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Pita v Liuga [2011] WSSC 54 (31 May 2011)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU


IN THE MATTER:
of the Territorial Constituency of Palauli-Le-Falefa


BETWEEN:


LE TAGALOGA PITA,
a matai of Sili and Gautavai, a candidate for election.
Petitioner


AND:


FAUMUINA TIATIA LIUGA,
a matai of Papa, Puleia, a candidate for election.
First Respondent


AND:


THE ATTORNEY GENERAL,
sued for and on behalf of
THE ELECTORAL COMMISSIONER
appointed pursuant to section 3 of the Electoral Act 1963 as amended
Second Respondent


Coram: Honourable Chief Justice Sapolu
Honourable Justice Slicer


Counsel: R Schuster and J Annandale for Petitioner
D Clarke and T R S Toailoa for First Respondent
D Kerslake and K Seuseu for Second Respondent


Hearing: 13, 17, 19, 20, 23 – 25 and 27 May 2011
Written Submissions: 27 May 2011
Judgment: 31 May 2011


JUDGMENT OF THE COURT


  1. The General Election for the State of Samoa was held on 4 March 2011 in accordance with the Constitution, Articles 63 and 64. The result of that election was announced by the Chief Electoral Officer ("the Commisioner") on 14 March.
  2. Voting in the Constituency of Palauli Le Falefa was recorded by the Commissioner as:
Faumuina Tiatia Liuga
918
Le Tagaloa Pita
508
Tiatia Mapesone
382

1808
Informal Votes
4

  1. The First Respondent was, by public notice dated 14 March 2011, declared as being duly elected.
  2. Following the declaration, the Petitioner commenced proceedings in this Court on 23 March 2011 seeking declarations that:

(ii) the Respondent was not duly elected and the election void because the Respondent had committed four 'acts of corrupt practices namely bribery' contrary to the Electoral Act 1963 ("the Act"), section 96 (3)(a) and (c).


  1. The Respondent, in turn adduced evidence claiming that the Petitioner had committed, directly or through his agents, acts of treating, corrupt and illegal practices which would prevent him from being admitted to the Legislative Assembly. Some of those counter allegations were withdrawn during the course of the trial.

Bribery and Treating


  1. Bribery, treating, corrupt practices and the like have been considered by this Court in previous cases and require no further detailed consideration.
  2. We will apply the principles as stated or applied in Posala v Su'a [2006] WSSC 29; Vui v Ah Chong [2006] WSSC 52; Petaia v Pa'u [2007] WSSC 19, Olaf v Chan Chui [2001] WSSC 18 and Muagututagata Peter Ah Him v Maulolo Tavita Amosa [2001] WSSC 16, and do not need to restate them. Here the question is not whether the gift made or the words used occurred since their making is not significantly disputed. It is the state of mind or intention of the respective parties which is in issue. The Petitioner and First Respondent accept both the onus and standard of proof in relation to their respective allegations. On the facts of this case the allegation of corruption on 29 December 2010 is confined to money, but proof of the dishonest gifts of money, beasts, herrings and rice would produce the same outcome as that of treating.
  3. We accept the principles governing findings of multiple intentions as stated in Posala (supra). Questions of timing or a defence of custom have been determined by this Court in Ah Him v Amosa (supra), and we see no reason to depart from the general principles stated therein. We note the statements of principle pronounced by this Court, differently constituted in Moefa'auo Lufilufi v Alaiasa Schwartz Hunt (2011) unreported judgment delivered on 26 April 2011, and agree with the reasoning and conclusion reached in that case.

Disqualification


  1. Ground 5 of the Petition states:

"That the First Respondent should be disqualified pursuant to section 5(3)(c)(i) of the Electoral Act 1963 in that the statutory declaration signed by the Pulenu'u of Gatavai, Tiatia Fisiga should not have been accepted by the Second Respondent as the First Respondent was registered as a candidate under his name 'Faumuina' of Papa, Puleia where he resides and not his title 'Tiatia' of Gatavai."


  1. Two issues are raised by the Petition. Counsel for the Petitioner claims they are connected. The issues are:
  2. The ground occupied some considerable time of the Court in the interlocutory proceedings which included a 'Strike Out Motion' and evidence at trial. The essence of the grounds is that no matai or resident in Puleia could have been certified as a candidate and that no person who held more than one title could be elected if the Electoral Roll did not properly describe his primary or paramount title.
  3. Puleia, Papa and Gataivai are within the same Constituency. The Petitioner describes himself as being of 'Sili and Gataivai' themselves different villages. The First Respondent is described n the Electoral Roll No. 412 as

Faumuina Tiatia Liuga...Papa, Matai, Faumuina – Papa, Tiatia – Gautavai.


  1. The Petitioner is described on the same Roll No. 423 as:

Le Tagaloa, Pita...Sili Matai, Leota – Gautavai, Sauafatu – Salani.


  1. On part of his own argument he could be subject, to the same disqualification through misdescription on the Roll.
  2. The Pulenu'u of Puleia was in New Zealand on 4 February 2011 when the First Respondent was registered as a candidate, and remains there as at the date of hearing. The Petitioner has provided no evidence that there was an acting Pulenu'u (Internal Affairs Act 1995, ss14, 15).

Residential and Service Requirements


  1. The Act s5 provides for residential and service requirements. The Schedule prescribes Form 1A which specifically refers to the

"Pulenu'u or any person determined by the Electoral Commissioner in accordance with section 5(3)(c)(ii) of the Act."


