PacLII Home | Databases | WorldLII | Search | Feedback

Supreme Court of Samoa
You are here:  PacLII >> Databases >> Supreme Court of Samoa >> 2020 >> [2020] WSSC 88

Database Search | Name Search | Recent Decisions | Noteup | LawCite | Download | Help

Moala v Electoral Commissioner [2020] WSSC 88 (11 December 2020)

IN THE SUPREME COURT OF SAMOA
Moala v Electoral Commissioner & Anor [2020] WSSC 88


Case name:
Moala v Electoral Commissioner & Anor


Citation:


Decision date:
Decision: 27 November 2020
Reasons: 11 December 2020


Parties:
PAPALII TAVITA MOALA, Businessman, of Faleula (Applicant) v THE ATTORNEY GENERAL, for and on behalf of the ELECTORAL COMMISSION and COMMISSIONER (First Respondent) and FETAIA’I VAAULI, Sui o le Nuu, Faleula (Second Respondent)


Hearing date(s):
11th & 17th November 2020


File number(s):
MISC 248/20


Jurisdiction:
CIVIL


Place of delivery:
Supreme Court of Samoa, Mulinuu


Judge(s):
Justice Nelson
Justice Tuala-Warren


On appeal from:


Order:
Accordingly, we find that section 156(1)(c) as presently drafted is capable of referring to any consecutive three year period.
Permission for the new evidence to be admitted is denied.
As indicated in our Ruling delivered on 27 November 2020, we are of the view that given the importance and significance of the legal issues raised, each party in this matter will bear their own costs.


Representation:
M. Lui: for the Applicant
S. Ainuu and Pritchard for the First Respondent


Catchwords:
Electoral challenge – statutory interpretation – monotaga requirement – new evidence (request denied).


Words and phrases:


Legislation cited:
Acts Interpretation Act 2016 ss. 7; 7(3); 7(3)(a); 7(4); 7(5);
Criminal Procedure Act 2016 s. 157;
Electoral Act 2019 ss. 8(1)(d); 8(1)(d)(ii); 8(1)(e); 8(2)(b)(ii); 8(6)(b); 47; 47(1); 47(2); 118; 156(1)(c); 156(1)(c)(ii);
Evidence Act 2015; s. 83;
Internal Affairs Act 1995, s. 14.


Cases cited:
Aloaina v Ah Samuelu [2001] WSSC 17;
Jennings v Estate of Ioane Onesemo [2010] WSCA 12;
Pita v Liuga [2001] WSSC 20;
Police v Chankay [2009] WSSC 72;
Shannon v Shannon [2005] WSCA 83;
Siueva v Attorney General [2020] WSCA 5.


Summary of decision:

MISC 248/20


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 section 5 of the Electoral Amendment Act (No. 2) 2020.


BETWEEN:


PAPALII TAVITA MOALA, Businessman, of Faleula.


Applicant


A N D:


THE ATTORNEY GENERAL, for and on behalf of the ELECTORAL COMMISSION and COMMISSIONER.


First Respondent


A N D:


FETAIA’I VAAULI, Sui o le Nuu, Faleula


Second Respondent


Coram: Justice Nelson
Justice Tuala-Warren


Counsel: M. Lui for the Applicant
S. Ainuu and Pritchard for First Respondent

T. Leavai for the Second Respondent


Hearing: 11 & 17 November 2020
Decision: 27 November 2020
Reasons: 11 December 2020


REASONS FOR THE DECISION

Given the strict time limitations imposed by Parliament for consideration of all challenges to the decision of the First Respondent to accept or reject nominations of candidates for the 2021 General Election (“GE”), the Court on 27 November 2020 issued its Conclusions in this matter. It also indicated in paragraph 3 of its written Ruling circulated to all parties that day:

“As the issues involved in this application were very complex, full written Reasons for our decision will be made available to counsel in due course”.

These are those Reasons.

