PacLII Home | Databases | WorldLII | Search | Feedback

Supreme Court of Samoa
You are here:  PacLII >> Databases >> Supreme Court of Samoa >> 2025 >> [2025] WSSC 116

Database Search | Name Search | Recent Decisions | Noteup | LawCite | Download | Help

Lameko v Onesemo [2025] WSSC 116 (11 December 2025)

IN THE ELECTORAL COURT OF SAMOA
Lameko v Onesemo [2025] WSSC 116 (11 December 2025)


Case name:
Lameko v Onesemo


Citation:


Decision date:
11 December 2025


Parties:
TUILOMA TUSA LANISELOTA LAMEKO (Petitioner) v TOELUPE POUMULINUKU ONESEMO (Respondent/Counter-Petitioner) & HUMAN RIGHTS PROTECTION PARTY (HRPP) (Intervener)


Hearing date(s):
3 December 2025


File number(s):



Jurisdiction:
SUPREME COURT – Electoral


Place of delivery:
Supreme Court of Samoa, Mulinuu


Judge(s):
Chief Justice Satiu Simativa Perese
Justice Leiataualesa Daryl Clarke


On appeal from:


Order:
The joint application for leave to withdraw the petition and counter petition is dismissed.


Representation:
A. Su’a for the Petitioner
M. Lui & P. Chang for the Counter-Petitioner
M. Lemisio & F. Ainuu for the Intervener


Catchwords:
Electoral petition – withdraw petition & counter-petition- alleged corrupt arrangement leading to withdraw.


Words and phrases:


Legislation cited:


Cases cited:


Summary of decision:

IN THE ELECTORAL COURT OF SAMOA
HELD AT MULINUU


IN THE MATTER:


of Election Petitions as per Part 14 of the Electoral Act 2019


BETWEEN:


TUILOMA TUSA LANISELOTA LAMEKO


Petitioner


AND:


TOELUPE POUMULINUKU ONESEMO


Respondent


AND:


HUMAN RIGHTS PROTECTION PARTY (HRPP)


Intervener


Counsel: A. Su’a for the Petitioner
M. Lui & P. Chang for the Counter-Petitioner
M. Lemisio & F. Ainuu for the Intervener
Ruling: 3 December 2025
Reasons: 11 December 2025


REASONS (JOINT MOTION BY THE PETITIONER AND COUNTER-PETITIONER FOR LEAVE TO WITHDRAW PETITION AND COUNTER-PETITION)

A. Background

  1. By Motion dated 27 October 2025, the petitioner and respondent applied for leave to withdraw the petition and counter-petition. The grounds for their joint application were that:
  2. Supporting the Motion for Leave to Withdraw were affidavits from the petitioner and the respondent attesting to their desire to withdraw the petition and counter-petition.
  3. The intervener opposed the grant of leave on the ground that the agreement between the petitioner and respondent to seek leave to withdraw these proceedings arose from a corrupt arrangement involving the payment of $100,000.00 from the respondent to the petitioner. We heard the application on Wednesday 3 December 2025 and delivered our conclusions dismissing the application on Thursday, 4th December 2025 with reasons to follow. These are now our reasons.

B. Application for Leave to Withdraw Petition and Counter-Petition

  1. For the petitioner, it is submitted that leave should be granted to withdraw the petition and counter-petition on the grounds advanced in the Motion for Leave to Withdraw, these being the “main reasons” for which a withdrawal is sought. The petitioner and respondent make no reference to any consideration being paid for the withdrawal[1] and the arrangements “are purely for maintain (sic) peace, order and harmony in the Constituency communities. In Samoan custom, paramount importance is placed on maintaining peace, harmony and social cohesion within the itumalo.”[2] In response to the allegation that as part of the agreement to withdraw these proceedings, the petitioner was paid $100,000.00 by the respondent, the petitioner invoked his “right to silence” pursuant to article 9(5) of the Constitution and his privilege against self-incrimination.
  2. For the respondent, Ms Lui submits that all procedural requirements have been met. Similar arguments are advanced as by the petitioner in terms of the substance. The respondent additionally addresses the unwillingness of witnesses to give evidence “given the position of the Alii and Faipule of their respective villages and the Itumalo of Falealili.”[3] With reference to article 71 of the Constitution, the respondent adds that “[t]he ground on which the parties rely on for the withdrawal is rooted in customs and culture. The maintaining or (sic) order and stability within the Constituency is something only we Samoans can understand utilizing our experience within our villages.”[4] When the Alii and Faipule are concerned, “one has to heed that seriously” and “these factors taken together far outweigh any general public interest in the matter being heard....”[5] In terms of the allegation that the respondent paid $100,000.00 to the petitioner, the respondent invoked his right to silence pursuant to article 9(5) of the Constitution and his privilege against self-incrimination.
  3. The intervener’s position is clear. The intervener submits that the joint application arose from a “corrupt arrangement”, the payment of $100,000.00 from the respondent to the petitioner. The evidence of the payment of $100,000.00 is uncontested, and the “Court must conclude, based on the unopposed evidence, that the petitioner and respondent engaged in a corrupt arrangemement. In his submissions, Mr Lemesio contended that the existence of a “corrupt arrangement” needed to be established on balance of probabilities by the intervener.

