Kasimani v Seuala [2011] WSSC 87 (8 August 2011)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

FUATAGA KASIMANI of Lalomanu, Aleipata, a candidate for election.
Petitioner

AND:

SEUALA TAUA TAVAGA KITIONA SEUALA of Lalomanu, Aleipata, a candidate for election.
Respondent

Counsel: L R Schuster and J Annandale for petitioner
T R S Toailoa for respondent

Hearing: 26, 27, 28, 29 April 2011, 4, 5, 6, 10 May 2011

Orders: 13 May 2011

Judgment: 8 August 2011

JUDGMENT OF THE COURT DELIVERED BY SAPOLU CJ

PART A

Introduction

1. On 13 May 2011 we delivered our orders voiding the election for the territorial constituency ("the constituency") of Aleipata Itupa i Luga and indicated that we would provide a judgment with reasons in due course. This is that judgment.
   
2. The official results of the general election held on 4 March 2011 were declared by the Electoral Commissioner ("the Commissioner") on 14 March by public notice in the Gazette. The results for the constituency of Aleipata Itupa i Luga were as follows:
   

Candidates	Votes received
Fuataga Kasimani	771
Seuala Taua Tevaga Kitiona Seuala	1009
Total number of valid votes	1780
	-------
Informal votes	14

3. Seuala Taua Tevaga Kitiona Seuala ("Seuala"), the respondent in these proceedings, was accordingly declared and reported to be elected as the Member of Parliament for the constituency of Aleipata Itupa i Luga.
   
4. Following the declaration of the results of the general election, Fuataga Kasimani ("Fuataga"), the petitioner in these proceedings, filed an election petition on 23 March alleging against the respondent the electoral corrupt practices of bribery and treating under ss.96 and 97 of the Electoral Act 1963 ("the Act") respectively as well as illegal practices under s.99A. The petitioner also sought several orders including an order to void the election of the respondent. In the course of proceedings the petitioner confined his allegations to the corrupt practices of bribery and treating and abandoned the allegations of illegal practices.
   
5. In response, the respondent raised allegations of bribery and treating and one allegation of illegal practice against the petitioner. In terms of s.111 (b), a respondent may give evidence of corrupt and illegal practices against a petitioner to show that if the petitioner had been elected his election would have been unlawful.
   
6. We will deal first with each of the allegations of bribery and treating made by the petitioner against the respondent and then with each of the counter allegations made by the respondent against the petitioner. It is well established that in this context, the onus of proving an allegation is on the party making the allegation and the standard of proof is beyond reasonable doubt.
   

PART B

Allegations of electoral corrupt practices made by the petitioner against the respondent

7. For ease of understanding and to avoid confusion, we will deal with the petitioner's allegations against the respondent in chronological order.
   
   • (a) Alleged giving of $50 and a box of chicken pieces to elector Iona Anau during the week before Christmas 2010
     
8. In terms of chronology, the first allegation made by the petitioner against the respondent is a joint allegation of bribery and treating. It is alleged that during the week before Christmas 2010, the respondent went to the home of the elector Iona Anau at Fasitoo-uta and gave him $50 and one box of chicken pieces as a Christmas gift for the purpose of inducing the said elector to vote for the respondent at the election.
   
9. There was no dispute that the alleged giving of $50 and one box of chicken pieces did take place. Iona Anau (Iona) said in his affidavit evidence that during the week before Christmas 2010 two cars came to his home at Fasitoo-uta. The respondent was in one of the cars. The respondent then handed him $50 and a box of chicken pieces as a Christmas gift. The respondent in his oral testimony admitted that he went to Iona and gave him $50 and a box of chicken pieces as a Christmas gift.
   
10. The crucial question is whether the respondent had the intent to influence Iona to vote for him at the upcoming general election when he gave Iona the said money and the box of chicken pieces. The petitioner in his evidence said that Iona was born in Lalomanu where his parents were shopkeepers for Morris Hedstrom Ltd. This was confirmed by Iona in his evidence. Iona also said that he and his parents left Lalomanu in 1974 and except for two days during the palolo rise in 1979 he has not returned to Lalomanu ever since.
    
11. The respondent testified that he and Iona were best friends when Iona and his parents were living at Lalomanu. He was surprised when he saw the name of Iona on the electoral roll for Aleipata Itupa i Luga for the 2011 general election. He decided he must go and visit his friend he had not seen for a very long time. So on his way back from a family fa'alavelave at Apolima, he called in at Iona's house to see his friend when he arrived at Fasitoo-uta. The money and the box of chicken pieces he gave Iona as a Christmas gift were part of the presentation he had received from his family's fa'alavelave at Apolima.
    
12. It also appears from the respondent's evidence that he had known of Iona's unfortunate circumstances, which we need not mention, for quite some time but the Christmas period in 2010 when the general election was imminent was the first time he decided to visit his old friend after seeing his name on the electoral roll for the Aleipata Itupa i Luga constituency.
    
13. Given the imminence of the upcoming general election, the fact that the respondent's visit to Iona at Fasitoo-uta was unprecedented, and that the visit was made only after the respondent had seen Iona's name on the electoral roll for Aleipata Itupa i Luga, we are of the clear view that the purpose of the respondent's visit to Iona and the giving to him of $50 and a box of chicken pieces was to induce Iona to vote for the respondent in the general election. There is no other reasonable explanation for the respondent's actions.
    
14. We are therefore satisfied that the joint allegation of bribery and treating against the respondent has been proved beyond reasonable doubt.
    
15. By way of defence, counsel for the respondent submitted that the said Iona Anau, even though he had been registered as an elector for the constituency of Aleipata Itupa i Luga, does not satisfy any of the qualifications for an elector provided in s.16(2) (b) of the Act in order to be registered as an elector of the territorial constituency of Aleipata Itupa i Luga. However, in terms of s.96 which provides for the corrupt practice of bribery only an elector can be bribed. As Iona was not qualified to be an "elector" for the Aleipata Itupa i Luga constituency in the 2011 general election, counsel for the respondent further submitted that the giving of $50 and a box of chicken pieces to him by the respondent during the week before Christmas 2010 could not have amounted to bribery in terms of s.96. Counsel for the respondent also referred to s.2 which defines the term "elector" and to s.70A which provides for who may vote at an election in a constituency.
    
16. We have given careful consideration to the submissions by counsel for the respondent and have decided not to accept them.
    
17. Section 2 of the Act defines the term "elector" in relation to any territorial constituency to mean "a person registered, or qualified to be registered, as an elector of that territorial constituency." Thus a person who is "registered" or "qualified to be registered" as an elector of a constituency is an elector of that constituency. Iona Anau was in fact "registered" as an elector of territorial constituency of Aleipata Itupa i Luga. So in terms of the definition in s.2, he would be an "elector" of the constituency. Whether or not he was qualified to be registered as an elector of the territorial constituency of Aleipata Itupa i Luga is a different matter. Being "registered" and being "qualified to be registered" are not synonymous.
    
18. Section 70A which provides for persons who may vote at an election in a constituency states:
    

"Subject to the other provisions of this Act, any person whose name lawfully appears on the main roll or any supplementary roll for a constituency or on the main or supplementary individual voters roll, as the case may be, and who is qualified to be registered as an elector for the constituency or as an individual voter shall be qualified to vote at an election in that constituency or as an individual voter as the case may be".

19. For the purpose of an election in a constituency, it appears from s.70A that only a person whose name lawfully appears on an electoral roll for a constituency and who is qualified to be registered as an elector for that constituency is qualified to vote as an elector in that constituency. By implication, a person whose name does not lawfully appear on an electoral roll for a constituency and who is not qualified to be registered as an elector for that constituency, is not qualified to vote as an elector in that constituency. In other words, a person who is not qualified to be registered as an elector in a constituency but somehow is registered and his name appears on the electoral roll of that constituency, is not qualified to vote as an elector in that constituency.
    
20. That, however, does not mean such a person is not an "elector" in terms of s.2 which defines the term "elector" to include "a person registered as an elector" of a constituency. Such a person would still be an "elector" in terms of s.2 but he would be an "unqualified elector" and therefore not qualified to vote in terms of s.70A. It is also to be noted that s.70A is not concerned with the definition of an "elector" but with the question of who may vote at an election in a constituency. Furthermore, the opening words of s.70A are, "subject to the other provisions of this Act."
    
21. Section 96 of the Act which deals with the electoral corrupt practice of bribery, further defines the term "elector" for the purpose of bribery. Section 96 (1) provides:
    

"In this section, the terms 'elector' and 'voter' include any person who has or claims to have a right to vote."

22. The Representation of the People Act 1983 (UK) which governs parliamentary elections in England consolidates and replaces the Representation of the People Act 1949 (UK) and the various enactments amending it. Section 113 (7) of the 1983 Act which deals with electoral bribery is in the same terms as s.99 (7) of 1949 Act. We have looked at the commentaries on those two provisions which are in similar terms to s.96 (1) of our Electoral Act 1963. In 4 Halsbury's Laws of England 4th ed, para 768 to 7, it is there stated.
    

" 'Voter' means a person voting at an election and includes a person voting as proxy, and 'vote' is construed accordingly: Representation of the People Act 1949, s.171 (1). In s.99 'voter' also includes any person who has, or claims to have, a right to vote: s.99 (7). The fact that the voter was ineligible for voting does not necessarily prevent it being bribery: Lichfield Case (1869) 1 O'M & H22; Guildford Case (1869) 1 O'M & H13."

23. In Parker's Law and Conduct of Elections (2007) vol 1, para 20.4, the learned authors state:
    

"Bribery under section 113 of the 1983 Act may be committed although the 'voter' does not have the right to vote. The word 'voter' in section 113 means any person who has, or claims to have, a right to vote (section 113 (7) and see Guildford, 1 O'M & H 13 at 14).

