PART X

ELECTION PETITIONS

 

                104.                Method of questioning election  -  (1)  No election and no declaration of result or report to the Head of State shall be questioned except by petition complaining of an unlawful election or unlawful declaration or report (in this Act referred to as an election petition) presented in accordance with this Part of this Act.   (2)  A petition complaining of no declaration or report shall be deemed to be an election petition, and the Supreme Court may make such order thereon as the Court thinks expedient for compelling a declaration or report to be made or may allow the petition to be heard as provided with respect to ordinary election petitions.

 

                105.                Election petitions  -  (1)  An election petition may be presented to the Supreme Court by one or more of the following persons:

 

(a)                 A person claiming to have had a right to be elected or returned at the election;

 

(b)                 A person alleging himself to have been a candidate at the election:

 

PROVIDED HOWEVER THAT, no petition can be filed by a person who polled less than 50% of the total number of votes polled by a person elected or returned at the election.

 

                (2)   The member whose election or result is complained of shall be the respondent to the petition, and if the petition complains of the conduct of any official the Chief Electoral Officer or Registrar, as the case may be, shall also be a respondent.  (3)   The petion shall be in such form and state such matters as are prescribed by rules of Court, and be signed by the petitioner of all the petitioners if more than one.   (4)  The petitioner shall present his petition by filing it in the Office of the Supreme Court at Apia, and shall serve a copy of it on each respondent thereto.   (5)  The petition shall be served personally, or in such other manner as may be prescribed by rules of Court.

 

                106.        Time for presentation of election petition  -  (1)  Subject to the provisions of this section, an election petition shall be presented within 7 days after the day on which the Chief Electoral Officer has publicly notified the result of the poll.  (2)   If the petition questions the election or result upon an allegation of 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.  (3)   For the purposes of this section an allegation that an election is avoided under section 113 of this Act shall be deemed to be an allegation of corrupt practices, notwithstanding that the offences alleged are or include offences other than corrupt practices.

 

                107.                Security for costs  -  (1)  At the time of presenting an election petition or within 3 days after the expiration of the time limited for the presentation of the petition the petitioner shall give security to the satisfaction of the Registrar of the Court for all costs which may become payable by him to any witness summoned on his behalf or to any respondent.   (2)  The security shall be an amount of $100 and shall be given by recognisance to the Government entered into by any number of sureties not exceeding 5 or by a deposit of money, or partly in one way and partly in the other.   (3)  If no security is given as required by this section no further proceedings shall be taken on the petition.

 

108.            More than one petition relating to same election  -  Where more petitions than one are presented relating to the same election or result, all those petitions shall be dealt with as one petition.

 

109.            Rules of Court  -  (1)  Rules of Court may be made in the manner prescribed by the Judicature Ordinance 1961 for the purposes of this Part of this Act.   (2)  All rules made under this section shall be laid before the Legislative Assembly within 28 days after the date of the making thereof, if the Assembly is then in session, and if not, shall be laid before the Assembly within 28 days after the date of the commencement of the next ensuing session.

 

TRIAL OF ELECTION PETITION

 

                110.        Court and place of trial  -  Every election petition shall be tried by the Supreme Court.

 

                111.        Trial of petition  -  (1)   An election petition shall be tried in open Court without assessors, and notice of the time and place of trial shall be given not less than 7 days before the day of trial.  (2)   The Court may in its discretion adjourn the trial from time to time, but the trial shall, so far as is practicable consistently with the interests of justice in respect of the trial, be continued from day to day on every lawful day until its conclusion.   (3)   The trial of an election petition shall be proceeded with notwithstanding that the respondent may have become disqualified as a member of Parliament, or that Parliament may have been prorogued.     (4)  Subject to this Act, the  Court shall have jurisdiction to inquire into and adjudicate on any matter relating to the petition in such manner as it thinks fit, and in particular may at any time during the trial direct a recount or scrutiny of the votes given at the election, and shall disallow the vote of every person provide to have been guilty of any corrupt practice, or whose name has been wrongly placed or retained on the roll:

 

PROVIDED THAT, the vote of any person who on polling day was entitled to be registered as an elector or voter of the constituency or individual voters in question shall not be disallowed on the ground that his name has been wrongly placed or retained on any roll.

