Malielegaoi v Tuitui [2016] WSSC 5 (24 February 2016)

SUPREME COURT OF SAMOA
Malielegaoi v Tuitui [2016] WSSC 5

Case name:	Malielegaoi v Tuitui
Citation:	[2016] WSSC 5
Decision date:	24 February 2016
Parties:
Hearing date(s):	22 February 2016
File number(s):
Jurisdiction:	CIVIL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Chief Justice Sapolu and Vaai J
On appeal from:
Order:	-The respondent Tuula Kiliri Lafi Tuitui is disqualified from being a candidate for the territorial constituency of Lepa in the upcoming general election scheduled for 4 March 2016. -Costs of $1,000 are awarded to the applicant against the respondent. -A copy of this judgment is to be served on the Acting Electoral Commissioner forthwith.
Representation:	P A Fepuleai for applicant Leota-Su’atele Manusegi for respondent
Catchwords:	village service requirements -
Words and phrases:	“village service” - motion for disqualification under s.5 (9) of the Electoral Act
Legislation cited:	Electoral Act 1963, s.5(9), s.5(3A),
Cases cited:	Manoo Lutena Mulitalo v Attorney General [2001] WSSC 33
	In re the Constitution, Mulitalo v Attorney General [2001] WSSCA 8
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

IN THE MATTER

of the Territorial Constituency of Lepa.

A N D:

IN THE MATTER

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

BETWEEN

TUILAEPA LUPESOLIAI FATIALOFA SAILELE MALIELEGAOI of Lepa, Candidate.
Applicant

A N D

TUULA KILIRI LAFI TUITUI of Vaimoso, Candidate.
Respondent

Coram:
Sapolu CJ
Vaai J

Counsel:
P A Fepuleai for applicant
Leota-Su’atele Manusegi for respondent

Hearing: 22 February 2016

Judgment: 24 February 2016

JUDGMENT OF THE COURT DELIVERED BY SAPOLU CJ

The motion by the applicant

1. At the close of nominations of candidates on Friday 12 February 2016 for the upcoming general election on Friday 4 March 2016, the applicant Tuilaepa Lupesoliai Fatialofa Sailele Malielegaoi (the applicant) and the respondent Tuula Kiliri Lafi Tuitui (the respondent) were the only two candidates nominated for the territorial constituency of Lepa. The applicant has brought a motion pursuant to s.5(9) of the Electoral Act 1963 for an order by the Court to disqualify the respondent as a candidate for the said constituency on the ground that the respondent does not meet the village service requirements as the expression “village service” is defined in s.5(3A) of the Act. This is because according to the Alii and Faipule of the village of Saleapaga who have filed an affidavit in support of the applicant’s motion, the respondent as a matai of Saleapaga has not performed any monotaga or service to the village of Saleapaga for at least the last 3 years prior to the close of nominations for the general election on 4 March 2016. In terms of s.5 (10) of the Act, an order made by the Court on a motion for disqualification under s.5 (9) is final and not subject to review or appeal.

The relevant provisions of the Constitution and the Electoral Act 1963

2. Article 45 of the Constitution which provides the qualifications for a person to be elected as 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.

3. Section 5 (1) and (2) of the Electoral Act 1963 which provide the qualifications for a person to be elected as a Member of Parliament is based on and follows the provisions of Article 45 of the Constitution.
4. Section 5 (3) which provides the grounds for the disqualification of a person from being a candidate for a parliamentary election then states:
   • “A person is disqualified as a candidate, or from election as a Member of Parliament representing a constituency, if he or she:
     • “(a) loses a qualification required to enable him or her to be registered as a voter of that constituency; or
     • “(b) 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 Commissioner; or
     • “(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 requirements”.
5. Form 1A of Schedule 1 referred to in s.5 (3) (c) is in the form of a statutory declaration under the Oaths, Affidavits and Declarations Act 1963. It requires two matters of a person nominated as a candidate for election for a territorial constituency. The first is that he or she must have resided in Samoa for a period equalling or exceeding 3 years and therefore satisfies the 3 year residential requirement under s.5 (3) (b) of the Act. Secondly, it requires a person nominated as a candidate to have rendered services to his or her village for at least 3 years, up to the day his or her nomination paper is lodged with the Electoral Commissioner, pursuant to the customs of his or her village and therefore satisfies the village service requirements defined in s.5 (3A).
6. Other grounds for the disqualification of a person from being a candidate or for being elected as a Member of Parliament are provided in s.5 (5) of the Act but they are not relevant for present purposes.
7. In respect of an election candidate for a territorial constituency, the expression “village service” is defined in s.5 (3A) as:
   • “village service” means monotaga rendered by a candidate in respect of one or more of his matai titles within the territorial constituency in which the candidate intends to stand as a candidate”
8. The term “village” is defined in s.5 (3A) as:
   • “ ‘village’ means a village from which a matai title was conferred within a territorial constituency”.
9. And the term “monotaga” is defined in s.5 (3A) as:
   • “ ‘monotaga’ means 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”

The response by the respondent

10. The respondent opposes the motion for disqualification by the applicant on two grounds. The first ground is that ss.5 (3) (b) and (c), 5 (7) and 5 (8) of the Electoral Act 1963 are unconstitutional as they are in violation of Article 15 of the Constitution which provides for freedom from discriminatory legislation. More specifically, the respondent claims that the different residential requirements for candidates for a territorial constituency being 3 years and for a candidate for an urban constituency being 6 months is discriminatory and in violation of Article 15. Secondly, the respondent claims that he has satisfied the village service requirements by contributing to the affairs and fundraising activities of his village such as raffles for building the village church and other financial activities.

