Tausaga v Electoral Commissioner [2020] WSSC 81 (27 November 2020)

IN THE SUPREME COURT OF SAMOA
Tausaga v Electoral Commissioner & Anor [2020] WSSC 81

Case name:	Tausaga v Electoral Commissioner & Anor
Citation:	[2020] WSSC 81
Decision date:	27 November 2020
Parties:	FALETAGOAI TAUSAGA, of Aufaga, Lepa, a Candidate for General Elections 2021 (Applicant) v ATTORNEY GENERAL for and on behalf of the ELECTORAL COMMISSIONER (First Respondent) and TUULA KILIRI LAFI TUITUI, of Vaitele and Vaimoso, Electrician (Second Respondent)
Hearing date(s):	11 November 2020
File number(s):	MISC 245/20
Jurisdiction:	CIVIL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Acting Chief Justice Tuatagaloa Justice Roma
On appeal from:
Order:	(a) The Second Respondent is disqualified from being a Candidate for the Territorial Constituency of Lepa in the upcoming General Elections in 2021; (b) Costs of $5,000.00 are awarded to the Applicant against the Second Respondent.
Representation:	M. Leung-Wai for the Applicant G. Patu and F. Sofe-Tuala for the First Respondent I. Sapolu for the Second Respondent
Catchwords:	Electoral challenge - Monotaga – residency – banished – indemnity costs.
Words and phrases:	Applicant seeks orders for Second Respondent to be disqualified as a candidate for the General elections 2021.
Legislation cited:	Constitution of the Independent State of Samoa Article 45; Electoral Act 2019 ss. 8; 8(1)(d); 8(5); 47; 47(2); 47(3);
Cases cited:	O. F. Nelson Properties Limited v Sia’aga [2010] WSSC54 (11 June 2010); Polynesian Limited v Samoa Observer [1999] WSSC35;
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

IN THE MATTER:

of section 47(3) of the Electoral Act 2019 (as amended)

BETWEEN:

FALETAGOAI TAUSAGA of Aufaga, Lepa, a Candidate for General Elections 2021.

Applicant

A N D:

ATTORNEY GENERAL for and on behalf of the ELECTORAL COMMISSIONER

First Respondent

A N D:

TUULA KILIRI LAFI TUITUI of Vaitele and Vaimoso, Electrician.

Second Respondent

Coram: Acting
Chief Justice Niavā M. Tuatagaloa
Justice Fepulea’i A. Roma

Counsel:
M. Leung-Wai for the Applicant
G. Patu and F. Sofe-Tuala for the First Respondent
I. Sapolu for the Second Respondent

Hearing: 11 November 2020

Judgment: 27 November 2020

JUDGMENT OF THE COURT

Motion by the Applicant

1. The Applicant is one of three (3) candidates accepted by the First Respondent to run for the Territorial constituency of Lepa in the General Elections in April 2021, following the close of nominations on Friday 23 October 2020.
2. By a Motion dated 29^th October 2020, he seeks Orders that the Second Respondent (whose candidacy nomination was also accepted by the First Respondent) be disqualified as a candidate for the said General Elections 2021; that the Second Respondent’s name be removed from the list of candidates contesting the General Elections 2021; and that costs be awarded against the Second Respondent on an indemnity basis.
3. The main grounds of the Motion are that:
   • (i) The Second Respondent has not rendered, within three (3) consecutive years ending on the day in which he lodged his nomination paper, a ‘monotaga’ in respect of his matai title “Tuula” within the village of Saleapaga in the Constituency of Lepa pursuant to s.8, Electoral Act 2019;
   • (ii) The statutory declarations filed by the Second Respondent with the First Respondent in support of his candidacy, and confirming that he had rendered ‘monotaga’ are inaccurate and incorrect;
   • (iii) This is the third time the Second Respondent has put forth his candidacy when he is aware that he is not eligible to run as a candidate.