24. Applying the interpretations of ss.2, 70A and 96(1) of our Electoral Act 1963 we have adopted and the commentaries on the relevant English statutory provisions to which we have referred to the said Iona Anau, we are of the view that even though Iona Anau was not qualified in terms of s.16(2) (b) of the Act to be an elector of the Aleipata Itupa i Luga constituency, he was an elector in terms of s.2 and of s.96(1) and therefore capable of being bribed by the respondent.
    
25. For those reasons, we do not accept the submissions by counsel for the respondent that, for the purpose of the corrupt practice of bribery, Iona Anau was not an "elector" of the Aleipata Itupa i Luga constituency because he was not qualified to be such in terms of s.16(2) (b) and therefore cannot be bribed.
    

(b) Alleged giving of $20 by a member of the respondent's election committee to elector Iole Leiataua Eliu on 7 February 2011 to buy cigarette and sugar

26. The second allegation, in terms of chronology, made by the petitioner against the respondent is one of bribery. It is alleged that on 7 February 2011, a member of the respondent's election committee gave $20 to the elector Iole Leiataua Eliu (Iole) at Tanumalala to buy cigarettes and sugar for the purpose of inducing the said Iole and his wife to refrain from voting for the petitioner but to vote for the respondent. This allegation insofar as it relates to Iole's wife was not pursued and is not supported by the evidence. That part of this allegation is therefore dismissed. That leaves only that part of the allegation which relates to Iole.
    
27. Iole was called as a witness for the petitioner. He said in his evidence that on Monday evening 7 February 2011 members of the respondent's election committee came to his house at Tanumalala and asked him whether he and his wife were voting for the petitioner but to consider voting for the respondent in order to retain the ministerial seat the constituency of Aleipata Itupa i Luga has in Cabinet. The respondent at the time was a Cabinet minister. Iole replied to leave it with him to consider.
    
28. Iole further said that one "Faletoa" then gave him $20 to buy cigarette and sugar. He denied the evidence given in the affidavit of the witness Aulaumea Sekai called for the respondent that he begged (aisi) the members of the respondent's election committee for cigarettes.
    
29. The respondent's witness Aulaumea Sekai (Aulaumea) said that on 7 February 2011 the respondent's election committee of which he was a member went on its usual inspection of electors. When they visited the house of Iole at Tanumalala, they talked about the up-coming general election and Iole begged Letoa for a cigarette but Letoa had no cigarette. When they parted with Iole, Letoa then gave Iole $20 to buy himself a cigarette. Letoa is a relative of the respondent.
    
30. We have given careful consideration to the evidence of both witnesses Iole and Aulaumea. Where they differ, we have decided to accept the evidence of Iole. Both witnesses had also been subjected to cross-examination and we had sufficient opportunity to observe each of them in the witness stand.
    
31. As Iole could be an accomplice for being the recipient of an alleged tribe, we note in this connection what we said about an accomplice and corroboration in Tufuga Gafoaleata Faitua v Vaai Papu Vaelupe [2011] WSSC 45 at para 38:
    

"In respect of an allegation of election corrupt practice such as bribery, the Court is not bound by the strict practice applicable to criminal cases but may act on the uncorroborated testimony of an accomplice (M'Glory v Wright (1860) 10 ICLR 514 cited in 4 Halsbury's Laws of England vol 15 para 780 fn 7)"

32. However, if corroboration is required of the evidence given in this case by the witness Iole, the evidence of the witness Aulaumea does corroborate the evidence of Iole in several material particulars.
    
33. Given the imminence of the general election that was held on 4 March 2011, the purpose of the visit to the house of Iole by the respondent's election committee which was electioneering for the respondent, the nature of the subject-matter that was discussed by the respondent's election committee with Iole, and the evidence of Iole which we accept, we are satisfied beyond reasonable doubt that the purpose of the $20 given by a member of the respondent's election committee to Iole to buy cigarettes and sugar was to induce him to vote for the respondent and not to vote for the petitioner.
    
34. In this connection, we would like to refer to the law on electoral agency and the liability of an election candidate for the acts committed by his agents. In 4 Halsbury's Laws of England vol 15, para 701 the learned editors stated:
    

"Being a member of a candidate's election committee is strong evidence of agency. Agency cannot be avoided by merely not appointing a committee; persons who do what members of the committee generally do are just as much members of the committee as if they were expressly called so for that reason, but a member of a self-constituted voluntary committee does not become an agent of the candidate. Evidence of agency may be rebutted."

35. In Tufuga Gafoaleata Faitua v Vaai Papu Vaelupe [2011] WSSC 50, this Court dealt with the law on electoral agency and said:
    

"57. The primary principle is that a candidate remains responsible for the conduct of his or her agent.

58. The principle of strict liability for acts of an agent even if unauthorised or forbidden by the candidate was established by the Corrupt and Illegal Practices Prevention Act 1883 in the United Kingdom.

36. The Court went further in Tufuga Gafoaleata Faitua v Vaai Papu Vaelupe [2011] WSSC 50 and said:
    

"60. The term 'agent' has since been extended in New Zealand and Samoa so as to embrace more than one person but the principle of strict liability has remained. The model of election agent and strict liability has not been adopted in Australia. The Courts recognised that the definition of agency for election cases differs from that applicable to criminal liability. As Baron Martin stated in the Norwich Case (1869) 1 O'M & H 8 at 10:

" '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 sit in Parliament has to be settled upon an entirely different principle'.

"61. That principle was adopted by the New Zealand Court of Appeal in Bay of Islands Election Petition [1915] NZGazLawRp 60; [1915] 34 NZLR 578. This Court has applied the principle in Olaf & Others v Chan Chui [2001] WSSC 18 and Petaia v Pa'u [2007] WSSC 15. In the former case, Vaai J said:

" 'A candidate, however innocent, would be liable and responsible for any illegal acts done by or under the authority of his agent in the sense that the election will be avoided. It makes no difference whether the candidate did not authorise, did not know, or had not consented to the doing of the illegal act. In fact even if the agent acted illegally in defiance of express instructions to the contrary from the candidate, the election of the candidate will be avoided. This approach is consistent with the spirit of the legislation that elections should be conducted by honest and proper means and untainted by under hand influences'."

37. Further on, this Court said:
    

"63. It is the corrupt actions of a candidate or persons acting on his or her behalf which vitiates an election because an election must be, so far as is possible, free and fair. Vitiating an election is a serious step requiring the Courts to be careful in determining the question of agency in the circumstances of each case. Vitiation of an election is governed by the public need for fair election rather than culpability of the candidate."

38. Applying the principles of the law of electoral agency to the action by the member of the petitioner's election committee in giving $20 to Iole, which we have found to be bribery, we are of the view that the respondent is guilty of the bribery committed by his election committee. Allegation (b) has therefore been proved beyond reasonable doubt.
    
39. As with allegation (a), counsel for the respondent submitted that Iole, though registered as an elector of the Aleipata Itupa i Luga constituency, was not an "elector" of the said constituency for the purpose of the electoral corrupt practice of bribery under s.96 of the Act. That is because he does not satisfy any of the qualifications provided under s.16 (2) (b) for registration as an elector of the Aleipata Itupa i Luga constituency. Therefore, the action by the member of the respondent's election committee who gave $20 to Iole cannot be bribery because in terms of s.96 only an elector is capable of being bribed. For the reasons we have given to reject the similar submissions by counsel for the respondent in relation to allegation (a), we have also decided to reject the present submissions by counsel for the respondent in relation to this allegation.
    

(c) Alleged giving of $200 and one gallon of Niu vodka by the respondent to a group of 12 untitled men from Satitoa on 26 February 2011 for cattle farm work

40. The third allegation, in terms of chronology, made by the petitioner against the respondent is a joint allegation of bribery and treating. It is alleged that on Saturday 26 February 2011, the respondent gave $200 and one gallon of Niu vodka to a group of about twelve men from the village of Satitoa after they had done work on the respondent's cattle farm at Lalomanu and told them "Tautuaga le palota" (Bear in mind the election). The one gallon of Niu vodka was actually a large plastic bottle of vodka of about 2.5 litres.
    
41. Three witnesses, namely, Amasetone Mika (Amasetone), Sootaga Tauinaola (Sootaga), and Visesio Emani (Visesio), who are all electors of the territorial constituency of Aleipata Itupa i Luga, were called for the petitioner to prove the present allegation. All three witnesses testified that on Friday 25 February 2011, a matai of their village of Satitoa by the name of Leota Tauese, who is a member of the respondent's election campaign committee, told them on a bus about the respondent's work on his cattle farm at Lalomanu the next morning. They further testified that on Saturday morning 26 February 2011, a dyna truck owned by the respondent came around to Satitoa and picked up a group of twelve (12) men including themselves and took them to the respondent's cattle farm. On their way, the dyna truck stopped and picked up a group of sixteen (16) boys at Vailoa.
    
42. According to Amasetone, Sootaga, and Visesio this was the first time any of them had take part in any work on the respondent's cattle farm. They also said that after the work on the respondent's cattle farm in the early afternoon, they were brought on the respondent's dyna truck to the house of the respondent where the respondent gave their group of twelve (12) men from Satitoa $200 and a gallon of Niu vodka and said "Tautuana le palota" (Bear in mind the election). Under cross-examination, all three witnesses agreed that the respondent had also said to the group from Satitoa to "vote for the candidate of your choice".
    
43. From the $200 given by the respondent to the group from Satitoa, Amasetone received $10, Sootaga received $20, but it is not clear from Visesio's evidence how much he received. All three, together with some of their colleagues in the group from Satitoa, also shared in drinking the one gallon of Niu vodka.
    
44. In terms of the evidence given by and for the respondent, there is no significant difference between their evidence and the evidence given by the petitioner's witnesses Amasetone, Sootaga and Visesio except as to what the respondent is alleged to have said when he gave $200 and the Niu vodka to the group from Satitoa.
    
