Court Dismisses 13 Motions Against FAST Counter Petitions

Election petition counsels, Afa Lesa, Leiataualesa Jerry Brunt, Fuimaono Sarona Ponifasio and Tanya Toailoa.

By Lagi Keresoma

APIA, SAMOA – 27 MAY 2021: The Supreme Court dismissed 13 motions from unsuccessful Human Rights Protection Party candidates and one from the Tautua Samoa party against the FAST party successful candidates.

Their argument presented before a panel of 3 judges was that the respondents, FAST can respond to the petitions but cannot file counter petitions against their petitioners.

FAST filed a strike out motion and the Court ruled in their favour.

Petitioner’s arguments
The petitioners were represented by counsels Shane Wulf, Afa Lesa and Leiataualesa Jerry Brunt who argued that the FAST elected members, whom the petitions are against, cannot respond to the petitions.

FAST legal team were Fuimaono Sarona Ponifasio and Tanya Toailoa.

Wulf started the argument by citing previous election petition cases dealt with by the Court such as the Le Tagaloa Pita vs Faumuina Liuga, Uluvaomalo Ulu Kini vs Lealailepule Rimoni Aiafi and Farani Posala vs Su’a.

In the case of Le Tagloa Pita vs Faumuina Liuga, Wulf argued that a leave to withdraw the original petitioner from the case and substitute with another was granted.

“Nothing was changed and the respondent filed a counter petition,” he said.

“Under Sect 111 of the Electoral Act 1963, the Court ruled that a counter petition can only be filed against a petitioner where he is claiming the seat of some person and the substituted petitioner has done no such thing,” he argued.

Justice Vui Clarence Nelson pointed out that the case between Pita vs Liuga was based on one of the candidate’s qualification as an election candidate, nothing to do with election corrupt practises.

Reference was also made to the case of former Cabinet Minister Uluvaomalo Ulu Kini and Lealailepule Rimoni Aiafi which also set up the law of election petitions and Wulf read out part of the judgement that said: “The respondent is entitled by the Act, Section 111(6) where release sought is (1) claiming the seat for some person, and to give evidence to prove that person was duly elected in the same manner as if, he has petitioned against the election of that person.”

Wulf argued that the Court can only deal with the issue of a Respondent bringing a counter petition when the petitioner’s claim is for the seat.

“But that is not what section 107 says,” responded Justice Vui.

“Section 107(1) of the Electoral Act says differently and it makes no reference to a petition having claim for the seat of some person,” Vui continued.

“It just said the only way you can bring a challenge to an election is by petition, complaining of an unlawful election decision. It does not say by petition complaining of an unlawful election and claiming the seat of some person,” said Justice Vui.

He then asked Wulf how he would get around the clear words of section 107(1) of the Electoral Act.

“It’s our submission Your Honour based on the Electoral Act, that the petitioner claims that the person elected (Respondent) did not prove corrupt practises, is not properly elected,” he said.

“What’s happening now is that the respondent will be in a position to file a counter petition against the petitioner and our argument is, that is not the purpose of the Act,” Wulf continued.

“The petitioner is there to say that your (respondent) election is not valid due to corrupt practises, only then can the respondent turn around and file a counter petition,” said Wulf.

Justice Niava Mata Tuatagaloa asked Wulf if he was claiming that there should be two kinds of counter petitions.

“No Your Honour, we are saying that section 115 (7) of the Electoral Act says, if you are claiming the seat and on an unlawful basis,” Wulf argued.

“Isn’t response the same as a counter petition,” asked Justice Niava.

Respondent’s argument
Counsel for the respondents Tanya Toailoa took up Justice Niava’s point and elaborated on it.

“A counter petition is actually a response to an allegation or to an attempt to unseat you,” said Tanya.

She made reference to how election petitions had been conducted in the past whereas a petition was filed and counter petition followed.

She said the distinction her learned friends tried to explain when a counter petition should be filed based on their argument is “artificial distinction.”

She then asked the Court to ignore any allegations and the declaration made by the petitioners.

Counsel Leiataualesā argued the same pointed raised by Wulf and Lesā did not submit anything as he agreed with his colleagues.

It only took 15 minutes for the Judges to return with a dismissal decision.

The panel also ruled to remove the Office of the Electoral Commissioner as a respondent to the 14 petitions and was rewarded costs of $4 000 talā.