The provisions of the Constitution and the Electoral Act 1963 cited by the respondent

1. Article 15 of the Constitution cited for the respondent provides, insofar as relevant:

“(1) All persons are equal before the law and entitled to equal protection under the law.

“(2) Except as expressly authorised under the provisions of this Constitution, no law and no executive or administrative action of the State shall, either expressly or in its practical application, subject any person or persons to any liability or restriction or confer on any person or persons any privilege or advantage on grounds only of descent, sex, language, religion, political or other opinion, social origin, place of birth, family status, or any of them.

“(3) Nothing in this Article shall:

“(a) Prevent the prescription of qualifications for the service of Samoa or the service of a body corporate directly established under the law”.

11. Section 5 (3) (b) and (c) cited for the respondent have already been quoted above. Sections 5 (7) which explains the meaning of the phrase “resided in Samoa for a period equalling or exceeding 3 years” in relation to a candidate for a constituency provides:
    • “In this section, ‘resided in Samoa for a period equalling or exceeding 3 years’ means a person has been in Samoa for at least 240 days in each year for a consecutive 3 year period ending on nomination day”.
12. Section 5(8) then provides:
    • “The calculation of the time periods provided in subsection (7) shall not include any temporary absences by persons who are required to be absent from Samoa for 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 organisation which is based in Samoa”

The evidence

13. According to the oral and affidavit evidence of the witnesses Sagale Lauiliu Tipitaai, Falanaipupu Emau Faapito and Sogimaletavai Neueli Talosaga Lopau who are members of the Alii and Faipule of Saleapaga, the respondent is a matai of Saleapaga but does not live at Saleapaga and has not carried out any monotaga to the village for over 20 years. He has also not attended any meeting of the village.
14. In his oral and affidavit evidence, the respondent said that in 2009 after the tsunami which devastated his village of Saleapaga, he provided free electrical services for repairing and wiring the house of Saleapaga’s village pastor and the houses of other members of his village. In 2011 he carried out the electrical wiring of the Saleapaga primary school building and his bill of costs of about $32,000 has never been paid. So he has told his village that if you do not want to pay my bill of costs, then deduct it from his monotaga. It is not clear when he said that to his village. The respondent also said that in 2011 his village of Saleapaga organised a raffle to raise funds for their church building and he provided some tables from his house at Vaimoso for selling the raffle tickets.
15. The applicant’s witnesses Sagale Lauiliu Tipitaai and Sogimaletavai Neueli Talosaga Lopau testified that the electrical services provided by the respondent to the homes of some of the people of the village were paid for. It was not free service. Sagale and Falanaipupu also testified that their village did not want the respondent to carry out the electrical wiring of the village primary school building because the village has its own electrician. However, the respondent just went ahead and wired the school building. That is why the village has not paid the respondent’s bill of costs.
16. After considering the evidence for the applicant and for the respondent, we are satisfied that the respondent has not carried out any monotaga to his village of Saleapaga pursuant to the customs of the village, at least for the last 3 years prior to lodging his nomination paper with the Electoral Commissioner. The electrical services which he carried out to the homes of some of the people of his village were paid for and cannot be described as a monotaga. Likewise, the electrical wiring services that the respondent carried out to the Saleapaga primary school building in 2011 for which he sent a bill of costs to the village to pay cannot be described as a monotaga.

The issues

17. The first issue to be determined is whether the respondent has satisfied the 3 year village service requirement pursuant to s.5(3)(c) of the Act. We are of the clear view that the respondent has not. This disqualifies him from being a candidate for the general election to be held on 4 March 2016.
18. The second issue is whether s.5 (3) (b), (7) and (8) of the Act are unconstitutional because they are in violation of Article 15 of the Constitution which provides for freedom from discriminatory legislation. It must be pointed out that section 5(3) (b), (7) and (8) relate to the 3 year residential requirement that a person must satisfy in order to qualify as a candidate for election and not to the 3 year village service requirement which is the central issue in these proceedings. In any event, this Court in Manoo Lutena Mulitalo v Attorney General [2001] WSSC 33 decided that Article 15 does not apply to the prescription of qualifications for being a Member of Parliament or as a candidate in a parliamentary election. On appeal to the Court of Appeal in In re the Constitution, Mulitalo v Attorney General [2001] WSSCA 8 the appeal was dismissed.

Conclusion

19. The respondent Tuula Kiliri Lafi Tuitui is disqualified from being a candidate for the territorial constituency of Lepa in the upcoming general election scheduled for 4 March 2016.
20. Costs of $1,000 are awarded to the applicant against the respondent.
21. A copy of this judgment is to be served on the Acting Electoral Commissioner forthwith.

CHIEF JUSTICE

JUSTICE VAAI