45. According to the respondent in his affidavit and oral evidence, it is usual to have work done on his cattle farm every month. Such work is performed once or twice a month by groups of men and he paid for their labour. The work that was done on 26 February 2011 was no different. Likewise, the remuneration. There was no further work done on the respondent's cattle farm in March, April and May.
    
46. The respondent also said that after the work on his cattle farm and the two groups of workers from Satitoa and Vailoa had been brought to his house, he thanked them for the work done and apologised that there was no food as there were no members of his family to prepare any food for them. He then told members of each group to whom he had given the money to give reasonable amounts to the student members of each group because these members do not drink alcohol. The majority of the two groups, however, were electors of the constituency of Aleipata Itupa i Luga.
    
47. In relation to this allegation by the petitioner, the witnesses Aulaumea Sekai, Limatasi Lepale, Kuata Amosa, Panapa Lagofaatasi, Okesene Nuusolia, Etuina Faanoi, and Faanoi Malama were called in support of the evidence given by the respondent. Some of these witnesses, like Aulaumea Sekai, Limatasi Lepale, Faanoi Malama and Panapa Logofaatasi were members of the respondent's election campaign committee. They testified that the work done on the respondent's cattle farm on Saturday 26 February 2011 was cutting down weeds (vao migi) and kuava trees that were inhibiting the growth of good grass for the cattle. At the end of the work, there still remained bad weeds and kuava trees to be cleared.
    
48. The witness Kuata Amosa (Kuata) who is the relative of the respondent that looks after the respondent's cattle farm testified that work is done on the respondent's cattle farm twice or three times a month. The last work that was done on the respondent's cattle farm was on 26 February 2011. There were still a lot of bad weeds and kuava trees in the cattle farm which had not been cut down.
    
49. The said witnesses for the respondent also gave evidence to the effect that when the respondent gave out money and vodka to the groups of workers from Satitoa and Vailoa, he said this is not "faatosina" (bribery and treating) but the usual remuneration for work on his cattle farm. The respondent further said "O le palota le vaiaso fou ae pule lava le tagata ia i le sui e palota iai" (Next week is the election but it is up to each person to vote for the candidate of his choice).
    
50. There was no dispute that the respondent gave $200 and a large plastic bottle of Niu vodka on Saturday 26 February 2011 to the group of twelve (12) male workers from Satitoa. Some of these men like Amasetone, Sootaga, and Visesio are electors of the Aleipata Itupa i Luga constituency. What was in dispute is whether the respondent intended to influence the said electors to vote for him at the election.
    
51. After careful consideration of the evidence we conclude that the respondent had such an intent. For the respondent to say to the workers from Satitoa that next week is the election and it is up to each person to vote for the candidate of his choice whilst at the same time giving them $200 and a large plastic bottle of vodka was paradoxical. The money and the vodka must have had the intended effect of influencing that choice. Actions can speak louder than words. The Court has to be astute in this type of situation and look carefully not only at what is said but also at what is done and the context in which it is done.
    
52. Furthermore, for the respondent to continue employing workers which included electors from his constituency and paid for them with money and alcohol when it was six days before the election, he was running the risk of being found guilty of bribery and treating. We are satisfied from the evidence that there was no urgency in the work done on 26 February on the respondent's cattle farm. Such work could have been postponed until after the election the following week. It also appears from the evidence that no further work was done on the respondent's cattle farm after 26 February.
    
53. In the circumstances, we are satisfied beyond reasonable doubt that the respondent intended to influence the electors of his constituency who were amongst the group of workers from Satitoa when he gave out to them money and alcohol. We therefore conclude that the present joint allegation of bribery and treating has been proved.
    

(d) Alleged giving of $200 and one gallon of Niu vodka by the respondent to a group of 16 men from Vailoa on 26 February 2011 for cattle from work

54. The fourth allegation, in terms of chronology, made by the petitioner against the respondent is another joint allegation of bribery and treating. It is alleged that on Saturday 26 February 2011, the respondent gave $200 and one gallon of Niu vodka to a group of about sixteen (16) able men from village of Vailoa after they had done work on the respondent's cattle farm at Lalomanu and said to them "Tautuaga le palota" (Bear in mind the election). The one gallon of Niu vodka was actually a large plastic bottle of vodka of about 2.5 litres.
    
55. One witness, namely, Tovio Sefo from the village of Vailoa and an elector of the territorial constituency of Aleipata Itupa i Luga, was called for the petitioner in support of the present allegation. He testified that on Friday afternoon 25 February 2011, Limatasi Lepale a member of the respondent's election campaign committee came to his house and said that work was to be done on the respondent's cattle farm on Saturday 26 February 2011.
    
56. Tovio Sefo further testified that at 8am on Saturday morning 26 February 2011 a dyna truck owned by the respondent picked up a group of sixteen (16) men of Vailoa including himself. Already on the truck at that time were boys from the village of Satitoa. The truck then took the groups from Vailoa and Satitoa to the respondent's cattle farm at Lalomanu. This part of the evidence of Tovia Sefo is consistent with the evidence given by the witnesses Amasetone, Sootaga, and Visesio who were amongst the group from Satitoa.
    
57. After the work on the respondent's cattle farm, both groups from Vailoa and Satitoa were then brought to the respondent's house at Lalomanu. According to the evidence of Tovio Sefo, the respondent thanked the group from Vailoa and gave them $200 and a gallon of Niu vodka which was accepted by one Vaosa Saumalu. At the same time the respondent said "Tautuaga le palota" (Bear in mind the election).
    
58. The evidence which was given by the respondent in opposition to the evidence given by Tovio Sefo is substantially the same as the evidence he gave in opposition to the allegation concerning the $200 and the one gallon of Niu vodka he gave to the group from Satitoa. The witnesses Aulaumea Sekai, Limatasi Lepale, Kuata Amosa, Panapa Logofaatasi, Okesene Nuusatia, Etuina Faanoi and Faanoi Malama who were called in support of the respondent's evidence in relation to the money and alcohol given to the group from Satitoa, also gave substantially the same evidence in support of the respondent's evidence concerning the $200 and the gallon of Niu vodka that was given to the group from Vailoa.
    
59. Again there was no dispute that the respondent gave $200 and a gallon of Niu vodka on Saturday 26 February 2011 to the group of sixteen (16) men from Vailoa. What was in dispute is whether the respondent intended to influence the electors in the group from Vailoa to vote for him at the election. After careful consideration of the evidence, we have decided that the respondent had such an intent for the same reasons that we conclude that he had the same intent in relation to the money and alcohol he gave to the group from Satitoa.
    
60. We are therefore satisfied beyond reasonable doubt the petitioner has also proved this allegation against the respondent.
    

(e) Alleged giving of $300 and one gallon of Niu vodka by the respondent to a group of 20 men from Vailoa on 26 February 2011 for work at the new Lalomanu settlement

61. The fifth allegation in terms of chronology, made by the petitioner against the respondent is another joint allegation of bribery and treating. It is alleged that on Saturday 26 February 2011, the respondent gave $300 and one gallon of Niu vodka to a group of twenty (20) able men from the village of Vailoa for work done for the respondent at the new Lalomanu settlement. Again the one gallon of Niu vodka was actually a large plastic bottle of vodka of about 2.5 litres.
    
62. In support of this allegation the petitioner called as witness one Faleesea Ololua Hunt (Faleesea) a 47 year old male from Vailoa and a member of the petitioner's election campaign committee for the 2011 general election. We are satisfied from the evidence that Faleesea is an elector of the territorial constituency of Aleipata Itupa i Luga.
    
63. Faleesea testified that on Friday evening 25 February 2011, one Limatasi Lepale who was a member of the respondent's election campaign committee came to Vailoa and notified people of the respondent's work the following day. Then at about 8am on Saturday morning 26 February 2011 a double cab pick-up vehicle arrived at Vailoa and picked up twenty (20) titled and untitled men including himself and took them to Lalomanu to do the respondent's work at the new Lalomanu settlement. This work which started at about 9am involved felling small trees and cutting grass and shrubs.
    
64. When the work ended at about 12 noon, Faleesea said that the respondent arrived and thanked their group from Vailoa and asked them to show the hands of those who did not drink alcohol and then to show the hands of those who drink alcohol. The respondent then said:
    

"Faleesea, I know you are one of the leaders of Fuataga's committee. This is not a bribe. This is my work I am paying for". The respondent then gave to Faleesea $300 and a gallon of Niu vodka for their group from Vailoa.

65. It appears from the evidence that when the respondent gave out the $300 and the vodka to Faleesea on behalf of the group of twenty (20) men from Vailoa, the other group of sixteen (16) men from Vailoa and the group of twelve (12) men from Satitoa who had been doing work on the respondent's cattle farm were also present. So there were three different groups altogether.
    
66. In response to the present allegation, the respondent testified that when he gave out the $300 and vodka to Faleesea on behalf of the men from Vailoa, he said this is not "faatosina" (bribery or treating) but remuneration for the work done. He also said he told Faleesea to give reasonable amounts of money for the student workers as they do not drink alcohol. The respondent did not believe that work which should be done should not be stopped simply because of an election.
    
67. The witnesses Panapa Logofaatasi and Faanoi Malama, both election campaign committee members for the respondent, as well as the witness Anthony Noa were called for the respondent in relation to the present allegation. They all testified that when the respondent gave the $300 and the vodka to Faleesea, the respondent said this is not "faatosina" (bribery or treating) but the usual remuneration for work done for him. The respondent also said next week is the election but it is up to each person to vote for the candidate of his choice. The respondent further said to Faleesea to give reasonable amounts of money for the student workers as they do not drink alcohol. This evidence clearly suggests that some members of the group of twenty (20) men from Vailoa were electors while others were not.
    
68. We have to say that the work done for the respondent at the new Lalomanu settlement was not usual work. The new Lalomanu settlement was only set up after the tsunami on 29 September 2009. There was also no evidence that this work had to be done on or about 26 February 2011. In our view, this work could have been left until after the election on 4 March 2011 which was only six days away. We are of the view that the carrying out of this work six days before the election was to give the respondent the opportunity to bribe and treat the electors involved under the guise of paid employment.
    
