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Fiaui v Samau [2025] WSSC 98 (16 October 2025)

IN THE SUPREME COURT OF SAMOA
Fiaui v Samau; Masepa’u v Sami [2025] WSSC 98 (16 October 2025)

THE SUPREME COURT OF SAMOA
HELD AT MULINUU

In the matter of the Electoral Act 2019 and in the matter of (i) Application to Extend Time for Publication of electoral petitions; (ii) Application to Nullify;(iii) Application to Substitute Hearing Date.

2025- 01235/SC/CV/UP

BETWEEN:

MAGELE SEKATI FIAUI, Candidate for the Constituency of Faasalelega 2.

Petitioner

AND:

VAAELUA SENETENARI SAMAU, Candidate for the Constituency of Faasaleleaga 2.

Respondent

AND

2025-01236/SC/CV/UP

BETWEEN:

PAPALII LI’O TAEU MASEPA’U, Candidate for the Constituency of Faasalelega 3.

Petitioner

AND:

NAMULAUULU PAPALII SAMI, Candidate for the Constituency of Faasaleleaga 3.

Respondent

Counsels: L Su’a-Mailo, L Sio-Ofo’ia for the Petitioners

P Chang, T Toailoa for the Respondents
Oral Ruling: 8 October 2025
Written: 16 October 2025

RULINGS OF THE COURT

1. This written ruling provides the Court’s reasons for its oral rulings on three Applications or Motions delivered on 8 October 2025:
   • (i) Application to Nullify
   • (ii) Application to extend time to publish
   • (iii) Application to Substitute Hearing (Faasaleleaga 2)
2. The applications arise from petitions filed in the Electoral Constituencies of Faasaleleaga 2 and 3.
3. The application to nullify is based on the Petitioners having published their petitions out of time. If we accept the application to extend, the application to nullify immediately fails. If we dismiss the application to extend, we then consider whether the application to nullify succeeds.

(i) Application to Nullify Petition

4. The Respondents seek to nullify the petitions on the basis that they were published outside the seven (7) day period prescribed by Rule 18 of the Election Petition Rules 1964. Grounds include:
   • Publication within 7 days is mandatory requirement;
   • A one-day delay in publication is a clear breach;
   • No leave was sought prior to publication;
   • The Petitioners had full notice via Practice Direction issued on 4 September 2025;
   • Allowing the petition undermines the integrity of the process;
   • The breach is a serious procedural defect rendering the petition fatally flawed.

(ii) Application to Extend Time

5. The Petitioners filed their petitions on 19 September 2025. The Petitioners filed an application for extension of time to publish on 26 September 2025, the due date for publication. However, the Petitioners had their petitions published in the Samoa Observer on 27 September 2025, one day outside the seven-day period under Rule 18.
6. The Petitioners application to extend time are upon the following grounds:
   • The Court has jurisdiction under Rule 18 to dispose of the requirement and/or extend time for compliance.
   • Publication is a procedural requirement and can be waived.
   • The requirement to publish within the time frame is not mandatory.
   • Section 118 of the Electoral Act 2019 provides that the Court shall be guided by the substantial merit and justice of the case without regard to legal forms or technicalities.
   • The extension sought is only one day.
   • The petitions were published in the Samoa Observer.
   • There is no prejudice to the respondents.
7. Attached in support is the Affidavit of Mataniufeagaimaleata Vaifale dated 7 October 2025 explaining the delay due to miscommunication between the deponent and the Samoa Observer on 24 September 2025.

The Election Petition Rules 1964

8. Rule 18 of the Election Petition Rules 1964 says:
   • "Within 7 days after filing the petition the petitioner shall at its own expense cause the petition to be published at least once in a newspaper published in Samoa, unless publication is excused by the law or a Judge."

