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Tuimauga v Electoral Commissioner [2020] WSSC 82 (27 November 2020)

IN THE SUPREME COURT OF SAMOA
Tuimauga v Electoral Commissioner [2020] WSSC 82


Case name:
Tuimauga v Electoral Commissioner


Citation:


Decision date:
27 November 2020


Parties:
LEMUAVA ASALEMO TUIMAUGA, matai of Fagafau (Applicant) v ELECTORAL COMMISSIONER (Respondent)


Hearing date(s):
9 November 2020


File number(s):
MISC 242/20


Jurisdiction:
CIVIL


Place of delivery:
Supreme Court of Samoa, Mulinuu


Judge(s):
Acting Chief Justice Tuatagaloa
Justice Clarke


On appeal from:


Order:
Accordingly, we make the following orders:
(i) the Respondent’s determination to reject the Applicant’s nomination as a candidate for the 2021 general elections pursuant to subsection 47(2) is set aside; and
(ii) the Applicant satisfies the qualifications requirements of the Act and the Respondent is accordingly ordered to enter the name of the Applicant as a candidate for the Constituency of Salega 1; and
(iii) the Respondent pay costs of the Applicant in the sum of $1,500.00.


Representation:
T. U. Fuimaono for the Applicant
T. Peniamina & T. Faitele for the Respondent


Catchwords:
Electoral challenge - nomination as a candidate – qualifications requirement.


Words and phrases:


Legislation cited:
Acts Interpretation Act 2015 s. 25(1)(c);
Electoral Act 2019 ss. 8; 8(c); 8(1); 8(1)(d); 8(1)(e); 8(2); 8(2)(b); 8(3); 8(3)(d); 8(3)(e); 8(4); 8(5); 47; 47(1); 47(2); 47(2)(f); 47(3).


Cases cited:


Summary of decision:

MISC 242/20


IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU


IN THE MATTER:
of the Electoral Act 2019 and the Declaratory Judgments Act 1988.


BETWEEN:


LEUMUAVA ASALEMO TUIMAUGA, matai of Fagafau
Applicant


A N D:


ELECTORAL COMMISSIONER, appointed under section 7 of the Electoral Act 2019
Respondent

Coram: Acting Chief Justice Tuatagaloa
Justice Clarke

Counsel: T. U. Fuimaono for the Applicant

T. Peniamina & T. Faitele for the Respondent


Hearing: 9 November 2020


Judgment: 27 November 2020


JUDGMENT OF THE COURT

  1. Pursuant to section 47(3) of the Electoral Act 2019 (“the Act”), the Applicant challenges the decision of the Respondent to reject his nomination as a candidate for the April 2021 general elections. At issue in these proceedings is whether the Applicant is qualified to run as a candidate in the April 2021 General Elections.

The Electoral Act 2019.

  1. The Act was assented to and commenced on the 31st January 2019. Since the commencement of the Act, it has been amended twice by the Electoral Amendment Act 2020, No. 13 (4th May 2020) (“the May 2020 Amendments”) and the Electoral Amendment Act 2020 (No. 2), (23rd September 2020) (‘the September 2020 Amendments”).
  2. Section 47 of the Act which deals with the Respondent’s powers to accept or reject nominations provide as follows:

Amendments to Section 8.

  1. Since the introduction of the Act on the 31st January 2019, section 8 of the Act has been amended a number of times. Relevantly for the purposes of these proceedings, subsection 8(1) earlier provided:
  2. In September 2020 however, amendments were made to subsection 8(1) which changed the monotaga and matai title registration qualifications. Subsection 8(1) to 8(4) provide:

The Affidavit Evidence in support of the Applicant's motion.

