Ah Sam v Chief Electoral Officer [2001] WSSC 23 (28 August 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 Territorial Constituency of SALEGA.

BETWEEN

TAPUAI TOESE AH SAM
of Sinamoga a Candidate for the General Election 2001.
Applicant

AND

THE CHIEF ELECTORAL OFFICER
First Respondent

AND

THE REGISTRAR OF ELECTORS AND VOTERS
Second Respondent

AND

LEILUA FAALII ALOAINA
of Alamagoto in Samoa, a Candidate for the General Election 2001.
Third Respondent

Coram: Sapolu CJ
Vaai J
Nelson J

Counsel: TV Eti for applicant
AJ Lawson for first and second respondents
M Tuatagaloa for third respondent

Hearing: 10 August 2001
Judgment: 28 August 2001

JUDGMENT OF THE COURT DELIVERED BY SAPOLU CJ

Applicants

In these proceedings the applicant has filed a motion which seeks from this Court a declaration that he is eligible to run as a candidate in the by-election to be held for the territorial constituency of Salega pursuant to the judgment of this Court delivered on 14 May 2001 notwithstanding the provisions of s. 113A of the Electoral Act 1963. Stated in this way, the applicant’s motion appears to be relying on the aforesaid judgment of this Court while at the same time implying that it is in conflict with the provisions of s. 113A of the Act.

In order to be clear about what is in issue in these proceedings, it is necessary to set out the relevant background. For the general election held on 2 March 2001, all the electoral rolls for all the territorial constituencies and the individual voters were closed on 19 January pursuant to s.34 of the Act which provides:

"(1) In every year in which a general election or by-election is to be held, all rolls as the case may be, shall be temporarily closed on a date to be fixed by the Chief Electoral Officer, and after such date no names shall be added to the roll to which it relates until after that election.

"(2) At least 15 days before the date so fixed, the Chief Electoral Officer shall give public notice thereof".

At the close of the rolls on 19 January, the name of the applicant appeared on the roll for his territorial constituency of Salega as Toese Ah Sam which is his taulealea or non-matai name. On 5 February the applicant was registered on the register of matais kept in the Department of Land and Titles under the matai title Tapuai from the village of Sagone in the Salega constituency. On 15 February the applicant submitted to the Chief Electoral Officer, the first respondent in these proceedings, a nomination form as a candidate for the territorial constituency of Salega in the forthcoming general election. After seeking legal advice the Chief Electoral Officer accepted the applicant’s nomination form. At the general election the applicant topped the poll for his constituency and was subsequently declared as one of the two elected Members of Parliament for Salega. The third respondent who polled the third highest number of votes then filed an election petition to have the applicant’s election declared void on a number of grounds. All those grounds were subsequently withdrawn except the ground that the applicant was not qualified to run as a candidate in the election. At the trial of that election petition, the Court, in essence, held that in terms of s.5(1) of the Act, as amended by s.4 of the Electoral Amendment 1990 and s.4(1) of the Electoral Amendment Act 1995, the applicant was not qualified to run as a candidate in the general election as he was not registered as a matai elector on the roll for the territorial constituency of Salega when the rolls closed on 19 January for the general election. In terms of s.5(1) only electors whose matai titles were registered on the rolls before they were closed for the general election were qualified to run as candidates in a territorial constituency. The applicant’s matai title not being so registered, he was therefore not qualified to run as a candidate in the general election. His election was accordingly declared void.

Near the end of the Court’s judgment is the passage upon which the applicant is relying in its present motion. It reads as follows:

"The Court must, however, make it clear that its judgment will not prevent the first respondent from running again in a by-election to be held for the Salega constituency provided by the time the electoral roll is closed for such a by-election, he is already registered under his matai title Tapuai on the roll".

According to the applicant that passage makes him eligible to run as a candidate in the forthcoming by-election for his constituency. In his affidavit filed in these proceedings he says that after the Court’s judgment his counsel and some matais of his village requested the Registrar of Electors and Voters, the second respondent in these proceedings, to register his matai title Tapuai on the roll for the territorial constituency of Salega but their request was turned down. In his affidavit filed in these proceedings, the Registrar of Electors and Voters denied having received any request on the behalf of the applicant to register his matai title on the roll for Salega pending the by-election to be held on a date yet to be set. Whatever actually happened the real question for the Court to decide in these proceedings is whether the applicant may have his matai title registered on the roll for the Salega constituency so that he may run as a candidate in the by-election to be held.

