Olaf v Chan Chui [2001] WSSC 18 (31 May 2001)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

IN THE MATTER: of the Electoral Act 1963

AND

IN THE MATTER: concerning the election of a Member of Parliament
for the Individual Voters

BETWEEN:

JACOB JOHN OLAF
JACK NETZLER of Sinamoga; and
NICHOLAS LEVY of Sinamoga; and
TAUTAI LEI SAM of Moamoa;
Candidates for Election
Petitioners

AND:

VANG SUNG CHAN CHUI
of Siusega, a Candidate for Election
Respondent

CORAM: SAPOLU CJ
VAAI J
NELSON J

Counsel: Ms K. Sapolu for the Petitioners
Mr M. Leung Wai for the Respondent

Date of hearing: 17, 18 21, 22 and 23 of May 2001
Date of Decision: 31 May 2001

JUDGMENT OF THE COURT DELIVERED BY VAAI J.

As a result of the General Elections held on the 2^nd March 2001 the Chief Returning Officer officially declared the election results in the Individual Voters election as follows:-

CHAN CHUI Vang Sung - 426

KEIL Hans Joachim - 485

LEI SAM Tautai - 321

LEVY Nicholas - 322

NETZLER Jacob John Olaf Jack - 365

ROEBECK Tautulu - 402

SILVA Elaine Meleane - 335

As two representatives were required from the Individual Voters Messrs Keil and Chan Chui were declared elected.

The Petitioners filed a petition seeking that the Respondent Chan Chui be declared to be guilty of corrupt practices of bribery and treating and his election accordingly be declared void. Originally all of the five unsuccessful candidates jointly filed the election petition but at the commencement of the hearing of the petition counsel for the Petitioners sought leave of the Court to withdraw Roebeck and Silva as petitioners. Although Counsel for the Respondent initially objected to the withdrawal of Roebeck, the objection was subsequently withdrawn and leave was granted to withdraw Roebeck and Silva as petitioners. As a consequence the counter petition filed by the Respondent was not pursued since the counter petition targeted Roebeck only and not the other Petitioners and the court therefore is confined to the consideration of the seven allegations of bribery and treating contained in the petition which are as follows:-

(1) On the 22^nd February 2001 between 5 and 5.30pm at MacFarland’s shop at Saleufi, the Respondent bought and gave one Felix Sam Chong (also known as Felise Sam Chong) a voter, a large bottle of beer for the purpose of corruptly influencing the said voter to vote for the Respondent and thereby committing the offence of treating.

(2) On Monday 26^th February 2001 at Aleisa, Douglas Chong Nee, who is a member of the Respondents campaign committee gave $20 to Valelia Westerluhnd, a voter for the purpose of corruptly influencing the said voter to vote for the Respondent and thereby committing the offence of bribery.

(3) On Tuesday 27^th February 2001 at Aleisa, Niko Fidow, who is a member of the Respondent’s campaign committee, promised to Valelia Westerlund, a voter, that the said Valelia Westerlund, would be paid $500.00 after the elections, if she joined the Respondent’s campaign committee for the purpose of inducing the said voter to vote for the Respondent and thereby committing the offence of bribery.

(4) On Thursday 1^st March 2001 at about 8pm at Siusega, Maliko Manuula who is a member of the Respondent’s campaign committee gave $10.00 cash to each of the following persons who are voters for the purpose of inducing the said voters to vote for the Respondent and thereby committing the offence of bribery.

Tupufia Faumui

Tikeri Sio

Tokiana Alefosio

Poasa Tasilimu

(5) On Thursday the 1^st March 2001 at about 8pm at Siusega, Likau Chan Chui, a brother of the Respondent, gave out new T.Shirts and Maliko Manuula gave out packets of Rothmans cigarettes to each of the following persons who are voters for the purpose of inducing them to vote for the Respondent and thereby committing the offence of bribery and/or treating.

Tupufia Faumui

Tikeri Sio

Tokiana Alefosio

Poasa Tasilimu

(6) On Thursday the 1^st march 2001 at about 8pm at Siusega, Likau Chan Chui and other relatives of the Respondent, served food to each of the following voters for the purpose of inducing them to vote for the Respondent thereby committing the offence of treating.