  1. The term 'Pulenuu' was replaced by the description 'Sui-o-le-Malo' by the Revision and Publication of Laws Act 2008 for reasons unknown to the Court. Nevertheless we will continue to use the term 'Pulenuu' in these reasons for judgment in the sense used by the parties.
  2. The Internal Affairs Act 1995 s15 states that one of the duties of a Sui-o-le-Malo is to prepare a matai title certificate which would, in our opinion, include certification of 'village service requirement' as provided for by the Act s5 3A for a matai candidate.
  3. The Internal Affairs Act 1995 s14(5) permits the Minister appointed under the legislation to temporarily appoint an acting Pulenu'u. Here no such appointment had been made. On the Petitioner's argument no person could certify that the First Respondent had performed the required village service as provided for by the Act s5 (3A).
  4. The Act Part II provides for qualification of members and relevant to this ground states as a basis for disqualification of a person who:

"s5(c) Does not have a statutory declaration in Form 1A in the Schedule from:


(i) The Pulenu'u of his or her village; or

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


  1. The primary argument of the First and Second Respondents is that the Act s5(3)(c)(i) permits certification by a Pulenu'u of 'his or her village.' Since the First Respondent held a title from the village of Gataivai the Commissioner was entitled to accept his nomination accompanied by certification of service by the Pulenu'u of his village. The use by Parliament of the term 'his or her village' entitled a candidate to elect or select a village within the Constituency for the purpose of certification of service.
  2. In this case the Pulenu'u of the First Respondent's village of Papa was absent and unable to certify. The First Respondent was able, in accordance with the Act s5(3)(c)(i) to provide certification from the Pulenu'u of Gataivai that he had provided village service to Gataivai.
  3. Our conclusion on the interpretation of the subsection is consistent with the Act s16(2)(a) which permits an elector who holds more than one title to select the Constituency in which he will register as an elector.
  4. Neither Respondent relied on the provisions of the Act s5(3)(c)(i)(ii) but the Court has considered its operation as a guide for future challenges on this ground. It does so to preserve the discretion of the Commissioner in cases where there is no Sui-o-le-Malo able to certify or make a declaration in accordance with Form 1A. Form 1A requires certification of residency and service.
  5. In this case the First Respondent was entitled to claim that:
  6. The Act s50(1)(e) requires the Commissioner to reject a nomination unless it is accompanied by a Form 1A. It does not confine his discretion in determining the qualification of the person declaring the residency or service performance of the candidate as required by s5(3).
  7. The problem with the Petitioner's argument can be seen in the definition of s5 (3A) which provides:

"For the purposes of this section: village service requirements mean the services a matai renders to his or her village in accordance with the customs of that village."


  1. The provision was inserted by the Amendment Act 21 of 2009. The Court is aware that in many cases a village will nominate its preferred candidate. On the Petitioner's argument a Pulenu'u could decline to provide a Form 1A Certificate for any candidate not favoured by the village. Such an outcome would be contrary to the Constitution of Samoa.
  2. The second argument is that the First Respondent was misdescribed on the Electoral Roll and his registration void since he advanced the titles and description 'Papa, Matai, Faumuina, Papa, Tiatia, Gataivai' in his nomination document. The Petitioner does not claim falsehood but relies on custom. The simple answer to this ground is:

"therefore no election shall be declared invalid by reason of: (b) Any omission or irregularity in filling up any form prescribed...if the Court is satisfied that the election was so conducted as to be substantially in compliance with the law as to elections, and that the failure omission irregularity want defect absence mistake or breach did not affect the result of the election."


  1. Section 116 of the Act is similar in terms to the Representation of the People Act 1949 (U.K.) s37(1). In Morgan v Simpson (1975) Q.B. 1, Lord Denning M.R. in considering the English equivalent legislation said at 728:

"Collating all these cases together, I suggest that the law can be stated in these propositions:


(1) If the election was conducted so badly that it was not substantially in accordance with the law as to elections, the election is vitiated, irrespective of whether the result was affected, or not. That is shown by the Hackney case (1874) 2 O'M & H 77 where two out of 19 polling stations were closed all day and 5000 voters were unable to vote.


(2) If the election was so conducted that it was substantially in accordance with the law as to elections, it is not vitiated by a breach of the rules or a mistake at the polls – provided that it did not affect the result of the election. That is shown by the Islington case (1901) 17TLR 210 where 14 ballot papers were issued after 8pm.


(3) But even though the election was conducted substantially in accordance with the law as to elections, nevertheless if there was a breach of the rules or a mistake at the polls – and it did affect the result – then the election is vitiated. That is shown by Gunn v Sharpe (1974) 2 All ER 1058 (1974) 3 WLR 7 where the mistake in not stamping 102 ballot papers did affect the result."


  1. Those statements of principle were applied by this Court in Epati v Sio and the Electoral Commissioner [2006] WSSC 42. Misnomer or wrongful description of title would be protected by the Act s116.
  2. Here the Respondent was a resident within the Constituency, the holder of two titles within that Constituency and enrolled as an elector. He had complied in all respects with the requirements of the Act s5 and met all procedural preconditions. The Commissioner had accepted his nomination in his exercise of power afforded by the Act s50.
  3. It was for those reasons that the Court rejected the challenge to the eligibility of the First Respondent as a qualified candidate in the 2011 Election.

The Petition


  1. The Petitioner alleges that the First Respondent is guilty of the corrupt practices of bribery and treating on 5 occasions namely;
  2. Ground 5 was abandoned at trial as a basis for disqualification and will be dealt with as a matter relevant to the Act s120.

