Tuitui v Attorney General [2011] WSSC 16 (25 February 2011)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINU'U

IN THE MATTER:

of a claim for certiorari and Declaratory Orders and relief under the Constitution of the Independent State of Samoa, the Judicature Ordinance 1961 and the Declaratory Judgments Act 1988.

BETWEEN:

TU'ULA KILIRI LAFI TUITUI,
matai of Saleapaga and resident of Vaimoso.
Applicant

AND:

ATTORNEY GENERAL sued for and on behalf of the
ELECTORAL COMMISSIONER
appointed pursuant to section 3 of the Electoral Act 1963 as amended.
First Respondent

AND:

UTAULU VIIGA of Saleapaga, village pulenuu.
Second Respondent

Counsel: L R Schuster for applicant
P Bednall and M T Lui for first respondent
Second respondent in person

Hearing: 17 February 2011

Conclusions: 18 February 2011

Judgment: 25 February 2011

JUDGMENT OF SAPOLU CJ

1. This is another urgent motion for judicial review this Court had to deal with expeditiously in order to determine whether the applicant is qualified to run as a candidate in the general election on 4 March 2011 before the close of nominations of candidates. After the hearing of the applicant's motion for a declaratory order and certiorari on Thursday 17 February 2011, I stated my conclusions on 18 February at 9:30am as nominations of candidates for the forthcoming general election were to be closed at 12 noon on the same day. I indicated in my conclusions that my judgment with reasons will be made available to counsel this week. This is that judgment.
   

Applicant's motion for judicial review

2. The applicant's motion for judicial review seeks the following remedies:
   
   • (a) a declaratory order to strike down s.5 (3) (c) and s.5 (3A) of the Electoral Act 1963 as unconstitutional for contravening Article 13 (a) and (b) of the Constitution; and
     
   • (b) an order of certiorari to quash the decision of the first respondent to disqualify the applicant from being a candidate in the general election on 4 March 2011 given that the pulenuu of Saleapaga, Lepa, has declared that the applicant does not satisfy the village service requirements as defined in s.5 (3A) of the Act.
     

Section 5(3) of the Electoral Act 1963

3. Section 5(3) of the Electoral Act 1963 ("the Act"), which was introduced into the principal Act by s.4 (c) of the Electoral Amendment Act 2009, insofar as relevant, provides:
   

"(3) A person shall be disqualified as a candidate, or from election as a Member of Parliament representing a constituency, if he or she:

(a) ....

(b) Has not resided in Samoa for a period equalling or exceeding three (3) years ending with the day on which the nomination paper is lodged with the Commissioner; or

(c) Does not have a statutory declaration in Form 1A in the Schedule form:

"(i) The Pulenuu of his or her village; or

"(ii) Any other person determined by the Commissioner, if the Commissioner is of the opinion that the Pulenuu is unable to, or cannot properly, provide the statutory declaration,

"that the candidate satisfies the three (3) year residential requirement in paragraph (b) and, unless the Commissioner is satisfied that the candidate is banished from his or her village, satisfies village service requirements.

"(3A) For the purposes of this section, 'village service requirements' means the services a matai renders to his or her village in accordance with the customs of that village".

4. It is s.5 (3) (c) that is at the heart of these proceedings.
   

Constitutional provisions relating to the applicant's motion

5. During the oral submissions by counsel for the applicant, it appeared that the constitutional provisions which are relevant to the applicant's motion are Article 13 (1) (a) and (b) and Article 45. Article 13 (1) (a) and (b) provides:
   

"All citizens of Samoa shall have the right:"

"(a) To freedom of speech and expression;"

"(b) To assemble peaceably and without arms;"

6. Article 45 which provides the qualifications for a person to become a Member of Parliament states:
   

"(1) Any person shall be qualified to be elected as 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".

Affidavit evidence in support of the applicant's motion

7. Seven affidavits were filed in support of the applicant's motion. These were affidavits of the applicant Tuula Kiliri Lafi Tuitui, his relatives Lopa'u Togifa'i, Tuula Fuaina, and Tuitui Salevao Tupua, and two other persons Faafouina Falanaipupu and Pulemanufiu Tupua.
   