Tupufia Faumui

Tikeri Sio

Tokiana Alefosio

Poasa Tasilimu

(7) On Friday 2^nd March 2001 at about 2pm at Saleufi, the following voters having cast their votes at the election, were given $200.00 by Likau Chan Chui, a brother of the Respondent, to be distributed amongst the said voters which giving was corruptly done on account of the said voters having voted for the Respondent at the said election.

Tusiga Sipuni Mala Tualafa

Aele Penesa

Tokiana Alefosio

Semi Ioane Malele

Poasa Tasilimu

Faafiu Lameta Sione

Evidence given at the trial was by way of affidavits and oral testimonies of 18 witnesses as to the facts of the alleged corrupt practices. We have considered all the evidence, have weighed the same, drawn the proper inferences, and have assessed the degree, quality and value of each item of evidence in the light of the reliability and demeanour of the witnesses exhibited during the course of their testimony.

We have also reminded ourselves that the onus is on the Petitioners to prove the allegations beyond reasonable doubt.

Concerning the first allegation the Respondent does not deny purchasing a large bottle of Vailima beer for Felix Sam Chong a voter in the Individual Voters Roll at the shop of Steve MacFarland at Saleufi. What is in dispute is whether the bottle of beer was corruptly given by the Respondent to Mr Sam Chong to induce Mr Sam Chong to vote for the Respondent. Mr MacFarland the shop proprietor testified that he was manning the shop on the 22^nd February 2001 when the Respondent and his wife walked in to do some shopping and while they were in the shop Mr Sam Chong came in and upon seeing the Respondent told the Respondent to buy him a bottle as he, the Respondent, was a candidate in the election. The Respondent then told Mr Sam Chong to get himself a bottle of beer and when Mr Sam Chong walked out of the shop with his beer the Respondent called out to Mr Sam Chong to remember him (“Se manatua mai”). Mr Sam Chong and the Respondent are well known to Mr MacFarland as both are regular customers. Mr Sam Chong operates an account at the shop and on the day in question Mr Sam Chong did purchase on credit 5 beers and cigarettes.

The Respondent denies giving the beer to Mr Sam Chong in the manner indicated by Mr McFarland. He said he cannot remember the date but it was the beginning of February when he and one Niko Fidow went into the shop while his wife who was very pregnant stayed outside in the car. Mr Sam Chong came in and asked the Respondent for a bottle of beer while the Respondent was at the till with Mr MacFarland. The Respondent then walked to the refrigerator, grabbed one large beer which he gave to Mr Sam Chong, paid for the beer and his groceries and left the shop while Mr Sam Chong was still in the shop. He denies calling to Mr Sam Chong to remember him (se manatua mai) and he also denies Mr Sam Chong saying to him to buy a bottle of beer as he, the Respondent, was running in the elections.

By way of defence, Counsel for the Respondent submits that the allegation should be dismissed firstly on the ground that the Petitioners have not produced the Individual Voters roll and have therefore failed to prove beyond reasonable doubt that Mr Sam Chong was a voter. It is true the Individual Voters roll was not produced by the petitioners but Mr Sam Chong himself was called by the Respondent to testify and he did acknowledge he was a voter for the Individual Voters and accordingly the submission must fail.

The second submission is that the petitioners have failed to prove beyond reasonable doubt that the giving of the one bottle of beer by the Respondent was done corruptly for the purpose of corruptly influencing Mr Sam Chong to vote or procuring the Respondent to be elected.

As to the meaning of corrupt we adopt the view taken by Callander ACJ in Re Election Petition Anoama’a East Territorial Constituency : Faamatuainu Tala Mailei v Savea Sione (unreported Supreme Court Misc. No.6007 28/7/1982) where he followed the decision in the New Zealand case of In the Wairau Election Petition [1912] NZGazLawRp 37; (1912) 31 NZLR 321 which is summarised in the headnote as follows:

“A corrupt intention is an intention on the part of the person treating to influence the vote of the person treated. The question of intention is an inference of fact which the court has to draw. If in any case, looking at all the circumstances, the reasonable and probable effect of the alleged treating would be to influence the result of the election, or to influence the votes of the individual voters, it might well be inferred that it was the intention of the persons treating that this affect should follow.”