April Meeting


  1. On 30 April 2010 the First Respondent attended the meeting of the Alii and Faipule of Sili. He was the Parliamentary representative of the Constituency and a Minister of Cabinet, and told the Court that he had been asked by Fiu Tinoifili the tuua (chief orator of the village of Sili) to meet with the council to discuss its concerns that there had been little progress in the village's development. The specific matters concerned road works and street lights.
  2. In mid April Faumuina had met with Fiu Tinoifili and Leota Pepe Pa'i, the latter the Pulenu'u of the village at his residence, in Apia and the three discussed matters important to the village of Sili. That evening Fiu and Leota stayed at Faumuina's home and the three discussed both personal and family matters as well as matters of governance. The three were on good terms. During the course of the evening, Fiu remarked that although he was bound by his village to vote for the Petitioner his family was free to vote differently. Fiu claimed that he was only joking but the Court accepts that:
  3. The above conclusion is relevant to the Court's determination of the allegation of the bribery of Fiu Tinoifili said to have occurred on 21 February, which will be later discussed.
  4. Shortly after the Apia meeting Faumuina went to Sili as a Minister and local Member to Sili.
  5. The First Respondent was welcomed as a Cabinet Minister with a traditional ava ceremony and, in return a lafos was given by the Minister.
  6. The allegation is that:

(a)
Fiu Tinoifili
$300
(b)
the tautau server
$40
(c)
the tufa ava
$40
(d)
Toala Ioane
$200 for conceding to Tinoifili the making of the main oratory speech.

  1. The Petitioner, himself learned in custom conceded that the amounts given were for a reasonable sum consistent with practice.
  2. The First Respondent denies having made any reference to the election at the meeting. His version of events is corroborated by the evidence of official letters and documentation dated 4 May, 12 April and 17 May from the Ministry to other offices concerning development works planned for the area.
  3. The Minister was entitled to ask for the nomination and support of the village for his candidacy. He had not then nominated or been nominated as a candidate. The question of the election had been raised by Fiu Tinoifili in his welcoming speech when he said:

"sauni e alu i le palota – aua e te polole."


  1. Fiu Tinoifili agreed in cross-examination that Faumuina discussed concerns relating to the future developments of the village.
  2. The meeting was distant from any election. The presentation was in accordance with custom and the amounts given were reasonable and proportionate to the status of the receivers and the nature of the ceremony.
  3. Even, had the First Respondent said the words ascribed by the Petitioner's witnesses, he was entitled to ask the village to endorse him as a candidate rather than to ask for votes at an election. It is not necessary to resolve the differences between witnesses as to the exact words used. Everyone knew he was a Minister. We accept the First Respondent's evidence that he was present on request by Fiu Tinoifili at the meeting in the First Respondent's residence at Apia. The amounts given were in accordance with the protocols of Cabinet. Had he dispensed greater amounts he was required to seek special approval of the Executive for the amounts used from public funds. The gifts were specific to the matais of the village council and others who were involved in the performance of the ava ceremony.
  4. The Minister was required to seek out the future needs of the Constituency, inform its members of work in progress and, if possible, resolve immediate problems or needs.
  5. The First Respondent was both a Minister and the Member of the Constituency. His duties were ones due to Samoa and members of his Constituency. The Petitioner himself had previously been the local Member and a Minister of government.
  6. Fiu Tinoifili, the primary recipient of the formal presentation did not believe, at the time that the presentation was improper. He conceded that the thought of corruption only entered his mind long after the event.
  7. Fiu Vasa also gave evidence on the 30 April meeting but added little to the Petitioner's case. He received $40 and at the time did not regard it as a bribe. He said that he formed that belief later. His evidence is given little weight.
  8. Fiu Vasa was a scrutineer for the Petitioner. What is of concern to the Court is the list of voters contained in his diary of voters who be believed had voted against the preferred candidate of the respective villages. The Court will refer to those concerns in our Report to the Speaker.
  9. The Minister reported progress to Afioga Galuvao, the Ofisa Sili by letter dated 4 May 2011.
  10. The gifts were ceremonial and in accordance with custom not onus personal for the electoral advantage of a candidate. The Respondent had not crossed the line between duty and corrupt practice.
  11. Neither counsel referred to the provisions of the Act s97 B which provides:

"97B. Conduct of "tautua faaauau" - (1) Despite the other provisions of this Act, the traditional service or assistance of "tautua faaauau" by a Member of Parliament or a person acting on behalf of such Member shall not be considered as treating or bribery or an illegal or corrupt activity or practice, where the service or assistance is given before 90 days prior to the expiry of Parliament at five (5) years from the date of the last preceding General Elections or given after the close of Poll on polling day."


  1. Counsel for the Electoral Commissioner stated the 90 day period to have been 31 December 2010. Section 97 A permits the commencing date for permitted o'o and momoli to have been 2 October 2010. On either calculation the meeting of 30 April would have been protected by s97 B. The Member of Parliament was entitled to provide 'service or assistance' in accordance with his office. This provision is a possible basis for the defence of present or future similar allegation.
  2. While corrupt practice can be committed at any time the service of 'tautua fa'aauau' is in accordance with custom and permitted by law. Here the Minister performed a service as a Member of Parliament.
  3. This ground of the Petition ought be dismissed.

