PacLII Home | Databases | WorldLII | Search | Feedback

Supreme Court of Samoa
You are here:  PacLII >> Databases >> Supreme Court of Samoa >> 2025 >> [2025] WSSC 57

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

Schmidt v Stowers [2025] WSSC 57 (15 August 2025)

IN THE SUPREME COURT OF SAMOA
Schmidt v Stowers [2025] WSSC 57 (15 August 2025)


Case name:
Schmidt v Stowers


Citation:


Decision date:
15 August 2025


Parties:
LAAULIALEMALIETOA POLATAIVAO FOSI SCHMIDT, candidate of Gagaifomauga 3 (Applicant) v FAAULUSAU FAATOATOA ROSA DUFFY STOWERS, candidate for Gagaifomauga 3 (First Respondent) & ELECTORAL COMMISSIONER (Second Respondent)


Hearing date(s):
29th & 30th July 2025


File number(s):



Jurisdiction:
Supreme Court


Place of delivery:
Supreme Court of Samoa, Mulinuu


Judge(s):
Chief Justice Perese
Justice Roma


On appeal from:


Order:
We make the following orders:

(a) The Application is dismissed;

(b) Costs of $2,000.00 are awarded to the First Respondent.

(c) Costs of $1,000.00 are awarded to the Second Respondent


Representation:
P. Chang for Applicant
L. Sio-Ofoia for First Respondent
V. Leilua & G. Lafi for Second Respondent


Catchwords:
Pre-election challenge -


Words and phrases:
“Challenging declarations given by two matai confirming First Respondent’s monotaga and residency requirements.”


Legislation cited:
Constitution of the Independent State of Samoa 1960, Art. 45;
Electoral Act 2019, ss. 7(a); 8; 8(1)(d); 8(1)(e); 8(2)(ii); 8(7); 47(1); 47(4);


Cases cited:
Sapolu v Public Trustee [2022] WSSC 78


Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU


IN THE MATTER OF:


an application pursuant to section 47(3) of the Electoral Act 2019


BETWEEN:


LAAULIALEMALIETOA POLATAIVAO FOSI SCHMIDT, candidate of Gagaifomauga 3


Applicant


AND:


FAAULUSAU FAATOATOA ROSA DUFFY STOWERS, candidate for Gagaifomauga 3


First Respondent


AND:


ELECTORAL COMMISSIONER


Second Respondent



Counsel: P. Chang for Applicant
L. Sio-Ofoia for First Respondent

V. Leilua & G. Lafi for Second Respondent

Hearing: 29 & 30 July 2025
Judgment: 15 August 2025


RESERVED JUDGMENT OF THE COURT

Background

  1. The Applicant (“Mr Schmidt”) and First Respondent (“Ms Stowers”) have been nominated as candidates for the territorial constituency of Gagaifomauga 3 in the upcoming 2025 General Election to be held on 29 August 2025.
  2. The nomination of candidates is required to satisfy Part 3 of the Electoral Act 2019 (“the Act”). This case is concerned with Ms Stowers nomination. Mr Schmidt claims that her nomination does not comply with the nominating provisions, and this therefore means the First Respondent is disqualified from contesting the Gagaifomauga 3 seat at the 2025 General Election.
  3. Ms Stowers’ nomination is supported by four statutory declarations. The first statutory declaration is her swearing, before a lawyer, her eligibility under ss. 8(1)(d) and 8(1)(e). These sections of the Act refer to the requirements to provide monotaga to the village of Aopo in any 3 years before lodgement date, and that she has resided in Samoa for a minimum of 3 years ending on lodgement date. Ms Stowers statutory declaration has not been challenged. The second statutory declaration is provided by the Sui Tamaitai o le Nuu, swearing that Ms Stowers meets the monotaga and residence requirements. This declaration is not the subject of a challenge by Mr Schmidt.
  4. What is however challenged are the declarations given separately by two (2) matai of Aopo: namely, Faaulusau Simi Laulua (“Faaulusau Simi”) and Faaulusau Feauina Tolovae (“Faaulusau Feauina”). They claim to confirm Ms Stowers monotaga and residence requirements.
  5. Faaulusau Simi and Faaulusau Feauina’s sworn declarations were given to the Second Respondent (“the Electoral Commissioner”). The Electoral Commissioner, on the strength of all declarations and other matters he was required to consider, accepted the nomination of the First Respondent’s candidacy.

