Tu'u'au v Electoral Commissioner [2020] WSSC 83 (27 November 2020)

IN THE SUPREME COURT OF SAMOA
Tu’u’au v Electoral Commissioner & Anor [2020] WSSC 83

Case name:	Tu’u’au v Electoral Commissioner & Anor
Citation:	[2020] WSSC 83
Decision date:	27 November 2020
Parties:	ALIIMALEMANU ALOFA TU’U’AU, Member of Parliament, Alafua (Applicant) v ELECTORAL COMMISSIONER (First Respondent) and LAFAITELE PATRICK LEIATAUALESA (Second Respondent).
Hearing date(s):	9 – 10 November 2020
File number(s):	MISC 243/20
Jurisdiction:	CIVIL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Lesatele Rapi Vaai Justice Tafaoimalo Leilani Tuala-Warren
On appeal from:
Order:	Accordingly, we make the following declarations; a) The Second Respondent does not satisfy the qualification requirements in section 8(1)(d) of the Act, specifically monotaga for three years ending on the date of nomination and therefore he is not qualified to run as a candidate in the general elections in 2021 for the territorial constituency of Alataua i Sisifo; b) Costs of $1,500 are awarded against him in favour of the Applicant.
Representation:	T. Leavai for the Applicant K. Seuseu-Soo & A. Iati for the First Respondent P. Chang for the Second Respondent
Catchwords:	Electoral challenge.
Words and phrases:	Applicant sought an order of the Court to disqualify Second Respondent as a candidate for upcoming elections – does not meet monotaga requirement – failure to satisfy the residential requirement.
Legislation cited:	Acts Interpretation Act 2015, s. 7(3); 7(4); 7(5). Electoral Act 2019, ss. 8(1)(d); 8(5); 47(1); 47; 47(2); 47(3).
Cases cited:	Attorney General v Associates Newspapers Ltd (1994) 1 A11 ER 556; Auckland City Council v Glucina (1997) 2 NZLR 1; Faletagoai v AG & Tuitui Kiliri Lafi Tuitui, 2020; Maxwell on the Interpretation of Statutes 12 edn. (1969); Pepper (Inspector of Taxes) v Hart (1992) 3 MLR 1032; Sio v Patea [2011] WSSC 51 (13 May 2011).
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

IN THE MATTER:
of an application made pursuant to section 47(3) of the Electoral Act 2019 as amended by the Electoral Amendment Act (No.2) 2020.

ETWEEN:

ALIIMALEMANU ALOFA TU’U’AU Member of Parliament, Alafua.
Applicant

A N D:

ELECTORAL COMMISSIONER appointed pursuant to section 7 of the Electoral Commission Act 2019.
First Respondent

A N D:

LAFAITELE PATRICK LEIATAUALESA

Second Respondent

Coram:
Justice Lesatele Rapi Vaai
Justice Tafaoimalo Leilani Tuala-Warren

Hearing: 09^th & 10^th November 2020

Counsel:
T. Leavai for the Applicant
K Seuseu-So’o and A Iati for the First Respondent
P. Chang for the Second Respondent

Judgment: 27 November 2020

JUDGMENT OF THE COURT

1. The Applicant and the Second Respondent are two of the three candidates nominated for the territorial constituency of Alataua i Sisifo for the upcoming general elections in April 2021 when nominations closed on 23rd October 2020. By Notice of Motion dated the 28th day October 2020 the Applicant sought an order of the Court to disqualify the Second Respondent as a candidate for the said constituency on the ground, the Second Respondent does not meet the monotaga requirement set out in section 8 (1) (d) of the Electoral Act 2019.
2. An amended ground, namely, failure to satisfy the residential requirement was abandoned during the trial.

Monotaga Requirement

3. Section 8 (1) (d) provides that a person is qualified to run as a candidate if that person:
   • “has 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.
4. Monotaga is defined in section 8 (5) of the Act. It means:
   • “The compulsory service, assistance or contribution (such as, contribution in form of cash, kind or goods) rendered for customary, traditional activities, events, function or similar purposes pursuant to the customs of a particular village.”

