PacLII Home | Databases | WorldLII | Search | Feedback

Supreme Court of Samoa
You are here:  PacLII >> Databases >> Supreme Court of Samoa >> 2021 >> [2021] WSSC 56

Database Search | Name Search | Recent Decisions | Noteup | LawCite | Download | Help

Crichton v Electoral Commissioner [2021] WSSC 56 (22 November 2021)

IN THE SUPREME COURT OF SAMOA
Crichton v Electoral Commissioner and Anor [2021] WSSC 56


Case name:
Crichton v Electoral Commissioner and Anor


Citation:


Decision date:
22 November 2021


Parties:
FUIONO TENINA CRICHTON, By-Election Candidate for Falealupo (Applicant) v ELECTORAL COMMISSIONER, appointed pursuant to section 7 of the Electoral Commission Act 2019 (First Respondent) and TUITOGAMANAIA PENIAMINA JUNIOR LEAVAI, By-Election Candidate for Falealupo (Second Respondent)


Hearing date(s):
17 November 2021


File number(s):
MISC 352/21


Jurisdiction:
CIVIL


Place of delivery:
Supreme Court of Samoa, Mulinuu


Judge(s):
Chief Justice Satiu Simativa Perese
Justice Niavā Mata Tuatagaloa


On appeal from:


Order:
The Court finds the following:
(i) We find that Tuitogamanaia Peniamina Junior Leavai has not rendered religious monotaga to EFKS church at Vaotupua in Falealupo-tai for three (3) consecutive years before lodgment date pursuant to section 8(1)(d) and section (5) of EA 2019.
(ii) The Second Respondent, Tuitogamanaia Peniamina Junior Leavai pursuant to section 47(4)(a) of EA2019 is disqualified as a candidate for the upcoming by-elections for the Constituency of Falealupo.
Costs of $1000 each is awarded to the Applicant and the First Respondent to be paid by the Second Respondent.


Representation:
Fuimaono S. Ponifasio for the Applicant
Fuimaono S. Ainuu (Attorney General’s Office) for the First Respondent
Leota T. Leavai & A. Matalasi for the Second Respondent


Catchwords:
Electoral challenge – religious monotaga –


Words and phrases:
“challenge Electoral Commissioner’s decision to accept nomination” – “satisfy monotaga requirement” - “compulsory service, assistance or contribution”


Legislation cited:
Acts Interpretation Act 2015 s. 11;
Constitution of the Independent State of Samoa 1960 Article 45;
Electoral Act (No2) Amendment 2021, ss. 47(3)(b);
Electoral Act 2019, ss. 8(1); 8(1)(d); 8(2); 8(5); 47(4)(a);
Electoral Commission Act 2019 s. 7; 47; 47(3); 47(4);


Cases cited:
Liuga v Alailima [2016] WSSC 11 (29 February 2016)


Summary of decision:

MISC 352/21


IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU


IN THE MATTER OF:


an application made pursuant to section 47(3)(b) of the Electoral Act (No. 2) Amendment 2021


BETWEEN:


FUIONO TENINA CRICHTON, By-Election Candidate for Falealupo


Applicant


AND:


ELECTORAL COMMISSIONER, appointed pursuant to section 7 of the Electoral Commission Act 2019


First Respondent


AND:


TUITOGAMANAIA PENIAMINA JUNIOR LEAVAI, By-election Candidate for Falealupo


Second Respondent


Coram: Chief Justice Satiu Simativa Perese

Justice Niavā Mata Tuatagaloa

Counsel: Fuimaono S Ponifasio for Applicant

Fuimaono S Ainuu (Attorney General’s Office) for First Respondent
Leota T Leavai and A Matalasi for Second Respondent
Hearing: 17 November 2021
Decision: 22 November 2021


JUDGMENT OF THE COURT

Introduction

  1. This is an application brought by Fuiono Tenina Crichton (“Fuiono”) against the Second Respondent Tuitogamanaia Peniamina Junior Leavai (“Tuitogamanaia”) pursuant to section 47(3)(b) of the Electoral Act (No 2) Amendment 2021 (“EA”).
  2. The nomination of Tuitogamanaia as a candidate for the by-elections on 26 November 2021 for Electoral Constituency of Falealupo, was accepted by the Electoral Commissioner (“the Commissioner”) on the basis that he had satisfied the religious monotaga in support of his candidacy.