Response by the First Respondent

4. The First Respondent’s position is that his acceptance of the Second Respondent’s nomination, follows him being satisfied of the matters he is required to be satisfied under s.47 Electoral Act 2019 including confirmation of the ‘monotaga’ by the ‘Sui o le Nuu’.
5. He neither supports nor opposes the Applicant’s motion on the evidence now provided in relation to ‘monotaga’ but leaves it to the Court to decide and to confirm or order otherwise his decision to accept the Second Respondent’s nomination.

Response by the Second Respondent

6. The Second Respondent opposes the Applicant’s motion for his disqualification as a candidate on the grounds that:
   • (i) He is qualified to be a candidate by virtue of Article 45 of the Constitution and section 8 of the Electoral Act 2019;
   • (ii) He has rendered ‘monotaga’ to his village of Saleapaga, in the Electoral Constituency of Lepa within three (3) consecutive years ending on the day he lodged his nomination; and
   • (iii) The Statutory Declaration filed in support of his candidacy was correct in accordance with section 8 of the Electoral Act 2019.

Qualifications for Candidacy under the Constitution and Electoral Act 2019

7. Article 45 of the Constitution and section 8 of the Electoral Act 2019 provide the qualifications for candidacy and election as a Member of Parliament. In summary, they are that the person must:
   • (a) be a citizen of Samoa; and
   • (b) be a registered voter of a constituency; and
   • (c) be the holder of a registered matai title for the Constituency he intends to represent; and
   • (d) have rendered a monotaga in respect of the registered matai title –
     • (i) within a village in a constituency which he intends to run as a candidate; and
     • (ii) for a consecutive three (3) years ending on the day in which his nomination paper is lodged with the Commissioner; and
   • (e) have resided in Samoa for a minimum of three (3) years ending with the day on which the nomination paper is lodged; and
   • (f) not be disqualified under the Constitution, any other Act and subsection (2) of the Electoral Act 2019.

Challenging a Candidate’s candidacy

8. Under s.47, Electoral Act 2019, nominations for candidacy are accepted or rejected by the Commissioner depending on whether they fulfill the requirements under s.47(2). The requirements under s.47(2) relate to forms that a candidate must lodge and information that such forms must confirm. As to the correctness and accuracy of the said information, there is no obligation on the Commissioner under s.47 to determine.
9. The Commissioner’s acceptance or rejection of a nomination under s.47 may however be challenged by motion by a candidate or any person who claims a right to run as a candidate (s.47(3)). Clearly, the challenge is specific to a decision of the Commissioner under s.47.
10. No similar provision is made for a candidate or person claiming a right to run as a candidate to challenge the eligibility of another candidate for failing to meet the qualifications under section 8. The latest amendments to the Electoral Act 2019 appear to have done away with such provision.
11. However, to give meaning and effect to the provisions of the Electoral Act, the Court must adopt a fair, large and liberal interpretation of the provisions of sections 8 and 47 in a way that the opportunity exists for a candidate or person who claims a right to be a candidate to challenge the eligibility of another candidate under s.8 and / or where the information contained in the forms lodged and declared by that candidate and upon which the Commissioner accepts a nomination is false or incorrect.
12. After all, if s.8 deals with qualifications for eligibility and the Commissioner is bound to accept or reject a nomination under s.47 only upon receipt of the forms containing the required information and being duly signed and witnessed, it must be the intention of Parliament that any challenge concerning the qualifications under s.8 and/or the accuracy and correctness of the information upon which the Commissioner accepts or rejects a nomination, must then be determined by the Court.
13. In this matter, the qualification subject to the Applicant’s challenge is ‘monotaga’ under s.8(1)(d) which requires that the person must have “rendered a monotaga in respect of the registered matai title under paragraph (c) – (i) within a village in a constituency which the person intends to run as a candidate; and (ii) for a consecutive three (3) years ending on the day in which the nomination paper is lodged with the Commissioner.”
14. Section 8(5) defines ‘monotaga’ as “the compulsory service, assistance or contribution (such as contribution in form of cash, kind or goods) rendered for customary, traditional activities, events, functions or similar purposes pursuant to the customs of a particular village.”

