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Schuster v Electoral Commissioner [2020] WSSC 86 (3 December 2020)

IN THE SUPREME COURT OF SAMOA
Schuster v Electoral Commissioner [2020] WSSC 86

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

IN THE MATTER:
of the Constitution and the Electoral Act 2019

BETWEEN:

FATA RYAN SCHUSTER, Businessman, of Afega.

Applicant

A N D:

THE ATTORNEY, sued for and in respect of the ELECTORAL COMMISSIONER under the Electoral Act 2019 and the Constitution.

Respondent

Coram:
Justice Nelson
Justice Roma

Counsel:
T Malifa for applicant
G Patu for Respondent

Hearing: 09 November 2020
Ruling: 09 November 2020
Reasons: 03 December 2020

RULING OF THE COURT

1. As indicated on 09 November 2020 this is the full Ruling of the Court with Reasons incorporated.
2. The Applicant by Amended Notice of Motion dated 06 November 2020 seeks to invalidate the decision of the Respondent to reject his nomination as a candidate for the 2021 General Election. The Respondents decision was based primarily on the Applicants failure to comply with section 8(1)(c) & (d)(ii) of the Electoral Act 2019 which relevantly provides:
   • “8. Qualification to run as a candidate in elections:
   • (1) A person is qualified to run as a candidate for elections if that person:
   • (c) is a holder of a registered matai title for the Constituency the person intends to represent; and
   • (d) has rendered a monotaga in respect of the registered matai title under paragraph (c) -
   • (ii) for a consecutive three (3) years ending on the day in which the nomination paper is lodged with the Commissioner.”
3. The Respondent has filed a Motion to strike out the Application on the basis of non-compliance with the requirements of section 8(1)(d)(ii).
4. The issue of non-compliance arises from the uncontested fact that the Applicants title of ‘Fata’ pursuant to which he has been rendering monotaga in his home village of Afega was only registered in the Register of Matais following confirmation (“faamaonia”) of same by Land and Titles Court of Appeal decision dated 09 January 2020 over-ruling the earlier decision of the Land and Titles Trial Court dated 20 November 2015 invalidating (“soloia”) conferral of the said title on the Applicant in 2014. It appears from the Applicants affidavit filed in support of his Motion that registration of his title was effected on the day of the Land and Titles Court of Appeal decision viz 09 January 2020.
5. In our respectful view it matters not as submitted by the Applicant who in law “effected” the registration whether it was the Registrar or the Court. In practice the Land and Titles Court itself does not carry out title registrations. The Land and Titles Act 1981 section 22 empowers the Registrar of the Court to keep the Register of Matais wherein all matai titles in the country are registered and directs him in section 23(9) to only make entries into the Register on matters submitted to the Court in accordance with any “order or direction of the Court.” There is therefore no question the Applicants matai title of Fata in the village of Afega was validly registered according to the laws in the Register of Matais by the Registrar on 09 January 2020 following confirmation of same by the Land and Titles Court of Appeal.
6. The Applicant has argued that the pivotal date is not 09 January 2020 but in fact the date of the Applicants saofai in 2014. He relies on the use by the Land and Titles Court of Appeal of the words “faaauau nofo i le suafa Fata na soloia e le Fa’aiuga 2015”. In fact the words used are “faaau nofo i le suafa” but notwithstanding that obvious typographical error, these are used only in the Reasons (“Mafuaaga”) portion of the decision and is in reference to what the parties to the litigation agreed upon. What was actually decided is in the next section headed Decision (“Faaiuga”) which uses the words “o nofo uma ua faamaonia” i.e. conferral of the titles are hereby confirmed. This can only mean “hereby confirmed” as of the date of the decision of the Court.
7. There is no indication in the Faaiuga that the confirmation is to be back-dated to 2014 or some other time. It is questionable that even if it so stated, whether the Land and Titles Court has power to backdate the confirmation of a “nofo” that has been declared null and void (“soloia”) by the Court. The Land and Titles Act in fact makes it a criminal offence to disobey any decision or order of the Land and Titles Court interim or otherwise: section 75(1)(a) of the Act. The use of a title the conferral of which has been declared null and void by the Court would amount to disobeying an order and direction of the Land and Titles Court. Backdating the validity of a conferral is inconsistent with such a legislative scheme. Quite apart from the customary and other practical implications of such a course of action.
8. The Applicant also argued that section 8(1)(d)(ii) breached the Applicants Constitutional right to personal liberty under article 6(1) of the Constitution. As pointed out to counsel it is our clear view article 6(1) has no application to the present situation. That article relates to the unlawful physical deprivation of liberty and movement of a person as opposed to restrictions on his qualification to run as a candidate in the General Elections of the country. We certainly would require extensive and thorough argument and analysis on such a Constitutional issue before the court could even entertain an extension of article 6(1) beyond its clear context.

Decision

9. We are of the view that section 8(1)(d)(ii) is clear in its terms. In this case the three (3) year monotaga period must be calculated from the date of confirmation of the matai title in respect of which monotaga is claimed. Monotaga as a matter of Samoan custom and tradition cannot be rendered for a title that has been invalidated (“soloia”) by the Land and Titles Court because the title is no longer held by the matai in question. To this extent we take judicial notice of the relevant customs and traditions of the country. In this matter the Applicants monotaga period for the purposes of section 8(1)(d)(ii) can only begin to run from 09 January 2020 when his title was legally confirmed/reinstated.
10. The Application fails and must be dismissed. As costs have not been agreed upon by the parties we rule as follows: this matter has raised an important issue of interpretation of section 8(1) of the Electoral Act 2019 which in our view could have been better drafted. Each party will accordingly bear their own costs.

JUSTICE NELSON
JUSTICE ROMA