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Kini v Aiafi [2006] WSSC 25 (16 May 2006)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

IN THE MATTER: of the Electoral Act 1963

AND:

IN THE MATTER: of the Territorial Constituency of Faleata-i-Sisifo Election Petition.

BETWEEN

ULU VAOMALO ULU KINI
of Toamua, a candidate for election.
Petitioner

AND

LEALAILEPULE RIMONI AIAFI
of Vaitele, a candidate for election.
First Respondent

AND:

THE ELECTORAL COMMISSIONER
of Apia.
Second Respondent

Coram: Sapolu CJ
Vaai J

Counsel: G Latu for the Petitioner
R S To’ailoa for the First Respondent
D Clarke and R Wulf for the Second Respondent

Hearing: 10 May 2006
Conclusions: 11 May 2006
Written Judgment: 16 May 2006

JUDGEMENT OF THE COURT DELIVERED BY SAPOLU CJ

Introduction

On 31 March 2006 a general election was held for the Legislation Assembly of Samoa. The preliminary and unofficial results of the poll were broadcasted over the television and radio stations on election right. This was followed a few days later by the official count of the ballot papers by the Electoral Commissioner, the second respondent in these proceedings. At the conclusion of the official count, the second respondent declared the result of the poll by giving public notice thereof. The declared result of the poll for the territorial constituency of Faleata-i-Sisifo was as follows:

Candidates Votes polled

Ale Vena Ale 545

Lealailepule Rimoni Aiafi 795

Panoa Easter Ah Kuoi 255

Seiuli Saoaumaga Lino 129

Ulu Vaomalo Ulu Kini 630

Ulugia Aukuso Ulugia 98

--------

Total number of formal votes 2,452

Votes rejected as informal 11

Lealailepule Rimoni Aiafi, the candidate with the highest number of formal votes, and who is the first respondent in these proceedings, was accordingly declared the successful candidate. He was also declared by warrant by the Head of State as elected Member of Parliament for the territorial constituency of Faleata-i-Sisifo.

Following the declaration of the first respondent as elected Member of Parliament for the territorial constituency of Faleata-i-Sisifo, Ulu Vaomalu Ulu Kini, the candidate who polled the second highest number of formal votes, and who is the petitioner in these proceedings, filed an election petition on 24 April 2006 against the election of the first respondent and complaining of the conduct of certain officers of the second respondent. The petitioner seeks a declaration that he was duly elected as Member of Parliament for his territorial constituency instead of the first respondent or, alternatively, that the election of the first respondent should be declared void and a fresh election for the territorial constituency of Faleata-i-Sisifo be ordered.

The present proceedings

Following the filing of the petitioner’s election petition on 24 April 2006, the first respondent filed a statement of replies and counter petition on 28 April 2006. Strictly, the use of the term 'counter petition' is not correct as there is no mention in the Electoral Act 1963 of a counter petition. What is actually involved are counter allegations made by the successful candidate against the petitioner as contemplated under s.111 (6) of the Act. Over the years it has become a matter of convenience to refer to such counter allegations as a counter petition. So the term counter petition has become a term of convenience. As it is of no significance for present purposes whether the term counter petition, counter allegations or some other term is used, we will continue to use the term counter petition for convenience.

One of the issues raised by the first respondent in his statement of replies and counter petition is that the election petition was filed out of time in terms of s.106 (1) of the Act. This issue became the subject of a strike-out application by the first respondent. As the issue affects all the remaining six petitions that are still before the Court, we granted leave to all counsel involved in those petitions to join in the argument whether their petitions were filed within time or not. The only exception was the election petition in relation to the result of the poll for the Anoamaa-i-Sisifo territorial constituency because counsel for the petitioner is from overseas and she was not present.

The issue raised for the first respondent in the strike-out application is essentially this. It was submitted that the Electoral Commissioner, who is the second respondent, publicly notified the result of the poll on Thursday, 13 April 2006. In terms of s.106(1) of the Electoral Act 1963, an election petition shall be presented within seven days after the day on which the Electoral Commissioner has publicly notified the result of the poll. That means the seven days period for presenting an election petition in this case started to run from Friday, 14 April 2006 and ended on Thursday, 20 April 2006. As the petitioner’s election petition was filed on Monday, 24 April 2006, it was out of time. It was therefore submitted for the first respondent that it should be struck out. Because the other remaining five election petitions were all filed after 20 April 2006, they would all be out of time if the argument in support of the strike out application in these proceedings is correct.