Introduction

  1. This is an application brought under section 47 of the Electoral Act 2019 as amended by the Electoral Amendment (No 2) Act 2020 (“EA”) seeking an order from the Court to qualify the Applicant Papalii Tavita Moala (“Papalii”) whose nomination to run as a candidate in the 2021 GE from the village of Faleula Territorial Constituency of Sagaga-1 in Sagaga le Falefa was rejected by the Electoral Commissioner (“the EC”). The rejection was on the basis that Papalii does not meet the qualifications prescribed by section 47(1) and 47(2) because the Second Respondent Fetaiai Vaauli Fineaso (“Fetaiai”) the current Sui o le Nuu for the village of Faleula did not sign the Form 3 required by the EA confirming residency and monotaga to the village for a minimum period of three consecutive years.
  2. As the essential facts were not in dispute all affidavits were tendered by consent of counsel and were duly taken into consideration. There were seven affidavits from the Applicant, one from the First Respondent and seven from the Second Respondent. We however had to hear evidence on one contested matter, viz. an earlier document dated 31 July 2020 allegedly signed by the Second Respondent certifying the Applicants 3 year monotaga and residency in the village of Faleula.

Issues

  1. Several issues arose in relation to the interpretation of relevant provisions of the EA. We observe at this juncture and strongly recommend that the EA be thoroughly reviewed and revisited given the matters raised in this and other applications that have been brought before the Court. The drafting and constant amendment has resulted in a piece of legislation which can sometimes be confusing and inconsistent with the practices and understanding of the EC. We sympathise with the many dilemmas faced by the EC.
  2. Counsel were asked to file submissions in relation to the interpretation issues in this case being: the meaning to be attributed to the words “consecutive three years” in section 156(1)(c), the meaning of the phrase “a Sui o le Nuu” in section 8(2)(b)(ii) and the impact if any of section 118.
  3. There was also a late application by the EC to admit new evidence.

Law in relation to Statutory Interpretation

  1. We remind ourselves of the relevant principles of statutory interpretation as codified by section 7 of the Acts Interpretation Act 2015 (“AIA”):

Meaning of Consecutive Three Years in section 156 (1)(c)

  1. The relevant part of section 156 provides;

SCHEDULE

(Section 156(1)(c)(iii))

