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Epati v Sio [2006] WSSC 42 (17 July 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


PATEA SATINI EPATI
of Lotoso’a Saleimoa, a candidate for election
Petitioner


AND


SOLAMALEMĀLO KENETI SIO
of Faleula, a candidate for election.
First Respondent


AND


THE ELECTORAL COMMISSIONER of Apia.
Second Respondent


Coram: Chief Justice Sapolu
Justice Slicer
Justice Shepherdson


Counsel: Mr R Faai’uaso for First Respondent
Mr T K Enari for Petitioner
Mr D Clarke for Second Respondent


Hearing: 22, 23, 26, 27 June 2006
Judgment: 17 July 2006


JUDGMENT OF THE COURT DELIVERED BY SHEPHERDSON J


  1. On 24 April 2006 Patea Satini Epati of Lotoso’a Saleimoa, a candidate for the Sagaga Le Falefa Territorial Constituency in the General Election held on 31 March 2006 signed an election petition addressed to the Supreme Court of Samoa.

2. The respondents named in that petition were:-


  1. Solamalemalo Keneti Sio of Faleula described as "a candidate for election" (First Respondent)
  2. Electoral Commissioner of Apia (Second Respondent)

The petition alleged the following matters (the first three of which were admitted by the First Respondent in his Reply to the Election Petition)


  1. Paragraph 1 - That at the 2006 General Election for the Legislative Assembly of Samoa an election for a Member of Parliament for the Territorial Constituency of Sagaga Le Falefa was held, the poll for which was appointed for the 31st day of March 2006.
  2. Paragraph 2 - That the petitioner and the first respondent were candidates at that election and on 13th April 2006, the second respondent declared and reported the First Respondent as "duly elected".
  3. Paragraph 3 - That the petitioner was one of the candidates at that election and he received sufficient votes "in the said elections to qualify him to file this election petition".

The Election Petition went on to allege in paragraph 4 that the official declaration by the second respondent of the result of the poll for the above territorial constituency showed that the petitioner and the first respondent had polled the following votes.


Petitioner 532

Respondent 718


  1. In his pleading the first respondent denied paragraph 4 with regard to the number of votes polled and alleged that the correct votes polled were:

Petitioner 555

Respondent 738


and the respondent "otherwise" admitted the rest of the statements in paragraph 4 of the petition.


  1. In his petition the petitioner then made the following allegations against the first respondent as to "corrupt practices" and "irregularities and illegal practice"
  2. Corrupt Practice: that at Faleula on 31st March 2006 the first respondent distributed money to one Fa’afua Liua, a female person on the electoral roll for the above constituency for the purpose of influencing the vote of that elector.

Irregularities:


(a) (i) that the second respondent instructed that enough copies of the electoral roll for the constituency would be provided to the scrutineers to enable them to carry out their duties on polling day"


(ii) that on polling day at polling booth number 34... - one electoral roll for the constituency was provided for use by the seven scrutineers who were on duty at that booth.

(iii) that the presiding officer at the said booth gave the said electoral roll to the scrutineer for the first respondent so that other scrutineers had no roll available to them for use in carrying out their duties.

(b) that at polling booth 34 the scrutineer for the first respondent continuously was calling to members of the public outside the polling booth the names of those who had exercised their vote .


(c) (i) an illegal polling booth was used at A’ele (Booth No.227) for the conduct of the election for the said territorial constituency.


(ii) that because that booth was not authorised for that constituency its use as such was not known until very late on polling day to other candidates for that constituency.

(iii) that consequently the petitioner and other candidates at this election did not have scrutineers on duty at this polling booth.

(iv) That the first respondent was the only candidate who was aware of this unauthorised polling booth" and who used it throughout polling day.

Submissions by petitioner contained in the petition in respect of votes cast at both polling booths


  1. Polling booth 34: votes cast should not be counted within the election for the above territorial constituency "because the arrangements were such that "the conduct of the polling could not be properly overseen by the scrutineers for the candidates"
  2. Polling booth 227: "all the votes cast at the polling booth...(No227) should not be counted in the election for the constituency ... because it was not an authorised polling booth for that constituency".

