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Sio v Patea [2011] WSSC 51 (13 May 2011)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU


IN THE MATTER:
of the Election Act 1963 and Amendments


AND:


IN THE MATTER:
Concerning the Territorial Constituency of
SAGAGA LE FALEFA


BETWEEN:


LOAU SOLAMALEMALO KENETI SIO
of Faleula, a candidate for election
Petitioner


AND:


TUISA TASI PATEA,
of Vailima and Lotosoa Saleimoa a candidate for election
First Respondent


AND:


THE ELECTORAL COMMISSIONER of Apia
Second Respondent


Coram: Honourable Justice Vaai
Honourable Justice Nelson


Counsel: D Clarke for Petitioner
KT Ainuu for First Respondent
D Kerslake and S Lafaialii for Second Respondent


Hearing: 27, 28 April and 3 May 2011
Submissions: 5 May 2011
Decision: 13 May 2011


DECISION OF THE COURT


  1. After the General Elections for the Legislative Assembly of Samoa held on the 4th March 2011, the Electoral Commissioner (Second Respondent) by public notice declared the official results for the territorial constituency of Sagaga Le Falefa in which the Petitioner and the Respondent polled the following votes.
Loau Solamalemalo Keneti Sio
1115
Tuisa Tasi Patea
1178

Tuisa Tasi Patea the First Respondent was accordingly declared as the duly elected Member of Parliament for the Sagaga Le Falefa Territorial Constituency.


  1. Loau Solamalemalo Keneti Sio the Petitioner, challenged the declaration of the official results and seeks orders by the Electoral Court that:
  2. The Petitioner alleges that the First Respondent was not qualified for election as member of Parliament for Sagaga Le Falefa on the basis that he failed to meet the residency requirement provided by sub-sections 3 and 7 of section 5 Electoral Act 1963 ('the Act').

The Relevant Provisions of the Act


  1. Section 5 (3) of the Act states:

(3) A person shall be disqualified as a candidate, or from election as a Member of Parliament representing a constituency, if he or she:


(a) Loses any qualification required to enable him or her to be registered as an elector of that constituency; or

(b) Has not resided in Samoa for a period equaling or exceeding three (3) years ending with the day on which the Nomination paper is lodged with the Commissioner; or

(c) Does not have a statutory declaration in Form 1A in the Schedule from:


(i) The Pulenuu of his or her village; or


(ii) Any other person determined by the Commissioner, if the Commissioner is of the opinion that the Pulenuu is unable to, or cannot properly, provide the statutory declaration,


that the candidate satisfies the three (3) year residential requirement in paragraph (b) and, unless the Commissioner is satisfied that the candidate is banished from his or her village, satisfies village service requirements.


  1. Section 5 (7) of the Act defines residency:

(7) For the purposes of this section "resided in Samoa for a period equaling or exceeding three (3) years" shall mean a person has been in Samoa for at least 240 days in each year for a consecutive three year period ending on nomination day.


Response by the First Respondent


  1. In his two-fold response, the First Respondent contended that, firstly his temporary absences from Samoa should be counted and included in the 240 days as he was required to be so absent pursuant to the conduct of his official duties as a member or official of an organization based in Samoa. He relies on subsection 8 of section 5 of the Act.
  2. The second part of his response alleges that the Petitioner could not be declared as duly elected as he had committed bribery by giving money to electors of the constituency of Sagaga Le Falefa for the purpose of inducing the said electors to vote for him at the General Elections 2011. Instances of such bribery are:
  3. He also alleges that the Petitioner could not be declared as being duly elected as he had committed treating by giving money to electors of the Constituency of Sagaga Le Falefa for the purpose of corruptly influencing the said electors to vote for him at the General Elections. Instances of such treating are:

Agreed Facts


  1. It is common ground that for the two year period before the close of the roll namely between February 2010 to February 2011 and February 2009 to February 2010 the First Respondent did reside in Samoa for at least 240 days. It is also agreed that for the year February 2008 to February 2009, the First Respondent, according to the records of the Immigration Division, of the Ministry of The Prime Minister and Cabinet (Immigration) after the deductions of the days he spent overseas, resided in Samoa for 218 days, so that he was for the relevant period of 2008 to 2009 short by 22 days. It is the first year (2008 to 2009) of the consecutive 3 year period which the Petitioner alleges the First Respondent failed to meet the 240 day residency requirement.
  2. It is also conceded that upon the filing of his Nomination forms as a candidate for General Elections, the officer of the Second Respondent who received the Nominations papers did check the First Respondent's passport before accepting the Nomination papers. When the Petitioner filed his nomination papers and was told by the same officer that two other candidates including the First Respondent have lodged nomination forms, the Petitioner questioned the residential qualification of the First Respondent whose wife and children live in New Zealand where he also operates a night club at Auckland.
  3. After the declaration of the official results of the General Elections, the Petitioner visited the same electoral officer at his residence and requested copies of the First Respondent's nomination forms. When they met again later at the Electoral Officer's home, the Petitioner was given a copy of the letter from Immigration which indicated the First Respondent was not in Samoa for 240 days during the first year of the required 3 years.
  4. Before the year 2006 the First Respondent, a lawyer by occupation, lived with his wife and children at Auckland New Zealand where he practiced law and also operated the Night Club. He moved to Samoa in 2006, set up law practice as a sole practitioner, bought land and built a house. He travelled regularly to New Zealand for personal and business matters.
  5. With commendable frankness, the Second Respondent admits the error by his office. All the parties accept that for the first year (namely February 2008 to February 2009) of the consecutive 3 year period, the First Respondent, as a result of his temporary absences, has not resided in Samoa for 240 days.
  6. It is not disputed that Events Polynesia (Samoa) Ltd ("Events Polynesia") is a Company registered in Samoa and based in Samoa as well as registered in New Zealand and carrying on business there. It is also not disputed that the First Respondent is a member of the Management Committee as well as legal counsel of Events Polynesia.

Section 5 (8)


  1. Section 5 (8) of the Act is the crucial provision. The success or failure of the Petition rests solely on the interpretation of this provision of the Act. It provides:

"The calculation of the time periods provided in subsection (7) of this section shall not include any temporary absences by persons who are required to be absent from Samoa pursuant to the conduct of official duties where they are the holder of a Government post or office or a member or official of a representative body or an organization which is based in Samoa"


  1. Originally the First Respondent was of the view that his visits to New Zealand on account of his legal practice matters would entitle him to the exception requirement provided by section 5 (8). His affidavit of the 7th April 2011 in response to the petition emphatically states at paragraph 13:

"That while Petitioner believed that I am short by 18 days, I submit that I am qualified under section 5 (8) of the Electoral Act in that as mentioned above, the reason I travel to New Zealand was to attend to legal matters of clients that engaged my services in Samoa."


But the definition of the word organization used in section 5 (8) would not have assisted the First Respondent. Organization does not appear to include a sole legal practitioner. He thought better and moved a motion to permit him to file further affidavits to support his contention that some of his temporary absences from Samoa was to travel overseas as an official of Events Polynesia Ltd to attend to business matters for that organization; an organization he contends is covered by section 5 (8).


Other Exceptions to the 240 days residency requirement


  1. Before embarking on the discussions of arguments concerning section 5 (8) it is helpful to refer to the other exceptions to the residency rule. Pursuant to section 5 (6) the residency rule does not apply to:

Is Events Polynesia Ltd an organization stipulated under section 5 (8)?