Faaolatane


  1. On 29 December 2010 the Respondent held his ceremony of the bestowal of his title 'Fa'aolatane' at the village of Sili. He had given his o'o on 27 and 28 December, the traditional ceremony of o'o being permitted by the Electoral Act s97A.
  2. On 27 December he had returned his parliamentary seat to the villages of Tafua, Puleia and Papa at a single o'o. On 28 December he had made his o'o to the villages of Sili and Gautavai. In doing so he had not breached the terms of the legislation. Time did not permit the performance of o'o and bestowal on a single day so the bestowal could be held only on 29 December 2010.
  3. During the saofai the Respondent, in accordance with custom presented lafos gifts to orators and matais who had taken part in the ceremony, and to the villages of Sili and Gautavai.
  4. The gifts were:
  5. There is no dispute that the ceremony was held, nor that the gifts were given and distributed according to custom. The Petitioner concedes that the amounts were within a reasonable range and were similar to those often presented at an important bestowal ceremony.
  6. The Petitioner and some of his witnesses including Fiu Tinoifili allege that the ceremony had been brought forward from the expected date in March or April 2011 after the general election at the behest of the Respondent. It is said that the ceremony was but a device to avoid the Act, and as such constituted bribery and treating. The Respondent's explanation is that following the 2006 Election there were many acts of violence, destruction of property and theft of cattle and he requested members of his family to bring forward the bestowal of title ceremony in order to enhance his ability as a matai of Sili to control villagers, especially untitled men and youths from repeating their criminal actions of 2006. He further claimed as a reason that the Christmas holiday period was the most convenient time given his other commitments in March/April 2011.

History of Bestowal


  1. The title Faaolatane belonged to the Respondent's family. They were entitled to determine the date of bestowal. The immediate family met regularly on the third Sunday of each month. The First Respondent attended only the 26 December meeting.
  2. In July 2010, the family had agreed to bestow 5 titles, one of which was to be given to Faumuina. The date of the bestowal of the titles was to be decided at a later time.
  3. The question of the timing of the bestowals had been discussed and agreed upon during the October meeting. It was to be in March or April 2011 after the General Election as that will suit Faumuina Ioane in New Zealand. The First Respondent was not present at that meeting. He said he only heard about the decision of his family in mid-November. He then spoke to some members of his family that he preferred the Christmas period for his title bestowal because of his official commitments.
  4. The First Respondent claimed to have discussed the bringing forward of the bestowal with individual family members or small groups of his brothers, sisters and the like. He conceded he attended no regular family meetings on 21 November and 19 December. Fiu Tinoifili claimed to have attended only two meetings and was absent from a third, presumably the regular one held on 19 December.
  5. There is no direct evidence as to what discussion took place or decisions made at the 19 December meeting. Neither Faumuina nor Fiu Tinoifili was present at that meeting. However, Fiu Tinoifili told the Court that the family agreed at the 19 December meeting to bring forward the First Respondent's title bestowal. The First Respondent was later informed about that decision. Fiu Tinoifili gave the following answers in cross-examination:

"Toailoa according to the calendar the 3rd sun of dec is the 19th dec, were you present in tht toonai the 19 dec?


Wit ou te lei auai [I was not present]


Toailoa were you subsequently informed after 19 dec during that toonai of the 19 dec the sao of the family and family members attended that toonai agreed to bring fwd Faumuina Liuga's title bestowalment.


Wit e logo atu au e le vaega lea sa ou fai ai out e lei auai [I was informed about it as I said I was not present]."


  1. The Court finds that on 19 December meeting the assembled family members agreed to the Respondent's proposal.
  2. As best as we can piece together the following sequence.

December 26


  1. Faumuina attended the December meeting partly because his o'os had already been planned for 27 and 28 December and in part so that he could participate in any organising of the saofai.
  2. The Court does not accept the evidence of Fiu Tinoifili that he has no memory of where he was on 26 December. He knew where he was on Christmas Day and 27 December but has no knowledge of where he was on the middle day claiming, in jest that he could have been overseas. Tinoifili was a political opponent of the Respondent and a member of the Petitioner's election committee. His claim that he knew nothing of the outcome of the meeting until much later was contradicted by his own evidence. The Court accepts his evidence that he attended and participated in the December meeting.
  3. The Court accepts the evidence of Fiu Metotisi given at trial and who attended the 26 December meeting. It rejects the inconsistent evidence as stated in his affidavit
  4. The meeting had 5 phases.

"Afai o le tulaga lea, oute le manao i se mea e eseese ai o tatou taofi ona oute talitonu i le Filemu ma le fealofani o le tatou aiga." [If this is the case, I don't want for us to have differences because I believe in the peace and harmony in our family].


Fiu Tinoifili agreed in general terms with Faumuina's version in the following exchange with counsel:


"Toailoa
immediately after Fiu expressed his decention (sic) or agt faumuina liuga then spoke again and Faumuina sd words of the effect if the bewtowal of his title may bring disagreement amongst the fam then he will opt not to bestow the title


Wit
saunoaga a fauimuiina i le tali lena a fiu, k e malilie le aiga e toe tuu ia lana nofo i le vaiaso mulimuli o mati lea e fai ai nofo a le aiga. [Faumuina's response to Fiu kelemete's concern was for the family to please accept the deferment of his nofo to March together with the rest of the family's nofos]."