C. Discussion

  1. The applicant and respondent apply for leave of the Court to withdraw these proceedings. Section 131 of the Electoral Act 2019 relevantly provides:
  2. The right of the parties to withdraw an election petition is not automatic, it requires leave of the Court. There is no dispute that all the procedural requirements of notification of this application have been complied with, and we are similarly satisfied. Notice has been given to the Constituency in accordance with the Electoral Act 2019 and notice given in accordance with the requirements of the Election Petition Rules 1964.
  3. Although all procedural requirements have been complied with, whether we grant or refuse leave to withdraw, is not limited to the narrow consideration of whether the procedural requirements alone have been complied with. In the case of County of Durham (Northern Division): Glaholm and Store V Elliot (1874) Grove J stated:[6]

“The withdrawing of an election petition must be by leave of the judge and if the judge saw that the withdrawal was the result of any compromise, of any giving and taking so as to prevent evidence being brought forward, which ought to be brought forward, not in the interest of either of the parties, but in the interest of the constituency, and of purity of election, the judge ought not to allow a petition to be withdrawn; he ought as far as he would have power to do so, insist upon the petition being proceeded with.” (emphasis added)

  1. It is however also broader than this. As Foster J stated in Afzal v Khan & Ors [2023] EWHC 376 (KB) when dealing with an application to withdraw an election petition, with whom we agree:[7]
  2. When considering an application to withdraw an election petition, the Court must not only be satisfied of the procedural requirements for withdrawal in the Act, but consider whether there has been any improper collusion and whether withdrawal is in the public interest. This is because the role of the Court is to ensure the integrity of the electoral process by investigating and adjudicating on any matters properly raised in a petition, and whether a member whose election or return is challenged was duly elected or whether it is void.
  3. In Police v Maiava [2023] WSSC 38, the Court dealt with a prosecution application to withdraw charges. Like these electoral proceedings, leave of the Court is required for withdrawal of criminal charges. In the criminal context of leave to withdraw, the Court there applied the test in Police v Taimalie [2022] WSSC 4 that “the court ... should be satisfied the application [to withdraw charges] rests on proper grounds.” Reference was also made to the judgment of Borthwicke J in Canterbury Regional Council v Bathurst Coal Ltd [2019] NZDC 14416 that:
  4. We do not agree with the respondent’s submission, agreed to by the intervener that there is a reverse onus incumbent on the intervener in this case to establish on the balance of probabilities, or “nearly” beyond reasonable doubt, that the application to withdraw is because of a “corrupt arrangement”. First, the application for leave to withdraw the petition and counter petition is brought by the petitioner and respondent. It is for the petitioner and respondent to establish that leave ought to be granted.
  5. Second, no such onus applies to the withdrawal of criminal charges, where “the discretion to prosecute on behalf of the state and to determine the particular charges a defendant is to face is part of the function of Executive Government rather than the Courts”.[8] Whether the Court grants leave to withdraw criminal charges depends with whether the application itself has been brought on “proper grounds”.
  6. Third, a reverse onus approach is inconsistent with how and when a reverse onus arises. Generally, a threshold requirement must first be met by one party, the applicant seeking leave, before a reverse onus is trigerred. It is difficult to see what threshold an applicant would need to reach before a reverse onus arises? We respectfully consider that in the context of the public interest and the sunlight that is sought to be shone on alleged corrupt electoral practices or arrangements, a reverse onus approach is too rigid; it would unecessarily restrict the Court’s broad discretion under the Electoral Act, and, frankly, set the bar too high on whether to grant or deny the application for leave.
  7. Fourth, it risks transforming a straightforward leave-to-withdraw application into a fully contested trial, requiring proof - whether on the balance of probabilities or beyond reasonable doubt - of the existence of a “corrupt arrangement.” Such an approach has no statutory or legal basis and would inevitably risk complicating and drawing out the hearing beyond its proper scope.
  8. To be clear, when determining an application for leave to withdraw an election petition, it is for the applicant who brings the application for withdrawal to establish that:
  9. In this case, we are satisfied that the procedural requirements have been met. We are however not satisfied on the balance of probabilities that this application has been brought in good faith. The evidence before the Court is that:
  10. Neither the petitioner nor respondent challenged this evidence, nor did they seek to cross-examine the intervener’s witnesses to challenge its veracity or limit its scope. The evidence was therefore unchallenged. In our view, the evidence is cogent and credible and it leads us to seriously doubt the bona fides of this application, and we are satisfied the evidence is reliable and meets the requirements of s. 10 Evidence Act 2015.
  11. Finally, the public interest. In considering the public interest, there are three factors that weigh against the grant of leave. First, is the unchallenged credible evidence that the respondent paid to the petitioner $100,000.00 as part of a so called “gentlement’s agreement” to withdraw these proceedings. Second, and importantly, is the extensive allegations of bribery and treating in the course of the general election for the Constituency of Falealili 1 against both the petitioner and the respondent. Though untested, these are supported by sworn affidavits and would seem to us capable of proof, at least in part. Third, are the serious allegations of witness tampering made by Malili Nofovaega, Pouafe Joe and Nora Joe. These allegations are in part confirmed by the respondent’s submissions of the “unwillingness of witnesses to give evidence ‘given the position of the Alii and Faipule of their respective villages and the Itumalo of Falealili.’”[13]
  12. The credible allegations of a corrupt arrangement underpinning this application to withdraw, coupled with the evidence of improper influences being brought to bear on witnesses not to give evidence, so as to derail this electoral petition from continuing is concerning. These concerns hark back to the words of His Honour Grover J. in 1874 that where a withdrawal application stems from a compromise or bargain to suppress evidence being brought forward that should be brought forward, in the interests of the constituency and purity of the election, leave should be refused. In the circumstances, it is also not in the public interest that leave be granted.

