Esau v Neri [2001] WSSC 19 (8 June 2001)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

IN THE MATTER of the Electoral Act 1963.

AND

IN THE MATTER concerning the election of a Member of Parliament
for the Territorial Constituency of Gagaifomauga No. 2.

BETWEEN

FEO NEMAIA ESAU
of Vailoa and Lefagaoalii, a Candidate for the General Election 2001.
Petitioner

AND

SAFUNEITUUGA PAAGA NERI
of Vaivase and Fatuvalu, a Candidate for the General Election 2001.
First Respondent

AND

MASE DR TOIA ALAMA
Chief Electoral Officer.
Second Respondent

Coram: Sapolu CJ,
Vaai J,
Nelson J

Counsel: TAV Eti for petitioner
KM Sapolu for first respondent
Attorney-General BP Heather-Latu and Ms Betham-Hunter for second respondent

Hearing: 29, 30, 31 May 2001
Judgment: 8 June 2001

JUDGMENT OF THE COURT DELIVERED BY SAPOLU CJ

After the General Elections held on 2 March 2001, the official results were declared by the Chief Electoral Officer, the second respondent, on 12 March by public notice in the Gazette. The official results for the territorial constituency of Gagaifomauga No. 2 were as follows:

Feo Nemaia 271

Lao Sofai 148

Safuneituuga Paaga Neri 525

Tuu Ioane Tuu 132

Total number of formal votes 1,076

Votes rejected as informal 2

Safuneituuga Paaga Neri who is now the first respondent in these proceedings was accordingly declared as Member of Parliament for the Gagaifomauga No. 2 territorial constituency.

Following the declaration of the official results of the poll, the candidate Feo Nemaia, who polled the second highest number of votes, filed an election petition on 19 March seeking avoidance of the first respondent’s election under ss.112 and 113 of the Electoral Act 1963 on a number of grounds. The petitioner also sought an order to have himself declared as the duly elected Member of Parliament for his constituency.

Subsequently, counsel for the first respondent moved to strike out all the twelve allegations contained in the petition on the ground the allegations are not tenable in law. The Court struck out seven of the allegations leaving only five. At the commencement of the hearing of these proceedings on 29 May, counsel for the petitioner withdrew three of the remaining allegations thus leaving only two allegations for the petitioner to proceed with. These two allegations are as follows:

the first respondent was not qualified to be a candidate in the 2001 General Elections as she resided in Fiji prior to the elections and therefore did not satisfy the requirements for residency provided in s.5 of the Electoral Act 1963 for election candidates;

on 6 February 2001, Matiu Siaaga (a brother of the first respondent) and member of her campaign committee, in the company of one Autalavou Moafanua Omeri and Tautalafua Fiso, travelled to the village of Asau and handed monetary gifts of $50 and $30 respectively to one Sooalo Taesolo and Opeta Taesolo who are electors of the constituency of Gagaifomauga No. 2 residing at the home of Masoe Selota at Asau for the purpose of inducing those electors to vote for the first respondent.

Given the nature of the first of the two remaining allegations, a word must be said about the remedies sought by the petitioner under ss.112 and 113 of the Act. Section 112 provides for the avoidance of an election where a successful candidate is found guilty of a corrupt practice. Section 113 provides for the avoidance of an election where it is found that corrupt or illegal practices committed for the purpose of procuring the election of the successful candidate have so extensively prevailed that they may be reasonably supposed to have affected the result of the election. The first allegation is, of course, not related to any corrupt or illegal practice. It is directed at the eligibility or otherwise of the first respondent to run as a candidate in the 2001 General Elections. On that basis, it is not appropriate to seek avoidance of the first respondent’s election under s.112 or s.113. It would have been appropriate to seek an additional and separate declaration to void the election of the first respondent on the ground she was not qualified under s.5 of the Act to compete as a candidate in the 2001 General Elections. However, as no objection was taken to the form of the remedies the petitioner had chosen to seek from the Court, the Court will not take this matter any further.

We turn now to deal with each of the two remaining allegations in turn. As already stated, the first allegation is that the first respondent was not qualified to run as a candidate in the 2001 General Elections as she had resided in Fiji prior to the elections and therefore did not satisfy the requirement for residency provided in s.5 of the Act for election candidates. To understand what is involved in this allegation, it is necessary to start with the relevant provisions of the Constitution and the Electoral Act 1963.

