THE SUPREME COURT OF SAMOA
Mataafa v Lole [2016] WSSC 6

Case name: 	Mataafa v Lole	
		
Citation: 	[2016] WSSC 6	
		
Decision date: 	24 February 2016	
		
Parties: 	FIAME NAOMI MATAAFA of Lotofaga, Candidate. Applicant AND FIAOLA IOSUA LOLE of Lotofaga, Candidate. Respondent

Hearing date(s): 	22 February 2016	
		
File number(s): 		
		
Jurisdiction: 	CRIMINAL	
		
Place of delivery: 	Supreme Court of Samoa, Mulinuu	
		
Judge(s): 	Sapolu CJ and Vaai J	
		
On appeal from:		
		
Order:	-	The respondent Fiaola Iosua Lole is disqualified from being a candidate for the territorial constituency of Lotofaga in the general election scheduled for 4 March 2016.
-	Costs of $1,000 are awarded to the applicant against the respondent.
-	A copy of this judgment is to be served on the Acting Electoral Commissioner forthwith.

Representation: 	S H Wallwork for applicant
L R Schuster for respondent

Catchwords: 		
		
Words and phrases:		
		
Legislation cited:	Electoral Act 1963, s.5 (9), 5 (1) and (2)  	
	Road Traffic Ordinance 1960, 39A 	
Cases cited:		
		
Summary of decision:		

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

IN THE MATTER

of the Territorial Constituency of Lotofaga.

A  N  D:

IN THE MATTER

	of a motion for disqualification of candidate pursuant to s.5(9) of the Electoral Act 1963

BETWEEN

FIAME NAOMI MATAAFA of Lotofaga, Candidate.
Applicant

A  N  D

FIAOLA IOSUA LOLE of Lotofaga, Candidate.
Respondent

Coram:	Sapolu CJ
Vaai J

Counsel:	
S H Wallwork for applicant
L R Schuster for respondent

Hearing:	22 February 2016

Judgment:	24 February 2016

JUDGMENT OF THE COURT DELIVERED BY SAPOLUCJ
The applicant’s motion 
1. 	At the close of nominations on Friday 12 February 2016 for the upcoming general election on Friday 4 March 2016, the applicant Fiame Naomi Mataafa (the applicant) and the respondent Fiaola Iosua Lole (the respondent) were the only two candidates nominated for the territorial constituency of Lotofaga.  The applicant has brought a motion pursuant to s.5 (9) of the Electoral Act 1963 for an order by the Court to disqualify the respondent as a candidate for the said constituency on the ground that the respondent has been convicted within the last 8 years of an offence punishable by imprisonment for a term of 4 years or more pursuant to s.5 (5) (6) (i) of the Electoral Act 1963.  In terms of s.5 (10) of the Act, an order made by the Court on a motion for disqualification under s.5 (a) is final and not subject to review or appeal.
The relevant provisions of the Constitution, the Electoral Act 1963 and the Road Traffic Ordinance 1960
2. 	Article 45 of the Constitution which prescribes the qualifications for a person to be elected as a Member of Parliament states:
“(1)	Any person shall be qualified to be elected as a Member of Parliament who:
“(a)	Is a citizen of Samoa; and
	“(b)	Is not disqualified under the provisions of this Constitution or of any Act. 
“(2)	If any person other than a person qualified under the provisions of clause (1) is elected as a Member of Parliament, the election of that person is void”
3. 	Section 5 (1) and (2) of the Electoral Act 1963 which provide for the qualifications for a person to be elected as a Member of Parliament is based on and follows the provisions of Article 45 of the Constitution.  Section 5 (3) and (5) then provide the grounds for disqualification of a person from being a candidate for election.  Section 5 (5), which is the relevant provision, provides:
	“A person is disqualified for being a candidate or being elected as a Member of Parliament if the person:
		“(a)	is an undischarged bankrupt; or
		“(b)	has been:
	(i)	convicted in Samoa or another country within the previous 8 years of an offence punishable by death or by imprisonment for a term of 4 years or more; or
	(ii)	convicted or found guilty in Samoa of a corrupt practice and has not been removed from the Corrupt Practices List; or
	“(c)	is of unsound mind and is subject to an order of medical custody made under the Mental Health Act 2007”.	
4. 	Section 39A of the Road Traffic Ordinance 1960 provides:
	“A person commits an offence and is liable on conviction to a fine not exceeding 20 penalty units or to imprisonment for a term not exceeding 5 years who recklessly or negligently drives or rides a vehicle and thereby causes bodily injury to or death of any person”
The response by the respondent 
5. 	On 25 March 2014, the respondent had pleaded guilty in the District Court to the charge of negligent driving causing death under s.39A of the Road Traffic Ordinance 1960.  He was then convicted and sentenced on 30 May 2014 to 6 months community supervision plus 100 hours of community service.  He now opposes the applicant’s motion for disqualification as a candidate for election claiming that s.5 (5) (b) (i) of the Electoral Act 1963 does not apply to him as he was not sentenced on his conviction to a term of imprisonment of 4 years or more.  He also claims that s.5 (5) (b) (i) is focused on the penalty and not the conviction.  It follows, according to the respondent, that as the penalty that the District Court imposed on him after his guilty plea is less than 4 years imprisonment, he is not disqualified as a candidate under s.5 (5) (b) (i).
Discussion 
6. 	We are of the view that s.5 (5) (b) (i) of the Electoral Act 1963 is clear in what it says.  There is no ambiguity to make it necessary to refer to its legislative history or Hansard.  Section 5 (5) (b) (i) relevantly provides that a person is disqualified from being a candidate for election if he or she “has been convicted...within the previous 8 years of an offence punishable by death or by imprisonment for a term of 4 years or more”.  The ordinary and natural meaning of those words in our view is that a person is disqualified from being a candidate if he or she has been convicted in the last 8 years of an offence punishable by death or of an offence punishable by imprisonment for a term of 4 years or more.  The words “of an offence punishable by” which immediately precede the word “death” are also to be understood to immediately precede the words “imprisonment for a term of 4 years or more”.  As a matter of drafting and English grammar, it is unnecessary to repeat the words “of an offence punishable by” immediately before the words “imprisonment for a term of 4 years or more”.  It would tend to make the provision unnecessarily wordy and cumbersome.  
7. 	We are therefore not able to accept the interpretation of s.5 (5) (b) (i) submitted for the respondent.  According to this interpretation, a person is disqualified from being a candidate if he has been convicted within the last 8 years of an offence punishable by death or if he has been convicted within the last 8 years of an offence and sentenced “by imprisonment for a term of 4 years or more”.  With respect, this cannot be the ordinary and natural meaning of s.5 (5) (b) (i) or the intention of Parliament in enacting that provision.
8. 	We therefore conclude that s.5 (5) (b) (i) of the Electoral Act 1963 applies to the respondent as a candidate for election.
Conclusion 
9. 	The respondent Fiaola Iosua Lole is disqualified from being a candidate for the territorial constituency of Lotofaga in the general election scheduled for 4 March 2016.
10. 	Costs of $1,000 are awarded to the applicant against the respondent.
11. 	A copy of this judgment is to be served on the Acting Electoral Commissioner forthwith.
CHIEF JUSTICE

JUSTICE VAAI