The Respondent says the reason why he bought the one beer for Sam Chong is because Sam Chong is his cousin and on several past occasions he has on requests from Sam Chong given him money to buy food for his children as well as money for his beer and cigarettes. This evidence is confirmed by Sam Chong himself who said he often met with the Respondent and he would ask the Respondent for money. On other days he would go to the Respondent’s house and request money.

There is a great deal of conflict in the evidence of what took place in the shop of McFarland and Mr MacFarland was a less impressive witness under cross-examination in relation to what was allegedly said inside the shop by the Respondent and Mr Sam Chong. Mr McFarland at the time did not realise that the Respondent and Mr Sam Chong were cousins.

The nature and extent of the treating is also very relevant. Customary and harmless hospitality is not treating. What is involved here is one large bottle of beer. We are satisfied that the Respondent has on previous occasions granted requests by Mr Sam Chong for money. In the circumstances we are not satisfied beyond reasonable doubt that in giving the bottle of beer the Respondent wrongfully intended to improperly influence the vote of Mr Sam Chong. The Petitioners have failed to prove a corrupt intention on the part of the Respondent and the allegation fails.

Since the second and the remaining allegations allege bribery and treating by the respondent through the agency of his campaign committee members it is necessary now to refer to the law of agency in election matters. It is settled law that the entrusting to an agent by a candidate of the acts to be done to promote the election of the candidate may either be in express terms or arise from implication. It is not necessary in order to prove agency to show that the person was actually appointed. Recognition and acceptance of service is also sufficient to prove agency. In circumstances however where the agent has acted illegally, contrary to his powers and authority and without the knowledge and consent of the candidate, our attention has been drawn to the conflicting decisions of this Court in Re Election Petition Territorial Constituency of Siumu : Tupuola Sola Siaosi v Tofaeono Anufesaina (unreported Misc.20459 31/7/96) and in Re Election Petition Gagaemauga No.2 : Aufai Upuese v Faasootauloa Pati & others (unreported Misc.20457 17/6/96).

In Aufai Upuese v Faasootauloa (Gagaemauga No.2 Territorial Constituency) the Court took the view that before a candidate can become liable for the corrupt practice of his agent, the candidate must be shown to have authorised, or consented to or knew of the prohibited act. The same principle was applied in Re Election Petition Territorial Constituency of Alataua i Sisifo : Nonumalo Faiga v Tuaiaufai Tafuaupolu (unreported 12/11/1999). On the other hand in Tupuola Sola Siaosi v Tofaeono Anufesaina (Siumu Constituency), the Court cited with approval as the correct statement of the law the principles stated by Hosking J in Re Bay of Islands Election Petition (1915) NZLR 578, which is that a candidate, however innocent, would be liable and responsible for any illegal acts done by or under the authority of his agent in the sense that the election will be avoided. It makes no difference whether the candidate did not authorise, did not know, or had not consented to the doing of the illegal act. In fact even if the agent acted illegally in defiance of express instructions to the contrary from the candidate, the election of the candidate will be avoided.

We have had the benefit of hearing submissions from counsels and we have considered the authorities and we have reached the conclusion that the view taken by the Court in Tupuola Sola Siaosi v Tofaeono Anufesaina (Siumu Constituency) is the correct statement of the law of agency in election matters. This approach is consistent with the spirit of the legislation that elections should be conducted by honest and proper means and untainted by under hand influences. The same approach was adopted by Donne CJ in Re Mitiaro Election Petition (1979)1 NZLR S1.