  1. If Events Polynesian does not come within the meaning of an organization provided under section 5 (8) that is the end of the matter, the First Respondent's temporary absences from Samoa are not exempted, which means he is short of the required 240 days and pursuant to section 5 (3) he is disqualified from election as a Member of Parliament.
  2. Counsel for the petitioner contends that the purpose of section 5 (8) is to exempt the temporary overseas travel of persons working in Samoa in the Public Service either through the Government, a statutory corporation, representative bodies and representative organizations. Section 5 (8) he argues is the domestic version of section 5 (6) which exempts those Samoans based overseas serving Samoa or Samoa's interest. Section 5 (8) is intended to exempt those working in the public service and other representative bodies and representative organizations. The use of the word representative before bodies was also intended for organization so that the last five words of section 5 (8) should read and other "representative bodies and representative organizations."
  3. Counsel also submits that organization was never intended to include a private company or corporation. The term "official duties" was deliberately used to denote government obligations. Words such as official business or company would have been employed if organization was intended to include a private company or corporation.
  4. Counsel for the First Respondent has not addressed this vital issue in his submissions. His responses to the questions from the bench during the trial indicated his state of confusion. During the course of the trial the following queries were put to counsel.

Question: Mr Ainuu is it your argument that Event Polynesia is a representative organization?

Answer: It's either representative organization or an organization

Question: It's either a representative organization or an organization?

Answer: The wording is representative body or an organization, that's how...

Question: Yes, and when the Act uses the word representative body or an organization does it not mean a representative body or representative organization?

Answer: I'm not sure your honour I will be sure by the end of ...


The final question put to counsel was:


Question: which must mean your argument is it's not a representative organization, or are you say it is also is, I'm trying to understand your argument before this witness gives evidence.

Answer: A representative organization.


  1. If we accept the final response by counsel and rule that organization means a representative organization then his client, the First Respondent is disqualified from election as a Member of Parliament. His failure to address the issue in his written submissions is a clear indication he has not untangled his confusion.
  2. The Court is indebted to counsel for the Second Respondent not only for his submissions but also for providing the Court with copies of the relevant Hansard materials which covered the Honourable Prime Minister's speech when subsection 8 was introduced as an amendment to section 5 of the Act:
  3. The court rejects the contention by counsel for the Petitioner that organization in section 5 (8) means and should read representative organization. The presence of the words or an organization after representative body clearly disjuncts organization from representative body. If Parliament had intended to exclude members and officers of companies and corporations it would have done so explicitly because of the wide meaning of organization. In the Concise Oxford dictionary it is defined as:

"an organized body, esp. a business, government department, charity etc."


And in the Public Bodies (Performance and Accountability) Act 2001 it is defined as:


"includes a company, a body corporate, a statutory corporation, a statutory body, a trust, a partnership and a joint venture."


  1. The court agrees with counsel for the Second Respondent that section 5 (8) in the Samoan language distinguishes and separates representative body (translated as fa'alapotopotoga tumaoti a atunu'u) from an organization (translated as fa'alapoto-potoga aloaia fa'aletulafono). This is undoubtedly the text that was before Parliament when section 5 (8) was introduced and it reads:

"O le fuafuaina o le vaitaimi e pei ona aiaia e le fuaiupu (7) o lenei fuaiupu e le tatau ona aofia ai le toesea le tumau o tagata e tatau ona toesea mai Samoa i le faatinoina o o latou tiute pe afai e umia se tofia fa'alemalo, po o ofisa foi poo se sui usufono poo se tofiga aloaia o se fa'alapotopotoga tumaoti a atunuu poo se fa'alapotopotoga aloaia fa'aletulafono o loo fa'aautu i totonu o Samoa."


There is no conflict or difference between the Samoan version and the English translation of section 5 (8) which the Court needs to resolve.


  1. For the reasons given the court concludes that Events Polynesia Samoa Ltd is an organization stipulated under section 5 (8) of the Act.

Is Events Polynesia Samoa an organization based in Samoa?


  1. The simple answer is Yes.

Is the First Respondent a member or official of Events Polynesia?


  1. The answer is also Yes, he is an official.

Were the First Respondent's temporary visits to New Zealand in pursuit of his official duties of Events Polynesia?


  1. The First Respondent contends that he travelled to New Zealand on official duties for Events Polynesia on the following dates identified by the Second Respondent as the days the First Respondent departed and arrived back to Samoa:

A total of 49 days. If the court accepts that the First Respondent was away from Samoa for 49 days on business matters for Events Polynesia (Samoa) Ltd, then the First Respondent has obviously met the residency requirement.