It should also be mentioned that Friday, 14 April, was Good Friday and therefore a public holiday; Saturday, 15 April, was also declared a public holiday; and Monday, 17 April, was Easter Monday and was also declared a public holiday. Sunday, 16 April would also be a holiday by virtue of the definition of 'holiday' in s.4 of the Acts Interpretation Act 1974. So within the seven days period from 14 to 20 April which counsel for the first respondent contended was the period of time within which the petitioner should have filed his election petition, were four holidays. Thus when the argument in support of the strike out application started off, it appeared clear to us that it was directed at s.23(a) of the Acts Interpretation Act 1974 which relates to time and that the four holidays already mentioned should not be included in the calculation of the seven days period for presenting an election petition in terms of s.106(1). At that point of the argument, we drew counsel’s attention to some of the other provisions of the Electoral Act 1963. We then heard submissions from counsel on those other provisions.

At the conclusion of arguments from all counsel involved, we reserved our decision on the first respondent’s strike out application to be delivered the following day, Thursday, 11 May. On that day we stated our conclusions denying the strike out application and indicated to counsel that we will prepare a written decision setting out our reasons and make it available to counsel in due course. This is that decision.

Relevant statutory provisions

In dealing with the strike out application and explaining how we arrived at our conclusions, it is necessary to refer to the relevant provisions of the Electoral Act 1963. We start with s.80(1) which provides for the declaration and public notification of the official result of the poll by the Electoral Commissioner. Section 80(1) provides:

'When all the ballot papers have been dealt with as aforesaid the 'Commissioner, having ascertained the total number of votes 'received by each candidate, shall forthwith declare the result of 'the poll including the number of votes received by each 'candidate by giving public notice thereof in from No. 9 and 'report the result of the poll to the Head of State. Thereupon the 'Head of State shall, by warrant under his hand declare the 'successful candidate or candidates elected.' (emphasis added)

The term 'public notice' is defined in s.2(1) of the Act as follows:

'’Public notice’ means publication –

'(a) In the Gazette; and

'(b) In the Savali; and

'(c) In a newspaper published in Samoa, or by means of notices 'posted in conspicuous places at Apia and at such other place or 'places in Samoa as the Commissioner thinks fit, or by means of 'notices broadcast by radio; and ‘publicly notify’ has a 'corresponding meaning.'

It is to be noted here that in vol 2 of the 1920-1977 Reprint Of The Statutes of Samoa, the definition of 'public notice' as it presently appears in s.2(1) of the Act is precisely the same as it appears in the 1920-1977 Reprint. We were not provided with a copy of the original of the Electoral Act 1963 but we are inclined to the belief that the definition of 'public notice' in the original Act is still the same as it is now. We say this because in 1963 there were probably only one or perhaps two private local newspapers whose circulation was mainly around the Apia area. Radio communications were not of the same standard as they are now.

'Gazette' is defined in s.2(1) of the Electoral Act 1963 to mean the Samoa Gazette which is in turn defined in s.4 of the Acts Interpretation Act 1974 to mean the Gazette published by or under the authority of the Government of Samoa. We were told from the bar that the Gazette is a monthly publication. However, it appears that the Gazette of 13 April 2006 was a special issue of the Gazette printed solely for the purposes of publishing the declaration of the official result of the poll by the Electoral Commissioner and of the warrant of election of successful candidates issued by the Head of State. There is no other matter published in the Gazette of 13 April 2006.

The term 'Savali' is also defined in s.4 of the Acts Interpretation Act 1974 as follows:

'’Savali’ means the publication published under that name and 'under the authority of the Government containing such 'notices as are required by any law to be published therein, or 'as directed by the Government to be inserted therein.'

Based on our knowledge and experience of adjudicating in numerous Land and Titles Court appeal cases, we are prepared to take judicial notice of the fact that the Savali is a government publication which normally comes out once a month and that it is given out to the pulenu’u (mayor) of every village throughout the country. The pulenu’u would then distribute the copies of the Savali given to him to the families of his village. So the Savali has a nationwide circulation. We were not given any evidence to show that any private local newspaper has such a nationwide circulation.

The next relevant provision of the Electoral Act 1963 is s.106 which, as far as relevant, provides:

'(1) Subject to the provisions of this section, an election petition 'shall be presented within 7 days after the day on which the 'Commissioner has publicly notified the result of the poll.

'(2) If the petition questions the election or result upon an 'allegation of a corrupt practice and specifically alleges a 'payment of money or other reward to have been made by the 'member or on his account or with his knowledge and consent 'since the day of such public notification in pursuance or 'furtherance of the alleged corrupt practice, it may be presented 'within 7 days after the date of the payment.'