The Dispute

5. The Applicant alleges that after the Second Respondent was unsuccessful in the 2016 general elections for the Legislative Assembly, the Second Respondent neither visited Neiafu again nor rendered monotaga to the village. He returned in September 2020 when the chief matai (sa’o) of his family died.
6. In response the Second Respondent was adamant he did render his monotaga. He stated at paragraph 4 of his affidavit:
   • (4) In the year 2015 I gave $2,000 into the village account to be continually used for any monotaga that comes up with the village where saofaga are called upon from the matai in the village. To this day there is a remaining balance from this $2,000 for the village. We do not have usual monthly contributions into our village council but we only call for saofaga from each matai when events are called for financial assistance.
7. The Applicant denies the payment of $2,000. It is also contended that even if $2,000 was paid it does not satisfy the requirement of monotaga.

The Evidence for the Applicant

8. The Applicant, the current member of parliament for Alataua i Sisifo, since the 2016 general elections told the Court she was actively involved since 2016 in her village of Neiafu events and activities as well as attending village council meetings. She did not see the Second Respondent and neither did he render any monotaga.
9. Her testimony was supported by three senior matais of Neiafu. Aliimalemanu Faleupolu, a 61-year-old matai, resides permanently at Neiafu, has been attending village meetings and rendering monotaga for 27 years after he was conferred the matai title. He told the Court that when the Second Respondent who was the member of Parliament after the 2011 elections, lost in 2016 general elections, he was not seen in Neiafu again until September this year when the chief matai (sa’o) of his family died.
10. Moti Satuala is 70 years and a matai for over 40 years; and for over 40 years since he became a matai has been handling the finances of Neiafu village. Taatiti Manoa has been a matai for 23 years. As the current tu’ua (senior orator) of the village, a position he occupied since 1975, Taatiti Manoa summons village meetings, controls village meetings, supervises any contributions the village does for any events and is the spokesperson for the village. Taatiti Manoa and Moti Satuala both testified that the Second Respondent had not rendered monotaga since 2016. Indeed, during one of the village meetings on 2^nd September 2020, Taatiti Manoa told the meeting that the Second Respondent had not rendered monotaga and is therefore not qualified to run. As the tu’ua of the village he knows who is rendering monotaga especially by those living in the village. He also knows the matai living outside of the village through work and other callings that rendering monotaga through their family members living in the village. He was not present at any meeting in 2015 in which the Second Respondent gave $2,000 to the village. When monetary donations were sought from the matais, the Second Respondent did not contribute, nor did any of his family contribute on his behalf.
11. Moti Satuala, the village treasurer for over 40 years did not receive $2,000 allegedly given by the Second Respondent to the village, nor did he receive any monetary donation by the Second Respondent or any on behalf of the Second Respondent since the Second Respondent lost in the 2016 general elections.

Evidence for the Second Respondent

12. The Second Respondent told the Court he attended the village meeting in 2015 and he gave the $2,000 to the then tu’ua of the village Taatiti Faiga to be continually used for his monotaga.
13. Six matai of Neiafu who witnessed the giving of $2,000 by the Second Respondent at the village meeting testified. Mamea Valoaga, Uila Elia and Soliga Filiga told the Court the $2,000 was given to the village, not by the Second Respondent, but by Lafaitele Elia, the Second Respondent’s family chief (sa’o) matai. The $2,000 was then distributed to the matai present at the meeting.
14. Mamea Valoaga and Uila (the son of Lafaitele Elia) also told the Court that the Second Respondent was not present at the meeting when Lafaitele Elia gave the $2,000 to the village.