  1. If the officer of the Second Respondent who received the Nomination form had correctly calculated the days the First Respondent was away from Samoa and determined that the First Respondent was short by 22 days, it would have been incumbent on the First Respondent to satisfy the Second Respondent that he was entitled to the exemptions under section 5 (8). As the Second Respondent had no knowledge of the reasons for the First Respondent's overseas travel and neither can the Second Respondent determine from any official or local source the reasons for overseas travel, the onus is on the First Respondent to satisfy the Second Respondent that he travelled overseas on official duties for Events Polynesia (Samoa) Ltd.
  2. Whilst it is the obligation of the Petitioner in an Election Petition to prove the allegations beyond reasonable doubt, section 5 (8) of the Act provides a statutory exception and shifts the burden onto the First Respondent. It is for the First Respondent who relies on the exemptions or defence in section 5 (8) to prove on the balance of probabilities that his particular travels were for the businesses of Events Polynesia (Samoa) Ltd. There are several reasons for the shift in the burden of proof:

R v Hunt (1987) 1 All ER, (HL) at page 11


(iv) The intent of Parliament expressed in the linguistic construction of section 5 of the Act is to limit and confine the qualification of candidates to those who reside permanently in Samoa but are required at time through either official or diplomatic duties, and medical reasons to be absent from Samoa. Those who rely on the exceptions must bring themselves within the exceptions. As said by Lord Wilberforce in Nimmo v Alexander Cowan & Sons Ltd (1967) 3 All ER 187 at 199:

"I would think, then, that the section merely states the orthodox principle (common to both the criminal and the civil law) that exceptions, etc, are to be set up by those who rely on them."


  1. The First Respondent is a member of the Management Committee of Events Polynesia. He is also the legal counsel. Events Polynesia in 2008 and 2009 staged and promoted fights in New Zealand where promising Samoa boxers were flown over to fight there.
  2. A fight was staged on the 13th May 2008 which required the First Respondent to travel to New Zealand in April to assist in the organization and finalizing negotiations with the New Zealand Professional Boxing Association. He was also responsible for the sound system and security during the night of the fight. Areas of his expertise given that he also operated a nightclub. He flew back to New Zealand to attend that fight.
  3. A second fight in 2008 was staged in November. Again he was required to be in New Zealand several weeks before the fight to be involved in the negotiations and organization. He also flew back to New Zealand for that fight to take charge of security and sound system.
  4. The fight staged in May 2008 was the first boxing event organized and promoted by Events Polynesia in New Zealand and it was for that reason that the First Respondent spent more time in New Zealand and made more than one trip to organize that fight.
  5. We accept the suggestion by counsel for the Petitioner that the First Respondent was attending to other commitments involving his legal practice, family business and other matters unrelated to the activities of Events Polynesia while he was in New Zealand supposedly for the affairs of Events Polynesia. But the principal purpose of his travel was for Events Polynesia who paid for his travel expenses. Indeed the First Respondent did concede that he was doing other businesses unrelated to the principal purpose of his New Zealand visit. It would be impossible to devise a formula to identify the time spent on unrelated business and transform those times to the days to be deducted from the total period of his official visit.
  6. It follows, we are satisfied on the balance of probabilities that the First Respondent was temporary absent from Samoa in pursuit of his duties with Events Polynesia for at least 49 days during the period February 2008 to February 2009. He meets the residency qualification and he is accordingly qualified to be elected as a Member of Parliament for Sagaga Le Falefa. Accordingly the Petition should be dismissed and is accordingly dismissed.