One comment needs to be made here about s.106(1) and (2). As it appears from the 1920-1977 Reprint Of The Statues of Samoa, the 7 days period which now appears in s.106(1) and (2) used to be 28 days. But an amendment was passed in 1990 to reduce that time period to 7 days.

Finally, there is s.23(a) of the Acts Interpretation Act 1974 which was the initial basis of the opposing submissions between counsel. Section 23(a) provides:

'In every Act, unless the context otherwise requires, -

'(a) If the time limited by any Act for any proceeding, or the 'doing of anything under its provisions, expires or falls upon a 'holiday, the time so limited shall be extended to and such thing 'maybe done on the day next following which is not a holiday; 'and all further changes of time rendered necessary by any such 'alteration may also lawfully be made.'

Perhaps it should also be mentioned that the terms 'public notification' and public notice' are given the same definition in s.4 of the Acts Interpretation Act 1974 but since the terms 'public notice' and 'publicly notify' are defined in s.2(1) of the Electoral Act 1963, the definitions in the latter Act are to be applied in these proceedings.

Publication of the result of poll

The evidence placed before the Court shows that the result of the poll for the general election held on 31 March 2006 was published by the Electoral Commissioner in the Gazette of 13 April 2006. The result of the poll was also broadcasted three times on both SBCTV1 and Radio 540AM on Thursday, 13 April 2006 on request from the Electoral Commissioner. It was also broadcasted twice on Radio Polynesia Talofa FM on 13 April 2006. It was further published in at least two private local newspapers on Friday, 14 April. However, it was not until 20 April 2006 that the result of the poll was published in the Savali. At first blush, it would appear that the public notice process provided in s.2(1) of the Electoral Act 1963 was not completed until 20 April 2006 when the result of the poll was published in the Savali. We will come back to this point.

Submissions in support of strike out application

The submissions by counsel for the first respondent in support of the strike out application may be explained as follows. He referred to s.106(1) of the Act which provides that an election petition shall be presented within 7 days after the day on which the Electoral Commissioner has 'publicly notified' the result of the poll. He then submitted that the words 'publicly notify' contained in the definition of 'public notice' in s.2(1) of the Act relate, insofar as relevant, only to publication in a newspaper published in Samoa or by means of notices broadcast by radio as provided in paragraph (c) of that definition. The words 'publicly notify' do not relate to publication in the Gazette and in the Savali as provided in paragraphs (a) and (b) respectively of the definition. As the result of the poll was broadcasted three times on Radio 540AM and twice on Radio Polynesia Talofa FM on 13 April 2006, it was therefore submitted that 13 April 2006 was the date on which the Electoral Commissioner had 'publicly notified' the result of the poll in terms of s.106(1) of the Act. It follows that in terms of the same provision, the seven days period within which an election petition should be filed started to run from 14 April 2006 and ended on 20 April 2006. As the election petition in the case was not filed until 24 April 2006, it was therefore out of time and must be struck out. If this is correct, as mentioned earlier, then all the remaining election petitions would also have to be struck out as they were filed after 20 April 2006. When questioned by the Court as to why the meaning of the words 'publicly notify' should not relate back to publication in the Gazette and the Savali as provided in paragraphs (a) and (b) of the definition of 'public notice,' but only to publication in a local newspaper or notices by radio as provided in paragraph (c) of the definition, counsel for the first respondent replied that the publication in the Gazette and the Savali was to provide an official record of the result of the poll. Furthermore, publications in the Gazette and the Savali have a restricted circulation as opposed to a newspaper or notice broadcast by radio.

Counsel for the first respondent also submitted that in terms of s.23 of the Acts Interpretation Act 1974, holidays are not to be counted in this case in the calculation of the seven days period for filing an election petition because the date on which the seven days period ended was 20 April 2006 which was not a holiday.

Discussion

We take as the starting point for discussion s.80 of the Electoral Act 1963 which requires the Electoral Commissioner to declare the result of the poll by giving public notice thereof. The words 'the day on which the Commissioner has publicly notified the result of the poll' contained in s.106(1) of the Act must mean the day on which the Electoral Commissioner gave public notice of the result of the poll under s.80. There is no other provision in the Act, apart from s.80, which places on the Electoral Commissioner the obligation of giving public notice of the result of the poll. We are of the view that the words 'giving public notice' in s.80 and the words 'has publicly notified' in s.106(1) convey the same intention and meaning on the part of the legislature. This will ensure consistency and coherence in meaning between the two provisions. We also note here that the words 'such public notification' used in s.106(2) must be taken as referring back to the words 'has publicly notified' used in s.106(1) which in turn relates to the words 'giving public notice' in s.80.

