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Jensen v Tamapua [2025] WSSC 105 (7 November 2025)

IN THE SUPREME COURT OF SAMOA
Jensen v Tamapua [2025] WSSC 105 (7 November 2025)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

IN THE MATTER:

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

BETWEEN:

TAMALETA TAIMANG JENSEN, candidate for the Constituency of Vaimauga 2

Petitioner

A N D:

LENATAI VICTOR FAAFOI TAMAPUA, elected Candidate for the Constituency of Vaimauga 2

Respondent

Coram: Senior Justice Vui Clarence Nelson
Justice Fepuleai Ameperosa Roma

Counsel: F. Lagaaia for the petitioner
L. Su’a-Mailo for the respondent

Hearing: 04 November 2025
Decision: 07 November 2025

DECISION OF THE COURT
(Application to withdraw Petition and Counter-petition)

Background

1. The Petitioner and Respondent were candidates for the electoral constituency of Vaimauga 2 in the General Election held on 29 August 2025. They polled as follows:
   • Respondent 1341 votes
   • Petitioner 886 votes
   • (Third candidate) 87 votes
   • The Respondent was duly declared to be elected.
2. By Election Petition dated 18 September 2025, the Petitioner challenged the validity of the Respondents election alleging that the Respondent engaged in fourteen (14) instances of corrupt electoral practices comprising eight (8) counts of bribery, two (2) of treating and four (4) of undue influence, in the two months prior to election day.
3. By Counter-petition dated 29 September 2025, the Respondent alleged the Petitioner had also engaged in corrupt electoral practices specifically twenty-eight (28) instances consisting of twenty-four (24) counts of bribery and four (4) counts of treating, in the three months preceding the Election.
4. After several callings for mention, including hearing argument on the preliminary issue of whether the Petition should be struck out for a twenty-four (24) hour delay in advertisement of the Petition as required by law, the proceedings were set down for trial. Extensive and copious documents were filed by both sides on these matters.
5. In respect of the preliminary issue, we concluded that the Petition should proceed to hearing for the reasons that:
   • (a) the court has a discretion to extend time for compliance under Rule 18 of the Election Petition Rules 1964 and had exercised that discretion in favour of extending time in previous electoral petitions following the 2021 general elections and most recently in Magele Sekati Fiaui v Vaaelua Senetenari Samau 2025-01235 SC/CV/UP (16 October 2025); and Papalii Taeu Masepa’u v Namulauulu Papalii Leota Sami 2025-01236 SC/CV/UP (16 October 2025). Rule 18 provides:
     • “Advertisement of Petition
     • 18. Within seven days after filing of the petition the petitioner shall at his own expense cause the petition to be published at least once in a newspaper published in Western Samoa, unless publication is excused by the Court or a Judge.”
   • (b) the delay in publication sought to be excused by way of an extension was only twenty-four (24) hours; the petitioner’s motion to extend time was filed on 26 September 2025 being the last of the 7 days required for publication; the petition was published on 27 September 2025 being a day after the due date and well before we heard the Petitioner’s application to extend time and Respondent’s application to strike out; and we are satisfied by the explanation and reason for the delay in publication;
   • (c) Section 118(a) of the Electoral Act 2019 (“EA”) requires that on the trial of an election petition, “the Court shall be guided by the substantial merits and justice of the case without regard to legal forms or technicalities.”; and
   • (d) There was no prejudice to the Respondent in granting the extension.
6. On 23 October 2025 the appointed day for trial, the parties unexpectedly advised their wish to withdraw both the Petition and Counter-petition. On the basis that “agreement has been reached by both parties to settle their differences” and on the further grounds:
   • “1. That they are both chiefs and leaders of the electoral constituency Vaimauga 2, and that after discussions between the parties and their respective villages and in recognizing the voice of the matai from their electoral constituency, they both desire and share the common objective of continuing to promote and maintain peace and harmony in the electoral constituency.
   • 2. That continuing the Election Proceedings is contrary to their common desire and objective as specified in clause 1.”