69. Furthermore, for the respondent to say this is not "faatosina" and it is up to each person to vote for the candidate of his choice while at the same time giving electors money and alcohol when the election was six days away is paradoxical. The Court has to be astute in this type of situation and we are of the clear view that the money and alcohol were intended to influence the electors concerned to vote for the respondent.
    
70. It follows that the present joint allegation of bribery and treating against the respondent has also been proved beyond reasonable doubt at least in relation to the elector Faleesea.
    

(f) Alleged giving by the respondent of $50 to elector Iona Anau on 27 February 2011 at Fasitoo-uta

71. The sixth allegation, in terms of chronology, made by the petitioner against the respondent is one of bribery. It is alleged that on Sunday night 27 February 2011 the respondent went ot the home of Iona Anau at Fasitoo-uta and gave Iona Anau $50 saying it was not a bribe but money to buy something for his children.
    
72. Iona Anau (Iona) was called for the respondent in support of this allegation. He said that on Sunday night 27 February 2011 at about 8pm, the respondent's car pulled into his driveway. The respondent was accompanied by two other people. The respondent spoke briefly with him saying he was on his way to the airport. The respondent then gave him $50 and told him it was not a bribe but to buy something for his children. The respondent then asked him as to how he was getting to the poling booth on election day and he replied the petitioner's car would be picking him up.
    
73. We have already referred to the evidence given by the respondent concerning his relationship with Iona in relation to allegation (a) by the petitioner. It is not necessary to repeat all of that evidence again. Essentially, the respondent said he and Iona had been best friends as youths at Lalomanu but after Iona and his parents left Lalomanu in 1974, he had not seen Iona for a very long time. He was therefore surprised to see the name of Iona Anau on the electoral roll for Aleipata Itupa i Luga for the 2011 general election. That was when he decided to visit Iona in the week before Christmas 2010 and gave him $50 and a box of chicken pieces as a Christmas gift. We have already found this to be bribery and treating pursuant to allegation (a).
    
74. The second time the respondent visited Iona was on Sunday night 27 February 2011 five days before the general election and gave him $50 to buy something for his children. It appears from the evidence that the respondent has not visited Iona again after the election.
    
75. In the circumstances, we are satisfied that the respondent's true purpose in giving Iona $50 on 27 February 2011 was to induce Iona to vote for him at the election. This allegation of bribery has therefore been proved beyond reasonable doubt.
    
76. The defence raised on behalf of the respondent was that Iona was not qualified to be an elector of the territorial constituency of Aleipata Itupa i Luga. He was therefore not an elector of the Aleipata Itupa i Luga constituency. But only an elector can be bribed and not a person who is not an elector. We have already concluded in relation to allegation (a) by the petitioner that for the purpose of the electoral corrupt practice of bribery under s. 96 of the Electoral Act 1963, Iona was an elector of the Aleipata Itupa i Luga constituency capable of being bribed by the respondent. The defence raised on behalf of the respondent must therefore fail.
    

(g) Alleged giving by the respondent of $40 to elector Lolo Fauvale Kose on Wednesday night 2 March 2011 at Vailoa, Aleipata.

77. The seventh allegation, in terms of chronology, made by the petitioner against the respondent is one of bribery. It is alleged that on Wednesday night 2 March 2011 the respondent gave elector Lolo Fouvale Kose $40 to buy sugar.
    
78. In support of this allegation Lolo Fouvale Kose (Lolo) a 64 year old elector of the territorial constituency of Aleipata Itupa i Luga was called for the petitioner. Lolo testified that on Wednesday night 2 March 2011 at about 10pm he was woken up at his house at Vailoa by one Faauiga, the wife of Mafutaga Autalavou Niuula Paulo. She pointed out to him the respondent and he walked over to the respondent who said that he wanted to talk about the boat project by the Ministry of Fisheries for the building of fifty alias for their district. Lolo said he replied he was aware of the project. The respondent then gave him $40 and said it was not a bribe but for him to buy sugar. He then thanked the respondent and shook hands with him. The respondent then left and he went back to his house.
    
79. In response to this allegation, the respondent testified that the reason why he went to Lolo on Wednesday night 2 March 2011 was because he was waiting for a response from Lolo and the boat builders of their district regarding the project by the Ministry of Fisheries for the construction of new fishing boats for their districts to replace the fishing boats that had been destroyed by the tsunami. The tsunami was on 29 September 2009. The respondent said there was no mention of the election during his meeting with Lolo. Because of his close relationship with Lolo as members of the district's education committee and as Lolo is like a relative to him and he did not doubt Lolo's support for him, the respondent said he gave the money to Lolo. But he told Lolo it was not bribery.
    
80. There was no dispute that the respondent did give $40 to Lolo on Wednesday night 2 March 2011 at about 10pm at Lolo's home at Vailoa, Aleipata. What was in dispute was whether the respondent had the intention of influencing Lolo to vote for him at the election on Friday, 4 March when he gave $40 to Lolo. After giving due consideration to the evidence we have no difficulty in concluding that the respondent had that intention.
    
81. In the first place, there was no urgency about the respondent visiting Lolo on Wednesday night 2 March about the boat building project by the Ministry of Fisheries. The respondent could have waited until after the election. The visit was also very brief. To give Lolo $40 to buy sugar was also uncalled for. Given that the election was only a day away the only reasonable explanation for the respondent's action was to bribe Lolo to vote for him at the election.
    

(h) Alleged giving by the respondent of $40 to elector Mafuataga Autalavou Niusila Paulo on Wednesday night 2 March 2011 at Vailoa, Aleipata

82. The eighth allegation made by the petitioner against the respondent is also one of bribery. It is alleged that on Wednesday night 2 March 2011 the respondent gave Mafuataga Autalavou Niusila Paulo $40 to buy food for his children.
    
83. The said Mafuataga Autalavou Niusila Paulo (Mafutaga) was called as a witness for the petitioner in support of this allegation. It is clear from the evidence of Mafutaga that he is an elector of the territorial constituency of Aleipata Itupa i Luga.
    
84. Mafutaga testified that on Wednesday night 2 March 2011 at about 10pm, the respondent came to his house at Vailoa, Aleipata, escorted by his relative Loni who became the scrutineer for the respondent at the Vailoa polling booth on election day. Mafutaga said the purpose of the respondent's visit was to meet his father. This was the first time the respondent had ever come to his house.
    
85. Mafuataga also said that after the respondent met with his father inside his house for about five minutes, the respondent came out and he said hello to him. The respondent then took out a bundle from his pocket gave him $40 and said the money was for him to buy food for his children. Mafutaga further said he did not ask the respondent for money but he accepted the money when it was given to him. In Mafutaga's opinion the reason why the respondent gave him $40 was to induce him to vote for the respondent at the election.
    
86. The respondent said that he gave $40 to Mafutaga because he is related to Mafutaga through a certain matai title at Lalomanu and it is his habit to give money to his relatives when he meets any of them. He denied that the money was a bribe to induce Mafutaga to vote for him at the election.
    
87. We have decided not to accept that the $40 given by the respondent was not a bribe. It is not clear why the respondent went to the house of Mafutaga on Wednesday night 2 March 2011. That was the first time he had visited Mafutaga's house. Mafutaga also did not ask for any money from the respondent.
    
88. The respondent said it is his habit to give money to his relatives when he meets any of them. Whether that is true or not, for a candidate to practice "charity" when an election is near, he runs the risk of being found guilty of bribery. In our view, for the respondent to give $40 to Mafutaga on 2 March 2011 without being asked by Mafutaga when the election was only one day away on 4 March was bribery. We do not believe there is any other reasonable explanation for the respondent's action.
    
89. We therefore conclude that this allegation against the respondent has also been proved beyond reasonable doubt.
    

PART C

Counter allegations of electoral corrupt practices made by the respondent against the petitioner

(a) Alleged giving of monies and alcohol on Saturday 19 February 2011 by members of the petitioner's election campaign committee to electors of Vailoa including Talivale Lepale, Iosia Faanoi and Onoiva Peau and Tutoatasi Vaeluaga an elector of Lalomanu

90. The first counter-allegation, in terms of chronology, made by the respondent against the petitioner is a joint allegation of bribery and treating. It is alleged that on Saturday 19 February 2011, the petitioner acting by members of his election campaign committee, namely, Faleesea Ololua Hunt (Faleesea) and Peniata gave monies and bottles of spirits to electors from Vailoa, Aleipata, including Talivale Lepale who received $20, Isaia Faanoi who received $20, and Onoiva Peau who received $20 as well as Tutoatasi Vaeluaga an elector from Lalomanu who received $10.
    
91. There was no evidence to support that part of this counter-allegation which relates to Tutoatasi Vaeluaga from Lalomanu so that part of this counter-allegation is dismissed. In support of the remainder of this counter-allegation, the witnesses Talivale Lepale, Isaia Faanoi, Onoiva Peau, and Tupou Ogosi were called for the respondent.
    
92. According to the evidence given by the witness Talivale Lepale (Talivale), on Saturday 19 February 2011 Faleesea, a matai of their village of Vailoa and a member of the petitioner's election campaign committee, asked him to take part in the petitioner's work for clearing the access road at Lefaga which is a sub-village of Lalomanu. As it later became clear from the evidence, what was to be cleared was not an access road but an escape track on the side of the hill behind the tourist houses at Lalomanu. Talivale said that he, Isaia Faanoi (Isaia), Onoiva Peau (Onoiva), and others from Vailoa all took part in clearing the escape track. Talivale also testified that it was unusual for the petitioner to have work to be done and this was the first time he had taken part in any work by the petitioner.
    
