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Niuapu v Electoral Commissioner [2020] WSSC 78 (27 November 2020)

IN THE SUPREME COURT OF SAMOA
Niuapu v Attorney General for and on behalf of the Electoral Commissioner & Anor [2020] WSSC 78

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

LEIATAUALESA FAAUI II NIUAPU, of Leulumoega

Applicant

A N D:

ATTORNEY GENERAL for and on behalf of the ELECTORAL COMMISSIONER

First Respondent

A N D:

SINAIFOA VAIMOANA SOOAEMALELAGI of Leulumoega

Second Respondent

Coram:
Acting Chief Justice Tuatagaloa
Justice Tuala-Warren

Counsel:
F. Tufuga for the Applicant
J Pickering & G. Patu for the First Respondent
P. Chang for the Second Respondent

Hearing: 17 November 2020

Decision: 27 November 2020

RESERVED JUDGMENT OF THE COURT

Introduction

1. This is an application brought by the Applicant Leiataualesa Faaiu II Niuapu (“Leiataualesa Niuapu”) under section 47 of the Electoral Act (No 2) Amendment 2020 (“EA”) seeking an order from the Court to disqualify the Second Respondent Sinaifoa Vaimoana, whose nomination was accepted by the Electoral Commissioner (“the Commissioner”). The nomination was accepted on the basis that all the requirements of section 47 were met.
2. We heard evidence from Leiautaualesa Niuapu, Ogotia Talosaga Faatagi, Tuigaoleula Pulemau Tanielu and Vaa Tolofuaivalelei Leiataua Falemoe for the Applicant, Mauga Fetogi Vaai for the Commissioner and Sinaifoa Vaimoana , Soloi Mafaufau Petelo, Togitele Tolufale Taulapapa, Maria Koreti, Fatu Leai Petelo, Reverend Tunupopo Patu and Taupolalaovaoa Peato Atonio for the Second Respondent.

Issue

3. The Applicant submits that the Commissioner was wrong to accept the nomination of Sinaifoa Vaimoana because the Sui Tamaitai of the Nuu, Maria Koreti was not able to sign Form 3 for two reasons, firstly she was no longer Sui Tamaitai when she signed Form 3 and secondly, Sinaifoa Vaimoana had not rendered monotaga for the consecutive three years ending on the day in which the nomination paper is lodged with the Commissioner because he had been banished from April 2018 to 1 January 2020.

The Law

4. Section 47 of the EA provides:
   • 47. Acceptance of nomination: (1) The Commissioner must accept a nomination of the candidate if it fulfils all requirements set out under subsection (2).
   • (2) The Commissioner must reject the nomination of a candidate if:

(a) the nomination paper and the consent of the candidate are not lodged with him or her by noon on nomination day; or

(b) the consent of the candidate does not state that he or she is qualified to be elected a Member under Part 3 and any other enactment; or

(c) the nomination paper does not state that the candidate is a registered voter of the constituency in which he or she is to represent; or

(d) the nomination paper is not signed by at least 2 registered voters of the constituency in which he or she is to represent; or

(e) the nomination fee is not paid as required by this Act; or

(f) the nomination paper is not accompanied by a statutory declaration.

(3) A candidate or a person who claims a right to be a candidate may by motion challenge the decision of the Commissioner to accept or reject the nomination of a candidate under this section in the Supreme Court, for an order to qualify or disqualify a candidate: (a) for the general elections - (i) it must be filed no later than 12 noon of the 7th day after nomination; and (ii) must be decided by the Court within 20 working days after filing of the motion; or (b) for the by-election - (i) it must be filed no later than 12 noon of the 3rd day after nomination; and (ii) must be decided by the Court within five (5) working days after filing of the motion.
(4) An order made under subsection (3) is final and is not subject to any review or appeal.

Discussion

Section 47

5. It is accepted that the Sui o le Nuu, Ogotia Talosaga did not sign the statutory declaration in Form 3 confirming monotaga and residency of Sinaifoa. However pursuant to section 8(2)(b)(ii) of EA, the Sui Tamaitai is able to swear a statutory declaration in Form 3 confirming a candidate’s monotaga.

Maria Koreti

6. The evidence of Vaa Tolofuaivalelei is that Maria Koreti was removed from being the Sui Tamaitai for Leulumoega as a result of a decision of the village council at its meeting dated 26 September 2020. On 28 September 2020, he says the village wrote to the Ministry of Women Community and Social Development (“the Ministry”) informing them of the village decision to remove Maria Koreti and replace her with Pulemau Tamatimu Tanielu. On 30 September 2020, the Komiti o Tina and Alii and Faipule of Leulumoega filled out a form to the Chief Executive Officer of the Ministry requesting that this change be put into effect. No other correspondence is in evidence from the Ministry.
7. Maria Koreti says that she is aware of the village decision and received her last pay as Sui Tamaitai on 21 October 2020. She says she continued to carry out her role as the Ministry continued to communicate with her about meetings.
8. Section 16A(5) of the Ministry of Women Affairs Act 1990 provides for the removal of a Sui Tamaitai;
   • (5) A Sui Tamaitai o le Nuu may at any time resign her office by writing to the Minister through the Chief Executive Officer or may be removed from office by Cabinet on the advice of the Minister for inability to perform her duties, neglect of duty or misconduct. (6) A Sui Tamaitai o le Nuu who is removed from office is to be: (a) informed promptly of her removal from office and the reasons for such removal; and (b) allowed to submit reasons against her removal from office and to have her case reviewed.
9. Maria Koreti did not resign. She was removed from office by Cabinet on 24 October 2020. This is the crucial date. A cabinet directive was given to the Court on the day of the hearing which confirms that Pulemau Tanielu is the new Sui Tamaitai for Leulumoega, replacing Maria Koreti. The cabinet directive is dated 11 November 2020 and the commencement date of the change is 24 October 2020. This corresponds with the evidence of Pulemau Tanielu that her ID card was issued on 28 October 2020.
10. Maria Koreti signed the Samoan version of Form 3 on 25 September 2020 and the English version of Form 3 on 20 October 2020. Both Forms were signed during the nomination period which ran from 13 October 2020 to 23 October 2020, and signed before she was lawfully removed from office on 24 October 2020.
11. Maria Koreti was therefore entitled to sign Form 3 and the Commissioner was entitled to accept Sinaifoa Vaimoana’s nomination as a candidate.