Issue

15. The issue for determination therefore is whether the Second Respondent has rendered monotaga for the last 3 years up to the day he lodged his nomination being 20 October 2020 pursuant to s.8(1)(d) of the Electoral Act 2019.

Evidence for the Applicant

16. Evidence for the Applicant was given by 5 witnesses, namely the Applicant who is a matai of Aufaga, and Sogimaletavai Ualesi Sagapolutele, Sagale Lauiliu Sagale, Sagapolutele Talosaga and Falana’ipupu Upuia Anoa’i, all matais of Saleapaga.
17. Their evidence is that rendering ‘monotaga’ in Saleapaga requires a matai to participate and contribute to all matters that its council engage in such as monetary contribution for village affairs, rendering service to the village for any matters that the council deems necessary including the hosting of guests, ‘laulautasi’ contributions of food for village functions and attendance at village meetings.
18. In relation to the Second Respondent, he has not rendered any such ‘monotaga’ for years prior to his nomination. He has not attended village meetings, no one has performed ‘monotaga’ on his behalf and when money and food is distributed following a village function, he is not assigned a share. The only village function that he attended was the 10^th anniversary of the tsunami in September 2019 and the ‘Aso Gafua’ meeting on 19 October 2020 where he made known his intention to run in the upcoming elections. At the said meeting the Second Respondent was told that whilst the village understood and respected his decision to run, he could not possibly do so because he had not rendered any ‘monotaga’.
19. Following the close of nominations and upon the discovery that the Second Respondent had been accepted as one of the candidates for the Lepa Electoral constituency, the matais of Saleapaga wrote to the Commissioner and objected on the basis that he had not rendered ‘monotaga’. The letter also refers to the Second Respondent being banished from Saleapaga and says that even prior to his banishment, he had not rendered any ‘monotaga’ to the village.
20. The Second Respondent’s banishment according to the Applicant’s witnesses has been for about 3 to 4 years and continues despite a Land and Titles Court decision in July 2020 ruling that the Second Respondent’s family return to the ‘faiganuu’.
21. As to the Second Respondent’s contribution to the village’s preparation for the 2018 independence celebrations, the 2019 commemoration of the 10^th year anniversary of the tsunami, and the school building project that is currently underway, the Applicant’s witnesses say that those can only be viewed as personal and voluntary donations, and so as his contribution to a number of family funerals in the village.

Evidence for the First Respondent

22. From the affidavit evidence of Faumui Afualo Daryl Mapu on behalf of the First Respondent, not only did the Second Respondent declare in the nomination papers lodged that he met all the qualifications for candidacy under s.8 of the Electoral Act 2019 (Form 2); his ‘monotaga’ and residency were also confirmed by way of statutory declaration by the ‘Sui o le Nuu’ and two (2) matais of Saleapaga (Form 3).
23. On that information, the First Respondent was satisfied of amongst other matters, that the Second Respondent has rendered ‘monotaga’ for the required number of years ending on the date of his nomination and therefore accepted the nomination as he is required under s.47.

Evidence for the Second Respondent

24. The four (4) witnesses for the Second Respondent were the Second Respondent himself, Tupua Ioane Tupua, Puletiu Aumua Pulu and Utaulu Konelio. All are matais of Saleapaga with Utaulu Konelio being the current ‘Sui o le Nuu’.
25. Their evidence is that the First Respondent has been performing his required ‘monotaga’ in the form of contributions to the preparations for the village’s participation in the 2018 independence celebrations and most recently for the school building project.
26. They do not dispute that the Second Respondent and his family have been banished from Saleapaga for about 3 to 4 years now. In response to questions from the Court, they concede that the requirement to render ‘monotaga’ ends when a matai is banished from his village. Even Utaulu Konelio, the Second Respondent’s uncle and ‘Sui o le Nuu’ who confirmed in the forms lodged with the First Respondent that he had performed his ‘monotaga’ conceded that he has not.