Article 45 of the Constitution which provides the qualifications for parliamentary membership provides:-

“(1) Any person shall be qualified to be elected a Member of Parliament who:

(a) is a citizen of Samoa, and

(b) is not disqualified under the provisions of this Constitution or of any Act.

“(2) If any person other than a person qualified under the provisions of clause (1) is elected as a Member of Parliament, the election of that person shall be void.”

Article 45 of the Constitution thus not only provides the qualifications for parliamentary membership, it also provides that the election as a Member of Parliament of any person who does not hold any of those qualifications shall be void. It follows that if the first respondent does not hold any of the prescribed qualifications for parliamentary membership, then by virtue of Article 45(2) his or her election shall be void. Article 47 then gives the Supreme Court jurisdiction to deal with all questions that may arise as to the right of any person to be or to remain a Member of Parliament. A declaration could have been sought under Articles 45 and 47 to void the election of the first respondent as a Member of Parliament rather than under s.112 or s.113 of the Electoral Act 1963.

Section 5 of the Electoral Act 1963 is the statutory provision which has been enacted pursuant to Article 45 to deal with the question of who may be candidates for election as Members of Parliament. However, the qualifications for election candidates provided in s.5 of the Act are expressed in the form and language of disqualifications. Thus s.5(3), insofar as relevant, provides:

“A person shall be disqualified for being a candidate for, or being elected as a Member of Parliament representing a constituency if ........ that person has not resided in Samoa for a period equalling or exceeding 3 years ending with the day on which the nomination paper is lodged with the Chief Electoral Officer.”

So what s.5(3) does is to disqualify from running as an election candidate and from being elected as a Member of Parliament any person who did not reside in Samoa for a period of 3 years or more prior to the day he or she lodges her nomination form with the Chief Electoral Officer for a parliamentary election. In effect s.5(3) has created a 3 years residential requirement for prospective election candidates for a territorial constituency. However, it should be noted that while s.5(3) provides that the 3 years residential period ends on the day a candidate lodges his or her nomination form with the Chief Electoral Officer, s.5(7) provides that that 3 years period ends on nomination day. There is an apparent inconsistency between s.5(3) and s.5(7) because of the definition of the expression “nomination day” in s.2 of the Act. It shows that the day on which a candidate lodges his or her nomination form with the Chief Electoral Officer may not be the same day as “nomination day”.

Section 5(7) then goes on to define the expression “resided in Samoa for a period equalling or exceeding 3 years” which is used in s.5(3) by providing:-

“For the purpose of this section ‘resided in Samoa for a period equalling or exceeding 3 years’ shall mean a person has been in Samoa for at least 240 days in each year for a consecutive three year period ending on nomination day.”

The residential requirement of 3 years provided in s.5(3) really means a person only has to be in Samoa for a period of 240 days in each year for the period of 3 consecutive years ending on nomination day. It does not mean he or she has to be in Samoa for the full period of 3 years.

An exemption to the requirement of 3 years residency is then created by s.5(8). This provision, which is the crucial provision in this case, provides:

“The calculation of the time periods provided in subsection (7) of this section shall not include any temporary absences by persons who are required to be absent from Samoa pursuant to the conduct of official duties where they are the holder of a Government position, post or office or a member or official of a representative body or an organization which is based in Samoa.”

In effect what s.5(8) is saying is that any temporary absence by any person who is required to be absent from Samoa “pursuant to the conduct of his official duties” shall not be counted as days of absence from Samoa for the purpose of calculating the period of 240 days provided in s.5(7).