Motion by the Applicant

  1. By motion of 18 July 2025, the applicant seeks the making of an order disqualifying the First Respondent from running as a candidate. The grounds he advances are:

Response by the First Respondent

  1. The applicant’s motion is opposed by the First Respondent on the grounds:

Response by the Second Respondent

  1. The Second Respondent accepted the First Respondent’s nomination after being satisfied of the matters he was required to consider under ss. 8 and 47(1) of the Act. Responsibly because it is the Commissioner’s decision to accept Ms Stowers nomination that is under scrutiny, the Commissioner abides a decision of the court.

Qualifications for candidacy under the Constitution and Electoral Act 2019

  1. Article 45 of the Constitution and s. 8 of the Act set out the qualifications for candidacy and election as a Member of Parliament. In summary, they are that the person is qualified to run as a candidate if that person (per s. 8(1)):
  2. Section 8(2) of the Act provides that a person is disqualified from contesting as a candidate for elections if the person does not meet the requirements noted in the preceding paragraph of this judgment, and among other requirements, does not have a statutory declaration confirming the candidate satisfies the requirements of monotaga under s. 8(1)(d) and residence under s. 8(1)(e).
  3. It is noteworthy the declaration under s8(2)(b) must be:
  4. To satisfy s. 8(7) of the Act, the two (2) matai must satisfy a standing requirement – that is the standing to make a declaration. They must:

If the matai meet the standing requirements, they may make a declaration to swear that the candidate satisfies the criteria for monotaga and residence under ss 8(1)(d) and 8(1)(e).

Issues for determination

  1. The question is one of standing - whether each of the two (2) matai deponents in support of the first respondent’s nomination satisfy the requirements of having - (i) sat on the village council for a minimum three consecutive years ending on lodgement day; and (ii) rendered monotaga in the candidate’s village for the same minimum period ending on lodgement day.
  2. We propose to deal with the issues in the following order:

Evidence for the Applicant

  1. Five witnesses gave evidence for the applicant. Pa’o Lilia, the tu’ua of Aopo; Vaitogi Tauimoli and Taulealea Poto Laau, both matai of Aopo produced a joint affidavit (Exhibit A1) and each gave oral evidence. Faaulusau Petelo and Faaulusau Eteuati, both matai of Aopo also produced a joint affidavit (Exhibit A3) and gave oral testimony.
  2. Their evidence is that the village council of Aopo meets once a month and sometimes does not meet for up to three months, depending on the need and matters that require discussion. Attendance at the meetings is not compulsory. The matai who reside and work elsewhere, for example in Apia, will not be able to attend every meeting, but attend whenever they are in the village. Even those who reside in the village do not all attend every meeting for many different reasons.
  3. All the Applicant’s witnesses agree that if not banished or otherwise excluded, all matai of the nuu who render monotaga are part of the village council, and attend meetings whenever able. Further, and critically in terms of understanding how custom is observed in Aopo, failure to attend meetings does not disqualify a matai from sitting on the village council.
  4. As to monotaga, the Applicant’s witnesses gave evidence that monotaga can take the form of being a contribution of food for any occasion in the village or district, or the standard $10 collected at each village council meeting. With monotaga by food, the matai take turns (tu’u faasolo) as assigned by the monotaga committee, with some waiting their turn for one to two years depending on the occasions that occur and need to contribute. As to the monetary contribution of $10 collected at the council meetings, a separate committee is responsible. The committee records those who contribute $10 at the meetings, but keeps no record of the matai who attend each council meeting.

