IN THE SUPREME COURT OF SAMOA
Su’a v Electoral Commissioner [2020] WSSC 80

Case name: 	Su’a v Electoral Commissioner 	
		
Citation: 	[2020] WSSC 80	
		
Decision date: 	27 November 2020	
		
Parties: 	SU’A SAMUELU SU’A, matai of Samusu – Aleipata itupa i lalo (Applicant) v ELECTORAL COMMISSIONER, appointed pursuant to the Electoral Act 2019 (Respondent)	
		
Hearing date(s): 	16 November 2020	
		
File number(s): 	MISC 249/20	
		
Jurisdiction: 	CIVIL	
		
Place of delivery: 	Supreme Court of Samoa, Mulinuu	
		
Judge(s): 	Acting Chief Justice Tuatagaloa
Justice Roma	
		
On appeal from:		
		
Order:	The Court make the following orders:
(a) The Respondent is ordered pursuant to section 47(3) to accept the nomination of the applicant, Su’a Samuelu Su’a and include his name in the List of Candidates for the Electoral Constituency of Aleipata Itupa I Lalo in the General Elections 2021.
(b) Costs of $1,500 are awarded to the Applicant against the Respondent.	
		
Representation: 	A. Su’a for the Applicant 
T. Peniamina & T. Faitele for the Respondent	
		
Catchwords: 	Electoral challenge - nomination as a candidate –monotaga requirement (compulsory service).	
		
Words and phrases:	whether qualified to run as a candidate.	
		
Legislation cited:	Acts Interpretation Act 2015 ss. 7; 7(3)(a); 7(3)(c);
Constitution of the Independent State of Samoa, Articles 15; 45; 100;
Electoral Act 2019 ss. 8; 8(1)(c); 8(1)(d); 8(1)(d)(i); 8(1)(d)(ii); 8(1)(e); 8(2); 8(5); 47; 47(2); 47(3); 47(4);  
Electoral Amendment Act 2000 (No. 8) ss. 8(1);
Electoral (Forms) Regulations 2019, regulation 4(2). 	
		
Cases cited:		
		
Summary of decision:		

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

IN THE MATTER:
of an application made pursuant to section 8 and section 47 of the Electoral Act 2019

BETWEEN:

SU’A SAMUELU SU’A, matai of Samusu – Aleipata itupa i lalo

Applicant

A  N  D:

ELECTORAL COMMISSIONER appointed pursuant to the Electoral Act 2019

Respondent

Coram:		
Acting Chief Justice Tuatagaloa
Justice Roma

Counsel:	
A. Su’a for the Applicant
T. Peniamina & T. Faitele for the Respondent

Hearing:	16 November 2020
Judgment:	27 November 2020

JUDGMENT OF THE COURT
1. 	Pursuant to section 8 and section 47 of the Electoral Act 2019, the Applicant challenges the decision of the Respondent to reject his nomination as a candidate for the upcoming general elections in April 2021. 
2. 	The applicant, Su’a Samuelu, was bestowed the matai title “Su’a” from the village of Samusu in the Electoral Constituency of Aleipata Itupa i Lalo in 2016 but had it registered only recently in September 2020.
3. 	At issue is whether or not the Applicant is qualified to run as a candidate pursuant to section 8 of the Electoral Act 2019 (“the Act”). 
The Motion by the Applicant
4. 	The Applicant on 22 October 2020 lodged his nomination as a candidate for the Electoral Constituency of Aleipata Itupa i Lalo. His nomination was rejected by the Electoral Commissioner on the same day for the following reason:
	“monotaga requirement not met through the Su’a matai title as it was registered less than 3 years.”
5. 	The Applicant seeks to challenge the Electoral Commissioner’s decision upon the following grounds:
(a) 	According to section 8(1)(c) of the Electoral Act 2019, it is not an express requirement of the law that in order to qualify as a candidate, one has to have a registered matai title within a timeframe of three (3) consecutive years ending on the date of his/her nomination;
(b) 	The imposed requirement implied in section 8(1)(d) relates only to monotaga and not the registered matai title, just as it is expressly stated for ‘residence’ under section 8(1)(e);
(c) 	Sections 8 (1)(c) and (d) are uncertain and unclear on the imposed requirement and therefore should not be a requirement by law and if so, it goes against the spirit of the Electoral laws which emphasis is on the accepted custom and usage of matai title pursuant to Article 100 of the Constitution and monotaga;
(d) 	The imposed requirement is unconstitutional pursuant to Article 15 of the Constitution. This ground is abandoned by the Applicant.
6. 	The Applicant submits that section 8(1)(c) expressly require that the matai title that the intended nominee will use to contest in the general elections must be registered and that section 8(1)(d) is specific to the monotaga requirement, as is section 8(1)(e) with residence. The Applicant says that there is no reference under section 8(1)(c) that the matai title must be registered for at least three years. The three (3) year time frame only comes in as a requirement to the monotaga under section 8(1)(d) and residence under section 8(1)(e). The gist of the Applicant’s argument (as we understand it) is:
(a) 	Section 8(1)(c) does not say that the matai title has to be registered for at least three years;
(b) 	Section 8(1)(d) relates to monotaga which monotaga must be rendered to the matai title that has been registered under section 8(1)(c), to the village the matai title is from (s.8(1)(d)(i)) and that such service or monotaga must at least be 3 years to the date the nomination was lodged (s.8(1)(d)(ii));
(c) 	The three (3) years monotaga is not from the date the matai title was registered.
7. 	The Applicant further says that section 47 relates only to the “forms” that require completion and does not relate to section 8 of the Act. That the Electoral Commissioner is only afforded with the authority under section 47(2) to reject nomination of a candidate only in relation to forms where such forms are not duly completed. The Electoral Commissioner does not have the authority to reject nomination in relation to section 8. The Applicant says the Electoral Commissioner’s decision to reject the nomination of the Applicant is unlawful and should be voided.
The response by the Respondent
8. 	The Respondent opposes the Applicant’s motion on the following grounds: 
(i) 	The first ground is that the Applicant does not meet the qualifications to run as a candidate under section 8 of the Electoral Act 2019. 
(ii) 	Secondly, the Respondent is required to reject the nomination of the Applicant for candidacy pursuant to section 47 of the Electoral Act 2019. The Respondent’s decision to reject the nomination was made in accordance with the Act; and
(iii) 	Thirdly, the Applicant’s Motion regarding Article 15 and Article 100 of the Constitution is misconceived. 
9. 	The Respondent is adamant that the law is that, the matai title must be registered for a minimum of three years up to the date the nomination was lodged. Given that the matai title was only registered on 29th September 2020, less than a month prior to the last day of the nomination period, the Applicant has therefore not satisfied the three year requirement for registration of the matai title.
