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Taeu v Sooialo [2025] WSSC 58 (15 August 2025)

IN THE SUPREME COURT OF SAMOA
Taeu v Sooialo & Anor [2025] WSSC 58 (15 August 2025)

2025-01174 SC/CV/UP

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

IN THE MATTER:

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

A N D:

IN THE MATTER:

Concerning the electoral constituency of FALEATA 2

BETWEEN:

MUAAUFAALELE MARY FAAFOUINA TAEU candidate for Faleata 2

Applicant

A N D:

LEATINUU WAYNE SOOIALO, candidate for Faleata 2.

First Respondent

A N D:

THE ELECTORAL COMMISSIONER

Second Respondent

Coram: Senior Justice Vui C Nelson
Justice Leutele M Tuatagaloa

Counsel: M. Lui for Applicant
Fuimaono S. Ponifasio for First Respondent
Su’a Hellene Wallwork (Attorney General) for Second Respondent

Hearing: 30 July 2025
Decision 30 July 25
Reasons: 15 August 2025

DECISION OF THE COURT
(Pre-electoral challenge)

Background

1. The Applicant and the First Respondent are candidates for the electoral constituency of Faleata 2 in the General Election scheduled for 28 August 2025. The Second Respondent has accepted both their nominations pursuant to section 47(1) of the Electoral Act 2019 (“EA”) which provides:
   • “47. Acceptance of nomination:
   • (1) The Commissioner must accept the nomination of a candidate who fulfils the requirements of section 8 and if:
   • (a) the nomination paper and the consent of the candidate are lodged with him or her by noon on nomination day; and
   • (b) the consent of the candidate states that he or she is qualified to be elected a Member under Part 3 and any other enactment; and
   • (c) the nomination paper states that the candidate is a registered voter of the constituency in which he or she is to represent; and
   • (d) the nomination paper is signed by at least two (2) registered voters of the constituency in which he or she is to represent; and
   • (e) the nomination fee is paid as required by this Act; and
   • (f) the nomination paper is accompanied by statutory declarations by two (2) matai and a current Sui o le Nuu or current Sui Tamaitai o le Nuu confirming the monotaga requirement in the prescribed Form.”
2. The Commissioner is empowered by section 47(2) to reject a nomination that does not comply with section 47(1):
   • “(2) The Commissioner must reject the nomination lodged with him or her if the candidate does not fulfil all requirements set out under subsection (1).”
3. By virtue of section 47(2A) the Commissioner is also empowered to carry out further inquiries into the validity of the nomination:
   • “(2A) In the exercise of his or her power and duty to accept or reject a nomination under this section, the Commissioner may:
   • (a) in addition to the information in the nomination paper provided by the candidate under this section, consider other information that is relevant in determining whether the candidate is qualified under the Constitution and this Act to become a Member;
   • (b) inquire into the information in the nomination papers provided by the candidate under this section to determine whether the information is bona fide or not; and
   • (c) reject the candidate’s nomination papers if the Commissioner determines that the information is not bona fide;
   • (d) exercise all the duties, powers and functions vested in the Commissioner under this Act, the Electoral Commission Act 2019 and any other enactment of Parliament, in the discharge of his or her duties under this section.”
4. It is obvious from these legal requirements that candidates must meet and satisfy the Electoral Commissioner (“EC”) about many and various criteria and matters of fact concerning their qualification.
5. By Notice of Motion dated 18 July 2025, the Applicant seeks an Order disqualifying the First Respondent and quashing the decision of the Second Respondent to qualify the First Respondent on the grounds:
   1. The First Respondent does not meet the requirement under section 8(1)(d) that he render a monotaga for 3 consecutive years.
   2. The First Respondent provided in his Statutory Declaration filed with the Electoral Commissioner in support of his nomination that the 3 consecutive year period for his monotaga is from August 2022 to August 2025.
   3. Given that the First Respondent lodged his nomination in July 2025, the first Respondent has not met the requirement under section 8(1)(d) because the 3 year consecutive period he submitted in his statutory declaration only ends a month later after lodgment day meaning on lodgment day he had not met the full 3 consecutive year requirement
   4. The Respondent is therefore disqualified as candidate.
6. For reasons best known to the Applicant, no affidavit as to the factual basis of the application was filed in support of the Motion.
7. In response, the First Respondent has filed a defence to the challenge and a Motion to strike out the Application supported by affidavits as to what he considers to be the relevant facts. These are the affidavits of the First Respondent and two other matai of Faleata 2. Likewise the Second Respondent is defending his decision and has filed affidavits as to the relevant facts from his perspective.