93. Talivale further testified that after the work was done, Faleesea who was not present during the time the work was done arrived and gave out $20 to those people who were present and said the money is only for those who vote ("o tupe ia e na o mo ē e palota"). Talivale received $20. He also said that the type of work that they did is usually done without any payment by the untitled men of the village concerned as part of their service to the village. What Talivale means is that the work that they did should have been done by the untitled men of Lalomanu without payment as part of their service to their village instead of bringing in men from Vailoa and paid for them.
    
94. The evidence that was given by the witnesses Isaia and Onoiva was substantially the same as the evidence that was given by Talivale. They said they were also asked by Faleesea on Saturday 19 February 2011 to take part in the petitioner's work and each of them also received $20 from Faleesea. They also said it was unusual for the petitioner to have any work to be done and this was the first time that they had taken part in any work by the petitioner.
    
95. The witness Tupou Ogosi (Tupou) whose name is not mentioned in this counter-allegation testified that he is an elector from Vailoa and that he also took part in the petitioner's work on Saturday 19 February 2011. He said that after the work, Peniata Faasii, a member of the petitioner's family, brought them to Vailoa to await Faleesea who was coming from Apia with the money to pay them. When Faleesea arrived he gave out $20 to everyone who took part in the petitioner's work except the youths who were not electors. Tupou being an elector received $20.
    
96. In response to this counter-allegation, the petitioner testified that the work that was done on 19 February 2011 for the escape track was part of the project funded by the South Pacific Commission (SPC) that he had requested. Funding for the project was received from the SPC in September 2010. Labour to be provided is a component of the project. However, there was dispute as to whether or not labour was to be paid for from the funds for the project. The project document was produced by the petitioner. We have looked at that document and it says that labour was to be provided by the village of Lalomanu as its contribution to the project. In other words, any payment for labour is not covered under the project but is to be provided by the village of Lalomanu as its contribution to the project.
    
97. Faleesea who gave evidence for the petitioner did not dispute the evidence of the respondent's witnesses Talivale, Isaia and Onoiva that he had asked them to take part in the petitioner's work and that he gave each of them $40 after the work. He also did not dispute the evidence of Tupou. He also admitted that he was a member of the petitioner's election campaign committee. What Faleesea said was that he was aware of the project being funded from overseas and he requested the petitioner for people from his village of Vailoa to be involved in the work for the project so they could get some money from it. The petitioner accepted his request and that was why he asked men from Vailoa to take part in the work on 19 February 2011.
    
98. Faleesea also admitted that when he gave out the money to the workers from Vailoa he said the money was only for those who are electors. The reason why he said that was because there were too many youths who were too young and could not have done any proper work.
    
99. After carful consideration of the evidence, we have decided to accept the evidence of the witnesses for the respondent and to reject the evidence of the petitioner and Faleesea. The funding for the project at Lalomanu was received by the petitioner from the SPC in September 2010. The project had a labour component which was to be provided by the village of Lalomanu as its contribution to the project. One would have thought that if funding for the project was received in September 2010 work on the escape track would have started soon thereafter but not about five or six months later on 19 February 2011. Labour was also to be provided by the village of Lalomanu as its contribution to the project. One would also have thought that the untitled men of Lalomanu would have done the work to clear the escape track as part of their service to the village without any payment. Instead, men including electors from Vailoa were brought in to do the work and paid for with funds from the payment.
    
100. We also disbelieve Faleesea's evidence that when he gave out the money the reason why he said the money was only for electors was that there were many youths who were too young and therefore could not have done proper work. But Faleesea was not present at the time the work was done and therefore could not have known who did proper work and who did not. If this was genuine work not related to the election on 4 March 2011, the fair thing to do was to pay each person for the work he has done and not on the basis of whether he is an elector. Just because a person is an elector does not mean such a person has necessarily done any proper work or any work at all. But that was the yardstick used by Faleesea to pay or not to pay these people from Vailoa. It is not difficult to see that the real purpose behind this was to influence the electors concerned to vote for the petitioner at the election. Those who were not electors did not matter.
     
101. The witnesses Talivale, Isaia, and Onoiva also testified that it was unusual for the petitioner to have work to be done and this was the first time they had been asked to take part in any work by the petitioner.
     
102. In the circumstances, we are satisfied that the monies given out by Faleesea to the electors Talivale, Isaia, Onoiva, and Tupou were for the purpose of inducing those electors to vote for the petitioner at the election and it constituted bribery. To that extent, this counter-allegation has been proved beyond reasonable doubt. The remainder of this counter-allegation is dismissed.
     
     • (b) Alleged giving of monies on 20 February 2011 by the petitioner and his election campaign committee to electors who were present at a lunch and which included amounts of $10 given to Sosefina Manupule, Onosai Vailolo and Palepa Taofi
       
103. The second counter-allegation, in terms of chronology, made by the respondent against the petitioner is one of bribery. It is alleged that at a lunch hosted by the petitioner and his election campaign committee on Sunday 20 February 2011, monies were given out to electors who were present which included Sosefina Manupule, Onosai Vailolo and Palepa Taofi who received $10 each.
     
104. There was no evidence in support of this counter-allegation insofar as it relates to Sosefina Manupula. That part of this counter-allegation is therefore dismissed.
     
105. In support of the remaining part of this counter-allegation, the said Onosai Vailolo (Onosai) and Palepa Taofi (Palepa) who are husband and wife were called as witnesses for the respondent. Both of them are electors of the territorial constituency of Aleipata Itupa i Luga but were not members of the petitioner's election committee.
     
106. They testified that on Sunday 20 February 2011 after the evening service of their church, one Suemalo Mataita, a member of the petitioner's election campaign committee, and Tolu Alatina came in a pick-up vehicle and took them to a meeting that was held at the petitioner's house at Lalomanu. When they arrived there, Onosai said there were between twenty and thirty people at the meeting. Some of those people were members of the petitioner's election committee whilst others were just electors. It was the petitioner who chaired the meeting and the matters discussed related to the election on 4 March 2011. At the end of the meeting, money was distributed amongst the people present and both Onosai and Palepa received $10 each. They were then taken back to their homes.
     
107. The petitioner under cross-examination testified that he does not know Onosai and Palepa so he cannot say whether they were present at the meeting held at his house on Sunday 20 February 2011. He also said he could not recall who gave out the money but the money was given out to members of his election committee to buy food for the meeting as the food that was to be brought from Apia was late. If this is true, then how did part of that money end up in the hands of Onosai and Palepa who were not members of the petitioner's election committee. A member of the petitioner's election committee to whom the money was given must have given part of that money to Onosai and Palepa while the petitioner was present. We do not believe that the petitioner was unaware of what his election committee were doing in his own house in his presence.
     
108. It is also somewhat of a surprise that in the affidavit evidence filed by the petitioner and members of his election committee none of them expressly or specifically denies this counter-allegation or says that Onosai and Palepa were not present at the meeting held at the petitioner's house. It was only during cross-examination of the petitioner that he said that the money that was given out was to buy food for the meeting and that he did not know whether Onosai and Palepa were present.
     
109. The evidence given by Onosai and Palepa about the date of the meeting, the venue of the meeting, the presence of the petitioner and his election committee at the meeting, the meeting being chaired by the petitioner, and the nature of the matters discussed at the meeting were not challenged by the petitioner in his evidence. It clearly shows that Onosai and Palepa must have been present at the meeting for them to know all such details.
     
110. After due consideration of the evidence, we have decided to accept the evidence given by Onosai and Palepa. Given the proximity of the election on 4 March 2011, the fact that the money was given to Onosai and Palepa without request from them, and the fact that it was Suemalo Mataita a member of the petitioner's election committee who picked up Onosai and Palepa from Tiavea without request from them, we are satisfied that the monies given to these electors was for the purpose of inducing them to vote for the petitioner at the election.
     
111. This counter-allegation of bribery has therefore been proved beyond reasonable doubt insofar as it relates to the monies given to Onosai and Palepa.
     
     • (c) Alleged giving on Tuesday 22 February 2011 by members of the petitioner's election campaign committee of $10 to Samafuao Elisaia and $9 to Pe'a Sio both electors of the Aleipata Itupa i Luga constituency.
       
112. The third counter allegation, in terms of chronology, made by the respondent against the petitioner is one of bribery. It is alleged that on Tuesday 22 February 2011 the petitioner, acting by his agents and election committee members Suemalo Mataita and others, gave $10 and $9 to the electors Samafuao Elisala and Pe'a Sio respectively for the purpose of bribing those electors to vote for the petitioner at the election.
     
113. In support of this counter-allegation, Samafuao Elisaia (Samafuao) and Pe'a Sio (Pe'a) were called as witnesses for the respondent. Samafuao said that on 22 February 2011 a white bus came to his place at Fasitootai. Inside the bus were Suemalo Mataita (Suemalo), a brother of the petitioner, and other people who he believed were members of the petitioner's election committee. He went to the bus and Suemalo told him of the transport arrangements for election day. Suemalo then gave him $10 and the bus left.
     
114. Samafuao also testified that as Suemalo was talking to him, his relative Pe'a Sio (Pe'a) was standing next to him. Samafuao then told Suemalo that Pe'a was another elector of the Aleipata Itupa i Luga constituency. At that time a woman inside called Pe'a to come and she gave him $9.
     
115. The evidence given by Pe'a was substantially the same as the evidence given by Samafuao. He confirmed the evidence of Samafuao. He said he did see Suemalo give money to Samafuao. However, neither Samafuao nor Pe'a was able to say who was the woman who gave the $9 to Pe'a.
     
116. In response to this counter-allegation, Suemalo said that on the day in question he, Solema Sila, Matavai Eteuati, Togaga'e Apelu and Leele Sio were travelling around the western side of Upolu in a white bus to inform the supporters of the petitioner about the travel arrangements for election day.
     