The Applicant

  1. Fuiono Tenina’s challenge is to the Commissioner’s decision accepting the nomination of Tuitogamanaia because he had not rendered a monotaga ant uo section 8(1)(d) and and section 8(5) of the EA 2019 for any three (3) consecutive years before the day in which his nomin wased with the Commissioner.
  2. Accordingly, Fuiono asks this Court to disqualify Tuitogamanaia so that he cannot contest the upcoming by-election.
  3. Fuiono’s application initially sought to challenge Tuitogamanaia on the basis that he had not satisfied either the traditional or the religious monotaga requirements for candidacy. However, it emerged in the evidence filed on behalf of the Commissioner that the religious monotaga was the only ground upon which the nomination was made and accepted by the Commissioner, and Fuiono abandoned the challenge relating to traditional monotaga.
  4. The Applicant called the evidence of Fuiono Tenina Crichton, Taofinuu Matalio Lamositele, Aeau Kamilo Petelo Fuiono, Soifua Levi, Taii Tapaga and Togia Mose.

The First Respondent

  1. The Commissioner’s position is that the nomination was accepted on the basis that all the requirements of section 47 were met and was satisfied that Tuitogamanaia had satisfied the requirement of a religious monotaga[1] on the basis of the Statutory Declaration of Reverend Namaia.Kofe Tuiletufuga.[2]
  2. The Commissioner’s role was mainly to assist the Court.

The Second Respondent

  1. Tuitogamanaia defended the challenge upon the basis that he had satisfied the religious monotaga criteria and was therefore entitled to run as a candidate in the upcoming by-elections.
  2. Tuitogamanaia gave evidence as did Reverend Namaia Kofe Tuiletufuga, Taua’i Afaese Suesue and Ugapo Saio Tuileva on his behalf.

The Issue

  1. We frame the issue as follows – Has Tuitogamanaia rendered religious monotaga in respect of his registered matai title pursuant to section 8(1)(d) and section of 8(5) of EA 2019.

The Evidence

  1. The village of Falealupo is made up of five (5) “Fuaiala”, which are sub-villages:
  2. Fuiono Tenina belongs to the Fuaiala of Malaetele while Tuitogamanaia Peniamina belongs to the Fuaiala of Salesau.
  3. The village of Falealupo has two Ekalesia Faalapotopotoga Kerisiano Samoa (“EFKS”) churches – at Avatā in Falealupo-uta and Vaotupua in Falealupo-tai.
  4. Both Fuiono and Tuitogamanaia worship at the EFKS church; Fuiono attends the EFKS at Avatā, Falealupo-uta, and Tuitogamanaia who resides in Upolu attends the EFKS at Vaotupua, Falealupo-tai.

(a) Evidence for the Applicant

  1. Fuiono and Taofinuu Matalio evidence was more relevant to the traditional or customary monotaga. On the issue of religious monotaga, Fuiono’s evidence was limited as he did not attend the same EFKS as Tuitogamanaia, and Taofinuu attended a different religion.
  2. The relevant evidence called in support of the application were given by Aeau Kamilo Petelo, Togia Mose, Taii Tapaga, Taii Malele and Soifuā Levi. The witnesses Aeau Kamilo, Taii Tapaga and Taii Malele are of the same fuaiala as Tuitogamanaia and relevantly, all of them are members or tiakono of the EFKS Vaotupua, Falealupo-tai. These witnesses gave evidence that:
  3. These witnesses drew a distinction between monotaga and fesoasoani. They said that a monotaga to the church can only be done by matafale. Once a person had a matafale it was then compulsory for that person, whose name the matafale is under, to make contributions or assistance, monetary, in kind or goods to the church and whenever it is required by the church. The amount of those contributions is up to the person, but it is expected and must be done. A person who made a contribution to the church but did not have a matafale would have their contribution recognised by the Church, but would be regarded as a fesoasoani. They said that those without a matafale are not obligated to give or contribute to the church and the church also does not include them in church activities or events where the church is to attend like the Fono i Malua, funerals and other similar events.
  4. These witnesses said that any contributions by Tuitogamanaia through his father’s matafale is not Tuitogamanaia’s monotaga to the church but his own service or tautua to his father under his father’s matafale but the matafale is his father’s monotaga to the church. The evidence is clear that Tuitogamanaia has made contributions to the Church under his own name, which has been accepted and acknowledged by the Church, but as became apparent in Tuitogamanaia’s evidence, and those called in support of his position, Tuitogamanaia’s contributions were made through his father’s matafale, not his own.
  5. The witnesses who gave evidence in support of Fuiono said they have only seen Tuitogamanaia once, at his sister’s matai title bestowment in 2020 and only very recently in church but not regularly. Evidence given by a witness called on behalf of Tuitogamanaia appears to confirm the irregularity of Tuitogamanaia’s attendance, and we shall discuss this shortly.

