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Tafili v Peto [2021] WSSC 30 (25 June 2021)

IN THE SUPREME COURT OF SAMOA
Tafili v Peto [2021] WSSC 30 (25 June 2021)


Case name:
Tafili v Peto


Citation:


Decision date:
25 June 2021


Parties:
ILI SETEFANO TAATEO TAFILI (Petitioner) v AGASEATA VALELIO TANUVASA PETO (Respondent)


Hearing date(s):
Hearing: 14-16 June 2021
Submissions: 17 June 2021


File number(s):
MISC 98/21


Jurisdiction:
CIVIL


Place of delivery:
Supreme Court of Samoa, Mulinuu


Judge(s):
Justice Vui Clarence Nelson
Justice Tologata Tafaoimalo Leilani Tuala-Warren


On appeal from:


Order:
The petition is dismissed in its entirety as the allegations have not been proved beyond reasonable doubt.
Two out of the three allegations contained in the counter petition have been proved beyond reasonable doubt. The Petitioner is guilty of two counts of the corrupt practice of bribery.
In accordance with section 122 of the Act, we will report to the Speaker in due course on this and any other matter we consider should be brought to his or her attention.
The security for costs paid by the petitioner is forfeited.


Representation:
J. Brunt & E. Peters for the Petitioner
A. Su'a: & F. Lagaaia for the Respondent


Catchwords:
bribery – treating – undue influence – electoral campaign


Words and phrases:
“challenging election result” – “Roadshow”


Legislation cited:
Electoral Act 2019, Part 14; ss. 94; 96; 97; 98; 116; 122.


Cases cited:
Lufilufi v Hunt [2011] WSSC 49 (26 April 2011);
Olaf v Chan Chui [2001] WSSC 18 (31 May 2001);
Petaia v Pa’u [2006] WSSC 1 (4 December 2006);
Posala v Su’a [2006] WSSC 29 (16 August 2006);
re Election Petition Safata Territorial Constituency, Pule Lameko v Muliagatele Vena [197-1979];
Vui v Ah Chong [2006] WSSC 52 (26 September 2006).


Summary of decision:

MISC 98/21


IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU


IN THE MATTER:


of the Electoral Act 2019.


A N D:


IN THE MATTER:


Concerning the Electoral Constituency of Aana Alofi No.3


BETWEEN:


ILI SETEFANO TAATEO TAFILI of Nofoalii, a candidate for election


Petitioner


A N D:


AGASEATA VALELIO TANUVASA PETO of Nofoalii, candidate for election.


Respondent


Coram: Justice Vui Clarence Nelson

Justice Tologata Tafaoimalo Leilani Tuala-Warren

Counsel: J. Brunt & E. Peters for the Petitioner
A. Sua & F. Lagaaia for the Respondent

Hearing: 14-16 June 2021

Submissions: 17 June 2021

Judgment: 25 June 2021


JUDGMENT OF THE COURT


Background

  1. At the 2021 General Election for the Legislative Assembly of Samoa, held on Friday 9 April 2021, the Petitioner, Respondent, and two other candidates competed to represent the Electoral Constituency of Aana Alofi No. 3 which comprises the villages of Leulumoega and Nofoalii. On 16 April 2021 the Electoral Commissioner publically notified the results for this constituency as follows:
  2. The Petitioner has brought this petition pursuant to Part 14 of the Electoral Act 2019 (“the Act”) challenging the result naming the successful candidate as Respondent. The Petitioner alleges the Respondent is guilty of bribery, treating and undue influence.

The petition

  1. The Petitioner called nine witnesses in support of his Petition. The allegations are as follows;
  2. The Petitioner asserts these acts prove the Respondent engaged in the corrupt practices of bribery, treating and undue influence in violation of sections 94, 96, 97 and 98 of the Act. Accordingly, pursuant to section 116 his election should be voided.

The Counter Petition

  1. The Respondent opposes the petition and brings a counter petition. In the counter petition he alleges bribery on the part of the Petitioner as follows;
  2. The Respondent argues that the Petitioner should be declared and reported as having committed corrupt practices and should be disqualified from contesting any ensuing by-election.