The withdrawal offer was met with an expression of displeasure by Faumuina Aviata, the First Respondent's brother. He objected to the waste of time, inconvenience and discord caused by the varying proposals. Eventually he complained that a meeting had been called, a decision taken, objections made and withdrawal by Faumuina. Aviata said that the family had laboured the first night they have now come again the second night. That response in turn led the First Respondent to agree to hold the bestowal as originally planned.


(vi) The family sao intervened and ended the family discord. As sao, he decreed that the ceremony proceed, as scheduled. Faumuina had already agreed to hold his saofai on Wednesday. By these events the First Respondent was saved his seat in the Legislative Assembly. The family agreed that it be held to coincide with an o'o. That decision was varied simply because of practicality and time constraints.
  1. The Respondent's o'o was held on 27, 28 December within the time prescribed by the Act s97A. The saofai ceremony, the subject of the Petition, was held on 29 December. It would not have been practicable to have held both ceremonies on the same day.

The Issue


  1. It is arguable that the timing of the saofai benefited the First Respondent. It is also arguable that it enhanced the First Respondent's electoral prospects. He was able to provide gifts of money and food to the electors of Sili and Gautavai. Yet it remained a lawful act. He was entitled to have the bestowal ceremony. It was not a guise. The question is whether the timing was corrupt since, at least, that could constitute a 'multiple' purpose as stated in previous decisions of this Court.
  2. The law requires a corrupt state of mind not simply the taking of advantage of an opportunity. It is the combination of money with an intent to influence the vote of an elector. The question is not whether the conduct could be regarded as corrupt. It should be properly put as:

"Has the Petitioner proved, on the evidence, beyond reasonable doubt that the Respondent had a corrupt intent or state of mind as of 29 December?"


  1. The question could be refined and better stated as:

"Has the Petitioner proved beyond reasonable doubt that on 26 December the First Respondent had a corrupt intent when he advised members of his family to agree to bring forward the bestowal because of his ministerial commitments?"


  1. The Respondent gave evidence that:

Motive and the 2006 Election


  1. It is common ground that following the 2006 Election there were serious acts of violence. The Court accepts the general tenor of the witnesses called by the parties that there had been serious acts of arson, the shooting of a youth, assaults, stoning and the like in the villages of Sili and Puleia immediately following the 2006 Election.
  2. It is not necessary to consider their evidence in detail. The evidence is relevant only to the issue of whether the First Respondent wanted to advance the date of the bestowal ceremony for a legitimate purpose. His contention is that it was desirable for him to have a high title within the village of Sili so that he could prevent or influence any outbreak of violence in 2011.
  3. The Court accepts that following the 2006 Election there were numerous and serious acts of violence to the person causing injury, the burning down of the school, damage to other property and the theft of cattle.
  4. There is evidence that in 2011, young untitled men and youths were confined to a camp on the night before the election until the following day. The evidence suggests that there were fewer acts of violence in 2011.
  5. In Muagututagata Ah Him v Maulolo Amosa [2001] WSSC 16, this Court considered the question of a 'sham' presentation. The case involved a 'fa'aalataua' said to have been customary rather than electoral. The Court concluded:

"We think that when the respondent met with the 'faletua ma tausi' and the 'aualuma' of Tuanai, he was there principally as an election candidate and not as the holder of the title Maulolo. He was actually out campaigning for his candidacy. The meeting that was held was solely for the purpose of promoting his candidacy. What was said by him at the meeting was all about his candidacy and the up-coming general elections. The money that was given out was not insignificant and it was given to electors."


  1. The Court further stated at page 20:

"The Court will be particularly astute in scrutinizing evidence of custom to see that custom is not used as a veil to obscure what is in actual fact an intention to induce or influence an elector to vote for a candidate at an election."


  1. We have followed that process in our consideration of the events of 26 December and the surrounding circumstances.

Conclusion


  1. We are not persuaded that the Petitioner has proved the allegation stated in paragraph 8 to the requisite degree.
  2. Our reasons are:
  3. We might have suspicions because of the benefit to the Respondent's election prospects. But the test is not suspicion but satisfaction beyond reasonable doubt.
  4. The above might not have been sufficient to meet the Petitioner's case. Accepting that the proposal had been advanced by the First Respondent and was to his advantage. The Petitioner was required to prove that the corrupt intent was linked to the act.
  5. Even assuming that the First Respondent had a corrupt intent by informing others to bring forward the bestowal to the week commencing 27 December 2010, he abandoned that intent when the resolution was made at the direction of the sao and by the family members. His decision to 'let it go' removed him from the debate. It was others who took over the decision process and determined the timing of the bestowal ceremony.
  6. That resolution required him, through custom to make the gifts, not disproportionate to the importance of the title as expected by custom.

Conclusion


  1. The Court is not satisfied beyond reasonable doubt that the First Respondent committed acts of bribery on 29 December 2010.

