Home | Databases | WorldLII | Search | Feedback District Court of Samoa

Iona v Tuuau [2025] WSDC 11 (19 September 2025)

IN THE DISTRICT COURT OF SAMOA
Iona v Tuuau, Iiga v Sinapati, Iiga v Tevagaena, Peto v leiataualesa & The Electoral Commissioner [2025] WSDC 11 (19 September 2025)

IN THE DISRICT COURT OF SAMOA
HELD AT MULINUU

IN THE MATTER: of Section 85 of the Electoral Act 2019 and the electoral Constituency of ALATAUA WEST

BETWEEN:

TAITUAVE LAFAITELE VALOAGA TAAITITI IONA, the declared successful candidate for Alataua West constituency
Applicant

AND:

ALIIMALEMANU MOTI ALOFA TUUAU, a candidate for the Alataua West constituency
First Respondent

IN THE MATTER: of section 85 of the Electoral Act 2019 and the electoral Constituency of FAASALELEAGA 1

BETWEEN:

LEATIGAGA MATAFAI LAUINA IIGA, the declared successful candidate for Faasaleleaga 1 constituency
Applicant

AND:

PIPI PAULI TEVITA TARIU SINAPATI, a candidate for Faasaleleaga 1 constituency
First Respondent

IN THE MATTER: of Section 85 of the Electoral Act 2019 and the electoral Constituency of Faasaleleaga 5

BETWEEN:

VUI IIGA SIONE IIGA, the declared successful candidate for Faasaleleaga 5 Constituency
Applicant

AND:

PESETA VAIFOU TEVAGAENA, a candidate for the Faasaleleaga 5 constituency
First Respondent

IN THE MATTER: of Section 85 of the Electoral Act 2019 and the electoral Constituency of AANA ALOFI 3

BETWEEN:

AGASEATA TANUVASA VALELIO TANUVASA PETO, the declared successful candidate for Aana Alofi 3
Applicant

AND:

NIUAPU AIOFAIVA FAAUI II LEIATAULESA, a candidate for the Aana Alofi 3 constituency
First Respondent

AND:

THE ELECTORAL COMMISSIONER
Second Respondent

Counsel: Ms Leone Su’a-Mailo for Aliimalemanu Moti Alofa Tuuau

Mr Alex Su’a for Pipi Pauli Tariu Sinapati and Peseta Vaifou Tevagaena

Ms Lucy Sio-Ofoia for Niuapu Aiofaiva Faaui II Leiataualesa

Ms Muriel Lui for First Respondents

Ms Shalom Time for the Second Respondent

Decision: 19^th September 2025

RESERVED RULING AS TO COSTS

INTRODUCTION:

1. Before me are applications for costs pursuant to electoral recounts for Electoral Constituencies of Alataua West, Faasaleleaga 1, Faasaleleaga 5 and Aana Alofi 3 under section 85 of the Electoral Act 2019 (the Act). The recount hearings were separately conducted except for Aana Alofi 3 that was withdrawn.
2. The Applicants seeking costs state that all four applications for recount were frivolous and had no chance of success given the absence of specific evidence relating to the circumstances of each Constituency.
3. The four Respondents filed oppositions as to the application for costs relying on basically the same grounds:
   1. That a recount is a statutory right in the absence of evidence of bad faith, frivolity or abuse of process; and
   2. That the Respondent reasonably believed that a recount was justified pursuant to an incorrect declaration by the Second Respondent on the number of votes received by the Applicants and that the First Respondents might be found to be elected.

BACKGROUND:

4. The Applicants initiated an application to the District Court for costs against the First Respondents from each of the four Constituencies following an unsuccessful recount hearing. At the conclusion of the recount for the Constituencies of Alataua West, Faasaleleaga 1 and Faasaleleaga 5, the results of the official count by the Second Respondent remained unchanged. Furthermore, I found no sworn evidence produced by the First Respondents proved on the balance of probabilities that the Second Respondent made an incorrect declaration based on an incorrect official count.
5. There is no application against the Second Respondent for costs nor the Second Respondent seeking costs following the event.

