Petaia v Pa'u [2007] WSSC 19 (15 January 2007)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

IN THE MATTER: of the Electoral Act 1963 & Amendments

AND:

IN THE MATTER: of the Territorial Constituency of Fa’asaleleaga No.2

BETWEEN

PAPALI’I SAMUELU PETAIA
of Sapapali’i, candidate for election.
Petitioner

AND

LETOA RITA PA’U
of Fusi Safotulafai, a candidate for election.
Respondent

Coram: Honourable Chief Justice Sapolu

Honourable Justice Vaai

Counsel: T K Enari for the Petitioner
T R S Toailoa for the Respondent

Hearing: 07, 08, 09, 10, 14 November 2006
Submissions: 20 November 2006
Conclusions: 4 December 2006
Decision: 15 January 2007

JUDGMENT OF THE COURT DELIVERED BY JUSTICE VAAI

A by election was held in the Territorial Constituency of Faasaleleaga No. 2 on the 22nd September 2006 to elect a new member of Parliament for that constituency. On the 26th September 2006 the Electoral Commissioner officially declared the election result as follows:

Letoa Rita Pa’u 540

Matautia Isaia 39

Namulauulu Netina 83

Namulauulu Motutoa Vavae 111

Papalii Samuelu Petaia 530

Tauiliili Tutaia 193

The respondent Letoa Rita Pa’u was accordingly declared and reported as duly elected. The petitioner who polled the second highest number of votes filed a petition seeking to invalidate the election of the respondent pursuant to section 112 of the Electoral 1963 ("the Act"). That section provides:

112. Avoidance of election of candidate guilty of corrupt practice

Where a candidate who has been elected at any election is proved at the trial of an election petition to have been guilty of any corrupt practice at the election, his election shall be void.

At the commencement of the trial 2 counts of bribery were withdrawn; the remaining 6 allegations of bribery on which the petitioner proceeded are as follows:

"The petitioner alleges that the Respondent was guilty of corrupt practices in that by herself and /or by her father and agent Pa’u Sefo, she committed bribery as follows:

(i) on or about the 12th day of September 2006 at Sapapalii, did give $4,000 to the village of Sapapalii for the purposes of inducing members of that village to vote for the respondent.

• (ii) on or about the 20th day of September 2006 at Sapapalii gave the women’s group of Sapapalii $100 with intent to induce members of that group to vote for the respondent.
  

(iii) on or about the 3rd day of September 2006 at Fusi Safotulafai together with the respondent gave $1,000 to members of the Roman Catholic congregation of Fusi Safotulafai for the purpose of inducing the said members to vote for the respondent.

(iv) on or about the 18th day of September 2006 at Lotopa gave $100 to Galitele and her husband Kiki for the purpose of inducing the said electors to vote for the respondent.

(v) between the 1st and the 21st day of September 2006 at Vaimea gave Sa Tuua and his wife Sala the sums of $100 and $30 respectively for the purpose of inducing the said electors to vote for the respondent.

(vi) between the 18th and 22nd day of September 2006 at Fogapoa gave $20 to Tausoa for the purpose of inducing that elector to vote for the respondent.

The 3 allegations of corrupt practice of treating were put as follows:

The Petitioner alleges further that the respondent by herself and /or by her agent and father Pa’u Sefo committed treating for the purposes of inducing electors to vote for the respondent at the said by election as follows:

(i) on or about the 18th day of September 2006 at Lotopa gave Galitele and her husband Kiki a bag of rice.

(ii) between the 1st and 21st September 2006 at Vaimea gave Sa Tuua a bag of rice; and

(iii) between the 25th day of August and the 8th day of September 2006 at Apia and Vaimoso did supply food and drink to the Lupe Siliva cricket team of Sapapalii.

The petitioner seeks orders by the court that:

(a) he should be declared and reported as the duly elected representative for the territorial constituency of Fa’asaleleaga No. 2; or

(b) that the respondent was not duly elected and her election was void and a new election should be ordered.

In response the respondent pursuant to section 111 (6) of the Act made allegations in a document entitled "Replies by the Respondent and Counter-Petition against Petitioner" and seeks similar orders against the petitioner namely:

(a) On or about 18 August 2006 at Sapapalii, the petitioner gave a donation of $100 to Lupe Siliva cricket team for the purpose of inducing members of the said cricket team to support his candidacy and vote for him.

