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Ponifasio v Electoral Commissioner [2020] WSSC 79 (27 November 2020)

IN THE SUPREME COURT OF SAMOA
Ponifasio v Electoral Commissioner & Anor [2020] WSSC 79


Case name:
Ponifasio v Electoral Commissioner & Anor


Citation:


Decision date:
27 November 2020


Parties:
TUALA TEVAGA IOSEFO


Hearing date(s):
23-24 November 2020


File number(s):
MISC 259/20


Jurisdiction:
CIVIL


Place of delivery:
Supreme Court of Samoa, Mulinuu


Judge(s):
Justice Vaai
Justice Clarke


On appeal from:


Order:
Accordingly, we make the following declarations and orders:
(a) The Second Respondent is disqualified from running as a candidate for the general elections for the Constituency of Gagaemauga 1;
(b) The First Respondent is ordered to remove the name of the Second Respondent as a candidate for the Constituency of Gagaemauga 1; and
(c) The First and second Respondents are each ordered to pay costs in the sum of $1,500.00 each to the Applicant.


Representation:
S. Ponifasio for the Applicant
S. Ainuu and G. Patu for the First Respondent
Tevaga Tupuivao Mapusaga self-represented (Second Respondent)


Catchwords:
Electoral challenge - nomination as a candidate – disputed nomination documents – disqualify to run as candidate.


Words and phrases:


Legislation cited:
Electoral Act 2019 ss. 47; 47(2)(d); 47(3).


Cases cited:


Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU


IN THE MATTER:
of section 47(3) of the Electoral Act 2019.


IN THE MATTER:
of TEVAGA TUPUIVAO MAPUSAGA as a candidate
for Gagaemauga 1 Electoral Constituency


BETWEEN:


TUALA TEVAGA IOSEFO PONIFASIO, matai of Fagafau


Applicant


A N D:


ELECTORAL COMMISSIONER, appointed under section 7 of the Electoral Act 2019


First Respondent


A N D:


TEVAGA TUPUIVAO MAPUSAGA


Second Respondent


Coram:
Justice Lesatele Rapi Vaai
Justice Leiataualesa Daryl Clarke.


Counsel:
S. Ponifasio for Applicant
S. Ainuu and G.Patu for First Respondent.
Tevaga Tupuivao Mapusaga self-represented, Second Respondent.


Hearing: 23rd and 24th November 2020
Judgment: 27 November 2020


JUDGMENT OF THE COURT

  1. Pursuant to section 47(3) of the Electoral Act 2019 (“the Act”), the Applicant challenges the decision of the First Respondent to accept the nomination of the Second Respondent as a candidate for the April 2021 general elections. At issue in these proceedings is section 47(2)(d) of the Act, namely, that the Second Respondent’s nomination paper required to be signed by two (2) registered voters from the constituency of Gagaemauga 1 was signed by only one (1) registered voter. One of the person’s allegedly signing as the second signatory either (a) does not exist; or (b) is not a registered voter from Gagaemauga 1.
  2. The impugned nomination document is annexure ‘M’ to the affidavit of Mauga Fetogi Vaai (exhibit R6) and the registered voter for that Constituency noted as follows:

“Tagata Palota 1: Taifaga Vaiuta Samalaeulu
(Igoa Atoa) (Nuu nofo ai)


Matai Samoa 917 [Signature]
(Galuega) (Numera Lola) Saini.”

  1. The Applicant’s case is that “Taifaga Vaiuta” does not exist and the person who signed the nomination form was “Samilolo Vaiuta Taifaga” (“Samilolo”), a matai registered to vote in the electoral Constituency of Sagaga 3.
  2. The First Respondent’s case is that “Taifaga Vaiuta” who signed the nomination form is “Aleki Vaiuta Taifaga” (“Aleki”). He is registered voter no. 1805 in Gagaimauga 1. The number ‘917’ on the form was an error because when the staff of the Electoral Office checked the voter information for “Taifaga Vaiuta”, it showed the details for Samilolo and Samililo’s voter number “917” from Sagaga 3 was entered in error.
  3. The Second Respondent also contends that the signatory “Taifaga Vaiuta” was that of Aleki Vaiuta Taifaga and he was there on the day of registration. “Samilolo Vaiuta Taifaga” is the Second Respondent’s brother and Aleki Vaiuta Taifaga her nephew and Samilolo’s son.

The Electoral Act 2019:

  1. Section 47 of the Act which sets out the Respondent’s powers to accept or reject nominations relevantly provide as follows:

...

