Aveau v Leniu [2016] WSSC 7 (25 February 2016)

SUPREME COURT OF SAMOA
Aveau v Leniu [2016] WSSC 7

Case name:	Aveau v Leniu
Citation:	[2016] WSSC 7
Decision date:	25 February 2016
Parties:	TUISUGALETAUA MAPOSUA ALIIMALEMANU SOFARA AVEAU of Fagalii, Candidate AND FUATIMAU MAUMEA LENIU of Laulii, Candidate.
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 Fuatimau Maumea Leniu is disqualified from being a candidate for the territorial constituency of Vaimauga East 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:	T B Heather-Latu for applicant L J Brunt for respondent
Catchwords:	village service requirement –residential requirement –
Words and phrases:	respondent has not rendered service to his village – respondent disqualified from being a candidate
Legislation cited:	Electoral Act 1963, s.5 (9), s.5 (3) (b) s.5 (7 s.5 (3) (c) s.5 (3A)
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

IN THE MATTER

of the Territorial Constituency of Vaimauga East.

A N D:

IN THE MATTER

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

BETWEEN

TUISUGALETAUA MAPOSUA ALIIMALEMANU SOFARA AVEAU of Fagalii, Candidate.
Applicant

A N D

FUATIMAU MAUMEA LENIU of Laulii, Candidate.
Respondent

Coram:
Sapolu CJ
Vaai J

Counsel:
T B Heather-Latu for applicant
L J Brunt for respondent

Hearing: 22 February 2016

Judgment: 25 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 general election to be held on Friday 4 March 2016, the applicant Tuisugaletaua Maposua Aliimalemanu Aveau Sofara (the applicant) and the respondent Fuatimau Maumea Leniu (the respondent) were two of the four candidates nominated for the territorial constituency of Vaimauga East. 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 grounds that the respondent does not satisfy the 3 year residential requirement of s.5 (3) (b) of the Act as further explained in s.5 (7) and does not satisfy the village service requirements as provided in s.5 (3) (c) and defined in s.5 (3A). The applicant claims that the respondent has lived for many years in the United States and did not return to reside in Samoa until late 2014. He also claims that the respondent has not rendered service to his village of Laulii for 3 years prior to the close of nominations on 12 February 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 is 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 for 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 provides for two matters to be satisfied by a person nominated as a candidate for election in 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). The second matter is that a person nominated as a candidate must have rendered service 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 requirement as defined in s.5 (3A).
6. As to which person carries the burden of satisfying the Electoral Commissioner or the Court that he or she meets the 3 year residential requirement, s.5 (4A) provides:
   • “For the purposes of this Act, a person seeking nomination as a candidate or nominated as a candidate has the burden of satisfying the Commissioner or the Court that the person meets the 3 year residency requirement”.
7. For the purpose of calculating the 3 year residential requirement, s.5 (7) 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”.
8. An exemption for absence from Samoa for overseas medical treatment is provided in s.5 (b) (d) (i) which relevantly provides:
   • “Nothing in subsection (2) or (3) applies to a person who satisfies the Commissioner that the person is required to obtain and has obtained medical treatment outside of Samoa for more than 125 days in any one year or more for the consecutive 3 year period ending on nomination day”
9. In respect of an election candidate for a 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”
10. 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”
11. 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

12. The respondent opposes the applicant’s motion for disqualification as a candidate on two grounds. The first ground is that the respondent claims that he has satisfied the 3 year residential requirement having resided in Samoa for a minimum of 240 days in each year for a period of 3 consecutive years ending on nomination day as provided under s.5 (7) of the Act. Secondly, the respondent claims that he has also satisfied the village service requirement by contributing to the affairs and activities of his village of Laulii during the last 3 years prior to the close of nominations on 12 February 2016.

