Ponifasio v Electoral Commissioner [2020] WSSC 85 (3 December 2020)

IN THE SUPREME COURT OF SAMOA
Ponifasio v Electoral Commissioner & Anor [2020] WSSC 85

Case name:	Ponifasio v Electoral Commissioner & Anor
Citation:	[2020] WSSC 85
Decision date:	Decision: 27 November 2020 Reasons: 3 December 2020
Parties:	TUALA TEVAGA IOSEFO PONIFASIO, election candidate for Gagaemauga 1 (Applicant) v Electoral Commissioner (First Respondent) & LEOA TAUTI KAREPO FAALEOLEA, election candidate for Gagaemauga 1 (Second Respondent)
Hearing date(s):	25 November 2020
File number(s):	MISC260/20
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 & G. Patu for the First Respondent Second Respondent self-represented
Catchwords:	Electoral challenge.
Words and phrases:
Legislation cited:	Electoral Act 2019 ss. 8(2)(b)(ii); 8(7); 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

AND:

IN THE MATTER:
of the nomination of LEOA TAUTI KAREPO FAALEOLEA as a candidate for Gagaemauga 1 Electoral Constituency

BETWEEN:

TUALA TEVAGA IOSEFO PONIFASIO, election candidate for Gagaemauga 1

Applicant

A N D:

ELECTORAL COMMISSIONER

First Respondent

A N D:

LEOA TAUTI KAREPO FAALEOLEA, election candidate for Gagaemauga 1

Second Respondent

Counsel: S. Ponifasio for the Applicant
S. Ainuu & G. Patu for the First Respondent
Second Respondent Self-Represented

Hearing: 25 November 2020
Decision: 27 November 2020
Reasons: 3 December 2020

DECISION

Introduction:

1. This is an application by the Applicant to disqualify the Second Respondent as a candidate for Gagaemauga 1 pursuant to section 47(3) of the Electoral Act 2019 (“the Act”). The grounds for the application are that:
   • (a) the Second Respondent did not have a statutory declaration signed by a Sui o le Nuu or Sui Tamaitai as required by subsection 8(2)(b)(ii) of the Act; and
   • (b) that Fui Iosua Taunuu who provided a statutory declaration pursuant to section 8(2)(b)(ii) of the Act confirming the Second Respondent’s monotaga had not himself carried out his monotaga in accordance with subsection 8(2)(b)(ii) and 8(7) of the Act.
2. At the hearing, the Applicant withdrew its second ground at [1](b) above.

The Relevant Law:

3. Section 8(2)(b)(ii) of the Act provides:
   • “(2) A person is disqualified from contesting as a candidate for elections if that person does not meet requirements in subsection (1) and:

...

(b) does not have a statutory declaration, in the prescribed form, confirming that the candidate satisfies the requirements of subsections (1)(d) and (1)(e) -

• (i) sworn by the candidate and witnessed by a barrister and solicitor of the Supreme Court in the private sector; and
• (ii) subject to subsection (7) sworn by 2 matai and a Sui o le Nuu or Sui Tamaitai of the candidate’s village and witnessed by a barrister and solicitor of the Supreme Court in the private sector; or”

The Evidence:

4. The Applicant gave evidence as did the Second Respondent, Florence Faoofo Fonoti and the Sui o le Nuu, Tala Tasi Falefatu. There is no dispute that the Second Respondent did not have a signed Statutory Declaration required by section 8(2)(b)(ii) of the Act.
5. On the evidence, when the Second Respondent had gone to register his nomination and informed the officers of the First Respondent that the Sui o le Nuu refused to sign, those representatives contacted the Sui o le Nuu by telephone. The Sui o le Nuu of Patamea confirmed over the phone that the Second Respondent is performing his monotaga under the matai title Leoa. A posted note was placed on the application confirming the conversation and his application for nomination was subsequently accepted on this basis.
6. The Second Respondent’s case in essence is that the Sui o le Nuu did not sign his Statutory Declaration as the Sui o le Nuu as he had been told by the Applicant and possibly others not to sign the Second Respondent’s Statutory Declaration.
7. The Applicant’s case is that he made no such intervention and had only first come into contact with the Sui o le Nuu on the 27^th November 2020 which was after the close of nominations. He has no knowledge of any other allegations.
8. The Sui o le Nuu claimed that he had not seen the Second Respondent’s nomination form nor had he seen the Second Respondent. He says that someone had told him that the Applicant asked for him not to sign the Second Respondent’s nomination form. When he was contacted by the Electoral Office by telephone, he confirmed that the Second Respondent had carried out his monotaga under the matai title Leoa.

Discussion:

9. Prior to the hearing, the First Respondent informed the Court that after further review of the Applicant’s proceedings, he now consented to the application by the Applicant.
10. The evidence is not in dispute that the Second Respondent did not lodge with the First Respondent a signed Statutory Declaration by either the Sui o le Nuu or Sui Tamaitai as required by section 8(2)(b)(ii) of the Act. That requirement is a mandatory requirement. Having failed to do so, the Second Respondent is disqualified from contesting the election as a candidate.
11. The First Respondent acted in error in accepting the verbal confirmation of the Sui o le Nuu that the Second Respondent had carried out his monotaga. The acceptance by the First Respondent on that basis was contrary to section 47(2). The First Respondent’s concession on the morning of the hearing was appropriately made.
12. We do not find that the Applicant influenced the Sui o le Nuu to not sign the Second Respondent’s nomination form. We find no merit in that contention or that the Sui o le Nuu acted inappropriately. On the evidence, he was willing to sign the Second Respondent’s monotaga form on the matai title Leoa and informed the officers of the First Respondent accordingly.

Conclusion:

13. 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.
      

JUSTICE VAAI
JUSTICE CLARKE