(b) On or about 18 September 2006 at Salelologa, the Petitioner gave Fuavasa Enese $30 (and urging the said Fuavasa Enese to urge voters to vote for him);

(c) On a Monday in August 2006 during a meeting of the Petitioner’s Election Committee, the Petitioner also gave $20 to Fuavasa Enese, for the purpose of inducing the said Fuavasa Enese to vote for him;

(d) On the same occasion referred to in (c) above, the Petitioner also paid for the costs of the Taxis that brought and dropped off the said Fuavasa Enese and another (namely Logo Tipeni) to induce the said electors to vote for him:

(e) That on every Monday leading up to the bi-election at regular meetings of the Petitioner’s Election Committee, the Petitioner gave out to members of his Committee monies, including Logo Tipeni who on every of those occasions was given $20 by the Petitioner, for the purpose of inducing Logo Tipeni to vote for the Petitioner;

(f) That on every of the occasions referred to in paragraph (e) above the Petitioner had also paid for the costs of a taxi to bring the said Logo Tipeni to vote for the Petitioner;

(g) That in or about the 6 of September 2006 at the "Ifi Lele" the Petitioner bought 6 bottles of beer for Masaga Visesio Tauiliili Miti and Papalii Autu Kone Penitila for the purpose of inducing them to vote for the Petitioner;

(h) That on the 14th of September 2006 at the Ifi Lele" the Petitioner also bought 2 bottles of beer for Masaga Visesio Tauiliili Miti and Papalii Kone Penitila for the purpose of inducing them to vote for him.

(i) That on or about the 10th of December 2005 the Petitioner gave a cheque of $300 for the members of the Tapueleele LDS Church, for the purpose of inducing such members to vote for the Petitioner.

When considering each allegation in the petition (or counter petition) we bear in mind that the petitioner (or counter petitioner) bears the onus of proving the respondent’s guilt and the required standard of proof is beyond reasonable doubt: in re Election Petition: Safata Territorial Constituency; Pule Lameko v Muliagatele Vena (1970-1979) WSLR 239, 241

To be guilty of the corrupt practices of bribery and treating the petitioner must prove that the respondent intended to induce the voters to vote other than in accordance with their conscience: Gagaifomauga No. 2 Territorial Constituency (1960-1969) WSLR 169 at 177; or gave with the intention of influencing the election, either generally, as by acquiring popularity, or with the intention of influencing a particular voter to vote or refrain from voting: Hereford case (1869) 20 LT 405; if in any case looking at all the circumstances, the reasonable and probable effect ... 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 effect should follow: In the Wairau Election Petition (1912) 2 NZLR 321; re Election Petition Anoama’a East Territorial Constituency: Faamatuainu Talamailei v Savea Sione (unreported Misc 6007; (28/7/1982). Not only must the subjective intent of the respondent be corrupt but the methods employed must also be corrupt.

Agency in election

Since the allegations in the petition involve the alleged giving of monies, food and drinks by the father of the respondent, so that the respondent is guilty of corrupt practices of bribery and treating by the agency of the father, it is necessary to consider first the law with regard to agency in election matters before we consider the allegations in the petition and counter petition. In The Bay of Islands Election Petition [1915] NZGazLawRp 60; (1915) 34 NZLR 578, Hosking J at page 585 said:

"Payment for the services of the agent is not necessary in order to render the candidate responsible for the agent’s acts. What has to be shown is that the candidate entrusted the person alleged to be his agent with the doing of some work to promote the election, or consciously adopted the acts of such person to that end."

Hosking J went on to cite with approval earlier English authorities. We refer to some of them:

In the Aylesbury case 4OM & H. 59, 62: it is stated:

"Any person whom the candidate puts in his place to do a portion of his task – viz to procure his election as a Member of Parliament – is a person for whose acts he would be liable."

In The Norwich case: 1 OM & H.8, at 10 Mr Barton states the principle thus:

"The law of agency which would vitiate an election is utterly different from that which would subject a candidate to a penalty or an indictment and the question of his right to sit in Parliament has to be settled upon an entirely different principle. Mr Justice Blackburn, Mr Justice Milles and myself unanimously came to the conclusion that any person authorised to canvass was an agent and it does not signify whether he has been forbidden to bribe or not. If the candidate has told him honestly, Do not bribe, I will not be responsible for it, if bribery was committed that bribery would affect him."