Turning now to the definition of 'public notice' in s.2(1), it is clear that the term 'public notice' is defined in three paragraphs, (a), (b) and (c). Each paragraph is joined to the other by the conjunction 'and' which implies that the publication required for a public notice applies to all three paragraphs at the same time. With paragraph (c) in particular, there is a semi-colon after the word 'radio.' There then follows the conjunction 'and’ again, and then the words '’publicly notify’ has a corresponding meaning.' The question for determination is whether the words 'publicly notify' relate back to all of paragraphs (a), (b), and (c) of the definition of 'public notice' or whether they relate only to paragraph (c).

We are of the view that 'publicly notify' relates to all three meanings of public notice provided in paragraphs (a), (b), and (c) of the definition. In the first place, the words 'publicly notify’ has a corresponding meaning' raise the question of corresponding meaning to what? In our view the answer must be, corresponding meaning to the meaning of 'public notice' as defined in paragraphs (a), (b) and (c) of the definition. We do not consider that the definition of 'public notice' as it has been drafted and presently stands, shows any legislative intention that the meaning of the words 'publicly notify' is to be restricted only to paragraph (c) of the definition. The expression 'public notice' or more accurately the term 'notice' is a noun and the expression 'publicly notified' or more accurately the term 'notify' is a verb which performs the function of bringing a public notice or notice to the attention of the people the notice is intended to inform. If the words 'publicly notify' are restricted to a publication in a newspaper or a notice broadcasted by radio, then what verb is there to describe the function performed by the Gazette and Savali of publishing a public notice to bring it to the attention of the public the notice is intended to inform. The answer is that there is probably none. The word 'notice' in the expression 'public notice' is a noun and the word 'notify' in the expression 'publicly notify' is a verb associated with that noun. And the word 'notice' in the definition of 'public notice' relates to all three paragraphs (a), (b) and (c) of the definition and not just paragraph (c) alone. To make true sense of the definition we are therefore of the view that the expression 'publicly notify' should be interpreted to have a corresponding meaning to the full meaning of the expression 'public notice' and the verb 'notify' should be taken to have a corresponding meaning to the noun 'notice.'

It would also provide for consistency and coherence in meaning throughout the Act if the expression 'publicly notify' or 'publicly notified' is taken to bear a corresponding meaning to the expression 'public notice' as defined. It may lead to difficulties in the interpretation of the Electoral Act if 'public notice' is to mean one thing and the expression 'publicly notify' or 'publicly notified' is taken to have a meaning which relates to only part of the definition of public notice as submitted for the first respondent.

We also note that inverted commas are put around the expressions 'public notice' and 'publicly notify.' Such use of inverted commas tends to suggest that the two expressions are used in a special sense which is related to one another in meaning.

We would also refer to certain passages from Statutory Interpretation In Australia (1996) 4th ed by DC Pearce and RS Geddes where the learned authors state at pp. 190-191:

'All jurisdictions except South Australia now have 'Interpretation Act provisions that deal with this issue. There 'are two types of section. The more wide ranging is illustrated 'by s.18A of the Commonwealth Act:

' ‘In any Act, unless the contrary intention '’appears, where a word or phrase is given '’a particular meaning, other parts of speech '’and grammatical forms of that word or '’phrase have corresponding meanings’.

'The section would seem to go far towards resolving the issue 'alluded to above. The defined meaning is to be followed 'unless it is clear that the derivative of the term defined is 'being used in a different sense. The Queensland Act used to 'include a provision which reads:

'’32C. Derivatives of any term to which a '’meaning is assigned by that Act shall have '’a corresponding meaning.’

'Section 24 of the Tasmanian Act is still in these terms. 'Provisions in this form may be narrower in their operation 'than the Commonwealth section set out above and its 'equivalents. It is suggested that the latter, by referring to 'other parts of speech, would cover, for example, a verb where 'a noun is defined (emphasis added).

The learned authors then refer to Redland Shire Council v Stradbroke Rulile Pty Ltd (1974) 133 CLR 641 and then continued at p191:

'A different opinion was expressed by Menzies J at 645. After 'referring to the Queensland provision he said:

'’Surely the object of this provision is to '’ensure consistency and I would be loath to '’attribute different meanings to derivatives '’from one root-even if only one of the '’derivatives is actually defined.’

'With respect to the contrary view expressed by Stephen J, the 'approach posited by Menzies J is the better to adopt. Once a 'term is given a particular meaning in an Act, prima facie all 'references that are derived from or associated with that term 'should be treated as based on the defined meaning of the term.'