 

                (5)  On the trial of an election petition, unless the Court otherwise directs, any charge of a corrupt or illegal practice may be gone into, and evidence in relation thereto received before any proof has been given that any candidate was aware of or consenting to the corrupt or illegal practice.   (6)  On the trial of an election petition complaining of an unlawful election declaration or report and claiming the seat for some person, the respondent may give evidence to prove that that person was not duly elected, in the same manner as if he had presented a petition against the election of that person.   (7)  In allocating a time for hearing an electoral petition the Court shall give priority to that petition over all matters before the Court which are not electoral petitions.

 

                112.                Avoidance of election of candidate guilty of corrupt practice  -  Where a candidate who has been elected at any election is proved at the trial of an election petition to have been guilty of any corrupt practice at the election his election shall be void.

 

                113.                Avoidance of election for general corruption  -  (1)  Where it is reported by the Supreme Court on the trial of an election petition that corrupt or illegal practices committed in relation to the election for the purpose of promoting or procuring the election of any candidate thereat have so extensively prevailed that they may be reasonably supposed to have affected the result, his election, if he has been elected, shall be void.  (2)  Except under this section, an election shall not be liable to be avoided by reason of the general prevalence of corrupt or illegal practices.

 

                113A.     Rolls to be used in by-election when original election avoided  -  Where as a result the avoidance of an election pursuant to a decision of the Supreme Court in respect of an Election Petition it is necessary for a by-election to be held, and notwithstanding any other provision of this Act, the main roll and supplementary roll which were used at the election which has been avoided shall be used at the by-election without any amendment or addition.

 

PROVIDED HOWEVER THAT, the Registrar shall amend the Rolls used at the election which has been avoided by removing therefrom the names of any persons who have become disqualified for registration as electors or voters pursuant to section 16B of this Act after the date of the election which has been avoided.

 

                114.        Votes to be struck off for corrupt practices  -  Where, on the trial of an election petition claiming the seat for any person, a candidate is reported by the Supreme Court to have been proved guilty of bribery, treating, or undue influence in respect of any person who voted at the election, there shall, on a scrutiny be struck off from the number of votes appearing to have been received by the candidate one vote for every person who voted at the election and is reported to have been proved to have been so bribed, treated, or unduly influenced.

 

                115.        Real justice to be observed -  (1)  On the trial of any election petition:

 

(a)                 The Court shall be guided by the substantial merits and justice of the case without regard to legal forms or technicalities;

 

(b)                 The Court may admit such evidence as in its opinion may assist it to deal effectively with the case, notwithstanding that the evidence may not otherwise be admissible in the Supreme Court.

 

116.                Irregularities not to invalidate election  -  No election shall be declared invalid by reason on:

 

(a)                 Any failure to comply with the times prescribed for doing any act; or

 

(b)                 Any omission or irregularity in filling up any form prescribed by this Act or by regulations made thereunder; or

 

(c)                 Any want or defect in the appointment of any official or scrutineer; or

 

(d)                 Any absence of, or mistake or omission or breach of duty by, any official, whether before, during, or after the polling,

 

If the Court is satisfied that the election was so conducted as to be substantially in compliance with the law as to elections, and that the failure omission, irregularity, want, defect, absence, mistake, or breach did not affect the result of the election.

 

                117.                Decisions of Court to be final  -  All decisions of the Supreme Court under this Part of this Act shall be final and conclusive and without appeal, and shall not be questioned in any way.

 

                118.                Certificate of Court as to result of election  -  At the conclusion of the trial of an election petition the Court shall determine whether the member whose election or return is complained of, or any and what other person, was duly elected or returned, or whether the election was void, and shall forthwith certify in writing the determination to the Speaker and the determination so certified shall be final to all intents and purposes.

 

                119.                Report of Court as to corrupt or illegal practice  -  (1)  Where in an election petition any charge is made of any corrupt or illegal practice having been committed at the election, the Court shall, in addition to giving a certificate and at the same time, report in writing to the Speaker as follows:

 

(a)                 Whether any corrupt or illegal practice has or has not been proved to have been committed by or with the knowledge and consent of any candidate at the election, and the nature of the corrupt or illegal practice.

 

(b)                 Whether any of the candidates has been guilty by his agents of any corrupt or illegal practice in reference to the election;

 

(c)                 The names of all persons provide at the trial to have been guilty of any corrupt or illegal practice and whether they have received certificate of indemnity;

 

(d)                 Whether there is reason to believe that corrupt or illegal practices have extensively prevailed at the election.