Faaulusau Simi Laulua

  1. The evidence for the Applicant is that Faaulusau Simi does not attend every meeting of the council because he resides in Apia. Only recently, in the beginning of July 2025, do the witnesses recall he attended with Ms Stowers to seek support for her nomination for the 2025 General Election.
  2. Faaulusau Simi’s monotaga was addressed in the joint affidavit of Pa’o Lilia, Vaitogi Tauaimoli and Taulealea Poto Laau on behalf of the Applicant. These witnesses allege Faaulusau Simi’s cousin Samaga Lemi, was responsible for his monotaga, but Samaga Lemi stopped paying the monotaga in 2023. However, when tested, the evidence appeared flimsy and lost its cohesive impact. First, in oral testimony, Pa’o was unable to recall why Faaulusau Simi’s monotaga stopped in 2023; then, Taulealea conceded under cross examination he did not know the monotaga had stopped in 2023; and Vaitogi referred to a book kept by Faaulusau Petelo. Tendered as Exhibit A2, the book is of only limited assistance as it only records events from April 2024 events concerning monetary contribution, distribution, and penalties within the village. Whilst we note that Faaulusau Simi’s name does not appear among the names of the matai, we are bound to say that neither does book say Faaulusau Simi’s monotaga ceased in 2023, as contended.
  3. The joint affidavit of Faaulusau Petelo and Faaulusau Eteuati, on behalf of the Applicant, says that following an incident in 2023 relating to matai bestowment in their family, Faaulusau Simi never returned to Aopo. Samaga Lemi then stopped his monotaga. In oral testimony, Faaulusau Petelo says since he became secretary to the village council in March 2024, Faaulusau Simi has never attended a meeting or contributed by way of monotaga tupe. Faaulusau Eteuati referred to the book kept by Faaulusau Petelo and that the book does not record Faaulusau Simi’s name or that he had stopped his monotaga.

Faaulusau Feauina Tolovae

  1. The evidence of all of the Applicant’s witnesses is that Faaulusau Feauina renders monotaga but hardly attended meetings of the village council because of work commitments. There is no evidence that he stopped his monotaga at any time.

Evidence for the First Respondent

  1. Neither Faaulusau Simi nor Faaulusau Feauina whose eligibility to depose declarations in support of Ms Stowers nomination is being challenged gave evidence. We draw no adverse inference about their not giving evidence, it is for Mr Schmidt to prove his case.
  2. Two witnesses were called for Ms Stowers. The first was Samaga Laulua Mimilo or Samaga Lemi (“Samaga”), 72 years of age, a matai of Aopo, relative of both Faaulusau Simi and Faaulusau Feauina and responsible for both Faaulusau Simi and Faaulusau Feauina’s monotaga.
  3. The second witness was Muliaga Vainiu (“Muliaga”), 67 years of age, a matai of Aopo since 1987 and monotaga committee member since at least 2016. He confirmed that the matai take turns to contribute monotaga depending on the events that occur in the village or district; and sometimes it takes years for one’s turn to come around. He produced a monotaga book (Exhibit R3) which recorded some entries from 2016 to 2025 of monotaga by food for events held by the village, and district commitments such as work at the school or hospital. In the 2020 entries (about five years before lodgement day of the 2025 General Election), Ms Stowers, and both Faaulusau Simi and Faaulusau Feauina, are recorded as having contributed a pig each in July and August respectively.
  4. As to the book held by Faaulusau Petelo, he says it is the record of the komiti o tupe of which Faaulusau is a member. It records monetary contribution (lafoga) made by those present at a meeting of the council, the distribution of money and penalties imposed (faasalaga) by the village council.

Faaulusau Simi

  1. Samaga’s evidence is that Faaulusau Simi had been to about 6 village meetings in the last 3 years. On the issue of monotaga, he says he stopped it in 2024. When exactly and for how long he does not say. But Faaulusau Simi came back for the June 2025 meeting and resumed his monotaga.
  2. Muliaga’s gave evidence that Faaulusau Simi has rendered monotaga to the village for three consecutive years. The only record of Faaulusau’s monotaga is in the book that he (Muliaga) kept.

Faalusau Feauina

  1. Both Samaga and Muliaga confirm that Faaulusau Feauina has rendered monotaga the last three consecutive years, but because of work commitment has not attended all meetings of the village council.

Evidence for the Second Respondent

  1. The second respondent relies on the affidavit of Assistant Electoral Commissioner Patea Uili Sio, sworn on 25 July 2025 and admitted by consent. He confirms having reviewed the first respondent’s nomination documents including the statutory declaration of the 2 matai. On the information provided, the Commissioner approved their recommendation to accept the first respondent’s nomination as a candidate.