(b) Evidence for the Second Respondent

  1. All the witnesses called including Tuitogamanaia Peniamina Junior Leavai and Reverend Namaia Kofe Tuiletufuga did not dispute Tuitogamanaia does not have a matafale in the EFKS Vaotupua. The witnesses who gave evidence in support of Tuitogamanaia’s defence said:
  2. Reverend Namaia Kofe Tuiletufuga of EFKS Vaotupua gave evidence that service to the church is by both matafale and voluntary (loto fuatia ifo). He said that contributions to his church is by matafale and those who gave voluntarily were those without a matafale. Reverend Namaia gave evidence that service by matafale is obligatory. He disagreed with the evidence for Fuiono that you can only have a matafale if you are a matai.[6] He said there are matafale in his church who are not matai. Reverend Namaia said that contributions by Tuitogamanaia is his service to his father’s matafale (tautuaina ole matafale a Aeau Peniamina). He said that service to the church by way of matafale is recognised as that of Aeau Peni.
  3. Tuitogamanaia gave evidence that he rendered service to the EFKS Vaotupua in the following three (3) consecutive years – 2018, 2019, 2020 and part of 2021 through his father’s matafale. Tuitogamanaia’s evidence was he served his father’s matafale as a son and also as a matai tautua to his father’s title Aeau. Although, he agreed that there was no rule in their church stopping him from having a matafale he opted to serve under his father’s matafale. He said that he cannot set up a matafale under his name whilst his father is alive. He said that he attends church more often than what the witnesses for the Applicant say - that he had only attended once or twice in every few years. Tuitogamanaia referred to times when he could not attend to church due to illness and/ or work commitments, but when he visited Falealupo he would always be there and make a contribution to the Church. He said that his contributions were not always recorded because they were given directly to the church minister.[7]
  4. The witness Taua’i Afaese Suesue[8] was the church secretary at the time. His duties included recording and announcing the contributions by way of alofa, taulaga, atina’e and any other contribution made to the church. These records were exhibited to his affidavit.
  5. Taua’i confirmed that faifeau alofa is raised by the matafale on a fortnightly basis, which would amount to around twenty-four (24) alofa per year. Yet his records for the three (3) consecutive years that Tuitogamanaia said that he rendered a monotaga to the church; it appears that Tuitogamanaia made only two (2) alofa, one (1) taulaga, no atina’e in 2018. In 2019, Taua’i’s records showed that Tuitogamanaia only contributed four (4) alofa, no atina’e, no taulaga; similarly in 2020, Tuitogamanaia gave four (4) alofa, and one (1) taulaga. Since April 2021 Tuitogamanaia is shown to have only contributed twice (2) to the alofa, one (1) atina’e and Taulaga o le Talalelei. We note that during 2020, the holder of the matafale, Aeau Peniamina (Tuitogamanaia’s father) is recorded in his own name as having made a large contribution as a gift to the Church. The secretary’s records for the years 2018 and 2019 do not show any contributions by Aeau Peniamina during that period, The only contributions made by Aeau Peniamina in his own name were made in in August 2020, as noted above, and in September 2021.
  6. The witness Ugapo Saio Tuileva[9] is of the same fuaiala as Tuitogamanaia, and he holds one of the chiefly titles of the fuaiala. He is also an a’oa’o fesoasoani in EFKS Vaotupua. Ugapo said anyone can have a matafale and not only to those who are matai. He confirms that his father was recognized (amanaia) in the church because he had a matafale. His view differs from that of the Second Respondent and Reverend Namaia. He said that he was bestowed the title ‘Ugapo’ in 2004 whilst his father was still alive and holding the title ‘Aeau’. Prior to that he had a title not of same stature as the Ugapo title. He had been serving his father’s matafale and he continued to serve his father’s matafale, even after he was bestowed the Ugapo title, and following his father’s death, whilst his mother was still alive. It was only when his mother also died that he then had a matafale under his name. He gave evidence that although he could have a matafale under his name, to him he could not while his father and mother were alive. He wanted to serve his father under his father’s matafale. It was his choice.