The Counter Allegations by the First Respondent


  1. The first counter allegation relates to the giving of $50 by Zita Silva an agent of the Petitioner to one Sae Sapau an elector of Sagaga Le Falefa on the 3rd March 2011 thereby committing the act of bribery. Zita does not deny she gave $50 to Sae Sapau. We are satisfied, despite what Zita said to the contrary, that the giving of $50 was with a corrupt intent to influence the vote of Sae Sapa'u.
  2. We are also satisfied from the testimony of Zita and of the Petitioner (who are cousins) that Zita, her husband and family contributed financially when the Petitioner presented his o'o to the constituency. It is through the financial assistance given by Zita, her husband and family which the First Respondent argues, by implication constitutes Zita the election agent of the Petition. We do not agree. When former members of Parliament present their o'o after dissolution of Parliament, his or her immediate and extended families contribute and assist in this rather expensive exercise. It is recognized custom. Presentation of a o'o is specifically recognized by section 97A of the Act as an activity which does not constitute treating, bribery or illegal activity. The section is aimed at preserving the traditional custom of giving and reciprocating.
  3. What constitutes agency has been considered in several decisions of this court. In Netzler v Chan Chui (2001) WSSC 18 it was said:

"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 neither be in express terms nor arise by 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.


And in Petaia v Pa'u (2006) WSSC 1 the court summarized the principles of agency law:


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

(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 discretion and even in defiance of them.
  1. Bearing in mind the standard of proof in election cases and bearing in mind also that the only nexus of Zita to the Petitioner's electioneering campaign was that she was a relative and strong supporter the evidence falls far short to prove that Zita was the election agent of the Petitioner. We do not accept that the conduct of the o'o or momoli was part of the election campaign otherwise Parliament would not have specifically provided for its exclusion as a corrupt practice. To accept the argument of the First Respondent that by being a relative and supporter of the Petitioner and by contributing to the Petitioner's presentation of o'o and momoli constitutes agency could lead to creation of hundred of agents unknown by the candidate. The argument lacks sense – legal and common. The allegation fails and is dismissed.
  2. The six allegations of treating arise out of the six games of cricket played between the villages of Salepoua'e and the Petitioner's village of Faleula between November 2010 and January 2011. Salepoua'e is a sub-village of Saleimoa within the constituency of Sagaga Le Falefa so that virtually all the players for both teams are electors within the constituency.
  3. The cricket games were instigated in Salepoua'e by Luatua Epati (Mr Epati) a high ranking orator of Salepoua'e and Acting Chief Executive Officer of the Ministry of Education, Sports and Culture who was instrumental in promoting English Cricket in Samoa. Salepoua'e village agreed to support the project and the Petitioner sought and got the support of his village to join after being approached by Mr Epati. The Petitioner on request by matais of his village sought sponsorship. Registration fees were also levied on the players. Telea Tuna a paramount chief of Faleula was also involved but it was the Petitioner, a keen sportsman and Member of Parliament who was made captain and Treasurer of the Faleula team.
  4. Evidence conflicted as to where the first game was played but three games were played at Faleula and the other three at Salepoua'e. It is not disputed that the first presentation of food, drinks, money and fine mat was made at Faleula by the Faleula team to the Salepoua'e team.
  5. The second presentation was made at Salepoua'e by the Salepoua'e team to the Faleula team and consisted of fine mat, food and drinks. Some of the team members of the Salepoua'e team testified that the Petitioner gave the Salepoua'e team $300 for the members to buy drinks.
  6. It is also alleged that at the third, fourth and fifth and sixth games the Petitioner gave monies of $200 and $300 to the Salepoua'e team members. He also gave food for the Salepoua'e team. He also asked them to remember the election.
  7. The Petitioner admits the traditional presentation of food and money by the Faleula team to the Salepoua'e team at Faleula where the first game was played. It was done by the Faleula team at the suggestion of Telea, the paramount chief who provided the fine mat for the presentation. Both Telea and the Petitioner testified this presentation of food and money was done after the first game which was played at Faleula. The food, money and fine mats were not provided by the Petitioner but by the whole of the Faleula team. It was done in accordance with customs and traditions.
  8. When the Faleula team travelled to Salepoua'e for the second game the Salepoua'e reciprocated and presented the Faleula team with fine mat, food and drinks.
  9. For the remaining four games the Petitioner admits that food was provided by the host team and both teams donated towards the drinks. Nothing however was said by the Petitioner about the election.
  10. The testimony of the Petitioner is corroborated by the testimonies of the captain and a senior member of the Salepoua'e team who told the court that the presentation by the Faleula team was not by the Petitioner personally but by the Faleula team through its orator and was received by the Salepoua'e team through its orator. These two witnesses also confirmed that for the last four matches the host team provided food whilst both teams shared in the drinks. They also deny personal giving by the Petitioner of any money to the Salepoua'e team to buy drinks.
  11. Nothing was said about the election apart from what the captain of the Salepoua'e team jokingly said during one of the after match drinks. It is conceded by witnesses for the Petitioner and the First Respondent that the Salepoua'e team captain said words to the effect "bear in mind this is campaign by the Petitioner for the election. In response to that remark the Petitioner swore and told those present it was not an election campaign.