Counsel for the first and second respondents submitted that the passage from the Court’s previous judgment which the applicant seeks to rely upon was obiter. We agree. The Court was really concerned with the election petition seeking to void the applicant’s election and not with whether the applicant would be eligible to run as a candidate in a by-election to be held should his election be declared void. The relevant passage also clearly states that the Court’s judgment will not prevent the applicant from running again in the by-election to be held provided he is already registered on the roll under his matai title before the roll is closed for that by-election. Thus the Court’s judgment implies that his eligibility to run in the by-election to be held depends on whether his matai title can be registered on the roll before the by-election. The wording of the passage cited, however, may have led the applicant to think that he is eligible to run as a candidate in the ensuing by-election. It is rather unfortunate if that has happened. But the passage in the Court’s judgment was clearly obiter and it does not say the applicant can run again in an ensuing by-election or can have his matai title registered on the roll for Salega before such a by-election. The Court was not required to make a decision on those matters.

Now the Registrar of Electors and Voters has pointed out in his affidavit that he would have to decline any application for registration of the applicant’s matai title on the roll for the purpose of a by-election to be held for Salega because of s.113A of the Act. Section 113A provides:

"Where as a result of the avoidance of an election pursuant to a decision of the Supreme Court in respect of an election petition it is necessary for a by-election to be held, and notwithstanding any other provision of this Act, the main roll and supplementary roll which were used at the election which has been avoided shall be used at the by-election without any amendment or addition.

"Provided however that the Registrar shall amend the rolls used at the election which has been avoided by removing there-from the names of any persons who have become disqualified for registration as electors or voters pursuant to section 16B of this Act after the date of the election which has been avoided". (italics added)

Section 113A was first introduced into the principal Act by s.2 of the Electoral Amendment Act (No. 2) 1991 and amended by s.3 of the Electoral Amendment Act (No. 2) 1995. The amendments to the Act introduced in the Electoral Amendment Act (No. 1) 1995 made it necessary to add the proviso to s. 113A so that the names of any persons who have become disqualified for registration as electors or voters in terms of s. 16B after the date of the avoided election may be removed from the rolls. Such persons are persons detained under the Mental Health Ordinance 1961 or in prison pursuant to a conviction, or whose names are on the Corrupt Practices List for any constituency. The applicant is not one of those persons to whom the proviso applies.

As s. 113A presently stands, it would appear that the applicant’s matai title Tapuai cannot be registered on the roll of the territorial constituency of Salega for the purpose of the by-election to be held as the same rolls that were used in the avoided election shall be used again in the by-election "without any amendment or addition". The result of this is that in terms of s.5(1) of the Act the applicant will not be eligible to run as a candidate in the by-election given the judgment of the Court on the avoided election.

The Court has considered the purposive approach to the construction of a statutory provision as suggested from the bar in order to see whether it could assist the applicant. In this regard we have tried to see what was the legislature’s purpose in enacting s. 113A. In doing so, we feel we should refer to what was said by the Court of Appeal in The Chief Electoral Officer v The Samoa All People’s Party Incorporation (1996) (C.A. 7/96, unreported judgment delivered in September 1996) where that Court also considered s. 113A and its purpose. In delivering the judgment of that Court, Bisson J said:

"All that remains to be considered is why Parliament chose not to use in a by-election necessary because of an avoided election, the rolls under Part III which are more up-to-date than those used at the avoided election. If one looks at the wording of s. 113A for Parliament’s intention in this regard it is difficult to discern the reason. One could speculate that the intention was to avoid electors exercising their right to transfer from one electorate to the electorate of the by-election as a means of influencing the outcome. That intention is consistent with the Hansard report of the second reading of the Bill. It records a statement by the Prime Minister that a by-election is a continuation of a general election and that the election of a representative at a by-election should be made by the same people whose decision was annulled by the Supreme Court. In other words, the clock is put back and the by-election is a replay of the avoided election except for the removal of certain names from the rolls. That, however, is a policy decision of Parliament......"

The Hansard report on the enactment of s. 113A is silent on the particular issue which has arisen in this case. The inference is that Parliament did not turn its mind to it. In other words, Parliament when enacting s. 113A did not turn its mind to the question whether a candidate whose election has been avoided because his matai title was not on the roll for his constituency when that roll closed for a general election could later have his matai title registered on the roll so that he may run again as a candidate an ensuing by-election. It is therefore difficult to rely on the purposive approach here in order to assist the applicant by construing s. 113A to have the effect of allowing registration of the applicant’s matai title on the roll for the territorial constituency of Salega so that he may run as a candidate in the by-election for such is not an underlying purpose of s. 113A. It is difficult to infer such a purpose from the wording of s. 113A and other provisions of the Act or from the Hansard report for they do not support or bear out such an inference. It follows that the application of the purposive approach to this case will not assist the applicant.

We are also of the view the applicant’s matai title cannot be registered on the roll for his constituency without thereby making an amendment or addition to the roll which is prohibited by s. 113A. To permit the applicant’s matai title to be entered on the roll now is tantamount to amending or adding to the roll.

For the foregoing reasons, the motion is dismissed.

Solicitors:
TV Eti for applicant
Attorney General’s Office for first and second respondents
Richard’s Law Firm for third respondent