117. We are satisfied from the evidence that Suemalo was an agent and member of the petitioner's election committee. The witnesses Onosai Vailolo and his wife Palepa Taofi had testified in relation to counter-allegation (b) that Suemalo Mataita, a member of the petitioner's election committee, and Tolu Alatina had picked them up from Tiavea on Sunday evening 20 February 2011 and brought them to the meeting that was held at the petitioner's house at Lalomanu. Samafuao also testified that he believed Suemalo was a member of the petitioner's election committee. Suemalo during his evidence never denied the evidence of those witnesses. Suemalo's general involvement in electioneering work for the petitioner also suggests that he was a member of the election committee for the petitioner. We therefore conclude that Suemalo was in fact an election committee member for the petitioner.
     
118. Suemalo denied that he gave $10 to Samafuao when they met at Fasitootai. After careful consideration of the evidence of Suemalo and the evidence of Samafuao and Pe'a, we have decided to reject the evidence of Suemalo and accept the evidence of Samafuao and Pe'a that Suemalo did give $10 to Samafuao. Given the proximity of the election on 4 March 2011, we are satisfied that this was a bribe to induce Samafuao to vote for the petitioner at the election.
     
119. We are, however, not satisfied from the evidence that the woman on the bus who gave $9 to Pe'a was a member of the petitinoer's election committee.
     
120. We therefore find that the part of this counter-allegation which relates to the giving by Suemalo of $10 to Samafuao has been established beyond reasonable doubt. However, that part of this counter-allegation which relates to the giving of $9 to Pe'a by a member of the petitioner's election committee has not been established beyond reasonable doubt and is therefore dismissed.
     
     • (d) Alleged giving in February 2011 by members of the petitioner's election committee of $20 to elector Ferila Fiapule Tyrell to induce her to vote for the petitioner
       
121. The fourth counter-allegation, in terms of chronology, made by the respondent against the petitioner is one of bribery. It is alleged that sometime in February 2011 Suemalo Mataita a brother of the petitioner and Vaotupu a sister of the petitioner being both members of the petitioner's election committee, did give $20 to Ferila Fiapule Tyrell for the purpose of inducing her to vote for the petitioner at the election.
     
122. In her oral testimony, Ferila Fiapule Tryrell (Ferila) said that sometime in February 2011 she met with Vaotupu Sufie (Vaotupu) a sister of the petitioner at the school at Vaitele. It is clear from the evidence of Suemalo Mataita (Seumalo) that this was on 22 February 2011 after they had been to Fasitootai where they met with Samafuao Elisala.
     
123. Ferila said that Vaotupu asked her whether she and her family had been registered as electors of Aleipata Itupa i Luga and she replied that was so. Vaotupu then checked the electoral roll which confirmed that Ferila, her husband, and children had been registered. She then accepted a lift home from Vaotupu in the bus. Ferila then said that when the bus arrived at her home at Ululoloa she alighted from the bus and Vaotupu tossed a $20 note to her which she took.
     
124. Vaotupu in her evidence denied giving $20 to Freila but she confirmed that she met with Ferila at the school at Vaitele and Ferila told her that she, her husband, and their six or eight children had already been registered as electors of the territorial constituency of Aleaipata Itupa i Luga. Vaotupu also confirmed that she offered Ferila a lift home which Ferila accepted. Vaotupu said she told Ferila to come with them to her home so that they would know where she lives and where they will come later to take her family to vote on election day.
     
125. The evidence of Suemalo is consistent with the evidence of Ferila and that of Vaotupu. However, like Vaotupu he denied that anyone gave any money to Ferila. As a result, there is no evidence to show that Suemalo did give $20 to Ferila. That part of the present counter-allegation which alleges that Suemalo did give $20 to Ferila is therefore dismissed. That leaves only that part of the present counter-allegation that Vaotupu as a member of the petitioner's election committee did give $20 to Ferila.
     
126. We have given careful consideration to the evidence of Ferila, Vaotupu, and Suemalo and have decided to accept the evidence of Ferila that Vaotupu tossed a $20 note to her when she alighted from the bus at Ululoloa where she was dropped off. We do not believe the evidence of Vaotupu and Suemalo to the contrary. In the circumstances and given the proximity of the election, we are satisfied that the $20 given by Vaotupu to Ferila was a bribe for the purpose of inducing her and her family to vote for the petitioner at the election.
     
127. For the petitioner to be liable for the actions of Vaotupu we have to be satisfied that Vaotupu was an agent of the petitioner. In 4 Halsbury's Laws of England vol 18, para 703, it is stated:
     

"If a candidate's wife interferes in an election she is ipso facto his agent. Personal intimacy with a candidate is evidence of agency. The mere fact, however, that the alleged agent is a brother of the candidate or the partner or son of an authorised agent is not sufficient to establish agency".

128. In Parker's Law and Conduct of Elections (supra) vol 1, para 19.51, the learned authors state:
     

"Evidence of close acquaintance with the candidate is important evidence to establish agency. But the mere fact that the alleged agent is brother to the candidate, is not sufficient to establish agency (Ipswick, W & D 173 at 178)".

129. We take the view that the above statements of principle which apply to a brother of the candidate also apply to a sister of the candidate. There should be no different principle which applies to a sister of the candidate.
     
130. Furthermore, whilst being a member of a candidate's election committee is strong evidence of agency, not being a member of such a committee does not necessarily mean a person is not an agent of a candidate: 4 Halsbury's Laws of England vol 15, para 701, which has been cited in para 34 of this judgment.
     
131. There is no evidence that Vaotupu was a member of the petitioner's election committee. However, her significant involvement in promoting the candidacy of the petitioner not only as it appears from the evidence in relation to this counter-allegation but also from the evidence in relation to counter-allegation (e) and some of the counter-allegations which will follow have led as to the conclusion that Vaotupu was not only a sister of the petitioner but also an agent of the petitioner fpr the 2011 election. That being so the petitioner is liable for the bribery committed by his sister Vaotupu. In reaching this conclusion, we also take the view that the petitioner must have known of Vaotupu's involvement in supporting and promoting his candidacy. It would be unrealistic to expect the petitioner not to have been aware of his sisters involvement in supporting his candidacy.
     
132. The present allegation of bribery insofar as it relates to the giving of $20 by Vaotupu to Ferila has been proved beyond reasonable doubt.
     
     • (e) Alleged giving on 3 March 2011 of $20 by members of the petitioner's election committee, namely, Shon, Vaotupu, Talaole, and Tofu Moe to Ferila Fiapule Tyrell to induce her and her children to vote for the petitioner at the election
       
133. The fifth counter-allegation, in terms of chronology, made by the respondent against the petitioner is one of bribery. It is alleged that the petitioner, acting by his election committee members, namely, Shon his wife, Vaotupu and Talaole his sisters, and Tofu Moe, did give $20 to Ferila Fiapule Tyrell to induce her and her children to vote for the petitioner at the election.
     
134. Ferila who was called as a witness for the respondent in support of this counter-allegation gave evidence that on Thursday evening 3 March 2011 between 5pm and 6pm Shon Fuataga (Shon) the petitioner's wife, Vaotupu Sufie (Vaotupu) and Talaole Ah Poe (Talaole) the petitioner's sisters, as well as Tofu Moe (Tofu) a member of the petitioner's election committee came to her house at Ululoloa and they talked about the election.
     
135. Vaotupu and Tofu told Ferila to bear in mind the candidacy of the petitioner especially as they are related with Ferila and her children. Ferila said she told them not to worry. Ferila further said that after they talked Shon took out $20 from her purse and gave it to Vaotupu who handed it to Ferila. Shon then said for Ferila and her children to bear in mind the election.
     
136. Ferila also said in her oral testimony that when Vaotupu handed her the money Vaotupu said this is to buy something for you and your children.
     
137. Shon was called as a witness for the petitioner in response to this counter-allegation. She strongly denied that she gave $20 to Ferila through Vaotupu. She said that they only talked with Ferila as to whether she needed transport on election day. Under cross-examination, Shon said she went with the others to see Ferila because the petitioner's election committee wanted to know the time to pick up Ferila and her children on election day.
     
138. Vaotupu in her evidence said that she does not confirm the allegation made by Ferila against Shon. She said they went to see Ferila to find out the time for her and her family to be picked up on election day.
     
139. Talaole in her evidence denied that any money was given to Ferila when they visited her at her house at Ululoloa on 3 March 2011.
     
140. Tofu in her evidence said that when they arrived at Ferila's house at Ululoloa, she remained outside of the house smoking a cigarette. So she could not see any money being given to Ferila.
     
141. In considering the conflicting evidence in relation to this counter-allegation, we do not overlook the evidence in relation to the next counter-allegation in which a different elector at a different place made the same allegation as Ferila that Shon, Vaotupu, Talaole, and other women came to her place on 3 March 2011 and Shon gave her $20 through another woman. It undermines the credibility of the evidence given by Shon, Vaotupu, and Talaole.
     
142. In the circumstances, we have decided to prefer the evidence given by Ferila as opposed to the evidence given by Shon, Vaotupu, and Talaole. Even though it is not clear whether Shon was actually a member of the petitioner's election committee, we have come to the view that as wife of the petitioner, Shon was in terms of the law of electoral agency an agent of the petitioner so that the petitioner would be liable for the bribery committed by Shon. Likewise Vaotupu. In the circumstances Vaotupu was also an agent of the petitioner. As she was a party to the bribery committed by Shon, she is also guilty of that bribery. The petitioner is also liable for the bribery to which Vaotupu was a party.
     
143. We therefore find this counter-allegation of bribery to have been proved beyond reasonable doubt insofar as it relates to Shon and Vaotupu.
     
     • (f) Alleged giving by members of the petitioner's election committee, namely, his wife Shon, his sisters Vaotupu and Talaole, as well as Tofu Moe on Thursday 3 March 2011 of $20 to elector Lautua Poloaalii for the purpose of inducing her and her children to vote for the petitioner at the election
       
144. The sixth counter-allegation, in terms of chronology, made by the respondent against the petitioner is one of bribery. It is alleged that the petitioner, acting by members of his election committee, namely, his wife Shon, his sisters Vaotupu and Talaole, and Tofu Moe, did give $20 to Lautua Poloaalii at Talimatau on Thrusday 3 March 2011 for the purpose of inducing her and her children to vote for the petitioner at the election.
     