Law

  1. The relevant parts of the Act are as follows;
  2. We respectfully consider that Petaia v Pa'u [2006] WSSC 1 (4 December 2006) accurately sets out the state of the law as follows;
  3. Further, in Lufilufi v Hunt [2011] WSSC 49 (26 April 2011), and Vui v Ah Chong [2006] WSSC 52 the Court cited with approval Rogers on Elections (20th ed) at page 270, on the issue of a person’s intent;
  4. We consider that it is important to note what this Court held in Posala v Sua:
  5. The meaning of this observation was further discussed in Vui v Ah Chong in which Chief Justice Sapolu said:
  6. The burden of proving each of the allegations lies on the petitioner who brings the allegations, and the required standard of proof is beyond reasonable doubt: In re Election Petition Safata Territorial Constituency, Pule Lameko v Muliagatele Vena [1970-1979]; applied and followed in many subsequent decisions of this court.

Discussion

Petition

  1. We will discuss the FAST Roadshow as one issue and the individual allegations outside of the Roadshow separately.

The FAST Roadshow

  1. There is consistency in the evidence of all witnesses in support of the Petitioner and those in support of the Respondent in relation to the Roadshow. A Roadshow by the FAST party was held at Nofoalii in the EFKS Hall on 2 February 2021. After the campaigning speeches by some members of FAST including its leaders Fiame and Laauli, an ava oso was conducted by the Itumalo for the FAST party. This involved the usual traditional lauga and tugase being presented as part of the customary ceremony for the visitors. In return FAST gave through its chosen to’oto’o or speaker for the occasion a lafo of $500 for the to’oto’o of the Itumalo Sinaifoa Vaimoana a matai of Leulumoega, money for the ava of $500, $1000 to each village of the Itumalo being Leulumoega and Nofoalii, $500 to Mafutaga Tina EFKS Nofoalii who prepared the meeting venue and $500 to Sa’oao and Nuu o Tamaitai of Nofoalii who hosted the event. We accept the $500 for the Mafutaga Tina EFKS Nofoalii was put into their bank account (as per the evidence of Ioana Tuiloma Ah Mu their Secretary) and the $500 for the Nofoalii ladies was distributed. In total, we accept an amount of $4,000 was presented by FAST at the Roadshow.
  2. There is also no doubt that from the money given to the villages of $1000 each, the following voters from Leulumoega and Nofoalii received money from their respective villages;
    1. Penuafa Sila Siloi received $50;
    2. Petelo Sio receieved $50;
    3. Ili Reupena Faavae receieved $20;
    4. Timu Levi Keri received $30;
    5. Agaseata Henry Tutuila received $30;
    6. Agaseata Koloseta Amosa received $50;
    7. Vou Kalauna Taulu received $30; and
    8. Ainise Tulia received $30 from the Sa’oao and Nuu o Tamaitai money.
  3. The question for determination is whether the Petitioner has proved to the required standard that the Respondent intended to induce the voters to vote other than in accordance with their conscience, or gave money with the intention of influencing the election, either generally, as by acquiring popularity, or with the intention of influencing a particular voter to vote or refrain from voting. Not only must the subjective intent of the Respondent be corrupt but the methods employed must also be corrupt.
  4. It is a question of intention on the part of the Respondent or FAST party as there is no doubt the party acted as an agent of the Respondent. He is a candidate of the FAST party and was presented as such during the Roadshow, the event was being held and hosted by his village and the Roadshow was for his benefit and to promote his candidacy.
  5. As noted by this court in Olaf v Chan Chui [2001] WSSC 18 and endorsed in Lufilufi v Hunt [2011] WSSC 49 (26 April 2011):

"It is settled law that the entrusting to an agent by a candidate of the acts to be done to promote the election of the candidate may either be in express terms or arise from implication. It is not necessary in order to prove agency to show that the person was actually appointed. Recognition and acceptance of service is also sufficient to prove agency”.