 

(2)   In the case of someone who is not a party to the petition nor a candidate on behalf of whom the seat is claimed by the petition, the Court, before reporting him to have been proved guilty of any corrupt or illegal practice, shall first cause notice to be given to him, and if he appears in pursuance of the notice, shall give him an opportunity of being heard and of calling evidence in his defence to show why he should not be s reported.   (3)  For the purposes of this Act, if it is reported by the Court that a corrupt or illegal practice was committed with the knowledge and consent of a candidate he shall be treated as having been reported to have been proved guilty of that corrupt or illegal practice.   (4)   If a candidate is reported to have been guilty by his agents of treating undue influence, or any illegal practice, and the Court further reports:

 

(a)                 That no corrupt or illegal practice was committed at the election by the candidate with his knowledge or consent, and that the offences mentioned in the report were committed without the sanction or connivance of the candidate; and

 

(b)                 That all reasonable means for preventing the commission of corrupt and illegal practices at the election were taken by and on behalf of the candidate; and

 

(c)                 That the offences mentioned in the report were of a trivial, unimportant, and limited character; and

 

(d)                 That in all other respects the election was free from any corrupt or illegal practice on the part of the candidate and of his agents,-

 

The candidate shall not be treated for the purposes of this Act as having been proved guilty of the offences mentioned in the report.

 

                120.                Special report  -  At the same time as it gives it certificate at the conclusion of the trial of an election petition, the Court may make a special report to the Speaker as to any matters arising in the course of the trial an account of which, in the judgment of the Court, ought to be submitted to the Legislative Assembly.

 

                121.                Signature and effect of certificate and report  -  (1)   The and any report of the Court at the conclusion of the trial of an election petition shall be signed by the Presiding Judge.  (2)  On being informed by the Speaker of the certificate and any report of the Court, the Legislative Assembly shall order the same to be entered in the Journals of the Assembly, and shall give the necessary directions for confirming or altering the result or for issuing a public notice for a new election, or for carrying out the determination, as the circumstances may require.   (3)   Where the Court makes a special report the Legislative Assembly may make such order in respect of that report as it thinks proper.

 

                122.                Summons and examination of witnesses  -  (1)   Witnesses may be summoned and sworn on the trial of an election petition in the same manner, as nearly as circumstances admit, as in the trial of an ordinary action.   (2)  The Supreme Court may be order require any person who appears to the Court to have been concerned in the election to attend as a witness, and every person who refuses to obey any such order shall be guilty of contempt of Court.   (3)  The Court may examine any person so required t attend or any person in Court, although he is not called or examined by any party to the petition.  (4)  After the examination of a witness as aforesaid by the Court he may be cross-examined by or on behalf of the petitioner and each respondent, or any of them.

 

                123.                Certificate of indemnity to witness  -  (1)  A person called as a witness on the trial of an election petition shall not be excused from answering any question relating to any offence at or connected with the election on the ground that the answer thereto may incriminate or tend to incriminate himself, or on the ground of privilege:

 

PROVIDED THAT

 

(a)                 An answer by a person to a question put by or before the Court shall not, except in the case of any criminal proceeding for perjury in respect of the evidence, be admissible in evidence against him in any proceeding, civil or criminal;

 

(b)                 A witness who answers truly all questions which he is required by the Court to answer shall be entitled to receive a certificate of indemnity stating that he has so answered.

 

(2)   Where a person has received a certificate of indemnity in relation to an election, and any legal proceeding is at any time instituted against him for any offence committed by him at or in connection with the election previously to the date of the certificate, the Court having cognisance of the case shall on production of the certificate stay the proceeding, and may in its discretion award to the said person such costs as he has been put to in the proceeding.   (3)   Nothing in this section shall be deemed to relieve a person receiving a certificate of indemnity from any incapacity under this Act or from any proceedings to enforce any such incapacity (other than a criminal prosecution).

 

                124.                Expenses of witnesses  -  (1)  The reasonable expenses incurred by any person in appearing to give evidence at the trial of an election petition, according to the scale allowed to witnesses on the trial of civil actions, may be allowed to him by the Court.   (2)   Any such expenses, if the witness was called and examinated by the Court, shall be deemed to be part of the expenses of the Court, and in other cases shall be deemed to be costs of the petition.