Column 1
Column
Territorial Constituency
Electoral Constituency
Vaimauga Sisifo 1
Vaimauga 2
Vaimauga 3
Vaimauga 4
Vaimauga Sisifo 2
Vaimauga 2
Vaimauga 3
Vaimauga 4
Faleata Sasae
Faleata 1
Faleata Sisifo
Faleata 2
Faleata 3
Faleata 4
Sagaga le Falefa
Sagaga 1
Sagaga 4
Aana Alofi No.3
Aiga i le Tai
Aana Alofi 4
Aiga i le Tai
Aiga i le Tai
Safata Sisifo
Gagaemauga No.2
Safata 1
Safata Sasae
Safata Sisifo
Safata 2
Vaa o Fonoti
Anoamaa Sasae
Vaa o Fonoti
Anoamaa Sasae
Vaa o Fonoti
Anoamaa 1
Faasaleleaga No.1
Palauli le Falefa
Faasaleleaga 1
Palauli le Falefa
Palauli 2
Gagaemauga No.1
Gagaemauga No.2
Gagaemauga 1
Gagaemauga No.1
Sagaga le Falefa
Sagaga 3
  1. Section 156(1)(c)(ii) applies to the Applicant because he intends to run as a candidate for Sagaga 1 from the village of Faleula and Faleula was previously under the Territorial Constituency of Sagaga Le Falefa.
  2. The Applicant argues that the meaning of “consecutive three years” in s.156(1)(c) is any three-year period. He submits that s.156 is intended to be an exemption from s.8(1)(d) because candidates affected by the new divisions in territorial constituencies would not be able to qualify under section 8(1)(d).
  3. To that end he filed with the EC an affidavit by the Pulenuu during those years, Papalii Malesi Faamausili, confirming the Applicant had rendered his monotaga to Faleula for the consecutive three years 1999-2001. The Applicant also filed an affidavit and gave evidence that he had carried out his monotaga in the village of Faleula during the years 1999-2001.
  4. The EC submits that s156(1)(c) is to be read together with section 8(1)(d) of the EA which requires that the consecutive three years should be calculated from the date of lodgement of the nomination papers with the Commissioner. It is submitted that the interpretation of the Applicant is contrary to the intention of Parliament. The Commissioner submitted on the basis of the Explanatory Memorandum for the Electoral Amendment Bill (No 2) 2020. The whole Explanatory Memorandum was not provided to the Court, only the relevant portion concerning s.156.
  5. The Second Respondent in his Submission says it was Parliament’s intent, in line with the residency requirement, that the monotaga is limited to the three consecutive years ending on the day on which the nomination papers are lodged with the EC. It is further submitted that such intent is sensible and practical. It is argued that the Applicants interpretation will open floodgates for people to abuse the process, disregard the interests of voters and those currently living in the village/Electoral Constituency and disrespect Parliament and its intent for the Electoral Act.
  6. In construing Acts of Parliament, s.7 of the AIA requires that the intention of Parliament be derived from those matters listed in s.7(3). The first of these requirements is s.7(3)(a) - “the plain meaning of ordinary words”. If the intent of Parliament can be thus derived, in our view that is the end of the matter. But if the intent is unclear then the other factors enumerated in 7(3) require consideration.
  7. If upon completion of that exercise the intent is still unclear or in the terms of s.7(4) “would produce an ambiguous result or a result which cannot reasonably be supposed to correspond with the intention of Parliament” then the words in issue are to receive “such fair large and liberal construction and interpretation as will best ensure the attainment of the object of the Act according to its true intent meaning and spirit”. To this end the legislative history including the Explanatory Memorandum and the other matters listed in s.7(5) can then be taken into account.
  8. This is in keeping with the modern purposive approach to statutory interpretation as applied by the Court in cases such as Pita v Liuga [2001] WSSC 20 and Aloaina v Ah Sam [2001] WSSC 17.
  9. In applying these principles to s.156(1)(c), we note the following:
  10. If such be necessary, the court takes judicial notice of the fact that all Parliamentary Legislation including the present statute and amendments is initiated on proper instructions and is drafted by duly qualified legislative specialists who would have fully considered and analysed the relevant provisions, their wording and interpretation; before being referred to a specialist Parliamentary Committee to consider. That Committee would have likewise undertaken an exhaustive review of the changes and its implications before recommending it to Parliament as a whole as acceptable. From there it comes to be considered and debated by a Parliament of knowledgeable, able, competent and experienced lawmakers who would have similarly vetted every word phrase and nuance before enacting these matters as law. The Court will not lightly interfere with such an intricate, detailed and sophisticated process and assume that Parliament intended anything other than the natural and ordinary meaning of the words it has passed into law.
  11. Furthermore, the relevant clause of the Explanatory Memorandum 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”. As indicated above our reading of the Explanatory Memorandum is that the transitional arrangements have been put into place to cater for the electoral constituencies in Column 2 of the Schedule which are different from the territorial constituencies which 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 formed as a result of the various boundary changes. There is nothing in the Explanatory Memorandum which allows us to infer into s156(c) the additional words as submitted by the EC. In fact Parliament’s intent seems to be the opposite. The words “consecutive three years” are plain and unambiguous and they have not been made subject to the rider suggested by the EC. The Court is duty bound to give effect to the intention of Parliament, not to second guess it. The intention of Parliament is to be derived from the words of the Act having regard to “the plain meaning of ordinary words” – s.7(3)(a) AIA 2015. It would be a breach of the doctrine of separation of powers for us to impute into legislation words or a limitation that Parliament has deliberately omitted. If the omission is accidental only Parliament can correct this, not the Court because that would mean the Court would be making law which is not its function.
  12. We are slightly confused about the ‘floodgates’ argument put forth by the Second Respondent. It perhaps comes from not comprehending the meaning of ‘transitional and savings provisions’ and the fact that the changes effected by s.156 apply only for the coming 2021 GE and do not continue on into other GEs.

Result

  1. Accordingly we find that section 156(1)(c) as presently drafted is capable of referring to any consecutive three year period.

