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Lisati v Electoral Commissioner [2020] WSSC 76 (27 November 2020)

IN THE SUPREME COURT OF SAMOA
Lisati v Electoral Commissioner & Ors [2020] WSSC 76

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

IN THE MATTER:

An application made pursuant to Section 47(3) of the Electoral Act 2019 and Section 4 of the Declaratory Judgments Act 1988

BETWEEN:

TUIFAASISINA MISA LISATI, Election Candidate for Palauli No.3

Applicant

A N D:

ELECTORAL COMMISSIONER Appointed pursuant to section 7 of the Electoral Commission Act 2019

First Respondent

A N D:

AIOLUPOTEA TONI, Election Candidate for Palauli No.3

Second Respondent

A N D:

MATAAFA FONO FAAVAE MATAAFA, Election Candidate for Palauli No.3

Third Respondent

Coram:
Justice Lesatele Rapi Vaai
Justice Fepulea’i Ameperosa Roma

Counsel:
U Fuimaono for Applicant
A Iati and K Seuseu-Soo for First Respondent
S Ponifasio for Second Respondent
M Lui for Third Respondent

Hearing: 17 November 2020
Submissions: 17 November 2020
Judgment: 27 November 2020

JUDGMENT OF THE COURT

Introduction

1. The applicant a candidate in the upcoming general elections for the legislative assembly for the territorial constituency of Palauli No.3 is the current member of parliament for the said constituency. His nomination was accepted by the first respondent before nominations closed on the 23^rd October 2020.
2. Several other candidates were also accepted by the first respondent to contest the election in the same constituency. Two of them are Aiolupotea Toni and Mataafā Fonofaavae. In two separate applications heard by the court the applicant challenged the eligibility of the two candidates to qualify as candidates. The same allegation is aimed at both candidates, namely that neither of them meet the monotaga requirement stipulated by section 8 (1)(d) of the Electoral Act (The Act).
3. Section 8(1)(d) of the Act states:
   • 8(1) “A person is qualified to run as a candidate for elections if that person:
   • (d) has rendered a monotaga in respect of the registered matai title under paragraph (a)-
   • within the village in a constituency which the person intends to run as a candidate; and;
   • (ii) for a consecutive three years ending on the day in which the nomination paper is lodged with the commissioner”
4. This ruling will address both applications. Aiolupotea Toni will be addressed as the second respondent and Mataafā Fonofaavae the third respondent.

Claim against the second respondent.

5. The applicant told the court through his affidavit and testimony that the second respondent, his younger biological brother, wanted to resume his monotaga to Vailoa Palauli where both of them are matais. Both of them travelled to Vailoa in April 2019 and $2,000 cash was given by the second respondent to the elderly matais whom the applicant organised to meet with the second respondent and himself. Four matais were present at the meeting.
6. The applicant also testified that the village fono has a book which records the name of those matais residing in the village who render monotaga (monotaga osi) as well as the name of those matais living away from the village for work and other callings but rendering monotagata (aitaumalele) through their families in the village.
7. As the second respondent’s name is not in the book, it is undisputed evidence that the second respondent did not render monotaga for the 3 years prior to October 2020 when nominations closed.
8. Autagavaia Mu was the custodian of the book and labelled by the applicant as the secretary of the village since 2007. Autagavaia Mu told the court he was appointed by the senior matais of his sub-village Faleao to be secretary. He kept the book to check that all the matais do their monotaga when called for if there is any event or occasion involving the village.
9. Autagavaia Mu and three other matais, Autagavaia Uiese, Mataafā Tu’uuta and Malu Mafutaga swore a joint affidavit. In relation to the Monotaga they state at paragraphs 14 and 15:
   • 14. “We had heavily relied on Autagavaia Mu on his skill and record keeping to assist us keep track of all matais of our village who have rendered monotaga over the years. Our outgoing secretary Autagavaia Mu has kept this book covering the period 2007-2019”.
   • 15. “Accordingly, the record in the register from 2012, 2015, 2016, 2017,2018 reveal that the second respondent’s name does not appear in the register. This clearly shows that the second respondent has not rendered monotaga in this period 2015 to 2016 therefore he does not meet the requirement under the law....”
10. The last entry on the list of matais in the book is the applicant’s in 2015 when the applicant was conferred his Tuifaasisina title. Before 2015 the applicant was rendering his monotaga under his matai title of Misa.
11. Only Autagavaia Mu of the four deponents to the affidavit referred to in paragraph 9 above testified Autagavaia Uiese and Mataafā Tu’uuta signed a type written letter begging the court to accept the contents of their sworn affidavit and explaining why they have decided not to testify. The essence of their inability to testify is their apprehension of danger from the rumours they heard and facial expressions of some villagers which may place their families in physical harm and properties may be destroyed. They may also loose their status of tu’ua of the village.

Claim against the third respondent.

12. As against the third respondent the applicant testified that the third respondent and his family moved to the United States of America where they lived and it was only in 2018 or 2019 that the third respondent went to the village to commence his monotaga. And because his monotaga commenced only in 2019 his name therefore does not appear in the monotaga book kept by the secretary of the village.

