Samu v Adams [2016] WSSC 10 (25 February 2016)

SUPREME COURT OF SAMOA
Samu v Adams [2016] WSSC 10

Case name:	Samu v Adams
Citation:	[2016] WSSC 10
Decision date:	25 February 2016
Parties:	AMITUANAI FAGAIVALU KENRICK SAMU of Lalomanu, Candidate and LEOO TAUTALATASI ADAMS of Lotopa and Lalomanu, Candidate
Hearing date(s):	23 February 2016
File number(s):
Jurisdiction:	Civil
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Chief Justice Sapolu Justice Vaai
On appeal from:
Order:	The respondent Leo’o Tautalatasi John Adams is disqualified from being a candidate for the territorial constituency of Aleipata Itupa i Luga in the upcoming general elections. Costs of $1,000 are awarded to the applicant against the respondent. Copy of this judgment is to be served on the Acting Electoral Commissioner forthwith
Representation:	S Wulf for applicant
	R Faaiuaso for respondent
Catchwords:	Service requirement – false declaration
Words and phrases:	Respondent has not satisfied service requirement Respondent disqualified from being a candidate
Legislation cited:
Cases cited:	Electoral Act 1963
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

IN THE MATTER: of the Territorial Constituency of Aleipata Itupa i Luga.

A N D:

IN THE MATTER OF:

a motion for disqualification of candidate pursuant to s.5(9) of the Electoral Act 1963

BETWEEN:

AMITUANAI FAGAIVALU KENRICK SAMU of Lalomanu, Candidate.
Applicant

A N D:

LEOO TAUTALATASI ADAMS of Lotopa and Lalomanu, Candidate.
Respondent

Coram: Sapolu CJ
Vaai J

Counsel:
S Wulf for applicant
R Faaiuaso for respondent

Hearing: 23 February 2016

Judgment: 25 February 2016

JUDGMENT OF THE COURT DELIVERED BY VAAI J

Introduction

1. The applicant Amituanai Fagaivalu Kenrick Samu and the Respondent Leoo Tautalatasi Adams were two of the three candidates, nominated for the General Elections scheduled for the 4^th March 2016 to elect a member of Parliament to represent the Constituency of Aleipata Itupa i Luga when nomination of candidates closed on the 12^th February 2016.
2. By Notice of Motion dated 15^th February 2016 the applicant sought orders pursuant to section 5 (9) Electoral Act 1963 to disqualify the respondent and to have his name removed as a candidate for the Constituency upon the grounds:
   • (i) that respondent has not satisfied the village service requirement as he has not rendered service to his village of Lalomanu in accordance with the customs of Lalomanu within 3 years prior to the close of nominations as required by sections 5 (3) (c) and 5 (3A) of the Electoral Act 1963.
   • (ii) the first respondent filed a false declaration required by section 5 (3) (c) the Electoral Act, declaring that he has rendered service to the village in accordance with its customs and traditions.
3. Section 5 (3) (c) of the Act provides:
   • 5 (3) A person is disqualified as a candidate, or from election as a Member of Parliament representing a constituency, if the person:
     • (c) does not have a statutory declaration, in Form 1A of the Schedule 1, witnessed by a barrister and solicitor of the Supreme Court in private practice, that the candidate satisfies the 3 year residential requirement in paragraph (b) and satisfies village service requirement.

Response by the Respondent

4. In opposing the application the Respondent contended that he has rendered service to Lalomanu village for a period in excess of 3 years prior to close of nominations, has not made a false declaration and is accordingly qualified to be a candidate.

Village Service

5. Village service pursuant to section 5 (3A) in relation to territorial constituencies means:
   • (a) monotaga rendered by a candidate in respect of one or more of his or her matai titles within the territorial constituency in which the candidate intends to stand as a candidate;

Monotaga is defined in the same section as:

“the compulsory service, assistance or contribution (such as, contribution in form of cash, kind or goods) rendered for customary, traditional or religious activities, events, function or similar purposes pursuant to the customs of a particular village.”

Issue for determination

6. It is common ground that if the respondent does meet the 3 year village service requirement he is not disqualified. The burden is on the applicant, who is seeking disqualification of the respondent to satisfy the court that the respondent has not rendered the required village service during the three years prior to the close of nominations.
7. Accordingly it is not necessary to consider the provisions of the Constitution and of the Electoral Act 1963 which provides the other grounds for disqualification of persons from being a candidate for, or being elected as a member representing a constituency.
8. The only issue therefore to determine is whether the respondent has not satisfied the village service requirement.

Case for the Applicant

9. The applicant and his witnesses testified that the respondent on the 5^th April 2014 attended the Lalomanu village fono for the very first time since he became a matai. He presented 20 cartons tinned fish and $2,000 cash and informed the village fono the presentation was the commencement of his tautua (service) to the village.
10. Given that the respondent’s service to the village commenced in April 2014, he has therefore failed to satisfy the 3 year village service required by the Act and is therefore disqualified as a candidate.