The relevant provisions of the Constitution and the Electoral Act 2019

  1. Article 45 of the Constitution provides the qualifications for a person to be elected as a Member of Parliament, being:
  2. The Electoral Act 2019 since commencement on 31 January 2019 has been amended several times with the latest amendment in September 2021 with such amendments having commenced on 29 September 2021.
  3. Section 8 (1) of the Electoral Act 2019 provides the qualifications for a person to be elected as a Member of Parliament and is based on and follows the provisions of Article 45 of the Constitution and states: (with emphasis)
  4. Section 8(2) provides the grounds for the disqualification of a person from running as a candidate for a parliamentary election if that person does not meet the requirements in section 8(1).
  5. For purposes and relevance to the present application, section 8(5) defines monotaga, organization and village as follows:-
  6. Section 47 provides for the First Respondent’s powers to accept and reject nominations: (with emphasis)
  7. The Applicant challenges the candidacy of the Second Respondent pursuant to section 47(3) and section 47(4) provides the Court with jurisdiction to consider such a challenge and its decision is final and not subject to review:

Discussion

  1. The Electoral Act 2019 has been amended several times since its commencement on 31 January 2019, with the latest amendment commencing on 23 September 2021. The Revision Notes record that the Electoral Amendment Act 2020, No. 13 omitted the word “religious” from the definition of monotaga as it appeared in the Electoral Act 2019. However, the word was reinserted in the Electoral Amendment Act (No. 2) 2021, No. 9 in September 2021. The reinsertion is not referred to in the Revision Notes, but an examination of the original copy of the relevant amendment confirms that the word religious is part of the definition of monotaga as it presently appears in the EA.
  2. The statutory provisions which we must interpret are:
  3. The Act does not define the meaning of the word “compulsory” in relation to monotaga. For the avoidance of doubt, we consider the word compulsory is used in the section to modify the subsequent list of words - service, assistance or contribution. In other words, the definition refers to compulsory service, compulsory assistance or compulsory contribution.
  4. First we note that at a literal level we see no reason to depart from the analysis in Liuga v Alailima [2016] WSSC 11 (29 February 2016) at paragraphs 21 and 22 to which the Court stated:[10]
  5. The definition of monotaga in Liuga’s case was:
  6. The object of the Act, with respect to the rendering of the monotaga, is in our view concerned with ensuring that those who wish to lead their communities, as a Member of Parliament, must demonstrate their compulsory service, assistance or contribution to the community they wish to represent.
  7. It is well understood that when you become a matai you are required to provide service to the village that you hold the matai title from. For electoral purposes the EA provides that a prospective candidate must provide compulsory service – which the EA refers to a monotaga, for three (3) consecutive years, according or pursuant to the customs of that particular village. A person’s compulsory service to the village is carried out under their own matai title and not under or through another’s matai title. We consider that this should be no different to the provision of service with respect to a religious monotaga, Indeed, in our view, the Samoan definition of monotaga – tautua faamalosia is not different in any material way to the English words – compulsory service – it is something that must be done. We consider s.11 of the Acts Interpretation Act entitles us to treat both the English and Samoan versions as they relate to the definition of monotaga as equally authoritative. Accordingly, a person who is a matai and who intends to run as a candidate in the elections is required to provide or do his monotaga to the village and church (or either) under the matai title that he intends to contest the election under.
  8. Counsel for the Electoral Commissioner submitted ‘compulsory service’ is perhaps to be interpreted in the context of what is accepted by a particular church. We agree. Each religion has its own ‘religious customs’ of what is accepted norms, which are particular to that religion.
  9. It is common knowledge that service in the EFKS Church is by matafale. However, how a matafale is set up or established is the prerogative of each EFKS church. According to the evidence, there are two different views of how one can set up a matafale in the EFKS Vaotupua church. One view, advanced on behalf of the Applicant, was that only matai can have a matafale. However, witnesses for the Second Respondent said that anyone, matai or not, can set up a matafale. Whatever might be the position in Vaotupua, we consider that there was no impediment to Tuitogamanaia establishing a matafale under his name. It was abundantly clear from his evidence, given passionately about this issue, that he chose to serve his father’s matafale. We note, however, Tuitogamanaia’s evidence he and his siblings, together, served their father’s matafale. We draw from this the inference that Tuitogamanaia did not in a substitutive way become a de facto matafale, but that he and his siblings, “nai ona tei”, were together uplifting their father’s high reputation in the village by continuing his matafale, to the extent that each could voluntarily contribute, generally when they attended Church services from time to time.
  10. The importance of the matafale goes to the heart of understanding the nature of a person’s contribution to the Church, for it is through a matafale that a compulsory obligation to tautua arises. In cross examination, Reverend Namaia Kofe had this to say:[11]
  11. It can be seen from these exchanges that service, assistance or contribution to a religious service may be regarded as something which can be enforced against matafale by upu faamalosia, but it is discretionary as to what type of service, assistance or contribution a person gives, for whatever reason.
  12. In our view, there is a discernible expectation from the evidence of Rev Namaia that matafale members must provide service, assistance, or contribution. We do not consider that there is necessarily anything untoward about this coercive thinking; the Church operates by the free will of its members; free will to have a matafale or not, and an underlying principle that all members, with whatever amount they might be capable contributing, share in the costs of the Church - e lē faamalosia ae tatau ona fai.[13]
  13. We conclude that compulsory service, assistance or contribution to this particular EFKS church at Vaotupua is by way of matafale. This however does not assist Tuitogamanaia because he did not have a matafale but was instead voluntarily contributing member of his father’s matafale. The issue Tuitogamanaia appears to raise is whether by contributing to his father’s matafale, he is also able to enjoy the benefit of payments he makes being classed as having been made under compulsion? We, respectfully, do not consider that to be a plausible argument because the contributions are made voluntarily for someone else, and to satisfy another purpose. In Tuitogamanaia’s case those purposes are as Aeau’s son and as a matai who supports Aeau.
  14. According to Reverend Namaia Kofe, the service recognized by the church is attributable to the person whose name the matafale is under.[14] We do not disagree that Tuitogamanaia has been contributing to the EFKS Vaotupua either voluntarily or under his father’s matafale. In the present case, Tuitogamanaia does it as part of serving his father as a son and as a matai tautua to the chiefly title held by his father as such, he has opted not to have a matafale under his name but to serve his father’s monotaga to the church under his father’s matafale. We applaud the choice made by Tuitogamanaia to serve his father first and foremost before his own interest of having a matafale under his own name. We are all familiar with the Samoan saying “O le ala i le pule o le tautua”; this will no doubt come true for Tuitogamanaia in years to come.
  15. We note for completeness that having a matafale alone does not mean that one has satisfied “compulsory service” under the law, one must also provide the compulsory service for any three (3) consecutive years prior to lodgment of nomination. Given that we have accepted that compulsory service in regards to religion can only be done through or by a matafale under the person’s name, there is therefore, no need for us to consider whether the Second Respondent has provided a compulsory service within the three years he has put forward of 2018, 2019, 2020 and part of 2021. Even if we were to consider the three (3) years of payments, it is an inescapable detail that Tuitogamanaia’s financial contributions were “intermittent and irregular”. In our view, we would take a lot of persuading to be satisfied that these payments satisfied compulsory service. We noted Tuitogamanaia’s evidence that payments were made whilst he was seeking medical treatment overseas in 2020. There were three such payments. Whilst the making of these payments might show his level of commitment, the inference is a double-edged sword. The evidence might also support an inference that Tuitogamanaia had the capacity to make much more frequent payments towards the faifeau’s alofa than he actually did, if indeed he considered his contributions as compulsory rather than voluntary.

