his objection, but on consideration of the letter of the 23rd January, 1973 written by the Registrar, Auelua F. Enari, to the Registrar of Electors advising the latter of what obviously was Siologa's objection, and in which Auelua includes the name of Popolelemaveve, and the fact that it must follow from the President's direction referred to above that all new appointments to the title should be stopped, I am completely satisfied that the conferment of the Title Mapuilesua on Popolelemaveve was objected to as alleged by the Petitioner.
The error of entering the names of these persons in the Register of Matais was acknowledged by the Registrar, but his letter to the Registrar of Electors was too late to allow the latter to take steps towards the deletion of those names from the roll. Those names have now been deleted. However, the letter of the 30th January, 1973 sent from the Office of the Registrar of Electors to all the appointees, including the four above named, leaves me in no doubt that they were all aware that they did not possess the qualification of being on the Register of Matais, which is necessary to become an elector of any constituency. Had they had put to them by the presiding officer of the Polling Booth at which they voted the questions set out in Section 69 of the Electoral Act 1963 they could not have truthfully asserted they still were possessed of the qualifications in respect of which they were each enrolled, and it would follow they would not have been able to vote. The Registrar of Electors, of course, had no alternative but to leave their names on the roll as he was prohibited from removing them by virtue of Section 32 (3) of the Electoral Act 1963. That, in my view, does not assist the said appointees since it is quite clear that they were not entitled to be entered on the 7th November, 1972 in the Register of Matais. Section 31 of the Samoan Land and Titles Protection Ordinance 1934 as amended in 1969 as above mentioned, allows entry in the Register only after the expiration of the period of three months from the first publication of the title in the Savali, and then only if the Registrar is satisfied entry should be made, or if there has been no objection lodged: see Section 31 (5) (a) and (7). If there is an objection lodged no entry in the Register can be made other than by order of the Court: see Section 31 (8). Since they were not lawfully entitled to be in the Register of Matais, it follows they were not lawfully possessed of the qualification of electors in that respect when they were placed on the roll. This is still the position.
Counsel for the Petitioner also submits that these four appointees were never the rightful holders of the title, and in consequence, they did not possess the qualification laid down in Section 16 (1) (a) of the Electoral Act 1963, supra. There could indeed be no recognition by the Registrar of the Land and Titles Court that they were rightful holders in view of the objections filed to their appointments. Section 31 (5) (a) of the Samoan Land and Titles Protection Ordinance 1934 as amended in 1969, allows such recognition only "if no objection is duly lodged within the time limited in the [published] notice". These objections must be referred to the Land and Titles Court pursuant to Section 31(7) of that said Act. In view of the definition of "rightful holder" in Section 27 of the said Act as amended, it would appear that none of the said appointees can be so regarded. This Section reads:-
27. In this Part of this Ordinance, where not inconsistent with the context, "rightful holder" means a person who, -
(a) Has been appointed the holder of a matai name or title by and in accordance with the customs and usages of the Samoan people, including appointment thereto in pursuance of a judgment of the Court, or of an interim order made under the provisions of this Ordinance; and
(b) Has had the traditional ceremony of appointment in the village to which that name or title belongs; and
(c) Has been recognised as the rightful holder of the matai name or title in question, by the Registrar under subsection (5) of section 31 of this Ordinance or by the Court under subsection (6) or (7) of that section 31.
Now, the qualification in Section 16 (1) (a) of the Electoral Act 1963 that requires an elector to be "the holder of a matai title" must be read as meaning "lawful holder" of the title. Since La'a, Fa'asisila, Talau, and Popolelemaveve for the reasons above stated, cannot be regarded as "rightful holders" within the meaning of Section 27 of the Samoan Land and Titles Protection Ordinance 1934, supra, which defines the law relating to Samoan names and titles, they cannot be regarded lawfully as holding their matai titles and are thus not possessed of the qualification laid down by the said Section 16 (1) (a) of the Electoral Act 1963, and I so hold.
In the result, I find that La'a, Fa'asisila, Talau, and Popolelemaveve were wrongly placed on the roll.
I deal now with the petition of Mapuilesua Malo in which he alleges that on Election Day in contravention of Sections 59, 60 and 62 of the Electoral Act 1963 votes of Fiu Laumata and Fa'aola Pepe were unlawfully obtained, and in which he seeks a declaration that such votes should be disallowed.
The findings of fact have given the circumstances under which these votes were taken and details the action of the Deputy Returning Officer in relation thereto.
