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Leota v Lauofo [2021] WSSC 36 (21 July 2021)

IN THE SUPREME COURT OF SAMOA
Leota v Lauofo [2021] WSSC 36 (21 July 2021)


Case name:
Leota v Lauofo


Citation:


Decision date:
21 July 2021


Parties:
TOOMATA NORAH LEOTA, candidate for the constituency of Anoama’a 2 (Petitioner) and LAUOFO FONOTOE NUAFESILI PIERRE LAUOFO, candidate for the constituency of Anoama’a 2 (Respondent)


Hearing date(s):
08, 09, 12 & 19 July 2021


File number(s):
MISC 111/21


Jurisdiction:
CIVIL


Place of delivery:
Supreme Court of Samoa, Mulinuu


Judge(s):
Justice Lesātele Rapi Vaai
Justice Fepulea’i Ameperosa Roma


On appeal from:


Order:
We make the following orders:
(a) The petition is dismissed in its entirety;
(b) In respect of the counter petition we conclude:
(i) The one allegation of bribery of the 06th April at Salelesi village is dismissed.
(ii) The two allegations of bribery arising out of a village meeting at Eva village are both dismissed.
(iii) The 5 allegations of bribery at the Roadshow at Solosolo are dismissed. But we do find that pursuant to section 100(2) the Petitioner is guilty of illegal practice for the 7 envelopes of cash given to the villages of Leusoalii, Luatuanuu, Salelesi, Eva, Fusi, Saoluafata and Solosolo.
(iv) The three allegations of treating are dismissed.
(c) Each party shall bear its own costs. The security for costs shall be forfeited.
(d) The Court will report to the Speaker.


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


Catchwords:
Election petition – counter petition – bribery – treating – corrupt practice – illegal practice – election campaign rally – Roadshow - customary presentations


Words and phrases:
“law of agency” – “illegal activities during period of election”


Legislation cited:
Electoral Act 2019 ss. 42; 43; 96; 97; 100; 104; 115(7); 122(1); 122(2)


Cases cited:
Ah Him v Amosa [2001] WSSC 16;
Barrow-in-Furness (1886) O’M & H 77;
Faitua v Vaelupe [2011] WSSC 50;
Petaia v Pa’u [2006] WSSC 1;
Posala v Su’a [2006] WSSC 29;
Re Mitiaro Election Petition (1979) 1NZLR S1


Summary of decision:

MISC 111/21


IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU


IN THE MATTER:


of the Election Act 1963


AND:


IN THE MATTER:


Concerning the Territorial Constituency of Anoama’a 2


BETWEEN:


TOOMATA NORAH LEOTA, candidate for the constituency of Anoama’a 2


Petitioner


AND:


LAUOFO FONOTOE NUAFESILI PIERRE LAUOFO, candidate for the constituency of Anoama’a 2


Respondent


Coram: Justice Lesātele Rapi Vaai
Justice Fepuleai Ameperosa Roma


Counsel: A. Su’a & F. Lagaaia for the Petitioner
S. Wulf & L. Strickland-Taimalelagi for the Respondent

Hearing: 08, 09, 12 & 19 July 2021
Judgment: 21 July 2021


JUDGMENT OF THE COURT

Background.

  1. The Petitioner and Respondent were candidates for the Electoral Constituency of Anoama’a 2 in the General Elections held on 09 April 2021.
  2. Following the declaration of the results by the Electoral Commissioner in which the Respondent was declared and reported to be duly elected, the Petitioner challenged the election of the Respondent by alleging against the Respondent the corrupt practices of bribery and treating pursuant to sections 96 and 97 of the Electoral Act 2019.
  3. Seven allegations of bribery and three allegations of treating are alleged in the petition. Only three allegations of bribery and two of treating were pursued due to interference by supporters of the Respondent with the Petitioner’s witnesses. At least one of the witnesses, husband of one of the witnesses was forcefully removed from outside the courtroom by his father before the witness could testify.
  4. In response to the petition the Respondent denies all allegations of bribery and treating. He also lodged a counter petition alleging eight counts of bribery and three counts of treating against the Petitioner.

Agency in Election.