$500 for the Ava

  1. The $500 for the ava is a non- issue. Giving in response (‘tali faaaloalo’) to the ava whether it be an ‘ava usu’ or ‘ava oso’ is an accepted and expected cultural practice and has been so since time immemorial. We say no more on this issue except to state that we are not satisfied beyond reasonable doubt that the giving of this $500 was for the corrupt intention of inducing voters.

$500 for Mafutaga Tina EFKS and $500 for Sa'oao and Nuu Tamaitai

  1. We accept the evidence that the Mafutaga a Tina EFKS had readied and provided the EFKS Hall for the Roadshow and they together with the Sa’oao had assisted in preparing and distributing food to those who attended. This is the evidence of Ioana Tuiloma Ah Mu, the 75 year old Failautusi and a tina in her own right in the Mafutaga a Tina. As per the evidence of Ainise Tulia, a member of the Sa’oao and Nuu o Tamaitai, the Nuu had provided ula for the visitors and light refreshments and pre-lunch snacks for the Roadshow.
  2. We are not convinced beyond reasonable doubt that the intention in giving the Mafutaga a Tina EFKS, and Sa’oao and Tamaitai $500 each, was to induce members of these bodies to vote for the Respondent. We are of the view that the money was to repay their venue, contribution and kindness, an accepted customary gesture given to those who “talimalo”.
  3. We reject the allegation that this money was given to induce them to vote, or that there was a corrupt intention behind the giving of this money.

$1000 to Nofoalii and $1000 to Leulumoega

  1. In order to ascertain the intention in giving this money, the court must consider the circumstances of the giving such as the timing, the amount and the words spoken when the money was given.
  2. The money was given after the ava oso, an entirely appropriate cultural and customary response. The timing of the giving which is during faaaloaloga is consistent with our customary practice of ‘tali le faaaloalo i le faaaloalo’, something Samoans are renowned for world-wide.
  3. The amount was $1000 per village. The amount of $1000 given to each village is not excessive by any standards. While the evidence does not establish how many voters were present from the respective villages, we note that according to Exhibit ‘P-1’ for the Petitioner (the Electoral Roll) Leulumoega has 910 registered voters and Nofoalii 1,315. We would more likely find an intention to be corrupt if the money given was utterly excessive considering either the number of voters present or the total number of potential voters.
  4. There is no evidence of the words said during the giving of the money from which we could reasonably infer an intention to induce voters, apart from what was said during the campaigning speeches, that the constituency should vote FAST. We are persuaded by the evidence of Sinaifoa Vaimoana Sooaemalelagi and Agaseata Koloseta, two witnesses who we found credible, articulate and knowledgeable in the aganuu and faaSamoa.
  5. Agaseata Koloseta Amosa said about the meaalofa from FAST “O nei foi faiga, e le faapea ua faapitoa ai faapea sona faiga ona o se faiga palota. Ae o le aganuu po o le agaifanua lava lea e fai ai mea faapea pe a talimalo le nuu i soo se faigamalaga lava faatasi ai ma Malaga a matagaluega a le malo”. He gave evidence that at the beginning of the year, the Prime Minister and ministers of Cabinet had opened a water pump at Nofoalii and over $5000 was given by them as reciprocal faaaloaloga to the village. He well knows this because he was the ‘failauga’ at the opening. He says it is usual and accepted custom for visitors to conduct faaalaoaloga to the village.
  6. Sinaifoa Vaimoana Sooaemalelagi gave evidence that he was the failauga for the Itumalo when the FAST Roadshow came to Nofoalii. He said of the meaalofa from FAST that “e le mafai ona alofia lea vaega lana lea e maimoa iai le Itumalo”.
  7. Both these witnesses Agaseata Koloseta and Sinaifoa Vaimoana spoke of the cultural appropriateness of the faaaloalo from FAST, as it was a gathering of the Itumalo which had hosted the Roadshow. We accept that the meaalofa from FAST was culturally appropriate and could not be avoided.
  8. The Petitioner submits that the case of Ah Him v Amosa [2001] WSSC 16 (10 May 2001) is similar to the case before us in that a campaign rally was held when elections were imminent. The Respondent there had given $1200 to the ‘faletua ma tausi’ and ‘aualuma’ and $800 to the aumaga of Tuanai on separate occasions. Unlike this case however, the evidence was that the Respondent in Ah Him had already met with the matai of Tuanai which the Court stated “in Samoa custom is the village of Tuanai”.
  9. We distinguish the Ah Him case on the facts. In the present case, in which Samoan custom was part and parcel of the gathering, we cannot be satisfied that this money was given with a corrupt intention and by corrupt methods. It was given at a gathering of the Itumalo and not subsequent or separate to the gathering as was the case in Ah Him.