Having set out the relevant constitutional and statutory provisions, the Court will now state the gist of the dispute between the petitioner and the first and second respondents in relation to the first of the two remaining allegations in the petition. The petitioner claims that the absence of the first respondent in Fiji for nine months in 1999 to complete an undergraduate degree in the University of the South Pacific meant that she was not in Samoa for at least 240 days in 1999. As a consequence the first respondent did not satisfy the requirement of s.5(3) and s.5(7) that a prospective candidate for a parliamentary election must have resided in Samoa for at least 240 days in each year for a consecutive three year period ending on nomination day. It follows that the first respondent was not qualified to run as a candidate in the 2001 General Elections and the Chief Electoral Officer, as second respondent, was in error in accepting the nomination of the first respondent as a candidate for the elections. The first and second respondents on the other hand countered by saying that the absence of the first respondent in Fiji for nine months in 1999 to complete her Bachelor of Education degree at the University of the South Pacific was temporary absence from Samoa pursuant to the conduct of her official duties as lecturer at the National University of Samoa (NUS) in terms of s.5(8). It therefore follows that the exemption provided in s.5(8) applies to the first respondent and her absence in Fiji should not be taken as absence from Samoa for the purpose of calculating the time period provided in s.5(7). As it turned out, the rival arguments between the petitioner and the respondents resolved itself into the essential question of whether the first respondent was “absent from Samoa pursuant to the conduct of her official duties” as a lecturer at the NUS when she was in Fiji for nine months in 1999. If she was, then the exemption provided in s.5(8) applies to her and accordingly she was qualified to run as a candidate in the elections. If she was not, then the exemption does not apply to her and therefore she was not qualified to run as a candidate in the elections. To answer the question which has been posed, it is necessary to turn to the evidence. In doing so it is not necessary to deal in detail with all of the evidence that was given on this part of the case. It is the relevant evidence that counts.

The evidence, insofar as relevant, shows that the first respondent is a teacher educator by profession. In 1997 she joined the academic staff of the National University of Samoa as a lecturer in the Social Science and Practical Arts Department of the Faculty of Education. At the same time she studied towards a Bachelor of Education degree in the University of the South Pacific (USP) via distance through the USP extension centre in Apia. By the end of 1998 the first respondent had completed all the courses she needed to complete for her degree via distance from Samoa. That constituted 80% of the courses required for her degree. To complete the final stage of her degree, it was essential for her as a requirement of the USP that she did her final year full time on campus in Fiji. To enable her to do that she obtained a study leave from the NUS and a scholarship award from the Government.

The evidence of the witness Gatoloai Tili Afamasaga the Dean of the Faculty of Education of the NUS who was called by the petitioner, is that since the NUS first started, it has been its policy that all academic staff should have a first degree and she encouraged her staff (which includes the first respondent) in the Faculty of Education to pursue further studies and professional development. Mrs Afamasaga also said that her plans for the first respondent was to appoint her in due course as the Head of the Social Science and Practical Arts Department of the Faculty of Education. But the first respondent would not be eligible for that post unless she was the holder of a first degree. She also said that before the first respondent went to Fiji in 1999, she wrote a letter in support of the first respondent’s application to the professional development committee of the NUS for study leave to go to Fiji to complete her Bachelor of Education. After the professional development committee of the NUS had given its approval, the first respondent’s application was then sent to the council of the university which also gave its approval. It was only after those approvals were received that the first respondent then applied to the Staff Training and Scholarship Committee for a sponsorship to enable her to go to Fiji. According to the evidence of Onosefulu Fuatai, the Secretary to the Staff Training and Scholarship Committee, the application by the first respondent to the Staff Training and Scholarship Committee was given the endorsement of the NUS and was supported by the representative of the NUS on the Staff Training and Scholarship Committee.

When the first respondent left in 1999 for Fiji to complete her degree it is clear from her evidence and that of Mrs Afamasaga and the vice-chancellor of the NUS, Magele Mauiliu, that she still retained her post as lecturer at the university. As part of NUS policy the first respondent was also still paid 50% of her salary. The first respondent was also required to return and teach at the university after completion of her degree in Fiji. And according to the first respondent it was always her intention to return and teach at the university at the completion of her degree which is exactly what she did. After her return to the university with her Bachelor of Education, the first respondent was appointed Head of the Social Science and Practical Arts Department of the university, the position which she held up to the time she ran as a candidate at the 2001 General Elections.

It is also to be noted that during Mrs Afamasaga’s examination in chief by counsel for the petitioner, the following question and answer appear at p.39 of the transcript of the evidence:

Q. Now do you consider her (i.e. the first respondent’s) attending university in Fiji in 1999 was part of her official duties?