11. Petitioner’s Prayer for Relief


  1. that he should be declared and reported as duly elected for the said constituency: OR
  2. alternatively the election of the first respondent is unlawful and that the petitioner should be ruled as having polled the most lawful votes: OR
  3. "The conduct of the polling at the [said constituency] was so conducted as to be not in compliance with the law as to elections and such failure affected the result of the election".
  4. Costs

12. We turn now to the first respondent’s "Replies to Election Petition and Counter Petition"


  1. The Reply or defence as it might be better called showed:-
  2. We add that the first respondent pleaded a "special defence" which is no longer current because the matters raised there have since been dealt with judicially. The first respondent then sought orders (both in his defence and in his counter-petition):-

14. The Counter Petition


By way of counter-petition


(1) the first respondent alleged that the petitioner is guilty of corrupt practices in that on the following dates he committed bribery by making the following gifts to named electors of the earlier mentioned constituency for the purpose of inducing those electors to vote for him:-

The first respondent pleaded and sought declarations that the petitioner was guilty of bribery and that the first respondent be declared elected to the above constituency.


At hearing on 23rd June, Mr Clarke for the second respondent announced that he had resolved issues with his opponents and that there was no issue of credibility to be tried. Mr Faai’uaso for the first respondent announced he would offer no evidence to support the allegations of bribery in the counter-petition.


  1. The hearing of this petition then resolved into dealing with the petitioner’s allegations of corrupt practice and irregularities to which we now turn.
    1. The alleged corrupt practice - that on 31st March 2006 the first respondent distributed money to a female person for the purpose of influencing her vote. The Court was asked by all counsel to dismiss this claim and the Court orders that that claim be dismissed. We mention now that because charges of corrupt practice had been made this Court will report to the Speaker as required by s.119 of the Electoral Act.
    2. The alleged irregularities - said to have occurred on polling day in relation to polling booths 34 and 227

16. (a) Polling booth No.,34 - Faleula


The allegations of the petitioner in respect of this polling booth were:-


(i) There were not enough copies of the electoral roll at polling booth No. 34 situated at Congregational Christian Church Faleula and in fact there was only one such roll.

(ii) That there were 7 scrutineers on duty at that booth and only one electoral roll for the constituency.

(iii) That at polling booth No. 34 the scrutineer was continuously calling to members of the public outside the polling booth the names of those who had voted.

The above complaints were directed to the second respondent.


17. The evidence shows:-


(a) polling places for the constituency were publicly notified pursuant to s.59(1) of the Electoral Act

(b) one of those places was booth no. 34 which the Samoan Gazette of 21st March 2006 listed as one of six booths (33 to 38) for the constituency of Sagaga Le Falefa.

(c) During the hearing of this matter on 23 June 2006 counsel for the petitioner conceded that the alleged irregularities concerning the single roll and the calling out of the names of the electors do not affect the outcome of the election. Moreover, the second respondent has submitted that such conduct did not constitute a breach of any of the provisions of the Act and was not an "irregularity" for the purposes of the Act.

(d) The result of the poll on 31st March 2006 was:-

First Respondent 738 votes

Petitioner 555 votes

Leatupue Pili 365 votes

Muaiava Tusitino Umu T 343 votes

Faumuina Laenselota Polu 270 votes

Polutele Solomona Matiu 75 votes

Moala Samasoni 72 votes

Tupai Kelly 38 votes


The total of valid votes cast at all booths for the constituency was 2,456.


The result was that the First Respondent won with a majority of 183 votes.


  1. The obligation of the Commissioner to provide polling booths, ballot boxes, ballot papers etc, is stated in s.60 of the Act which relevantly reads:-

Polling booths, ballot boxes, ballot papers, etc...


The Commissioner shall provide the following things for taking the poll –


(a) one or more rooms for polling booths at each polling place
(b) ...
(c) ...
(d) in each booth one or more copies of the main roll and supplementary rolls for the constituency or individual voters, as the case may be, and a sufficient number of ballot papers.