DISCUSSION:

6. The well-established rule that “cost follow the event” is where the winning party is entitled to have all or a portion of their legal costs paid by the losing party. The principle aims to deter unmeritorious claims and ensure that successful parties are compensated for their expenses. There are of course exceptions in circumstances where it is unjust and unequitable to award costs or that there are special circumstances that would cause a departure from the rule.
7. “Cost” is a deterrent but not an inhibitor for initiating legal action. This is one of the tools that provides checks and balances to ensure that access to justice via the courts is not abused and/or manipulated.
8. A recount under section 85 for purposes of determining the results of a general election is not to be taken lightly given the rights of representative candidates and voters that may be affected. The Courts must take the utmost care in dealing with such applications. In all four applications for a recount, the First Respondents only questioned the results relating to the successful applicants in comparison to the former. I was therefore not required to consider the number of votes from other candidates except for Pre-Polling votes and special votes.
9. The fact that the Applicants were exonerated after the recount automatically activates the issue of costs in their favour. It therefore requires the First Respondents to answer as to why costs should not be justified.

LEGISLATED RIGHT AND REASONABLE BELIEF

10. Respectfully, a recount under section 85 is not a right to be exercised but a judicial process to ensure that the election results are accurate based on the Second Respondent conforming with the statutory framework. It is, more or less, a shadow of a judicial review process to determine whether an official of government acted within his/her legislative mandate.
11. The justification of the application for a recount is further qualified, as conceded by Counsels for the First Respondents, that it not be brought in bad faith, frivolity or abuse of process. The measure as to whether the application was not initiated in bad faith, frivolity or abuse of process is on the basis of the First Respondents having “reason to believe” that the official count was incorrect. To prove reasonable belief, the First Respondents were required to produce specific sworn evidence of circumstances to show that the Second Respondent acted incorrectly.
12. The fact that section 85 provides two grounds for the application to be made reinforces the point that any application is not by right but the satisfaction of the initial grounds of reasonable belief. Subsequently, evidential proof of that reasonable belief might very well change the outcome of the election. It would be absurd if it were by right for it would mean an Applicant with 10 votes can initiate a recount against a candidate with 500.
13. I will not repeat here the discussion of the evidence but refer the parties to reasons in my written ruling as to the merits of applications for recount. I will say that legitimate concerns may arise about random voting irregularities from supervising Electoral Officers occurring generally across the country. However, even if true, there was no evidence, individually or collectively, that such irregularities resulted in an incorrect declaration by the Second Respondent generally. Furthermore, there was no evidence that systemic issues of concern, even if true, caused an erroneous declaration on the part of the Second Respondent discharging his duties under the Act.
14. The incidences of possible irregular voting processes noted in each constituency relating to scrutineer representation, collection of supplementary rolls before the preliminary count, prevention of caregivers to assist elderly and special needs voters, etc. are in my view inconsequential, minimal and isolated. These incidences, if true, in my view did not amount to an incorrect declaration by the Second Respondent.
15. I therefore find that the applications for recount were not justified and that the prospect of a recount altering the result was misconceived given the absence of evidence and the substantial winning margin between the winning Applicants and the First Respondents.

CONCLUSION

16. What then is an appropriate amount for costs given the Act is silent but for a deposit? The recount exercise required substantial man hours of preparation on all the parties concerned as well as the Court staff. The Applicants seek a maximum of $2,000 for each case and in my view are generous with their application. Nevertheless, I will take the Applicants proposed amount as a starting point given the novelty of the issue but also bearing in mind that this particular Act seems to go through substantial amendments following every general election. The provision may very well not be the same in future and to create a legal precedent out of it would be premature.
17. The First Respondents in Alataua West, Faasaleleaga 1 and Faasaleleaga 5 are ordered to pay costs of $1,500 to the Applicants and $500 court costs. The First Respondents may opt to forfeit their deposit as part payment of the full amount instead of a refund.
18. The order for costs must be paid within 21 days from the date of this order.
19. I order no costs against the Aana Alofi 3 First Respondent given his withdrawal of the application for a recount.

JUDGE MATA’UTIA RAYMOND SCHUSTER