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Ah Him v Seiuli [2021] WSSC 27 (18 June 2021)

IN THE SUPREME COURT OF SAMOA
Ah Him v Seiuli [2021] WSSC 27 (18 June 2021)


Case name:
Ah Him v Seiuli


Citation:


Decision date:
18 June 2021


Parties:
MAUALAIVAO PATELESIO AH HIM, of Malifa, a Candidate for Election (Petitioner) and SEIULI UELIGITONE SEIULI, of Malie, a Candidate of Election (Respondent)


Hearing date(s):
08th, 09th, 10th, 11th June 2021


File number(s):
MISC 89/21


Jurisdiction:
CIVIL


Place of delivery:
Supreme Court of Samoa, Mulinuu


Judge(s):
Justice Vui Clarence Nelson
Justice Fepulea’i Ameperosa Roma


On appeal from:


Order:
We consequently make the following Orders:
(a) The Respondent is in accordance with the above found guilty of 13 counts of bribery and 2 counts of treating;
(b) The election of the Respondent from the Territorial Constituency of Sagaga No. 2 is pursuant to section 116 of the Electoral Act 2019 hereby voided;
(c) The Petitioner is also as per the above found guilty of 10 counts of bribery and 1 count of treating;
(d) Each party to bear his own costs;
(e) The deposit paid by the Petitioner when filing his petition is forfeited;
(f) We hereby certify these findings and will issue our Report to the Honourable Speaker of the Legislative Assembly pursuant to section 122 of the Electoral Act 2019 in due course.


Representation:
L. Su’a-Mailo for Petitioner
S. Wulf & L. Taimalelagi-Strickland for the Respondent


Catchwords:
Bribery – corrupt electoral practices – electoral agency – election petition – treating – election voided.


Words and phrases:


Legislation cited:
Electoral Act 1963 s. 16(2)(b);
Electoral Act 2019 ss. 2, 14, 17, 94, 96, 97, 111.


Cases cited:
Kasimani v Seuala [2011] WSSC 87 (8 August 2011);
Kuinise v Tone [2001] WSSC 21 (27 July 2001);
Olaf & Others v Chan Chui [2001] WSSC 18 (31 May 2001);
Parker’s Law and Conduct of Elections (2007) Vol. 1;
Petaia v Pa’u [2006] WSSC 1 (4 December 2006);
Posala v Su’a [2006] WSSC 29 (16 August 2006);
Tufuga Gafoaleata Faitua v Vaai Papu Vaelupe [2011] WSSC 45.


Summary of decision:

MISC 89/21


IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU


IN THE MATTER:


of the Electoral Act 2019.


A N D:


IN THE MATTER:


of the Electoral Constituency of Sagaga No. 2.


BETWEEN:


MAUALAIVAO PATELESIO AH HIM of Malifa, a Candidate for Election.


Petitioner


A N D:


SEIULI UELIGITONE SEIULI of Malie, a Candidate for Election.


Respondent


Coram: Justice Vui Clarence Nelson
Justice Fepulea’i Ameperosa Roma


Counsel: L. Su’a-Mailo for Petitioner

S. Wulf & L. Taimalelagi-Strickland for the Respondent


Hearing: 08, 09, 10 & 11 June 2021
Judgment: 18 June 2021


JUDGMENT OF THE COURT

Introduction

  1. The Petitioner and Respondent, both from the village of Malie were two (2) of seven (7) candidates running for the Territorial Constituency of Saaga No. 2 in the General Elections held on 09 April 2021.
  2. The official results as declared by the Electoral Commissioner on 16 April 2021 was as follows with the Respondent being declared and reported the duly elected candidate:
  3. In an Amended Notice of Motion dated 24 May 2021, the Petitioner seeks an Order that the Respondent’s election be voided for having committed the corrupt practices of bribery and treating contrary to sections 94, 96 and 97 of the Electoral Act 2019. The allegations include:
  4. The petition is opposed by the Respondent who further counter-alleges against the Petitioner the corrupt practices of treating and bribery. The Respondent’s counter-petition alleges:
  5. We will deal with the petition and counter-petition separately in our judgment.