"Roll" is defined in s.2(1) of the Electoral Act – "means an electoral roll, the individual voters’ roll, a main roll, or a supplementary roll as the case may be".


  1. The Electoral Act contains one section concerning scrutineers (s.64). That section says nothing as to provision of a roll to a scrutineer. Affidavit evidence before us shows that one copy of the electoral roll was given to the 7 scrutineers on duty at the conduct of the poll at polling booth 34.
  2. The evidence shows that deputy returning officer Okesene did not understand that she was meant "to give the green rolls to the scrutineers" – she swears – "I only gave them one pick (sic) roll for all of them to use. That this pink roll I gave to all scrutineers not just any one individual".
  3. We accept Mr Clarke’s submission that no irregularity in the taking of the poll at booth number 34 occurred; we further accept his submission that the second respondent was under no statutory obligation to give a copy of the electoral roll to scrutineers. Before we leave consideration of booth 34, we mention the petitioner’s allegation in the petition that:-

"at polling booth 34 aforesaid the scrutineer for the first respondent continuously was calling to members of the public outside the polling booth the names of those who have exercised their vote"


This Court heard no evidence to justify that allegation and accordingly we do not consider it.


  1. Had it been necessary to consider that allegation, counsel for the second respondent submitted that s.64(4) would provide a statutory defence for his client. That sub-section which is in s.64 headed "Scrutineers" reads:-

"(4) Nothing in this Act shall render it unlawful for a scrutineer to communicate to any person information as to the names of persons who have voted"


  1. We do not propose to rule on this issue as to do so would be giving an opinion on what became a hypothetical issue.

(b) Polling Booth 227


The petitioner’s pleaded complaints are:-


(i) an illegal polling booth was used at A’ele (No. 227) for the conduct of the election for the territorial constituency of Sagaga Le Falefa
(ii) because this booth was not authorised for the territorial constituency of Sagaga Le Falefa its use as such was not known until very late on polling day to the other candidates for that territorial constituency
(iii) consequently the petitioner and other candidates at this election did not have scrutineers on duty at this polling booth
(iv) the only candidate who was aware of this unauthorised polling booth and who used it throughout polling day was the first respondent
  1. Mr Enari, the petitioner’s counsel, submitted in argument that all votes cast at polling booth No. 227 should not be counted in the election for the said territorial constituency because it was not an authorised polling booth for that constituency.
  2. In summary Mr Enari submits if all votes cast at polling booth 227 were not counted (as he says should be the case) the results of the ballot for the constituency of Sagaga Le Falefa would be and would change in accordance with the following calculations of the second respondent;

Result of ballot


Solamalemalo Keneti Sio 738 votes

Patea Satini Epati 555 votes


Votes at Booth 227:- (as shown in official count):


Solamalemalo Keneti Sio 227 votes

Patea Satini Epati 5 votes


  1. If votes at Booth 227 are deducted from the net votes cast for each of the petitioner and first respondent as the petitioner seeks, the result of the poll, by the second respondent’s calculations, would be:-

Solamalemalo Keneti Sio 511 votes

Patea Satini Epati 550 votes


Thus, if the votes cast at polling booth 227 are invalid and not counted the petitioner would be elected to the seat of Sagaga Le Falefa.


  1. Mr Enari seeks a declaration that the petitioner be declared the elected member for the constituency but if this be refused, then he asks the Court to declare that the conduct of the elections in the constituency was not in substantial compliance with the law as to elections, that such non-compliance affected the result of the election and that a fresh election for the seat be ordered.
  2. All parties have made helpful submissions. The Court has been assisted by the second respondent’s concession (by his lawyers) that in breach of s.59(1) of the Electoral Act he did not give public notice of the use of polling booth 227 at A’ele as a polling pace in the constituency of Sagaga Le Falefa. It appears that this election was the first occasion when A’ele had been used as a polling place.
  3. Before going further we now recite a history of the factual evidence before us touching on the use of A’ele as a polling place for the constituency.

