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Ale v Fruean [2025] WSSC 56 (14 August 2025)

IN THE SUPREME COURT OF SAMOA
Ale v Fruean & Anor; Stowers v Aiafi & Anor [2025] WSSC 56 (14 August 2025)

2025-01175
2025-01176

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

IN THE MATTER:

of the Electoral Act 2019.

A N D:

IN THE MATTER:

Concerning the Electoral Constituency of Faleata No.4

BETWEEN:

ALE VENA ALE, a candidate for election for the Constituency of Faleata No. 4

Applicant

A N D:

PEPE CHRISTIAN FRUEAN, a candidate for election for the Constituency of Faleata No. 4.

First Respondent

THE ELECTORAL COMMISSIONER

Second Respondent

AND IN THE MATTER:

Concerning the Electoral Constituency of Faleata No.3

BETWEEN:

PALOA LOUIS JAMES STOWERS, a candidate for election for the Constituency of Faleata No. 3

Applicant

A N D:

LEALAILEPULE RIMONI AIAFI, a candidate for election for the Constituency of Faleata No. 3.

First Respondent

THE ELECTORAL COMMISSIONER

Second Respondent

Coram: Justice Leiataualesā Daryl Clarke
Justice Loau Donald Kerslake
Counsel: T. Toailoa for the Applicants

F.S Ainuu for the First Respondents

DJ Fong for Second Respondent
Hearing: 30th July 2025
Ruling: 31st July 2025
Reasons: 14th August 2025

REASONS OF THE COURT

Background:

1. Pepe Christian Fruean filed a notice to strike out the motion by Ale Vena Ale which sought to disqualify him as a candidate for election in the electoral constituency of Faleata No. 4. Lealailepule Rimoni Aiafi filed a similar notice to strike out the motion by Paloa Louis James Stowers seeking to disqualify him as a candidate for election in the electoral constituency of Faleata No. 3. The proceedings were heard together, as the grounds for the notice to strike out were identical.
2. On 31st July 2025, we delivered our ruling striking out the applicants’ motions to disqualify the first respondents as candidate for election in their respective constituency. Although the rulings were delivered separately, the reasons are the same. These are our reasons.
3. Both applicants and first respondents are candidates for the national general election on Friday 29 August 2025 in their respective constituencies. For the purposes of this decision, “applicants” and “first respondents” will refer to the applicant and first respondent in both separate proceedings. “Constituency” or “constituencies” will refer to the electoral constituency of Faleata No. 4 and/or Faleata No. 3, as applicable to the context.
4. The grounds for the applicants’ motions to disqualify the first respondents are that:
   • (i) the first respondents do not meet the three-year residency requirement under subsection 8(1)(e) of the Electoral Act 2019 (“the EA 2019”); and
   • (ii) the first respondents’ statutory declaration provided to the second respondent in support of their respective nomination do not meet the requirements under subsection 8(3)(e) that provides an exception for subsection 8(1)(e) for those who are primary caretakers (sic) of a parent seeking medical assistance overseas.
5. The applicants did not file an affidavit in support of each of their motion to disqualify the first respondents.
6. In response, the first respondents Notice of Opposition to the applicants’ motion seeks in the first instance, an order striking out the applicants’ application on the grounds that it is frivolous, vexatious and an abuse of court process. In the alternative, the first respondents seek an order that each first respondent be declared qualified to contest the general election as a candidate for their respective constituency. We are concerned only with the strike out applications. The first respondents seek to strike out the applicants’ motions on the grounds that:
   • (i) the Court has an inherent jurisdiction to strike out any proceedings that are frivolous vexatious and an abuse of process;
   • (ii) the applicants’ motions fail to disclose “in detail” how the first respondents’ application do not comply with the exception under subsection 8(3)(e) and subsection 8(1) of the EA 2019 for children who are primary care givers of a parent seeking medical assistance overseas;
   • (iii) the applications are not supported by an affidavit that would assist the first respondents in understanding the specifics of the applicants’ challenge;
   • (iv) without particulars, the first respondents are not able to respond appropriately and are left to speculate on the specifics of the challenge;
   • (v) there is no reasonable ground as to why the applicants have not given specifics of their challenge as the applicants had access to the first respondents’ nomination file;
   • (vi) as a result of the applicants “blatant disregard” for the requirement to provide specifics, the first respondents rights to a fair trial are severely diminished and they are unable to defend themselves from the applicants’ challenge; and
   • (vii) the applicants’ applications fail to take into account that the first respondents nomination relies on two exemptions for their absence overseas: (a) pursuant to subsection 8(3)(e) of the EA 2019 as a primary caregiver; and (b) subsection 8(3)(g)(ii) of the EA 2019 as part of their duty to an organisation.
7. Only Lealailepule Rimoni Aiafi filed an affidavit in response to Paloa Louis James Stowers’s motion for his disqualification. Pepe Christian Fruean did not file an affidavit in response. By consent however, the affidavit of Patea Uili Sio dated 25 July 2025 and the affidavit of Mulitalo Fetogi Vaai dated 26 July 2025 officials for the second respondent were tendered by consent, and marked exhibit A1 and A2 accordingly for the purposes of the strike out proceedings only.