The Law

8. Pre-election challenges to decisions of the EC to accept or reject candidate nominations is permitted by section 47(3) of the EA which 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:
     • (a) for the general elections –
       • (i) it must be filed no later than 12 noon of the 7th day after nomination and a response to the motion must be filed within five (5) working days after the filing of the motion; and
       • (ii) must be decided by the Court within twenty five (25) 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 ten (10) working days after filing of the motion.”
9. The specific reference in the subsection to “by Motion” and “Supreme Court” signals a clear Parliamentary intent that such challenges are to be commenced by Notice of Motion in the Supreme Court. The Supreme Court Civil Procedure Rules 1980 rule 188 requires that with only one exception, all Motions are to be supported by an affidavit:
   • “188. Proceedings by motion – Every civil proceeding not required to be commenced by way of action may be commenced by way of motion supported by affidavit:
   • Provided however that this rule shall not apply to any proceedings taken under the Divorce and Matrimonial Proceedings Act 1961.”
10. The form of a Notice of Motion is established by rule 191(1):
    • “191.Form – (1) Motions may be made in form 52 or form 53 as the case may require, or in forms to the like effect.”
11. Form 52 deals with Notices of Motion and specifically provides in the latter part thereof for there to be an affidavit in support of the Motion:
    

“NOTICE OF MOTION TO THE COURT OR A JUDGE IN CHAMBERS Inter Partes

This Notice that on the .........day of ............19......., at ...........o’clock the forenoon counsel for the abovenamed plaintiff [or as the case may be] will move as Honourable Court at ...........(or at ........... before a Judge in Chambers) or an order that [Here set out clearly the order that is sought] and directing that the .. of the plaintiff [or as the case may be]) of an incidental to this application and order thereon be fixed and be costs in the cause (or be fixed and be costs of the plaintiff in any event or be reserved [or as the case may be]) and for such further or ...order as in the circumstances may appear just UPON THE GROUNDS [Here set out precisely the grounds on which it is intended to move] AND UPON THE GROUNDS appearing the affidavit of ................filed herein.

Dated at ....................this.......day of ......................19................

............................................

Counsel for the abovenamed Plaintiff

[Or as the case may be]

The Registrar of the High Court

and

The abovenamed defendant [Or as the case may be]

....................................”

12. The need for a supporting affidavit is obvious: the onus of proof in all civil proceedings is on a plaintiff or applicant to satisfy the court on a balance of probabilities that the relief sought should be granted. This is clear from many previous authorities of the court and for electoral challenges, in cases such as Samu v Adams [2016] WSSC 10 where the court stated:
    • “The burden is on the applicant, who is seeking disqualification of the respondent to satisfy the court that the respondent has not rendered the required village service during the three years prior to the close of nominations.”

At the time the requirement under the EA was for 3 years ‘village service’, now it is 3 years ‘monotaga’.

13. Judicial relief cannot exist in a vacuum, it must be grounded in the particular facts of a matter and based on the factual matrix provided by an affidavit or affidavits in support. Where facts are in dispute a hearing is conducted to determine the true state of affairs.
14. An applicant cannot as was sought here rely on facts pleaded in response by Respondents as there is no obligation on a Respondent to establish a or any factual background or context for the relief sought. Where the relief sought is in relation to matters of statutory or legal interpretation where the issues involved are pure law, application is normally made to dispense with the Civil Procedure Code requirement of a supporting affidavit. The present matter is not such a case, it is very fact specific. It seeks to challenge the decision of the EC who accepted as a matter of fact that the First Respondent had rendered monotaga for the whole of the required statutory period.

Decision

15. The Applicant has failed to provide the necessary affidavit evidence supporting her challenge. And it is now too late to do so. As previously indicated to counsels, pre-electoral challenges are time critical given the pending date of the General Election. For this reason the court has been very firm and clear in its timetabling of events and what should happen and when. As noted in Leniu v Electoral Commissioner [2020] WSSC 84 in dismissing an application for extension of time to file a pre-electoral challenge:
    • “It is clear from the whole tenor of section 47(3) and (4) (now s.47(5)) that Parliament intended time to be of the essence in determining challenges to these decisions of the Electoral Commissioner. Further that by virtue of section 47(4) (now s.47(5)) there be finality on the matter.”
16. Section 47(5) reads:
    • “47. Acceptance of nomination:
    • 5) An order made under subsection (3) is final and is not subject to any review or appeal.”
17. No application for extension of time in such matters can or will be entertained.
18. Applicants counsel valiantly attempted to rely on section 47(4) to save her application. That subsection provides:
    • “47. Acceptance of nomination:
    • (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.”
19. In our view that provision can only be applied to applications and proceedings that are properly before the court. Here there is a complete absence of an essential part of the application thus rendering the application incurably defective and void ab initio. There is nothing there that can be saved. This is no technicality and this is not a case of minor error, incorrect formatting or an improperly completed form. It is one of a complete lack of form/format/factual foundation.
20. For these reasons, we find that the application is fundamentally flawed and must be struck out. In the circumstances, it will be unnecessary to consider the First Respondents Motion to strike out the application which was presented on a different basis.
21. There will be no order as to costs unless the parties specifically request the court to consider the issue. We note that there still remains to be tried another application Civil No. 2025-01181 between the same parties, being the First Respondents motion also under section 47(3) of the EA to disqualify the Applicant.
22. We note that unlike here, the First Respondent has there complied with the Civil Procedure Rules and filed the necessary affidavits in support of his Motion.

SENIOR JUSTICE VUI C. NELSON
JUSTICE LEUTELE M. TUATAGALOA