(a) The Gazette dated 21 March 2006 (Ex.P2) gave public notice of the polling booths; booth 227 was named in that Gazette under the heading "Palota Taitoatasi" meaning "individual voters" and the entry reads:- "227 A’ele Maota Sua Moananu (FM)"


(b) Polling booths 33 to 38 were listed in the Gazette as polling booths notified for the constituency Sagaga Le Falefa. There were 6 listed different places although 33 and 34 were both at Faleula one being Methodist and the other Congregational


(c) On Wednesday 29 March 2006 the first respondent met with the second respondent "about the possibility of using the A’ele voters polling booth for the Sagaga Le Falefa constituency as well because there was a need for more polling booths in this constituency"


(d) On Wednesday 29 March 2006 the second respondent instructed deputy electoral officer Savaiinaea Ieremia La’ala’ai to use A’ele for the electors votes for the constituency.


(e) On the morning of the same day, the wife of the petitioner spoke to Simea Avei, the Assistant Electoral Commissioner, concerning polling booths.


(f) A discussion between Simea Avei and the petitioner’s wife Folau Epati concerned polling booths but she was not advised and therefore did not know that polling booth 227 was for the constituency of Sagaga Le Falefa


(g) On 30 March 2006 the deputy electoral officer advised the deputy returning officers for polling booth 227 that the booth would be used for the constituency votes


(h) On election day, 31st March 2006 polling booth 227 was used for the constituency vote for Sagaga Le Falefa and one scrutineer was present for the first respondent only


(i) That scrutineers were present for all candidates on the individual voters roll


(j) That the petitioner did not provide a scrutineer for polling booth 227


(k) Apart from the petitioner’s complaints there was no suggestion by the Electoral Commissioner of conduct affecting the taking of the ballot at polling booth 227.


(m) When the rolls were scrutinized at the end of the ballot as required by s.76 of the Electoral Act, no impropriety or other conduct at polling booth 227 was identified as having occurred.


  1. Mr Clarke, counsel for the second respondent has submitted that the first question for this Court is whether the failure to notify publicly booth 227 as a polling place for individual voters for the taking of the poll gives rise to an irregularity that invalidates votes taken at that polling booth.
  2. Mr Clarke submits that that question should be answered "No". He relies on s.116 of the Electoral Act which relevantly reads:-

"116 Irregularities not to invalidate election – No election shall be declared invalid by reason of - ......


(e) any absence of, or mistake or omission or breach of duty by, any official, whether before, during, or after the polling –

if the Court is satisfied that the election was so conducted as to be substantially in compliance with the law as to elections, and that the failure, omission, irregularity, want, defect, absence, mistake or breach did not affect the result of the election"


32. Mr Clarke has made a number of further submissions which are:


(1) The effect of s.116 is that an election is not invalidated simply by proof of an irregularity

(2) In order to invalidate the votes cast at booth 227 it must be shown that the omission to notify publicly polling booth 227 was such that the election was thereby not carried out in substantial compliance with the law AND that the omission affected the result of the election

(3) That this Court should find that the election in the instant case was conducted substantially in compliance with the law AND the omission did not affect the result of the election.
  1. Before proceeding further we record at this stage that Mr Enari has submitted to the contrary and he urges this Court to find the election was not so conducted as to be substantially in accordance with the law as to elections and that the admitted failure of the second respondent to comply with the legislation with respect to booth No.227 did affect the result of the election.

34. Mr Enari, too, relies on s.116.


Mr Faai’uaso, counsel for the first respondent has submitted that in all the circumstances the election for the constituency of Sagaga Le Falefa was so conducted that there was substantial compliance with the law relating to elections, and that if there was an omission it did not affect the election result. Thus he further submits the election of the first respondent should not be declared invalid.