The evidence

(a) The 3 year residential requirement

13. According to the evidence of the applicant, the respondent has lived for many years in the United States and returned to Samoa in May 2013 for the funeral of his late father which the applicant attended. The applicant also said that he only began to see the respondent occasionally in Samoa since September or October 2014. He therefore claims that the respondent has not satisfied the 3 year residential requirement provided under s.5 (3) (c). He is also of the opinion that the respondent could not have rendered service to his village of Laulii for the last 3 years prior to the close of nominations pursuant to s.5 (3) (c) because he only returned to live in Samoa in late 2014.
14. The respondent in his oral and affidavit evidence said that he moved back from the United States to live in Samoa on 20 May 2013 just prior to his late father Leniu Tofaeono Avamagalo passing away. After his father’s funeral, he experienced chest pains suggestive of a heart disease. He then left for New Zealand on 3 June 2013 for medical treatment. He returned to Samoa on 12 July 2013 after being cleared by his doctor. As he was still experiencing more symptoms of chest pain, he left Samoa for the United States on 19 July 2013 where he had a heart operation. He was released to return to Samoa on 9 November 2013. He returned to the United States for further follow up and treatment on 23 December 2013 and returned to Samoa on 18 January 2014 after being discharged by his doctor. To confirm his trips overseas for medical treatment, the applicant produced a report from his local doctor and declarations from his doctor in New Zealand and the two doctors who examined and treated him in the United States.
15. In his affidavit sworn on 18 February 2016, the respondent says that in the period from 20 May 2013 to 20 May 2014 he had resided at his village of Laulii for 139 days. He was overseas for medical treatment for 180 days during the same period. He was also away from Samoa during the same period to visit his family in the United States for 46 days. So in total, he was away from Samoa for 226 days for the period 20 May 2013 to 20 May 2014.
16. As counsel for the applicant in her written submissions accepts that the respondent was in Samoa for more than 240 days in terms of s.5 (7) during each of the periods from 12 February 2014 to 12 February 2015 and from 12 February 2015 to 12 February 2016, it is unnecessary to refer to those parts of the respondent’s affidavit regarding the times he was in Samoa during those two periods. The only period in dispute is from 12 February 2013 to 12 February 2014. The question then is whether the respondent was in Samoa for at least 240 days pursuant to s.5 (7) during the period from 12 February 2013 to 12 February 2014. If he was not, due to his absence for medical treatment overseas, then is the time for his absence for overseas medical treatment to be taken into account under the s.5 (b) (d) (i) exemption.
17. Counsel for the applicant in her written submissions contends that the correct basis for the calculation of the 3 year residential requirement ending on nomination day, is to start from nomination day which is 12 February 2016 and work backwards to 12 February 2013. In other words, the 3 year residential period for the purposes of the upcoming general election started from 12 February 2013 to 12 February 2014 which would be the first year, then from 12 February 2014 to 12 February 2015 which would be the second year, and then from 12 February 2015 to 12 February 2016 which would be the third year. On that basis, counsel for the applicant submits that for the first year from 12 February 2013 to 12 February 2014, the respondent was in Samoa for only 86 days which is far short of the 240 days minimum required of a person seeking to be an election candidate to be in Samoa as provided under s.5 (7). Counsel for the applicant disagrees with counsel for the respondent that the relevant period is from 20 May 2013, when the applicant moved from the United States to live in Samoa, to 20 May 2014. We agree with counsel for the applicant on this point. Section 5 (7) speaks of a period of “at least 240 days in each year for a consecutive 3 year period ending on nomination day”. The 3 year period ending on nomination day should be counted backwards from 12 February 2016 which is the nomination day for the upcoming general election. On that basis, the relevant period in dispute would be 12 February 2013 to 12 February 2014 and not 20 May 2013 to 12 May 2014 as submitted for the respondent.

(b) The 3 year service requirement

18. The applicant, as earlier mentioned, claims that the respondent has been living in the United States and did not return to live in Samoa until September/October 2014 when he occasionally saw him. The respondent therefore could not have rendered service to his village of Laulii for a period of 3 years ending on the day he lodged his nomination paper with the Electoral Commissioner pursuant to s.5 (3) (c). The burden of proving this allegation is on the applicant and he has sought to do so by drawing an inference from the fact that the respondent has been living in the United States. We have decided to accept the respondent’s evidence that he returned on 20 May 2013 to live in Samoa.
19. In his oral and affidavit evidence, the respondent testified that since his return to Samoa on 20 May 2013, he has been rendering service to his village of Laulii and he has contributed financially to all the important activities of his village and church. He has also actively participated in the affairs of his village including being a member of his village pulenuu committee. The respondent’s evidence is supported by the evidence of the witness Faalogo Sasauli Moli who is the pulenuu of Laulii. We accept that the respondent has been rendering service or monotaga to his village since his return on 20 May 2013 up to now.
20. The respondent also testified that he owns the three buses which were operated by his father under the name Tuisamoa Transport. These buses are registered under the name of the respondent. This bus business seems to have started about 1998. Two of the buses service the respondent’s district and the respondent said that from the start of their business all the students of their village in school uniform paid half price for bus fares. We are aware that the title Leniu held by the respondent’s late father is the paramount matai title of the respondent’s village. His father had also been the Member of Parliament for the Vaimuaga East constituency for several years while the respondent was living in the United States. We are not confident that the half price for buses paid by the students of the village was a decision made by the respondent or a decision made by his father who was the holder of the title Leniu and a Member of Parliament for the district for several years. It was also the respondent’s father who was operating the bus business. In our view, it is more likely that the half price for bus fares paid by the students of the respondent’s village was a form of assistance by the respondent’s father as the ‘father’ of the village of Laulii and the Member of Parliament for the district rather than a service by the respondent who was living in the United States at the time.

