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Ale v Electoral Commissioner [2011] WSSC 14 (23 February 2011)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINU'U


IN THE MATTER:
of the Electoral Act 1963 and the Declaratory Judgments Act 1988.


BETWEEN:


LEOTA LEULUAIALII ITUAU ALE,
matai of Solosolo.
Applicant


AND:


ELECTORAL COMMISSIONER
appointed under section 3 of the Electoral Act 1963
Respondent


Counsel: A K Su'a for applicant
P Bednall and M T Lui for respondent


Hearing: 17 February 2011
Conclusions: 18 February 2011
Judgment: 23 February 2011


JUDGMENT OF SAPOLU CJ


  1. After hearing the applicant's motion for declaratory orders on Thursday 17 February 2011, I stated my conclusions on 18 February at 9:30am as nominations of candidates for the forthcoming general election on 4 March were to be closed at 12 noon on the same day. However, I indicated in my conclusions that my judgment with reasons will be made available to counsel this week. This is that judgment:

Section 5(3) of the Electoral Act 1963


  1. Section 5 (3) of the Electoral Act 1963 ("the Act"), which was introduced by the Electoral Amendment Act 2009, provides, insofar as relevant:

"(3) A person shall be disqualified as a candidate, or from election as a Member of Parliament representing a constituency, if he or she:


"(a) ....


"(b) Has not resided in Samoa for a period equalling or exceeding three (3) years ending with the day on which the nomination paper is lodged with the Commissioner; or


"(c) Does not have a statutory declaration in Form 1A in the Schedule from:


"(i) The Pulenuu of his or her village; or


"(ii) Any other person determined by the Commissioner, if the Commissioner is of the opinion that the Pulenuu is unable to, or cannot properly, provide the statutory declaration,


"that the candidate satisfies the three (3) year residential requirement in paragraph (b) and, unless the Commissioner is satisfied that the candidate is banished from his or her village, satisfies village service requirements.


"(3A) For the purposes of this section, 'village service requirements' means the services a matai renders to his or her village in accordance with the customs of that village."

  1. As it will appear from what follows, it is s. 5 (3) (c) which is at heart of these proceedings:

Affidavit of evidence in support of the applicant's motion


  1. Five affidavits were filed in support of the applicant's motion. The applicant Leota Leuluaialii Ituau Ale, a matai of Solosolo, says in his affidavit that he wants to run as a candidate for the Tautua Samoa political party in the territorial constituency of Anoama'a West in the general election to be held on 4 March 2011 and that he satisfies the residential and village service requirements under s.5 (3) (c) of the Act. He says that he has been residing at Solosolo for most of his lifetime and has been living there for more than 3 years. He also says that he has been rendering services to his village, for example, he paid $30 for the Peace Corps accommodation and he has been paying $30 every 3 months for the village water supply. However, Segaula Loi, the pulenuu of Solosolo, has refused to sign a statutory declaration to confirm that he satisfies the requirements under s. 5 (3) (c). The applicant also says in his affidavit that he saw the Electoral Commissioner ("the Commissioner"), the respondent in these proceedings, about the refusal of the pulenuu to sign the required statutory declaration form but was advised by the Commissioner that the pulenuu is the only person to sign the statutory declaration form. The result of this, as it appears from the applicant's affidavit, is that the applicant will not be qualified to run as a candidate in the general election on 4 March 2011. The applicant, through his lawyer, has therefore brought this urgent motion for declarations as nominations as candidates for the general election will close on 12 noon Friday, 18 February.
  2. The supporting affidavits of Talamau Avalogo Ieli, Pulemagafa Kimi and Lemaituuga Tilo Leota, who are matais of the village of Solosolo, state that the applicant has been living at Solosolo for most of his life and has rendered services as a matai to their village by way of monotaga, contributions to the church and to many village projects, and so forth.
  3. Reverend Penitala Uelese, the minister of religion for the Assembly of God Church at Solosolo, says in his supporting affidavit that the applicant also has a matāfale in his church and is very much involved in church fundraisings and other activities. Reverend Penitala Uelese also says that the applicant is a very active member of the village council of Solosolo and has led many projects for the village.