In The Harwich case 2O’M & H 61, 70; the law is stated thus:

"As regards the seat the candidate is responsible for all the misdeeds of the agent committed within the scope of his authority, although they were done against his express directions and even in defiance of them ... . The authority may be actual or it may be implied from circumstances. It is not necessary in order to prove agency to show that the person was actually appointed by the candidate. If a person not appointed were to assume to act in any department of service as election agent, and the candidate accepted his services as such he would thereby ratify the agency, so that a man may become the agent of another in either of two ways, by actual appointment or by recognition and acceptance."

The principles of the law of agency in election may be summarised as follows:

(a) A person may become an agent in either of two ways:

• (i) by actual appointment or employment.
• (ii) by recognition and acceptance.
  

(b) In determining the question of agency all the circumstances must be taken together.

(c) Entrusting to an agent of acts to be done may be in express terms or arise by implication.

(d) The candidate is responsible for all the misdeeds of the agent committed within the scope of his authority although done against his express directions and even in defiance of them.

The same principles were adopted by this court in Jacob John Olaf Jack Netzler Others v Vang Sung Chan Chui (unreported 31/5/01) and by Donne CJ in Re Mitiaro Election Petition (1979) 1 NZLR S1.

We will deal with the allegations in the petition.

Allegation (1) of bribery: Giving of $4,000 to the village of Sapapalii.

It is accepted $4,000 was given by Pa’u Sefo in the company of the respondent at a meeting of the village of Sapapalii on the 12th September 2006. Before giving the money Pa’u Sefo delivered a thank you speech for the support of Sapapalii village rendered to Pa’u Sefo in the general elections held in March 2006. Pa’u Sefo won the seat but subsequently lost it as a result of a court ruling on an election petition filed against him by one of the unsuccessful candidates. At the conclusion of his speech he told the meeting that his daughter, the respondent, was a candidate in the forthcoming by election. Before attending the meeting the respondent and her father have been visiting families within the electorate to familiarise the electors with the respondent. For some of the matais of Sapapalii who were at the meeting this was the first they set eyes on the respondent.

It is argued by the respondent that the giving of the $4,000 was made without a corrupt intent to induce the vote of those present at the meeting to vote for the respondent; it was made in accordance with normal customary courtesies and in accordance with the long standing special relationship (feagaiga) between the village of Sapapalii and Pa’u Sefo. The real meaning and significance of the feagaiga (which the petitioner maintained never existed) has no persuasive impact in determining whether a corrupt intention did exist principally because the feagaiga seemed to exist and come into play only on the occasions when the village or groups of people from Sapapalii travel to Apia and stay with Pa’u Sefo and customary courtesies and exchanges are made before the visitors return to Sapapalii. The giving by the respondent’s father of monies to Sapapalii village the respondent say, was Pa’u Sefo Pa’u’s expression of thanks for the support the village gave him in the general elections. But the general elections were held in March and the giving of $4,000 was on the 12th September 2006, some 6 months after the occasion, and 10 days before the by-election; and during the delivery of the same speech before handing over $4,000 the respondent was introduced to the meeting as a candidate in the forthcoming by-election. The nail was driven home before the respondent and her father departed. If the giving of $4,000 was for the mixed motives of thanking the village for their past support and to promote the candidacy of the respondent in the forthcoming by election, this court ruled in Muagututagata Peter Ah Him v Maulolo Tavita Amosa (unreported 10/05/2001):

"... we are of the view, for the reasons already given, that in the circumstances of what took place, compliance with Samoan custom was not the only motive, or the dominant motive, behind the presentations. It would be sufficient for the purpose of establishing the intent required for bribery and treating in terms of the Act if one of the motives which accompanied the presentation of money or food was to induce electors to vote for the respondent: See re Mitiaro Election Petition (1979) 1 NZLR S1 at S12.