D. Rights, Silence and Customary Role

  1. A great deal of time was taken up during submissions by the petitioner and counter-petitioner addressing article 9(5) of the Constitution and the right against self-incrimination contained in the Evidence Act 2015 and their clients’ choice not to respond to Mr Leota’s evidence. Submissions were also made as to whether adverse inferences could be drawn from the purported exercise of these rights by the petitioner and respondent. We do not need to address those extensive submissions save to say, as the Court said in the recent election petition case of Posini v Fuimaono [2025] WSSC 108 (27 November 2025). at paragraph [24] that:
  2. We have found it unnecessary in dealing with this application to determine whether an adverse inference can be drawn by this Court sitting as an Electoral Court where a party purportedly exercises their right to silence and privilege against self-incrimination. That will be for another day and another case.
  3. We conclude by addressing submissions by the respondent about concerns of the Alii and Faipule within the Constituency concerning the maintenance of law and order and stability. With respect, there was absolutely no evidence whatsoever of any risk to law and order in the Constituency. The only evidence presented was to the effect of village meetings and the like, which Maumolipo Tafiti for example states in his affidavit of 17 October 2025:
  4. This sentiment seems to underpin much of the call for stability. While the wishes of the Alii and Faipule are entitled to respect, they must also be understood in their proper light. These do not relate to the maintenance of law and order or stability within the constituency, but to village decisions to support the respondent. The preservation of order and stability within the constituency cannot be secured by suppressing the proper airing of evidence or by curtailing the hearing of electoral grievances before the Court. Where there are serious allegations of bribery and treating affecting an election, they must be heard so that the truth may be determined. In the end, the conduct of the Alii and Faipule themselves and the enforcement of their decisions must not imperil law and order, if it results in silencing witnesses or obstructing the judicial process. Elections are not matters of collective compromise but of individual rights, and the integrity of the electoral system depends upon those rights being vindicated through due process. Respectfully, the Alii and Faipule are bound to uphold the Constitution of our nation and its laws.

D. RESULT

  1. The joint application for leave to withdraw the petition and counter petition is dismissed.

CHIEF JUSTICE PERESE
JUSTICE CLARKE

[1] Submissions in Support of the Joint Notice of Motion for Leave to Withdraw the Petition and Counter Petition, paragraph [18].
[2] At paragraph [22].
[3] Respondent’s First Supplementary Submissions in Support of Joint Motion for Leave to Withdraw Petition and Counter-Petition, paragraph 12(a).
[4] At paragraph [16].
[5] At paragraph [16].
[6] Afzal v Khan [2023] EWHC 376 (KB) at [13]; cited with approval in Tamaleta Taimang Jensen v Lenatai Victor Faafoi Tamapua (Unreported, 07 November 2025 per Nelson and Roma JJ).
[7] See also: Tamaleta Taimang Jensen v Lenatai Victor Faafoi Tamapua, 2025-01234 SC/CV/UP; 2025-01241 SC/CV/UP, 07 November 2025 at [14].
[8] Fox v AG [2002] NZCA 158 at [69] – [70] cited in Police v Maiava (supra).
[9] Exhibit I3.
[10] Exhibits I1 and I2.
[11] Exhibit P1
[12] Exhibit R1
[13] Respondent’s First Supplementary Submissions in Support of Joint Motion for Leave to Withdraw Petition and Counter-Petition, paragraph 12(a).

PacLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.paclii.org/ws/cases/WSSC/2025/116.html