It is not denied by the Respondent that Douglas Chong Nee, Niko Fidow, Maliko Manuula and Likau Chan Chui, who are alleged in the remaining allegations to have bribed and treated were all members of his campaign committee. Originally the campaign committee consisted of Niko Fidow, Bee Leung Wai, Ray Pereira and members of the Respondents family. Ray Pereira was Chairman and it was this committee which initiated fund raising and organised Public Meetings and all public meetings concluded on the 1^st day of February 2001 which was the day before the election period started. The Respondent understood this period from the 2^nd February to election day (2^nd March 2001) to be the time when bribery and treating was not allowed.

We did point out in Re Election Petition Territorial Constituency of Sagaga le Usoga: Muagututia Peter Ah Him v Maulolo Tavita Amosa (10/05/2001) that for election purposes there is no particular period of time which our law permits for bribery and treating of electors and voters by the candidates, so that it is erroneous to think that bribery and treating are allowed outside the election period. For election purposes bribery and treating are forbidden at all times.

The week after the last public meetings a campaign committee under the chairmanship of Taupau Lino started to meet at Moamoa at the house of Likau Chan Chui the brother of the Respondent. Additional members including Douglas Chong Nee and Valelia Westerlund, (whose names are mentioned in allegations 2 and 3) attended some of these meetings. Committee meetings increased from once to two and finally to 4 times a week during election week. Finance was handled by the Respondent’s sisters who were under no obligation to report to and did not report to the campaign committee on how and what monies were spent. Evidence by the Respondent himself reveals that he was not the least interested in how much money was contributed by members of his family and supporters towards his campaign fund and similarly he was not interested and therefore made no inquries on how the campaign funds were spent. In the same vein he appeared to have no campaign strategy and no campaign policies other than going out with his committee to visit the voters and to persuade the voters to vote for him. He relied on God for help and he did fast with his committee once a week. He did not condone bribery or treating. Under cross-examination he defined bribery and treating as giving money and other things to a voter and asking that voter to vote for you.

He said he made it clear to his campaign committee and it was discussed and understood during the committee meetings that no one was to bribe and treat. But it was never made clear to the court what was discussed during the committee meeting to promote the candidacy of the Respondent. No specific tasks were assigned to the committee members except for the provision of food, transport and manning of the telephone on Election Day. Otherwise the specific target of the committee members was to approach the voters and persuade them to vote for the Respondent. With that background information on the campaign committee we conclude that those committee members whose names are mentioned in the remaining allegations to have committed corrupt practices of bribery and treating were indeed the campaign agents of the Respondent.

We now turn to consider the remaining allegations.

In respect of the second allegation it is not denied that $20.00 was given to Valelia Westerlund. What is in dispute here is that the Respondent had no personal knowledge of the giving of the $20.00 and neither did he authorise or consented to it. And secondly the giving of $20.00 was not done with a corrupt intent because Valelia Westerlund was at the time a member of the Respondent’s campaign committee.

Douglas Chong Nee who gave the $20.00 to Valelia Westerlund was a member of the Respondent’s campaign committee. When exactly did Mr Chong Nee join the committee is not clear. What is clear however is that he was not a committee member on the 1^st February 2001 because the committee which existed then were Niko Fidow, Bee Leung Wai, Ray Pereira (as chairman) and the Chan Chui family. Mr Chong Nee testified that he was given $60.00 by Niko Fidow to buy a bag of rice for Valelia Westerlund and for himself to compensate for the bananas he has been donating to the campaign committee and for the time that he and Valelia were volunteering to campaign for the Respondent. The $60.00 was given in the presence of the Respondent inside the Respondent’s two storey-shop at Saleufi and he noticed the Respondent consented when the money was given. As there was shortage of rice he gave Valelia $20.00. He does not remember the day he was given $60.00 but he is sure it was before the commencement of election period. He denies the giving of the $20.00 to Valelia was to induce her to vote for the Respondent. Niko Fidow also said it was about the 1^st February. But the date suggested by the witnesses for the Respondent cannot be accurate because the evidence of the Respondent and Niko Fidow clearly establishes:

(a) the original campaign committee comprises of Niko Fidow, Bee Leung Wai, Ray Pereira and the Chan Chui Family.

(b) the original campaign committee organised public meetings and the last public meting for the Respondent was held on the 1^st February 2001 (which is the day before election period commenced).