52. The witnesses called by the First Respondent to support the allegation of treating were junior members of the Salepoua'e team. Their testimonies as to the first presentations by the Faleula team were suspect and gave an early signal to the court that they were on a mission to distort the true facts. They were adamant that the sua (fine mat and food) were provided by the Petitioner; they were adamant the money came from the Petitioner; they were adamant the food they ate and took home were provided by the Petitioner, and they were adamant the food, money and fine mat were provided to influence their votes.


53. Only the members of the Faleula team knew who provided the fine mat, food and money. They organized and put together the necessary items before the Salepoua'e team arrived. Indeed the money was from the team fund. And the presentation, as the senior members of the Salepoua'e team testified, was done by an orator of Faleula not by the Petitioner who is a high chief.


54. The affidavits by the three key witnesses for the First Respondent as pointed out during the trial were incredibly similar. The paragraphs which described the instances of treating were the same word for word, even with the placing of the commas and full stops. Their affidavits and their testimonies cannot be believed. We also question the integrity of counsel who prepared these affidavits.


  1. For the First Respondent to succeed in his allegations of treating, he must prove:
  2. It is for the First Respondent to prove beyond reasonable doubt that the Petitioner gave the food and drinks or paid for or contributed to the food and drinks which the Faleula team gave to the Salepoua'e team. The evidence demonstrates beyond any cloud of doubt that the cricket matches were between the two villages and the food, money, drinks and fine mats were provided by the Faleula team not the Petitioner. There is no suggestion by the First Respondent that the Faleula Cricket team provided the food, money and drinks on behalf of the Petitioner.
  3. As the first element of the allegation has not been proven to the required standard, the allegations of treating must fail and are dismissed.
  4. As a consequence, all the counter allegations are dismissed.

Costs


  1. During the trial we raised with counsel for the Second Respondent the question of costs. Our concern was that the Petitioner has been engaged in an expensive exercise as a result of an error of an officer of the Second Respondent and the Second Respondent must therefore should be responsible to meet the reasonable costs of the Petitioner and of the First Respondent.
  2. We cannot ignore that the results of the General Election can only be challenged by an Election Petition which must be filed within seven working days after publication of the results. The results were publicly notified on the 14th March 2011. On the 15th March the officer of Second Respondent told the Petitioner that based on the letter from Immigration the First Respondent has not resided in Samoa for the first year of the consecutive three year period.
  3. Instead of the Second Respondent filing a petition pursuant to paragraph c of subsection 1 of section 105 of the Act challenging the qualification of the First Respondent, the office of Second Respondent advised the Petitioner to file the petition himself.
  4. The Second Respondent could have also invoked article 47 of the Constitution to state a case to the Supreme Court to determine the qualification of the First Respondent. He did not do so. If he had done that, he would have avoided the expense by the Petitioner in filing the petition and defending the counter allegations.
  5. In the circumstances we are of the view that both the Petitioner and the First Respondent are entitled to costs against the Second Respondent. We order costs against the Second Respondent as follows:

_______________________________
HONOURABLE JUSTICE VAAI


______________________________
HONOURABLE JUSTICE NELSON

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