Respondent directly or indirectly provided food to cater to all voters of Aana Alofi No. 3

  1. Agaseata Henry Tutuila gave evidence that the food which was distributed at the FAST Roadshow was prepared at the home of the Respondent. Ioana Tuiloma Ah Mu and Ainise Tulia gave evidence that the food for the guests was prepared by the extended family of the Respondent and the village of Nofoalii. They say “o nei mea uma sa faia lava ona o le tali faaaloalo i faiga faaSamoa mo malo e usu atu pe a talimalo le nuu”. Timu Levi Keri gave oral evidence, not in his affidavit, that he saw the preparation of the food at the Respondent’s house.
  2. We approach the evidence of both Agaseata Henry and Timu Levi Keri with caution. Both admitted to be part of the faiganuu which has split from Alii and Faipule of Nofoalii following the election because the Petitioner lost the election. They were proud to say they are from the HRPP faiganuu.
  3. We accept the evidence of Ioana and Ainise, two witnesses who did not come across as having an agenda. They were involved in the distribution of food and say that the food prepared from the Respondent’s home was for the guests, and the nuu contributed to the food. The Sa’oao had also prepared light refreshments. There is insufficient evidence to satisfy us that the food prepared at the home of the Respondent was given to voters of Aana Alofi 3 to induce them to vote for the Respondent. It was food prepared primarily for the guests of the Itumalo.

$50 to Avemaoe Viiga

  1. The allegation here is that the Respondent gave $50 to Avemaoe Mikaele, a registered voter for Aana Alofi 3 who lives at Mulifanua. Avemaoe gave evidence that the Respondent, Tanupo Mikaele and Vou Talauga came in a car to Mulifanua to find a person by the name of Siaki. She saw the car and walked to the front of her house to ask where they were going. She then led the car to Siaki’s house which is behind hers. She says only Siaki’s wife Lesa was home so Lesa came with her to the car. She says the men asked about Siaki and Lesa said he had gone to test drive his car. The Respondent she says then asked for Siaki’s number and called him. She says she heard the Respondent say “tautuana ma ia lana palota ma vaai le seleni lea ua tuu I lona toalua e fai ai se meaai”. She saw Tanupo give Lesa money and Vou then said to Tanupo “avaku se kupe ma si keige ga e ku mai” (referring to her). She says Tanupo then said “e aua lu te pisa ae tautuana ma oulua le palota”.
  2. Tanupo gave evidence in reply. Tanupo says he gave Avemaoe money as this is the first time he had gone to Siaki’s house and “e faateia au e nofo tane i Mulifanua” in relation to Avemaoe. He says that he, Lesa and Avemaoe were standing away from the car as he had followed Avemaoe to Siaki’s house because “e le sao se taavale I tua i le fale o Siaki”. This is confirmed by Vou Talauna Taulu who was also inside the car.
  3. We are inclined to accept the evidence of Tanupo in this regard. There is no dispute that Tanupo is related to Avemaoe. We accept the other two men in the car did not know Avemaoe and her relation Tanupo did not know that she lived at Mulifanua. This is reinforced by Avemaoe’s evidence that Vou said “avaku se kupe ma si keige ga e ku mai”. There is nothing in that statement from which we could infer that she was given the money with the intention to induce her to vote for the Respondent. She was given money because she was standing there. Avemaoe confirmed in her evidence that she stood there as she also wanted $50. We do not accept her evidence that Tanupo said “aua lua te pisa ae tautuana ma oulua le palota”. This is out of context given that the purpose of these men going to Mulifanua was to see a person by the name of Siaki, not to see Avemaoe. Furthermore her evidence is tainted by the fact that she said in her evidence that she spoke to the Petitioner about her testimony.
  4. The allegation is that the Respondent gave Avemaoe $50. We do not accept that he did. We accept Tanupo gave her $50, but we are not satisfied beyond reasonable doubt that there has been evidence adduced to show that Tanupo is an agent of the Respondent, or that Tanupo gave Avemaoe $50 with the intention of inducing her to vote for the Respondent.