(c ) a new campaign committee under the chairmanship of Taupau Lino resumed sitting the week after the last public meeting.

(d) members of the new committee consisted of the old committee and new members.
(e) the new committee originally met once a week and by election week it was meeting four times a week.
(f) Douglas Chong Nee and Valelia Westerlund were some of the new members who attended meetings of the new committee.

If therefore the money was given to Douglas Chong Nee to compensate for the bananas he donated to the meetings of the committee and for the time he spent campaigning for the Respondent, it means that he must have attended several meetings of the new committee before Niko Fidow decided to give him $60.00.

It follows therefore that the assertion by the Respondent’s witnesses that Valelia Westerlund was given $20 by Douglas Chong Nee on or about the 1^st February cannot be correct because the new committee had not existed then. We accept the date asserted by Valelia to be more accurate. In fact Likau Chan Chui the brother of the Respondent who gave the $60 to Niko Fidow told the Court the $60 was given by him to Niko Fidow on the 26^th February.

The Respondent told the Court that the first time he found out about the $20.00 given to Valelia Westerlund was when he received the Election petition. He denied under cross-examination that he was present and consented to when Niko Fidow gave Douglas Chong Nee $60.00. Although he painted a picture of a squeaky clean electioneering campaign we found his testimony questionable and short of being frank. Firstly Douglas Chong Nee, a witness for the Respondent has told the court that the $60.00 was given to him by Niko Fidow in the shop of the Respondent and in the presence of the Respondent; and the Respondent consented to the giving of $60.00 to Douglas Chong Nee. Niko Fidow himself confirmed the $60.00 was given to Douglas Chong Nee inside the Respondent’s shop but he cannot remember whether the Respondent was present when the giving of the $60.00 took place. But Niko Fidow was certain the Respondent in fact was at the shop when Douglas Chong Nee came and was given $60.00. We see no reason to doubt the testimony of Douglas Chong Nee. Douglas Chong Nee also testified that after the elections and after receipt by the Respondent of the election petition Niko Fidow and the Respondent visited Douglas Chong Nee at his place of employment concerning his evidence about the $20.00 he gave Valelia Westerlund. He said Niko Fidow asked him in the presence of the Respondent to say that it was his (Chong Nee’s) own money which he gave to Valelia Westerlund. Niko Fidow and the Respondent admitted paying several visits but on the first visit Douglas Chong Nee was not there. They found him on the second visit and they denied persuading him to say that it was his own money he gave Valelia. But Douglas Chong Nee was spoken to by Niko Fidow and the Respondent at his workplace more than once as confirmed by both Niko and the Respondent – there were at least 4 visits to Douglas Chong Nee’s place of employment. Again we have no reason to doubt the evidence of Douglas Chong Nee that Niko Fidow and the Respondent attempted to persuade Douglas Chong Nee to tell a story that the money he gave Valelia Westerlund was his own money. The obvious inference is that the Respondent and Niko Fidow were attempting to conceal a corrupt motive on their part.

Thirdly under cross examination the Respondent was asked whether after the elections he gave any money to any of his committee members and he denied such actions. He was also specifically asked whether he or any member of his family gave Niko Fidow $500.00 and he denied that as well. But Niko Fidow has in his sworn evidence and as a result of strenuous cross-examination admitted that he was given an envelope by the Respondent and the envelope contained $500.00. Maliko Manuula Penesa another campaigner also admitted he received $300.00. Although we are satisfied that the giving of the $500.00 and $300.00 are not part of the allegations in the petition, and even though in law such payments to his electioneering agents after the elections are not viewed as corrupt it seems saddening and obvious to the Court that the Respondent has deliberately attempted to deny knowledge of what he knew took place to attempt to impress upon the court that he operated a faultless and corrupt free campaign to the extent that he was obliged to give false evidence under oath. We see no reason why Niko Fidow and Maliko Penesa should lie about receiving $500.00 and $300.00 respectively. They were faithful campaigners and they deserved to be rewarded.

