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Stowers v Electoral Commissioner [2020] WSSC 87 (4 December 2020)

IN THE SUPREME COURT OF SAMOA
Stowers v Attorney General for and on behalf of the Electoral Commissioner & Anor [2020] WSSC 87

IN THE SUPREME COURT OF SAMOA
AT MULINUU

IN THE MATTER OF:

Section 47 of the Electoral Act (No.2) Amendment

BETWEEN:

PALOA LOUIS JAMES STOWERS, of Vaitele

Applicant

AND:

ATTORNEY GENERAL for and on behalf of the ELECTORAL COMMISSIONER

First Respondent

AND:

TOI SAKALIA TAITUAVE, Sui o le Nuu, Vaitele

Second Respondent

Coram: Justice Nelson and Justice Tuala-Warren
Counsel: P. Chang for the Applicant
E. Schmidt & V. Leilua for First Respondent

P. Fepuleai for the Second Respondent
Hearing: 23-25 November 2020
Decision: 27 November 2020
Reasons: 4 December 2020

REASONS FOR DECISION OF THE COURT

As indicated when we verbally delivered our Decision on 27 November 2020, this is the Full Judgment including the Reasons for our Decision.

Introduction

1. This is an application brought by the Applicant Paloa Louis James Stowers (“Paloa”) under section 47 of the Electoral Act (No 2) Amendment 2020 (“EA”) seeking an order from the Court to qualify him as a candidate for the 2021 General Election (“GE”). His nomination was rejected by the Electoral Commissioner (“the EC”) on the basis that Form 3 was not signed by the current Sui o le Nuu confirming his monotaga. This is one of the requirements under section 47 EA.
2. We heard evidence from the Applicant, Tagaloa Peka Claire Poulava, Tauolo Inuvaisisi Grey, Suemalo Heki Toefoi, Tagaloa Siaosi Mataia Siu Taulalovasa, and Aualiitia Stowers for the Applicant, Faumui Daryl Mapu for the First and Second Respondents and Toi Sakaria Taituave, Pula Tavita, Toi Poutalie Maiava and Moe Naomi for the Third Respondent.
3. During closing submissions Counsel for the Third Respondent raised an issue in relation to section 8, that is, one of the matai who signed the Statutory Declaration confirming Paloa’s monotaga and residency did not herself meet the requirements under section 8(7) EA. The requirements are that she is to sit in the candidate’s Village Council and render monotaga in the Candidate’s village. The matai is Paloa’s wife, Aualiitia Stowers.
4. We allowed evidence to be called on this issue and considered Counsel’s submissions. We are of the view however that the Third Respondent is not “A candidate or a person who claims a right to be a candidate” and therefore he cannot challenge the decision of the EC under section 47(3). The only way to challenge the EC decision is under section 47(3). He has no standing to bring this challenge. Furthermore, this is a new issue and a new challenge which was not pleaded and it has been brought out of time. It also potentially exposes persons to allegations of making a false declaration, and natural justice and the Constitution require that both such persons be given an opportunity to be properly represented and heard. We accordingly reject the argument.
5. This decision will focus on Paloa’s challenge. Paloa is challenging the EC decision on the basis that he had performed his monotaga to Vaitele as per section 156 of EA, or alternatively as per section 8.

The Law

6. 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 in the prescribed form.
   • (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.
7. Section 156 is a transitional and savings provision and only applies to the GE 2021. Section 156(1)(c)(ii)(B) relevantly provides;
   • 156. Transitional and Saving Provisions:
   • (1) At the commencement of this Act:
     • (c) for the purpose of section 8(1)(d) -
       • (ii) a person contesting for elections from an Electoral Constituency listed in Column 2 of the Schedule, satisfies the requirements of that section if:
       • (A) the person has a registered matai title in the corresponding Territorial Constituency listed in Column 1 of the Schedule; and
       • (B) the person has rendered monotaga for a consecutive three (3) years through the matai title that is registered in the Territorial Constituency listed in Column 1 of the Schedule;

Discussion

Section 156

8. The Applicant submits that he falls within section 156, as he is an intending candidate contesting a seat in a new electoral constituency.
9. The First and Second Respondents submit that the Applicant does not fall within section 156 because it is intended to apply only to persons who rendered monotaga under a different registered matai title.
10. The Third Respondent submits that section 156 does not apply because the village of Vaitele did not become part of a different constituency.
11. We accept that this case falls within section 156 EA because Faleata Sisifo (in Column 1 of the Schedule) has become Faleata 3. Faleata 3 is a new Electoral Constituency listed in Column 2 of the Schedule.
12. The words of section 156 (1)(c)(ii)(B) are clear. It is not disputed that Paloa has a registered matai title in what was previously the territorial constituency of Faleata Sisifo. The question is whether he has rendered monotaga therein for a consecutive three years.