The Petitioner in his petition and submissions requests that the votes of the two voters be declared invalid and disallowed. As I see it, Section 111 of the Electoral Act 1963 permits this Court to disallow votes on a recount ordered by it only where the voter has been proved guilty of any corrupt practice, or where his name has been wrongfully placed, or retained on the roll. There is also provision for the Court under Section 114 of the Act to strike off from the number of votes received by a candidate, who has been found guilty of a corrupt practice, one vote for every person who voted at the election and who benefited from the corrupt practice. Apart from these cases, there can be no order by this Court disallowing or striking off votes. The remedy which the Petitioner must seek in the case of irregularities of the nature he pleads, is an order declaring the election invalid. However, Section 115 (a) of the Act provides that on the hearing of an election petition:-
(a) The Court shall be guided by the substantial merits and justice of the case without regard to legal forms or technicalities.
Since the grounds are pleaded in the petition, I feel that the Court, if it found them to be sustained on the evidence, could by virtue of this general directive in Section 115, make an order declaring the election invalid, although that order is not the subject of a specific prayer in the petition.
Now, there is no authority in the Electoral Act 1963 to permit the taking of the votes of any election other than in a duly appointed polling place on the day duly appointed for the holding of an election. The method adopted by the Deputy Returning Officer to enable the two electors who were duly qualified as such to record their votes was clearly not authorised by the Act and could be considered a breach of duty by him of the kind contemplated by Section 116(d) of the Act. However, before the Court can declare an election invalid in such a case, it must be satisfied firstly, that the election was not so conducted as to be substantially in compliance with the law as to elections, and secondly, that such a breach affected the result of the election. In this case, I have no hesitation in holding that the Deputy Returning Officer acted in good faith in acceding to the request of the Scrutineer for the Petitioner to obtain the votes of these two electors at their homes. This required him to leave the Polling Booth with the two Scrutineers, but he took the wise precaution of leaving the Booth under guard of the Poll Clerk and a Police Constable. He was careful to ensure the two voters cast their votes properly and in secrecy. He retained custody of the votes which he left in the Book of Voting Papers until he deposited them in the Ballot Box on his return to the Booth after an absence of approximately half an hour. The Book of Voting Papers was at all material times in his custody.
I am not prepared to hold that this action of the Deputy Returning Officer amounted to non-compliance of a substantial nature with the law as to elections. It certainly obtained the votes of two qualified electors who, I am satisfied, were in such physical condition as to be unable to attend the Polling Booth. There is no evidence to show that anyone who wished to vote during the time the Polling Booth was closed was unable so to do. The Petitioner, on whom the burden lies, did not call the evidence of any such person, nor did I hear from the Poll Clerk or Police Constable, who were in charge of the Booth during that time. If they could have testified for the Petitioner on this point, I would expect them to have been called to give evidence. I am satisfied this breach of duty did not affect the result of the Election.
Consequently, I am not prepared to declare the Election invalid.
As a result of my findings in these two petitions I make the following Order:-
(b) Such recount shall be conducted before me and in the presence of the Scrutineers for all the candidates if they so desire.
(c) At the said recount the following votes shall be disallowed:-
| No. in Electoral Roll | Title | Taule'ale'a Name | Village |
| 139 141 143 145 147 148 149 | Mapuilesua Mapuilesua Mapuilesua Mapuilesua Mapuilesua Mapuilesua Mapuilesua | Fa'asisila La'a Nonu Popolelemaveve Sea Talau Vaito'elau | Gataivai Gataivai Gataivai Gataivai Gataivai Gataivai Gataivai |
(d) The said recount shall be conducted by the Chief Returning Officer in my Chambers at the Supreme Court Apia at 2 o'clock in the afternoon of Friday, the 20th day of July, 1973.
FINAL JUDGMENT
3 July, 1973
In accordance with the Order of this Court a recount of votes cast in the above constituency was held in my Chambers on Friday, the 20th July, 1973. I have received from the Chief Returning Officer a certificate of the result thereof as follows:
| Leota Pita Mapuilesua Malo Mata'utia Fouvale | 97 votes 95 votes 17 votes |
| Total:- | 209 votes |
There were three informal votes.
Accordingly, I hold that the petition of Leota Pita is allowed and declare the said Leota Pita was duly elected as a Member of Parliament for the Constituency of Palauli North (Falefa) in lieu of Mapuilesua Malo, the First Respondent therein named, and I propose pursuant to Section 118 of the Electoral Act 1963 to certify in writing to the Speaker of the Legislative Assembly the determination of this Court to that effect.
The petition of Mapuilesua Malo is accordingly dismissed. The said Mapuilesua Malo is ordered to pay the following costs:-
(a) To Leota Pita the sum of $50;
(b) To the Registrar of Electors and Voters the sum of $15;
(c) To the Chief Returning Officer $15.
There shall be an order for witnesses' expenses for witnesses other than Government employees according to scale to be fixed by the
Registrar.
Solicitors for Petitioner Leota Pita: Phillips & Loe.
Solicitors for Petitioner Mapuilesua Malo: Jackson & Clarke.
Solicitor for Registrar of Electors: N. Slade.
Solicitor for Chief Returning Officer: Attorney-General I. Hay.
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