Gifts to Fiu Tinoifili


  1. The First Respondent says that the gift of $200 to Fiu Tinoifili was made on 21 February but says that the money was intended to help pay for medical expenses. He claims that Fiu had become unwell and he had almost fainted at a funeral and that he had to be taken home. Faumuina had later visited Fiu whom he said appeared to be unwell and in need of medical care. Fiu had said that he had suffered from pneumonia but had recovered by February when the First Respondent had visited him. His evidence suggests that in February he was well.
  2. There is an inconsistency between the evidence of the First Respondent and that of Fiu Tinoifili as to whether Fiu was well or sick in February 2011 when the First Respondent visited him. The First Respondent said that Fiu was sick but Fiu said he was well. When Fiu Metotisi, the nephew of Fiu Tinoifili, gave evidence the Court asked him about when his uncle was sick. He said it was February and it was him who told the First Respondent about Fiu Tinoifili being sick.
  3. Important evidentiary issues include:
  4. Tinoifili confirms part of the First Respondent's version. He had been ill for some 2 months with the serious and life threatening disease of pneumonia. He agreed that the Respondent had come to his home at about 7 p.m. on 21 February. He had arrived in his ministerial car. The two had spoken about his illness but he disputes that the money was for medical fees. His account is that the First Respondent gave him the money to buy food for his children. Fiu conceded that the Respondent acknowledged that Fiu was bound to vote for the Petitioner but suggested that Fiu speak to his children and encourage them to vote for the First Respondent.
  5. We do not accept the evidence of Fiu on this point. It was Fiu who had made a similar statement in Apia when he stayed at Faumuina's home in mid April (referred to in paragraph 36). He has transposed one conversation to a different time.
  6. The Respondent was an endorsed candidate for the HRPP and the Petitioner for the Tautua coalition. Fiu was a member of the latter's campaign committee.
  7. Fiu Tinoifili and Faumuina were friends and family. The First Respondent had on a number of occasions given his friend large amounts of money. They were political opponents not enemies.
  8. Fiu Metotisi is the nephew of Fiu Tinoifili. He confirmed that it was him who had taken his uncle home when he nearly collapsed at a funeral. The family of Fiu Metotisi had helped Fiu Tinoifili during his illness and he confirmed that Fiu Tinoifili was ill in February.
  9. Significantly Fiu Metotisi told the Court that he was the one who had told Faumuina of his uncle's illness on the very day Faumuina had visited Fiu Tinoifili. While he could not remember the date, the other evidence establishes that it was 21 February.
  10. On learning of the illness Faumuina immediately visited his friend, political opponent and relative, and as is common in all customs brought a gift for a sick man. Samoans do not go to the sick bed of a relative empty handed.
  11. The Petitioner suggests that the amount of money given shortly before the election itself suggests bribery. The Court rejects that interpretation because:
  12. The Court is not satisfied beyond reasonable doubt that the First Respondent is guilty of bribery on 21 February 2011.

Women's Committee


  1. The allegation as originally stated was that:

"...the Petitioner alleges that the First Respondent is guilty of corrupt and/or illegal practices in that he committed bribery by giving $500 to the Sili Women's Committee on the 27 September 2010 for their 'oil oven (ogaumu suau'u)' which was rejected by the Women's Committee but the First Respondent insisted they take the money '...even though I know you will not vote for me.' "


  1. The First Respondent claims that he attended no such meeting on 21 September 2010. His appointment records support his contention that he did not attend any meeting in the Constituency, as a Minister, in the months of September and October 2010. In his answering affidavit Faumuina referred to a meeting held on 13 May 2010 which corresponded with the substance of the allegation. The Petitioner sought leave to amend the date of the allegation accordingly.
  2. The Court allowed the amendment of the date alleged since it did not raise a new ground of challenge to the election. Had it introduced a new allegation, rather than substitute a date the Court would have refused the amendment. There is no prejudice to the Second Respondent since he has met the allegation in his responding affidavit.
  3. Lusia Poe was the only witness, called by the Petitioner who originally stated the date of the gift as being made in September 2010. She was obviously wrong and the error weakens the credibility of the witness. However Faumuina had met the allegation as if it related to Lusia's allegation. Lusia has difficulty with her hearing and her evidence at trial was sometimes confusing and lacking in detail suggesting that due to her impediment she was less able to follow the course of the May meeting. The Court does, however, accept her as being an honest witness.
  4. We accept that the impugned meeting occurred on 13 May 2010. On that day the First Respondent attended, as a Minister, a meeting of the Women in Business Committee at the Pulenuu's fale in Sili. The purpose of the visit was to outline a coconut oil and misiluki project, and organic farming in general. He was accompanied by Fuimaono Rosalia Me, the Protocol and Cultural officer for the Women in Business Development Incorporated ("WIBDI") a non profit government organisation.
  5. The May meeting included a training exercise, which was held at the home of Leota Pepe, the Pulenu'u, who provided the taumafutaga. The meeting concluded with a speech from the CEO of the Samoa Land Corporation followed by the presentation of $500 by the Minister. The money had been provided by Fuimaono Rosalia Me on behalf of WIBDI.
  6. Leota Pepe Pa'i corroborated in full the First Respondent's version of the event.
  7. Lusia did not receive her money at the meeting. It was delivered to her home later. She left before the food had been served. Her evidence varied during cross-examination. The Court does not find her to be dishonest but that her version was a product of reconstruction of memory and a faulty recollection of the May event. Her partial loss of hearing probably contributed to her confusion as to what she had heard at the meeting and demonstration.
  8. The Court does not accept the version of Lusia. Her affidavit is brief, provides no detail and is not corroborated. The Court accepts the version given by the Respondent and Leota Pepe Pa'i where it differs from that given by Lusia. The money was provided by Fuimaono Rosalia Me from the resources of her organisation, and handed to the First Respondent for presentation by the Minister according to custom and protocol.
  9. We repeat our observations concerning the Act s97B stated within these reasons at paragraphs 55 – 57. They have equal application to this allegation.
  10. There is no substance in the allegation of bribery and the allegation ought be dismissed.