Meaning of Sui o le Nuu in section 8(2)(b)(ii)

  1. The office of Sui o le Nuu is created and governed by section 14 of the Internal Affairs Act 1995:
  2. Fetaiai Vaauli Fineaso is the current Sui o le Nuu for Faleula. He gave evidence that the Applicant has never rendered monotaga to the village of Faleula. He says that is why when he was approached by the Applicant in October 2020 he did not sign Form 3 which is a Declaration confirming monotaga and residence.
  3. The EC submits that without the required form from the current Sui o le Nuu, he must reject the Applicant’s nomination.
  4. Fetaiai is alleged however to have previously signed a document confirming the Applicant’s monotaga on 31st July 2020. This document was part of the requirements for the Applicant to join the newly formed FAST political party.
  5. Fetaiai denied signing this document.
  6. The Applicant called two taxi-drivers Faigalotu Tavita and Se’aina Sepulona from the Main Taxi Stand at Faleula who said that they witnessed Fetaiai sign a monotaga document in July 2020 in their fale taavale where they were playing pool. Fetaiai was said to be a regular of the pool table. These witnesses were independent, credible and steadfast.
  7. His signature on the document was compared to his two signatures in his affidavit.
  8. We are not handwriting experts but we find that the signatures are identical in all material respects. The Court is the ultimate arbiter of such evidence. We adopt for these purposes the observations in Police v Chankay [2009] WSSC 72 where the Court said:
  9. Fetaiai was not credible and we did not foot for one moment believe his evidence. Wee. We find that he lied under oath when he said he did not sign the document dated 31 July 2020 and direct that the First Respondent refer him to the Police for possible perjury charges.
  10. The relevance of our finding that he signed a monotaga confirmation on 31 July 2020 and then refused to certify a similar document in October 2020 is that he is dishonest and withheld his signature for reasons other than monotaga. Alternatively that he signed a false document on 31 July 2020 confirming the Applicants monotaga and residency. Added to the mix is a further letter dated 5 October 2020 to the EC from a number of Faleula matais including Fetaiai stating the absence of monotaga of the Applicant. We will not speculate as to the reasons for these conflicting documents but as a representative of the Government, all statutorily appointed Sui o le Nuu and Sui Tamaitai should be mindful of making decisions and signing documents based on disingenuous motives. We find Fetaiai was such a person and invite the EC to consider whether this Sui o le Nuu has also breached s.8(6)(b) of the EA.
  11. In any event, because we have found that Papalii Malesi, the Pulenuu for 1999-2001, is able to confirm monotaga under s.156(1)(c) and in fact did sign an affidavit dated 13 October 2020 to that effect, the withholding of Fetaiai’s signature is irrelevant to the main issues of the case.

New evidence

  1. The affidavits before the Court show that the EC on 22 October 2020 at 10.47am rejected Papalii’s nomination for not having the Sui o le Nuu’s confirmation of monotaga. According to documents subsequently produced to the Court, Papalii Malesi the former pulenuu purportedly sent an email to the EC on the same day, but at night at 7.28pm, withdrawing his affidavit dated 13 October 2020 in which he confirmed Papalii’s monotaga. The Motion to challenge the EC decision was filed on 29 October 2020 and served on the Respondents on 30 October 2020. The affidavit of the Applicant which accompanied the Motion contained the affidavit of Papalii Malesi confirming the Applicant’s 3 years monotaga. The hearing of this matter was on 11 November 2020 wherein we considered Papalii Malesi’s affidavit. For some reason the above-referred late night email was neither referred to or disclosed by the First Respondent to the court or in its written Response to the Motion. On 13 November 2020 however an Application to admit new evidence including the late night email was filed by the EC.
  2. The EC is applying to admit new evidence, being the Commissioner’s affidavit dated 13 November 2020 which attaches the late night email dated 22 October 2020, as well as a letter dated 10 November 2020 signed before a Justice of the Peace in New Zealand, from Papalii Malesi purporting to withdraw his affidavit dated 13 October 2020.
  3. The Second Respondent does not oppose the admission of the new evidence on the basis that “it is so strong that it would reasonably be expected to be decisive for this matter”.
  4. The Applicant opposes the application on the basis that the evidence proposed to be admitted is not new but was known to the EC before the hearing, the evidence is not credible given it attempts to retract a sworn affidavit, and the evidence if admitted will have no bearing on the decision of the Court in this matter.
  5. Section 83 of the Evidence Act 2015 relevantly provides;
  6. The unfairness caused to the Applicant is his inability to test the purported new evidence given the rigid timeframe imposed by Parliament for dealing with all pre-electoral matters. This unfairness cannot be remedied by an adjournment nor an award of costs.