A. I would believe so and I would say that because I was instrumental in encouraging all of my staff to pursue further studies and professional development......And in addition to that, at that particular point in time there was an area of responsibility I was planning for Safuneituuga to move into and this was to be the Head of the Social Science and Practical Arts Department.....she needed to complete that degree in order to be able to take over the responsibility of HOD of the Department.

Then during the cross-examination of Mrs Afamasaga by counsel for the first respondent the following question and answer appear at p.41 of the transcript of the evidence:

Q. Now my learned friend has asked you when Tuuga went to Fiji, was she carrying out her official duties or was she a student. Are you able to say that when she went to Fiji to complete her degree she was doing that to improve or upgrade her professional qualifications, to upgrade her skills pursuant to the official duties she carried out in Samoa?

A. I believe so.

Furthermore during the cross-examination of Mrs Afamasaga by the Attorney-General appearing on behalf of the second respondent, the following question and answer appear at p.41 of the transcript of the evidence.

Q. Mrs Afamasaga what would have been the impact on Safuneituuga’s status had she not gone to finish her degree or if she had not finish her degree at all?

A. She would not have been able to be the Head of the Department of Social Science and Practical Arts if she had not completed her degree.

In a letter dated 13 February 2001 sent by the vice-chancellor of the NUS in connection with the first respondent’s nomination as an election candidate for the 2001 General Elections, the vice-chancellor pointed out that it is part of the staff development programme of the NUS that each member of the academic staff of the university is to have not only a first degree but that by the year 2003 all should have a minimum qualification of a masters degree. In his oral testimony the vice-chancellor stated this is an ambitious objective. That may be so. But it does not make it any less part of the NUS staff development programme. The vice-chancellor then goes on in his letter to say that it was in the interest of the university, and indeed of its Faculty of Education, that the first respondent was required to undertake studies in the USP, Fiji, in 1999, as part of her official duties. Under sustained questioning from counsel, the vice-chancellor maintained this part of his evidence.

After careful consideration of the evidence, there is no reason for the Court to doubt the integrity of the evidence given by Mrs Afamasaga and the vice-chancellor of the NUS. Given their respective positions in the university and their knowledge of and close association with the performance of official duties of the first respondent as lecturer in the university and the reason for the first respondent’s going to the USP in Fiji in 1999 to complete her Bachelor of Education degree, due weight should be accorded to the evidence of these witnesses. Their oral testimonies and demeanours in the witness stand gave no hint or suggestion that their respective testimonies was a fabrication to assist a professional colleague.

Turning back to the material words of s.5(8) of the Act whether the absence of the first respondent in Fiji in 1999 to complete her degree was a “temporary absence by a person who is required to be absent from Samoa pursuant to the conduct of official duties”, the evidence clearly shows that the first respondent falls within the ambit of those words. There is no dispute that the absence of the first respondent in Fiji was temporary. Furthermore the evidence of Mrs Afamasaga that it was the policy of the NUS since it started that all of its academic staff should have a first degree and that she encouraged her staff in the Faculty of Education to do further studies and professional development and that she supported the first respondent’s application for study leave in Fiji which was approved by the professional development committee and the council of NUS all go to show that the first respondent was required by the university to go to Fiji to complete her degree. Mrs Afamasaga’s evidence that she had plans as Dean of the Faculty of Education for the first respondent to be appointed to the post of Head of the Social Science and Practical Arts Department in the Faculty of Education, a post for which the first respondent would not be eligible unless she had a degree, again shows that the first respondent was required by the university to go to Fiji to complete her degree. The evidence by the vice-chancellor that it was part of the university’s staff development programme that each member of its academic staff should have a first degree and a masters degree by the year 2003, and that it was in the interest of the university that the first respondent was required to undertake studies at the USP in Fiji also shows that the first respondent was required by the university to go to Fiji to complete her degree. And the fact the first respondent was paid 50% of her salary during her absence and required to return and teach at the university at the completion of her degree further confirms that the university wanted the first respondent to go to Fiji to complete her degree.