Response by the second respondent

13. The second respondent testified that it was the applicant who came to his house in 2018 and talked to him about the 2021 general elections. In 2019 while the second respondent was in Savaii on official visit, he and the applicant who was also in Savaii on a government trip met with the two tu’uas of the village, as well as Toluono Penehuro and Latu Ageli. The applicant then told the gathering that the second respondent wish to continue his monotaga. In response, one of the tu’ua, Mataafā Tu’uuta said that the second respondent’s monotaga has not stopped. The applicant then gave $2,000 given to him by the second respondent to the four matais.
14. When the second respondent told the chief matai (sa’o) of his family about the meeting with the matais, the sa’o told him the family will continue on with rendering the monotaga.
15. Tuifaasisina Iakopo the sa’o told the court that he had been rendering the monotaga for himself and the second respondent since 2004. At times he would ring the second respondent for financial assistance but when the village events are insignificant and contributions are minimal he didn’t bother to notify the second respondent. This evidence is supported by five other matais who were actively involved in village affairs. These witnesses were also adamant there was no secretary for the village fono and there was no monotaga book. If contributions were required whoever recorded the contributions would do it on a piece of paper to ensure all the matais complied.
16. When questioned about Autagavaia Mu and his book the witnesses said he was the secretary for his sub village of Faleao.
17. Tuifaasisina Iakopo, Toluono Pene and Autagavaia Fatu were present at the meeting of the village in July 2020. Also present was the applicant and the three matais also were supposed to testify for him in this trial referred to in paragraph 11 above. The meeting discussed the candidate for the village in the pending 2021 general elections. The applicant was requested to vacate and did leave the meeting. The meeting was unanimous that the second respondent will be the village candidate.

Response by the third respondent.

18. The third respondent conceded that he did leave Samoa in 1986 for education in Hawaii and eventually lived there. In 2017 he moved back to live permanently.
19. In 2015 while still living in Hawaii he visited Samoa regularly and in that year he commenced rendering his monotaga through his brother Fiu, a matai. Fiu Tusani confirmed the testimony of the third respondent. Other matais Ulumea Keveli, Mataafā Rimoni, also testified confirming that Fiu Tusani the brother of the third respondent was performing the monotaga for his brother. In 2017 the third respondent built a house for his brother at the village.
20. The same matais also told the court there was no monotaga book for the village.

Discussion.

21. When the so called secretary of the village fono desxcribed the monotaga in his oral testimony, he gave the impression it was a book specifically purchased for the village fono and to record accurately those matais rendering monotaga from 2012 to 2019. The joint affidavit by the secretary and three others said the recorded monotaga period was 2007 to 2019.
22. But when the book was produced the first 12 pages were torn out; the period covered for monotaga by those living in the village is 2015 and 2019 and for those living out of the village is 2012 to 2018. The last name entered on the list of matais living in the village is the applicant when he was conferred the title Tuifaasisina. This was in 2015 according to the secretary. The applicants name was entered as Tui Misa R.
23. But the applicant prior to 2015 was doing monotaga under his title Misa so there should be an entry for Misa R, or M. Risati in the so called monotaga book. There is none.
24. The twelve torn out pages the secretary, Autagavaia Mu explained, were records and notes of matters personal to him and his family. Other matters like submissions to the Lands and Titles consisting of five pages are still in the book. The submissions are for the secretary’s personal involvement in the court proceedings.
25. The Court accepts the evidence for the two respondents Aiolupo Toni and Mata’afa Fa’avae that there was no monotaga book.
26. As to whether the respondent Aiolupotea Toni rendered monotaga, the evidence plainly demonstrated the second respondent rendering monotaga. In the first place there is the joint affidavit of the witnesses for the applicant. Paragraph 15 of the joint affidavit states:
    • 15. “We are aware that the current law requires that a matai needs to perform monotaga for a consecutive 3 years...”

Secondly there is also undisputed evidence that at the meeting of the village on the 13^th July 2020 which was attended by the three witnesses for the applicant, the village fono resolved to appoint the second respondent as their candidate. The village matais knew of the monotaga requirement. The applicant was at the village and was excluded from the village discussions. His three key witnesses were at the meeting. They knew, and the village council knew, the second respondent was rendering monotaga, otherwise the second respondent would not be nominated.

27. Although the burden of proof is on the applicant to prove on the balance of probability that the respondents are not qualified, the village council of Palauli through its decision to support the candidacy of the second respondent is undisputed proof that the second respondent has been rendering monotaga to Vailoa Palauli since 2004.
28. The so called monotaga book was in fact the personal book of Autagavaia Mu who was the secretary for the sub village of Faleao but not for the village council of Vailoa Palauli. The Court considered the contents of the book to be inaccurate and worthless. It also viewed the joint affidavit of the applicant’s four witnesses to be misleading.
29. In respect of the third respondent, the Court adopts the similar approach as in the paragraph 28 above. Despite allegations that the third respondent was living in America, the applicant did not challenge the three years residential requirement of the third respondent. It was not challenged because the applicant and his witnesses knew the third respondent returned to reside in Samoa in 2017. They also knew he was rendering monotaga to Vailoa Palauli through his brother Fiu.
30. The names of the second and third respondents were not entered by the secretary in the book because there was no monotaga book. Vailoa Palauli never had a monotaga book.
31. The third respondent did render monotaga since 2015.

Conclusion.

(i) The applicant’s two motions to disqualify the two respondents Aiolupotea Toni and Mataafa Fa’avae as candidates for the Constituency of Palauli No.3 in the 2021 general elections are dismissed.
(ii) Costs of $1,500 for each of the second and third respondent are awarded against the applicant.

JUSTICE VAAI
JUSTICE ROMA