$100 to Sa Tanielu

  1. Sa’s evidence is that she called the Respondent for assistance for her family asiasiga. He gave $100 money which she used to buy a dozen cups and food for the asiasiga. She says the Respondent gave her the money and said “Ia tautuana le palota”.
  2. We dismiss this allegation by the Petitioner. Sa had asked the Respondent for assistance. Giving money to help someone who had asked for assistance is not in and of itself an act of bribery. Sa did use the money for her asiasiga. We do not find that the Respondent told her to remember the elections. We are not satisfied beyond reasonable doubt that the Respondent gave this money with the intention of inducing Sa to vote for him.

$100 to Leu Toso

  1. Leu Toso gave evidence that on 7 April 2021 at around 2-3pm he was working in his plantation when he saw the Respondent’s car parked on the main road. He walked to the car and the Respondent and Tanupo Mikaele were inside the car. He says the Respondent told him “e tautuana le palota “ and gave him $100. He says in reply “taatia mai lou finagalo ae ia alofagia e le Atua lona faamoemoe”.
  2. We also dismiss this allegation. Sa Tanielu said in her evidence that she contacted the Respondent on behalf of Leu Toso. She lives with Leu Toso. Tanupo also gave evidence that he went with the Respondent to give Leu money because the Respondent said Leu had contacted him for assistance. Leu’s evidence is also implausible that the Respondent would out of the blue go to his plantation, a fair way inland, solely to find him to give $100. The more plausible explanation is that the Respondent gave him the money in response to a request from Leu which was conveyed by Sa.
  3. Again giving money in response to a request for assistance is not bribery per se. The intention is to assist, not to induce the person to vote. There is no evidence that the money would have been given had it not been for the request from the witnesses.
  4. We are not satisfied beyond reasonable doubt that the intention for giving Leu Toso the $100 was a corrupt intention.
  5. Vou Aotoa gave evidence that on the day of the election he and Satini Polo were walking to vote at Leulumoega. When they reached the front of the Catholic church they came across Timu Sione who is the Pulenuu of Nofoalii. Timu asked where they were going and they replied they were going to vote. Timu then said E sese loa le tagata e te palota iai, faatea loa au mai le nuu. O lou ola e uu i ou lima. Ou te iloa uma lava e tou te palota ai. He says Timu then told them to get in his car and dropped them at Leulumoega Tuai to vote. Vou says he felt scared so he voted for the Respondent instead of the Petitioner who he intended to vote for.
  6. We do not intend to spend much time on this allegation. We did not find Vou Aotoa to be a credible or truthful witness. We accept the evidence of both Timu Sione and Satini Polo about the events of election date which is the date of the alleged threat. Satini says that he was drinking with Vou the night before and on the morning of the election. He said he was with Vou on their way to vote when they met Timu Sione. He did not hear Timu Sione say these words. Timu Sione says that Vou was sufficiently intoxicated to be loud on the day of the election. We accept that Vou was had been drinking alocohol on election day making his evidence unreliable. There was also general agreement among the witnesses that no one at Nofoalii had even been faatea from Nofoalii due to election matters, and the issue of whether to faatea someone is not a decision made by a Pulenuu but by Alii and Faipule.
  7. We do not accept Vou’s evidence as to what Timu said to him, but even if we did, there is no evidence of agency between the Respondent and Timu Sione upon which we can attribute Timu Sione’s words to the Respondent.
  8. This allegation has not been proved beyond reasonable doubt.

Counter Petition

  1. The Counter petition alleges three specific incidences of bribery as detailed in paragraph 5 above. The Respondent called four witnesses in support of his counter petition.
  2. We will discuss the evidence and make findings in relation to each allegation.