As for the further requirement of s.5(8) that the first respondent’s absence must have been “pursuant to the conduct of her official duties”, the evidence of Mrs Afamasga and the vice-chancellor confirm that the absence of the first respondent in Fiji was pursuant to the conduct of her official duties as a lecturer at the university. It is impossible to see any other reason for the first respondent going to Fiji to complete her degree other than in connection with her official duties as a lecturer at the NUS which continued to retain her position and paid 50% of her salary during her absence. She was also required to return and teach at the university at the completion of her degree. She was also lined up for the post of Head of the Social Science and Practical Arts Department in the Faculty of Education when she completed her degree, and she was appointed to that post upon her return from Fiji.

It was contended for the petitioner that the first respondent went to Fiji as a student at the USP and not as part of her official duties as a lecturer at the NUS. Therefore, she does not qualify under the exemption provided by s.5(8). It is true of course that the first respondent went to the USP in Fiji to study as a student in order to complete her degree. But the question is not in what capacity the first respondent attended the USP in Fiji. The real question in terms of s.5(8) is whether she went to Fiji pursuant to the conduct of her official duties as a lecturer at the NUS. If she was, then she is entitled to the benefit of the exemption. If she was not, then the exemption does not apply to her. On the evidence before the Court there is no doubt about the answer to that question; the first respondent went to Fiji to complete her degree pursuant to the conduct of her official duties as a lecturer at the NUS. It is clear from the evidence that the first respondent went to Fiji by reason of her official duties. Perhaps the vice-chancellor’s evidence that in the eyes of the NUS the first respondent was still a lecturer at the NUS while completing her degree as a student at the USP in Fiji comes close to summing up the reality of the situation.

For the foregoing reasons, we hold that the first respondent falls within the exemption provided in s.5(8) of the Act. The first allegation therefore fails and is dismissed.

We turn now to the second allegation which is that on 6 February 2001 Matiu Siaaga (a brother of the first respondent) and member of her campaign committee, in the company of one Autalavou Moafanua Omeri and Tautalafua Fiso, travelled to the village of Asau and handed monetary gifts of $50 and $30 respectively to one Sooalo Taesolo and Opeta Taesolo who are electors of the constituency of Gagaifomauga No. 2 residing at the home of Masoe Selota at Asau, for the purpose of inducing those electors to vote for the first respondent. Here again it is not necessary to deal in detail with all of the evidence which was adduced in relation to this allegation. Only the relevant evidence really counts.

According to the evidence of the witnesses Salapo Opeta, an elector of the territorial constituency of Gagaifomauga No.2, and of Masoe Selota, a matai of Asau, who were called for the petitioner, they were fixing a barbed wire fence at Asau for Masoe Selota’s cattle in the morning of 6 February 2001 when Matiu Siaaga, a brother of the first respondent, Autalavou Moafanua Omeri and Tautalafua Fiso, all from the territorial constituency of Gagaifomauga No. 2, arrived in a red pick up vehicle. Matiu Siaaga enquired about Sooalo Taesolo who is an elector from the village of Samauga in the territorial constituency of Gagaifomauga No. 2 and the father of the witness of Salapo Opeta. Out of courtesy Masoe Selota invited the visiting party to go to his house where Sooalo Taesolo was. They were joined there by Salapo Opeta while Masoe Selota went to check the construction of his new convenience facility.

Inside the house Salapo Opeta and Sooalo Taesolo talked with the visiting party about the upcoming elections and Matiu Siaaga returned to Salapo Opeta his certificate of identity. He told Salapo Opeta that his name was missing from the electoral roll for the Gagaifomauga No. 2 constituency but had been put back on the roll. Shortly afterwards, the food which the witness Maima Opeta, the wife of Salapo Opeta, had been cooking for her family was served to the visitors. About the same time Masoe Selota came with another matai of Asau to the house and Masoe called out to Salapo Opeta to get a tugase (kava). Masoe Selota and two other matais of Asau then presented the tugase as their ava oso to the visitors. However, it was Sooalo Taesolo who made the speech that accompanied the presentation of the tugase as ava oso to the visitors.

After the presentation, Matiu Siaaga called to a member of his visiting party to go to the vehicle to bring his wallet. Matiu Siaaga then gave $50 to Sooalo Taesolo who had made the speech in presenting the ava oso, $30 to Masoe Selota, $10 to each of the other two matais of Asau, $10 to Salapo Opeta and $10 to his wife Maima Opeta. Of these persons only Sooalo Taesolo and Salapo Opeta are electors for the Gagaifomauga No. 2 constituency.