Further on at p.191, the learned authors go on to say:

'Obviously the context may indicate that the defined meaning 'has not been followed but the onus of showing this to be the 'case should be on the party asserting it. It is suggested that this 'should be the approach adopted whether or not there is an 'Interpretation Act provision of either of the kinds referred to 'above.'

It has not been exceptional to refer to statutory law to assist in the development of the common law of Samoa. However, we have referred to the above passages from Statutory Interpretation In Australia (1996) 4th ed by DC Pearce and RS Geddes to shed light on the approach to be taken in dealing with the issue to be determined in these proceedings. We do not see any thing from the passages cited which contradicts the approach we have taken. If anything, the above passages appear to support our approach.

We have also not been able to accept that the intention behind paragraphs (a) and (b) is simply to provide an official record of the result of the poll for a general election by having such result published in the Gazette and Savali. There are other public notices which are not related to a poll for a general election at all that are provided in the Act and which require publication. The public notice required for the publication of the result of the poll is not the only public notice provided in the Act. It is also clear from the expressed words of the definition of 'public notice' that apart from providing a definition, what is provided is the manner by which a public notice is to be published. The legislature has not left the matter in uncertainty. It has expressly provided the procedures for publishing a public notice. And we do not see from that any legislative intention that the purpose for publication of the result of a poll for a general election in the Gazette and the Savali is simply to provide an official record of such a result. As just mentioned, there are other public notices provided in the Act and they are not related at all to the declaration of the result of a poll for a general election. To accept the meaning suggested by counsel for the first respondent would, therefore, impose a restriction on the meaning of paragraphs (a) and (b) of the definition which is not warranted.

We accept, however, that the Gazette has a limited circulation. But we do not accept that the Savali has a limited circulation. As mentioned earlier, the Savali has a nationwide circulation. We would also note that if a special issue of the Gazette could he printed to publish the result of the poll on 13 April 2006, we see no reason why a special issue of the Savali could not have been printed and published on 13 April 2006. However, these would be administrative matters. What we are concerned with here is a question of statutory interpretation and we are not satisfied that the present situation is one where regard should be had to the particular consequences of one interpretation as opposed to the other where there are two competing interpretations open on the wording of a statutory provision and the Court has to choose between the two.

From the above discussion we have come to the conclusion that the expression 'publicly notify' in the definition of 'public notice' in s.2(1) of the Act has a corresponding meaning to the meaning of 'public notice' as provided in all of the three paragraphs (a), (b), and (c) and is not restricted to paragraph (c) alone. It follows that the public notice process is not completed until a public notice has been published in all three modes of publication provided in the definition of public notice. As the result of the poll was published in the Gazette on 13 April 2006 and also broadcasted by two radio stations on the same day but was not published in the Savali until 20 April 2006, it follows that the public notice process was not complete until 20 April 2006. In terms of s.106(1) of the Act, the seven days period provided for presenting an election petition would therefore start to run in the present case on 21 April 2006 and ended on 27 April 2006. As the election petition by the petitioner in these proceedings was filed on 24 April 2006, it was within time. Consequently, all the other election petitions which were filed prior to 27 April 2006 were filed within time. This should dispose of the strike out application.

It is therefore not necessary for us to deal with the submission by counsel for the first respondent that under s.23 (a) of the Acts Interpretation Act 1974, it is not necessary to exclude holidays from the calculation of the seven days period provided for presenting an election petition. Suffice to say that our present inclination is to agree with the submission by counsel.

One other matter

Counsel for the second respondent, the Electoral Commissioner, raised the important issue of whether the Court has jurisdiction to entertain an application for extension of time where an election petition has been filed outside of the prescribed seven days time period for filing a petition. It is not necessary for us now to consider that issue. We would leave it for determination in another case.

Conclusions

For all the foregoing reasons the conclusions we have reached, and have already been delivered on 11 May 2006, are as follows:

(a) The period of 7 days provided in s.106 (1) of the Electoral Act 1963 for presenting an election petition started to run in this case from 21 April 2006 and ended on 27 April 2006.

(b) The election petition which was filed by the petitioner Ulu Vaomalo Ulu Kini on 24 April 2006 was therefore filed within time.

(c) The strike out motion is therefore denied.

The other preliminary applications to strike out the petitions in the other election petition matters that are currently before the Court are also denied as it appears to the Court that the petitions in those other matters were filed prior to 27 April 2006.

Honourable Chief Justice Sapolu
Honourable Justice Vaai

Solicitors

Latu Ey Lawyers for the Petitioner
Toa Law for the First Respondent
Attorney General’s Office, Apia for the Second Respondent