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Meafou v Electoral Commissioner [2020] WSSC 77 (27 November 2020)

IN THE SUPREME COURT OF SAMOA
Meafou v Attorney General, for and on behalf of the Electoral Commissioner & Ors [2020] WSSC 77

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

IN THE MATTER:
of the Electoral Act 2019 as amended.

BETWEEN:

FATA MEAFOU, Matai and Electoral Candidate of Afega.

Applicant

A N D:

ATTORNEY GENERAL, for and on behalf of the ELECTORAL COMMISSIONER Responsible for Administering the Electoral Act 2019.

First Respondent

A N D:

TALIAOA VILIAMU, Sui o le Nu’u, Matai of Afega and PUNA KELEKOLIO, Sui Tamaitai of Afega, Samoa.

Second Respondents

Coram:
Justice Lesatele Rapi Vaai
Justice Leiataualesa Daryl Clarke

Counsel:
L H Schuster for Plaintiff
E Schmidt and F T Sofe for First Respondent
T Leavai for Second Respondents

Hearing: 13 November 2020
Submissions: 18 November 2020
Judgment: 27 November 2020

JUDGMENT OF THE COURT

1. Nomination of Candidates for the 2021 general elections for the Legislative Assembly commenced on the 13th October 2020 until 12 noon on the 23rd October 2020.
2. On the 20th October 2020 the applicant lodged his nomination papers together with the required attachments at the office of the Electoral Commissioner to contest the 2021 general elections in the electoral constituency of Sagaga. He did not lodge a statutory declaration by the sui o le nuu or sui tamaitai to confirm that he has rendered monotaga to the village of Afega for three consecutive years. This was clearly in breach of section 8(2)(b) of the Electoral Act 2019 (the Act).
3. The applicant conceded he did not lodge the necessary statutory declaration. He did not do so because both the sui o le nuu and sui tamaitai refused to sign the required statutory declaration. Neither of them supported his application for candidacy due to friction and division within the village of Afega.
4. Pursuant to section 47(2) of the Act the Electoral Commissioner was bound to reject the nomination of the applicant.

Applicant’s motion

5. The applicant seeks an order declaring himself to qualify to contest the general elections in the electoral constituency of Sagaga.

Response by the Second Respondents

6. Both respondents contended the applicant and other matais of Afega broke away from the village of Afega in 2012 and formed their own sub village called Afega-tai. The monotaga which the applicant is rendering is for the sub village of Afega- tai. Accordingly, the proper village of Afega, of which the second respondents are members is not receiving monotaga from the applicant.

Undisputed Facts

7. Afega village was split into two faction in 2012. It is not the first time this village has been divided resulting in each faction not consulting with the other.
8. There was at least one attempt of reconciliation as a result of encouragement from the religious leaders within the village.
9. A petition was filed in the Land and Titles to determine which of the two faction is the true or real Afega. The petition was formally withdrawn in 2014.
10. In this judgment the two fractions will be referred as Afega-tai and Afega-uta for convenience.
11. It is not disputed that the applicant is rendering monotaga to Afega-tai.

The Dispute

12. The focus of the dispute is whether the monotaga rendered by the applicant was rendered to the village of Afega to satisfy the monotaga requirement of the Act.
13. It was conceded by the sui o le nuu in his testimony that he would have signed the statutory declaration for the applicant if the applicant was rendering monotaga to Afega uta. He refused to sign because Afega-uta is the proper Afega (nuu mavae), so that the applicant’s contributions, and services to Afega-tai is not monotaga.

Submissions by the Applicant

14. Counsel contended that the applicant has never been banished or ostracised by the village of Afega so that his monotaga has continued to be rendered. After the division in 2012 he continued with his monotaga to Afega-tai.
15. Counsel emphasised there is still Afega, the nuu mavae, but since 2012 there have been two sub villages (faiga-nuu) within Afega. When the applicant was a candidate in the 2016 none of the matai, or voter from Afega-uta complained or objected to the applicant as not rendering monotaga to Afega.
16. It was also submitted that the Land and Titles Court decisions in 2016 concerning the validity of matai titles conferred at Afega-tai is judicial recognition of the Afega-tai faiga nuu.

Submissions by the Second Respondent

17. Counsel contended that the sui o le nuu was well aware that while the applicant may have rendered monotaga to Afega-tai, none of that monotaga contributed to the village as a whole. It could not be said therefore that he has provided monotaga to Afega, the village proper, but only a minor part of the village.
18. Counsel acknowledged that the sui o le nuu also testified he did not sign because the applicant’s children were sent with the declaration for him to sign but the main reason he refused was because he would not be honest if he did sign.
19. Major projects like the construction of school buildings, and the food market (which is leased to a Chinese) in which the village was engaged, were not contributed to by the applicant. So that the applicant’s services to Afega-tai did not benefit the village as a whole but restricted to a portion of Afega. Which means while it is arguable that the applicant’s monotaga were rendered for customary, traditional activities, events, functions of Afega, pursuant to customs and traditions of Afega, it remains that such monotaga were not directed at Afega, the nuu mavae.
20. In respect of the Land and Titles Court decision in 2016 which validated matai titles bestowed at Afega-tai (and which the matais of Afega-uta refused to attend and recognise), counsel contended that the argument by the applicant concerning the recognition of those matai titles is misplaced and has no value.
21. Finally, it was submitted that if the applicant’s claim is successful the village of Afega will continue to be divided as the two factions will recognise that they don’t need each other and undermine any hope of reconciling. Such a situation does not reflect the true spirit and intent of Parliament for monotaga and its value are concerned.