Sooalo Taesolo had prepared an affidavit for these proceedings but he was not able to appear to give evidence and confirm his affidavit as he is 86 years of age. The affidavits which were prepared and filed by the witnesses Salapo Opeta, Maima Opeta and Masoe Selota all state that the members of the visiting party namely, Siaaga Matiu, Autalavou Moafanua Omeri and Tautalafua Fiso were all members of the election campaign committee for the first respondent. However, in their oral testimonies, it became clear that these witnesses did not know whether Matiu Siaaga and members of his party were members of the first respondent’s election campaign committee. In Salapo Opeta’s oral testimony he said they were not sure whether the visiting party were members of the first respondent’s election campaign committee. In her oral testimony, the witness Maima Opeta said the reason why she thought that the members of the visiting party were also members of the first respondent’s election campaign committee was because Matiu Siaaga is a brother of the first respondent and they had come to return her husband’s certificate of identity. As for the witness Masoe Selota he said in his oral testimony that he does not understand the word “committee” used in his affidavit. In her oral testimony, the first respondent denied that Matiu Siaaga, Autalavou Moafanua Omeri and Tautalafua Fiso were members of her election campaign committee.

In our recent judgment delivered on 5 June in respect of the Individual Voters Election Petition, Between Jacob Olaf Jack Netzler & Others v Vang Sung Chan Chui, this Court dealt with the question of election agents in relation to members of an election campaign committee. We do not find it necessary to repeat what was said by the Court in that case about election agents because there is simply no satisfactory evidence that Matiu Siaaga, Autalavou Moafanua Omeri and Tautalafua Fiso were members of the first respondent’s election campaign committee or election agents so as to make the first respondent vicariously liable for their actions. Thus even if one were to assume that the actions by Matiu Siaaga and his party of giving out monies to Sooalo Taesolo and Salapo Opeta amount to bribery in terms of s.96 of the Act as alleged by the petitioner, that is not sufficient to make the first respondent vicariously liable for those actions in the absence of any evidence of election agency. Perhaps it should also be noted that there is no evidence that the petitioner had any knowledge of the monies given out at Asau. The onus is on the petitioner to prove his allegation beyond reasonable doubt. He has not done so. The second of the two remaining allegations in the petition therefore fails and is also dismissed.

In view of the conclusion we have reached, it is not necessary to express any view on the alternative argument presented for the first respondent that the presentation of monies at Asau by Matiu Siaaga and his party to Sooalo Taesolo and Salapo Opeta was simply compliance with Samoan custom unaccompanied by any corrupt motive to induce electors to vote for the first respondent at the elections. In not dealing with that argument, no discourtesy is intended towards counsel for the first respondent.

We turn now to the question of whether the presentation of monies made by Matiu Siaaga and his party at Asau constitutes an illegal practice in terms of the Act. Section 99A(2), which is the relevant provision, provides:

“Every candidate who, during a period of election, except at a funeral, directly or indirectly, by himself or by any other person on his behalf, renders or makes presentation of any food, beverage, money or other valuable to an elector of his constituency or to an individual voter, at a ceremony or 7activity, is guilty of an illegal practice”.

The wording of s.99A(2) imports no mens rea requirement and therefore suggests that liability for any of the acts provided is strict. However, there is no evidence that the first respondent by Matiu Siaaga and his party gave out monies at Asau to electors for the Gagaifomauga No. 2 constituency. In other words there is no evidence that Matiu Siaaga and his party were acting on behalf of the first respondent as her election agents. It follows that s.99A(2) does not apply and the first respondent cannot be held guilty of an illegal practice.

All in all then the petition is dismissed.

The Court will report its findings to the Honourable Mr Speaker.

Costs of $800 are awarded to the first respondent and $500 to the second respondent. These costs take into account not only the costs for the hearing of the petition, but also the costs which were reserved on the preliminary motion to strike out by the first respondent which was substantially successful.

Solicitors:
TAV Eti for petitioner
Sapolu Lussick for first respondent
Attorney General’s Office for second respondent