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Ah Ching v Tovale [2021] WSSC 32 (30 June 2021)

IN THE SUPREME COURT OF SAMOA
Ah Ching v Tovale [2021] WSSC 32 (30 June 2021)


Case name:
Ah Ching v Tovale


Citation:


Decision date:
30 June 2021


Parties:
SALAUSA JOHN AH CHING, of Vailoa (Petitioner) and MANULELEUA PALETASALA TALITAU TOVALE, of Vaimoso (Respondent)


Hearing date(s):
30 June 2021


File number(s):
MISC 89/21


Jurisdiction:
CIVIL


Place of delivery:
Supreme Court of Samoa, Mulinuu


Judge(s):
Chief Justice Satiu Simativa Perese
Justice Fepulea’i Ameperiosa Roma


On appeal from:


Order:
In relation to the Petition, we do not find that the allegation from Olivia Seufale has been proved beyond reasonable doubt, and we dismiss the Petition.
Costs are awarded against the petitioner in favour of the respondent in the sum of $5000.
Costs are awarded against the respondent in favour of the petitioner, on account of the unsuccessful application for leave to file the counter petition, in the sum of $1000.
The petitioner has already paid a security of $2,000. The Registrar is hereby authorised to pay the amount of the security, less court costs of $500, to the respondent. This leaves a balance owing by the petitioner to the respondent of $3,500.


Representation:
S. Wulf for the Petitioner
S. Ponifasio for the Respondent


Catchwords:
Election petition – challenging result – bribery – corrupt practice – petition dismissed – election campaign


Words and phrases:
“leave sought by respondent to file counter petition out of time dismissed.”


Legislation cited:
Electoral Act 2019, Part 13. ss. 94; 96(a); 116.


Cases cited:
Lufilufi v Hunt [2011] WSSC 49 (26 April 2011);
Petaia v Pa’u [2006] WSSC 1 (4 December 2006);
Posala v Su’a [2006] WSSC 29 (16 August 2006);
Pule Lameko v Muliagatele Vena [1970-1979];
Vui v Ah Chong [2006] WSSC 52 (26 September 2006).


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 Faleata No. 1.


BETWEEN:


SALAUSA JOHN AH CHING of Vailoa, a Candidate for Election.


Petitioner


A N D:


MANULELEUA PALETASALA TALITAU TOVALE of Vaimoso, a Candidate for Election.


Respondent


Coram: Chief Justice Satiu Simativa Perese

Justice Fepulea’i Ameperosa Roma

Counsel: S. Wulf for the Petitioner

S. Ponifasio for the Respondent

Hearing: 30 June 2021
Judgment: 30 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 three other candidates competed to represent Faleata No. 1, comprised of the villages of Alafua, Lepea, Lotopa, Moamoa, Moamoa Fou, Pesega, Seesee, Sinamoga, Tuaefu, Tuanaimato, Ululoloa, Vaimoso, and Vaitoloa. On 16 April 2021 the Electoral Commissioner publicly notified the results for this territorial constituency as follows:

MANULELEUA Paletasala T. Tovale

  1. The petitioner has brought this petition pursuant to Part 13 of the Electoral Act 2019 ("the Act") challenging the result, which names the successful candidate as respondent. The petitioner alleges the respondent is guilty of 2 counts of bribery.

The Petition

  1. The petition particularises the following acts of bribery:
  2. The petitioner asserts these acts prove the respondent engaged in the corrupt practice of bribery caught by sections 94 and 96(a) and (c) of the Act, and, therefore pursuant to section 116 his election should be voided.

The Counter-Petition

  1. The respondent opposes the petition. He also wishes to advance a counter petition against the petitioner, itself alleging corrupt practices purportedly carried out by the petitioner.
  2. However, the respondent failed to comply with the Court’s direction that counter petitions were to be filed and served by the 11th May 2021. Leave is therefore required to bring a counter-petition.
  3. The respondent’s application is opposed, and we consider that there are no proper grounds upon which leave ought to be granted. The events complained about are historical. Moreover, the respondent has essentially sat on his hands and did not consider making an application until last week. He says he relied on a judgment of this court which allowed a counter petition to be filed, but, we do not consider that this assists him. Had he been genuinely committed to bringing a counter claim, he should have brought an application at a much earlier point. As it is, the application for leave seems opportunistic.
  4. The Court’s discretion to grant an extension to file and serve a counter petition is to ensure that provision is made for the grant of extensions where the interests of justice so require. We draw an inference that the respondent’s historical claims (relating to events on 30 May 2020, 11 June 2020, 26 September 2020 and 5 December 2020) could and should have been made in accordance with the Court’s directions that counter petitions were to be filed by 11 June 2021.
  5. We therefore dismiss the respondent’s applications to file, serve and advertise his counter claim, and costs should follow the event, given that the petitioner has been put to the trouble of having to respond to the application.
  6. We turn to the Petition, and begin with a discussion of the relevant legal principles.