10. 	The Respondent says that the Electoral Commissioner has the authority to reject nomination under section 47(2). The Respondent refers to some general powers that the Electoral Commissioner has under the Electoral Commissions Act 2019. The Electoral Commissions Act is specific to the setting up of the office, the functions of that office, and the appointment and role of the Electoral Commissioner in the running of that Office. The Electoral Commissions Act does not apply.
The relevant provisions of the Constitution and the Electoral Act 1963
11. 	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.”
12. 	The Electoral Act 2019 was assented to and commenced on the 31st January 2019. Since commencement it has been amended twice by the Electoral Amendment Act 2013, No. 13 (4th May 2020) and the Electoral Amendment Act 2020 (No. 2), (23rd September 2020).
13. 	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)
	“(1) A person is qualified to run as a candidate for elections if that person:
	“(a) is a citizen of Samoa; and
	“(b) is a registered voter of a Constituency; and
	“(c) is a holder of a registered matai title for the Constituency the person intends to represent; and
	“(d) 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; and
	“(e) has resided in Samoa for a minimum of three (3) years ending with the day on which the nomination paper is lodged with the Commissioner; and
	“(f) is not disqualified under the Constitution, any other Act and subsection (2) or section 9 of this Act. Section 9 has been excluded as repealed by the Electoral Amendment Act (No.2) 2020, No.19.
14. 	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) and: 
	“(a) loses a qualification required to enable him or her to be registered as a voter for that constituency; or
	“(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
	“(c) is an undischarged bankrupt; or
	“(d) has been –
(i)	convicted in Samoa or another country within the previous 8 years from the date nomination is made, of an offence punishable by death or by imprisonment for a term of 4 years or more; or
(ii)	convicted or found guilty in Samoa of a corrupt practice and whose name has not been removed from the Corrupt Practices List under section 139;
	“(e) is of unsound mind and is subject to an order of medical custody made under the Mental Health Act 2007.
15. 	For purposes and relevance to the present application, section 8(5) defines monotaga and village to mean:
	“Monotaga 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.”
	“Village” means a village, from which a Matai title was conferred, within a constituency.”
16. 	Section 47 which deals with the Respondent’s powers to accept and reject nominations provides as follows:
	“47. Acceptance of nomination: 
	(1) The Commissioner must accept a nomination of the candidate if it fulfils all requirements set out under subsection (2). 
	(2) The Commissioner must reject the nomination of a candidate if: 
	(a) the nomination paper and the consent of the candidate are not lodged with him or her by noon on nomination day; or 
	(b) the consent of the candidate does not state that he or she is qualified to be elected a Member under Part 3 and any other enactment; or
	(c) the nomination paper does not state that the candidate is a registered voter of the constituency in which he or she is to represent; or 
	(d) the nomination paper is not signed by at least 2 registered voters of the constituency in which he or she is to represent; or 
	(e) the nomination fee is not paid as required by this Act; or 
	(f) the nomination paper is not accompanied by a statutory declaration in the prescribed Form.
	(3) A candidate or a person who claims a right to be a candidate may by motion 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: (emphasis added)
	(a) for the general elections - 
	(i) it must be filed no later than 12 noon of the 7th day after nomination; and 
	(ii) must be decided by the Court within 20 working days after filing of the motion; or 
	(b) for the by-election - 
	(i) it must be filed no later than 12 noon of the 3rd day after nomination; and 
	(ii) must be decided by the Court within five (5) working days after filing of the motion. 
17. 	In terms of s.47 (4) an order made by the Court under section 47(3) is final and not subject to review or appeal.
The issue(s)
18. 	 The issues are:
(a) 	Power/Authority – (i) Does the Electoral Commissioner pursuant to section 47 of the Act have the authority to disqualify a person for failing to meet the qualifications requirements prescribed by section 8? 
(b) 	Can the Applicant, as candidate challenge a decision of the Electoral Commissioner made pursuant to section 8?
(c) 	(c)	What does section 8(1)(c) of the Electoral Act 2019 say in relation to registration of matai title?  
(d) 	(d)	Is there ambiguity? Where does the ambiguity (if any) arise? 