Relevant Law

(i) Corrupt Electoral Practices

  1. Section 94, Electoral Act 2019 identifies treating and bribery as corrupt practices that a person may be found guilty of.
  2. Section 96 on bribery then relevantly states:
  3. In respect of Treating, section 97 provides:

(ii) Intention

  1. On the requisite intention, the Court in Posala v Su’a [2006] WSSC 29 (16 August 2006) relied on the following passage from Rogers on Elections (20th Ed)):
  2. In the same connection, the Court in the matter of Petaia v. Pa’u [2006] WSSC 1 (4 December 2006) remarked as follows:

(iii) Agency

  1. We find relevant the discussion on electoral agency in Kasimani v. Seuala [2011] WSSC 87 (8 August 2011) and the reference to Olaf & Others v. Chan Chui [2001] WSSC 18 where Vaai J said:

Petition

(i) $10,000.00 presented to the Village Council meeting on 27 January 2021 (10 charges of bribery and 10 of treating)

  1. The affidavit and oral evidence for the Petitioner is that on 27 January 2020, the village council of Malie held its first meeting for the year. It began with a church service conducted by the ministers from the different denominations in the village. Following this and the usual ava ceremony and ‘mālū taeao’ (morning tea) prepared by the Aumaga, they retired and the Council embarked on a discussion of matters on the agenda. At the end of the meeting, the Petitioner made known his intention to run for re–election in the 2021 General Elections and sought support from the village.
  2. The Petitioner was not present and no other person expressed an interest for candidacy. The pulenuu thanked the Respondent for making known his intention and asked if he had money in his pocket for the village ‘suākī’. The Respondent then took out an envelope containing $10,000.00 which he presented to the meeting and said “o le $10,000.00 lea auā se suākī a le kakou guu.” He also pleaded with the village “ina ia tautuana le palota.”
  3. The money was counted by Auimatagi Saoloto Ilalio Crawley and distributed to those present including some of the elderly who were not present at the meeting. The 9 witnesses who gave evidence as to what transpired at the meeting received from the distribution varying amounts as follows:
  4. Their evidence is that apart from the Respondent’s o’o following his election in the 2016 general elections, this was the second time he has presented to the village a significant sum of money, much more excessive than what is normally spent on the meeting’s ‘suākī’ or ‘mālū taeao’. In their view, the money was to procure their support and vote for the Respondent’s return in the April 2021 elections.
  5. It is not disputed that the Respondent presented the village $10,000.00 at its 27 January 2020 meeting which was then distributed amongst the members. He did not give or call evidence in response to this allegation.
  6. His Counsel however submitted that the Respondent did not have the required ‘corrupt intention’ when he gave the money. He argued that the money was to thank the village for its approval and agreement to him being the only candidate for Malie after he expressed interest in running for re – election; it was the pulenuu who asked for money for the village ‘suākī’ and the elections were still some 14 months away.
  7. We respectfully do not agree. There was no certainty that the village had agreed (‘autasi’) to support the Respondent’s candidacy and that no other candidates would express an interest to run months away from the elections. The money was presented after the Respondent’s plea for the village’s support in his bid for re - election. It was a significant amount that the Respondent had prepared and brought to the meeting. It is simply not credible that the Respondent just happened to have $10,000 in cash in his pocket when he went to the meeting or that he was ignorant of the request about to be made. There was clearly an element of collusion between him and possibly the pulenuu and/or others of the village to make this presentation at the village meeting.
  8. Furthermore, the amount given was excessive in terms of the sum normally spent on the village’s ‘suākī’ or ‘mālū taeao’ and it was in fact given after the village had consumed the already prepared ‘mālū taeao’ for the day. In our view it is immaterial whether or not the village had agreed for him to be their only candidate. We find considering all these circumstances that when he presented the money, his intention was to corruptly influence the village and procure their votes for his return in the 2021 elections.
  9. Apart from the bribery allegation concerning the voter Lusila Hunt who did not give evidence, we accordingly find that the Petitioner has proven beyond reasonable doubt the 9 bribery allegations concerning the voters named in paragraph 14 above.
  10. We dismiss the bribery allegation concerning Lusila Hunt.
  11. We also find that the same evidence does not support the 10 allegations of treating as pleaded by the Petitioner. The village’s ‘mālū taeao’ was as usual provided by the ‘taulele’as and children of the tamalii’. No food or transportation was provided by the Respondent within the meaning of s97 in this regard. We dismiss all allegations of treating accordingly.