145. Lautua Poloaalii (Lautua) who is an elector of the territorial constituency of Aleipata Itupa i Luga was called as the only witness for the respondent in support of this counter-allegation. She testified that on Thursday 3 March 2011 the petitioner's wife Shon, the petitioner's sisters Vaotupu and Talaole, and other women came to her house at Talimatau and asked her whether she wanted transport on election day. Lautua said that Shon and some of the women then told her to bear in mind the election. She replied that she will vote for the old man (the petitioner) because she felt sympathy for Shon and the other women who came with her. Lautua is also related to the petitioner. Lautua further said that Shon then took out a $20 from her purse and gave it to another woman who passed it on to her (Lautua). Shon then said it is not "faatosina" (bribery) but money to buy food for the children. It was not clear who was this woman to whom Shon had given the $20 to pass on to Lautua.
     
146. Shon in her evidence said that she does not know Lautua and she strongly denied that she gave her $20. However, under cross-examination Shon recalled that she did go to Talimatau but could not recall the date. Shon further said that she went to Talimatau to convey the message from the petitioner's committee as to what time these people wanted to be picked up on election day.
     
147. Vaotupu in her evidence said that she went with Shon to see Lautua to remind her of what she had told Talaole on the phone that she will vote for the petitioner. However, Vaotupu denied that Shon gave someone $20 to pass on to Lautua.
     
148. Talaole in her evidence said that she went with Shon and Vaotupu to see Lautua about what Lautua had told her on the phone that she will vote for the petitioner. She also said that she did not see Shon give $20 to someone to pas on to Lautua.
     
149. Tofu Moe in her evidence denied that she accompanied Shon, Vaotupu, and Talaole to see Lautua at Talimatau.
     
150. It is clear that Lautua's evidence that Shon came to her house at Talimatau on 3 March 2011 is confirmed by Shon, Vaotupu, and Talaole. Lautua's evidence that Shon and the other women asked her whether she wanted transport on election day is also comfirmed by Shon's evidence. Where they differ is that Lautua said Shon gave her $20 to buy food for her children but Shon, Vaotupu, and Talaole denied that that never happened.
     
151. It is to be borne in mind that Ferila had also said in relation to counter-allegation (e) that on the same day, 3 March 2011, Shon, Vaotupu, and Talaole had came to her house at Ululoloa and talked about the election and Shon gave $20 to Vaotupu to pass on to her. We find it difficult to accept that Lautua and Ferila who live in different places would make up those stories which bear striking similarities.
     
152. We have therefore decided to accept the evidence of Lautua and not the evidence of Shon, Vaotupu, and Talaole. In the circumstances, and particularly as the election was the next day, we conclude that the $20 Shon gave to Lautua was a bribe to induce Lautua to vote for the petitioner at the election. Even though it is not clear whether Shon was actually a member of the petitioner's election committee, she would be an agent for her husband the petitioner in terms of the law of electoral agency and the petitioner is liable for the bribery committed by his wife. To this extent, this counter-allegation has been proved beyond reasonable doubt.
     

(g) Alleged giving by Shon Fuataga of $30 to elector Nuusolia Peniata on Thursday 3 March 2011 asking him to vote for the petitioner.

153. The seventh counter-allegation, in terms of chronology, made by the respondent against the petitioner is one of bribery. This counter-allegation was subsequently withdrawn and is therefore dismissed.
     

(h) Alleged that the petitioner's agents and members of his election committee, namely, Solema Letele Sila and Sogia Euta were handing out sandwiches and cans of soft drinks to electors including Taliilagi Paulo Iosefo, Aumua Tavita, Aumua Fitivale, and Leota Iosua as they were heading into the Ulutogia polling booth on election day to cast their votes thereby committing the electoral corrupt practice of treating.

154. The eighth counter-allegation, in terms of chronology, made by the respondent against the petitioner is one of treating. It is alleged that on election day the petitioner's agents and members of his election committee, namely, Solema Letele Sila and Sogia Euta were handing out sandwiches and cans of soft drinks to electors including Taliilagi Paulo Iosefo, Aumua Tavita, Aumua Fitivale, and Leota Iosua as they were heading into the polling booth at Ulutogia to cast their votes thereby committing the electoral corrupt practice of treating. The elector Taliilagi Paulo Iosefo is actually Taliilagi Mefi and that is the name that was used in her evidence.
     
155. In support of this counter-allegation, the witnesses Taliilagi Mefi (Taliilagi), Leota Iosua (Leota), and Tavita Faleula (Tavita) who are all electors of the territorial constituency of Aleipata Itupa i Luga from the village of Ulutogia were called for the respondent. The evidence that was given by the witness Taliilagi is that when she went at about 11am on election day to cast her vote at the polling booth at Ulutogia, she saw people standing and eating near a white van parked in the vicinity of the polling booth. She went there herself and observed Solema, a member of the petitioner's election committee, giving out sandwiches and cans of soft drinks from a white van to people. Taliilagi said she was also given a corned beef sandwich and a can of soft drink by Solema.
     
156. Under cross-examination, Taliilagi was quite adamant that Solema gave her a sandwich and a can of softdrink. She saids she knows Solema very well and she could not have been mistaken about Solema giving her a sandwich and a can of soft drink.
     
157. The evidence given by the witness Leota is that on election day when he went to the polling booth at Ulutogia to cast his vote, he observed Solema bringing a box from a green van. He also observed Solema and Togafau Emile distributing sandwiches and cans of soft drinks to electors near the polling booth. Leota also said that Togafau Emile was not an elector of the Aleipata Itupa i Luga constituency and was not a member of the petitioner's election committee. Togafau Emile was not called by the petitioner as a witness.
     
158. The evidence given by the witness Tavita is that on election day at about 12 noon, he observed Sogia Euta's (Sogia) white van parked inside the compound of the school that was used as the polling booth for Ulutogia. He also observed Solema, a member of the petitioner's election committee giving out corned beef (pisupo) sandwiches and cans of soft drinks to electors as they were going to the polling booth to cast their votes.
     
159. In response to this counter-allegation the witnesses Solema Letele Sila (Solema) and Petelo Pelasio (Petelo) were called for the petitioner. Solema in her evidence confirms that she was a member of the petitioner's election committee for the 2011 general election. She also said that on election day she and the witness Petelo were using a green van to transport electors to the polign booth at Ulutogia to cast their votes. A white van was used by the other members of their election committee. So there were two vans, green and white. The green van was mentioned in the evidence of the respondent's witness Leota and the white van was mentioned in the evidence of the respondent's witness Taliilagi and was driven by Sogia Euta.
     
160. Solema in her evidence also said that she knows the witnesses Taliilagi, Leota, and Tavita but she did not see any of them at the school compound which was used as the polling booth at Ulutogia. She also said that the green van she was using worked non-stop in transporting electors to cast their votes on election day and she never saw the white van at the Ulutogia school compound but there were times when she saw the white van on the road.
     
161. Solema also denied that she gave out sandwiches and cans of soft drinks to electors at the Ulutogia polling booth. She said she did not see any sandwiches or cans of soft drinks.
     
162. The witness Petelo testified that he was the driver for the petitioner on election day and he was assisted by Solema in picking up electors from their homes and taking them to the polling booth to cast their votes. Presumably this was the polling booth at Ulutogia. Petelo said that between 11am and 12 noon he parked his green van at the Ulutogia school compound and went inside the polling booth to cast his vote. At the same time, Solema came out of the green van to smoke a cigarette. Petelo further said that he did not see Solema or anyone else giving out sandwiches or cans of soft drinks to electors.
     
163. We had the benefit of seeing all these witnesses giving their evidence. We were particularly impressed with the witness Taliilagi as a truthful witness. Her evidence was corroborated in material particulars by the witnesses Leota and Tavita especially as to Solema giving out sandwiches and cans of soft drinks in the vicinity of the polling booth on election day. Taliilagi's evidence that that was about 11am received support from Petelo's evidence that between 11am and 12 noon he parked his green van near the polling booth at Ulutogia for him to cast his vote whilst Solema got out of the van to smoke a cigarette. So even Petelo's evidence placed Solema near the Ulutogia polling booth at about the same time that Taliilagi said she observed Solema giving out corned beef sandwiches and cans of soft drinks to electors near the Ulutogia polling booth. The wintess Tavita's evidence was that it was about 12 noon that he observed Solema giving out corned beef sandwiches and cans of soft drinks to electors as they were going to the polling booth at Ulutogia to cast their votes. So the evidence by the witnesses Taliilagi, Petelo and Tavita all placed Solema near the Ulutogia polling booth at about the same time.
     
164. After giving careful consideration to the evidence, we have decided to believe the evidence given by the witnesses Taliilagi, Leota, and Tavita called for the respondent and to disbelieve the evidence of Solema and Petelo called for the petitioner. There is no doubt that Solema's actions were for the purpose of influencing electors to vote for the petitioner and amounted to treating. As Solema was a member of the petitioner's election committee we have no difficulty in concluding that in the circumstances she was also an agent for the petitioner. Accordingly, the petitioner is liable for the treating committed by his agent Solema at least in relation to the elector Taliilagi, who received a sandwich and can of soft drink from Solema. To this extent, this counter-allegation has been proved beyond reasonable doubt.
     
     • (i) Alleged that on election day the petitioner acting by his agents and election committee members Suemalo Mataita, Talaole Ah Poe, and others picked up electors which included Faavale Ielua, Sau Faavale, and Ulutui Siaosi from their homes and took them to Talaole's home at Vaitele-uta and gave them food before taking them to the polling booth to cast their votes and again after they had cast their votes took them to the petitioner's business premises at Matautu-uta where they were again given food.
       