Substantive vs Procedural Law

9. The Election Petition Rules 1964 operate as a procedural framework designed to give practical effect to the substantive rights and obligations established under the Electoral Act 2019. While the Act defines the grounds upon which electoral outcomes may be challenged, the Rules prescribe the manner in which such challenges must be brought—ensuring consistency, transparency, and fairness in the administration of electoral justice. The Rules do not create new causes of action but serve to regulate the process by which the Court receives, manages, and adjudicates petitions. In this way, they safeguard both the integrity of the electoral process and the public’s confidence in its resolution.^[1]
10. The Rules guide the Court’s exercise of discretion, especially in areas like:
    • Excusing noncompliance (e.g. late publication under Rule 18)
    • Managing timelines and service (Rule 19)
    • Time and Place of Trial (Rule 34)

Can a petition be nullified for non-publication within 7 days under Rule 18?

11. Courts tend to be strict with statutory timelines in electoral matters due to their public importance. A petition may be vulnerable to nullification if it is not published within the required seven-day period following filing where:
    • The petition was not published at all.
    • The delay was significant and unexplained.
    • The publication was made in a non-qualifying medium (e.g., online only).
    • The respondent can show prejudice or procedural unfairness.
    • The integrity of the electoral process is compromised.
12. The onus of proving that prejudice exists and that the integrity of the electoral process has been compromised due to the delay rests with the respondents (applicants) and the standard of proof is the balance of probabilities.
13. The Court may also view such applications where it appears to be a tactical maneuver to delay proceedings or avoid scrutiny as undermining the integrity of the petition process to be vulnerable to nullification.

Does the Court have discretion under Rule 18 to extend publication?

14. The appropriate application is to excuse the late publication of the petitions for the petitions have been published one day out of time.
15. The requirement in Rule 18 for publication of electoral petitions reinforce the principle of open justice, ensuring that electoral disputes are not concealed from public scrutiny. It complements service requirements by alerting affected parties and the public to the existence of the petition.
16. Rule 18 provides for the following procedural requirements:
    • Timeline – Publication must occur within seven (7) days of filing the petition.
    • Responsibility – Petitioner bears the cost and duty of publication.
    • Medium- The petition must be published in a newspaper circulated in Samoa, ensuring public awareness.
    • Judicial discretion- A Judge may excuse the requirement, likely in cases of urgency, sensitivity, or where alternative notice suffices.
17. The phrase “unless publication is excused ....” grants the Court discretion. While Rule 18 doesn’t explicitly refer to an “extension,” the power to excuse publication logically includes the ability to waive or modify its timing, depending on the circumstances.

Discretion under Section 118

18. The Court has discretion under section 118 of the Electoral Act 2019 to prioritize the substantial merits and justice of the case over legal forms and technicalities. This provision affirms the Court’s broad discretion to excuse procedural noncompliance where no prejudice arises, and the integrity of the process remains intact.

Discussions

19. While Rule 18 provides a mechanism for excusing non-compliance with the publication requirement, the discretion is clearly not absolute The Court is likely to decline to exercise its discretion in certain situations where excusal would undermine core principles of electoral justice.
20. The Court has consistently emphasized that any departure from the publication requirement must be justified in light of the overarching objectives of electoral justice—particularly transparency, fairness, and the public’s right to be informed. In the cases of Su’a Tanielu v Masinalupe Makesi Masinalupe^[2] and Vaai v Lene^[3] the Court did not excuse publication instead extend time of publication or excuse late publication.
21. While the Court reminds parties of the importance of strict compliance with procedural rules, it is satisfied that the breach in this instance does not warrant nullification of the petitions. Rather than treating procedural irregularities as fatal, the Court considers whether the breach materially undermines the integrity of the process or causes prejudice.
22. In these cases, the publications occurred one day outside the timeframe stipulated under Rule 18 while it constitutes a technical breach, it does not, in itself, materially undermine the fairness or transparency of the proceedings. The Court is satisfied that:
    • The delay in publication was minimal and not occasioned by any deliberate non-compliance;
    • The Respondents have been properly served (Rule 19);
    • The publication was effected in a newspaper published in Samoa; and the petition remains publicly accessible;
    • There is no evidence of prejudice to the substantive rights of the Respondents or the public interest from the late publication;
    • The Petitioners have acknowledged the delay and provided an explanation for the late publication.^[4]
    • The integrity of the electoral process is not compromised.
23. Moreover, the Court has previously adopted a consistent and principled approach to electoral petition matters, allowing minor delays in publication where the interests of justice so require. ^[5]

