In re the Electoral Act, Roebeck v Chui [2001] WSSC 13 (2 April 2001)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

IN THE MATTER of the Electoral Act 1963.

AND

IN THE MATTER concerning the election of a Member of Parliament
for the Individual Voters.

BETWEEN

TAUTULU ROEBECK
of Moamoa, and
ELAINE MELEANE SILVA
of Alafua and
JACOB JOHN OLAF JACK NETZLER
of Sinamoga, and
TAUTAI LEI SAM
of Moamoa, and
NICHOLAS LEVY
of Sinamoga,
Candidates for Election.
Petitioners

AND

VANG SUNG CHAN CHUI
of Siusega, a Candidate for Election.
Respondent

Coram: Sapolu CJ
Vaai J
Nelson J

Counsel: KM Sapolu for petitioners
S Leung Wai and M Leung Wai for respondent

Hearing: 28 March 2001
Reasons for Judgment: 2 April 2001

REASONS FOR JUDGMENT
The reasons for judgment of the Court were delivered by Sapolu CJ.

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The rehe respondent is the cate sto halled the second highest number of votes. He wcordioffic declared on 12 Marcone of the candidates to be elee elected cted for tfor the inhe individdividual vual votersoters. Following the official declaration of the results of the poll, all the unsuccessful candidates filed a joint election petition on 19 March, the last day for filing such a petition, to void the election of the respondent pursuant to s. 112 of the Electoral Act 1963 on the ground of alleged corrupt practices. Seven days were then allowed pursuant to r. 18 and r. 19 of the Election Petition Rules 1964 for the newspaper advertisement and service of the petition. The petition was also set down by the Court for mention on 27 March, the day immediately after the seven days period allowed for the newspaper advertisement and service of the petition was to expire. When the petition was called for mention on 27 March together with other petitions filed in relation to the official results of the general election, counsel for the joint petitioners made oral application to amend the petition and handed over to the Court an amended petition. I did not rule on the application or accept the amended petition as I indicated to counsel for the petitioners that the Court will have to be constituted with three Judges to hear her application. The application was then stood over for the Court to be constituted with three Judges. Subsequently, on the same day, it was possible to arrange for a Court of three Judges to sit the next day to hear the application by counsel for the petitioners. All counsel involved in this petition were then informed through the Registrar to appear at 9.30 am the next day, 28 March, for the Court to hear the petitioners application.

It was not contested that the Court does not have the power to permit amendments being made to an election petition either before or during the trial. We hold the Court has such power. But the power of permitting amendments being made to a petition is discretionary and limited. We think the view we have adopted is contemplated within the meaning and spirit of r. 55 which requires this Court to follow its own rules of practice and procedure in any matter not provided for in the Election Petition rules 1964 and s. 115 of the Act which provides that on the trial of an election petition the Court shall be guided by the substantial merits and justice of the case without regard to legal forms or technicalities. And as it was noted by Cooke J in delivering the judgment of a Full Court of then Supreme Court of New Zealand in Re Wellington Central Election Petition Shand v Comber [1973] 2 NZLR 470 at 477, the power of permitting amendments being made to an election petition is discretionary and limited. As much of our own Electoral Act 1963, particularly its provisions on election petitions and the trial of such petitions, is based on the New Zealand Electoral Act 1956, what is said by Cooke J in relation to the New Zealand legislation is in our opinion very relevant.

Now at the hearing of the application for amendment, two new paragraphs, namely, 4(h) and 4(i) were sought to be added to paragraph 4 of the petition and another two new paragraphs, namely, 5(l) and 5(m) were sought to be added to paragraph 5. Two new declarations were also sought to be added to the relief claimed but this part of the application was later withdrawn. A number of grounds were submitted in support of the application to amend paragraphs 4 and 5. The principal and crucial ground is that the new allegations contained in paragraphs 4(h) and 4(i) constitute the corrupt practice of undue influence in terms of s. 98(2) of the Act.

In the exercise of the Court’s discretion, whether to grant or refuse an application for amendment, the public interest in the speedy determination of an election petition so that there is an early finality and certainty in the outcome of a parliamentary election, is a powerful influence on the exercise of that discretion: see Nair v Teik [1967] 2 A11 ER 34 and Re Wellington Central Election Petition, Shand v Comber [1973] NZLR 470, at 477-478. Other factors which are relevant to the present application is the fact that the proposed amendments are totally new allegations as they arose after the petition was filed and served, and the question of whether the new allegations have any merits in the sense of being tenable in law. It is this last factor which, in our view, is decisive to the exercise of our discretion in the present application.