Discussion

27. With the Second Respondent being banished from his village of Saleapaga for a term of about 3 to 4 years now, we have no difficulty finding that he has not carried out his ‘monotaga’ for a consecutive three (3) years ending on the 20 October 2020, being the date of his nomination.
28. ‘Monotaga’ is “the compulsory service, assistance or contribution ... in the form of cash, kind or goods rendered for customary, traditional activities, events, functions or similar purposes pursuant to the customs of a particular village.” (s.8(5), Electoral Act 2019). It exists by virtue of a matai’s membership in the village council or ‘faiganuu’. Correspondingly when that membership ceases or suspends as a result of banishment from the ‘faiganuu’ as in this case, the requirement to carry out a ‘monotaga’ also ends. Simply one cannot render ‘monotaga’ to his village when banished. That is the custom relating to council matters (‘faiganuu’) in every village. It is also the clear and undisputed evidence in this matter.
29. We accept that the Second Respondent made contributions to the village’s preparations for the Independence celebrations in 2018; the 10^th year anniversary of the tsunami in 2019 and most recently for the school building project that is currently underway. Because of his banishment, the Second Respondent was not obligated to make those contributions. We find that those contributions were voluntary and could not have been ‘monotaga’. The fact that they were accepted by the village does not also render them as ‘monotaga’.

Costs

30. At the close of the evidence, Counsel were invited to file submissions and address the issue of costs. We have received submissions from the Applicant only in which he seeks indemnity costs against the Second Respondent. He produces a ‘without prejudice save as to costs’ letter of 12 November 2020 served on Counsel for the Second Respondent the morning after the first day of hearing evidence. The letter invites Counsel to withdraw the Second Respondent’s case.
31. The law pertaining to the awarding of costs is well settled, namely that costs follow the event and are normally awarded on a party to party basis (see Polynesian Limited v. Samoa Observer [1999] WSSC 35 and Crownland International Co Ltd v. Pioneer Freight Futures Co Ltd BVI [2009] WSSC 102 (28 October 2009).
32. “The Court however will depart from the ordinary rule and award indemnity costs if there are special and identified circumstances ... which require some special or unusual feature in the case which include:
    • (a) That a party has acted unreasonably in pursuing a wholly unmeritorious or hopeless claim or defence;
    • (b) A case which is commenced or pursued for an ulterior motive;
    • (c) party shows willful disregard of the known facts or clearly established law.”

(See Polynesian Limited v. Samoa Observer [1999] WSSC 35 and O.F. Nelson Properties Limited v. Sia’aga [2010] WSSC 54 (11 June 2010))

33. The Applicant submits that there are special and unusual features in this case which warrant an indemnity award of costs. We are persuaded by that submission.
34. We agree that the Second Respondent had pursued a wholly unmeritorious defence to the challenge by the Applicant. The contributions he made were clearly not ‘monotaga’ and his evidence was contradicted by his three (3) witnesses who conceded that he could not have rendered a ‘monotaga’ if he was banished from the village. With the term of his banishment being for about 3 to 4 years up to the present, the Second Respondent would have clearly understood that there was no way he could have rendered the necessary ‘monotaga’ for the required 3 consecutive years ending on the date of his nomination.
35. His banishment and its term were undisputed. The law relating to ‘monotaga’ was also clear. We find that by continuing his case after he was served notice of the Applicant’s intention to pursue indemnity costs should his opposition continue, it showed his willful disregard of those known facts and clearly established law.
36. The Applicant has submitted a bill for $13,137.50. Whilst we agree that this case warrants an award of indemnity costs, we have considered the amount submitted and decided to allow the sum of $5,000.00.

Orders

37. In view of the above, we make the following orders:
    • (a) The Second Respondent is disqualified from being a Candidate for the Territorial Constituency of Lepa in the upcoming General Elections in 2021;
    • (b) Costs of $5,000.00 are awarded to the Applicant against the Second Respondent.

ACTING CHIEF JUSTICE TUATAGALOA
JUSTICE ROMA