  1. Only one affidavit was filed in support of the Applicant’s motion and that was by the Applicant himself. The Applicant says in his affidavit that he is the holder of the Leumuava matai title from Fagafau conferred on the 2nd January 1988. His matai title Leumuava was registered on the Register of Matai on the 7th January 2020. He says that in August 2019, he was approached by some matai in his village to a meeting. At that meeting, he was unanimously nominated to run as a candidate for the April 2021 general elections.
  2. In preparation for the nomination of candidates, he checked with the Ministry of Justice and Courts Administration (“MJCA”) in August 2019 and was informed that his matai title had not been registered. His saofai certificate was then provided to the MJCA and following the usual process for the lodgement of objections, his matai title was registered on the 7th January 2020.
  3. The Applicant sought legal advice as to his eligibility to run as a candidate in March 2020 and he was advised that he qualified. He then proceeded with his preparations to run as a candidate for the April 2021 General Elections.
  4. The Applicant deposes that on or about the 14th October 2020, the statutory declaration and nomination forms were signed. These were lodged on the 22nd October and on the 23rd October 2020, the nomination of candidates closed. His nomination was however rejected by the Respondent. The Respondent’s decision (annexure ‘D’ to Affidavit of the Applicant / annexure ‘H’ to affidavit of Ms Mauga Fetogi Vaai) rejecting the Applicant’s nomination for candidacy stated as reasons that:

“Matai title where monotaga is registered was rendered for less than three years.”

  1. The Applicant sought legal advice and was informed of the September 2020 amendments (paragraph 5 above) and was referred to new section 8 which he describes as ‘unfair and unjust as it now deprives [him] of [his] right which [he] was entitled to under the old proviso before the above amendment.". He challenges the application of the September 2020 amendments to him.

The Affidavit Evidence in Support of the Respondent.

  1. One affidavit was filed in opposition to the Applicant’s motion by Mauga Fetogi Vaai, Assistant Commissioner of Elections (Legal, Policy and Investigations Unit). In her affidavit, Ms Vaai explains the process implemented by the Respondent relating to the nomination of intending candidates and the decision to reject the Applicant’s nomination.
  2. She explains that the Respondent fixed the nomination period for the 2021 General Elections to commence on Tuesday, 13 October 2020 until noon (12.00pm) of Friday 23rd October 2020. The nomination papers required to be submitted by candidates were:
    1. Form 2 – the Candidates Statutory Declaration confirming whether they meet the requirements of qualification;
    2. Form 3 – Statutory Declarations confirming performance of monotaga and residency;
    1. Form 11- Nomination paper endorsed by two voters from the electoral constituency that the candidate intends to run from as well as the Consent to Nomination by the Candidate. The two registered voters are required to lodge the nomination in support of the intending candidate.
  3. Ms Vaai then sets out the requirements for qualification materially identical to amended section 8, except as to subsection 8(c) relevant to these proceedings which she states in the following terms:
  4. Ms Vaai attaches the Applicant’s Nomination Forms 2, 3 and 11 together with the supporting attachments to those forms. She explains the processes within the Respondent’s office after the lodgement of nomination forms. An “administrative check” is carried out and once it is completed by the Assessment Team, it is referred to either her or to Mr Mapu to ‘assess’. In relation to the Applicant, Ms Vaai carried out the assessment and prepared a recommendation whether to accept or reject the Applicant’s nomination. From her assessment (annexure “G” to her affidavit), Ms Vaai states that it was confirmed that the Applicant:
    1. Did not hold a registered matai title for three (3) consecutive years ending on the date the nomination was lodged with the Commissioner;
    2. Did not render monotaga specific to the registered matai title for three (3) consecutive years ending on the date the nomination paper was lodged with the Respondent; and
    1. Did not meet the residency criteria.
  5. Based on her assessment, she recommended to the Respondent to reject the Applicant’s nomination. Ms Vaai then states:

“22. I understand that the Commissioner made a decision (based on his review of the Applicant’s Nomination Papers, the attachments and my recommendation) to reject the nomination of the Applicant.”

  1. The reason given by the Respondent in his written decision for rejecting the nomination was that:

“Matai title where monotaga is registered was rendered for less than three years.”