Discussion

Burden of proof

  1. We begin by making a general comment about the nature of the allegations and the evidence that is required. Mr Schmidt’s challenge to Ms Stowers is that she is disqualified under s. 8(2)(b)(ii) and s.8(7)(a) of the Act. The allegations are founded on claims of either a mistake or an act of dishonesty. The nature of the claim may be determinative in how the Court decides the case.
  2. If it is the Applicant’s claim that the declarations are sworn statements which have been dishonestly made, then the allegations go to a person’s credit and honesty and the Court will require a higher standard of proof of the allegations as opposed to the standard of proof for a mistake. The law has always required that where a person’s credit or honesty is being challenged, the ordinary rules of proof in civil disputes moves toward but not to the higher standard of proof of beyond a reasonable doubt. As discussed in Sapolu v Public Trustee [2022] WSSC 78 at [86]:
  3. Swearing a statutory declaration is very much a conscious act, it would therefore appear Mr Schmidt’s claim is that the matai have acted dishonestly, a ground that would justify the disqualification of candidate tainted by the wrong, from running.

Analysis of s. 47(4)

  1. We turn to s. 47(4) of the Act which relevantly provides that the Court:
  2. We note s. 47(4) was introduced in the Electoral Amendment Act 2021 (which commenced 3 March 2021) (“EAA 2021”), in other words, it became law about two years after the commencement of the Electoral Act 2019.
  3. The EAA 2021 moreover introduced the current version of s.8(7). By way of background, s.8(7) was not part of the Electoral Act 2019 when it commenced. Section 8(7) was introduced under the Electoral Amendment Act 2020, No. 13, which commenced on 4 May 2020 (“EAA 2020”). Unlike the current version of s.8(7), introduced by the EAA 2021, the EAA 2020 version did not specify a minimum time for sitting on the village council or rendering monotaga. The 3-year minimum time requirement, for sitting on the council and rendering monotaga, was introduced in the EAA 2021
  4. A further amendment needs to be referred to in the EAA 2021 - in the Samoan version of the EAA 2021, the following words were introduced in s. 8(7)(iii) - “e aofia i le saofaiga a le fono a le nuu”. This phrase amended the EAA 2020 phrase - “seei i le Fono a le Nuu o le sui tauva”. The English version of the EAA 2021 continues to refer to the phrase “sits on the village council...”, which transliterally conveys the same meaning as - “seei i le Fono a le Nuu o le sui tauva”.
  5. However, in the Samoan version, the meaning of the section is now - “e aofia i le saofaiga a le fono a le nuu”, which in all material respects a different concept to “seei i le Fono a le Nuu o le sui tauva”. The anomaly is that the English translation has not been amended to reflect the intended amendment. Those who are familiar with the sittings of the Legislative Assembly understand that Parliamentary debates are conducted in the Samoan language. We consider the Samoan text in the EAA 2021 is a more nuanced meaning of s. 8(7) and more in keeping with Samoan custom, and therefore authoritative. We consider the English version has not been amended to convey the meaning that was amended in the Samoan version, and therefore cannot have been the original draft of the amendment as proposed.
  6. Treating the Samoan version as authoritative has significant implications. Parliament intended for the matai “e aofia i le saofaiga”. This amendment carries the meaning that the matai is required to be a member of the village council. In our view, the Samoan words tacitly reflects the understanding of all matai or a village that the matai attends the village council meetings, from time to time, when they can, in order to carry out his or her role as one of the leaders of the village. However, there is no minimum requirement or obligation to attend all of any particular number of meetings, as one would expect if the obligation been to sit on Council meetings. Sittings of and on council meetings are matters for the Council to determine, in accordance with the custom of the village or district. One rule does not fit all. This point is borne out by the Applicant’s witnesses who all accept that the matai, who gave the declarations, were members of the village council, they had not been banished or otherwise barred to attending a meeting if they were so inclined.

Exhibit A3

  1. The last preliminary matter we address is the admissibility of Exhibit A3. Despite objection by counsel for Ms Stowers, we are permitted to admit evidence that may assist in the determination of the case even if it is not otherwise admissible in the Supreme Court. To this end we consider admissible the book and record of the komiti o tupe, which was kept by Faaulusau Petelo and produced as Exhibit A3. We find that Ms Stowers was not prejudiced by its late notice. It was Faaulusau Petelo’s record as a member of the committee for monotaga tupe; it is relevant to the issues in dispute; and even Muliaga Vainiu, who gave evidence for Ms Stowers side, knew of and had borrowed it from Faaulusau Petelo.
  2. With those background views in mind, let us evaluate the evidence.