Post Election Gifts


  1. The allegation is that

"...the Petitioner alleges that on 4 March 2011, the First Respondent's campaign committee at Tafua-tai led by Ulu Iakopo made food gifts of 6 cases of herrings and 3 cases of corned beef after the polls closed to the Second Respondent's representatives at the Tafua-tai polling booth which was located at the house of Reverend Niu Lala, a religious minister of the EFKS church."


  1. The Petition does not specify whether the allegation is one of treating under the Act s97 being a provision of food 'after an election' or an illegal practice contrary to s99A.
  2. The presentation of food stuffs to the electoral officials was a faaoso in accordance with Samoan hospitality to guests or visitors. It is neither a corrupt nor illegal practice.
  3. This faaoso was from the pastor of the village and not from the First Respondent's election committee. According to the pastor in his affidavit it is or was his habit to give faaoso to electoral officials in every general election as his home is used as the polling booth of Tafua-tai.
  4. In either respect it must fail. There is no evidence that any provision of food to electoral officials was intended to induce them to vote for any candidate or from voting in the election. There was no evidence given at trial that any gifts were provided or distributed by any member of Faumuina's campaign committee.
  5. The claim that the presentation was an illegal practice fails to take into account the words of s99A which state '...and ending at the close of the Poll on polling day'.
  6. The Court will make mention of this matter in its Report to the Speaker under the Act s120.

Recrimination or Counter Allegations


  1. The First Respondent also claimed that the Petitioner was not qualified as a candidate for the Constituency since he had not performed monotaga.
  2. The Petitioner was not elected to the Legislative Assembly and the only possible reason for this Court to consider the claim would be to provide guidance to the Commissioner in future cases. The Court sees little purpose in entertaining the Petitioner's argument.
  3. The Petitioner and other learned witnesses say that it is the village custom that the Tagaloa title as Papa or Ao does not require a monotaga which is done by matai with lesser titles. He performs tautau but not monotaga. He contends in addition that he has performed service to his village as required by the Act s5 (3)(A), in compliance with Form 1A of the Schedule.
  4. The Respondent abandoned this claim for disqualification during the trial. There is no basis for the disqualification of the Petitioner as a candidate in the 2011 Election.

Bribery and Treating


  1. The Petition alleges acts of bribery and treating by way of recrimination or counter-allegations in the following grounds:

"2. That in or about October or November 2010 or thereabouts, the Petitioner engaged in the act of bribery and corrupt practices when he attended a meeting at Gautavai and Sili and paid to the village the sum of $10,000.00;


  1. That in or about December 2010 or thereabouts, the Petitioner engaged in the act of bribery and corrupt practices when he attended a meeting of Gautavai and Sili and paid to the village the sum of $5,000.00 or $6,000.00;
  2. That the Petitioner, directly or indirectly, engaged in the act of bribery or corrupt practices when $50 pasese was given to Sao Natapu on or about 21 February 2011;
  3. That the Petitioner engaged in the act of treating when he paid for the lunch of Sao Natapu at the Cappuccino Vineyard on or about 21 February 2011; and
  4. That in or about late February or early March 2011, the Petitioner engaged in bribery and corrupt practices when he paid $10.00 for the cigarettes or tipi of Matau Tutogi."
  5. The First Respondent abandoned allegations 4, 5 and 6 during the trial and each will be dismissed.

October Gift to Sili and Gautavai


In October 2010 the Petitioner attended a meeting of electors from both villages at Gautavai. After the ava ceremony he presented the villages with the sum of $10,000.


  1. The Petitioner does not dispute that he made the gift. In July he had been approached by representatives of Sili and Gautavai and asked to confirm his candidacy for the 2011 Elections. A meeting was deferred until 11 October when he presented $10,000 to the two villages. A further meeting was held on 21 December to which the Constituency including the villages of Papa, Puleia, Tafua and Gataivai were invited will be separately considered.
  2. Tagaloa Pita held the title of Leota Tama since 1966 and that of Le Tagaloa since 1975. He stood as a candidate under the title of Le Tagaloa from Sili.
  3. The Petitioner was entitled as a candidate to perform momoli during the period prescribed by the Act s97 A. The Act s97A provides:

"Conduct of "O'o" and "Momoli – Despite the other provisions of this Act, the traditional presentation of "O'o" and "Momoli" by a Member or Candidate for Parliament or a person acting on behalf of such Member or Candidate shall not be considered as treating or bribery or an illegal or corrupt activity or practice provided that the presentation is made within the period commencing with the 180th day and ending with the 90th day from expiry of the then Parliament at 5 years from the date of the last preceding General Elections."


  1. The Petitioner and one of the witnesses referred to the event as an o'o, itself a misnomer. At best it would have been a momoli. But we believe that either reference was incorrect, and a product of misunderstanding of the true nature of the event.
  2. The Petitioner had previously been a Member of Parliament of the Constituency. He had conducted similar ceremonies in the past.
  3. Here the ceremony was not momoli. He had returned to his village as a gesture of thanks and respect for their support of his candidacy. His title alone required a significant gift. It was not momoli since he had already received the support and promotion of the villages of Sili and Gautavai.
  4. It is correct as counsel for the Second Respondent submitted that the Petitioner had rarely made a gift of thanks, and it creates suspicion.
  5. Counsel also suggested that the amount given itself was disproportionate. But 500 persons, many of whom were electors, attended. The gift to so many was equivalent to one half of the price of a second hand car and not disproportionate to the numbers attending.
  6. The Court finds that the event was not momoli but gratitude for the support already given and announced by the villages of Sili and Gautavai.
  7. The October event was undertaken within the permitted time. The general purpose and form of the ceremony of momoli was outlined by the Election Court in Ah Him v Amosa (supra); Su'a Rimoni v Mulitalo Vui and the Electoral Commissioner in a judgment delivered on 1 August 2006.
  8. In that case the Court said at page 18:

"...s97 A should be construed so that a 'o'o' and 'momoli' referred to in the section is limited to those made within the territorial limits of the Constituency of the Member or Candidate for Parliament who makes the particular presentation."


