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Laki v Mulipola [2025] WSDC 9 (10 September 2025)

IN THE DISTRICT COURT OF SAMOA
Laki v Mulipola & The Electoral Commissioner [2025] WSDC 9 (10 September 2025)

IN THE DISTRICT COURT OF SAMOA
HELD AT MULINUU

IN THE MATTER

of an Application for a Recount of Ballots by the District Court in respect of the Electoral Constituency of AIGA O LE TAI, pursuant to Section 85 of the Electoral Act 2019.

BETWEEN

MULIPOLA LEIATAUALESA LEIATAUALETAUA LAKI, a
Candidate for the Electoral Constituency of Aiga o le Tai.

Applicant

A N D

AUAPAAU MULIPOLA ALOITAFUA MULIPOLA, a Candidate for the Aiga o le Tai
Constituency

First Respondent

A N D

THE ELECTORAL COMMISSIONER appointed under the Electoral Act 2019.

Second Respondent

Ms. Leone Mailo for the Applicant
Ms. Muriel Lui for the First Respondent
Ms. Fetogi Vaai for the Second Respondent

WRITTEN RULING IN RESPECT OF APPLICATION FOR JUDICIAL RECOUNT

THE APPLICATION

3. This is an application for a Judicial Recount of votes cast in the Electoral Constituency of Aiga o le Tai.
4. The Official Count Results were:
   • (i) Auapaau Mulipola A Aloiitafua Mulipola 1169
   • (ii) Mulipola Leiataualesa Leiataua Laki 1103
   • (iii) Leiataualesa Jerry Brunt 280
   • (iv) Levaa James Brunt 122
   • (v) Seulu Iloa Togia 153
5. The Applicant has reason to believe that the Declaration of Official Results for Aiga o le Tai Constituency issued by the Respondent in the early morning of Tuesday 2^nd September were incorrect and that on a recount, the Applicant who is duly registered as a Candidate in Aiga o le Tai Constituency, might be found to be elected;
6. The Applicant relies upon the following grounds:

(a) THAT there was a systemic breach reported in the Samoa Observer with unregistered voters and prisoners casting votes.

(b) THAT the Special Votes were incorrectly filled in by the Officials with some Special Votes omitting the name of the Applicant and in some, recording the names of Candidates from other Constituencies. The names of the Candidates were handwritten and the forms did not include the photographs of the Candidates as in Ordinary Votes forms.
(c) THAT the Applicant, the Winning Candidate and other Candidates have the same matai titles and raises a significant issue as to the risk of the votes being miscounted due to the similarity of the registered Candidates names.

7. THAT Scrutineers were prohibited by Officials at the Respective Booths from keeping supplementary rolls for cross referencing at the Official Count.
8. THAT there were voters who cast votes twice on the polling day that may have been included in the official count.

THE RECOUNT PROCESS FOR THE JUDICIAL RECOUNT

9. The Recount was conducted on Wednesday 10^th September 2025 from 2pm until 10.05pm. In attendance were the representatives of the Respondent (3 Assistant Chief Executive Officers and 3 Principal Officers) and the Scrutineers for both the Applicant and the winning Candidate.
10. The Recount was conducted by the Deputy Registrars, Assistant Registrars and Associates of the District Court in my presence as the presiding District Court Judge.
11. There were two stages of the process. The first stage was to compare the Main Rolls for each Booth to the Master Roll. Secondly, the verification of the forms filled and submitted by the Presiding Officer for each of the Booths. The purpose was to confirm the number of ballots issued to each Booth, the used Ballots and the unused Ballots.
12. The second stage was to recount every vote cast for each Booth and examine all the informal votes, spoilt ballot papers and invalid votes for each of the Booths.

FINDINGS

Systemic Breach in respect of Unregistered Voters and Prisoners

13. Systemic Breach as reported by the media is not a ground for a Recount unless there is evidence specific to the Candidate that affected his results and that on a recount, he might be the successful Candidate.
14. There were 5 Unregistered Voters who cast their votes at the Special Votes Booth for this Constituency as identified by the Applicant’s scrutineers and confirmed during the Recount after the examination of all Special Votes cast.
15. These unregistered voters although given ballots by the officials at the Booths were not counted during the Official Count by the Electoral Commission. These were treated by the Electoral Commissioner (or Representative) as invalid votes during the Official Count. These Ballots did not affect the final results for the Constituency.
16. There was also a margin of 66 votes which would not have been affected by these 5 votes even if counted.
17. There were no prisoners who cast a vote in this Constituency. This ground was without any basis or proof.
18. It is the duty of the Presiding Officer to issue ballot papers only to registered voters who appear on the Roll for that Constituency.^[1] A Presiding Officer who breaches his/her duty is liable to a fine of 40 penalty units.