Unlike Douglas Chong Nee Valelia did not donate any food to the committee meetings; unlike Chong Nee she was not a regular attendant at the meetings; unlike Chong Nee she did not voluntarily attend the meetings and unlike Chong Nee she was known to the committee to be a staunch supporter of Joe Keil and Jack Netzler while her husband was a supporter of Tautulu Roebeck. She was a reluctant supporter. It was election week and Valelia’s commitment to the Respondent’s candidacy was uncertain. The very clear inference to be drawn is that the real purpose of the payment of money to Valelia was to enlist her support and induce her vote. Her evidence is corroborated by the testimonies of Chong Nee and of Niko Fidow. We therefore conclude that the allegation of bribery contained in the second allegation has been proved beyond reasonable doubt in terms of Section 96 of the Act.

We now turn to consider the third allegation. Valelia Westerlund says that the day after Douglas Chong Nee gave her $20, Niko Fidow came to her home and asked her if Chong Nee had given her $100. She told him she was only given $20. Niko Fidow then encouraged her to join the Respondent’s campaign committee and she was promised to be paid $500 after the elections if she did join. She then left with Niko Fidow to attend the Respondent’s committee meeting. Niko Fidow denies making the offer to Valelia. He did admit going to her home to take her to the committee meeting. He saw no logic in making the offer because Valelia was already a member of the campaign committee; he could not have made the offer because he did not have the money to pay Valelia, and he was not authorised by the Respondent to make such an offer.

We accept that Niko Fidow did visit Valelia on the 27^th to take Valelia to the campaign committee meeting which was also her last meeting. We also accept from the evidence that Valelia attended three campaign committee meetings which means that when Niko Fidow visited her on the 27^th February she had attended only two committee meetings. It reinforces our earlier finding that Valelia was a reluctant committee member who only attended the meetings when committee members like Niko Fidow called in to take her. Her devoted support for Jack Netzler and Joe Keil was well known to the committee members. She was in fact a scrutineer for Jack Netzler and Joe Keil in the last general elections. Despite assertions by the Respondent’s witnesses that Valelia was a member of their committee, there was not a single piece of evidence to indicate what duties or obligations were assigned to her to perform as a campaigner. She admitted under cross examination that she was a member, but she qualified her answer by saying that there was a reason, and the reason was, because the committee members came and took her to the meetings.

In considering the previous allegation, we referred to attempts by Niko Fidow and the Respondent to persuade Douglas Chong Nee to change his evidence in respect of the money ($60) given to him by Niko Fidow in the presence of the Respondent. We also referred to the denials by the Respondent under cross examination of payments of $500 and $300 to Niko Fidow and Maliko Manuula Penesa respectively which we found to be far from the truth. Niko Fidow received $500 after the elections. He must have at least known or was told he will receive that amount or that all or some committee members will receive that amount. To suggest that Valelia made up the allegation and thought up a bribe of $500 which is exactly the amount of money Niko Fidow received is a little beyond comprehension and in our view is too far fetched.

We see no reason why our finding on this allegation should differ from the previous allegation and accordingly we find this allegation proved beyond reasonable doubt.

Since the 4^th, 5^th and 6^th allegations arose out of what took place at Likau Chan Chui’s house at Siusega on the evening of the day before polling day we shall deal with all those three allegations together. On Thursday the 1^st March 2001 (the day before polling day) Maliko Manuula Penesa a campaign committee member for the Respondent, went to Aele, after consultations with Likau Chan Chui (the older brother and campaign committee member of the Respondent) to collect some firewood. Maliko Manuula Penesa went in Likau Chan Chui’s pick-up and he enlisted some Aele boys including Tapuvae Lameta, Kini Malivao, Faafiu Lameta and Tikeri Sio who were voters in the Individual voter to collect firewood. The pick-up returned to Siusega with a full load of firewood and two boys from Aele namely Laavasa Simoo ( who is also a voter in the Individual Voters) and Tikeri Sio. A van was later sent to Aele to collect those who collected firewood as well as others as pre-arranged by Maliko Manuula Penesa. Those who came in the van included the boys who collected firewood as well as Tupufia Faumui, Tokiana Alefosio, Poasa Tasilimu (who were voters in the Individual voter) and Simo Leaia who was not a voter. Upon arrival at Siusega the Aele boys totalling about 10 (and including the two who came in the pick-up) went inside Likau Chan Chui’s house, and thereupon Likau Chan Chui gave $100.00 to Maliko Manuula Penesa who distributed it to the Aele boys as payment for the firewood. Likau Chan Chui also threw a bundle of T Shirts on the floor to be distributed amongst the Aele boys and packets of Rothmans cigarettes were also distributed. There is conflicting evidence as to who gave the cigarettes, but it is not disputed that at least three packets of cigarettes were given in the presence of the two campaign committee members. Food comprising chop suey, soup and bananas was also made available and there was sufficient food for the 10 Aele boys and others present including Likau Chan Chui’s workers.