Case Law

  1. In Siueva v Attorney General [2020] WSCA 5, the Court of Appeal under section 157 of the Criminal Procedure Act 2016 (fresh evidence on appeal) stated that in order to succeed in such applications, an applicant must establish three elements:
  2. A slightly different expression of the test was used in Jennings v Estate of Ioane Onesemo [2010] WSCA 12, where a plaintiff brought proceedings to set aside an earlier judgment on the ground of fraud, and the defendant applied to strike out the proceedings. The Court of Appeal stated that where the plaintiff relies upon perjury as the ground for setting aside an earlier judgment, and the defendant applies to strike out those proceedings, the plaintiff must satisfy the Court that all four of the following requirements are present (as per Shannon v Shannon [2005] NZCA 83);
  3. The evidence of Papalii Malesi’s alleged change of heart is not newly discovered, nor can it be said that it could not reasonably have been given at the hearing. The EC had at all material times the late night email dated 22 October 2020 from Papalii Malesi. It is submitted that it was not relevant to his rejection of Papalii’s nomination. However, he was on notice that it would be an issue given Papalii’s Motion and affidavit in support challenging his rejection. The submission that the letter in the email dated 10 November 2020 is in legal form (witnessed by a JP) as opposed to the email of 22 October 2020 is nonsensical. The issue was raised by the Applicant’s Motion and again by the Court. It was evidence which was available during the hearing to the EC. The explanation as to why it was not put before the Court during the hearing or disclosed to the Applicant is not convincing.
  4. Emails from a person who has a sworn affidavit before the Court, purporting to retract that affidavit is by its very nature questionable, and prima facie lacks in bona fides. It is not strong evidence as opposed to a sworn affidavit. The purported recantation immediately raises issues of credibility and believability. We also note that the late night email and the email attaching the letter dated 10 November 2020 was sent from 2 different email addresses both purporting to belong to Papalii Malesi. As recent Workshops on Cyber Crime have demonstrated, an email can easily be generated and sent by anyone using another person’s email address.
  5. The Court given the tight timeframe of 20 days under statute in which to dispose of all pre-election challenges simply does not have the time necessary to test the reliability of the new evidence or the credibility of the supposed recantation by Papalii Malesi. Especially given that he is presently overseas.
  6. It is furthermore not in the interests of justice to allow the new evidence to be admitted in these circumstances where the new evidence was previously available to the EC. Thoroughness in preparation for the hearing should be encouraged and allowing this new evidence would encourage litigants to later bring in evidence which they had but due to lack of preparation or other factors did not think would be useful.
  7. When viewed in combination with the evidence given at the trial, it cannot be said that the Court acting reasonably, would decide the case in favour of the Respondents. Allowing these types of recantations also establishes a dangerous precedent which the Court should avoid. It would encourage an endless barrage of ‘changes of heart’ in cases with obvious political overtones.

Result

  1. Permission for the new evidence to be admitted is denied.

The application of Section 118

  1. Section 118 EA provides;
  2. We raised with counsel the issue as to whether section 118 which specifically refers to ‘election petition’ applies to pre-election challenges.
  3. We have considered counsel arguments in the matter and again we are restrained by the words used by Parliament. It chose to specifically limit the operation of the section to “the trial of an election petition”. We are unable for the reasons stated above to go beyond that express limitation and extend the operation of the section to matters other than “the trial of an election petition”.
  4. Given the many pre-election challenges the EC may well consider whether the section should be extended to other matters.

Costs

  1. As indicated in our Ruling delivered on 27 November 2020, we are of the view that given the importance and significance of the legal issues raised, each party in this matter will bear their own costs.

JUSTICE NELSON
JUSTICE TUALA-WARREN

PacLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.paclii.org/ws/cases/WSSC/2020/88.html