Sio v Epati [2006] WSSC 37 (22 June 2006)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

IN THE MATTER: of the Electoral Act 1963 & Amendments.

AND:

IN THE MATTER: of the Territorial Constituency of Sagaga le Falefa

BETWEEN

SOLAMALEMALO KENETI SIO
of Faleula, a candidate for election
Applicant

AND

PATEA SATINI EPATI
of Lotoso’a Saleimoa, a candidate for election.
First Respondent

AND:

THE ELECTORAL COMMISSIONER
of Apia.
Second Respondent

Coram: Chief Justice Sapolu
Justice Slicer QC
Justice Shepherdson QC

Counsel: Mr. Faaiuaso for Applicant
Mr. Enari for First Respondent
Mr. D Clarke for Second Respondent

Hearing: 22 June 2006
Judgment: 22 June 2006

JUDGMENT AND REASONS OF THE CHIEF JUSTICE SAPOLU, JUSTICE SLICER AND JUSTICE SHEPHERDSON

DELIVERED THE 29th DAY OF JUNE 2006.

On 22 June 2006 the above-named applicant by his counsel Mr Faaiuaso moved this Court for orders:-

(a) varying and/or setting aside the orders of the Court made on 11 May 2006 on Election Petition filed by Patea Satini Epati (Petitioner) against Solamalemalo Keneti Sio (First Respondent) and in which the Electoral Commissioner was named Second Respondent.

(b) Enlarging time to file that application; and

(c) Staying proceedings until the "present" application is dealt with.

After hearing argument from Mr Faaiuaso and Counsel for the first and second respondents – the first respondent neither supported nor opposed the application - this Court on the 22 June denied the above three applications saying that it would later deliver its reasons. These then are those reasons. Matters began on 31 March 2006 when a general election was held for the Legislative Assembly of Samoa. The results of that day’s poll in the various territorial constituencies were declared by the proper official but in some constituencies the declared results provoked election petitions commenced under the Electoral Act 1963. Each of these petitions was filed in the Supreme Court of Samoa usually by the candidate who had polled the second highest number of formal votes. Frequently too, such petitions complained of corrupt or illegal practices by the candidate who had polled the highest number of formal votes. Frequently too, that candidate filed in the same Court what was called a " counter" or " cross" petition based on alleged corrupt or illegal practices by the second placed candidate.

There were a number of petitions filed in the court (excluding cross petitions). Part X of the Electoral Act deals with (inter alia) "ELECTION PETITIONS" and Part X includes "Trial of Election Petition". We shall return to this Part shortly.

The application presently before this court sets out a number of grounds one of which reads:-

"(d) That the Court’s decision of 11 May 2006 did not take into account the Acts Interpretation Act 1998 as neither the Court nor counsels (sic) or the parties were aware of that Amendment"

The application then goes on to say in effect that "had the Court been made aware of the existence of the Acts Interpretation Act 1998 section 2 sub-section(2), the Court would have found and concluded that the publication of the Official Results of the Poll in the Gazette of 13 April 2006, would have been for the purposes of the Electoral Act 1963, sufficient publication of the notice, without having to await the separate publication of the Official Results in the Savali of 20 April 2006".

Grounds (g) and (h) which are remarkable for their speculation read:-

"(g) That the Court would have gone on to further conclude that for the purposes of section 106 (1) of the Electoral Act 1963 the Official Results of the Poll were publicly notified by the Commissioner on the 13th day of April 2006.

(h) That the Court would have further concluded that the seven (7) days for filing election petitions commenced on the 14 April 2006 and expired on 20 April 2006 and accordingly, the Petition filed by Patea Satini Epati against Solamalemalo Keneti Sio and the Commissioner was filed out of time"

No supporting affidavit accompanied the application with the result that the application said very little of events concerning the 11 May 2006 and subsequently.

These events have much to say as to how this Court should deal with the application now before it.

The orders of 11 May sought to be revisited are set out in "Conclusions of the Court delivered by Sapolu CJ" Vaai J was the other member of that Court.