  1. The principal issue is therefore should the election of the first respondent be declared invalid by reason of the admitted mistake or omission of the second respondent in respect of polling booth 227?
  2. The parties concede that what occurred here was an irregularity and that polling booth No.227 became what Mr Clarke calls an unauthorised polling booth. As we understand the position the above-named second respondent did not give public notice of the use of polling booth 227 at A’ele for the conduct of the ballot for the constituency of Sagaga Le Falefa.
  3. The Samoa Gazette of 21st March 2006 (an exhibit before this Court) clearly shows six polling places [nos.33 to 38 both inclusive] for Sagaga Le Falefa but when one looks in the relevant exhibit for the polling place at A’ele, one finds it as No.227 and one of 4 polling places under the heading "PALOTA TAITOATASI" and not under "Sagaga Le Falefa"
  4. One question is – on whom does the burden of proof under s.116 lie? Given the language in which that section is couched, it is our view that the opening words of that section – "No election shall be declared invalid by reason of..." show that the legislation begins with something of an edict against invalidity.
  5. The opening words of s.116 are a strong pronouncement in favour of validity of the election. By way of contrast, how much weaker would s.116 have been if it had read: "An election shall not be declared valid by reason of...unless the court is satisfied..."
  6. In our view s.116 is to be construed as initially pronouncing in favour of an election (or as an embargo against invalidity) and then setting out the conditions to be met if the pronouncement or embargo are not be lost.

41. Those conditions are:-


(1) that the Court is satisfied that the election was so conducted as to be substantially in compliance with the law as to elections: and

(2) that the particular matter (from those set out in s.116(a)(b)(c) and (d) did not affect the result of the election.

We consider the burden of proof of invalidity lies on the party alleging it.


  1. We note that in Morgan v Simpson (1975) QB 1; (1974) 3 All ER 72 the Court of Appeal considered legislation very similar to s116. Lord Denning M.R. said at p725:-

43. "It [the law] depends on s.37(1) of the Representation of the People Act 1949 which says:-


"No local government election shall be declared invalid by reason of any act or omission of the returning officer or any other person in breach of his official duty in connection with the election or otherwise of the local election rules if it appears to the tribunal having cognisance of the question that the election was so conducted as to be substantially in accordance with the law as to elections and that the act or omission did not affect its result"


That section is expressed in the negative. It says when an election is not to be declared invalid"


Lord Denning went on:-


"The question of law in this case is whether it should be transformed into the positive so as to show when an election is to be declared invalid. So that it would run:


"A local government election shall be declared invalid (by reason of any act or omission of the returning officer or any officer in breach of his official duty in connection with the election or otherwise of the local rules) if it appears to the tribunal having cognisance of the question that the election was not so conducted as to be substantially in accordance with the law as to elections or that the act or omission did affect the result"


  1. We do not propose to refer further to Lord Denning’s judgment other than to say that His Lordship, after considering the history of the law of elections and cases under statutes to which he referred said (at p.728):-

"Collating all these cases together, I suggest that the law can be stated in these propositions:


(1) If the election was conducted so badly that it was not substantially in accordance with the law as to elections, the election is vitiated, irrespective of whether the result was affected, or not. That is shown by the Hackney case (1874) 2 O’m & H 77 where two out of 19 polling stations were closed all day and 5000 voters were unable to vote.

(2) If the election was so conducted that it was substantially in accordance with the law as to elections, it is not vitiated by a breach of the rules or a mistake at the polls – provided that it did not affect the result of the election. That is shown by the Islington case (1901) 17TLR 210 where 14 ballot papers were issued after 8pm.

(3) But even though the election was conducted substantially in accordance with the law as to elections, nevertheless if there was a breach of the rules or a mistake at the polls – and it did affect the result – then the election is vitiated. That is shown by Gunn v Sharpe (1974) 2 All ER 1058 (1974) 3 WLR 7 where the mistake in not stamping 102 ballot papers did affect the result.

Applying these propositions, it is clear that in this case, although the election was conducted substantially in accordance with the law nevertheless the mistake in not stamping 44 papers did affect the result. So the election is vitiated. The election of Mr Simpson must be declared invalid"


  1. Before we leave Morgan v Simpson we mention the following dicta of Stephenson LJ at p.731 of the Court of Appeal report of the case:-

"For an election to be conducted substantially in accordance with that law [the law relating to local elections] there must be a real election by ballot and no such substantial departure from the procedure laid down by Parliament as to make the ordinary man condemn the election as a sham or a travesty of an election by ballot"


  1. We think this dictum applies in the instant case where there was a real election by ballot and one which an ordinary man could not possibly have condemned as a sham or a travesty.