In re Election Petition Aleipata (Itupa i lalo) Territorial Constituency, Tafua Kalolo v Letiu Tamatoa (1970-1979) MSLR 247 Nicholson CJ referred to Parker’s Powers Duties and Liabilities of an Election Agent and Returning Officer and Parliamentary Elections in England and Wales 6th edition at page 288 on the subject of charitable gifts:

"The imminence of the election may have a considerable effect upon the decision whether or not a particular act of charity amounts to bribery. Thus it was said that a charitable design might be unobjectionable so long as no election is in prospect, if circumstances alter and an election becomes imminent the candidate if he then goes on with that design will do so at the risk of being found guilty of bribery."

And in R v Gross (1946) O.R 1 at page 9 Roach J.A. said "the word" corruptly (in section 504 (2)(b) of the Canadian Criminal Code):

"sounds the keynote to the conduct at which the section is aimed. The evil is the giving of a gift or consideration, not bona fide but mala fide, and designed, wholly or partially for the purpose of bringing about the effect for bidden by the section."

A lot has been said on the issue of Samoan custom when indeed what is really relevant is the Samoan tradition of respect and reciprocal hospitality. Unfortunately it seems to us that some candidates and their agents have and are continually attempting to convert genuine Samoan hospitality and respect into modern day electioneering custom, so that what are sometimes euphemistically labelled customary gifts and courtesies are nothing more than a subtle form of bribery designed to veil the corrupt purpose of inducing the votes of the recipients. We are satisfied that one of the motives if not the dominant motive for the giving of the $4,000 was to promote the candidacy of the respondent. The amount is not an insignificant one, in fact some of the recipients received $100 each and the by election was 10 days away.

This leads us to consider the next question, namely whether Pa’u Sefo Pa’u was the agent for the respondent when he gave the $4,000 to the village of Sapapali’i. In his own testimony under cross-examination it was his duty as the father of the respondent to assist her with her candidacy; they were on a familiarisation trip in the district as the respondent was not known by most electors in the district. They visited families and attended church gathering together; the father did the talking and the giving of monies and food whilst the respondent watched in silence and sanctioned all the father was doing. In every sense of the word he was the agent. In fact we can confidently infer from the undisputed evidence that the father dictated and steered the drive to promote the election of the respondent.

We accordingly conclude that the $4,000 was given to the village of Sapapalii for the purpose of inducing members of the village to vote for the respondent.

Allegations (ii) of bribery: On or about the 20th day of September 2006 at Sapapalii, gave the women’s group of Sapapalii $100 with intent to induce members of that group to vote for the respondent.

It is common ground that the Sapapalii women’s have working bees every Saturday morning to clean and tidy the church and its grounds in preparation for worship on Sunday; it is also common ground that Pa’u Sefo gave $100 on Saturday morning the 20th September 2006 for refreshments and it is common ground that the members if not all are eligible voters. Pa’u Sefo told the court the giving of the money was without a corrupt intent; he told the women the money was not for the ballot but for their refreshment. Despite what he said when he gave the $100 we have concluded that on the established facts Pa’u Sefo had a corrupt intent when he gave the $100. He cannot be allowed to say "I did not intend to bribe" when looking at what he did as well as the surrounding circumstances there is only one conclusions to draw and that is he did that which he said he did not intend to do. Pa’u Sefo has never before given monies to the Sapapalii women’s group; it was only 2 days away from polling which meant he was in the electorate doing last minute electioneering for the respondent.

Since we have already ruled that Pa’u Sefo was the election agent, the respondent is liable for the corrupt act of her agent and this allegation is accordingly proved.

Allegation (iii) of bribery: On or about the 27th day of August 2006 at Fusi gave $1,000 to members of the Roman Catholic Congregation for the purpose the members of the congregation to vote.

It is not disputed that both the respondent and her father attended the Sunday lunch (to’onai) of the church members after church service; it is also undisputed that the $1,000 was given by Pa’u Sefo; it is also undisputed other members of the congregation donated gifts such as alcoholic beverages. What is in dispute is whether the presentation of $1,000 was made with the corrupt intent. We conclude that intent was present when the presentation was made. Sunday the 27th August 2006 is commonly referred to as sulufaga, when members of the congregation give monetary donations during the church service and gifts during the to’onai which follows the church service. Gifts given at the to’onai are announced together with the food contributed by the members and the gifts are spent consumed or distributed by the chairperson at his absolute discretion. Gifts given during the church service are given to the priest; no one knows the amount and no one questions what the priest does with the money.