The Applicant's motion.

  1. The Applicant's motion brought pursuant to section 47(3) of the Act seeks orders as follows:
    1. That the Applicant is qualified to run as a candidate in the upcoming general elections in April 2021; and
    2. The Electoral Commissioner must accept the Applicant’s nomination as a candidate to run in the upcoming elections in April 2021.
  2. The grounds in support of the Motion in summary state:
    1. By virtue of section 25(1)(c) of the Acts Interpretation Act 2015 (“the AIA 2015”), the Act as amended does not affect the Applicant’s right to candidacy that has accrued since 7 January 2020 under the repealed section 8;
    2. In the absence of retrospective or savings provisions, the Act does not affect the Applicant’s right to candidacy accruing since 7 January 2020;
    1. That the repealed section 8 continues to apply to the Applicant.

The Respondent’s Opposition.

  1. The Respondent’s Notice of Opposition opposes the Applicant’s Motion on the grounds that:
    1. The Applicant does not have the qualifications under section 8 of the Act to run as a candidate, namely:
      1. The Applicant does not meet the monotaga and matai registration under section 8 of the Act;
      2. He does not fall under the exemptions for monotaga under section 8(3) of the Act;
      3. The Respondent acted within section 47 when he rejected the Applicant’s nomination; and
      4. On the grounds appearing in the affidavit of Ms Vaai.

Submissions by counsel for the Applicant.

  1. Counsel for the Applicant’s submissions (written and oral) rely on section 25(1)(c) of the AIA 2015 and submits that the Applicant’s rights as a candidate for the 2021 General Elections under the now repealed section 8 have not been extinguished by the September 2020 amendments. Subsection 25(1)(c) of the AIA 2015 relevantly provides:
  2. Counsel for the Applicant’s submission is that as from 7 January 2020 when his matai title was registered, he accrued a right to be a candidate and consequently, by virtue of subsection 25(1)(c) of the AIA 2015, the now repealed section 8 continues to apply to the Applicant. He therefore qualifies to be a candidate for the 2021 General Elections.
  3. To this effect, it is submitted that “[i]n the absence of any retrospective or savings provisions in the Electoral Amendment Act (No.2) 2020, concerning the Applicant’s right accruing since 7 January 2020, the new (amended) section 8(1)(d) of the Electoral Act 2019 does not affect the Applicant’s right to candidacy.”

Submissions by Counsel for the Respondent.

  1. The Respondent through counsel submits that:
    1. “The Applicant does not have the qualifications under section 8 of the Electoral Act 2019 to run as a candidate; and
    2. The Respondent acted within section 47 of the Electoral Act 2019 when it rejected the Applicant’s nomination.”
  2. The Respondent through counsel submits that at the time of the passing of the September 2020 amendments, the Applicant did not have a right to be a candidate for the election. In this context, the process under section 47 had not been engaged. The nomination process commenced on the 13th October 2020 and ends on the 23rd October 2020. During this period, the Applicant had submitted a Nomination to the respondent for candidacy and this application was correctly considered under the new requirements of section 8 of the Act.

Discussion.

The Respondent’s Decision.