E aofia i le saofaiga a le fono a le nuu for a minimum three consecutive years ending on lodgement day?

  1. Section 8(7)(a)(iii) requires that e aofia i le saofaiga a le fono a le nuu each of the two matai deponents for a minimum period of three (3) consecutive years ending on lodgement day. We consider that the use of the phrase 3 years ending on lodgement day was deliberate and has a different meaning to the phrase “any three (3) consecutive years”, which is used in s.8(1)(e). We accept that it may appear odd to use of these two phrases; it may even give rise to a situation when the standards a matai must satisfy are more rigorous than the candidate for election to Parliament, but we are not called on to determine such a possibility.
  2. Having regard to the Samoan version of the relevant section, we interpret the words ‘sits on the village council’ as requiring membership on the council by virtue of one’s matai title. We further consider that attendance and participation in meetings of the council and other village affairs is a necessary part of that membership. Because only then can the matai deponents have the necessary statutory standing to depose, in an informed way, that a nominated candidate satisfies both the residency and monotaga criteria for eligibility, as is their intended function and purpose under s8(2) of the Act.
  3. In saying that, we accept that for different reasons including residency, all matai including those who live in the village will not be able to attend all or most meetings of the council; attendance is not compulsory; and a matai’s failure to attend will not disqualify him from sitting on the council.
  4. Coming back to Faaulusau Simi, the evidence of one of Mr Schmidt’s witnesses is that except for one time recently when he came with Ms Stowers to put forth her nomination for election, Faaulusau Simi did not attend council meetings because he resides in Apia. There is no record or list confirming those who attend council meetings. The only record that the applicants rely on is a book (Exhibit A3) with entries beginning April 2024 of matai who made $10 contributions at a number of council meetings.
  5. We have considered the evidence and prefer that of Samaga Levi for the first respondent, that Faaulusau Simi had attended about six (6) village council meetings in the last three years. Samaga is Faaulusau Simi’s relative and was responsible for his monotaga in the village. We find no reason not to rely on his evidence.
  6. As to whether the six (6) meetings in the last three (3) years satisfies the requirement of sitting on the village council, we consider that sometimes the council did not meet for three months, attendance was not compulsory, Faaulusau Simi has always been resident in Samoa, he has never been banished or ostracised from the village, and for different and proper reasons, the matai including those who reside in the village are unable to attend all council meetings.
  7. In those circumstances, we are satisfied that Faaulusau Simi sat on the village council for three consecutive years ending on lodgement day.

Did Faaulusau Feauina sit on the village council for a minimum three consecutive years ending on lodgement day?

  1. We are not satisfied on the evidence that Faaulusau Feauina sat on the village council for a minimum three consecutive years ending on 12th July 2025. The evidence of all witnesses for the applicant and first respondent is that Faaulusau hardly attends any meetings of the council because of his work commitments. Again, the claim has been fairly put to Ms Stowers, but it has remained largely unanswered.

Did Faaulusau Feauina render monotaga for a minimum three consecutive years ending on lodgement day?

  1. We are satisfied however that Faaulusau Feauina rendered monotaga for the minimum required period before lodgement day. The undisputed evidence is that despite his absence from village council meetings, his monotaga continued and at no time did it stop.

Do the matai deponents’ failure to satisfy the requirements of sitting on the village council or monotaga disqualify Ms Stowers candidacy from contesting the elections