(e) 	(e) 	Does the Applicant meet the qualifications requirement under section 8(1) of the Act?
19. 	The arguments by the Applicant and Respondent are one of statutory interpretation of section 8(1) and section 47 of the Act.
Discussion
20. 	The Motion by the Applicant requires us to consider whether he meets the requirements of section 8(1)(c) and (1)(d) of the Act and whether the Respondent has the authority to disqualify a person for failing to meet the qualifications requirements under section 8. The nomination was rejected by the Electoral Commissioner on the following basis:
	“Monotaga requirement not met through the Su’a matai title as it was registered less than 3 years.”
21. 	Before we look further into section 8(1)(c) and (1)(d) we need to consider what decision making powers or authority the Electoral Commissioner has.
a)	Does the Electoral Commissioner have the authority to disqualify a person for failing to meet the qualifications requirements prescribed by section 8 of the Act??
22. 	The Respondent’s ‘decision’ to reject the Applicant’s nomination was made pursuant to section 47. Section 47(1) provides that the Respondent must accept a nomination of a candidate if it fulfils all requirements set out in subsection (2). Section 47(2) is specific to the nomination documents lodged by an intending candidate and which the Electoral Commissioner must accept if duly completed, confirmed and witnessed. 
23. 	The Applicant says that there is no express power given to the Electoral Commissioner to disqualify a person for failing to meet the qualifications requirements in section 8(1) of the Act. The Electoral Commissioner’s role is limited to the ‘forms’ under section 47(2). We agree.
24. 	Any purported decision by the Electoral Commissioner pursuant to section 47 rejecting the Applicant’s nomination on the ground of having not satisfied the qualifications requirement under section 8 is ultra vires and not in accordance with the express provisions of the Act.
b)	Can the Applicant, as candidate challenge a decision of the Electoral Commissioner made pursuant to section 8?
25. 	The short answer is ‘no’. The candidate can only under section 47(3) challenge a decision of the Electoral Commissioner in relation to “forms” or matters pertaining to section 47 but not matters pertaining to section 8. Section 8 does not provide a mechanism for the candidate to challenge a decision of Electoral Commissioner in relation to qualifications requirement under section 8(1).
26. 	The Electoral Commissioner does not have the authority under section 8 to reject nominations or to disqualify, therefore, there is no need for a requirement or mechanism for the Applicant to challenge a decision of the Electoral Commissioner on qualifications requirement under section 8.
c)	What does section 8(1)(c) and (1)(d) of the Electoral Amendment Act 2019 say?
27. 	Section 8 (1) of the Electoral Act 2019 is clear on the qualifications for a person to be able to run as a candidate in an electoral constituency.
28. 	Counsel for the Applicant submits that sections 8(1)(c) and (1)(d) are very clear; (1)(c) relates to the holder of a registered matai title and (1)(d) to the monotaga with the three (3) year requirement being specific to the monotaga one has to render up to the day of nomination. The Applicant says that there is no requirement stipulated in section 8(1)(c) and (1)(d) that the matai title has to be registered within three (3) consecutive years ending on the day of nomination. 
29. 	The Respondent also agrees that sections 8(1)(c) and (1)(d) are very clear but says that section 8(1)(c) and (1)(d) are to be read together for the words in s.8(1)(d), “has rendered a monotaga in respect of the registered matai title” ties in with s.8(1)(c) where monotaga has to be rendered in respect of the registered matai title for three (3) consecutive years. He says that the matai title that the monotaga has been rendered under is to be registered for three (3) consecutive years so the monotaga that is rendered is under the registered matai title. 
30. 	The significance of section 8(1) highlights what has always been the case with Samoa’s electoral system that only matai, are qualified to run as election candidates. Section 8(1)(c) and (1)(d) amplifies the matai system or Samoa’s custom and usage.  Section 8(1)(c) provides that an intended candidate is a matai and must register his/her matai title before he/she can be nominated to run as a candidate whilst section 8(1)(d) provides for monotaga or services rendered to your matai title and village. 
31. 	Section 8(1)(c) is very clear that the person intended to run as a candidate must be, “A holder of a registered matai for the Constituency that person intends to represent.” Nowhere in section 8 does it say that the intended candidate must register his matai title at least three (3) consecutive years up to the day of nomination as is the interpretation advanced by the Electoral Commissioner. We disagree with that interpretation for that is reading words into a section or provision of the Act that are not there. 