8. The applicant is a matai of Saleapaga, Lepa, but he resides at Vaimoso near Apia. He says in his affidavit that since he became a matai of his village Saleapaga he has been contributing to the affairs of his village and rendering services to his village. In most cases, his aunty Toga Sa'olaititi who resides at Saleapaga is the person who informs him of village matters and activities and it is through her that he provides his contributions to the affairs of the village. In recognition of his contributions and services, he would occasionally receive food items from distributions of foodstuffs by his village. The applicant also says in his affidavit that the last service he performed for his village is the electrical wiring of the Saleapaga Primary School.
   
9. The applicant further says in his affidavit that he approached the pulenuu of Saleapaga, Utaulu Viiga, who is the second respondent in these proceedings, three times for a statutory declaration on residential and village service requirements as he wants to run as a candidate in the forthcoming general election on 4 March 2011. On each occasion, the pulenuu refused to provide a statutory declaration.
   
10. As nominations of candidates for the forthcoming general election were to close at 12 noon on Friday, 18 February, the applicant filed this urgent motion for relief citing the Attorney General on behalf of the Electoral Commissioner as first respondent and the pulenuu of Saleapaga as second respondent.
    
11. The deponents Lopa'u Togifa'i, Tuula Fuaina, Tuula Ponesi, and Tuitui Salevao Tupua, who are relatives of the applicant, say in their affidavits that the applicant has been contributing to the affairs of their village and rendering services to their village of Saleapaga since he became a matai in 2005. Following the tsunami in 2009, the applicant provided electrical services to the homes of some of the affected villagers. The applicant also carried out the electrical wiring of the Saleapaga Primary School. It is public knowledge that Saleapaga was one of the worst affected villages during the tsunami of 29 September 2009. I have to say that the evidence of Lopa'u Togifa'i and Tuitui Salevao Tupua who actually live in Saleapaga are more weighty than the evidence of Tuula Fuaina who lives at Moataa and Tuula Ponesi who lives at Vaitele-fou.
    
12. The deponents Faafouina Falanaipupu and Pulemanufiu Tupua, both of whom live at Saleapaga, also say in their affidavits that the applicant contributes food items and money to village maters and in return the applicant is given food items and monies when the village makes distributions. Both these deponents also say that following the tsunami in 2009, the applicant provided electrical services to those families of the village whose homes were affected. The last service the applicant performed for the village was the electrical wiring of the Saleapaga Primary School. Apparently, the applicant is an electrician by trade.
    

Affidavit evidence in opposition to the applicant's motion

13. Apart from the affidavit of the Electoral Commissioner ("the Commissioner"), three affidavits were filed by matais of Saleapaga in opposition to the applicant's motion. These were the affidavits of Utaulu Viiga the pulenuu of Saleapaga, Sagale Lauliliu Sagale who is 71 years old and one of the two prominent title holders of Saleapaga, and Falanaipupu Emau who is 68 years old and one of the prominent matais of Saleapaga.
    
14. The deponent Sagale Lauliliu Sagale says in his affidavit that he has lived in Saleapaga all his life and since he became a matai in 1993 he has been attending meetings of the village council where contributions or services rendered to the village are discussed. To the best of his knowledge, the applicant has not provided any contribution or rendered any service to the village. The applicant also does not live in the village and is rarely seen in the village. Sagale also says that he is a member of the same congregation as the family of the applicant and he knows that the applicant does not make any contributions to the church. In other words, the evidence of Sagale shows that the applicant does not perform any monotaga (service) to the village or to the church.
    
15. Furthermore, Sagale says in his affidavit that the applicant has offered to do the electrical wiring of the new school building for the village but that will be paid for by the village. Sagale also says that the applicant was present at the tsunami memorial service of their village but so were all the other people of Saleapaga to honour the memory of loved ones who lost their lives in the tsunami.
    