The proposed amendments contained in the new paragraph 4(h) allege that between 22 and 26 March, after the petitioners’ petition was served on the respondent, the respondent by his committee member and agent Moe Iakopo Tauati, took Tupufia Faumui a voter named in the petition to the office of the respondent’s lawyer and suggested to the said Tupufia to explain that the giving of T-shirts to him and other voters named in the petition was for the purpose of changing their wet clothes; and the giving of $10 to him and to each of the other voters named in the petition was for the purpose of buying baskets of firewood. In the new paragraph 4(i) it is alleged that on 22 March, after the petitioners’ petition was served on the respondent, the respondent by his committee member and agent, Maliko Manuula, confronted Faleula Solomona Penesa, a voter, and said to him “O le a lau mea lea ua fai?” (What is this you have done?). Maliko Manuula later approached the said Faleula with a bushknife.

It is then claimed in the new paragraph 5(l) that the allegations contained in paragraph 4(h) constitute the corrupt practice of undue influence under s. 98(2)(a). The reason given for this is that the taking of Tupufia Faumui by duress and suggesting to him the said explanations of the corrupt practice alleged against the respondent amounted to inflicting or threatening to inflict on the said Tupufia Faumui temporal injury, damage, harm or loss on the said Tupufia Faumui on account of his having voted for or against the respondent and/or assisting the petitioners in formulating their petition. In dealing first with this part of the proposed amendments, it will be helpful to set out s. 98(2)(a) which provides:

“(2) Every person commits the offence of undue influence who:

(a) Directly or indirectly, by himself or by any other person on his behalf, makes use of or threatens to make use of any force, violence or restraint, or inflicts or threatens to inflict, by himself or by any other person, any temporal or spiritual injury, damage, harm, or loss upon or against any person, in order to induce or compel that person to vote for or against a particular candidate or to vote or refrain from voting; or on account of that person having voted for or against a particular candidate or having voted or refrained from voting; or

As it should be clear from the allegations in paragraph 4(h) and the words of s.98(2)(a), the crucial question is whether the acts alleged to have been committed in relation to the said Tupufia Faumui were committed “on account of that person having voted for or against a particular candidate” as alleged in paragraph 5(l). If the alleged actions were not so committed, then they do not amount to the corrupt practice of undue influence, unless the same acts amount to undue influence under one of the other alternative grounds provided in s. 98 (2)(a). But it is not claimed that those acts amount to undue influence under any of the other alternative grounds provided in s.98(2)(a). And in our view none of those alternative grounds is applicable to the proposed amendments.

After considering paragraphs 4(h) and 5(l), the Court is of the view that the actions complained of were not committed on account of Tupufia Faumui having voted for or against the respondent. It is clear that what caused Moe Iakopo Tauati, who is alleged to be a committee member and/or agent for the respondent, to take action in relation to Tupufia Faumui was the appearance of Tupufia Faumui’s name in the petitioners’ petition that was served on the respondent. The actions taken by Moe Iakopo Tauati were clearly defensive actions for the purpose of protecting the respondent against the allegations of treating and bribery made in the petition so that his election would not be voided should the petition proceed to trial. We do not agree that the allegations show that the actions taken by Moe Iakopo Tauati were on account of Tupufia Faumui having voted for or against the respondent. In fact the allegations do not show how Tupufia Faumui actually voted. So how can it be said that Moe Iakopo Tauati’s actions were taken on account of Tupufia Faumui having voted for the respondent or against him. Given the secrecy of the ballot, the only person who would know of how Tupufia Faumui actually voted would be Tupufia Faumui himself, unless he has told someone about the candidate or candidates for whom he voted. But there is nothing in the allegations to that effect. Thus the proper inference to draw is that Moe Iakopo Tauati did not know whether Tupufia Faumui voted for the respondent or against him. It follows from all this, that the actions taken by Moe Iakopo Tauati in relation to Tupufia Faumui were not on account of Tupufia Faumui having voted for or against the respondent. The real cause of the actions taken by Moe Iakopo Tauati was to protect the respondent against the allegations in the petition which involve Tupufia Faumui so that the respondent’s election would not be voided by reason of those allegations. We are reinforced in this view by the fact that the general election was held on 2 March. From that time onwards, Moe Iakopo Tauati did not take any action in relation to Tupufia Faumui. He only did so on 22 March after the petition was served on the respondent.

That brings us to that part of the proposed amendments which alleges that the actions taken by Moe Iakopo Tauati after service of the petition on the respondent, were taken on account of Tupufia Faumui having assisted the petitioners in the formulation of their petition. This comes close to what we think is the truth of what happened. However, such actions, even if true, do not constitute the corrupt practice of undue influence in terms of s.98 (2)(a). The alleged actions by Moe Iakopo Tauati were clearly aimed at tailoring the evidence of Tupufia Faumui to counter the allegations of treating and bribery in the petition which involve Tupufia Faumui. And that is not undue influence in terms of s. 98(2)(a).

Accordingly the Court refuses to accept or allow the proposed amendments contained in paragraphs 4(h) and 5(l) as they are untenable in law.