32. 	Section 8(1)(c) and 8(1)(d) read in its plain and ordinary meaning simply requires that:
(a) 	The intending candidate is the holder of a matai title for the Constituency he or she intends to run (s.8(1)(c)); and
(b) 	Has rendered monotaga in respect of the registered matai title in the constituency the person intends to represent:
(i) 	Within a village in the constituency he or she intends to run; and
(ii) 	For a consecutive three (3) years ending on the day in which the nomination paper is lodged with the Respondent.
d)	Is there ambiguity? If so, where does the ambiguity (if any) arise?
33. 	There are two different interpretations put forward by Counsels:
(a) 	the matai title the monotaga is rendered under must at least be registered for three (3) consecutive years; alternatively 
(b) 	the intending candidate must have at least rendered three (3) consecutive years monotaga to his registered matai title within the village.
34. 	The Court is put on notice that there may be ambiguity when there are two different interpretations of a statutory provision. When the Court is asked to interpret a statutory provision in relation to a set of facts, its task is to ascertain the meaning the legislature intended to convey. A number of assumptions and approaches are available to the Court to assist with statutory interpretation.
(i)	The legislative history
35. 	In ascertaining the meaning the legislature intended for section 8 specifically sections 8(1)(c) and (1)(d) to convey, one should understand the nature of the Act. The legislative history of a statutory provision is useful in interpreting and understanding its meaning.
36. 	The Court is able to take judicial notice of the fact that since Samoa gained Independence in 1962 and the Electoral Act 1963’s enactment up to the introduction of universal suffrage in 1990, it remained (to date) that only matai, are eligible to run as candidates. It is not clear when the requirement of the candidate to be a holder of a registered matai title became law. What is clear is, there was never a timeframe imposed by which one should register his/her matai title.
37. 	However, there seemed to have always been a number of years imposed on the monotaga and residence even before the year 2000. On 6th July 2000 there was amendment to the qualification requirements by changing the number of years for monotaga and residential to three years. That remains to date. The reason (we believe) behind the introduction of the 3 years’ requirement for monotaga and residence is because of matai who reside overseas with aspirations to run as candidates in the general elections yet have not lived and rendered any service to the village their matai titles are from. 
(ii)	The repealed section 8(1) v the current section 8(1) as of 23 September 2020.
38. 	The earlier section 8(1) repealed by the amendments that commenced on the 23rd September 2020 relevantly provided: 
	“Qualification to run as a candidate in elections:
	(1) A person is qualified to run as a candidate for elections if that person:
	(a) is a citizen of Samoa; and
	(b) is a registered voter of a constituency; and
	(c) is a holder of a registered matai title for the Constituency the person intends to represent; and
	(d) has resided in Samoa for a minimum of 3 years ending with the day on which the nomination paper is lodged with the Commissioner; and
	(e) has rendered monotaga in his or her village for a minimum of 3 years ending on the day in which the nomination paper is lodged with the Commissioner; and
	(f) is not disqualified under the Constitution, any other Act and subsection (2) or section 9 of this Act. (my emphasis)
	…
39. 	There were no substantive changes to the requirement for residence and monotaga except that the drafters rearranged ‘residence’ and ‘monotaga’ - shifting residence from 8(1)(d) to 8(1)(e) and monotaga from 8(1)(e) to 8(1)(d). The drafters went on to further break down monotaga to (i) and (ii) in place of the long sentence that there was. 
40. 	Section 8(1)(c) remains the same. It only says that the candidate must be a holder of a registered matai title for the Constituency the candidate intends to represent. It does not say that the intended candidate must register his matai title at least three (3) consecutive years up to the day of nomination as is the interpretation advanced by the Respondent.
41. 	The repealed section 8(1)(e) was very clear the three years is specific to the monotaga not the matai title. It is the same with current section 8(1)(d). If the monotaga was to be rendered to the matai title that is registered for at least three years, then section 8(1)(d) in relation to monotaga should have read, “Has rendered monotaga in respect of a matai title that has been registered for not less than three years prior to nomination,” or words to that effect. 