Applicable law

7. Withdrawal of an election petition is governed by section 131 of the Electoral Act which relevantly provides:
   • “131. Withdrawal of petition:
   • (1) A petitioner shall not withdraw an election petition without the leave of the Supreme Court upon special application to be made in the prescribed manner.
   • (2) No such application shall be made until the prescribed notice of the intention to make it has been given in the constituency to which the petition relates.
   • (3) Where there is more than one petitioner, an application to withdraw the petition shall not be made except with the consent of all the petitioners.
   • (4) If a petition is withdrawn, the petitioner is to pay the costs of each respondent.”
8. The process to be followed is contained in rules 42 to 45 of the Election Petition Rules 1964 which relevantly provides:
   • “Withdrawal of Petition
   • 42. The notice to be given under (the EA) of the intention of a petitioner to make an application to the Court for leave to withdraw the petition shall set out the ground of the proposed application and may be in form 6 or to the like effect, and shall at least one week before the application is heard by the Court be served on every respondent and published at least once in a newspaper published in Western Samoa.
   • 43. The time and place for hearing the application shall be fixed by the Court or a Judge; and notice of the time and place so appointed shall be given to every respondent, and to every person who has given notice to the Registrar of the Court of an intention to apply to be substituted as a petitioner, and otherwise in such manner as the Court or Judge directs.
   • 44. The application to the Court for leave to withdraw the petition shall be made by motion, of which notice may be in form 7 or to the like effect, and no further notice of the motion shall be required other than the notices prescribed by rules 42 and 43 hereof.
   • 45. (1) Any person who might in the first instance have presented the petition may, within seven days after the notice prescribed by rule 42 hereof is published by the petitioner, give notice in writing to the Registrar of the Court of his intention to apply, at the hearing of the application for leave to withdraw the petition, to be substituted for the petitioner.
   • (2) Any such person as aforesaid may, at the hearing, apply to be substituted for the petitioner, notwithstanding that he may not have given the notice referred to in clause (1) of this rule.”
9. It is common ground the relevant Notice of Intention to Withdraw has been published and no substitute petitioner in respect of the Petition or the Counter-petition has appeared or sought to be heard.