Consecutive three years

13. The Applicant argues that the meaning of “consecutive three years” in s156(1)(c) is any three year period. He submits that s156 is intended to be an exemption from s8(1)(d) because candidates affected by the new divisions in electoral constituencies would not be able to qualify under section 8.
14. To that end, he filed with the EC, a statutory declaration by the Sui o le Nuu during those years, Tauolo Inuvaisisi Grey, confirming the Applicant had rendered his monotaga to Vaitele for the years he was Pulenuu, being 2007 to 2019.
15. The First, Second and Third Respondents submit that s156(1)(c) refers to consecutive three years ending on the date of nomination, making it the last three years.
16. It is in our view significant that the relevant clause of the Explanatory Memorandum in relation to s156 only mentions consecutive three years and does not specifically refer to “consecutive three years ending on the day the nomination papers are lodged with the Commissioner”. Our reading of the Explanatory Memorandum is that the transitional arrangements are in place to cater for the electoral constituencies in Column 2 of the Schedule which are different from the territorial constituencies that previously existed. The overall intention appears to be to ease the requirements for those members and others who intend to run from the new electoral constituencies. There is nothing in the Explanatory Memorandum which allows us to infer into s156(c) the words as submitted by the EC. As we stated in Papalii Moala v AG and another (Misc 246/20) delivered on 27 November 2020, the words “consecutive three years” are plain and unambiguous. The intention of Parliament is to be derived from the words of the Act, having regard to the plain meaning of ordinary words.

Sui o le Nuu

17. Section 8(2)(b)(ii) EA provides that a Sui o le Nuu must have a statutory declaration in the prescribed form which is Form 3;
18. “8(2) A person is disqualified from contesting as a candidate for elections if that person does not meet requirements in subsection (1) and: (a) loses a qualification required to enable him or her to be registered as a voter of that constituency; or (b) does not have a statutory declaration, in the prescribed form, confirming that the candidate satisfies the requirements of subsections (1)(d) and (1)(e) - (i) sworn by the candidate and witnessed by a barrister and solicitor of the Supreme Court in the private sector; and (ii) subject to subsection (7) sworn by 2 matai and a Sui o le Nuu or Sui Tamaitai of the candidate’s village and witnessed by a barrister and solicitor of the Supreme Court in the private sector” [our emphasis].
19. Paloa submitted the statutory declaration of Tauolo Inuvaisisi as Sui o le Nuu for the years 2007-2019, in support of his nomination and confirming his residency and monotaga. Paloa’s evidence is that since he became a matai in 1999, he has been attending village council meetings and rendering his monotaga. He says the current Sui o le Nuu Toi Sakalia refused to sign his confirmation of monotaga, but he only became Sui o le Nuu last year.
20. Tauolo Inuvaisisi confirms that Paloa has been rendering monotaga since he has been Sui o le Nuu from 2007 to early 2019 when he was removed as Sui o le Nuu.
21. Due to the interpretation of the EC that consecutive three years means ending on the date of nomination, their submission is that it must be the current sui o le nuu who confirms monotaga. This is also the submission of the Third Respondent.
22. We accept the statutory provision does not say “current sui o le nuu” or “the Sui o le Nuu” which would mean the current Sui o le Nuu. Instead the word used is “a Sui o le Nuu”, a clear indicator of Parliament’s intention. Furthermore, if we allow Paloa’s monotaga from outside the last three years to make him eligible, then it follows that the Sui o le Nuu most familiar with those years is the one best placed to confirm his monotaga.
23. We are therefore satisfied that the Sui o le Nuu from 2007-2019 is able to confirm Paloa’s monotaga. The real issue is whether the facts establish such a monotaga.