165. The ninth counter-allegation made by the respondent against the petitioner is also one of treating. It is alleged that on election day 4 March 2011, the petitioner acting by his agents and election committee members Suemalo Mataita, Talaole Ah Poe, and others picked up electors which included Faavale Ielua, his wife Sau Faavale, and Ulutui Siaosi from their homes and took them to Talaole's house at Vaitele-uta and gave them food before taking them to the polling booth to cast their votes and again after they had cast their votes took them to the petitioner's business premises at Matautu-uta where they were again given food before being dropped off home. As it appears from the evidence, the said Faavale Ielua is Faavale Aulemoe and his wife the said Sau Faavale is Sauolevao Aulemoe. Both of them are electors of the territorial constituency of Aleipata Itupa i Luga.
     
166. Faavale Aulemoe (Faavale) and his wife Sauolevao Aulemoe (Sauolevao) were called as witnesses for the respondent in support of this counter-allegation. Faavale testified that on the morning of election day at about 6am, Suemalo Mataita (Suemalo) came in a bus to their home at Falelauniu and picked up his wife, himself, and their children and their wives and took them to the house of Talaole at Vaitele-uta where they were given breakfast. This consisted corned beef sandwiches and coffee as it appeared from the evidence of Sauolevao. Later the same morning when the polling booths were about to open for pooling, Faavale said that he and Sauolevao were taken to the booth at Tuanaimato where they cast their votes. It is not clear from the evidence of Faavale and Sauolevao whether their children who were picked up with them were also electors of the Aleipata Itupa i Luga constituency.
     
167. Faavale then said that when he and Sauolevao finished casting their votes it was 2pm or a little after 2pm in the afternoon because there were so many people at the Talimatau polling booth to cast their votes. They were then taken to the petitioner's business premises at Matautu-uta where they were served with lunch organised by Vaotupu. Talaole and Vaotupu as it is clear from the evidence are the sisters of the petitioner. Faavale and Sauolevao were then taken home.
     
168. The evidence given by Sauolevao is substantially the same as the evidence given by her husband Faavale.
     
169. Suemalo in his evidence confirmed that he picked up Faavale and Sauolevao on the morning of election day at about 6:30am and dropped them off at Talaole's house at Vaitele-uta and any food that was served was for their "relatives from afar" who came to vote. He also confirmed that food was arranged at the petitioner's premises at Matautu-uta however the food was only to be served after the close of polling.
     
170. Talaole Ah Poe (Talaole) testified that the only food that was served at her house at Vaitele-uta was for their relatives from afar. She also said that she did not go out with Suemalo to pick up electors. She also confirmed that food was served at the petitioner's premises at Matautu-uta but it was after 3pm in the afternoon when polling had closed.
     
171. The crucial part of this counter-allegation is whether breakfast consisting of corned beef sandwiches and coffee were served to Faavale and his wife at Talaole's house before polling started. There was no dispute that Faavale and Sauolevao were picked up by Suemalo in the early morning of election day and taken to the house of Talaole at Vaitele-uta. There was also no dispute that later the same morning Faavale and Sauolevao were taken to the polling booth at Talimatau to cast their votes. The only matter which seems to be in dispute is whether Faavale and Sauolevao were served with breakfast at Talaole's house. We have no difficulty in accepting the evidence of Faavale and his wife Sauolevao that they were served with breakfast consisting of corned beef sandwiches and coffee at the house of Talaole and that that was done for the purpose of influencing them to vote for the petitioner. We also do not believe that Suemalo and Talaole were not aware of the food that was given to Faavale and Sauolevao. Talaole being the owner and mother of the house where food was given to Faavale and Sauolevao, it is unbelievable that she was not aware of what was being done in her own house on election morning particularly as she was actually supporting the candidacy of the petitioner her brother. We have also come to the view that Suemalo who was collecting electors in support of the petitioner his brother and bringing them to the house of Talaole his sister was aware and was a party to the food given out to the electors he was transporting to the house of Talaole.
     
172. We are satisfied from the whole of the evidence given in support of the petitioner's allegations and in response to the respondent's counter-allegations as well as the evidence given in support of the respondent's counter-allegations that both Suemalo and Talaole were agents for the petitioner. Accordingly, the petitioner would be liable for their actions.
     
173. We therefore find this counter-allegation of treating to have been proved beyond reasonable doubt insofar as it relates to the giving of food by Talaole and Suemalo to electors Faavale and Sauolevao in the morning of election day.
     
174. We are, however, in doubt whether the lunch (food) given to Faavale and Sauolevao at the petitioner's premises at Matautu-uta after they had cast their votes was for the purpose of influencing them to vote for the petitioner when they had already cast their votes. This part of this counter-allegation is therefore dismissed.
     
175. There was also no evidence in support of this counter-allegation insofar as it relates to Ulutui Siaosi. This part is therefore also dismissed.
     

Counter-allegation of illegal practice

(j) Alleged that on an unknown date to the respondent, the petitioner acting by his agent and sister in law Avaia Suemalo Mataita did procure the registration of Lote Te'o and Avau Kalapu Misa both females of Solosolo on the electoral roll for the Aleipata Itupa i Luga constituency without their consents and when Lote Te'o and Avau Kalapu Misa were not qualified to be so registered.

176. This is the counter-allegation of illegal practice brought by the respondent against the petitioner. Essentially, it is alleged that Avaia Suemalo Mataita an agent of the petitioner procured the registration of Lote Te'o and Avau Kalapu Misa females of Solosolo on the electoral roll for the territorial constituency of Aleipata Itupa i Luga without their consents and when they were not qualified to be so registered. Section 99 of the Electoral Act 1963 which is the relevant provision states:
     

"Everyone is guilty of an illegal practice who induces or procures to vote at any election any person whom he or she knows at the time to be disqualified or prohibited, whether under this Act or otherwise, from voting at that election".

177. Under s.101 (b) any person found guilty of an illegal practice is liable to imprisonment for a term not exceeding 3 years or to a fine not exceeding 20 penalty units or both such imprisonment and fine.
     
178. In support of this counter-allegation, Lote Te'o (Lote) was the only witness called for the respondent. She testified that she was not qualified to be an elector for the territorial constituency of Aleipata Itupa i Luga in the 2011 general election. But somehow her name appeared in the electoral roll of Aleipata Itupa i Luga for the 2011 general election when she had not registered herself as an elector in that constituency. She says in her affidavit filed in these proceedings that a person named "Avaia Foi" had called her on the phone to prepare to vote for the petitioner and that she would assist to transfer her registration to Aleipata Itupa i Luga.
     
179. Under cross-examination by counsel for the petitioner, Lote said that a person named "Avaia" (the name "Foi" was not mentioned) had called her on the phone about voting for the petitioner and transferring her registration to Aleipata Itupa i Luga but she did not see this person. Her only communication with this person was on the phone. Subsequently, the name of Lote appeared on the electoral roll for the Aleipata Itupa i Luga constituency even though she was not qualified to be so registered. Avaia Lautusi who is married to a brother of the petitioner is now alleged to have unlawfully procured the registration of Lote on the roll for Aleipata Itupa i Luga.
     
180. Avaia Lautusi was called as a witness for the petitioner. She repeatedly denied that she ever called Lote on the phone to vote for the petitioner and that she would assist in procuring her registration on the electoral roll for Aleipata Itupa i Luga. She further denied that she filled in any document to effect the registration of Lote on the roll for Aleipata Itupa i Luga.
     
181. After due consideration of the evidence, we have a reasonable doubt that it was the witness Avaia Lautusi who called Lote on the phone.
     
182. There is also no evidence to show that Avaia Lautusi unlawfully procured the registration of Avau Kalapu Misa on the electoral roll for Aleiapta Itupa i Luga.
     
183. This counter-allegation of illegal practice is therefore dismissed.
     

PART D

Conclusions

184. We have arrived at these conclusions which are the subject of the orders we issued on

13 May 2011.

185. We find that the respondent is guilty of eight (8) acts of the electoral corrupt practice of bribery and four (4) acts of the electoral corrupt practice of treating. Seven (7) of the said acts of bribery were committed by the respondent himself and one (1) act of bribery was committed by an election agent of the respondent. The said four (4) acts of treating were committed by the respondent himself.
     
186. The seven (7) acts of bribery committed by the respondent for which we find him guilty are contained in allegations (a), (c), (d), (e), (f), (g) and (h).
     
187. The one (1) act of bribery committed by an election agent of the respondent for which we find the respondent guilty is contained in allegation (b).
     
188. We also find that the petitioner is guilty of six (6) acts of the electoral corrupt practice of bribery and two (2) acts of the electoral corrupt practice of treating. One (1) of the said acts of bribery were committed by both the petitioner and his election agents and five (5) acts of bribery were committed by the petitioner's election agents. The said two (2) acts of treating were committed by the petitioner's election agents.
     
189. The one (1) act of bribery committed by the petitioner for which we find him guilty is contained in counter-allegation (b).
     
190. The six (b) acts of bribery committed by the petitioner's election agents for which we find the petitioner guilty are contained in counter-allegations (a), (b), (c), (d), (e) and (f).
     
191. The two (2) acts of treating committed by the petitioner's election agents for which we find the petitioner guilty are contained in counter-allegations (h) and (i).
     
192. The one (1) counter-allegation of bribery which is dismissed is counter-allegation (g) which was withdrawn.
     
193. The counter-allegation of illegal practice made by the respondent against the petitioner is also dismissed.
     

Orders

194. The petition is upheld;
     
195. The respondent is guilty of the electoral corrupt practices of bribery and treating;
     
196. The election for the territorial constituency of Aleipata Itupa i Luga is voided;
     
197. The petitioner is also guilty of the electoral corrupt practices of bribery and treating; and
     
198. Each party to bear his own costs.
     
199. The deposit paid by the petitioner when filing his petition is forfeited.
     

Honourable Chief Justice Sapolu

Honourable Justice Slicer