The Land and Titles Court decision in 2016

22. In 2016 Afega tai on three occasions conferred three different titles on some of their members. Matais of Afega-uta did not join in the traditional ceremony to bless the new title holders. Petitions were lodged by the matais of Afega-uta to refuse the registration of the titles on the grounds that the traditional ceremony allegedly performed by the matais of Afega- tai was defective because the matais of the real Afega, the Alii and Faipule of Afega did not attend the traditional ceremony.
23. The rightful holder of a matai title pursuant to section 20 Land and Titles Act is a person who:
    • (a) has been appointed the holder of a matai name or title by and in accordance with the customs and usages of the Samoan people, including...; and
    • (b) has had the traditional ceremony of appointment in the village to which that name or title belongs; and ...
    • (c).....
24. The Court rejected the argument by the matais of Afega uta. It held that section 20(b) has been complied. Both factions had the same salutations of:
    • “Aiga sā Gauifaleai, le mamalu ia Fata ma Maulolo, Tuisamau ma le vagana i tulafale”

Discussions

25. The argument by the second respondents that this Court should accept Afega-uta as the proper village (nuu mavae) is untenable and is rejected for several reasons. Firstly, the two sides recognised, correctly that the proper forum to determine such issue is the Land and Titles Court when they filed petitions in that Court in 2014 to determine that very issue. They cannot use these proceedings to reintroduce the same subject matter which both factions neglected since 2014.
26. Secondly, these proceedings are concerned with the disagreement between the second respondents and the applicant. They are not the proper parties to argue the nuu mavae issue; that is, they are not representatives of the matais o Afega-uta and Afega-tai.
27. Whether the applicant satisfied the monotaga requirement of the Act will be determined by this court in accordance with the law and the spirit of the legislation and will not be influenced by the consequences of the determination on the current friction within Afega as alluded to by the second respondent’s counsel’s submission referred to in paragraph 21 above. Afega village has been divided since 2012; it is not the first time Afega has been divided; the two factions are not at war; reconciliations were attempted. Afega will eventually reconcile.
28. The issue of whether the monotaga by the applicant was rendered for customary, traditional and cultural activities, events and similar purposes must be considered and resolved in a way which does not conflict with the decision of the Land and Titles Court referred to above. It is a specialist court on customs and usages.
29. Customs and usage or Samoan custom and usage is defined in section 2 of the Land and Titles Act 1981 as:
    
    • “the customs and usages of Samoa accepted as being in force at the relevant time and includes:
      
      1. the principles of custom usage accepted by the people of Samoa in general; and
      2. the customs and usages accepted as being in force in respect of a particular place or matter.
30. Village is not defined in the Land and Titles Court, or Village Fono Act 1990. It is briefly defined in section 8(5)(b) of the 2019 Electoral Act to mean a village from which a matai title was conferred within a constituency.
31. Village fono is defined in the Village Fono Act 1990 to mean the assembly of Alii and Faipule of that village meeting in accordance with the custom and usage of such village and includes the plural;
32. The 2016 court decision dealt with the issue of whether the matai titles conferred at Afega-tai complied with section 20 (b) of the Land and Titles Act which required the performance of the traditional ceremony of appointment. Afega uta argued that the traditional ceremonies performed by Afega-tai matai were not valid; they were not traditional ceremonies because they were not done by the proper Afega (nuu mavae), that is Afega uta. The Court rejected the argument.
33. It will be contrary to the spirit of those decisions if this court determines that the monotaga by the applicant was not in accordance with the customs and usage of Afega.
34. When the applicant contested the 2016 general elections none of the matais of Afega-uta objected. Monotaga obligation was then a requirement for a candidate to qualify. At that time of course the autographs of either of the second respondents was not required.

Conclusion

35. Accordingly, we make the following orders and declarations:
    • (a) The Court declares that the applicant is qualified to be candidate for the constituency of Sagaga 2.
    • (b) The Electoral Commissioner is ordered to enter the name of the applicant as a candidate for the Sagaga 2 constituency.
    • (c) Each of the Second Respondents are each ordered to pay costs of the Applicant in the sum of $1,500.00 each.

JUSTICE VAAI
JUSTICE CLARKE