  1. The Respondent’s ‘decision’ to refuse the Applicant’s nomination to be a candidate for the 2021 General Elections was, stated by counsel for the Respondent and in the Notice of Opposition, made pursuant to section 47 of the Act. Section 47(1) of the Act provides that the Respondent must accept a nomination of a candidate if it fulfils all requirements set out in subsection (2).
  2. Subsection 47(2) then provides that the Respondent must reject the nomination of a candidate if:
  3. Subsection 47(2) is limited in scope to the nomination papers lodged by an intending candidate for election. In however considering nominations, subsection 47(2)(f) refers to accompanying “statutory declarations” to the nomination paper. The requirement for the nomination paper to be accompanied by a ‘statutory declaration provided for in subsection 47(2)(f) in the prescribed forms’ draws in the ‘statutory declaration’ referred to in subsection 8(2)(b). These statutory declarations are those confirming monotaga and residency as required by subsection 8(1)(d) and 8(1)(e) of the Act. The effect of these provisions of section 47 and 8 read together is that a candidate for election must file with the Respondent statutory declarations in the prescribed form addressing the monotaga and residency requirements. Importantly however, subsections 8(3)(d), 8(3)(e) and 8(4) expressly states that:
  4. If an intending candidate lodges the duly completed nomination papers together with the prescribed statutory declarations by the specified date accompanied by the nomination fee, the Respondent must accept the nomination of a candidate as provided for in subsection 47(1). The process contemplated by section 47(1) and 47(2) relies on an intending candidate and those required to provide statutory declarations in the prescribed form in support of the nomination to disclose and confirm the qualifications requirements set out in section 8(1) and 8(2). Provided the intending candidate satisfies those matters on the nomination documents lodged pursuant to section 47(2), there is no general power in section 47 of the Act for the Respondent to reject a candidate’s nomination.
  5. In this case however, the Respondent in carrying out its assessment of the Applicant’s nomination documents determined that, contrary to the requirements of subsection 8(1)(d):
  6. Accordingly, the Respondent rejected the Applicant’s nomination pursuant to subsection 47(2) of the Act.
  7. In the evidence of Ms Vaai as well as in submissions by counsel for the Respondent, it was accepted that the Applicant satisfied the requirements laid out by subsection 47(2), namely all documents that were required to be lodged were lodged by the Applicant. The question however is one of law and the interpretation to be applied to subsection 8(1)(d) of the Act, namely, whether a matai title for which a monotaga is rendered has to be registered minimum for a minimum of 3 years ending on the day in which the nomination paper is lodged with the Commissioner.

Does the Applicant meet Section 8(1)(d) of the Act.

  1. In these proceedings, the Applicant claims that the amendments to section 8 of the Act introduced in September 2020 do not apply to him by virtue of subsection 25(1)(c) of the AIA 2015. In this context, through counsel and by implication, the Applicant accepts that the interpretation to be applied to subsection 8(1)(c) and 8(1)(d) of the Act introduced in September is that the Applicant’s matai title must have been registered for a consecutive three (3) years ending on the day on which the nomination paper is lodged with the Respondent.
  2. The first question then is whether to qualify to run as a candidate, is an intending candidate required to have had his or her matai title registered for a for a consecutive three (3) years ending with the day on which the nomination paper is lodged?
  3. We find that subsection 8(1)(c) and 8(1)(d) of the Act does not require a candidate’s matai title to have been registered for a consecutive three (3) years ending with the day on which the nomination paper is lodged. Subsection 8(1)(c) and 8(1)(d) of the Act read in its plain and ordinary meaning and in context of the whole Act and in the specific context in which these words appear (s. 7(3)(a) and (c) of the AIA 2015) require that:
    1. The intending candidate is the holder of a matai title for the Constituency he or she intends to run (s.8(1)(c)); and
    2. Has rendered monotaga in respect of the registered matai title in the constituency the person intends to represent:
      1. Within a village in the constituency he or she intends to run; and
      2. For a consecutive three (3) years ending on the day in which the nomination paper is lodged with the Respondent.
  4. The three (3) consecutive years referred to in section 8(1)(d)(ii) relates to the rendering of the monotaga, not the registration of the matai title. This can be gleaned from:
    1. section 8(1)(c) and 8(1)(d) of the Act making no express requirement that the matai title must have been registered for three (3) consecutive years ending on the day in which the nomination paper is lodged with the Respondent; and
    2. the definition of monotaga in subsection 8(5) of the Act which defines “monotaga” as “the compulsory service, assistance or contribution (such as, contribution in form of cash, kind or goods) rendered for customary, traditional or religious activities, events, function or similar purposes pursuant to the customs of a particular village”. The Act also does not define “monotaga” to be in respect of a matai title that has been registered for three (3) consecutive years.
  5. The effect of section 8(1)(c) and 8(1)(d) in terms of the rendering of monotaga is therefore:
    1. The intending candidate holds a matai title in a village within the constituency he or she intends to run;
    2. The matai title has been registered; and
    1. The intending candidate has carried out a monotaga for a period of three (3) years ending on the day in which the nomination paper is lodged with the Respondent in respect of that registered matai title.
  6. It is the rendering of the monotaga that is relevant for three (3) consecutive years ending on the day in which the nomination paper is lodged with the Respondent, not when the matai title was registered. The matai title simply needs to be registered.
  7. In the Applicant’s case, he was bestowed the Leumuava matai title from Fagafau conferred on the 2nd January 1988. The matai title was registered in January 2020.
  8. In the Statutory Declaration by the Sui o le Nuu, Lua’i Malu, he confirms that the Applicant “Leumuava Asalemo Tuimauga” had “rendered monotaga in our village for a minimum of three years through his matai title in accordance with customs of our village and therefore satisfies the monotaga requirements in subsection 8(5) of the Act.” (emphasis added) It is not disputed by the Respondent that the Applicant had rendered monotaga, only that his matai title had not been registered for three (3) years.
  9. For the reasons we have stated in terms of the interpretation of subsection 8(1)(c) and 8(1)(d) of the Act, we are satisfied that the Applicant:
    1. meets the qualification requirements of subsection 8(1) of the Act;
    2. fulfils all the requirements in subsection 47(2) of the Act; and
    1. is not disqualified by virtue of subsection 8(2).