(d) the nomination paper is not signed by at least 2 registered voters of the constituency in which he or she is to represent; or
....
(3) A candidate or a person who claims a right to be a candidate may by motion challenge the decision of the Commissioner to accept or reject the nomination of a candidate under this section in the Supreme Court, for an order to qualify or disqualify a candidate:

The Applicant’s Evidence:

  1. The Applicant called three witnesses. These were the Applicant, Vaifale Tufaaga Vea Vaigalepa (“Vaifale”) and Tauamo Matagitau (“Tauamo”) who each tendered their affidavits (exhibits A1, A3 and A4 respectively). Vaifale is presently the Sui o le Nuu for Samalaeulu and an heir to the matai title Taifaga. His evidence is that there is no person by the name of Taifaga Vaiuta. He acknowledges however that there is “Aleki Taifaga Vaiuta” who is the son of “Samililo Taifaga Vaiuta”.
  2. The evidence for the Applicant is that on Tuesday 13th October 2020, the Second Respondent, Samilolo and Sasae, the daughter of the Second Respondent picked up Tauamo to go to Salelologa to nominate the Second Respondent as a candidate for election for the constituency of Gagaemauga 1. Tauamo is the Sui Tamaitai for Samalaeulu. When they arrived at Don Bosco School where registrations for the general elections were being conducted, they met up with Vui Puaa, Manuleuta Tevaga Ioane and Vaifale Sofe.
  3. According to Tauamo, the nomination papers for the Second Respondent was completed by a woman from the office of the First Respondent. They went and spoke to her individually. For Tauamo, the female officer also completed her paperwork and asked her questions. When she was finished, the old men who they had gone together with went one by one. At the end, they waited and then went and had their documents sworn. They also did this individually. Tauamo said that first was the Second Respondent. She was then followed by the others which included Samilolo.
  4. After this was done, the Second Respondent went and spoke to the First Respondent. Afterwards, she returned and said that her nomination as a candidate was completed. The Second Respondent was then congratulated by the old men and they left. Tauamo says that she left with the Second Respondent and her daughter Sasae. In her oral evidence, this was between 1pm and 2pm. She did not see Aleki on this day.
  5. After nominations closed, the Applicant inspected the nomination papers for the Second Respondent held by the First Respondent on the 29th October. When he inspected the voters who nominated the Second Respondent, he noted “Taifaga Vaiuta” who is not a person registered in Gagaemauga 1. He also noted a number of discrepancies and as a result, asked Fetogi Mauga Vaai (“Mauga”) to “look up who this person Taifaga Vaiuta is...” When they checked, voter 917 was a different person to “Taifaga Vaiuta”. The electronic roll was also checked and no such name was on the electronic roll. Mauga left and returned and said that an elderly man had signed the nomination form.
  6. In her evidence, Tauamo says that the Second Respondent came to her on Tuesday 3rd November with her son Malo. She was asked by the Second Respondent that if anyone called or came to ask if “Aleki” had signed her nomination form, to answer “iai e sa’o sa iai Aleki”. When she asked the Second Respondent what is the meaning of what she is saying, her answer was that it was now discovered Samilolo is not registered on the roll for Samalaeulu.
  7. The Applicant’s case on the evidence is that Samilolo signed the nomination form for the Second Respondent. Samililo is not registered in Gagaemauga 1 but Sagaga 3. The Applicant tendered a Petition for Bankruptcy signed by the Petitioner “Tevaga Samililo” on the 10th October 2019 (exhibit A2). The Applicant says that the signature on the Petition for Bankruptcy is the same as that on the nomination form signed by “Taifaga Vaiuta”. The number ‘917’ appearing on the voter nomination for the Second Respondent also corresponds with Samilolo’s voter number in Sagaga 3 (see annexure ‘A’ to the affidavit of Usufono Latu). The Applicant’s contention is that these documents support Tauamo’s evidence and his case that it was Samilolo that signed the Second Respondent’s Nomination Form 11.
  8. To further support this, the Applicant tendered through Aleki a docket Aleki signed for an order from Bluebird Savaii Hardware. That docket ‘signature’ by Aleki is different to the signature of “Taifaga Vaiuta” appearing on the voter nomination for the Second Respondent (annexure ‘M’ to affidavit of Mauga).

The First and Second Respondents Evidence:

  1. The Respondent called Aleki, Mauga, Usufono Latu (“Usufono”) and Emmanuel Lemoa (“Emmanuel”). The affidavit of Afualo Daryl Mapu was tendered by consent.
  2. The First Respondent’s evidence is that on the 13th October 2020, Usufono and Emmanuel were teamed together to process nomination forms at the Don Bosco Hall, Salelologa. According to Usufono, at about 10.20am, she and Emmanuel were responsible for checking and processing the Second Respondent’s nomination forms. The Second Respondent had been accompanied by three men and two women. Her Nomination Form 11 had not been filled in so Usufono completed it. In her affidavit, Usufono describes Emmanuel’s role as “finding the names of the matais and SN (Sui o le Nuu) who were confirming the monotaga and residence for Tevaga, together with the 2 voters from Tevaga’s electoral constituency on our electronic roll and electoral roll.” (paragraph 9, Annexure R2)
  3. In her evidence, Usufono said that the first name she wrote on the Nomination Form was “Taifaga Vaiuta”, however, “the voter details was different from the man that was in front of us.” She then twinked off ‘Taifaga Vaiuta’. She noticed that details for that name on the system is from Leauva’a. As a result, she asked Emmanuel to get the Sagaga 3 electoral roll for “Taifaga Vaiuta” and he called out the electoral roll number for that same person, ‘917’. She wrote that number down but Emmanuel noticed that the person before them was different to the man on the system. Emmanuel then showed the man before them a photo and the man before them identified the person in the photo as his father and they have the same name.
  4. When Emmanuel rechecked the system for the man before them, he was registered as “Taifaga Vaiuta Aleki”. He is a voter from Gagaemauga 1 and electoral number 1805. She then re-wrote his name on the form and gave him the form for his signature. In cross-examination, she explained why she re-wrote “Taifaga Vaiutu” as follows:
  5. Usufono recalls making a sticky note at that time when checking the candidate’s papers and noting the electoral roll and e-roll numbers of both voters used by the Second Respondent. Usufono kept a copy of that note “as I have learnt from past experiences to keep these notes for me to refer to if ever an issue arises.” The note reads:
  6. In preparing the note, she stated:
  7. In his evidence, Emmanuel said that “Taifaga Vaiuta” was called and when he checked the e-roll, his district and village details were Sagaga 3 and Leauvaa. When the electoral roll was checked for Sagaga 3, his electoral roll number was 917. Emmanuel realized that the man before them was different to that on the system and showed the man the photo. The man stated that is his father and they have the same name. Emmanuel checked the system for the person before him and found he was registered as “Taifaga Vaiuta Aleki”, number 1805. He recalls giving to Usufono the reference for Taifaga Vaiuta Aleki and his electoral roll number 1805 “for her records.”
  8. Aleki gave evidence. He said his name is Aleki Taifaga Vaiuta. He confirmed his name is not “Taifaga Vaiuta”. He said he is a registered voter for Gagaemauga 1 and registered as voter 1805. He says that on the 13th October 2020, he signed the nomination form (form 11) together with Mamualeuta Tevaga Ioane Tinitali to nominate the Second Respondent. He confirms that the signature on the lodged application form is his signature and that Taifaga Vaiuta or Samililo Taifaga Vaiuta is his father.
  9. In his oral evidence, he said that he had been at the new market that day selling kipi. He had gone there on the 8.00am bus. His cousin had come in the afternoon and said for them to go so they can confirm the Second Respondent as the ‘sui tauva’. This was after 1.00pm, close to 2.00pm. At Don Bosco, he says he saw Tevaga Ioane, Tevaga Sose, Tevaga Mapusaga and others. He did not see Tauamo. He signed the nomination form but said his eye sight is bad and he had not gone with his glasses. He could not see clearly and did not know that he had signed under the name Taifaga Vaiuta.
  10. Under cross-examination, a signed docket for Bluebird Hardware was shown to Aleki (exhibit A 5). He confirmed that was his name but he didn’t sign but only wrote his name. It is not his signature.
  11. He said that when he was with the Electoral Officers, they did not show him a photo of his father Samililo. He also said that he did not hear mention of the number 1805 nor did the female Electoral Officer mention or inform him about the number 917.
  12. In her evidence, Mauga stated that on the 29th October, the Applicant came to their office to inspect the file of the Second Respondent. The Applicant queried the voter “Taifaga Vaiuta”. As a result of discrepancies raised by the Applicant, she left the room and spoke to Usufono for an explanation about those. Usufono stated that she would check her records of notes she kept for each file she kept for the nominations she assessed. The next day, Usufono gave to Mauga the posted note referred to above at paragraph 19.
  13. In her evidence, the Second Respondent confirmed Tauamo’s evidence that on the morning of the 13th October, she, Sasae and Samililo picked up Tauamo and at Salelologa, they met up with some older men of their village. These were Manuleota Tevaga Ioane, Vui Puaa and Vaifale Tevaga also known as Tevaga Sofe. They had come to lodge her nomination.
  14. In her evidence, she however said that it was Manuleota Tevaga Ioane and Aleki (who had come from the market) to sign the paper (form 11). Aleki was not there at the start but had arrived while the paper work was being done. Tauamo did not leave until after she was registered. Tauamo left together with her husband in their own car.
  15. The Second Respondent denied that Samilolo had signed her nomination form (Form 11). She however accepted that when she went to complete her nomination, she did not know that Samilolo was not a registered voter at Gagaemauga 1. Her evidence was:
  16. The Second Respondent confirms that she went to see Tauamoa, she can’t recall when, to remind her and for Tauamo’s information that it was Aleki that signed her nomination.

