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Ponifasio v Electoral Commissioner [2025] WSSC 61 (15 August 2025)

IN THE SUPREME COURT OF SAMOA
Ponifasio v Electoral Commissioner & Anor [2025] WSSC 61 (15 August 2025)


Case name:
Ponifasio v Electoral Commissioner & Anor


Citation:


Decision date:
15 August 2025


Parties:
TUALA TOIAIVAO TEVAGA IOSEFO PONIFASIO (Applicant) v THE ELECTORAL COMMISSIONER (First Respondent) & VAAAOAO SALUMALO ALOFIPO (Second Respondent)


Hearing date(s):
4th, 5th, 6th August 2025


File number(s):
2025-01180 SC/CV/UP


Jurisdiction:
Supreme Court – CIVIL


Place of delivery:
Supreme Court of Samoa, Mulinuu


Judge(s):
Senior Justice Vui C. Nelson
Justice Leiataualesā D. Clarke


On appeal from:


Order:
For the reasons stated, the applicant has failed to satisfy us on a balance of probabilities that Alofipo Siaosi and Seuoti Sheryl do not fulfil the requirements of subsections 8(7)(a)(ii), 8(7)(a)(iii) and 8(7)(a)(iv).

Accordingly, the applicant’s Notice of Motion for an Order disqualifying the second respondent is dismissed.

Costs follow the event. The applicant is ordered to pay to the second respondent a $2,000.00 contribution towards costs.

As is the case with election petitions, we recommend that consideration be given to applicants who seek disqualification of candidates accepted by the Electoral Commissioner paying security for costs.


Representation:
Fuimaono S. Ponifasio for Applicant
Su’a H. Wallwork (Attorney General), J Faleafaga and L Titimaea for First Respondent
T. Toailoa for Second Respondent


Catchwords:
Pre-election challenge – challenging candidacy – monotaga requirements – village council requirements.


Words and phrases:
“What constitutes as sitting on a village council?”


Legislation cited:
Electoral Act 2019, ss. 8(2)(b)(ii); 8(7)(a); 8(7)(a)(ii), 8(7)(a)(iii) and 8(7)(a)(iv); 47(3).


Cases cited:


Summary of decision:

2025-01180 SC/CV/UP


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 Gagaemauga No.1


BETWEEN:


TUALA TOIAIVAO TEVAGA IOSEFO PONIFASIO, a candidate for election for the Constituency of Gagaemauga No. 1


Applicant


A N D:


THE ELECTORAL COMMISSIONER


First Respondent


A N D:


VAAAOAO SALUMALO ALOFIPO, a candidate for election for the Constituency of Gagaemauga No. 1.


Second Respondent


Coram: Senior Justice Vui Clarence Nelson
Justice Leiataualesā Daryl Clarke


Counsel: Fuimaono S. Ponifasio for Applicant

Su’a H. Wallwork (Attorney General), J Faleafaga and L Titimaea for

First Respondent

T. Toailoa for Second Respondent


Hearing: 4th, 5th and 6th August 2025
Submissions: 7th August 2025
Judgment: 15th August 2025


JUDGMENT OF THE COURT

Background

  1. The applicant and second respondent are candidates from the village of Saleaula, Savaii for the national general election on 29th August 2025. The applicant applies to disqualify the second respondent as a candidate pursuant to section 47(3) of the Electoral Act 2019 (“EA 2019”) on the grounds that the second respondent is disqualified by virtue of subsections 8(2)(b)(ii) and 8(7)(a) of the EA 2019 in that:

The issues

  1. In these proceedings, the second respondent’s qualifications to run as a candidate is not in issue[1]. There is no evidence to suggest he does not meet the requirements of subsection 8(1). The question is whether he is disqualified as a candidate by virtue of subsection 8(2) because the two matai who provided statutory declarations confirming his monotaga and residency did not themselves sit on the second respondent’s village council nor render monotaga in his village for a minimum period of three years ending on lodgment date.
  2. It is not in dispute that “lodgement day” was 12th July 2025 or that the relevant statutory declarations were lodged before lodgement day.
  3. There are in our view three key issues we must address and determine:

Relevant Law: Statutory Framework

  1. Section 8 of the EA 2019 relevantly provides:
  2. Section 47(3) of the EA 2019 allows challenges to a decision of the First Respondent to qualify a candidate. In determining such challenges, including this application to disqualify the second respondent, section 47(4) of the EA 2019 states:

Discussion

What does “sits on the village council” and “sits on that village council” mean?