Law:

Statutory Framework

8. The applicants assert that the first respondents do not satisfy the residency requirements of section 8 of the EA 2019 which relevantly states:
   • “8. Qualification to run as a candidate in elections: (1) A person is qualified to run as a candidate for elections if that person:
   • ...
   • (e) has resided in Samoa for a minimum of three (3) consecutive years ending on lodgement day;
   • ...
   • (2) A person is disqualified from contesting as a candidate for elections if that person does not meet requirements in subsection (1) and:...
     • (3) Nothing in subsection (1) or (2) regarding residential requirements apply to:
     • ...
     • (e) a person who satisfies the Commissioner that he or she was outside of Samoa for more than 60 days in any one (1) year for the minimum of three (3) years as a primary care giver for a legally married spouse, de facto partner, sibling, child or parent seeking medical assistance overseas; or

...

(5) In this section: “minimum of 3 years” means a person has been in Samoa for at least 305 days in each year for a consecutive 3 year period ending on the lodgement day;...”

9. In opposing the strike out applications, the applicants refer the Court to subsection 47(3) and 43(4) of the EA 2019 that relevantly provides:
   • “(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:
   • ...
   • (4) On the hearing of a motion filed under this section, the Supreme Court: (a) must, whether it is pleaded in the motion or not, ultimately determine whether the candidate, whose candidacy is being challenged, or the person who claims a right to be a candidate, is qualified or disqualified to be a Member under the Article 45 of the Constitution and section 8 of this Act;
   • (b) shall be guided by the substantial merits and justice of the case without regard to legal forms or technicalities; and
   • (c) may admit such evidence as in its opinion may assist it to deal effectively with the case, despite that the evidence may not otherwise be admissible in the Supreme Court.”

Strike Out Principles:

10. The principles governing the exercise of Court’s jurisdiction to strike out are well settled. As these proceedings do not involve an action but a motion, the Supreme Court’s inherent jurisdiction to strike out is invoked. This is on the basis that the pleadings are frivolous, vexatious or an abuse of process. In Enosa v Samoa Observer [2005] WSSC 6, Sapolu CJ referring to Bullen, Leake and Jacobs Pleadings and Precedents (12th edn, 1975), p 145, stated that:
    • “A pleading or action is frivolous when it is without substance, groundless, fanciful, wasting the courts time or not capable of reasoned argument. A pleading or action is said to be vexatious when it is lacking in bona fides, hopeless, without foundation, cannot possibly succeed or is oppressive".
11. In Kneubhl v Liugalua [2000] WSSC 27, Wilson J referred to Halsbury’s Laws of England:
    • “In Halsbury’s Laws of England (4th Edn.) Vol. 37, para 435), the legal position is stated as follows:-
    • "In addition to its powers under the Rules of the Supreme Court, the Court has an inherent jurisdiction to strike out pleadings and other documents ........... So, under its inherent jurisdiction the court may strike out the whole or part of the endorsement on a writ or stay or dismiss an action which is frivolous or vexatious or an abuse of process or which must fail or which the plaintiff cannot prove and which is without a solid basis ..... ..... The power to strike out, stay or dismiss under the court’s inherent jurisdiction is discretionary. It is a jurisdiction which will be exercised with great circumspection and only where it is perfectly clear that the plea cannot succeed; it ought to be exercised sparingly and only in exceptional cases [Lawrence v Lord Norreys [1890] UKLawRpAC 14; (1890) 15 AC 210 at p.219 per Lord Herschell]." (emphasis added)
12. In Woodroffe v Mataia [2017] WSCA 5 (31 March 2017), the Court of Appeal also said:
    • “15. As the judge below noted the application is to be dealt with on the assumption that the facts pleaded in the claim can be proved. An order striking out the claim may only be made if the causes of action are so clearly untenable that they cannot possibly succeed. If the claim can be saved by amendment of the pleadings, or parties, this may be permitted since a litigant’s right of access to the court is not to be lightly denied. Only when a claim is doomed to fail should an order striking it out be made.
    • That an application raises difficult and important questions of law and requires extensive argument does not exclude the jurisdiction...”
13. In terms of factual pleadings, the Court of Appeal in McNeely v Lemoasina Corporation Ltd [2019] WSCA 12 (19 September 2019) made the point that for the purposes of a strike out motion:
    • “18....
    • (b) The pleading should be struck out if the Court is satisfied that even on the most favourable interpretation of the facts pleaded or available, the plaintiff could not succeed in law.
    • (c) For this purpose, the facts asserted in the pleading may be supplemented by affidavit so long as the material relied upon is incontrovertible. The Court will not attempt to resolve genuinely disputed issues of fact or consider evidence inconsistent with the pleading...”

Discussion:

14. The crux of the first respondents strike out application is that by the applicants failing to annex an affidavit in support of their motions and not particularizing how they do not meet subsection 8(1)(e) and the exemptions in subsection 8(3)(e) as a “primary caretaker (sic), their right to a fair trial is severely diminished”. It is trite law and a basic tenet enshrined in the Constitution that in the determination of the first respondents civil rights and obligations, they are entitled to a fair and public hearing within a reasonable time. As candidates for election, there can be little doubt this constitutional guarantee extends to the first respondents rights to be candidates in the upcoming national general election and any civil proceeding that questions that right.
15. For the applicant’s part, it is contended that the onus is on the first respondents to prove that they fall within the exemptions in subsection 8(3)(e) of the EA 2019 to satisfy the 305 days per year residency requirement. All the applicants must do is challenge eligibility by motion and it then falls to the first respondents to meet that onus if they rely on the section 8(3)(e) exemption. In advancing this argument, the applicants place substantial reliance on: (a) subsection 47(4) of the EA 2019 and the requirement for the court, whether pleaded or not, to determine whether the candidates are qualified or disqualified to be a candidate; and (b) a reverse onus of proof that places on a respondent the obligation of establishing that they fall within any of the statutory exemptions in subsection 8(3). As such, there is no requirement for, nor is it intended in these proceedings, for the applicants to give or call any evidence at the trial.
16. Although section 47(3) and 47(4) of the EA 2019 makes no reference to the motion challenging the second respondent’s decision being supported by affidavit, a supporting affidavit is required unless dispensed with by the court. This is so that a respondent to a motion can understand the nature and factual allegations of a claim brought against the respondent and respond. This is part and parcel of ensuring that a respondent receives a fair trial, guaranteed by article 9(1).
17. Subsection 47(4) also does not in our respectful view go so far as the applicants seem to contend. Where the Court for example might disqualify a challenged candidate on a ground not pleaded, the Court must in our view adopt a process that accords with the principles of natural justice consistent with article 9(1): by giving notice to the prospective candidate of the potentially disqualifying ground and the relevant evidence; and an opportunity to respond. That same obligation extends to a candidate who is seeking to disqualify another candidate, as in these two cases where the applicants are seeking to disqualify the Pepe Christian Fruean and Lealailepule Rimoni Aiafi.
18. In Sio v Patea, the Supreme Court accepted at [31] that:
    • “31. Whilst it is the obligation of the Petitioner in an Election Petition to prove the allegations beyond reasonable doubt, section 5(8) of the Act provides a statutory exception and shifts the burden onto the First Respondent. It is for the First Respondent who relies on the exemptions or defence in section 5 (8) to prove on the balance of probabilities that his particular travels were for the businesses of Events Polynesia (Samoa) Ltd.”
19. We turn to consider whether or not the reverse onus also applies to the residency exemption in EA 2019. We are of the view it does. Although, worded differently, the purpose of subsection 8(3)(e) of the EA 2019 is similar to subsection 5(8) of the Electoral Act 1963, it allows an exemption to the residential requirement. For the same reasons enunciated in Sio v Patea, the onus to prove entitlement to the exemption falls on the candidate relying on it. The standard of proof is on a balance of probability.
20. The more relevant question is when does the onus shift? It is our respectful view that the reverse onus does not have the effect contended by the applicants that all the applicants must do is challenge the Commissioner’s decision to accept the candidate’s nomination on the grounds of residency without the need for evidence and it is for the first and/or second respondents to satisfy the court that the first respondents meet the 305-day residency requirement. This view misconstrues the reverse onus. At trial, like any trial, the applicants must first call evidence. The onus is on the applicants through their evidence to establish on a balance of probability that the first respondents do not satisfy the 305 day residency requirement. If the applicants satisfy this onus, it then shifts to the first respondents to establish on balance of probabilities that they satisfy the residency exemption. The onus only shifts once the applicants have provided evidence that the first respondents do not satisfy the 305-day residency requirement.
21. In this case, the applicants have filed no supporting affidavit nor do they intend to call any evidence. The applicants’ motions are procedurally defective. The applicants case is also doomed to fail. With the applicants having no evidence to rely on, the respondents simply do not need to call any evidence and the applicants case is lost.
22. On the question of the lack of particulars to the applicants’ motions, the applicants submitted that the lack of particulars can be cured by granting leave to the applicants to file an amended motion to better particularize “how the first respondents do not meet the exception (sic) under section 8(3)(e) ...” We do not agree. First, the granting of leave to better particularize the applicants’ complaints fail to address the evidential burden on the applicants to prove on a balance of probabilities that the first respondents do not meet the 305 days. The grant of leave to amend will not save the applicants case.
23. Second and equally important, if we were to grant leave to the applicants to amend the motion to better particularize their claim, the first and second respondents would also then need the opportunity to respond, including by filing an amended response to the amended motion and in all likelihood, further affidavits. As the courts have reiterated time and again in pre-election and electoral petition matters, time is of the essence. In this case, the strike out motion was heard on the 30th July and ruling delivered on the 31st July. The granting of leave to amend would leave only two weeks (a) for the applicants to file and serve the amended motions; (b) the first and second respondents to file and serve their response including obtaining further affidavits to respond to the particularized allegations; (c) the court to then hear the motions; and (d) deliver a decision by the 15th August. The public interest in a speedy determination of this proceeding coupled with the impractical and unrealistic expectation to be able to complete a trial in such a timeframe potentially prejudicing the respondent’s rights to a fair trial weigh strongly against the grant of leave to amend. We are not prepared to grant leave in the circumstances. In these pre-election challenges brought in the shadows of a looming general election, applicants and counsel must come to the court with their best case.
24. In essence, the manner and form in which the applicants have brought these proceedings is without a solid base, incapable of proof and an abuse of the Court’s process.

Result:

25. As we delivered on the 31st of July, the result is that the motions by the applicants challenging the decision of the electoral commissioner and seeking to disqualify the first respondents as candidates for election in the electoral constituency of Faleata No. 4 and Faleata No.3 respectively, are struck out in their entirety and dismissed.
26. Consequently, leave for the applicants to amend the motion is denied.
27. Costs against both applicants in the amount of $2,000 each is to be awarded to the First Respondents.
    

JUSTICE CLARKE
JUSTICE KERSLAKE