We point out that the 11 May Order was made by the Court dealing with Election Petitions under Part X of the Electoral Act 1963. Parties dissatisfied with the judgement of the Chief Justice and Vaai J sought leave to appeal or cross appeal the judgement. The applications for leave were heard by what we shall call the Electoral Court who decided on 25 May 2006 (and whose reasons for judgement were delivered on 9 June 2006) that there was no appeal to the Court of Appeal because of the provisions of s.117 of the Electoral Act which is to found in " Part X -ELECTION PETITIONS" (to which we have already referred).

Part X consists of s.104 – s.132 (both inclusive). S.117 appears in that sub- Part X dealing with "Trial of Election Petition" and it reads:-

117. Decision of Court to be final. All decisions of the Supreme Court under this Part of this Act shall be final and conclusive and without appeal, and shall not be questioned in any way.

We pause to point out that s.110 reads:-

"110 Court and place of trial – Every election petition shall be tried by two or more judges of the Supreme Court at such place nominated by the Court"

This Court (differently constituted) has had cause to construe s.117 a number of times. In their Honours’ reasons for judgment delivered in the present matter on 9 June 2006 their Honours decided, following earlier decisions that s.117 is a valid exercise of power and operates to bar an appeal. (see p25 of reasons)

We point out also that at p16 of the reasons for judgment delivered 9 June 2006 the Court said "Previous challenges to the operation of the Act, s.117, both in part based on claimed inconsistency have been rejected by this Court in Vaai Kolone & Ors vs Fao Avau & Ors unreported Court of Appeal 17 July 1982 and Vaai v Lene (1996) WSCA 8"

The end result of the applications moved by Mr Faaiuaso in this Court is that this Court will declare them to be nullities.

Next in deference to the purported applicant’s claim that the decision of the original Court was wrong, we refer him to the decision of the Supreme Court of Fiji at Suva in Singh and Prasad [2002] FJSC2. This too was a decision concerning an electoral petition.

In that case Eichelbaum and Beaumont JJ in a summary of their joint judgment dealing with a question of law said (inter alia) that although the Court considered that the interpretation the Court of Disputed Returns placed upon the Electoral Act was wrong neither the Court of Appeal nor the Supreme Court has any power to intervene because Parliament has provided that the question of interpretation involved must be finally decided by the Court of Disputed Returns.

These comments apply equally to the provisions of the Electoral Act 1963.

S117 in the Electoral Act is based on long standing precedents. Parliaments the world over have legislated that questions arising out of an election have to be brought to early finality so that Parliament can be constituted and go about its essential work. They have achieved this by setting up special tribunals and enacting legislation such as s117.

We add that there is no denial of remedy here. The constitution Article 4, is not involved. The applicant’s argument is not that he was denied a hearing but is that he is dissatisfied with the outcome and now wants to have a "second bite of the apple". Many litigants are. But that is different from what is protected by Article 4.

Even if we accepted that this Election Court had power to set aside the orders on the basis that the reasoning behind them was incorrect, we would have dismissed the application nevertheless. Briefly stated, our reasons for that statement are:

(1) The basis, namely the existence of the amendment to the Acts Interpretation Act (a matter referred to by the Court of Appeal) was neither brought to the attention of Sapolu CJ and Vaai J, nor argued. Nor is it fresh evidence.

(2) It does not follow that had the matter been argued the outcome would have been different. It was a matter of statutory interpretation.

(3) There were two bases advanced at the original hearing, namely the separate issues of "holiday" and "notice". Even if we conclude that reference to the amendment shows error in the reasoning on "notice", the other matter of "holiday" remains unresolved. We would then be required to embark on a fresh hearing or remit the "holiday" matter back to the original election court.

The short answer to the applicant is that we cannot, and will not, uphold the application.

In the result, we declare that the applications of 22nd June 2006 are nullities.

Chief Justice Sapolu
Justice Slicer QC
Justice Shepherdson QC

Solicitors

Richard Faaiuaso’s Law Firm for petitioner
Kruse Enari & Barlow for First Respondent
Attorney General’s Office, Apia for Second Respondent