Special Votes handwritten and omitted the name of the Applicant

19. Special Votes are only cast on the official day of Polling. Those qualified under Section 64(5) of the Electoral Act 2019 are not required to apply to the Electoral Commissioner prior as Pre polling voters under Section 61 of the Electoral Act 2019.
20. The Special Votes ballots are green colored official ballots issued by the Electoral Commission Office. There is a variance in color but both shades of green were accepted by the Officials as official special votes ballots. As Special Voters are only required to cast their votes on the day, the Officials at the Booths will only enter the names of the Candidates on the official green colored ballots on the day of the polling.
21. All the Special Votes were examined during the Recount to confirm if the names of the Candidates were all written on the Special ballot papers.
22. There were 5 Special Votes that did not have the names of all the Candidates but names of other Candidates from other Constituencies. Some omitted the names of some of the Candidates including the Applicant.
23. Pursuant to Section 85(6) of the Electoral Act 2019, I reversed the decision of the Commissioner (or representative) in respect of 2 votes cast under Auapaau Mulipola Aloitafua Mulipola as one of the Special Votes had the name Teleai Christian Ausage and the other Special Vote had the name of Leiataua Fasitau. Both Candidates are from different Constituencies. I declared these votes as Informal votes under the Special Votes category. These two votes are included in the 5 Informal Special Votes.
24. It is imperative that the Officials who work at the Special Votes Booths know all the Candidates for each and every Constituency in Upolu and Savaii and that all the names of the Candidates for that Constituency are written in full and legible. The Electoral Commissioner must have copies of all the names of the Candidates at Special Votes Booths and there must be checks and balances at the Booths and during the Official Count of all names entered by the Officials on these Ballot papers.
25. The Electoral Commissioner to conduct an investigation into the omission of Candidates names from the Special Votes forms issued. The failure of the Officials at the Booths to properly record the names of the Candidates for the Constituencies on the ballots directly affects the voters right to choose and Candidates right to be chosen.

Similar Names of Candidates

26. Other than the issue discussed with Special Votes, all the ordinary ballot papers and pre Polling votes and Special Votes were all examined. All the Ballot Papers clearly identified the Applicant as MULIPOLA LEIATAUALESA LAKI as the fourth Candidate on the ballot with the Winning Candidate AUAPAAU MULIPOLA ALOITAFUA MULIPOLA as the first named Candidate. All the Candidates who were listed from the First to the Fifth Candidates were clearly identified by their respective matai titles, first names and last names. The names were clearly distinguished from one another and I am satisfied that the similarities in the names of the Candidates could not have been attributed to the Applicant having less votes than the winning candidate.

Informal Votes

27. I also reversed the decision of the Commissioner in respect of 2 informal votes under Special Votes and these were recounted under the two Candidates Leiataualesa Jerry Brunt and the Applicant. These Special votes I found clearly identified the named Candidates as their preferred choice although they used an x instead of a tick and the box with the name of the Candidate in it.^[2]

Supplementary Rolls of Scrutineers

28. The Scrutineer for the First Respondent had their Supplementary Rolls. The concern raised by the Scrutineer for the Applicant was without basis as there was no direction from the Electoral Commissioner for the collection of all Supplementary Rolls at the close of the polling.
29. This is not a ground for the filing of a recount.

DUAL VOTERS

30. There were voters with allocated numbers who were challenged as dual voters.
31. The Rolls were examined against the Master Roll and the Booklets for each Booth was examined. All these voters were confirmed to have voted once.

Summary of Recount

32. At the conclusion of the Recount all ballot papers used and unused were accounted for and secured and stored in Parcels. Attached as “Annexure 1” is the Results of the Recount.

ORDER

33. I certify that the Results of the Official Poll for this Constituency is incorrect. The Commissioner is ordered to amend the results in accordance with the results of the Recount.
34. I hereby certify that the Commissioner was correct in declaring the Winning Candidate for Aiga o le Tai Constituency as AUAPAAU MULIPOLA ALOITAFUA MULIPOLA

DEPOSIT AND COSTS

35. A Memorandum of Costs for $2,000 was subsequently filed by the First Respondent against the Applicant on the grounds:
    • (i) The First Respondent had 66 votes ahead of the Applicant. At the conclusion of the Recount, the First Respondent is still ahead with 63 votes. There was never a possibility of the applicant being found elected.
    • (ii) The grounds the Applicant relied on are general matters that were addressed by the Electoral Commissioner with all the scrutineers at the time of the Official Count. To raise as grounds for a Recount is an abuse of process.
36. In response, Counsel for the Applicant has submitted:
    • (A) That no costs should be ordered against the Applicant as the application was reasonable, lawful and brought in good faith.
    • (B) The margin of 66 votes is marginal and a minimal change in vote could have reversed the result.
    • (C) That the Applicant held a reasonable belief that the result may have been incorrect. The issues raised by the Applicant are legitimate concerns about the integrity of the count and that there was a clear and reasonable basis to believe the results announced during the Official Count was incorrect.

ASSESSMENT OF COSTS

37. There was a wide margin of 63 between the winning bidder and the Applicant after the count.
38. There were systemic errors found in the Special Votes cast for this Constituency in respect of the omission of the Applicant’s name in two of the Special Votes cast and the validation of some special votes despite the inclusion of names of other Candidates from another Constituency. There were also ballot papers issued to 5 unregistered voters.
39. While the numbers are minimal and will not change at all the results, these systemic errors identified by the Commissioner and confirmed during the Recount undermine the integrity of the electoral process. To award costs to the First Respondent against the Applicant for raising these valid concerns that goes to the heart of the electoral system will be contrary to the interest of justice. All the Candidates for this Constituency were affected by the failure of those at the respective booths to reject the unregistered voters and to stipulate all the names of all the Candidates on all the Special Votes Ballot papers.
40. The Electoral Commissioner has addressed these concerns by invalidating the unregistered voters and ordering an investigation into the handling of the special votes by the Officials at the Booths.
41. I will only grant Court costs of $500 to be paid by the Applicant for facilitation of the Recount.
42. The deposit is to be refunded upon the payment of Court Costs. Alternatively, the Applicant by written consent can opt for the forfeiture of the deposit for Court Costs. The Court Costs is to be paid by Wednesday 24^th September 2025.

JUDGE SAAGA

^[1] Section 68 of the Electoral Act 2019.
^[2] Section 71(2) of the Electoral Act 2019.