Monotaga

24. Much evidence was heard from the Applicant and the Third Respondent about Paloa’s monotaga. Paloa falls under section 156 and therefore he needs to satisfy us on a balance of probabilities that he has rendered monotaga for a consecutive three years. Monotaga has been defined by Parliament under section 156 (2) which provides;
    • “For the purpose of subsection (1)(c): (a) “monotaga” means the compulsory service assistance or contribution (such as, contribution in form of cash, kind or goods) rendered for customary, traditional activities, events, functions or similar purposes pursuant to the customs of a particular village in the corresponding Territorial Constituencies in Column 1 of the Schedule”.
25. We however much prefer the Samoan version passed by Parliament which reads:
    • “Mo le faamoemoe o le faafuaiupu (1)(c): (a) “monotaga” o lona uiga o le tautua lē motusia, fesoasoani po o saofaga (e pei o saofaga e ala i tinoitupe, agalelei po o oloa) ua faapea ona tuuina atu mo faamoemoega faaleaganuu, o tu ma aga masani, mea e tutupu, taliga malo po o faamoemoega faapena e tusa ai ma tu ma aga a se nuu faapitoa i Itumalo Faaalaalafaga taufeagai o lo o i le Laina 1 o le Faamatalaga.”
26. The Applicant, his wife Aualiitia Stowers, Tagaloa Peka Poulava, Tauolo Inuvaisisi Grey, Seumalo Heki Toefoi and Tagaloa Siaosi Mataia Siu Taulalovasa gave evidence for the Applicant. Faumui Daryl Mapu gave evidence for the EC. Toi Sakaria, Pula Tavita, and Toi Poutalie Maiava gave evidence for the Third Respondent. The evidence of Poe Naomi related only to Aualiitias monotaga which we have ruled irrelevant.
27. Paloa says that he has performed monotaga in his village since 1999 under his title Paloa. His further affidavit specifically gives examples of monotaga within the last 3 years, 2017-2019. He tendered a photograph showing him at a meeting in 2017. His wife tendered one showing him at a 2018 meeting.
28. Tagaloa Peka who is the sister in law of Paloa also gives examples of Paloa’s monotaga from 2017-2019.
29. Tauolo Inuvaisisi who is the brother in law of Paloa gave evidence that Paloa became a matai at the same time as him in 1999 and since then, Paloa has been attending village council meetings for over 10 years and has rendered monotaga. He also provided examples of Paloa’s monotaga since 2017.
30. Paloa’s wife Auiliitia Stowers gave evidence that in the last three years, Paloa has been rendering monotaga and always attends village meetings.
31. Suemalo Heki says that since he became a matai in 2017 he has seen Paloa at village Council meetings.
32. Tagaloa Siaosi gave evidence that he has been a matai since 2007 and Paloa attends village meetings. He also gives examples of Paloa’s monotaga since 2017.
33. Toi Sakalia who is the current Sui o le Nuu and did not confirm Paloa’s monotaga to the EC, says in his evidence that since he has been the Vaitele Village Council’s secretary for 15 years, Paloa has not rendered monotaga to Vaitele. He became Sui o le Nuu in October 2019. He says that the examples of monotaga given by Paloa are family contributions and government projects which are not monotaga. He also says that Paloa does not attend village council meetings. He therefore supports the EC decision to reject Paloa’s nomination.
34. Pula Tavita who is 72 years old gave evidence that Paloa has not rendered monotaga to Vaitele. He has not seen him at village council meetings. He is a senior village matai who has been a matai for over 30 years.
35. Toi Poutalie says although his matai was only registered in 2017, he has rendered tautua in Vaitele since 2009 under a matai title from Satupaitea. He says that he has not seen Paloa at any village council meetings, nor does Paloa render any monotaga by tautua or otherwise to the village.

Discussion

36. We find that in relation to pre-2015 monotaga the evidence from the Applicant and his witnesses is very vague. Thus for example no specific three-year period is pinpointed. The general statements made that Paloa has rendered monotaga since 1999 do not satisfy us on a balance of probabilities that he did render monotaga in any three-year period outside the last three years. We accept the evidence of Pula Tavita and Toi Poutalie in this regard. They have been involved in the village for many years and their evidence is independent and more reliable. The witnesses for the Applicant bar one are not independent being either relatives or closely connected to the Applicant.
37. In relation to the last three years, namely 2017-2019, we find that the examples of monotaga provided are either family faalavelave for which family contributions are required or are projects which directly affect Paloa. We accept Toi Sakalia’s evidence in this regard. He was the Vaitele Village Council secretary for 15 years before he became Sui o le Nuu last year. His evidence should therefore be accepted as reliable in relation to what happens in the Village Council. The Applicant himself accepted monotaga includes attendance at village council meetings but at one point in his evidence conceded he did not attend every meeting, contrary to what his brother-in-law and former Sui o le nuu said.
38. We are therefore not satisfied to the required standard that Paloa as a matter of fact rendered monotaga for the three years 2017-2019.

Result

39. Accordingly, we make the following declarations;
    • (a) Although the Applicant falls under section 156 EA, his disqualification as a candidate remains because we are not satisfied on a balance of probabilities on the evidence presented that he has rendered monotaga to the village of Vaitele; and
    • (b) As to costs, this case raised important and fundamental issues of interpretation and application of the relevant provisions of the EA. There will accordingly be no order as to costs.

Observations

40. There are a few observations which we have made through the course of this trial. All are directed to the EC to consider in due course.
41. The statutory declaration (Form 3) signed by a candidate does not provide an option of section 156 EA. Many candidates are contesting new electoral constituencies, and yet Form 3 does not provide any information so that they are aware that the transitional provision applies to them. Obviously the September 2020 amendment is not reflected in the EC’s forms. This is entirely unsatisfactory.
42. The Statutory declaration which two matai must sign confirming the residency and nomination of their candidate does not require the matai to confirm that they sit in the candidate’s village council and render monotaga in the candidate’s village as per the requirements of section 8(7) EA. We are of the opinion that it should.
43. The whole issue of monotaga as defined by Parliament has caused problems of interpretation in this and the other matters before the Court. In particular, whether it should include sitting in every Village Council meeting. On this there is inconsistency in practice among the different villages. The issue should be revisited.
    

JUSTICE NELSON
JUSTICE TUALA-WARREN