  1. In the latter case, the Court had reason to consider the argument that custom is a 'living practice' not 'frozen' and ought be allowed to adapt to the 'living practice' or breathing, changing forms of human behaviour. This matter ought be best raised in our Report to the Speaker.

December Gifts


  1. The Petitioner performed momoli in December. In that month an invitation was given to the villages within the Constituency, namely Sili, Gautavai, Papa, Puleia, Gataivai and Tafua. The latter four declined the invitation and boycotted the ceremony.
  2. The Petitioner was asked by the First Respondent's counsel to compare 2 lists of matai who attended both the October and December ceremonies. A considerable number had done so. It was clear that many electors attended the October and December events and received money and food at each occasion. The Act refers to 'the traditional presentation of o'o and momoli' suggesting that there could be only a single presentation to an electorate. The candidate might be permitted to conduct momoli presentations to each village but not more than one to a particular village.
  3. In this case the First Respondent had presented his o'o to the villages of Tafua, Puleia, Sili and Gautavai on 27 December and to Papa and Gautavai on the following day. He was entitled to do so.
  4. The Petitioner performed a gift of gratitude to the villages of Sili and Gautavai on one occasion in October and momoli in December to the Constituency.
  5. In Su'a Rimoni v Mulitalo (supra) the Court found that the conduct of an o'o at Vaimoso, a village outside of the candidate's Constituency did not conform with custom and as such was not protected by the Act s97A.
  6. Here the question is whether the presentation can be made more than once if conducted in or for different villages within the Constituency.
  7. The candidate was seeking election from the electors of a Constituency not a village. But he was entitled to make separate presentations to each village, alone or in combination.
  8. The Court is also conscious that at the December presentation he made a gift of $5,000 rather than the $10,000 presented at the October ceremony. It is a reasonable inference that the December sum reflected the numbers attending. Had the villagers of Papa, Puleia and Tafua attended as invited, the presentation may have required a gift greater than $5,000 to meet the larger number of electors. They were not present by choice. The gift of $5,000 made in December was not disproportionate to the size of the assembly.

Conclusion


  1. The December momoli was a lawful presentation. Boycott did not make it unlawful.
  2. The Petitioner was permitted in custom and by law to conduct both ceremonies.
  3. The counter allegations ought be dismissed.

October


  1. During the course of submission Mr Toailoa raised an important question concerning the permitted use of o'o and momoli.
  2. The question was whether a candidate could perform separate presentations for each village and an additional one for the Constituency. We agreed that separate presentations could be made to each village or collection of villages once but not twice. We ought not, in the absence of considered argument answer his real and cogent question concerning an additional presentation to the whole Constituency after the performance at each or collection of villages.
  3. The general purpose and form of ceremony was outlined by the Court in Ah Him (supra) and Su'a Rimoni v Mulitalo Vui and the Electoral Commissioner (delivered on 1 August 2006). In the latter case the Court said at 18:

"...s97 A should be construed so that a 'o'o' and 'momoli' referred to in the section is limited to those made within the territorial limits of the Constituency of the Member or Candidate for Parliament who makes the particular presentation."


and Slicer J. stated that he


"had reason to consider the argument that custom is a 'living practice' not 'frozen' and ought be allowed to adapt to the 'living practice' or breathing, changing forms of human behaviour."


  1. The question as to whether an additional and concluding ceremony of o'o or momoli will be left for another day.

Costs


  1. The parties commendably shortened the length of these proceedings, by withdrawing some of the allegations and making appropriate concessions. The Court commends the parties and their counsel for their conduct of the respective cases.
  2. Nevertheless both made serious allegations against the other. Both failed to establish corrupt practice. It is appropriate that each pay their costs of the proceedings.
  3. The Petitioner alleged in paragraph 17 that the presentation of food by members of the First Respondent's campaign committee to the Second Respondent's representative was either a corrupt or illegal practice. He joined the Electoral Commissioner as a party. The allegation, by implication, accused electoral officials of corrupt, illegal or unlawful conduct. The claim was shown to be wrong. The Court will report to the Speaker on this matter. But the Second Respondent has been put to the expense by reason of the allegation through his necessary appointment of counsel during the trial. It is appropriate that the Petitioner pay the costs of the proceedings of the Second Respondent.

Declarations and Orders


(1) The Court declares that the First Respondent was qualified to stand as a candidate for the Constituency of Palauli-Le-Falefa in the 2011 Election.

(2) The Court declares that the Petitioner was qualified by custom to stand as a candidate for the Constituency of Palauli-Le-Falefa in the 2011 Election.

(3) The First Respondent is not guilty of acts of corrupt practice and the Petition is dismissed.

(4) The Petitioner is not guilty of acts of corrupt practice and the counter-allegations are dismissed.

(5) The Petitioner and the First Respondent are to pay their own costs of the proceedings.

(6) The Petitioner is to pay the Second Respondent's costs of the proceedings.

_______________________________
Honourable Chief Justice Sapolu


_______________________________
Honourable Justice Slicer

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