42. 	Section 8(1)(c) and 8(1)(d) of the Act read in its plain and ordinary meaning, in the context of the whole Act, and in the specific context in which these words appear requires that:
c)	The intending candidate is the holder of a matai title for the Constituency he or she intends to run (s.8(1)(c)); and
d)	Has rendered monotaga in respect of the registered matai title in the constituency the person intends to represent:
(i)	Within a village in the constituency he or she intends to run; and
(ii)	For a consecutive three (3) years ending on the day in which the nomination paper is lodged with the Respondent.
(iii)	The parliamentary debates of 23 September 2020 Amendments and Explanatory Memorandum
43. 	The amendments to the Electoral Act 2020 introduced on 22 September 2020 and assented to on 23 September 2020 was introduced into Parliament by the Minister of the Electoral Commission, Honourable Faaolesa Katopau. In his introduction of the amendments in relation to section 8(1)(c) and (1)(d) he said:
	“(4) Ina ia faamanino atili le agaga rationale, na ala ai ona tuuina i totonu o le Tulafono o faiga palota aiaiga o sui tauva uma e tauva ile faiga palota, o matai e fai a latou monotaga faale-aganuu mo se vaitaimi, e le i lalo ifo ole tolu tausaga”.
	“Fuaiupu 2 ua teuteu ai le fuaiupu 8 ole Tulafono Autu. Ua toe teuteuina ai le tuutuuga ole agavaa o le monotaga ina ia matua manino lelei le sootaga o le monotaga e le itiiti ifo ile 3 tausaga i totonu o se nuu e fa’aaogaina ai le suafa matai. Ua maea foi ona lesitalaina faaletulafono, e le i lalo ifo o le tolu tausaga.”
44. 	 The Explanatory Memorandum in relation to the relevant section 8(1)(c) and (1)(d) say:
	“...ia faamautinoa ai le maopoopoga o le tulaga aloaia o monotaga mo faamoemoega o faiga palota”. (last 2 lines of paragraph 1)
	“Fuaiupu 2: - ua teuteuina ai le fuaiupu 8 o le Tulafono autu:
	e ala i le toe faatulaga o le fuaiupu (1)(e) e avea ma (1)(d) o i ai nei, ina ia ogatasi ai e faapea o se tagata o manaomia ia faatino se monotaga i lalo o se suafa matai i totonu o se nuu i se itumalo, ua maea ona ia faia faapea mo se tolu tausaga sosoo, ma o sea tagata sa nofomau i totonu o Samoa mo le tolu tausaga sosoo” ………………………………………………………………………………………………………………………………
	“O le faamoemoe o le fuaiupu 8, ia faamautinoa ai e faapea, o le manaoga tau monotaga a le sui tauva e tolu (3) tausaga, ia iloiloina i luga o le suafa matai na fa’aaoga mo lona filifilia.”
45. 	The Honourable Minister’s introduction of the amendments in Parliament and the Explanatory Memorandum to the amendments are inconsistent. The Honorable Minister said that the matai title must be registered not less than three years (highlighted) while the Explanatory Memorandum (as highlighted) states the intention behind the amendment to section 8 is in relation to monotaga. It is very clear that the three (3) years requirement is to the rendering of the monotaga. 
46. 	The debates that follow in Parliament regarding these amendments was to the monotaga in relation to the new electoral boundaries, not to the matai title having to be registered for at least three (3) years.  
47. 	Section 8(1)(d) of the Electoral Act 2019 clearly conveys the intention as in the Explanatory Memorandum. The amendment is specifically to monotaga under section 8(1)(d). The three (3) year requirement is to monotaga not the matai title.
48. 	The Explanatory Memorandum is consistent with the literal interpretation of section (8)(1); an interpretation that captures the true intention of Parliament all along that matai title only need to be registered and that registration was never restricted by or to a number of years. An interpretation that is consistent with our customs and usage of monotaga; is that service or tautua starts once one is bestowed a title and becomes a matai registered or not, to the village the title is from. 
(iv)	The “Forms”
49. 	The nominated candidate is required under the law to complete various Forms provided for in the Electoral (Forms) Regulations 2019: 
	*Candidate Declaration – Form 2
	“(3)	I am a Matai whose title has been confirmed and registered on the List of Mata for….” (my emphasis)
	Declaration on Residential and Monotaga – Form 3
	“(c) I have rendered monotaga……for at least 3 years (ending with the day on which nomination is lodged) pursuant to the customs of our village and therefore satisfied the monotaga requirements…” (my emphasis)
	Confirmation of Monotaga and Residence (Declaration by a Matai or Sui o le Nuu or Sui Tamaitai) – Form 11
	“(b) have rendered monotaga in our village for a minimum of 3 years through his matai title in accordance with customs and usage of our village and therefore satisfies the monotaga requirements as defined in s.8(5) of the Electoral Act 2019. (my emphasis)