(ii) Election day (4 charges of bribery and 2 of treating)

  1. In respect of the bribery and treating allegations on election day, the Petitioner relies on the evidence of Mema Tiamu, Faasasalu Alefosio Sione, Mariarosa Sau Mika and Marianive Kesimia.
  2. Faasalalau is a 49 year old housewife of Malie. Her daughter Mema lives with her husband and children at Sataoa. Mariarosa Sau Mika is a cousin of Mema and a niece of Faasasalu.
  3. Their evidence is that sometime in the evening of 8 April 2021, Faasasalu was visited by 3 men, namely Sitivi Satini, Kegi and Tipeni who asked for Mema. Faasasalu contacted Mema to get ready then accompanied the 3 men to Sataoa to pick her up. They returned to Faasasalu’s place at Malie where they spent the night before the elections. Mariarosa lives at Sinamoga and was also dropped off at Faasasalu’s place by her husband on the evening of 8 April 2021.
  4. The morning of elections 9 April 2021, they were picked up by Pouli Sani and Salesa who insisted that they come with them in their white van. When asked whose committee they were from, Pouli replied ‘aua le pisa o le komiki a Seiuli’. They stopped at the Respondent’s house at Malie, where Pouli went inside and came back before they were all dropped off near the polling station at the Malie Methodist compound.
  5. They were also clear that inside the van when Pouli came back from the Respondent’s house, he gave each of them $30.00 and told them that it was his own money for them to buy food and drinks. They were also given water bottles which they left in the car when told that they could not take them to the polling station.
  6. Marianive Kesimia, the fourth witness on the election day allegations, is from Malie but lives with her husband and children at Vaiusu. Like the others, she was picked up from Vaiusu the evening before elections by her brothers and Junior Pasese and Tai. Junior and Tai told her that they were part of the Respondent’s committee. Despite raising with them that she had not registered and therefore could not vote, they assured her that her name was on the electoral roll.
  7. She was picked up again on the morning of election day by Junior Pasese (a son of the Respondent) and her brother Falanisi Kesimia. She was given $30.00 and told it was from the ‘koeaiga’ to buy food for her children. She was then dropped off with another person whom they had also picked up at the Malie Methodist compound and told ‘vaai le igoa o Seiuli e ekisi ai’. She found out when she got to the polling booth that her name was not on the roll. She could not vote.
  8. Surprisingly, no evidence was called by the Respondent in response to the allegations. But Counsel submitted that we should pay close attention to the inconsistencies in the evidence of Faasasalu, Mema and Mariarosa in relation to the number of people who were in the car and the amounts of money alleged to have been given.
  9. We find that the inconsistencies are minor compared to the consistency in material parts of their evidence concerning the people involved, where they were taken, and what was said and given to them before they were dropped off to cast their vote. We are satisfied on the evidence that Pouli Sani and Salesa were committee members and agents for the Respondent. They stopped at the Respondent’s house and the money that was subsequently handed to Faasasalu, Mema and Mariarosa was on behalf of the Respondent if not the Respondent’s.
  10. We bear in mind that whilst the onus of proof rests with the Petitioner, the persons named in the evidence for the Petitioner as being committee members for the Respondent and allegedly involved in these matters are in-country and are available, but gave no evidence in rebuttal. We therefore have no reason to doubt the evidence adduced for the Petitioner.
  11. We are also satisfied that when the Petitoner’s witnesses were being transported to the polling venue and given money and drinks, the Respondent through his agents intended to corruptly induce them to vote in his favour.
  12. We therefore find proven beyond reasonable doubt the three (3) allegations of bribery and one (1) allegation of treating concerning Mema Tiamu, Faasasalu Alefosio Sione and Mariarosa Sau Mika.
  13. In relation to Marianive Kesimia, Counsel for the Respondent submitted that because she was not a registered voter, the allegation concerning her should be struck out. We do not agree.
  14. Section 2, Electoral Act 2019 defines “voter” as a person who qualifies as such under section 14. Section 14 then prescribes the qualifications as someone who has not been disqualified under s17 or 24 and is 21 years of age or above 21 years and a Samoan citizen. Section 96 on bribery provides that ‘voter’ includes a person who has or claims the right to vote.
  15. In Kasimani v Seuala [2011] WSSC 87 (8 August 2011), the Court referred to Parker’s Law and Conduct of Elections (2007) Vol 1, para 20.4 where the learned authors state in relation to The Representation of the People Act 1983 (UK) which governs parliamentary elections in England, as follows:
  16. The Court held that although a person who received a bribe was not qualified to be an ‘elector’ for the constituency in terms of s16(2)(b) of the Electoral Act 1963, he was an ‘elector’ in terms of s2 and of s96(1) and therefore capable of being bribed.
  17. By her affidavit evidence, Marianive is over 21 years. She was born in Samoa and raised in the village of Malie and therefore qualified to be registered as a voter in the April 2021 general elections. There is no evidence that she was disqualified under sections 17 or 24. Despite explaining that she had not registered to vote, Junior Pasese and Tai were adamant that her name was on the roll.
  18. Applying the principles in Kasimani, we find that although she had not registered to vote, she was eligible for registration as a voter under s14 and had a right to vote in the terms of s96 and was therefore capable of being bribed. We find no reason to doubt her evidence that she was given money and transported to the polling station by members of the Respondent’s committee. The only intention that we can reasonably infer was to influence her vote in favour of the Respondent.
  19. We therefore find as also proven the one (1) allegation of bribery and one (1) allegation of treating concerning Marianive Kesimia.