 

                125.        Costs of petition  -  (1)   All costs of an incidental to the presentation of an election petition, and to the proceedings consequent thereon, except such as are by this Act otherwise provided for shall be defrayed by the parties to the petition in such manner nd in such proportions as the Supreme Court may determine;  and in particular any costs which in the opinion of the Court have been caused by vexatious conduct, unfounded allegations, or unfounded objections on the part either of the petitioner or respondent, and any needless expenses incurred or caused on the part of the petitioner or respondent, may be ordered to be defrayed by the parties by whom they were caused or incurred, whether those parties are or are not on the whole successful.   (2)  If a petitioner fails for 6 months after demand to pay to any person summoned as a witness on his behalf, or to any respondent, any sum certified to be due to him for costs, and the failure is within one year after the demand proved to the satisfaction of the Supreme Court, every person who has under this Act entered into a recognisance relating to the petition shall be held to have made default in the recognisance, and it shall be dealt with in manner provided by section 15 of the Government Proceedings Act 1974.

 

                126.        Costs payable by persons proved guilty of corrupt or illegal practice  -  (1)  Where on the trial of an election petition it appears to the Court that any person has been guilty of any corrupt or illegal practice, the Court may, after giving that person an opportunity of making a statement to show why the order should not be made, order the whole or any part of the costs of or incidental to any proceedings before the Court in relation to that offence or to that person to be paid by that person to such other person or persons as the Court thinks fit.      (2)   All costs so ordered to be paid may be recovered as a debt due by the person by whom they are ordered to be paid to the person or persons to whom they are ordered to be paid.

 

WITHDRAWAL AND ABATEMENT OF PETITION

 

                127.                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 or among the individual voters to which the petition relates.   (3)  Where there are more petitioners than one, 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 shall be liable to pay the costs of each respondent.

 

                128.                Substitution of new petitioner  -  (1)  On the hearing of an application for leave to withdraw a petition, any person who might in the first instance have presented the petition may apply to the Court to be substituted as a petitioner.   (2)  The Court may, if it thinks fit, substitute any such applicant as petitioner, and may, if the proposed withdrawal is in the opinion of the Court the result of any corrupt bargain r consideration, by order direct that the security given on behalf of the original petitioner shall remain as security for any costs incurred by the substituted petitioner, and that to the extent of the sum named in the security the original petitioner shall be liable to pay the costs of the substituted petitioner.  (3)   If the Court does not so direct, security to the same amount as would be required in the case of a new petition, and subject to the like conditions, shall be given on behalf of the substituted petitioner within 3 days after the order of substitution.   (4)   Subject as aforesaid, a substituted petitioner shall as nearly as may be stand in the same position and be subject to the same liabilities as the original petitioner.

 

                129.                Report on withdrawal  -  In every 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 any corrupt arrangement or in consideration of the withdrawal of any other election petition and, if so, the circumstances attending the withdrawal.

 

                130.                Abatement of petition  -  (1)   An election petition shall be abated by the death of a sole petitioner or of the survivor of several petitioners.   (2)  The abatement of a petition shall not affect the liability of the petitioner or any other person to the payment of costs previously incurred.   (3)   On the abatement of a petition, notice of the abatement shall be given in the prescribed manner, and within 28 days after notice is given any person who might have been a petitioner in respect of the election may apply to the Supreme Court in the prescribed manner.  On any such application the Court may, if it thinks fit, substitute the applicant accordingly.   (4)   Security shall be given on behalf of a petitioner so substituted, as in the case of a new petition.

 

                131.                Withdrawal and substitution of respondent before trial  -  (1)  If before the trial of an election petition a respondent other than the Chief Electoral Officer and the registrar:

 

(a)                 Dies; or

 

(b)                 Gives the prescribed notice that he does not intend to oppose the petition; or

 

(c)                 Has his seat declared vacant in a report from the Speaker to the Head of State,

 

Notice thereof shall be given in the prescribed manner and, within 28 days after the notice is given, any person who might have been a petitioner in respect of the election may apply to the Supreme Court to be admitted as a respondent to oppose the petition, and shall be admitted accordingly, except that the number of persons so admitted shall not exceed 3.

 

                (2)           A respondent who has given the prescribed notice that he does intend to oppose the petition shall not be allowed to appear or act as a party against the petition in any proceedings thereon, and shall not sit or vote in the Legislative Assembly until the Assembly has been informed of the report on the petition.   (3)  Where a respondent has given the prescribed notice as aforesaid, the Court shall report that fact to the Speaker.

 

                132.                Submission of report to Attorney-General  -  Where the Supreme Court reports that certain persons named have been proved at the trial of an election petition to have been guilty of any corrupt or illegal practice the report shall be laid before the Attorney-General