50. 	Forms 3 and 11 are in the form of a statutory declaration on residential and monotaga 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 an electoral constituency. 
(i) 	The first is that he or she must have resided in Samoa for a period equalling or exceeding 3 years or at least 305 days or more in each year for the past 3 years up to the date of nomination and therefore satisfies the 3 years’ residential requirement under s.8 (1) (e). 
(ii) 	The second matter is that, a person nominated as a candidate must have rendered monotaga or 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, therefore satisfies the monotaga requirement as defined in s.8 (1)(d).
51. 	None of the relevant Forms refer to monotaga to be rendered for at least 3 years from the date of registration of matai title or that the matai title must at least be registered for 3 years up to the day of nomination. 
52. 	The ‘forms’ conform with the requirements of the law that the three (3) years is specific to the monotaga and not to the registration of the matai title. The ‘forms’ assist to confirm the true intention and spirit behind section 8(1)(c) and (1)(d), that one must have rendered at least 3 years monotaga to his registered matai title within the village the registered matai title is from. 
53. 	The affidavit of Mauga Fetogi Vaai for the Electoral Commissioner as well as submissions of Counsel for the Electoral Commissioner accepted that the Applicant, Su’a Samuelu Su’a satisfied the requirements in section 47(2). We agree.
54. 	For the sake of completeness it is appropriate that we consider the question whether the applicant, Su’a Samuelu Su’a has satisfied the requirement of ‘monotaga’ under section 8(1)(d). 
(e) Does the Applicant meet the qualifications requirements under section 8(1)?
55. 	The motion by the Applicant is supported by affidavits from two (2) matai of the village of Samusu and the Sui ole Nuu. Accordingly, the three (3) deponents confirmed the bestowment of title “Su’a” upon the Applicant on 30 July 2016 and since then the Applicant has been rendering monotaga or service to the village of Samusu for at least the last 3 years to the day of his nomination for the General Elections in April 2021. 
56. 	These affidavits were not challenged and tendered in evidence by consent. The affidavits (i) confirm bestowment of the title ‘Su’a’ upon the Applicant on 30 July 2016; and (ii) that the Applicant has met the three years’ requirement of monotaga up to the day of the Applicant’s nomination on 22 October 2020 pursuant to section 8(1)(d). 
57. 	We are satisfied that the Applicant satisfies the qualification requirements imposed by section 8 of the Act to run as a candidate in the 2021 general elections.
Conclusion
58. 	The Electoral Commissioner does not have authority under section 47(2) to reject any nomination where a person fails to meet the qualifications requirements prescribed by section 8 of the Act.
59. 	We find that there is no ambiguity in the provisions of s.8(1)(c) and (1)(d). They are very clear and reflect the true intention behind the legislation. 
60. 	We reiterate that, there is no requirement in section 8(1)(c) or (d) that requires the matai title to have been registered for a period of three (3) years ending on the day in which the nomination paper was lodged with the Respondent. This can be gleaned from:
(a) 	section 8(1)(c) and 8(1)(d) of the Act making no express requirement that the matai title must have been registered for three (3) consecutive years ending on the day in which the nomination paper is lodged with the Respondent; 
(b) 	the definition of monotaga at section 8(5) of the Act also does not define “monotaga” to be in respect of a matai title that has been registered for three (3) consecutive years; and
(c) 	neither does any of the required Forms refer anywhere that the matai title must be registered for at least three (3) years or that the monotaga is rendered to the matai title that has been registered for at least three (3) consecutive years.
61. 	If it was truly the intention of Parliament that the matai title must at least be registered for three years then this should have been reflected in the Explanatory Memorandum, the Parliamentary debates, the contents of the ‘forms’ required to be completed, the definitions and most of all clearly expressed in sections 8(1)(c) and (1)(d).  
Orders
62. 	The Court make the following orders:
(a) 	The Respondent is ordered pursuant to section 47(3) to accept the nomination of the applicant, Su’a Samuelu Su’a and include his name in the List of Candidates for the Electoral Constituency of Aleipata Itupa I Lalo in the General Elections 2021.
(b) 	Costs of $1,500 are awarded to the Applicant against the Respondent.

ACTING CHIEF JUSTICE TUATAGALOA
JUSTICE ROMA