We accept that in previous years Pa’u Sefo presented gifts of substantial amounts of monies; he could not have been accompanied by the respondent on those occasions because at the to’onai on the 3rd September 2006 a number of those present did not know the respondent until they were told of her candidacy in the forthcoming by election. There is conflicting evidence as to whether Pa’u Sefo introduced the respondent as a candidate. We prefer the evidence of the witnesses for the petitioner that Pa’u Sefo did introduce the respondent as a candidate. At least two witnesses for the respondent stated in their affidavits that at the conclusion of the to’onai Pa’u Sefo gave $1,000 and thanked the congregation for their support in the past election. Pa’u Sefo himself under cross examination confirmed he did thank the congregation for their support. The by election was some 19 days away and $1,000 is a substantial amount compared to the value of the beer, spirits, tinned fish and tinned corned beef, donated by others. Charity was not the only motive behind the giving of $1,000. As already stated it would be sufficient for the purpose of establishing the intent required for bribery in terms of the act if one of the motives which accompanied the presentation of money was to induce the vote. We find this allegation proved and the respondent is guilty of bribery.

Allegation (iv) of bribery and

Allegation (i) of treating: On or about the 18th September 2006 at Lotopa gave $100 and a bag of rice to Galitele and her husband Kiki for the purpose of inducing the said electors to vote for the respondent.

Galitele Tauiliili told the court that on the 18th September 2006 Pa’u Sefo came in a vehicle with two boys. One of the boys carried a bag of rice onto her land and left it on the grass at her request. Her husband Kiki who was doing chores behind their house walked to the gate at the front and talked with Pa’u while Galitele was watching from infront of the house. After Pa’u Sefo left her husband Kiki came to her with $100 cash in $50 notes.

Pa’u Sefo admitted visiting and talking with Kiki but denied giving $100 and a bag of rice. He told the court he and two colleagues were visiting a member of his family in the same area when he saw Kiki working in his garden by the side of the road. He got out of the car and talked with Kiki for a few minutes while the other two remained in the car. They briefly and left. Oloapu Fa’asolo confirmed that Pa’u Sefo talked briefly to Kiki and no one else got out of the car; no bag of rice or monies were given and Galitele was not there.

If the bag of rice and $100 were in fact given it would tantamount to bribery and treating as there was no lawful excuse for the giving of food and money to two electors a few days before the by election. We have assessed the credibility of he witnesses to determine the reliability of their testimony upon the totality of the evidence. We have drawn proper inferences upon the tests appropriate to criminal proceedings. If there is a reasonable doubt then the allegation must fail. By accepting the bag of rice and money which can only be described as a bribe Galitele must be treated as an accomplice. It is permitted but dangerous to convict on an uncorroborated evidence of an accomplice. We accept the meeting with Kiki was deliberate and not accidental to secure support for the respondent; we also accept Galitele saw Pa’u Sefo talking to Kiki and money and a bag of rice was given. Her evidence was compelling in veracity and was not shaken under cross examination. The allegations of bribery and treating are proved and the respondent is guilty by the agency of her father.

Allegation (iv) of bribery; and

Allegation (ii) of treating: Between the 1st and 21st day of September 2006 at Vaimea gave Sa Tuua and his wife Sala sums of $100 and $30 respectively and a bag of rice for the purpose respectively and a bag of rice for the purpose of inducing the said electors to vote for the respondent.

It is accepted that on the 13th September 2006 the respondent and her father Pa’u Sefo visited Tu’ua an elderly elector at Vaimea; they did so because Salu an elector and daughter of Tuua visited Pa’u Sefo and told Pa’u Sefo that Tuua wanted to meet. The only persons present were Tu’ua and his daughter Salu, the respondent and Pa’u Sefo, and the only reason Tu’ua wanted to meet with Pa’u Sefo was to look at the face of Pa’u Sefo whom he hasn’t seen since Pa’u Sefo was a young boy. Salu confirmed she did visit Pa’u Sefo and told him that Tu’ua wanted to meet with him. The meeting was very brief and neither money nor rice was given. But Uimaitua Nofoaga, the daughter in law of Salu told the court that her mother in law Salu lives permanently in Savaii and was visiting when Pa’u Sefo and the respondent came to the house on the 13th September 2006. The meeting was brief; Pa’u Sefo introduced the respondent as the candidate in the by election; the respondent then gave $100 to Tu’ua and $30 to Salu as well as the bag of rice on instructions from Pa’u Sefo. Uimaitua is not an elector and she witnessed the giving of money and rice from behind the house. Again if the money and rice were indeed given then corrupt practices of bribery and treating were committed. If Pa’u Sefo and Salu were both correct that Tu’ua wanted to meet with Pa’u Sefo, no logical explanation has been given or could be given why the respondent tagged along to the meeting. It is difficult to comprehend why the old man Tu’ua did not feel the urge to meet with Pa’u Sefo earlier when Pa’u Sefo was a candidate in the 2001 and 2006 general elections. We doubt that the meeting on the 13th September 2006 was at the request of Tu’ua. We accept the evidence of Uimaitua Nofoaga and both allegations of bribery and treating are proved.