  1. Since bribery and treating are alleged to have been committed for and on behalf of the Respondent by his election agents it is proper that we should deal with the principles of the law of agency first.
  2. A person may become an agent in either of two ways:

In determining the question of agency all the circumstances must be taken together. Entrusting to an agent of acts to be done may be in express terms or arise by implication.[1]

  1. The candidate in election is responsible for all the misdeeds of the agent committed within the scope of his authority although done against his express directions and even in defiance of them. If a person not appointed were to assume to act in any department of service as election agent and the candidate accepted his services as such, he would thereby ratify the agency.[2]

Evidence.

  1. We do not lump all the allegations together in order to consider the evidence and decide whether the Respondent is guilty or not. We consider each allegation and the evidence relating to that allegation separately from other allegations.
  2. We are entitled to inquire into and receive evidence about a charge of corrupt or illegal practice before any proof is given that the Respondent was aware or consenting to the corrupt or illegal practice. This Court sitting as Election Court reports to the Speaker not the parties. Our report will be based on our findings on the evidence which we accept.
  3. Evidence in support of the petition and counter petition was by affidavit and oral testimony. The Court will consider each allegation and the evidence in relation to each allegation separately from all other allegations and evidence. The Court will draw proper inferences; assess the value and quality of the evidence as well as the demeanour and reliability of the witness.

Bribery and Treating.

  1. Both counsels are in agreement as to the relevant legal principles which are set out in Petaia v Pa’u[3]:

Petition Allegations of Bribery.

  1. Allegation (1) alleges that on the week of the General Election commencing 05-09 April 2021, the Respondent by his agent Fa’amau Neru gave Ati Leoleoga $20 cash.
  2. Maree Tupu Leoleoga the wife of Ati Leoleoga who allegedly received the $20 from Fa’amau Neru testified. She also filed an affidavit in support of the petition. Her husband came to Court to testify in support of his allegation but he was forcibly taken away from outside the courtroom. Maree was with her husband when he was removed. She has not seen him since.
  3. Maree told the Court that she was travelling home in a car at her village of Saoluafata on the 08th of April. A car in front of the car she was travelling in stopped at her house and Fa’amau Neru the campaign agent for the Respondent got out. She also got out and walked to the house. Her husband was walking to Fa’amau Neru. She saw Fa’amau Neru place money in her husband’s hand. It was $20. He told the husband to remember the elections.
  4. She was asked how she knew Fa’amau to be the Respondent’s agent. She responded that ever since the Respondent became a Member of Parliament Fa’amau and others were his supporters.
  5. No evidence was called by the Respondent in rebuttal. But even if the Court accepts that $20 was given with the intent to persuade Ati to vote for the Respondent, there is nothing else before the Court upon which the Court can conclude that the giver of the $20 was the agent of the Respondent.
  6. This allegation is accordingly dismissed.
  7. Allegation (ii) alleges that on the 07th April 2021 the Respondent by his agent Fa’amau Neru did give to Tapu Tutaia $50.
  8. Tapu Tutaia a voter of Anoama’a lives at Falelauniu near Apia. She told the Court that on the day before election she was at her cousin’s house at Saoluafata when Fa’amau Neru and two other campaign committee members came in Fa’amau Neru’s car. They told Tapu and her cousin that the village council has resolved to support the candidacy of the Respondent and all should vote for the Respondent. Tapu was then given $50 and her cousin $70 by Fa’amau who told them it was his money. As he left for the car he told Tapu and cousin that if they need help to let him know and he will tell the Respondent.
  9. As to agency she was asked under cross-examination:
  10. The Court is very mindful of the fact that the alleged agent Fa’amau Neru was the same person who on the same day gave $20 to Ati Leoleoga as discussed in paragraphs [13] to [16] above. But it is also the evidence of the Petitioner’s witness that the Respondent had the backing of the village council which could draw the inference that the money could have come from the village council.
  11. Again there is insufficient evidence to link either Fa’amau or the village council to the Respondent.
  12. This allegation also fails.
  13. Allegation (iii) alleges that on the 08th April the Respondent by his agent Lemafa Tilo did give Teofilo Fa’anati $20 cash.
  14. Teofilo Fa’anati told the Court that he was at the Latter Day Saints Church compound on the late afternoon of the 08th April 2021 when Lemafa Tilo, one of the church members gave him $20 and told him to vote for the Respondent.
  15. Teofilo under cross-examination: agreed that his son at the time worked for Lemafa, but he disagreed that the $20 was for the wages for his son because his son had already received his salary.
  16. Lemafa in his rebuttal testimony rejected that he told Teofilo to vote for the Respondent. He gave $20 to Teofilo for Teofilo’s son, who was at the time playing basketball at the church compound. Lemafa denied being a campaign agent for the Respondent; he also denied being armed with the electoral roll of voters when he went to the church compound.
  17. This allegation must also suffer the same fate as the previous allegations. Even if the Court accepts that Lemafa did give $20 and did urge Teofilo to vote for the Respondent, it does not connect the Respondent to Lemafa. There is nothing in the evidence or in counsel’s submissions to even suggest that Lemafa was agent.
  18. This allegation of bribery also fails.