We mention now the decision in Fermanagh and South Tyrone (2001) a judgment of Carswell LCJ in the High Court of Justice in Northern Ireland Queen’s Bench Divsion [2001 NIQB 36] in which Carswell LCJ, sitting as an election Court, had to decide whether the election in the constituency of Fermanagh and South Tyrone was so conducted as to be substantially in accordance with the law as to elections (as required by the relevant legislation)


47. Carswell LCJ applied Morgan v Simpson and in doing so said:-


"The disturbance at St. Martin’s School Garrison was serious and intolerable, but it was an isolated incident and fortunately had a small effect on the voting both in that polling station and in the constituency as a whole. We must conclude that the condition laid down in....the 1983 Act is satisfied and that we should not declare the election for this constituency invalid"


48. In reaching that conclusion the Lord Chief Justice said:-


"We take into account also the remark of Willes J retailed by Martin B in Warrington 1 O’M & H42 at 44, that a judge to upset an election ought to be satisfied beyond all doubt that the election was void, and that the return of a member is a serious matter and not lightly to be set aside"


  1. Mr Enari referred also to Edgell and Glover [2003] England and Wales High Court [Queen’s Bench Division] 2566 in which the Court (Newman and David Clarke JJ) had before it a Local Government Election matter. Newman J with whose judgment David Clarke J agreed considered legislation of similar effect to s.116 of the Electoral Act 1963.

Newman J said (at p.7 of the report of the case) -


"In my judgment, the appraisal of the true function of the Court, when exercising its jurisdiction under section 48(1) is not assisted by consideration of a standard proof. That said, having regard to the consequences of declaring an election void, for the court to declare the result is affected there will need to be a preponderance of evidence supporting that conclusion".


  1. We have concluded that the irregularity of which Mr Enari complains does not justify our finding that the election of the Respondent should be declared void. We were at one stage concerned at the large disparity between the votes cast for the first respondent and the petitioner at Booth No.227 with the respondent receiving 227 out of 246 votes cast at that booth. Our concern was that that disparity might well be construed as justifying this Court declaring the respondent’s election invalid because it might be said the disparity had been brought about by the irregularity with regard to booth 227 at which booth the respondent had received 227 out of 246 votes cast. An examination of Exhibit.3 has dispelled that concern. That examination enables us to see booth results for the territorial constituency of Sagaga Le Falefa and shows quite large disparities in votes cast at booths about which no complaint has been made.

51. We instance the following (taken from Exhibit 3)


Booth Number
Votes for Petitioner
Votes for first Respondent
Total valid votes at Booth




33
22
153
219
34
13
257
306
35
76
1
369
36
175
45
366
37
100
15
361
38
16
11
290
227
5
227
246
233
132
7
227
Special Booth
16
22
72

  1. The disparity, particularly at booth No.227 does not stand out in the official count of votes for the petitioner and the first respondent at all the above booths. For example booth 34 shows that out of 306 valid votes cast at that booth, 257 were for the first respondent and 13 for the petitioner. No irregularity was shown or complained of at booth 34. Booth 36 shows that out of 366 valid votes at that booth, 175 were in favour of the petitioner and 45 for the first respondent; Again, booth 35 shows 369 total valid votes of which 76 were in favour of the petitioner and one valid vote for the first respondent. There was no complaint concerning booths 36 and 35.

At the end of the day the irregularity at Booth No 227, to which we have already referred does not justify this Court declaring the election of the first respondent invalid even though an adjusted calculation as earlier set out would show the petitioner returned as winning the seat. We are well satisfied that the election which resulted in the first respondent becoming the member for the above constituency was so conducted as to be substantially in accordance with the law as to elections and that the admitted irregularity did not affect the result of the election of the respondent.


The result is that this Court orders that the above petition is dismissed.


Chief Justice Sapolu

Justice Slicer

Justice Shepherdson


Solicitors

Richard Faaiuaso’s Law Firm for First Respondent

Kruse Enari & Barlow for Petitioner

Attorney General’s Office, Apia for Second Respondent

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