Turning now to the next part of the proposed amendments, it is alleged in paragraph 5(m) that the allegations in paragraph 4(i) constitute the corrupt practice of undue influence. The reason given for this is that, the words spoken by Maliko Manuula, who is alleged to be a committee member and/or agent for the respondent, to Faleula Solomona Penesa, a voter, and his approaching him with a bushknife amounted to the use or threats to make use of force to inflict temporal or spiritual injury, damage, harm or loss on Faleula Solomona Penesa on account of his having voted against the respondent and/or assisting the petitioners with formulating their petition.

Here again we do not agree the allegations in paragraph 4(i) amount to the corrupt practice of undue influence under s. 98(2)(a) as alleged in paragraph 5(m). Paragraph 4(i) clearly suggests that the reason for Maliko Manuula having spoken to Faleula Solomona Penesa was because of the petition that was served on the respondent. Likewise, paragraph 4(i) clearly suggests that the reason for the subsequent action taken by Maliko Manuula in approaching Faleula Solomona Penesa with a bushknife was because of the petition that was served on the respondent. There is nothing in paragraph 4(i) which says that Maliko Manuula knew of how Faleula Solomona Penesa exercised his vote. Given the secrecy of the ballot that is only to be expected. The only person who would know of how Faleula Solomona Penesa voted would be Faleula Solomona Penesa himself, unless he has told someone how he voted. But there is nothing in the allegations to that effect. Thus we cannot agree that the actions taken by Maliko Manuula were on account of Faleula Solomona Penesa having voted against the respondent in terms of s. 98(2)(a). The real cause of the actions by Maliko Manuula, as paragraph 4(i) clearly suggests, is the petitioners’ petition that was served on the respondent. We are also reinforced in this view by the fact that the general election was held on 2 March. From that time onwards, Maliko Manuula did not take any action in relation to Faleula Solomona Penesa. He only took action on 22 March, about three weeks after the poll, after the petition was served on the respondent.

As to the next part of the proposed amendments contained in paragraphs 4(i) and 5(m) which alleges that Maliko Manuula’s action were taken on account of Faleula Solomona Penesa having assisted the petitioners with formulating their petition, we think this may be the real cause of the actions taken by Maliko Manuula. Having said that, the allegation that Maliko Manuula’s actions were on account of Faleula Solomona Penesa having assisted the petitioners with formulating their petition cannot amount to undue influence in terms of s. 98(2)(a).

Accordingly, the Court refuses to accept or allow the proposed amendments contained in paragraphs 4(i) and 5(m) as they are also untenable in law.

The proposed amendments contained in paragraphs 2 and 3 of the relief claimed were withdrawn. So we say nothing about them.

In view of the conclusion the Court has reached on the proposed amendments in paragraphs 4(h) and 5(h) and paragraph 4(i) and 5(m), it is unnecessary to deal with all the opposing submissions made on behalf of the respondent, except for one matter which forms the foundation of those submissions. It was contended by counsel for the respondent that what has been filed by counsel for the petitioners is a new petition, though labelled an “amended petition”. In other words, it is not just the proposed amendments as such which are being sought to be made to the original petition which has been filed on behalf of the petitioners. It is a totally fresh petition which has been filed. But that cannot be done because the amended petition is outside of the seven days time limit for filing petitions provided in s. 106(1), unless there exist the circumstances provided in s. 106(2). As those circumstances do not exist in this case, the time limit of seven days provided in s. 106(1) still applies and the amended petition is time barred. It would appear that room has been created for this argument by counsel for the respondent to come through because the amendments sought for the petitioners have been put in the form of an amended petition. We do see the force of the argument for the respondent. It calls for caution when preparing amendments to be made to a petition. But in view of the conclusions we have already reached on the amendments proposed in paragraphs 4(h) and (i) and paragraphs 5(l) and 5(m), we consider that we do not need to express any conclusive view on the present argument for the respondent. Acceptance of the argument for the respondent would, of course, lead to the same result as the one we have already reached.

The next part of the argument for the respondent is that the amended petition has replaced the original petition. It follows that if the amended petition is denied, there is nothing left for the petitioners to go by. So the case for the petitioners will come to an end. This is correct if we accept that the original petition has been replaced by the amended petition. But that has not happened. When all the petitions were called for mention before the Chief Justice sitting alone on 28 March, it was for the purpose of setting in motion the pre-trial procedures already decided by the Court. When the present petition was mentioned, counsel for the petitioners handed to the Court the amended petition and made oral application for leave to grant the amendments proposed in the amended petition. The application was deferred for the Court to be reconstituted with three Judges to deal with the application. That was done the next day and the Court arrived at the conclusion that the proposed amendments should be denied with its reasons to be delivered to counsel in writing. There was no application on behalf of the petitioners to withdraw the original petition or to have it substituted with the amended petition before the application for amendment was heard by the Court. There was also no such application at any other time of the proceedings. The proposed amendments were denied. Thus the original petition still remains.

All in all then, the proposed amendments to the petitioner’s petition are denied. There will be no order as to costs.

Solicitors
Sapolu Lussick for petitioners
Leung Wai Law Firm for respondent