Allegation (vi) of bribery: That between the 18th and 22nd September 2006 at Fogapoa gave Tausoa $20 for the purpose of inducing that elector to vote for the respondent.

Ioane Laufiso a 42 year elector told the court that on the 20th September 2006 Pa’u Sefo and Oloapu Faasolo came in a vehicle and gave him $20 to give to his mother Tausoa also an elector in Faasaleleaga No. 2 Constituency. Bearing in mind the criminal standard of proof the evidence of this witness on its own falls far short of proof beyond reasonable doubt and the allegation should be dismissed. In the first place there is no evidence or slightest suggestion that Tausoa knew about the $20 let alone receiving the $20; and secondly there is the evidence of Toeefa Anufe a female elector from the village of Tuasivi that she accompanied Pa’u Sefo and no money was given.

Remaining allegation of treating: Between the 25th day of August and the 8th day of September at Apia did supply food and drink to the Lupe Siliva cricket team of Sapapalii.

The Lupe Siliva cricket team from the village of Sapapalii travelled to Apia to compete in the cricket competition; they stayed at Vaimoso village for more than a week. It is not denied that Pa’u Sefo did visit the team and gave them food almost on a daily basis because he said he has been doing it since 2001 when the cricket team did travel to Apia and stayed with him. It was only in 2003 that the cricket team changed venue to Vaimoso but Pa’u Sefo continued to support the team through provision of food and cooking materials and for the cricket competition in 2006 Pa’u Sefo continued his annual support for the team and paid the entry fee of $350. It is argued by the respondent that Pa’u Sefo did not have the corrupt intention since it was nothing knew for him to support the team; whether or not there is an election Pa’u Sefo was always there for the team. We agree that charitable gift to voters may be unobjectionable but when an election is imminent the candidate runs the risk of being found guilty of bribery. As stated in Halsbury’s Laws of England 4th edition vol. 15 paragraph 774:

"The distribution of charitable gifts to voters had always been allowed. On the other hand what are called charitable gifts may be merely a specious and subtle form of bribery ...

The imminence of an election is an important factor to be taken into consideration in deciding whether a particular act of charity amounts to bribery".

It is not denied that on the afternoon of the 6th September 2006 the Lupe Siliva team won the cricket competition; it was a time for celebration, and the Lupe Siliva team did celebrate at Vaimoso. Pa’u Sefo donated bottles of spirits for the celebration, he also invited the team to his Seana nightclub for more drinks. Those who went drank as much as they wished; it was after all free of charge. In our view the provision of drinks both at Vaimoso and at the Seana nightclub exceeded what is usually regarded as innocent provision of normal hospitality. Most if not all of the members of the cricket team who consumed alcohol at Vaimoso and Seana bar were eligible voters. The only inference to be drawn is that from the facts is that Pa’u Sefo intended to gratify the appetites of the team members and influence their votes; it was a drinking party of considerable magnitude. The allegation of treating is sustained.