16. The deponent Falanaipupu Emau says in his affidavit that he participates in the meetings of the village council of Saleapaga and he is aware of all the matais and their contributions and their services monotaga to the village. All such contributions and services are noted down by a special committee which reports to the village council. Falanaipupu says that since the applicant became a matai of the village he has never provided any contribution or rendered any service monotaga to the village. He also does not recall ever seeing the applicant at any Aso Gafua (Monday meeting) of the village.
    
17. Falanaipupu further says in his affidavit that recently the applicant offered to carry out the electrical wiring of the new school building of the village. As president of the village committee responsible for the construction of the new school building, he refused the offer by the applicant as the village already had an electrician for that task. However, the applicant proceeded with the electrical wiring of the new school building saying it was not related to the elections. The village has since met and resolved to pay the applicant for the work he has done when the new school building is officially opened.
    
18. Falanaipupu confirms that the applicant attended the memorial service of their village to honour the memory of loved ones who lost their lives in the 2009 tsunami but so were all the other people of the village. He finally says in his affidavit that Tuula Ponesi and Tuula Fuaina who have filed affidavits in support of the applicant's motion reside in Apia and are rarely seen in the village.
    
19. The pulenuu of Saleapaga deposes in his affidavit that he has lived all his life in his village of Saleapaga and to the best of his knowledge the applicant has not made any contribution to village matters or activities since he was bestowed with a matai title in 2005. The village notes the contributions made by each matai of the village and this is how the village knows the matais who have made contributions. This record shows that the applicant has not made any contribution to the village. Last year the applicant attended the village tsunami memorial service like most of the Saleapaga people overseas and in Apia but that is not regarded as a service to the village.
    
20. The pulenuu also says that the applicant does not live in the village and has not attended any

Aso Gafua (Monday meeting) of the village.

21. The pulenuu further says that when the applicant came to him and requested a statutory declaration to confirm he has rendered service to the village he refused because the applicant has not provided any contribution or rendered service to the village. He then informed the Commissioner by letter dated 9 December 2010 about the matter.
    

Affidavit evidence of the Commissioner

22. The Commissioner says in his affidavit that on 9 December 2010 he received a letter from the pulenuu of Saleapaga. In that letter he was advised by the pulenuu that he (the pulenuu) will not sign the statutory declaration required under s.5 (3) (c) (i) of the Electoral Act 1963 for the applicant because the applicant has not rendered any village service. So when the applicant informed him towards the end of January 2011 that the pulenuu had refused to sign the required statutory declaration he advised the applicant to see the pulenuu again and request him to sign the statutory declaration. The next day, the applicant advised him that the pulenuu would still not sign the statutory declaration. The Commissioner says he then suggested to the applicant to see the pastor of the village if he could assist. However, the applicant later informed him that the village pastor had also refused to sign.
    
23. The Commissioner further says in his affidavit that he has read the affidavits filed in support of the applicant's motion and the affidavits filed in opposition. Based on all those affidavits and presumably the letter dated 9 December 2010 from the pulenuu, the Commissioner says that he is not of the opinion that the pulenuu is unable or cannot properly provide a statutory declaration. He therefore declines to nominate another person to provide that declaration.
    

Oral testimony of the applicant

24. Towards the end of the hearing of the applicant's motion for judicial review on Thursday afternoon 17 February, counsel for the applicant sought leave from the Court for the applicant to file an affidavit in reply to the affidavits opposing the applicant's motion. I declined to grant leave to the applicant to file such an affidavit as it would mean the hearing will continue on to Friday 18 February but nominations of candidates for the general election were to close at 12 noon on the same day. However, I granted leave to the applicant to give oral testimony straightaway in reply to the opposing affidavits.
    
25. It became clear from the applicant's oral testimony that he has never attended any Aso Gafua (Monday meeting) of his village ever since he became a matai in 2005. It also became clear from the applicant's oral testimony that his electrical wiring of the Saleapaga Primary School was done on a contract basis and he is to be paid for that work in full. It further became clear from the applicant's oral testimony that he has not provided any contribution or rendered any service to his village. He says he gives money to his aunty at Saleapaga when requested but it was clear during cross-examination by the pulenuu that the applicant's aunty has never mentioned any monetary contribution to the village or the church from the applicant. The cross-examination of the applicant by the pulenuu also revealed that the village of Saleapaga has never given any food items to the applicant in recognition of any contribution or service provided by him to the village. It was clear to me that the applicant's own oral testimony confirm what the deponents Sagale, Falanaipupu, and the pulenuu say in their affidavits opposing the applicant's motion and not what is said in the affidavits filed in support of the motion about the applicant providing contributions and rendering services to the village.
    