  1. It was submitted for Ms Stowers that even if we find the matai did not comply with the requirements of s8(7)(a)(iii) & (iv), the court may nevertheless qualify Ms Stowers if the focus shifted to the “substantial merits of the case without regard to legal forms or technicalities.”: s. 47(4). In this regard Ms Stowers eligibility is not in issue; she was declared eligible to contest the previous general elections in 2016 and 2021; and that she was an elected Member of Parliament in 2016. In other words she has a long standing connection with the village and constituency, one that may be reflected in the position that Mr Schmidt does not challenge her declaration of the declaration of the Sui Tamaitai o le Nuu.
  2. We must consider whether in the circumstances it would be unfair to disqualify her candidacy solely on the failure of the two matai who supported her nomination to satisfy the criteria for standing enabling them to make a declaration, under the Act. Put another way, it is not Ms Stowers’ own eligibility to be a candidate that is in issue, but the eligibility of the matai to nominate her.
  3. Whilst we are of the view Parliament intended the two matai deponents who support a nomination to be able to properly and truthfully confirm that the candidate’s residency and monotaga satisfy the criteria for eligibility, we consider that the principles behind the minimum time frames refer to a reasonable period or opportunity to observe whether the candidate satisfies the requirements under s.8(1)(d) and 8(1)(e). There may be other ways in which the matai might be informed about compliance, ways that do not involve attending council meetings.
  4. The matai in this case are far from being a lost cause – they have partially met the standing requirements. Faaulusau Simi attended and participated in council meetings, but his monotaga fell short by about a year, at the most. He had, however, been carrying out his monotaga since 2020, at least. If his earlier service of monotaga is considered, he would easily have satisfied the minimum of three years criteria. And, upon that basis he would have standing to make the statutory declaration, and confirm the unchallenged declarations of Ms Stowers and the Sui Taimaitai. But, he has no standing because he misses out the monotaga requirement by about a year, as the law requires him to have been carrying out his monotaga for a minimum of 3 years at the date of lodgement.
  5. Faaulusau Feauina lives in Upolu, and has hardly attended any meetings, but he has, nevertheless, been dutiful to his service to the village in carrying out his village monotaga. In other words he is no stranger to the village and its affairs. Indeed, it is noteworthy that both men are recognised as matai of Aopo, neither have been banished or similarly punished, both are welcome to attend any council meeting they wish to attend. They have been providing their contributions to the village for longer than the 3-year minimum period.
  6. In brief – Faaulusau Simi has met the standing requirement in relation to council meetings but not for monotaga (because of the years break). On the other hand, Faaulusau Feauina meets the standing requirement for monotaga, but not for council meetings (because he has hardly attended any meetings). It is in the context of these circumstances that we consider s. 47(4).

Does s. 47(4) apply?

  1. Section 47(4) applies to challenges to candidates’ candidacy and it affords the Court a broad mandate that has a counterpart in respect to Election Petitions matters pursuant to s.118 of the Act. In both ss 47(4) and 118, Parliament has recognised that there will be cases which call for the Court to exercise its discretion to observe the substantial merits and justice of the case (without regard to legal forms or technicalities), and the real justice of the matter.
  2. Section 47(4) provides that the Court must ultimately determine whether a candidate is qualified or disqualified, being guided by the substantial merits and justice of the case. This is to be done without regard to legal forms or technicalities. Whereas s. 8(2) provides for a candidate’s disqualification in certain circumstances:

The effect of s. 47(4) is to give the Court the authority to “ultimately determine” the qualification issue by being guided by the substantial merits and justice of the case. This section provides an important safeguard in our electoral system, to ensure justice on a case-by-case basis.

  1. In this matter, we consider it appropriate to have regard to s.47(4) substantially because the non-compliance with the principles concerning standing is at the lower end of the spectrum. Other cases may enlarge the scope of the section, but we are content to take a cautious approach.
  2. We consider that Mr Stowers has been a member of Parliament, has contested 3 General Elections, has provided a sworn certificate to the Commissioner for the 2025 General Election that she satisfies the requirements of s.8(1)(d) and 8(1)(e), and who has not been challenged on her statutory declaration, should not be refused the opportunity to run in the election. We do not consider that the failings on the part of the matai are so out of order that they should invalidate Ms Stowers right to run, or for her supporters to be able to meaningfully exercise their democratic right to vote for her, not the nominating matai, but her. And that is the nub of the issue with which Part 3 of the Act is concerned.
  3. The substantial merits of this case lie in the Court qualifying the Ms Stowers. A General Election is in principle a matter for the constituency, and it is of such fundamental importance to our democracy that the Court should be slow to undermine it by enforcing technical non-compliance that do not impinge on the character or suitability of a candidate.

Orders

  1. We make the following orders:

CHIEF JUSTICE PERESE
JUSTICE ROMA

PacLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.paclii.org/ws/cases/WSSC/2025/57.html