Statutory Interpretation

15. The cardinal rule in statutory interpretation is that words in a statute prima facie bear their plain and ordinary meaning.
16. Lord Lowry in Attorney General v Associates Newspapers Ltd ^[1](1) at 561 stated in a judgment with which the other members of the House of Lords concurred:
    • “The cardinal rule as stated in the text books on interpretation, for example in Maxwell on the Interpretation of Statutes 12 edn. 1969 pp. 28-29 is that words in a statue prima facie bear their plain and ordinary meaning”
17. The same principle was echoed by Blanchard J in the New Zealand Court of Appeal decision in Auckland City Council v Glucina ^[2](2):
    • “In any question of construction of a statute the starting point must obviously be the natural language chosen by the legislative. It is only if the Court is left unclear about the legislative intent after reading the provision in question, or if notwithstanding its apparent clarity, a literal application would lead to a result seemingly in conflict with the policies of the Act that the Court need to go further.”
18. This principle is given statutory recognition by section 7 (3) of the Acts Interpretation Act 2015 which states:
    • “7 (3) The intention of Parliament is to be derived from the words of the Act, having regard to:
      • (a) the plain meaning of ordinary words; and
      • (b) the technical meaning of technical words; and
      • (c) the whole of the Act and the specific context in which the words appear; and
      • (d) headings and any limitation or expansion of the meaning of words implied by them; and
      • (e) grammar, rules of language, conventions of legislative drafting and punctuation
19. If the Court is left unclear after consideration of section 7(3) or if the literal application would lead to a result obviously ambiguous or in conflict with the policies of the Act the Court is empowered by section 7(4) and 7(5) to ensure the attainment of the objects of the Act by consideration of other matters like the legislative history of the Act, the explanatory memorandum that was before Parliament; second reading speech made to Parliament, and copies of the Hansard.
20. In Sio v Patea (3) this Court accepted and consulted copies of Hansard which recorded the speech made to Parliament when a particular amendment was introduced to the 1963 Electoral Act which the Court was then determining. In Pepper (Inspector of Taxes) v Hart ^[3](4) the majority of the House of Lords had regard to Hansard as an aid to interpreting the legislations. Lord Bridge, Lord Oliver and Lord Browne-Wilkinson said they would have reached a different construction of the statue if they had not consulted Hansard. It was said by Lord Griffiths at 1040:

“If the language proves to be ambiguous I can see no sound reason not to consult Hansard to see if there is a clear statement of the meaning that the words were intended to carry. The days have long passed when the Courts adapted a strict construction view of interpretation...”

Applicant’s Submission

21. The Applicant contended that the Second Respondent did not contribute $2,000 in 2015 as his monotaga for the years 2015 to 2020. There was no record of the payment as the treasurer or finance person for Neiafu for over forty years was not given the $2,000.
22. In any event, even if $2,000 was given to the village at a meeting, it was submitted that the payment of cash alone did not satisfy the requirement of monotaga. Counsel contended the customs of Neiafu according to the evidence include not only cash, kind or goods but attendance at the village fono and other events that involve the village is also essential.
23. Since the Second Respondent did not render monotaga the tu’ua (senior orator) of the village who distributed food, money etc from events in which the village was involved, did not consider the Second Respondent entitled to a share. Only matai who rendered monotaga benefitted from any gifts or donation given for the village.

Submissions by the Second Respondent

24. The very brief submissions of the Second Respondent consist of four paragraphs. Paragraphs three and four state: -
    • “(3)” The law is clear that monotaga is to be for a period of three years from the nomination period. It can be services, assistance or contribution rendered pursuant to customs of a particular village”.
    • “(4)” The facts for the Second Respondent are clear. An amount of $2,000 was given to perform his monotaga for all the years required. This was given in the year 2015. It is clear there was only compulsory contribution required in the year 2017 and the year 2018 in the last three years and the umusā of the road. Other than these there was no further compulsory contributions required by the village and this was not contested. The village elders gave evidence that these was enough to cover the compulsory contributions required in their village by the Second Respondent.

Discussion

25. It is common ground that the monotaga and residential requirements were imposed by Parliament to confine the qualification of candidates for the general election to those who normally reside in Samoa and are continuously involved, assist and contribute to the affairs of their village within the constituency they intend to run. Contribution is by way of cash, kind or goods and is used for customary and traditional activities.
26. Originally the definition for monotaga included assistance and contributions for religious purposes. The Electoral Amendment Act 2020 No.13 excluded contribution for religious purposes.

The Samoan definition of monotaga was also altered. In the 1963 Act was amended monotaga is defined as:

“O lona uiga o le tautua faamalosia....”

In the 2019 Electoral Act it is defined as:

“O lona uiga o le tautua le motusia”.