The AIA 2015 Submissions.

  1. Given the determination we have reached earlier in terms of section 8 of the Act applying to the Applicant, we do not need to consider the AIA 2015 submissions by counsel in any detail. We record only that we are firmly of the view that section 8 of the Act applies to the Applicant. No “right” had accrued to the Applicant within the terms of section 25(1)(c) of the AIA such as to preserve the repealed section 8 as applying to the Applicant.

Respondent’s Application for Leave to Amend Notice of Opposition.

  1. On the day of hearing, counsel for the Applicant sought leave to amend its Notice of Opposition to include that the Applicant did not meet the residential requirements of section 8 of the Act. It was submitted that a reason why the Applicant’s nomination was rejected was his failure to meet that requirement. After hearing from counsel, we refused to grant leave and reserved our reasons. We now briefly set out our reasons as follows:
    1. The Respondent’s decision challenged by the Applicant was that at Annexure “H” to the affidavit of Ms Vaai;
    2. The Reason stated in the Respondent’s decision to reject the Applicant’s nomination was that it was because the “Matai title where monotaga is rendered was registered for less than three years.” The Respondent did not reject the nomination on the basis of residency;
    1. The Applicant had prepared for these proceedings on the basis only that monotaga was at issue and nothing else;
    1. To grant leave would unnecessarily protract these proceedings which require judgment within 20 working days of the filing of the Motion (section 47(3)(a)) and likely prejudice the Applicant; and
    2. The “Checklist” attached as Annexure “G” to the affidavit of Ms Vaai raised a query in respect of the Applicant’s Passport and travel information and notes the necessity to “obtain Stat. Dec from doctor.” The Respondent did not cite that as a reason for his rejection of the Applicant’s nomination and this did not form part of the Respondent’s reasoning to reject the Applicant’s nomination.

Conclusion.

  1. Accordingly, we make the following orders:
    1. the Respondent’s determination to reject the Applicant’s nomination as a candidate for the 2021 general elections pursuant to subsection 47(2) is set aside; and
    2. the Applicant satisfies the qualifications requirements of the Act and the Respondent is accordingly ordered to enter the name of the Applicant as a candidate for the Constituency of Salega 1; and
    3. the Respondent pay costs of the Applicant in the sum of $1,500.00.

ACTING CHIEF JUSTICE TUATAGALOA
JUSTICE CLARKE

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