It is not disputed that $100.00 was distributed; it is also not disputed that T. shirts and cigarettes were given out and it is acknowledged that food was made available. In respect of the $100.00, Likau Chan Chui admits that $10 was given to each Aele boy from Aele by Maliko Manuula Penesa for their firewood. Maliko Manuula Penesa was at Aele when the firewood was collected so that he should and ought to know who collected the firewood. He is after all from Aele himself. But as the evidence unfolds there were boys from Aele who did not collect firewood who were given $10.00. Tupufia Faumui was the only boy from Aele called by the Petitioner and he testified he was one of the passengers taken in the van to Siusega on the night of Thursday the 1^st March 2001. Soon after their arrival at Siusega, Maliko Manuula Penesa gave out $10.00 to each of them. And when he was given $10.00 he was told by Maliko Manuula to “Ekisi le numera muamua”. Tupufia did not collect firewood. Later in the evening Likau Chan Chui gave them bundle of T. shirts which the witness says he distributed amongst themselves, and cigarettes were also distributed. He confirmed he is a voter in the Individual Voter. He also confirmed he was paid $100.00 by one of the candidates to give a witness statement in respect of the events at Siusega on the night of the 1^st march 2001. Although it is suggested by counsel for the Respondent that the payment of $100.00 to this witness was to encourage the witness to give false testimonial, we found his testimonial in matters of substance to be corroborated by the evidence of the witnesses for the Respondent. Some of the Aele boys who testified for the Respondent confirmed that $10.00; T. shirts, and cigarettes were distributed and food was available that night.

Although there is conflicting evidence as to who collected firewood, it is plainly clear however that much less than 10 Aele boys did collect firewood. Faafiu Lameta, Kini Malivao, Tapuvae Lameta who gave evidence for the Respondent confirmed they collected firewood, they are voters and they received $10.00. Tokiana Alefosio, a voter, testified he did not collect firewood and he did not receive $10.00; but Maliko Manuula Penesa who distributed the money said he gave $10.00 to Tokiana Alefosio. We accept that Tokiana Alefosio received $10.00. Simo Leaia who is not a voter and who did not collect firewood also received $10.00. Tupufia Faumui did not collect firewood but he received $10.00. Likau Chan Chui in giving the $100.00 confirmed it was payment for the firewood and it was $10.00 for each boy which confirmed there were at least 10 boys from Aele at his house that night. We are satisfied that $10.00 was given to each of the Aele boys that night despite the denials by some of them who testified. At the same time however we are not satisfied that Maliko Manuula Penesa did say the words “Ekisi le numera muamua” since that part of Tupufia Faumui’s evidence is not corroborated.

With regards the T shirts, Likau Chan Chui admits he gave the boys a bundle of T. shirts. About 8 T. shirts were given. He denies they were new T. shirts because when they were printed some of the T. shirts got stained and he puts them aside for his workers. And the T. shirts he gave out that night were stained, old and some had holes in them. As the boys from Aele were wet he gave them the T. shirts to change into as these boys were brought over to boil the green bananas (saka) for consumption on election day. It had been raining that afternoon when the boys were collecting firewood and when they arrived at Siusega they were wet. Maliko Manuula Penesa also testified it was raining that day but it was not raining when the van with the boys from Aele arrived.