Affidavit evidence in opposition to the applicant's motion


  1. Three affidavits were filed in opposition to the applicant's motion. These were by Segaula Lo'i Taaga a matai and pulenuu of Solosolo, Leau Savaiinaea Vaasa a matai and secretary of the EFKS Church at Solosolo, and Talatu Mose another matai of Solosolo.
  2. Segaula, the pulenuu of Solosolo, says in his affidavit that for a matai to satisfy the provision of services in the village of Solosolo requires the performance of a monotaga. This involves the making of contributions and the giving of support by a matai to the affairs and activities of the village. For example, contributions by way of foodstuffs (palapala malo), money, and fine mats as and when required. It also involves participation in the meetings and the decision-making process of the village (upu fai o le nuu). Segaula says in his affidavit that at a meeting of the village council of Solosolo in 2005, the applicant declared his intention to leave the village council of Solosolo. Subsequently, the applicant formed his own sub-village called Solosolo-uta. Since that time, the applicant has not rendered any services or monotaga to the village as he tried to establish his own sub-village. The applicant is also rarely seen at Solosolo as he usually resides at Tanumalala and often travels to New Zealand.
  3. In 2009, the village banished the applicant and petitioned the Land and Titles Court to confirm its banishment. The Land and Titles Court in a decision delivered on 11 December 2009 refused to uphold the banishment of the applicant. The Court, however, declared the sub-village formed by the applicant invalid and ordered the Alii and Faipule of Solosolo and the applicant to reconcile. The applicant did not comply with the order of the Court and in 2010 was convicted of contempt before the District Court. Segaula says that the village would welcome the applicant back to the village but the applicant has not approached the village council.
  4. Segaula further says in his affidavit that the applicant has not approached him to sign a statutory declaration on residential and village service requirements. In any event, if the applicant had approached him, he would not have signed such a statutory declaration as the applicant had not resided at Solosolo in the last 3 years or more and has not been rendering any services to the village since 2005. Segaula also says that he had written to the Commissioner on 28 January 2011 advising the Commissioner of the said matters.
  5. The deponent Leau, the secretary of the EFKS Church at Solosolo, says in his affidavit that since 2005 when the applicant chose to set up his own sub-village called Solosolo-uta, he has not rendered any services or monotaga to the village of Solosolo or attended any meeting of the village. He also rarely visits the village. Leau also denies that the applicant made any monetary contributions to the Peace Corps accommodation at Solosolo or to the water supply system of the village. Furthermore, the applicant makes very minor or no monetary contributions to the EFKS Church even though he is a deacon of that Church.
  6. Leau also says in his affidavit that when the village council of Solosolo approached the applicant to settle their differences and for the applicant to return to the village the applicant refused and left for New Zealand. The village council has given several opportunities to the applicant to come back to the village and settle their differences but the applicant has refused.
  7. The deponent Talatu, also a matai of Solosolo, says in his affidavit that in 2005 the applicant left the village council of Solosolo on his own free will and set up his own sub-village called Solosolo-uta. Since that time the applicant has not rendered any services or monotaga to the village. Talatu also says that he is a member of the water committee of Solosolo and the applicant is not involved in the water committee of the village. He also denies that the applicant has been the leader of any village project.
  8. Talatu further says in his affidavit that in 2009 the village banished the applicant and then petitioned the Land and Titles Court to confirm the banishment. However, the Land and Titles Court refused to confirm the banishment. Instead, the Court declared the sub-village set up by the applicant invalid and ordered the Alii and Faipule of Solosolo and the applicant to reconcile. The applicant did not comply with the Court's decision and in 2010 was convicted of contempt before the District Court. The applicant is also rarely seen at Solosolo as he usually resides at Tanumalala and often travels to New Zealand.
  9. Talatu also says in his affidavit that Pulemagafa Kimi, Lemfaituuga Tilo Leota, and Talamau Sualogo Ieli who have provided affidavits in support of the applicant's motion are no longer regarded as matais of Solosolo as they have joined the sub-village of the applicant.

The affidavit evidence of the Commissioner


  1. When the applicant's motion was first called for hearing on Wednesday, 16 February 2011, Mr. Bednall as leading counsel for the Commissioner requested an adjournment as the Commissioner was not then ready to proceed. In fairness to the Commissioner, who was only served with the applicant's motion and supporting affidavits on Tuesday afternoon 15 February, I granted an adjournment to Wednesday morning, 16 February at 10am. On Wednesday morning, an affidavit was filed for the Commissioner together with the other affidavits in opposition to the applicant's motion already referred to.
  2. The Commissioner in his affidavit says that he has had the opportunity to read s.5 (3) (c) and s.5 (3A) of the Electoral Act 1963 as well as the recommendations in the report of the Commission of Inquiry set up in 2006 which led to the introduction of those provisions through the Electoral Amendment Act 2009. The Commissioner also says in his affidavit that he has been served with the applicant's motion and supporting affidavits. He is also aware of the affidavits in opposition to the applicant's motion. Based on all of the information known to him, the Commissioner says that he is not of the opinion that the pulenuu is unable or cannot properly provide a statutory declaration in terms of s.5 (3) (c).