Conclusion

  1. The Court finds the following:
  2. Costs of $1000 each is awarded to the Applicant and the First Respondent to be paid by the Second Respondent.

CHIEF JUSTICE PERESE
JUSTICE TUATAGALOA

[1] Affidavit of Faumui Daryl Mapu, paragraphs 31 & 32
[2] Annexure D Statutory Declaration of Rev. Namaia Tuiletufuga Kofe annexed as part of “Annexure D” in the Affidavit of Faumui Daryl Mapu.
[3] Evidence of Tuitogamanaia Peniamina, Reverend Namaia, Ugapo Sailo
[4] Evidence of Tuitogamanaia Peniamina, Reverend Namaia, Taua’i Afaese Suesue
[5] Evidence of Taua’i Afaese Suesue
[6] Evidence of Taii Tapaga, Soifua Levi

[7] Transcript, pp. 102 -105 and Affidavit of Tuitogamanaia Peniamina (EXH R2(2))
[8] Transcript, pp.108-119 and Affidavit of Taua’i Afaese Su’esu’e (EXH R2(3))

[9] Transcript, pp.121-126 and Affidavit of Ugapo Saio Tuileva (EXH R2(4))

[10] Referred to in paragraph 24 of Submissions for the Applicant.
[11] Transcript,p.85
[12] Transcript, p.94
[13] Evidence of Rev. Namaia, Ugapo Saio Tuileva, Soifua Levi

[14] See also the evidence of Ugapo Saio Tuileva for the Second Respondent

PacLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.paclii.org/ws/cases/WSSC/2021/56.html