27. The slight variation in the Samoan definition does not significantly alter the meaning and prescription of monotaga, and the exclusion of religious activities confines and limits monotaga to customary and traditional activities.
28. It is continuous service which only comes to an end when the matai dies or is banished from the village, or is ostracized from the village activities, or leaves the village permanently to stay elsewhere and discontinues his service. It is also compulsory simply because it is not optional or voluntary. Rendering Monotaga is for all village events. Failure to comply with contributions, either by way of goods, fine mats, or cash attracts village sanctions as the senior orator (tu’ua) testified.
29. The plain and ordinary meaning of the definition of monotaga in section 8 (5) is seemingly in agreement with the meaning attributed to it by the witnesses for the Applicant and for the Second Respondent. Namely it is continuous, it is compulsory and the contributions can be in any form depending on the event. The matai residing in the village may also on some occasions, if the event is insignificant, decide that only matai residing in the village should deal with the event.
30. The Court is therefore a little amused that the Second Respondent decided to give $2,000 to Neiafu village through this senior matai to continue his monotaga bearing in mind he was the then member of parliament and the general election was pending. It is not surprising that those present at the meeting immediately distributed the cash amongst themselves.
31. If the Second Respondent’s wish was to continue his monotaga, he did not have to tell the village. If his senior matai was doing his monotaga, the Second Respondent should only speak to his senior matai about his monotaga.
32. Even if the Court accepts that the $2,000 was given to the village for the Second Respondent’s monotaga the requirement of monotaga as described above has not been complied. The payment of cash alone is not sufficient to satisfy the monotaga. The Second Respondent has an obligation to verify with his senior matai who he claimed was doing his monotaga to ensure that he was in fact doing his monotaga.
33. The tu’ua of Neiafu was adamant the Second Respondent’s senior matai was not doing the monotaga for the Second Respondent. This vital evidence is supported by the evidence of the Second Respondent and his witnesses. They all testified, the $2,000 was given by the Second Respondent’s senior matai for his monotaga. The senior matai obviously also believed the $2,000 was suffice for the Second Respondent’s monotaga.
34. The Court does not accept the contention by counsel for the Second Respondent that there were only two compulsory contributions required by Neiafu village in 2017 and 2018. The elderly matai who testified for the Second Respondent obviously kept no diaries and were only asked in October or November 2020 of what may have happened in Neiafu in 2018 and 2017. Their testimonies cannot be treated as reliable. They could not remember any other events other than those stated in their affidavits.
35. The Court does not accept the submission by the Applicant that monotaga requires attendance at the village meetings. Parliament obviously excluded attendance at meetings to provide for those living away for work and other obligations but rendering monotaga through their families living in the village.

Result

36. The Second Respondent does not meet the monotaga requirement.

Challenge by the Applicant

37. The Notice of Motion by the Applicant to challenge the decision of the Electoral Commissioner (First Respondent) to accept the nomination of the Second Respondent is grounded on section 47(3) of the Electoral Act (the Act) which states:

“A candidate or a person who claims a right to be a candidate may by motion to 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.

38. Section 47(1) directs the Electoral Commissioner to accept the nomination of a candidate if the candidate fulfils all requirements in subsection (2).
39. It is mandatory for the Electoral Commissioner to accept the nomination if the candidate satisfies the requirements of section 47. On the evidence and materials before the Court the Second Respondent fulfilled all the requirements laid out in section 47(2). As a consequence, the Electoral Office was entitled to accept the nomination of the Second Respondent

Section 8 of the Act

40. The second ground for the Applicant’s motion is that the Second Respondent has not rendered monotaga under section 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.”
41. We accept that the Commissioner’s acceptance or rejection of a nomination under section 47 may be challenged by motion by a candidate pursuant to section 47(3).
42. 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 is not provided for in the Act. The September 2020 amendments to the Electoral Act 2019 removed this provision.
43. 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. (see Faletagoai v AG & Tuula Kiliri Lafi Tuitui, 2020).
44. After all, if section.8 deals with qualifications for eligibility and the Commissioner is bound to accept or reject a nomination under 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 of the information upon which the Commissioner accepts or rejects a nomination, must then be determined by the Court. (see Faletagoai v AG & Tuula Kiliri Lafi Tuitui, 2020).
45. We have decided on the facts that the Second Respondent does not satisfy the requirements of monotaga under section 8(1)(d).

Conclusion

46. Accordingly, we make the following declarations;
    1. The Second Respondent does not satisfy the qualification requirements in section 8(1)(d) of the Act, specifically monotaga for three years ending on the date of nomination and therefore he is not qualified to run as a candidate in the general elections in 2021 for the territorial constituency of Alataua i Sisifo;
    2. Costs of $1,500 are awarded against him in favour of the Applicant.

JUSTICE VAAI
JUSTICE TUALA-WARREN

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^[1] (1994) 1 A11 ER 556
^[2] (1997) 2 NZLR 1 at page 4


^[3] (1992) 3 MLR 1032