The applicant's motion


  1. The applicant's motion, which is effectively one for judicial review, seeks the following declarations:

Submissions by counsel for the applicant


  1. Counsel for the applicant in his written submissions makes two submissions the essence of which may be stated as follows. Firstly, the advice alleged to have been given by the Commissioner to the applicant that the pulenuu is the only person to sign the statutory declaration required under s.5 (3) (c) of the Electoral Act 1963 is not supported by the wording of that provision and therefore erroneous in law. This is because s.5 (3) (c) provides that a prospective candidate for an election is disqualified as a candidate if he does not have the required statutory declaration to verify that he satisfies the 3 year residential requirement as provided under s.5 (3) (b) and the village service requirements as defined in s.5 (3A). Such statutory declaration, in terms of s.5 (3) (c), is to be provided by (a) the pulenuu of the village of the prospective candidate, or (b) any other person determined by the Commissioner where the pulenuu has not provided the statutory declaration but the Commissioner is of the opinion that the pulenuu is unable or cannot properly provide the statutory declaration. Obviously, the submission by counsel for the applicant is right. In terms of s.5 (3) (c), it is not just the pulenuu who may provide the required statutory declaration. Any other person determined by the Commissioner for that purpose may provide the statutory declaration if the Commissioner is of the opinion that the reason why the pulenuu has not provided a statutory declaration is because the pulenuu is unable or cannot properly provide the declaration.
  2. Secondly, counsel for the applicant submits that on the basis of the affidavits filed in support of the applicant's motion, the applicant satisfies both the 3 year residential requirement and the village service requirements. The Commissioner should, therefore, have formed the opinion that the pulenuu of Solosolo cannot properly provide the required statutory declaration and nominate another person to provide the declaration for the applicant. In fairness to counsel for the applicant, it should be mentioned here that when he prepared his written submissions he had not had the opportunity to see the affidavits filed in opposition to the applicant's motion because it was not possible in the circumstances to have these affidavits ready before the morning of the hearing of this matter. Counsel had also not been given a copy of the letter dated 28 January 2011 sent by the pulenuu of Solosolo to the Commissioner.

Submissions by counsel for the Commissioner


  1. Counsel for the Commissioner provided written submissions applicable to all three motions for judicial review the Court has had to deal with in terms of s.5 (3) (c) of the Act. These submissions address all three of the usual grounds for judicial review, namely illegality, irrationality, and procedural impropriety. Irrationality seems to be the most relevant ground for present purposes although it is arguable that illegality is also relevant.
  2. On the basis of the affidavit evidence filed in support of and in opposition to the applicant's motion for judicial review, counsel for the Commissioner submit that it was not necessary for the Commissioner to form an opinion that the pulenuu is unable or cannot properly provide a statutory declaration in terms of s.5 (3) (c). The Commissioner is only required to nominate another person to provide a statutory declaration if the Commissioner is of the opinion that the pulenuu is unable or cannot properly provide a statutory declaration. In the circumstances as disclosed in the affidavits filed in support of and in opposition to the applicant's motion, the Commissioner was justified in not forming such an opinion. It was, therefore, not necessary for the Commissioner to nominate another person to provide a statutory declaration.
  3. Counsel for the Commissioner further submit that the pulenuu would be "unable" to provide a declaration in terms of s.5 (3) (c) if he is physically or mentally incapable, for example, by being overseas or sick. The pulenuu "cannot properly" provide a declaration in terms of the same provision if he cannot appropriately turn his mind to whether the prospective candidate meets the residential requirement or the village service requirements, for example, because of bias.
  4. Counsel for the applicant and for the Commissioner were in agreement that a decision by the pulenuu or the Commissioner under s.5 (3) (c) is amenable to judicial review. I accept that as correct.