Counter Petition of the Respondent

(i) Nia Mall (10 charges of bribery)

  1. In support of this part of the Respondent’s counter allegations, he relies on the evidence of 10 witnesses, namely Vasega Taueetia, Tulasunu’i Liivaa Popoalii, Felise Faleleniu Leafa, Lisa Pualeotagiilima, Uatisone Heremoni, Penoa Lefulefu Matasele, Paulo Leapai, Tapaau Mose, Tulasunu’i Tiki Galuega and Pouli Lefulefu.
  2. Apart from Penoa who says that the Petitioner had called and asked him to come to his office, the evidence of the other witnesses is that there were rumours in the village that handouts of money were being given at the Petitioner’s office at Nia Mall, the undisputed property in central Apia of the Petitioner. On various dates between January and early April 2021, they came to the Petitioner’s office. Others managed to find the Petitioner and his wife there whilst others saw his secretary. Their names and phone numbers were recorded on an electoral roll before they were given monies by the Petitioner and some were told ‘e tautuana le palota’.
  3. Apart from Uatisone Heremoni, Pouli Lefulefu and his brother Penoa Lefulefu who received $100.00 each and Tulasunu’i Tiki Galuega who received $20.00, the rest received $50.00 each.
  4. No evidence in rebuttal was called for the Petitioner in relation to this part of the counter petition. But Counsel suggested under cross examination that the Petitioner did not know most of the witnesses and that their testimonies were fabricated. She urged that we carefully consider the credibility of the witnesses as they would be accomplices for being the recipients of the alleged bribes.
  5. We do not agree. Firstly, 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 (see Tufuga Gafoaleata Faitua v. Vaai Papu Vaelupe [2011] WSSC 45). Accomplices may also corroborate each other: refer Tufuga and cases such as Kuinise v Tone [2001] WSSC 21.
  6. Secondly in our view, there was consistency in the witness’ testimonies in terms of why they decided to come to Nia Mall; their description of the location and size of the Petitioner’s office; and how their names were searched for on the roll and details recorded before they were given the monies. There was also no dispute by the Petitioner as to how the phone numbers of Vasega Taueetia, Lise Pualeotagiilima and Tulasunu’i Liivaa Popoalii came to be recorded on the electoral roll (Exhibit ‘P 10’) tendered by the Petitioner in support of his petition. Whilst each of the allegations must be considered and determined on its own, we must also consider the evidence in its totality (see Posala).
  7. We accept that each of the 10 witnesses referred to in paragraph 42 above were given the sums of money referred to in their evidence at the Petitioner’s office at Nia Mall. We also find that his intention was to corruptly influence them to vote for him in the imminent general elections in April 2021.
  8. We are satisfied that the Respondent has proven all ten (10) counter-allegations of bribery against the Petitioner in respect of the voters named in paragraph 42.