We now proceed to consider the allegations in the counter petition namely:

(a) On or about 18 August at Sapapalii, Savaii, the Petitioner gave a donation of $100 to the Lupe Siliva cricket team for the purpose of inducing members of the said cricket team to support his candidacy and vote for him;

(b) On or about 18 September 2006 at Salelologa, the Petitioner gave Fuavasa Enese $30 (and urging the said Fuavasa Enese to urge voters to vote for him);

(c) On a Monday in August 2006 during a meeting of the Petitioner’s Election Committee, the Petitioner also gave $20 to Fuavasa Enese, for the purpose of inducing the said Fuavasa Enese to vote for him;

(d) On the same occasion referred to in © above, the Petitioner also paid for the costs of the Taxis that brought and dropped off the said Fuavasa Enese and another (namely Logo Tipeni) to induce the said electors to vote for him;

(e) That on every Monday leading up to the bi-election at regular meetings of the Petitioner’s Election Committee, the Petitioner gave out to members of his Committee monies, including Logo Tipeni who on every of those occasions was given $20 by the Petitioner, for the purpose of inducing Logo Tipeni to vote for the Petitioner;

(f) That on every of the occasions referred to in paragraph (e) above the Petitioner had also paid for the costs of a taxi to bring the said Logo Tipeni to the meeting and to take him back to his home, for the purpose of inducing Logo Tipeni to vote for the Petitioner;

(g) That in or about the 6 of September 2006 at the "Ifi Lele" the Petitioner bought 6 bottles of beer for Masaga Visesio Tauiliili Miti and Papalii Autu Kone Penitila for the purpose of inducing them to vote for the Petitioner;

(h) That on the 14th of September 2006 at the "Ifi Lele" the Petitioner also bought two bottles of beer for Masaga Visesio Tauiliili Miti and Papalii Autu Kone Penitila for the purpose of inducing them to vote for him.

(i) That on or about the 10th of December 2005 the Petitioner gave a cheque of $300 for the members of the Tapueleele LDS Church, for the purpose of inducing such members to vote for the Petitioner.

Allegation (a): Donation of $100 to the Lupe Siliva cricket team on the 25th August 2006.

On the evening of the 25th August 2006 the Lupe Siliva hold a fundraising dance (tausala competition) at Sapapalii to raise funds to finance their trip to Apia to compete in the cricket competition. Only 4 formal invitations were issued to 4 groups within the village. About $6,000 was raised; $2,300 from the 4 invitations and the balance was by donations from the villagers. Sapapalii village council met before the tausala competition and it was resolved that individual matais should support the cricket team tausala competition; the village pastor as well also urged his congregation to support the fundraising activity. The petitioner donated $100. His donation was announced and the respondent alleges it is bribery because the donation should have been in the name of a cricket player from the Petitioner’s family. It is alleged that the petitioner deliberately made the donation under his name to induce those present to vote for him since by that evening his candidacy in the forthcoming by election was already made public. Members of the cricket team who gave evidence for the respondent told the court that the tausala competition was organised so that each member of the cricket team will have a tausala and while the tausala was dancing members of his family and supporters donate monies. That procedure was not complied with by the petitioner; the respondent alleges the non-compliance was a deliberate attempt by the petitioner to have his name announced to promote his candidacy.
The petitioner is the holder of the Papalii title and he was present at the village meeting which resolved to support the tausala competition. When the petitioner made his donation before he departed for another engagement two donations have been announced. It is not the donation itself which attracted the complaint, it is the manner it was made; it was not a substantial donation. Although the organisers of the tausala competition knew of the procedure to be followed in the tausala competition, the villagers of Sapapalii including the petitioner may not have been told. We are not satisfied beyond reasonable doubt that the petitioner had a corrupt motive and the allegation is must fail and is dismissed.

Allegation (b)(c) (d)(e)(f): refer to the giving of monies by the petitioner to members of his campaign committee. For convenience we will consider these 5 allegations together.

Other than allegation (b) the petitioner admits making payments alleged in allegations (c)(d)(e) and (f). We will return to allegation (b) after dealing with the others first.