Conclusion

(i) Application to Extend

24. Having regard to the circumstances and guided by the principle that real justice is to be observed under section 118 and pursuant to the discretion afforded under Rule 18, the Court excuses the late and unauthorized publication, and deem the Petitioners for the electoral constituencies of Faasaleleaga 2 and 3 to have substantially complied with the Rule.
25. Future petitioners are reminded that failure to comply with Rule 18 may result in adverse procedural consequences, including refusal to excuse noncompliance where prejudice arises or where the breach undermines public notice and open justice.
26. The Court reiterates that publication of Petitions must be effected through a newspaper. Publication via online platforms does not satisfy the statutory requirements.

(ii) Application to Nullify

27. While the Court underscores the importance of strict adherence to procedural requirements, it is satisfied that the breach in this instance does not justify nullifying the petition. The delay in publication was promptly addressed, caused no prejudice to the respondents, and did not mislead the public. In these circumstances, the Court is confident that the objectives of openness and fairness remain intact, and that allowing the petition to proceed best serves the interests of real justice. The application to nullify is dismissed.

(iii) Application to Substitute Hearing Magele Sekati Fiaui v Vaaelua Senetenari Samau

28. The Petitioner seeks to substitute the hearing date of the matter between Magele Sekati Fiaui v Vaaelua Senetenari Samau scheduled for the week commencing 3 November 2025, and to bring it forward to the week commencing 14 October 2025. It is proposed that the petition of Peseta Vaifou Tevagaena v Vui Iiga Sione Iiga, presently set for hearing in the week commencing 14 October 2025, be rescheduled to accommodate this change.
29. The request is to accommodate two of their witnesses who are set to travel overseas on the RSE Scheme before the assigned hearing date. It is argued that the evidence of the two witnesses is relevant to the Counter Petition. We do note that there are no direct allegations against the two witnesses in the Counter Petition. It appears their evidence is to corroborate the version by the Petitioner as to why money was given as per the specific allegation pleaded. Other witnesses have provided affidavits for the same events.
30. The Court has considered the request. The schedule for the hearing of election petitions was determined following extensive consultations between the presiding judges and counsel representing the various parties. The timetable reflects not only availability but also the complexity and anticipated duration of each matter.
31. The petitions which have been scheduled for the week commencing 14 October 2025 have been allocated that timeframe due to substantive issues that may require additional time for hearing and deliberation. Reordering the schedule at this stage would disrupt the coordinated efforts already undertaken by all involved.
32. Accordingly, the request to bring forward and substitute the hearing date is declined. The schedule as currently set shall remain.
    

FAASALELEAGA 2:
JUSTICE LEUTELE M TUATAGALOA
JUSTICE LOAU D KERSLAKE

FAASALELEAGA 3:
JUSTICE LEUTELE M TUATAGALOA
JUSTICE FEPULEA’I A ROMA

^[1] Electoral Act 2019, section 113 – Rules are made for the purposes of Part 14 (Election Petition)
^[2] Su’a Tanielu v Masinalupe Makesi Masinalupe [2021] (15 August 2021) was to do with excusing publication and not with the extension of time or excusing publication outside of the time frame.
^[3] Vaai v Lene (1996) WSSC 23; Misc 20449 (31 May 1996); WSSC 12 (11 July 1996) where the issue of late publication of petition by one day late was not ruled on by the Court but instead proceeded to the hearing of the petition. It is sufficed to note that the Court did not dismiss or nullify the petition for the late publication of one day.
^[4] Affidavit of of Mataniufeagaimaleata Vaifale, dated 7 October 2025
^[5] In 2021 election petitions, the Supreme Court granted extensions of time for publication for 13 petitions and 14 counter petitions. These were given as oral directions.