  1. The evidence is that there are three types of meetings held within the village of Saleaula:
(ii) fono a le pulenuu on Mondays (‘aso gafua o le nuu’) generally held monthly at the maota of the Pulenuu where village affairs are raised and dealt with, including ‘faasalaga’ for misbehavior; and
(iii) fono fa’a-Vaituutuu’ being a fonotaga of the whole of the nuu. This type of meeting is rarely held and only to deal with important and significant village matters such as a serious assault involving a matai, hosting of important visiting dignitaries to the village and the like. In recent memory, only one such meeting was held in 2023 and one in 2024. The applicant himself testified he has never attended such a meeting.
  1. To answer this first question of what constitutes sitting on a village council, there are two matters we must address: First, what is the “village council” for the purposes of subsections 8(7)(a)(ii) and 8(7)(a)(iii)? Second, what constitutes “sitting” on the village council for the purposes of these provisions?

The Village Council

  1. The applicant contends that neither Alofipo Siaosi and Seuoti Sheryl could provide a statutory declaration in support of the second respondent’s candidacy as they did not sit on the village council of the village in which the candidate’s matai title is registered. This is because the second respondent attends meetings of the aufono of Vaituutuu, Alofipo Siaosi attends the aufono of Le Pule and Seuoti Sheryl attends those of the aufono of Leano. As they attended a different “council”, they could not make the statutory declarations pursuant to section 8(2)(b)(ii) and 8(7)(a)(ii) and 8(7)(a)(iii).
  2. The applicant’s contention misunderstands the requirements of subsections 8(7)(a)(ii) and 8(7)(a)(iii). First, Alofipo Siaosi and Seuoti Sheryl’s matai titles are registered matai titles from the village of Saleaula, they are not from an ‘aufono’. This is clearly evidenced by their Tusi Faamaonia o le Umia o le Suafa Matai[2]. Second, these provisions expressly refer to “the village council” and “that village council”[3]. This is a reference to a meeting of “the village council” of Saleaula as a whole, not to constituent parts of the village which are the ‘fuaiala’ or ‘aufono’. This interpretation is consistent with section 2 of the Village Fono Act 1990 which defines a “village fono” as:
  3. A fono of an aufono is not an “assembly of the Alii and Faipule” nor is it a “sitting” of the “village council” of Saleaula. It is self-evident that the meetings of the aufono constitute a gathering of parts only of Saleaula and not the “village council” as a whole contemplated by subsections 8(7)(a)(ii) and 8(7)(a)(iii). For the purposes of the EA 2019, the “village council” is “the assembly of the Alii and Faipule of Saleaula”, which in accordance with Saleaula’s custom and usage is the fono fa’a- pulenuu and the fonotaga a le nuu atoa fa’a-Vaituutuu.

Sitting on the Village Council

  1. The English text of subsections 8(7)(a)(ii) and 8(7)(a)(iii) refers to “sits on the village council” and “sits on that village council”. The Samoan text of subsections 8(7)(a)(ii) and 8(7)(a)(iii) states:
  2. We note that the English text of subsections 8(7)(a)(ii) and 8(7)(a)(iii) of the EA 2019 is different to the Samoan text. Subsections 8(7)(a)(ii) and 8(7)(a)(iii) was inserted by an amendment to the EA 2019 made in 2021 repealing an iteration of subsection 8(7)(a) that stated:
  3. The use of the word “seei” (to sit) in the 2019 version of the Act was obviously and quite deliberately removed by Parliament. In removing “seei” (to sit) and introducing a new test of “aofia i le saofaiga a le fono a le nuu” and “o aofia ai i le saofaiga o le fono a le nuu...”, Parliament has in our view clearly broadened the scope of the inquiry.
  4. As a consequence, there now emerges a difference between the English and Samoan versions of subsections 8(7)(a)(ii) and 8(7)(a)(iii). The English version still refers to the original “seei” which means “to sit” whereas the Samoan refers to the broader “aofia i le saofaiga” or being involved in the affairs of the village council.
  5. This is not uncommon - see for example Pita v Liuga [2001] WSSC 20 where a similar situation arose in relation to the English and Samoan versions of qualifications prescribed for candidates. There the court in upholding the paramountcy of the Samoan text of the legislative provision said:

Subject however to the following rider:

“We have to point out, however, that we do not accept the general submission made by the Attorney-General in reply to a question from the Court, that as a matter of policy the Samoan text of a statutory provision shall prevail over the English text in every case of difference. There may be cases where the English text of a statute or statutory provision should prevail over the Samoan text in case of difference, for instance, a statute or statutory provision borrowed or copied from a foreign statute. In respect of such a statute or statutory provision the Samoan text will clearly be a translation of the English text; the original text will be the English text. There may be other circumstances where the English text of a statutory provision should prevail over the Samoan text. It will be for the Court to evolve and develop on a case by case basis the principles for determining which text of a statute or statutory provision is to prevail in case of difference. As this is the first case where the issue has arisen, it will be unwise to attempt to lay down in this case a list of guiding principles to be applied in every case where a difference arises between the Samoan and English text of a statutory provision”.
  1. The matter has now been clarified by section 11 of the Acts Interpretation Act 2015 which provides:
  2. In this case, the Attorney General has confirmed to the court that the original version of the 2021 Amendment to the EA 2019 submitted to and debated by Parliament was the Samoan version.
  3. How then should the Samoan version of subsections 8(7)(a)(ii) and 8(7)(a)(iii) be interpreted and applied? The applicant submits that these words mean that:[4]
  4. The applicant’s approach then raises what threshold a matai must meet to satisfy sub-section 8(7)(a)(ii) and 8(7)(a)(iii). The applicant suggests that:[5]
  5. The approach advanced by the applicant seeks to impose on a traditional Samoan decision-making body modern Western concepts of minute taking and record keeping so that some form of a mathematical calculation can be made in terms of “sitting” in a village council. In our view, such a narrow and mechanistic approach to interpretation focusing on the numbers of council meetings held and exactly how many meetings the matai attended is inconsistent with the Samoan text of subsections 8(7)(a)(ii) and 8(7)(a)(iii), and:
  6. When interpreting and applying sub-sections 8(7)(a)(ii) and 8(7)(a)(iii), we are of the view that a generous and liberal interpretation should be adopted to ensure the attainment of the object of the EA 2019 consistent with the Samoan text of the provision, and informed by its legislative history[6] including the second reading speech to Parliament by the Minister responsible for the EA 2019.[7] In his address to Parliament, the then Minister stated:
  7. To satisfy sub-section 8(7)(a)(ii) and 8(7)(a)(iii), it is not a matter of a simple mathematical calculation determining how many village meetings were held in the three (3) year period ending on lodgement date, how many were attended by that matai and then coming up with a threshold that the matai must meet in order to qualify. Satisfying subsections 8(7)(a)(ii) and 8(7)(a)(iii) is more nuanced than this. In our respectful view, the matai must in addition to holding a registered matai title[8] and rendering monotaga,[9] be a matai who is included and plays a part in village affairs for a minimum period of 3 years ending on the lodgement date, including attending village council meetings from time to time. The essence is an established and continuous 3-year presence in village affairs and at village council level enough for him or her to have sufficiently credible knowledge to attest to the performance of monotaga by the candidate.

Has the applicant satisfied the court that Alofipo Siaosi Key does not meet the village council and monotaga requirements?

  1. These proceedings are brought by the applicant. We bear in mind that it is the applicant that bears the onus of establishing that the relevant matai do not meet the requirements of subsection 8(7)(a). The standard of proof is on a balance of probabilities.
  2. In terms of satisfying the village council meeting obligations, the applicant’s case rested on Alofipo Siaosi attending a different aufono to the second respondent.[10] However, that has no bearing on whether Alofipo Siaosi has satisfied subsections 8(7)(a)(ii) and 8(7)(a)(iii). As stated earlier, the village council meetings for Saleaula for the purposes of these subsections are the fono fa’a-pulenuu and the fono fa’a-Vaituutuu, not the fono of the aufono/fuaiala.
  3. The difficulty for the applicant is that having rested his case on Alofipo Siaosi attending a different aufono to the second respondent and Alofipo Siaosi therefore not being able to attest to the second respondent’s monotaga, the applicant’s case became misdirected. The applicant did not run his case to establish that Alofipo Siaosi did not attend the fono a le pulenuu and the fonotaga a le nuu atoa fa’a-Vaituutuu. As cross-examination of Alofipo Siaosi showed, the cross-examination focused on the wrong fono:[11]
  4. While Mase Saio Ilaoa Poela’s evidence under cross-examination was that “[e] le auai Siaosi lea i o i fonotaga a le nuu aemaise foi o nisi o tulaga faa-le-nuu pei ona iai ia lo’u nofo ai i le taimi nei, e le auai atu ini fono.”,[12] his evidence stood alone and is unsatisfactory. By his own admission, during the relevant period, he spent time up to 6 months overseas as an RSE worker and he was absent in American Samoa for some 15 months from June 2023 to September 2024.
  5. In terms of Alofipo Siaosi’s performance of monotaga, the second respondent places heavy reliance on the evidence of Alofipo Talaga and his records of Alofipo Siaosi’s monotaga payment entries, exhibit R3. We found Alofipo Talaga’s evidence and entry of monotaga payments questionable to say the least. It makes no sense that the first entry for Alofipo Siaosi in chronological order from the year 2022 onwards should be below the entries for the years 2023 and 2024 referring to other matais L. Lino, L. Kelemete and A. Laina. The authenticity of his entries is also brought into some doubt by the fact that only Alofipo Siaosi’s monotaga was paid from 2022 while all others on the same page began only in 2023. We also note that all of the 2022 entries are marked by the same red pen.
  6. On the other hand, Alofipo Lui a matai fai upu for Saleaula confirmed Alofipo Siaosi’s evidence that Alofipo Siaosi had been performing his monotaga for many years. This is consistent with the evidence of the second respondent’s many other witnesses. While we hold genuine reservations concerning Alofipo Talaga’s evidence and record-keeping, we are not satisfied based on the evidence as a whole that the applicant has proven on a balance of probabilities that Alofipo Siaosi did not carry out his monotaga for three consecutive years ending on lodgment date. As such, the applicant has failed to discharge the onus of proof that Alofipo Siaosi had not rendered monotaga for a minimum period of three consecutive years ending on lodgement day.