Discussion

26. Dealing first with the applicant's motion for a declaratory order that s.5 (3) (c) and s.5 (3A) of the Electoral Act 1963 are unconstitutional as contravening Article 13 (1) (a) and (b) of the constitution, I have to say that I am far from being persuaded that such a declaratory order should be granted. Article 45 (1) of the Constitution which deals with the qualifications for parliamentary membership provides that any person shall be qualified to be elected as a Member of Parliament if (a) he is a citizen of Samoa, and (b) he is not disqualified under the provisions of the Constitution or of any Act. Article 13 (1) (a) and (b) do not deal with the disqualification of a Member of Parliament. They deal with freedom of expression and the right to assemble peaceably and without arms. It was also not sufficiently explained how s.5 (3) (c) and s.5 (3A) of the Electoral Act 1963 could contravene Article 13 (1) (a) and (b) of the Constitution. A statutory provision enacted by Parliament is not to be lightly struck down as unconstitutional without full arguments supported by relevant authorities from counsel raising the constitutional challenge. The declaratory order sought on behalf of the applicant is therefore refused.
    
27. In relation to the motion for certiorari to quash the decision of the Commissioner said to be based on the declaration by the pulenuu of Saleapaga that the applicant does not satisfy village service requirements as defined in s.5 (3A) of the Act, I am of the clear view that certiorari should also be refused.
    
28. It is clear from the affidavit evidence filed in opposition to the applicant's motion for judicial review and the oral testimony of the applicant himself that the applicant has not rendered any village service and therefore does not satisfy village service requirements as defined in s.5 (3A). It would have been irresponsible and unlawful for the pulenuu of Saleapaga to sign a statutory declaration which says that the applicant satisfies village service requirements when the pulenuu well knows that the applicant does not. That is the true reason why the pulenuu did not sign a statutory declaration. He says in his affidavit that he did not want to make a false declaration. So it was not necessary for the Commissioner to nominate another person to provide a statutory declaration. It would only be necessary for the Commissioner to do so if he is of the opinion that the pulenuu is 'unable' or 'cannot properly' provide a statutory declaration in terms of s.5 (3) (c). I have already explained s.5 (3) (c) in Leota Leuluaialii Ituau Ale v Electoral Commissioner (2011) (judgment of 23 February 2011) and do not propose to do so again in this judgment. The pulenuu was not 'unable' or 'cannot properly' provide a statutory declaration in terms of s.5 (3) (c). He was indeed physically and mentally capable of providing a statutory declaration but the reason why he did not provide such a declaration on village service requirements was because the applicant had not rendered any village service at all.
    

Conclusions

29. (1) For the foregoing reasons, I have reached the following conclusions on the motion for judicial review by the applicant Tuula Kiliri Lafi Tuitui:
    
    • (a) The declaratory order sought by the applicant to strike down s.5 (3) (c) and s.5 (3A) of the Electoral Act 1963 as contravening Article 13 (1) (a) and (b) of the Constitution is refused.
      
    • (b) The order for certiorari sought by the applicant to quash the decision of the first respondent, the Electoral Commissioner, to disqualify the applicant from being a candidate for the territorial constituency of Lepa in the general election on 4 March 2011 given that the pulenuu of Saleapaga has declared that the applicant has not satisfied the village service requirements in terms of s.5 (3) (c) of the Electoral Act 1963 as defined in s.5 (3A) is also refused.
      

(2) The result of the above conclusions is that the applicant is not qualified in terms of s.5 (3) (c) of the Electoral Act 1963 to run as a candidate for the territorial constituency of Lepa in the general election on 4 March 2011.

CHIEF JUSTICE