Discussion

10. It is not clear how the parties “have agreed to settle their differences” or how the parties have as a matter of fact “settled their differences” given that both the Petition and the Counter-petition involves allegations of committing a ‘corrupt practice’. Those found guilty of a ‘corrupt practice’ are “liable on conviction to imprisonment” for a minimum term of no less than two (2) years in duration pursuant to section 103(1) of the EA which reads:
    • “103 Penalty for corrupt practice:
    • A person who commits the offence of a corrupt practice is liable on conviction to imprisonment for a term not less than 2 years and not exceeding 4 years or to a fine not less than 20 penalty units and not exceeding 50 penalty units, or both.”
11. Prescribing of a mandatory minimum imprisonment term is a rare thing in the Samoan criminal law. Indicating that the Parliament of this country regards the matter as one requiring special attention and consideration.
12. We can only assume from what is before us that what occurred is each party has forgiven each other’s ‘corrupt practices,’ fourteen (14) on the part of the Petitioner and twenty eight (28) on the part of the Respondent, and in the spirit of “maintaining and promoting peace and harmony in the electoral constituency”, the parties and the relevant villages are desirous of therefore terminating these proceedings.
13. That may be well and good as between the parties and their respective villages. But what this kind of practice, which is becoming more and more prevalent, dangerously overlooks is the greater public interest in discouraging and preventing criminal behaviour during elections and how such conduct can influence and taint the electoral process.
14. It is not in our respectful view solely a private law matter as between the parties and their respective villages, it is also an issue of public law and how this affects the national system by which we elect persons to Parliament, the highest law-making body of the land. As noted in Afzal v Khan & others a judgment of the United Kingdom Kings Bench Division Election Court dated 24 February 2023 (unreported):
    • “This case only confirms what is obvious from the statutory framework that an Election Petition is not a purely private law action but rather an inquiry into the conduct of an election in the public interest. This was again confirmed in the more recent case of Greene v Forbes [2020] EWHC 676 (QB) where Robin Knowles J (sitting in the Divisional Court) said at paragraph 55:
      • ‘The wider questions are moreover of general public importance. Take a case where cogent evidence had been heard of corrupt practices at the point when Parliament was dissolved and the respondent wished that evidence to be taken no further (and so to escape the provisions on the consequences of a finding by the Election Court of corrupt or illegal practice). Or take a case where a respondent was close to the point of being fully vindicated in respect of allegations of corrupt practices and the petitioner wished to avoid that outcome. It is important that the question whether and how a petition could proceed is left for determination on facts such as those.’”
15. This foreshadows what actually occurred in Chief Electoral Officer v Samoa All Peoples Party Inc [1996] WSSC 24 where the Respondent resigned his Parliamentary seat during the hearing of an election petition alleging corrupt practices in an effort to avoid an adverse finding against him. There the Electoral Court allowed the matter to nevertheless proceed to final judgment. The background and facts are clear from the opening paragraphs of the judgment of the learned late Chief Justice Patu Sapolu (passages have been auto-corrected):
    • “In order to have a proper understanding of the issues in these proceedings I will refer first to the background circumstances. After the general election held on 26 April 1996, the candidate Toalepaialii Siueva Pose III Salesa (hereinafter referred to as "Toalepaialii") was declared elected as Member of Parliament, for the territorial constituency of Aana Alofi No. 3. The candidate Afamasaga Fatu Vaili (hereinafter referred to as "Afamasaga") who polled the second highest number of votes for the same territorial constituency then filed an election petition dated 14 May 1996 alleging a number of instances of electoral corrupt practice against Toalepaialii. In his election petition Afamasaga sought orders to have the election declared void and to have him declared to be duly elected.
    • This election petition was set down as the First petition to be heard by this Court in a series of election petitions which were filed in relation to the last general election. The hearing commenced on 30 May and continued on 31 May. There was then a few days break because of the Independence Day Celebrations. At that time it was clear in the court from discussions in Chambers with both counsels for Toalepaialii and Afamasaga that there was a real desire on the part of Toalepaialii to settle the petition out of Court. In fact the question of resignation from Parliament on the part of Toalepaialii was also mentioned at that stage as part for the out of Court settlement of Afamasaga's petition.
    • When the hearing of Afamasaga's petition resumed on 6 June, counsel for Toalepaialii informed the Court that Toalepaialii had already resigned his seat in Parliament. It is now clear that resignation was handed to the Speaker of the Legislative Assembly on 5 June. That resignation did not stop Afamasaga from continuing with his petition against Toalepaialii.”
16. Later in his judgment, Sapolu stated:
    • “As already pointed out, before the Court was informed by counsel for Toalepaialii on 6 June that Toalepaialii had resigned his parliamentary seat, which is now confirmed to have taken place on 5 June, the desire of Toalepaialii for an out of Court settlement of the election petition was already clear to the Court and the question of Toalepaialii resigning his parliamentary seat as part of that settlement had already been mentioned. On 5 June Taalepaialii resigned his seat. On 6 June the hearing resumed and on 7 June at the conclusion of the evidence for Afamasaga and after the Court had ruled there was a prima facie case in respect of a number of allegations of corrupt practice against Toalepaialii, counsel for Toalepaialii informed the Court that he was not calling any evidence to rebut the allegations of corruption of which the Court had found a prima facie case but would call only evidence in support of the counter-allegations of corrupt practice against Afamasaga.
    • Given these circumstances, the clear and irresistible inference is that when Toalepaialii resigned his parliamentary seat he knew or, had reasonably foreseen that, some of the allegations in the election petition against him would be established and that the Court would so find and declare his election void. I see no other realistic explanation for Toalepaialii's action in resigning his parliamentary seat on 5 June so soon after he was elected in a matter of weeks on 26 April. He foresaw and anticipated what the judgment of the Court was going to be. In that, regard, I must say Toalepaialii was dead right. But with respect to Toalepaialii, any expectation he might have had that Afamasaga would thereby withdraw or discontinue his petition thus avoiding any findings of corrupt practice so that Toalepaialii could re-run again as a candidate in the by-election which would follow did not eventuate.”
17. These serve to illustrate how the court must constantly be on guard against attempts by parties to election petitions to pervert/subvert the law and thereby the electoral process in order to fulfill their own private agendas. Such would not in our respectful view be in the public interest or engender confidence in an electoral system designed to elect to Parliament honest, law-abiding, corruption-free members of Parliament.
18. The court must also be vigilant that counter-petitions are not weaponized against petitioners in order to force a negotiated settlement of an election petition. There is no evidence of that occurring here but there is a fine line between withdrawals reflecting bona-fide settlements in the interests of “promoting peace and harmony” between villages and within a constituency and withdrawals in order to avoid the consequences of a finding of ‘corrupt practice’ in the 5 years immediately preceding an election which pursuant to section 8(2)(d)(ii) of the EA would disqualify a party from participating in a future election:
    • “8. Qualification to run as a candidate in elections:
    • (2) A person is disqualified from contesting as a candidate for elections if that person
      • (d) has been –
        • (ii) convicted or found guilty in Samoa of a corrupt practice and whose name has not been removed from the Corrupt Practices List under section 139”
19. Parliamentary concern about these aspects is reflected in section 133 of the EA which requires the court to report on withdrawals to the Speaker of the Legislative Assembly in the following terms:
    • “133. Report on withdrawal:
    • In a case of the withdrawal of an election petition the Supreme Court shall make a report to the Speaker stating whether in its opinion the withdrawal of the petition was the result of a corrupt arrangement or in consideration of the withdrawal of any other election petition and, if so, the circumstances attending the withdrawal.”

Decision

1. We have given careful consideration to these issues, in particular how the greater public interest of citizens of this country and the integrity of the electoral process militates against the granting of applications for withdrawal.
2. However, we also note that similar applications following the 2021 General Election as well as the present General Election have been granted by the court.
3. In the interests of certainty and consistency of approach, we do not propose to chart a different course at this juncture.
4. But that is not to say that in future, the approach of the Electoral Court to withdrawal applications will remain the same. Suffice to state that as our country continues to refine and develop its electoral system of Parliamentary democracy, applications of this nature will continue to be carefully scrutinised and evaluated. And if a change is required, the court will not be hesitant in its resolve.
5. The applications to withdraw the Petition and Counter-petition are granted, the security deposits paid by both parties in the amount of $2,000.00 each are forfeited to cover incurred court costs.
   

SENIOR JUSTICE VUI CLARENCE NELSON
JUSTICE FEPULEAI AMEPEROSA ROMA