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Schmidt v Stowers [2016] WSSC 8 (25 February 2016)

SUPREME COURT OF SAMOA
Schmidt v Stowers [2016] WSSC 8

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

IN THE MATTER: of the Territorial Constituency of Gagaifomauga Nu.3

A N D:

IN THE MATTER

of a motion for disqualification of candidate pursuant to s.5(9) of the Electoral Act 1963

BETWEEN

LAAULI POLATAIVAO LEUATEA SCHMIDT of Sasina and Vaitele, Candidate.
Applicant

A N D

FAAULUSAU ROSA DUFFY STOWERS of Aopo, Candidate.
Respondent

Coram: Sapolu CJ
Vaai J

Counsel: R V Papalii for applicant
S Hazelman for respondent

Hearing: 22 February 2016

Conclusion: 24 February 2016

Judgment: 25 February 2016

JUDGMENT OF THE COURT DELIVERED BY SAPOLU CJ

1. The Court’s conclusion dismissing the applicant’s motion to disqualify the respondent from being an election candidate for the territorial constituency of Gagaifomauga Nu. 3 was delivered on 24 February 2016. This is the full judgment.

The applicant’s motion

2. At the close of nominations on Friday 12 February 2016 for the upcoming general election on Friday 4 March 2016, the applicant Laauli Polataivao Leuatea Schmidt (the applicant) and the respondent Faaulusau Rosa Duffy-Stowers (the respondent) were the only two candidates nominated for the territorial constituency of Gagaifomauga Nu. 3. The applicant has brought a motion pursuant to s.5(9) of the Electoral Act 1963 for an order by the Court to disqualify the respondent as a candidate for the said constituency on the ground that the respondent does not satisfy the village service requirement as provided in s.5(3)(c) and defined in s.5 (3A). The applicant claims that the respondent has not rendered a monotaga to her village of Aopo for at least 3 years ending on the day she lodged her nomination paper with the Electoral Commissioner pursuant to the customs of her village. In terms of s.5(10) of the Act, an order made by the Court on a motion for disqualification under s.5(9) is final and not subject to review or appeal.

The relevant provisions of the Constitution and the Electoral Act 1963

3. Article 45 of the Constitution which provides the qualifications for a person to be elected as a Member of Parliament states:

“(1) Any person shall be qualified to be elected as a Member of Parliament who:

“(a) Is a citizen of Samoa; and

• “(b) Is not disqualified under the provisions of this Constitution or of any Act.

“(2) If any person other than a person qualified under the provisions of clause (1) is elected as a Member of Parliament, the election of that person is void.

4. Section 5 (1) and (2) of the Electoral Act 1963 which provide the qualifications for a person to be elected as a Member of Parliament is based on and follows the provisions of Article 45 of the Constitution.
5. Section 5(3) which provides the grounds for the disqualification of a person from being a candidate for a parliamentary election then states:
   • “A person is disqualified as a candidate, or from election as a Member of Parliament representing a constituency, if he or she:
     • “(a) loses a qualification required to enable him or her to be registered as a voter of that constituency; or
     • “(b) has not resided in Samoa for a period equalling or exceeding 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 of the Schedule 1, witnessed by a barrister and solicitor of the Supreme Court in private practice, that the candidate satisfies the 3 year residential requirement in paragraph (b) and satisfies village service requirements”.
6. Other grounds for disqualification of a person from being a candidate for election are provided in s.5(5) but they are not relevant for present purposes.
7. Form 1A of Schedule 1 referred to in s.5 (3) (c) is in the form of a statutory declaration under the Oaths, Affidavits and Declarations Act 1963. It provides for two matters to be satisfied by a person nominated as a candidate for election in a territorial constituency. The first is that he or she must have resided in Samoa for a period equalling or exceeding 3 years and therefore satisfies the 3 year residential requirement under s.5 (3) (b). The second matter is that it requires a person nominated as a candidate to have rendered service to his or her village for at least 3 years, up to the day his or her nomination paper is lodged with the Electoral Commissioner, pursuant to the customs of his or her village and therefore satisfies the village service requirements defined in s.5 (3A).
8. To determine whether a candidate for a constituency has satisfied the 3 year service requirement, the expression “village service” is defined in s.5 (3A) as:
   • “ ‘village service’ means monotaga rendered by a candidate in respect of one or more of his matai titles within the territorial constituency in which the candidate intends to stand as a candidate”
9. The term “village” is defined in s.5 (3A) as:
   • “ ‘village’ means a village from which a matai title was conferred within territorial constituency”
10. And the term “monotaga” is defined in s.5 (3A) as:
    • “ ‘monotaga’ means the compulsory service, assistance or contribution (such as, contribution in form of cash, kind or goods) rendered for customary, traditional or religious activities, events, function or similar purposes pursuant to the customs of a particular village”

The response by the respondent

11. The respondent opposes the applicant’s motion for disqualification as a candidate claiming that she has been rendering monotaga to her village of Aopo for more than ten years through her relative by the name of Mailata Tavita. Examples of her monotaga to her village include her contribution by way of money and fine mats to the opening of the district school in June 2012, her contribution by way of money and fine mats to the opening of the district hospital in June 2013, her monetary contributions to cases from her village heard before the Land and Titles Court in 2012 and 2014, and her contribution to the costs for the preparation of a survey plan following the survey of the boundary between her village of Aopo and the village of Sasina.

The evidence

12. The only relevant evidence adduced on behalf of the applicant to establish his claim that the respondent has not rendered a monotaga to her village of Aopo in the last 3 years prior to the close of nominations on 12 February 2016 for the upcoming general election is the affidavit of one Vaitogi Leilua Moli (Vaitogi) a matai of Aopo which was produced by consent as Vaitogi did not appear. This has an impact on the weight to be given to this affidavit because Vaitogi could not be cross-examined on the contents of his affidavit.
13. Vaitogi’s affidavit states that the respondent rendered a monotaga to her village of Aopo when she was bestowed the title Faaulusau but she ceased rendering her monotaga about six months after the 2011 general election. The respondent then resumed her monotaga in October 2015.
14. The respondent in her oral and affidavit evidence said that she lives in Apia but she has consistently performed her monotaga to her village for over ten years through her relative Mailata Tavita (Mailata) who lives in the village. This was confirmed by Mailata who was called as a witness by the respondent. Mailata testified that he has been performing the respondent’s monotaga since 2003 up to now. This includes financial contributions to village activities and the provision of pigs when the village has special guests. The witnesses Pao Lilia who is the Tuua of the village of Aopo and Muliaga Vainiu (Muliaga) another matai of Aopo also testified that the respondent has been rendering her monotaga to their village for over ten years. When Muliaga was asked whether he knows where Vaitogi is, he said Vaitogi is still at their village but he has not come to give evidence.
15. After consideration of the evidence, we have decided to accept the evidence given by and for the respondent as opposed to the affidavit of Vaitogi which was produced by consent because he did not appear. On the evidence we accept, it is clear that the respondent has been rendering monotaga to her village for over ten years up to now. She has therefore satisfied the 3 year village requirement pursuant to s.5 (3) (c) of the Act.

Conclusion

16. The motion by the applicant to disqualify the respondent Faaulusau Rosa Duffy-Stowers from being a candidate for the territorial constituency of Gagaifomauga Nu.3 in the upcoming general election scheduled for 4 March 2016 is dismissed.
17. Costs of $1,000 are awarded to the respondent against the applicant.
18. A copy of this judgment is to be served on the Acting Electoral Commissioner forthwith.

CHIEF JUSTICE

JUSTICE VAAI