(ii) Filiga Talimalie (2 charges of bribery and 1 of treating)

  1. Filiga’s evidence is that on 2 separate occasions in November 2020 and January 2021, the Petitioner visited his family at Malie-uta. On the first occasion, the Petitioner came with his wife and asked him to become a member of his committee for Malie-uta. He answered no and the Petitioner gave him $100.00 before they left. On the second occasion, the Petitioner and his wife also visited his family and dropped off ‘ulu i’a’ and $50.00.
  2. In rebuttal, Filiga’s father, also named Filiga Talimalie gave evidence for the Petitioner. His testimony is that his wife and the Petitioner’s wife are related. Since he married into the family, they have maintained a relationship with the Petitioner whereby they would normally visit and offer food and gifts even in the form of money from time to time (‘fetausia’i’). He suggests that the monies and food received from the Petitioner by his son Filiga was not out of the ordinary and in accordance with the ‘fetausia’i’ nature of their family connection.
  3. Whilst it is not denied that money and food was given, we doubt Filiga’s evidence in relation to the Petitioner’s intention behind the gifts. He previously worked for the petitioner. Why he left is not known. He is now and has been working for the Respondent for some time and it was clear to us where his loyalty lies. In any event, the evidence of his father about the nature of the relationship leads us to doubt that the Petitioner had the required corrupt intention when he gave money and food on both occasions.
  4. We are not satisfied that the Respondent has proven to the required standard the two (2) bribery allegations and one (1) of treating concerning Filiga Talimalie.

(iii) Sara Ah Ching Vase and Aleluia Vase (1 charge of bribery and 1 of treating)

  1. Sara Ah Ching Vase who was listed as a witness for the Respondent was unable to appear and testify. We are satisfied on the evidence of her daughter Aleluia Vase and in the absence of any evidence in rebuttal that on election day, she, her parents and her sister were picked up in the Petitioner’s pick up and taken to the petitioner’s wife’s family at Faleula. From there, they were transported to the polling station and returned to Faleula where they were given food and drinks.
  2. We find proven the one (1) allegation of treating.
  3. In the absence of evidence from Sara Ah Ching Vase who is alleged to have been the recipient of $100.00 in October 2020, we are not satisfied that the one (1) allegation of bribery has been made out.

(iv) Millenia Hotel function (1 charge of treating)

  1. It is not disputed that the Malie Sharks 7-a-side rugby uniform was launched at the Millenia Hotel owned by the Petitioner on the 5th February 2021, days before the Marist International Sevens Tournament. The original venue for the Launch was to be St Therese Resort at Leauvaa but for its use as a Covid19 quarantine site for incoming travellers.
  2. The dispute however relates to funding of the food and drinks for the 30 plus people who attended the Launch which included Uatisone Heremoni and Masuisui Talalelei Seaga, both voters and executive members of the Rugby Club.
  3. Their evidence is that prior to the Launch, sponsorship letters were distributed to businesses and former members of the club including the Petitioner. The Respondent donated $1,000.00. The Petitioner however did not offer any donation because according to him, it was close to the elections. None of the witnesses spoke to the Petitioner but said in evidence that from what they were told by Leuluaialii Tony Aiono (their Club chairman who was responsible for organising the event), the Petitioner not only offered free hirage for the venue but would provide the food and drinks for the event. They agree that the Petitioner was not present at the event and no mention was made of the elections.
  4. Leuluaialii’s evidence in rebuttal is that at short notice, the Petitioner was kind enough to allow the Launch to take place at the Millenia when the original venue became unavailable. The Petitioner offered the venue free of charge. As to the food and drinks, it was him who paid for the costs as he has previously done for other activities by the club in particular the expenses for the uniform to be launched.
  5. On this point we prefer the evidence of Leuluaialii for the Petitioner. He was the one organising the event. He was the only member of the club who spoke directly to the Petitioner. The Petitioner had also declined previous requests by the Club for sponsorship because it was close to the elections. In our view, it would be unreasonable that he would later offer or agree to pay for the food and drinks for the event as claimed by the Respondent’s witnesses.
  6. We find that the Respondent has not proven the one (1) allegation of treating relating to the launch at Millenia Hotel on 5 February 2021.

Conclusions

  1. In summary and for the reasons set out above, we have arrived at the following conclusions:

Orders

  1. We consequently make the following Orders:
  2. We intend to raise with the Honourable Speaker in our report a number of issues arising out of this matter: Firstly the need to have all affidavits to be made in our native language; secondly extension of the requirement in section 111 of the Electoral Act 2019 for filing of a statutory declaration to counter-petitions; thirdly the necessity for the Respondent who counter-petitions to also pay a $2,000 deposit as is required of the Petitioner; and lastly strengthening the prohibition in section 97 (1)(b) against voters being transported to polling stations as this seems to still be a prevalent practice.

JUSTICE NELSON
JUSTICE ROMA


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