Section 8

12. In this case, Leiataualesa Niuapu is challenging the decision of the Commissioner to accept the nomination of Sinaifoa Vaimoana and seeks an order to disqualify him for the general elections 2021 (section 47(3) EA).
13. Section 8(2) of the EA states that a person is disqualified from contesting as a candidate for elections if that person has not, inter alia, under section 8(1)(d) .. rendered a monotaga in respect of the registered matai title...for a consecutive three years ending on the day in which the nomination paper is lodged with the Commissioner.
14. The challenge brought by Leiataualesa Niuapu is specifically to Sinaifoa Vaimoana’s monotaga under section 8(1)(d) EA.
15. There is no dispute that Sinaifoa Vaimoana was banished, meaning that he was no longer able to participate in the village fono (tua mai le faiganuu), although he and his family continued to live in the village.
16. There is no dispute that the time during which he was banished was from April 2018 to January 2020, and that he gave $3000.00 to the village fono the date on which he was reinstated.
17. The issue for us is whether the $3000.00 was to cover his monotaga for the time he was banished as he claims, or whether it was merely to reinstate him as Leiataualesa Niuapu and Vaa Tolofuaivalelei claim.
18. We heard evidence from Leiataualesa Niuapu and Vaa Tolofuaivalelei who both say that once a person is banished, they do not have monotaga. This is because they say that the person who is banished is no longer able to participate in village fono meetings. They both say that it is not a usual custom (faavae) of Leulumoega to reinstate someone and accept money from them to cover their monotaga during the period in which they were banished. They say the $3000 paid by Sinaifoa Vaimoana was to reinstate him and the increased amount was to punish him for taking the village to Court and using strong words (upu matuia) against the village sao Alipia. They say a person who is reinstated on 1 January on any given year, usually pays $1000.
19. Sinaifoa Vaimoana gave evidence that the $3000 he gave was to cover his monotaga while he was banished, and not a penalty for taking the village to Court. He accepts that when he was banished, he could not sit in village meetings, and participation at these meetings is part of a matai’s monotaga in Leulumoega. He says that it is the custom of Leulumoega that once a person is reinstated, the money given is to cover their monotaga.
20. Reverend Patu gave evidence that Sinaifoa Vaimoana’s alofa and taulaga would be given directly to him instead of the church committee.
21. Soloi, Togitele, Fatu, and Taupolalaovaoa are all Matai from Leulumoega. They all say that they believed the $3000 given by Sinaifoa Vaimoana when he was reinstated was to cover his monotaga during the period he was banished.
22. Soloi’s belief was not based on any concrete evidence. Togitele was not at the meeting when the decision was made to reinstate Sinaifoa Vaimoana. He accepted gifts from Sinaifoa Vaimoana and appears motivated by a sense of loyalty to Sinaifoa Vaimoana due to this kindness. Fatu only became a matai in 2017. He says he was at the meeting when it was decided that Sinaifoa Vaimoana would be reinstated, and the $3000 was “e faaae ai”. His opinion that the $3000 was to cover Sinaifoa Vaimoana’s monotaga was his own opinion with no basis. Taupolalaovaoa says his belief the $3000 was to cover monotaga was because Sinaifoa Vaimoana had already been penalised. It is not disputed that when Sinaifoa Vaimoana was banished he was penalised $1000.
23. The evidence from Leiataualesa Niuapu and Vaa Tolofuaivalelei was reliable, they being two of the nine matai who make decisions for the village. They gave credible evidence based on the usual customs of the village of Leulumoega. Vaa Tolofuaivalelei has been a matai for 39 years in Leulumoega.
24. We accept that the $3000 was for the purpose of reinstating Sinaifoa Vaimoana and was not to cover his monotaga for the period during which he was banished. When a person is banished in Leulumoega we accept that they can no longer continue their monotaga and attend village fono meetings, which we find is part of the monotaga in Leulumoega. His alofa and taulaga were given directly to the Reverend. This further reinforces our finding that he was not able to participate in any village affairs in the same manner when he was banished.

Result

25. Accordingly, we make the following declarations:
    1. Sinaifoa Vaimoana does not satisfy the qualification requirements in section 8(1)(d) of the Act, specifically monotaga for three years ending on the date of nomination and therefore he is not qualified to run as a candidate in the general elections in 2021; and
    2. Costs of $1,500 are awarded against Sinaifoa Vaimoana in favour of the Applicant. No costs are awarded against the EC as they are entitled to accept Sinaifoa Vaimoana’s nomination as all the requirements of section 47 are met.
       

ACTING CHIEF JUSTICE TUATAGALOA
JUSTICE TUALA-WARREN