Against the evidence of Likau Chan Chui are the evidence of the boys who collected the firewood and those who received the T. shirts. Laavasa Siimoa in evidence said he and one Tikeri Sio came to Siusega on the pick-up which brought the firewood. It was fine and both he and Tikeri Sio were dry when they arrived at Siusega. Laavasa Siimoa was given a T shirt. Tapuvae Lameta, Kini Malivao and Tokiana Alefosio who also testified for the Respondent all said they were dry. In our view Likau Chan Chui deliberately orchestrated the story that the Aele boys were wet to conceal the true motive for giving the T. shirts. Similarly we do not accept that the T. shirts were old, stained and had holes in them. Tupufia Faumui who distributed the T. shirts did produce to the Court the T. shirt he received. It is not old, not stained and had no holes. In addition Likau Chan Chui under cross-examination confirmed that the T-shirts his workers print were all new. Whether stained or not they are nonetheless new.

In respect of the cigarettes and food we heard an incredible story from one Atonio Misa an employee of Likau Chan Chui who said he receives a weekly salary of $80.00 and spends about $68.00 per week on cigarettes by purchasing a carton of Rothmans and two packets of pocket edition cigarettes. He says he smokes pocket edition cigarettes but he is obliged to buy a carton of Rothmans because his father from Mulivai Safata who smokes Rothmans visits him regularly. He had 3 packets of Rothmans that night and in his affidavits he said he gave the 3 packets to the Aele boys while doing the saka. But the boys from Aele started smoking the cigarettes well before making the saka. The sakas were not done until after midnight and the boys were smoking, playing cards and watching TV before doing the sakas.

This same witness has also told the court that the food given out that night was cooked by him at 9 o’clock in the morning for himself and other workers thus giving the impression he usually cook and feed his fellows workers with the same kind of food and of such quantities to adequately feed the extra 10 people from Aele that night. Again we take the view that the story told by this witness has been concocted to hide the true motive behind such generous hospitality.

We cannot escape to attach significance to the fact that the voters named in allegations 4, 5 and 6 as well as others from Aele were fed, given monies, t shirts and cigarettes on the eve of polling day. They stayed all night at Siusega and were taken direct to the polling booths from Siusega. It was obviously a move on the part of Likau Chan Chui and Maliko Manuula Penesa as campaign agents designed with a corrupt intent to win and maintain the support of the voters. We find the allegations 4, 5 and 6 proved beyond reasonable doubt.

In respect of the last allegation, the Petitioner called one witness Tusiga Tualafo of Aele who told the Court that on Election Day after casting his vote at the Marist Brothers School, he and others were driven to Chan Chui’s place at Saleufi where they were given food. After 6 in the evening he and a group of people from Aele were still gathering at Saleufi and Likau Chan Chui gave the group $200 to buy some bottles and to go home. Tusiga Tualafo received $10 and went home.

The Respondent and his witnesses have explained the reason for the giving of the $200. People have been coming to Saleufi after casting their votes to eat and left for their homes. But there was a group from Aele who were still hanging around labelling themselves as the Tapuaiga. It has been a long day and members of the Respondent’s family had stayed up late the night before to prepare food for the voters as well as other preparations for the polling. It was after 6pm (and not 2 clock as alleged in the Petition) that members of the Respondents campaign committee decided to ask this gathering in a diplomatic way to disperse so that the committee members and the Respondent’s family can rest. It was then decided to give them $200 with a request to go home and listen to the election result at their homes. We have considered the evidence and we accept the explanation given by the Respondent and as a result we are not satisfied beyond reasonable doubt that the giving of $200 was corruptly done. This allegation therefore fails.

The order of the Court is as follows:

(i) In view of our findings that four allegations of bribery and 1 allegation of treating have been proved against the Respondent, we declare the Election of the Respondent void under Section 112 of the Act.

(ii) The Respondent is ordered to pay costs of $500 to each of the three Petitioners.

The Court will report its findings to the Honourable Speaker.

Solicitors:
Sapolu Lussick Law Firm for the Petitioners
Leung Wai Law Firm for the Respondent