In preparation for the pending by election the petitioner regathered the same campaign committee he had for the general elections held in March 2006 in which he unsuccessful. He is a doctor by profession; he operates a clinic at the Bluebird Mall at Salelologa village which is outside the territorial constituency of Fa’asaleleaga No. 2. Meetings of the petitioner and his campaign committee were held at his clinic every Monday at 5 o’clock in the afternoon every week leading up to the by election. Fuavasa Enesi and Logo Tipeni from the village of Tapueleele were members of the committee both for the general elections in March 2006 and the by election in September 2006. Members of the committee made their own travel arrangements to the meetings and after the meetings except for the two members from Tapueleele village who because of the distance from Salelologa transport was usually arranged for them. At the conclusions of each meeting the petitioner gave each committee $20 to recoup their travel expenses. We accept that at the conclusions of the meetings the only form of transport available then is taxi; the return taxi fare to Tapueleele is $30; the return fare to other villages of the constituency is about $20. We also accept that at least one committee member who usually went to the meeting in his own vehicle sometimes did not accept the $20 when he had sufficient petrol. Two committee members from Tapueleele changed allegiance at the last minute when the village council of Tapueleele decided to support the respondent; the change of heart was not known by the petitioner. We disagree with suggestions by counsel for the petitioner that members of the campaign committees cannot be bribed or inducement of their votes is not necessary, as they have already shown their support for the petitioner by voluntarily becoming members of his campaign committee. In fact if we find that the payments of $20 or more at the conclusions of the committee meetings was partly for the purpose of securing or maintaining the support of the committee members then a conclusion of a corrupt motive is appropriate. We are however left in a reasonable doubt after consideration of the evidence whether the petitioner had a corrupt motive when he distributed monies to his committee members. Payments of $20 may at times have exceeded normal taxi fares but they cannot be termed as suspiciously excessive. The benefit of the doubt must favour the petitioner and the allegations (c)(d)(e) and (f) are dismissed.

In relation to allegation (b) the petitioner told the court he made the payment of $30 not on the 18th September 2006 as alleged by Fuavasa but on the 3rd October after the by election as confirmed by the entry in his diary. We accept that it was not by counsel for the petitioner to Fuavasa under cross examination that the payment was made on the 3rd October 2006 but at the same the petitioner in his affidavit filed said that the payment was made on the 3rd October 2006. We consider the evidence of the witness Fuavasa unreliable and we cannot find the allegation proved.

Allegations (g) and (h): Giving of 6 bottles of beer and 2 bottles of beer on the 6th of September and 14th September respectively to Masaga Visesio and Papalii Autu

Masaga Visesio told the court that he was drinking with Papalii at the Ifilele bar on the 6th and 14th September 2006 when the petitioner came and bought them beers. In response to the allegation the petitioner admits he always buy a beer for his drinking mate Papalii Nautu and if Papalii is with a friend he will also shout a beer for the friend. He does not know Masaga Visesio and if he was with Papalii he probably shouted him a beer but not on the 6th September because according to his diary he was in Apia, and on the 14th he was canvassing the district with his committee. Masaga Visesio did not impress the court as a reliable witness; he is an accomplice and it is dangerous to convict on his evidence alone. We find the allegation not proven.

Allegation (i): That on or about the 10th December 2005 the petitioner gave a cheque of $300 for the members of the Tapueleele LDS Church for the purpose of inducing such members to vote for the petitioner.

This allegation even if proven was an offence committed in the period leading up to the General Elections held in March 2006. We agree with counsel for the petitioner that the election petition and counter petition can only question the results of the by election held in the 22nd September 2006 and accordingly only the events which occurred during the period leading up to the same by election can be looked into. Sections 104, 105 and 106 of the Act provides the methods and procedure for challenging an election by the filing of an election petition by a candidate who polled not less than 50% of the total number of votes polled by the person elected; the petition to be filed within 7 days after public notification of the results and served within 7 days and in allocating time for the hearing of the petition that court pursuant to section subsection 7 of section 111 of the Act shall give priority to the petition over all matters before the court. The petition therefore can only challenge the events leading up to a particular election after notification of the results of that election. The spirit of part X of the Act dealing with election petitions is for petitions to be filed promptly, served promptly and dealt with promptly. If the giving of the $300 in December 2005 was accompanied by a corrupt intent then the giving was for the purpose of inducing the recipient electors to vote for the petitioner in the March 2006 general electors and the allegation should have been made and challenged through an election petition to be filed 7 days after the declaration of the results of that election. And since the respondent was not a candidate then she was not fit to pursue a petition.
The allegation is dismissed.

In view of our findings we make the following orders:

(a) We declare the election of the respondent void under Section 112 of the Act and a by-election is ordered.

(b) We will report our findings to the Honourable Speaker pursuant to section 119 of the Act.

(c) The respondent shall pay costs of $5,000 to the petitioner.

Honourable Chief Justice Sapolu
Honourable Justice Vaai

Solicitors

Kruse Enari & Barlow Barristers & Solicitors for the Petitioner

Toa Law for the Respondent