Has the applicant satisfied the court that Seuoti Fialuma Sheryl Siliniu-Muagututia does not meet the village council and monotaga requirements?

  1. Like Alofipo Siaosi, much of the applicant’s case against Seuoti Sheryl rested on Seuoti Sheryl attending a different aufono to the second respondent. That, as we have said, has no bearing on whether Seuoti Sheryl satisfies subsections 8(7)(a)(ii) and 8(7)(a)(iii). There was however a key difference between Seuoti Sheryl and Alofipo Siaosi and that was the evidence of Seuoti Sheryl’s absence from Samoa for extended periods of time in the affidavit of Immigration official Siaopo Pese, exhibit A2 and the analysis undertaken by the applicant of those absences in exhibit A3.
  2. There is no dispute that Seuoti Sheryl was overseas for lengthy periods of time between July 2022 and July 2025, being the three consecutive years ending on lodgement date. These included in particular between 8 July 2022 and 1 April 2024.
  3. While we accept that Seuoti Sheryl was overseas for lengthy periods of time, we are satisfied that she was overseas for her Samoa based work as well as to care for her sick father suffering from a brain hemorrhage.[13] Working for the Lototau Agency and Pacific Tasman Recruitment Samoa Ltd, Seuoti Sheryl was involved in finding employment for Samoans, in particular those from her village on the New Zealand quota.[14] There was no evidence to the contrary. We also accept as testified to by numerous witnesses that Seuoti Sheryl lives in the village of Saleaula; has businesses in Saleaula; and attends church in Saleaula. While she may have been overseas for a considerable number of days, we are satisfied that she attended monthly meetings of the pulenuu when she was here between 2022 and 2025[15] and her presence at village council meetings during this period and relationship with her uncle, the second respondent was sufficient for her to attest to his performance of monotaga. On occasions according to her evidence, she paid her uncles lafoga and otherwise performed his monotaga. It is not an unusual customary practice for relatives to assist each other in relation to monotaga. We are also satisfied that Seuoti Sheryl performed her own monotaga, as confirmed by the records, exhibit R2.[16]

Conclusion

  1. For the reasons stated, the applicant has failed to satisfy us on a balance of probabilities that Alofipo Siaosi and Seuoti Sheryl do not fulfil the requirements of subsections 8(7)(a)(ii), 8(7)(a)(iii) and 8(7)(a)(iv).
  2. Accordingly, the applicant’s Notice of Motion for an Order disqualifying the second respondent is dismissed.
  3. Costs follow the event. The applicant is ordered to pay to the second respondent a $2,000.00 contribution towards costs.
  4. As is the case with election petitions, we recommend that consideration be given to applicants who seek disqualification of candidates accepted by the Electoral Commissioner paying security for costs.

SENIOR JUSTICE NELSON
JUSTICE CLARKE

[1] Section 8(1) of the EA 2019
[2] See exhibits EC 1 and R9 annexing their Certificates of matai title registration.
[3] In the Samoan version of the Tulafono o Faiga Palota 2019, it refers to the meeting as “le saofaiga a le fono a le nuu...”
[4] Outline of Submissions on behalf of the Applicant, 6th August 2025 at paragraphs [46] and [51].
[5] At paragraph [53]
[6] The court must strive to give meaning to every word of the provision (Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 at [71]; particularly where the word has been added by amendment: DC: Pearce and RS Geddes, Statutory Interpretation in Australia, (5th Ed, Butterworths, Sydney 2001) at [2.22].
[7] Acts Interpretation Act 2015, sub-sec. 7(3) and 7(4).
[8] Subsection 8(7)(a)(i), EA 2019
[9] Subsection 8(7)(a)(iv), EA 2019.
[10] See for example applicant’s affidavit, exhibit A1 paragraphs [5], [6] and [8]; affidavit of Mase Saio Ialao Poela, exhibit A4 paragraphs [10] – [16].
[11] NOE 05/08/2025, p.71.
[12] NOE 04/08/2025 at p.20
[13] NOE, 05/08/2025 at p.119.
[14] NOE, 05/08/2025 at p.119.
[15] NOE, 05/08/2025 at p.86.
[16] NOE, 05/08/2025 at p.115.

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