The issues

21. There is no dispute that the respondent was in Samoa for 240 days or more during the periods 12 February 2014 to 12 February 2015 and 12 February 2015 to 12 February 2016 when nominations for the general election on 4 March 2016 were closed. What is in dispute is whether the respondent was in Samoa for 240 days or more during the period 12 February 2013 to 12 February 2014.
22. As the day on which the respondent lodged his nomination paper with the Electoral Commissioner does not appear from the evidence, the 3 year period prior to nomination day for present purposes is to be calculated by starting with 12 February 2016 which was the closing day for nominations and then work backwards. This makes 12 February 2013 the starting point for the 3 year residential requirement. The first year of this 3 year residential requirement would therefore be 12 February 2013 to 12 February 2014. According to the applicant’s calculation which was not disputed by the respondent, the respondent during that period was in Samoa for 86 days which is far less than the minimum of 240 days required under s.5 (7).
23. In this connexion, we wish to note that we do not accept the submission by counsel for the applicant that the test for residency for the purpose of the 3 year residential requirement is whether the respondent was ‘ordinarily resident’ or ‘normally living’ in Samoa. The concept of ‘ordinarily resident’ is not always straightforward in its application to a set of facts as the textbooks on conflict of laws show. It is unnecessary for us to go into it here. The test to be applied is whether a person ‘has been in Samoa’ as provided in s.5 (7). This implies physical presence. So even if a person is ordinarily resident in Samoa, if he or she ‘has not been in Samoa’ for a minimum of 240 days in any one year, then he or she does not satisfy the 3 year residential requirement provided under s.5 (3) (b). The respondent testified that he moved from the United States to live in Samoa on 20 May 2013. So that must be when he started to reside in Samoa for the purposes of s.5 (3) (b) and s.5 (7) regardless of the fact that after he came to Samoa he felt chest pain suggestive of a heart disease and had to go to New Zealand on 3 June 2013 for medical treatment and again to the United States on 19 July 2013 and 23 December 2013 for further medical treatment.
24. Given that the respondent was in Samoa for only 86 days during the period 12 February 2013 to 12 February 2014, the next question is whether he is saved by the 125 days exemption for overseas medical treatment provided in s.5 (6) (d) (i). It is clear from s.5 (6) (d) (i) that a person can claim an exemption of up to 125 days for overseas medical treatment in any one year for the purpose of calculating whether he has been in Samoa for at least 240 days in each year for a consecutive 3 year period ending on nomination day pursuant to s.5 (7).
25. If one were to calculate the number of days the respondent was away from Samoa for medical treatment from 3 June 2013 to 12 July 2013, 19 July 2013 to 9 November 2013, and 23 December 2013 to 18 January 2014 excluding the days on which he left Samoa and arrived back in Samoa, it comes to about 176 days. If the 125 day exemption is allowed to the respondent to be added on to the 86 days he was in Samoa from 12 February 2013 to 12 February 2014, it comes to 211 days which is 29 days short of the required 240 days. The respondent has therefore not met the 240 days requirement under s.5 (7). This disqualifies him from being a candidate in the upcoming general election.
26. In respect of the 3 year service requirement, the respondent started to render services or monotaga to his village when he came to live in Samoa on 20 May 2013. From 20 May 2013 to 12 February 2016 when nominations closed is a period which is less than 3 years. The respondent therefore could not have rendered service to his village for at least 3 years ending on nomination day. This means he has not satisfied the 3 year village service requirement pursuant to s.5 (3) (c). This also disqualifies him from being candidate in the upcoming general election.

Conclusion

27. The respondent Fuatimau Maumea Leniu is disqualified from being a candidate for the territorial constituency of Vaimauga East in the upcoming general election scheduled for 4 March 2016.
28. Costs of $1,000 are awarded to the applicant against the respondent.
29. A copy of this judgment is to be served on the Acting Electoral Commissioner forthwith.

CHIEF JUSTICE

VAAI J