Case for the Respondent

11. While admitting that he did make a presentation to the village fono on the 5^th April 2014 the respondent told the court it was his first attendance of a village fono and the presentation was for that purpose only. Since he was bestowed the matai title in 1984, he has since then, through the head matai (sa’o) of his family, Letalu Lokeni, rendered services to his village. He therefore denied that his services to the village began in 2014.
12. But when the sa’o of his family died in 2005, the respondent’s services to his family, village and church then lapsed. He was also absent from Samoa in 2006 and 2007 for further studies in New Zealand as it was in the nature of his profession as a doctor to pursue continuing education and additional qualification.
13. However in September 2009 when the tsunami visited Samoa, the Aleipata district was one of the devastated areas and his services to his village as a doctor and matai recommenced. Every Wednesday from the 30^th September 2009 to May 2015 (approximately 6 ½ year) the respondent travelled from Apia to Lalomanu, and conducted weekly clinics at the Lalomanu hospital between the hours of 9am to 6pm. The patients paid $5 fee to the Lalomanu hospital but the respondent’s services were free. An average of 50 to 60 patients was attended to every Wednesday. He says at paragraph 13 of his affidavit:
    • “In all the circumstances it is difficult to put a monetary sum on my total tautua, the quality and the quantity, suffice to say that I have provided medical consultation services for free to just about every resident of Lalomanu village, from the elderly to a new born baby during this period, October 2009 to May 2015.

Submissions by the Applicant

14. Counsel for the applicant submitted firstly that the medical services provided by the respondent to the village of Lalomanu and the district through the clinics every Wednesday were not free. He was paid $150 an honour by the National Health Service to manage the weekly clinics.
15. Secondly it was submitted that even if the weekly medical clinics were provided free of charge, the medical services do not satisfy the meaning of village service stipulated under section 5 (3A).

Submissions by the Respondent

16. Counsel for the Respondent admits that the National Health Service paid the respondent for the weekly clinics at Lalomanu but he contended nonetheless that it was the respondent who travelled from his home in Apia to Lalomanu everyday to attend to 50 – 60 patients since October 2009 to May 2015, and provided the much needed medical assistance.
17. The submissions also targeted the 3 year period prior to the closing of nominations on the 12^th February 2016. He stated at the final paragraph (47) of his submissions:
    • 47. Accordingly it is submitted that the words “at least 3 years ending ...” should be given a fair, large and literal interpretation such that the assistance in kind and goods and contribution in the form of cash, rendered by the first respondent to his village of Lalomanu over the years and ending on nomination should be taken into account thus making him eligible to be a candidate for the 2016 General Elections.

Discussion

18. The Court accepts that since the tsunami in 2009 the respondent has been rendering medical services to Lalomanu village and the Aleipata district through the weekly visits and conducting clinics every Wednesday. This service continued until May 2015.
19. The court also accepts that in April 2014 the respondent commenced to attend the village fono monthly meetings and personally rendered his monotaga to the village rather than through the sa’o of his family. Which means that when his weekly clinics ceased in May 2015 the respondent was still rendering service through his monotaga till the day of nomination. It follows that the 3 year period prior to nomination is not an issue.
20. The issue is whether the weekly medical clinics conducted from October 2009 to May 2015 qualifies to be a village service under section 5 (3A) of the Act. Village service as stated in paragraph 5 above and defined in section 5 (3A) means monotaga rendered by a candidate, and monotaga means the compulsory service, assistance or contribution, (cash, kind or goods) rendered for customary, traditional or religious activities, pursuant to the customs of the village.
21. The court agree with counsel for the applicant that the medical service provided by the respondent cannot be termed monotaga as it was not a compulsory service, assistance or contribution, rendered for the customary, traditional or religious activities pursuant to the customs and traditions of Lalomanu. The weekly medical clinics were arranged by the National Health Service of Samoa who paid the respondent $150 per hour to manage the clinic. Similar medical clinics were conducted by the National Health Service in other districts and managed by other medical doctors.
22. The respondent did concede that his monotaga ceased in 2005 with the death of the sa’o of his family. And it was not until after the tsunami in 2009 that he revived his services to the village through the medical clinic.
23. It was not until April 2014 that he recommenced rendering monotaga by personally contributing, and rendering service to the customary and traditional activities of the village. His compulsory service to the village through his monotaga therefore did not commence until April 2014, less than 3 years prior to close of nomination.
24. He has obviously not satisfied the village service requirement.

Result

1. The respondent Leo’o Tautalatasi John Adams is disqualified from being a candidate for the territorial constituency of Aleipata Itupa i Luga in the upcoming general elections.
2. Costs of $1,000 are awarded to the applicant against the respondent.
3. Copy of this judgment is to be served on the Acting Electoral Commissioner forthwith.

CHIEF JUSTICE

JUSTICE VAAI