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Leniu v Electoral Commissioner [2020] WSSC 84 (2 December 2020)

IN THE SUPREME COURT OF SAMOA
Leniu v Electoral Commissioner & Anor [2020] WSSC 84

MISC 253/20 & MISC 266/20

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

IN THE MATTER:
of an application under section 47 of the Electoral Act 2019 as amended by the Electoral Amendment Act (No.2) Amendment 2020.

BETWEEN:

FUATIMAU MAUMEA LENIU, Businessman, Matai of Laulii and Electoral Candidate of Vaimauga 1, Samoa.

Applicant

A N D:

THE ATTORNEY, sued for and on behalf of the ELECTORAL COMMISSIONER, responsible for Administering the Electoral Act 2019.

First Respondent

A N D:

MAGAILEFUA MAPOSUA TUIAFISO GAFOALEATA FAITUA, Matai of Laulii and Fagalii.

Second Respondent

Coram:
Justice Nelson
Justice Clarke

Counsel:
L Su'a-Mailo for the Applicant
E Schmidt and S Tuala for the First Respondent
T Leavai for the Second Respondent
Hearing: 18 November 2020
Decision: 19 November 2020
Reasons: 02 December 2020

MOTION OUT OF TIME: REASONS

1. By Motion dated 05 November 2020 filed on 06 November 2020 the Second Respondent/Applicant challenges the decision of the First Respondent (“the EC”) rejecting his nomination under his title ‘Maposua’ as a candidate from the village of Laulii in the upcoming 2021 General Election (“GE”). As the Motion was filed out of time, on 19 November 2020 we dismissed it and indicated our Reasons would be provided in due course. These are those Reasons.
2. The uncontested timeline of relevant events as per the affidavits filed is as follows:

17 September 2020 Public notice issued by the EC pursuant to section 45 of the Electoral Act 2019 (“EA”) fixing the date for opening and closing of nomination of candidates for the GE.
13 October 2020 Nomination period commences.

23 October 2020 at 12:00 noon nomination period closes. Second Respondent files his papers at 11:45a.m. under his titles ‘Maposua’ and ‘Magailefua’ of Laulii. According to Second Respondents affidavit in support of his Motion, at 11:55a.m. the EC acting through Assistant Electoral Commissioner Faumui Daryl Mapu rejected his nomination under the title ‘Maposua’ but accepted it under his title ‘Magailefua’.

30 October 2020 Applicant challenges the decision of the First Respondent to accept the ‘Magailefua’ nomination.
31 October 2020 Second Respondent served with notice of the challenge.

02 November 2020 All electoral challenges called for mention in Supreme Court. No appearance by Second Respondent.

04 November 2020 Second Respondent served with Summons to appear on 06 November 2020.

06 November 2020 Electoral matters re-mentioned in Supreme Court. Hearing dates allocated. Second Respondent appears through counsel. Motion by Second Respondent challenging EC decision to reject the ‘Maposua’ nomination filed. Application for extension of time also filed. All matters adjourned to 19 November 2020 for hearing.

16 November 2020 Court advises matter brought forward to 18 November 2020 for hearing.

17 November 2020 At 3:00p.m. Second Respondent serves Applicant and EC with his Motion.

18 November 2020 Applicant seeks to be joined as a party to the Motion and together with the EC applies to have the Motion struck out.

Second Respondent files Notice conceding Second Respondents absence of monotaga under his title ‘Magailefua’.

Second Respondents application for extension of time heard.

19 November 2020 Court delivers written ruling rejecting application for extension of time and disqualifying Second Respondent from competing as a candidate under his title ‘Magailefua’.

3. The relevant provisions of the Electoral Act that govern this matter are sections 8(1)(d), 47(3)(a) and 47(4) which provide:
   • “8. Qualification to run as a candidate in elections:
   • (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 (c) –
       • (i) within a village in a constituency which the person intends to run as a candidate; and
       • (ii) for a consecutive three (3) years ending on the day in which the nomination paper is lodged with the Commissioner.
   • 47. Acceptance of nomination:
   • (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
   • (4) An order made under subsection (3) is final and is not subject to any review or appeal.”
4. It is clear from the whole tenor of section 47(3) and (4) that Parliament intended time to be of the essence in determining challenges to these decisions of the EC. Further that by virtue of section 47(4) there be finality on the matter.
5. There is no provision whereby the court is given a discretion to extend any of the time limitations prescribed. The time limits are clear and unambiguous and as noted in our 19 November 2020 Ruling “Parliament is very clear in what it provides by the EA provisions” and “The court has no jurisdiction or power to extend time in such matters.”
6. The Second Respondent/Applicant had by virtue of section 47(3)(a)(i) until “no later than 12:00 noon of the 7^th day after nomination” to file any challenge to the decision of the EC. Despite being advised at 11:55 am on 23 October 2020 of the decision of the EC he did nothing until two weeks later when on 06 November 2020 his lawyer filed his Motion. With the result that the Motion is clearly well out of time. There being no jurisdiction in the court to extend time for reasonable or any other cause, the application for extension of time must fail. Even if there were such jurisdiction we would not be inclined to grant an extension. The Second Respondent has been most dilatory in pursuit of his remedies.
7. The argument by counsel for the Second Respondent that the court retains a power to extend based on authorities relating to leave to extend time for filing criminal appeals cannot succeed. That is an entirely different context and exists where the court has been expressly conferred the power to extend time beyond the designated statutory time limit “where the court is satisfied there were reasonable grounds for the delay and that in the interests of justice such extension ought to be granted.” (section 139(3) of the Criminal Procedure Act 1972 as preserved by section 148(3) of the Criminal Procedure Act 2016). A similar power existed under the equivalent New Zealand legislation where these authorities are drawn from. Here no such power has been expressly or impliedly given by Parliament which instead has opted for a scheme of strict time compliance. The cases cited have no application to the present matter.
8. For these reasons the Second Respondents application for extension of time was denied.
   

JUSTICE NELSON
JUSTICE CLARKE