Discussion


  1. There is no dispute that the pulenuu is not the only person who may provide the statutory declaration required under s.5 (3) (c). Counsel on both sides recoginse that whilst the pulenuu is the person to provide the statutory declaration, the Commissioner, in appropriate circumstances as provided in s.5 (3) (c) (ii), may nominate another person to provide the statutory declaration if the pulenuu does not do so. So the first declaration sought on behalf of the applicant that the decision of the Commissioner that the pulenuu is the only person to sign the statutory declaration pursuant to s.5 (3) (c) is incorrect and should therefore be granted.
  2. Turning now to the second declaration sought by the applicant, namely, that he is qualified in terms of s.5 of the Act to run as a candidate in the forthcoming general election on 4 March 2011, the most relevant ground for judicial review in these proceedings would be irrationality or unreasonableness in the Wednesbury sense. As a ground for judicial review, Wednesbury unreasonableness as Lord Diplock preferred to call it in Council for Civil Service Unions v Minister for the Civil Service [1985] AC 314 focuses not on the decision-making process but on the outcome of that process. It involves the Court in closely scrutinising a decision reached at the end of the decision-making process to see whether it is reasonable or unreasonable. This ground of review was explained in Council for Civil Service Unions v Minister for the Civil Service [1985] AC 374 where Lord Diplock said at p.410:

"By 'irrationality' I mean what can now be succinctly referred to as 'Wednesbury unreasonableness'....It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it"


  1. In Wellington City Council v Woolworths New Zealand Ltd [1996] 2 NZLR 537, Richardson P when dealing with unreasonableness or irrationality as a ground for review said at p. 545:

"[If] the outcome of the exercise of discretion is irrational or such that no reasonable body of persons could have arrived at the decision, the only proper inference is that he power itself has been misused.


"To prove a case of that kind requires 'something overwhelming' (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223, 230 per Lord Greene MR). In Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, 410 Lord Diplock said in respect of unreasonableness, or 'irrationality' as he preferred to call it:


"'It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it'.


"Similarly, in Nottinghamshire County Council v Secretary of State for the Environment [1985] UKHL 8; [1986] AC 240, 247 and 248, Lord Scarman used expressions such as 'so absurd that he must have taken leave of his senses' and 'a pattern of perversity' as setting the standard, and in Webster v Auckland Harbour Board [1987] NZCA 80; [1987] 2 NZLR 129, 131, Cooke P spoke of an unreasonable decision as 'one outside the limits of reason'. Clearly, the test is a stringent one".