The Applicant's motion:

  1. The Applicant's motion brought pursuant to section 47(3) of the Act seeks orders:
  2. The grounds in support of the Motion in summary state:

The Respondent’s Opposition:

  1. The First Respondent opposes the Applicant’s Motion on the grounds that:
  2. The Second Respondent opposes the Applicant’s Motion on the grounds that she her Form 11 nomination was signed by Aleki Taifaga Vaiuta, a voter in the Constituency of Gagaemauga 1.

Discussion:

  1. The evidence of Tauamo was clear and cogent. On the morning of the 13th October, she was picked up by the Second Respondent, Samilolo and Sasae. They went to Don Bosco at Salelologa and met up with Vui Puaa, Manuleuta Tevaga Ioane and Vaifale Sofe. She was there during the registration process and did not see Aleki at all. Once the nomination papers were complete, they went and had the papers sworn. This included for Samilolo.
  2. On the evidence, we are satisfied that the Second Respondent’s Form 11 was signed by Samilolo contrary to section 47(2)(d) of the Act. The Second Respondent went with Samilolo and others to register the Second Respondent on the 13th October. Samilolo went with the Second Respondent for the purpose of nominating her. Samilolo had signed the nomination form under his name ‘Taifaga Vaiuta’ and it was his voter number 917 that appears on the nomination form. His signature on the nomination form also matches the signature on his Petition for Bankruptcy tendered with the Court.
  3. In his evidence, Aleki confirmed that his name is not Taifaga Vaiuta. This evidence is inconsistent with Usufono’s evidence that when she re-wrote the name “Taifaga Vaiuta” she did so because Aleki had said that is the name he said he is known by. We do not accept Usufono’s evidence.
  4. Form 11 completed by Usufono with the assistance of Emmanuel contained material errors that resulted in the First Respondent accepting the Second Respondent’s nomination as a candidate for Gagaemauga 1. The nomination form 11 signed by “Taifaga Vaiuta” voter number 917 speaks for itself - it was signed by Samilolo Taifaga Vaiuta from Sagaga 3 and registered as voter 917. That form and the signature to that form being that of Samilolo’s is supported by the other documentary evidence we have seen, namely, Samilolo’s Petition for Bankruptcy which matches that on Form 11 and Aleki’s signature for the goods from Bluebird being different to that on the Form 11. We found Aleki’s evidence about his signature unconvincing. His signature on his affidavit also does not appear to be the same as that on the Form 11 signed by “Taifaga Vaiuta”.
  5. We found Usufono’s evidence unreliable and contrived. In particular, her explanation that she prepared a ‘posted note’ at the time of completing the form 11 as a ‘record’ of what had occurred entirely unbelievable. She says that she had prepared that note prior to Aleki signing the Form 11 (see: paragraphs 19 and 20 above). If that was so, why did she just not correct the Form 11 and insert Aleki’s registered number 1805 and name? We do not accept that knowing that the Form 11 is assessed by her superiors and is used by the Electoral Commissioner to accept or deny a nomination, she would have knowingly processed wrong information on that form for her supervisor and the Commissioner to rely on. If she knew that “Taifaga Vaiuta” voter 917 was registered in the Constituency of Sagaga 3 and this candidate was for election in Gagaemauga 1, she would have corrected the Form.
  6. In explaining her posted note, she said this was kept for her own records. If that was the case, why then does the posted note read: “Thanks Fono.” In our experience, one does not thank oneself in their own personal records. The posted note we find was generated after the fact and as a result of the enquiries made of her by Mauga to explain what had occurred.
  7. We record our serious reservations over the evidence of both Usufono and Emmanuel. That evidence in our view suffers the very serious risk of having been contrived for the purposes of concealing the error made when they processed the Second Respondent’s nomination application. That evidence of what is said to have occurred with the voter as they processed the nomination paper in terms of the photograph shown to Aleki and the voter numbers discussed is quite a different account to that given by Aleki. We place little weight at best on Usufono and Emmanuel’s evidence.
  8. In the end, we accept the evidence of Tauamo and the explanation given to her by the Second Respondent on the 3rd November 2020. As the Second Respondent told Tauamo, they had now discovered that Samilolo was not registered on the roll for Samalaeulu. This has been a charade to try to explain away the signature of “Taifaga Vaiuta” on the Form 11 so that the Second Respondent can run as a candidate for Gagaemauga 1.
  9. We do not accept that evidence.

Conclusion:

  1. The Second Respondent’s Form 11 nomination was required to be signed by two registered voters from the Constituency of Gagaemauga 1. “Taifaga Vaiuta” who signed as a voter nominating the Second Respondent is Samilolo Taifaga Vaiuta from Sagaga 3, contrary to section 47(2)(d) of the Act.
  2. Accordingly, we make the following declarations and orders:

JUSTICE VAAI
JUSTICE CLARKE

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