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) correctly sets out the legal principles, 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 the commentary in 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:

The meaning of this observation was further discussed in Vui v Ah Chong in which Chief Justice Sapolu observed:

"I accept that in order to ascertain a person's intention one has to look at what he said and what he did in the circumstances of what took place. It is not physically possible to look into a person's mind to see what he was thinking at the time when he gave out money or valuable consideration to an elector or voter. So one looks at what he said and what he did and infer from that as a fact what his intention was at the time of the giving. Sometimes the impression given by what a person said may be inconsistent with what he did. It will be for the court to decide which of the two conveys the person's true intention.”
  1. 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].

Discussion

  1. The Petitioner sought leave to file a further affidavit from Olivia Seufale. This was opposed by the respondent on the basis that the matters deposed in the further affidavit were irrelevant to the issues the Court needed to consider.
  2. The affidavit was admitted on the basis that the Court would rule in due course on its admissibility. Having now heard the witnesses evidence both in chief and under cross examination, we agree with counsel for the respondent; the matters deposed in the affidavit, about the witness being asked or pressured to withdraw her first affidavit, were irrelevant to the issue of whether at the time the respondent gave the witness $100, 12 March 2021, the respondent tried to induce the witness to vote for him. It appears the petitioner sought to draw an inference of the respondent’s liability to bribery from the respondent’s attempt to dissuade the witness from giving her evidence. Respectfully, we would need more than what was tendered in evidence to draw such an inference.
  3. Turning to the relevant allegations.

The Petition Allegations

Allegation 1:

On or about 12 March 2021 at around 7.00pm the respondent gave $100 to Olivia Seufale, a resident of Seesee.
  1. Olivia Seufale gave evidence as to this claim. She says that on Friday afternoon 12 March 2021, the respondent came to her house. She says she asked him why he came, and he said he wanted to say that he was a candidate in the election. Olivia says that she said to him that they had their own candidate. He is then alleged to have given her $100 which she says - he said was for some food for them.
  2. There is no corroboration of this alleged gift.
  3. We are not satisfied, that if this gift was given at all, that it was given with any corrupt intention on the part of the Respondent.
  4. We are concerned about the reliability of the witness’ evidence. In her affidavit, dated 27 April 2021, she deposed, as noted above, that the gift of money was for them to buy some food. The text of her evidence is as follows:
  5. It was disclosed in questions from the Court that the witness considered that this money was an attempt to bribe her. When asked why she had not disclosed this new allegation to the lawyer to be included in the affidavit, she answered she thought she had. We are doubtful about the truthfulness of that response. We consider that the allegation that the $100 payment was a bribe is so fundamental in an electoral petition that it would be most unlikely that responsible counsel would have omitted to include that allegation in the witness’ affidavit. Moreso when there were only two allegations of bribery in the Petition. This is not a Petition which has literally dozens of witnesses, a scenario that might have reasonably opened the possibility of an important assertion being inadvertently left out.
  6. We are also left in doubt as to the intent of briber. Olivia was not alone when the money was handed to her. Her brother, who is a friend of the respondent, was also present at the meeting at the witness’ home. Given the brother’s presence we cannot be sure that the money was intended solely for the witness (and accepted by her on the terms as she appreciated them). The use of the word matou, as in plural, meant the money was given for food for her and her brother. The brother did not corroborate the witness’ account of the giving of the money and the allegation of bribery. In re-examination Mr. Wulf sought to adduce evidence that relations between the witness and her brother were not in a good state. We do not give any weight to that assertion given that it was only advanced in re-examination depriving the respondent of a fair chance to properly consider the claim, and respond if necessary.
  7. We accordingly consider the allegation of bribery to be unreliable. There are too many doubts that remain, particularly since the witness appears to have changed her evidence as between the time of her making the affidavit, and the time she gave evidence in Court. It was not until she gave evidence in Court that the witness suggested that the giving of $100 to purchase food, had a sinister motivation. We consider that this further and very late assertion is unreliable because of its very late disclosure coupled with an unsatisfactory explanation of why it was not disclosed at an earlier point.

Allegation 2:

Sometime in March 2021 at Sinamoga, the respondent gave $10 to Eneriko Vitale Satoa, a resident of Sinamoga
  1. No evidence was offered in relation to this allegation because Eneriko Vitale failed to appear in Court to give evidence. The claim as set out in the petition at paragraph 7 ii) is accordingly struck out.

The petitioner’s case

  1. The petitioner closed his case after the evidence of Olivia Seufale.
  2. It is for the petitioner to prove his case on evidence he adduces before the Court. We did not consider that he had satisfied his obligation. We therefore dismissed the petition, without the need to hear any rebuttal evidence from the respondent.

Conclusion and findings

  1. In relation to the Petition, we do not find that the allegation from Olivia Seufale has been proved beyond reasonable doubt, and we dismiss the Petition.
  2. Costs are awarded against the petitioner in favour of the respondent in the sum of $5000.
  3. Costs are awarded against the respondent in favour of the petitioner, on account of the unsuccessful application for leave to file the counter petition, in the sum of $1000.
  4. The petitioner has already paid a security of $2,000. The Registrar is hereby authorised to pay the amount of the security, less court costs of $500, to the respondent. This leaves a balance owing by the petitioner to the respondent of $3,500.

CHIEF JUSTICE PERESE
JUSTICE ROMA

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