$50 cash to Silalua Malaki

  1. Silalua Malaki is a registered voter for Aana Alofi No. 3. He gave evidence that on 16 March 2021, he came together with the Petitioner and other matai of Nofoalii in the Petitioner’s car to the HRPP Hall at Mulinuu for a “HRPP Faalauiloa”. After the Faalauiloa, he and others were dropped home and the Petitioner gave him $50.00 and said to him “faatau ai se vaemoa a tamaiti ma ia tautuana le palota ma avatu le lagolago ia te ia”. The fact that there was a HRPP Faalauiloa is supported by the evidence of Agaseata Henry Tutuila who also attended the same Faalauiloa.
  2. We found Silalua Malaki credible and unwavering in his evidence despite intense cross-examination. Furthermore, there was no evidence in rebuttal to offer a credible alternative narrative, despite him mentioning that there were several others who accompanied him to Mulinuu. The evidence was these persons are still resident in Nofoalii.
  3. We are satisfied that the Petitioner gave Silalua $50 as a bribe to induce him to vote for the Petitioner. This allegation is therefore proved beyond reasonable doubt.

$150.00 cash to Neemia Lotomau,

  1. Neemia Lotomau gave evidence that while he is a registered voter for Aana Alofi No. 3, he lives at Tufulele with his wife. He says that at about 9pm on the night of Sunday 28 March 2021, he caught a lift from Tufulele to Nofoalii to see the Petitioner. He says he went to see the Petitioner at his home to discuss the upcoming election. He says the Petitioner gave him $150.00 and said “tautuana ma au lau palota mo ia”. He says this is the first time he has been to the Petitioner’s home but in the 2016 general election had supported the Petitioner.
  2. We did not find Neemia a credible or entirely truthful witness. His evidence is highly implausible and difficult to accept. He would have us believe that for no particular reason he set out to walk to the Petitioner’s home in another village to discuss the election late on a Sunday night, and out of the blue the Petitioner gave him a large sum of money being $150.
  3. The more believable explanation of his late night visit is that he went to seek out the Petitioner to ask for money. We do not find him a trustworthy witness, and it would be dangerous to accept his evidence.
  4. Accordingly, this allegation has not been proved beyond reasonable doubt and is dismissed.

$150.00 cash to Fuarosa Sue Lepale in Lefaga.

  1. Both Fuarosa and her daughter Faataualofa Solomona gave evidence.
  2. Fuarosa says that she is a registered voter in Aana Alofi No. 3 but has lived at Faleseela Lefaga since about 2017 when her husband passed away. Her husband’s family is in Nofoalii. She says that on 30 March 2021, the Petitioner and others came to her home at Faleseela and said “tautuana le palota” and gave her $150 for food for her children, in the presence of her daughter Faataualofa. She says this is the first time that the petitioner has come to her home at Faleseela. She says her husband is related to both the petitioner and respondent. She maintains that she has never asked the Petitioner for money or assistance.
  3. Her daughter Faataualofa Solomona is also a registered voter in Aana Alofi No. 3 and lives with her mother at Faleseela. She says that she was present when the Petitioner came to their home at Faleseela and gave her mother $150 and said “tautuana le palota”. She says she was sitting on the floor next to her mother when this occurred. She also confirms that this is the first time that the Petitioner has been to their home in Faleseela.
  4. We accept the evidence of Fuarosa and her daughter Faataualofa. Both were straight-forward, candid and forthcoming in their evidence, both were highly credible. In the absence of any rebuttal evidence, we accept that the Petitioner did visit them and give them $150 for the purpose of inducing them to vote for him in the election.
  5. This allegation of bribery has been proved beyond reasonable doubt.

Conclusion

  1. The petition is dismissed in its entirety as the allegations have not been proved beyond reasonable doubt.
  2. Two out of the three allegations contained in the counter petition have been proved beyond reasonable doubt. The Petitioner is guilty of two counts of the corrupt practice of bribery.
  3. In accordance with section 122 of the Act, we will report to the Speaker in due course on this and any other matter we consider should be brought to his or her attention.
  4. The security for costs paid by the petitioner is forfeited.

JUSTICE NELSON
JUSTICE TUALA-WARREN

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