  1. The real question for determination in this part of these proceedings is whether the decision of the Commissioner not to nominate another person to provide the statutory declaration on residential and village service requirements requested by the applicant when the pulenuu, as alleged by the applicant, did not provide such declaration was unreasonable or irrational. It will only be necessary for the Commission to nominate another person to provide such a statutory declaration if he is of the opinion that the pulenuu is 'unable' or 'cannot properly' provide the statutory declaration. It is clear from the affidavit by the Commissioner that he was not of such an opinion. The question is whether that decision by the Commissioner was unreasonable or irrational. So I am in general argument with the submission by counsel for the Commissioner on this point.
  2. To determine whether the decision of the Commissioner is unreasonable, the question of whether the pulenuu was 'unable' to provide the required statutory declaration should be considered separately or disjunctively from the question of whether the pulenuu 'cannot properly' provide such declaration. I accept the submission by counsel or the Commissioner that in the context of s.5 (3) (c), the word 'unable' should be interpreted to mean that the pulenuu is physically or mentally incapable, for example, by being overseas or sick. However, in my opinion, if the pulenuu is physically and mentally capable of providing a statutory declaration but fails to provide such a declaration for no valid reason, or is willing to provide a statutory declaration but gives a false declaration or gives an incorrect declaration which he refuses to rectify after the mistake has been drawn to his attention, then he 'cannot properly' provide a declaration in terms of s.5 (3) (c) (ii) of the Act. Section 5 (3) (c) is a verification provision. Its apparent purpose is to provide for the pulenuu to confirm in writing by way of the prescribed declaration form that a prospective candidate for a parliamentary election from his village meets the 3 year residential requirement provided in s.5 (3) (b) and the village service requirements as defined in s.5 (3A). If a pulenuu who is physically and mentally capable fails to provide a statutory declaration for no valid reason, or provides a false declaration or an incorrect declaration which he refuses to rectify after the mistake has been drawn to his attention, then the purpose of s.5 (3) (c) will be defeated. To avoid that from happening, the Commissioner is empowered under s.5 (3) (c) (ii) to nominate another person to provide the declaration which the pulenuu 'cannot properly' provide. In this way, the focus is on obtaining a valid statutory declaration to confirm whether a prospective candidate meets the two requirements and is therefore qualified in terms of s.5 (3) (c) to run as a candidate. A false or incorrect declaration will not be a valid declaration in terms of s.5 (3) (c) as it does not verify the existence or otherwise of the two requirements that require verification.
  3. On the question of whether the pulenuu of Solosolo was 'unable' to provide a statutory declaration, there is no evidence to show that the pulenuu was for any reason physically or mentally incapable of providing a declaration. He was physically and mentally capable of doing so. The Commissioner, therefore, could not have formed an opinion that the pulenuu was unable to provide a statutory declaration so as to make it necessary for him to nominate another person.
  4. On the question of whether the pulenuu of Solosolo 'cannot properly' provide a statutory declaration, I am of the view that the pulenuu did not fail to provide a declaration for no valid reason at all when no such declaration was provided. Even though on the affidavit evidence it is debatable whether the applicant satisfies the residential requirement of 3 years, it is clear from the affidavits of Segaula the pulenuu of Solosolo, Leau the secretary of the EFKS Church in Solosolo, and Talatu another matai of Solosolo that since 2005 when the applicant on his won free will left the village council of Solosolo and set up his own sub-village called Solosolo-uta, he has not been rendering any service to the village of Solosolo. Segaula, Leau, and Talatu have also deposed in their affidavits that the applicant is rarely seen at Solosolo as he usually resides at Tanumalala and often travels to New Zealand. In 2009, the applicant was banished from the village but the Land and Titles Court did not confirm the banishment. However, the Court declared the sub-village set up by the applicant invalid and ordered the Alii and Faipule of Solosolo and the applicant to reconcile. The applicant did not comply with the order of the Court and as a result was convicted of contempt in 2010. The deponent Leau as the secretary of the EFKS Church in Solosolo also says in his affidavit that the applicant has not been rendering any services to EFKS Church even though he is deacon of that Church.
  5. The applicant claims that he has been rendering services to his village. This is supported by the deponents Pulemagafa, Lemafaituuga, and Talamau in their affidavits filed in support of the applicant's motion. However, that must have been prior to 2005 when the applicant on his own free will left the village council of Solosolo and set up his own sub-village. In such circumstances, it would be unrealistic in the context of Samoa to accept that the applicant continued to render services to the village after he had left the village council and set up his own sub-village. The fact that the applicant is rarely seen at Solosolo lends support to that view. The conviction of the applicant in 2010 for contempt also signifies that the applicant is continuing with his sub-village and has not reconciled with the village. In such circumstances, it would also be unrealistic to expect the applicant to be rendering services to the village. In other words, what is said in the affidavits filed in opposition to the applicant's motion is more realistic and believable than what is said in the affidavits in support of the motion.
  6. It follows that on the basis of the material before the Commissioner, it cannot be said that the decision of the Commissioner not to nominate another person to provide a statutory declaration under s.5 (3) (c) (ii) is irrational or unreasonable in the Wednesbury sense.
  7. In relation to illegality as a ground for review, the learned authors of de Smith, Woolf and Jowell Judicial Review of Administrative Action (1995) 5th state at para 6-001, p.295:

"An administrative decision is flawed if it is illegal. A decision is illegal if:


"(1) it contravenes or exceeds the terms of the power which authorises the making of the decision; or


"(2) it pursues an objective other than that for which the power to make the decision was conferred".


  1. Even though the Commissioner may have given incorrect advice to the applicant that only the pulenuu may provide the statutory declaration on residential and village service requirements, the Commissioner in the exercise of his discretion did not contravene or exceed the terms of s.5 (3) (c) (ii) of the Act which gives him the power to nominate another person to provide the required statutory declaration if the pulenuu is unable or cannot properly provide the declaration. The Commissioner was acting within the ambit of the power given to him when he decided not to nominate another person.
  2. Likewise, the Commissioner in the exercise of his discretion did not pursue an objective other than that for which the power to make the decision was conferred on him under s.5 (3) (c) (ii). The decision of the Commissioner not to nominate another person when the pulenuu of Solosolo did not provide the statutory declaration on residential and village service requirements in respect of the applicant was therefore not illegal. It follows that illegality as a ground for review cannot succeed.

Conclusions


  1. For all the foregoing reasons, these are the conclusions I have reached on the motion for declaratory orders by the applicant Leota Leuluaialii Ituau Ale:
  2. The result of 1 (b) above is that the applicant is not qualified in terms of s.5 (3) (c) of the Electoral Act 1963 to run as a candidate for the territorial constituency of Anoama'a West in the general election on 4 March 2011.
  3. Counsel to file memorandums as to costs in 10 days.

..........................................
CHIEF JUSTICE

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