The two allegations of treating.

(a) It is alleged that on the 02nd of March 2021 the Respondent caused to purchase a supply of building materials for the Ekalesia Nasareta at Solosolo.
  1. It is not disputed that the Ekalesia Nasareta (Church) were fundraising about June 2020. A letter to the Respondent, as the Member of Parliament for the Constituency, requesting assistance was signed by the Church Minister and six other members of the congregation. The letter dated 05th August 2020, requested assistance in the construction of residence for the Church Minister. It was hand delivered by the Minister and other members including Faleupolu Pasoni to the Respondent.
  2. Faiese Nuafesili, a church member, told the Court that on the 02nd March 2021 a load of timber arrived and on the following Sunday she questioned where the load came from. She was told by Faleupolu Pasoni that it was part of the timber load that the church requested from the Respondent.
  3. She also told the Court the first load of timber from the Respondent was received by the church in December 2020. She also said the second load arrived in March when the election period, which forbids inducement of voters (fa’atosina) had commenced.
  4. Faleupolu Pasoni, the church secretary testified in rebuttal. He produced a copy of the letter requesting assistance which he and others delivered to the respondent. He also produced a copy of the receipt of the load of timber which was received by the church in December 2020. He was adamant there was no second load of timber delivered to the church or received by the church in March 2021 as alleged by Faiese.
  5. It appears Faiese did not actually see the load which she alleged arrived in March 2021. She said in cross-examination:
  6. The Court has serious doubts as to the reliability of Faiese’s testimony which must go in favour of the Respondent. The allegation is dismissed.
  7. Allegation (ii) of treating alleges that on polling day the Respondent by his agent Autu Tauiliili did use his vehicle to transport voters to and from voting booths at Luatuanu’u.
  8. Simealelei Leota Alesana, a younger sister of the Petitioner was a scrutineer for the Petitioner on the polling day at the polling booth at the Roman Catholic Church Hall at Luatuanu’u. On polling day she noticed the pick-up truck owned by Autu Tauilili on two occasions bringing voters to the booth. His taxi vehicles also transported voters to and from the same booth. She personally knows Autu Tauiliili. It was Autu Tauiliili who drove the pick-up.
  9. Autu in his rebuttal evidence, originally told the Court that he took members of his family to the booth. He subsequently changed tune and said he went by himself to vote and afterwards joined the gathering of matais. It was his taxis which were used to transport members of his family to the booth.
  10. Although the Court dismisses Autu’s testimony for unreliability it does not necessarily lead to a logical conclusion that he was transporting voters or he approved the transportation of voters using his vehicles as an agent or on behalf of the Respondent. There is not the slightest of evidence to suggest he was the Respondent’s agent.
  11. This allegation is also dismissed.

The counter petition.

  1. The Respondent has brought his own petition against the Petitioner. It is called the counter petition as is the practice which has developed in the past and relied on by Respondents to counter the petition. It is based on section 115(7) of the Electoral Act 2019 which states:
  2. Three incidents of treating and eight incidents of bribery alleged against the Petitioner can be categorised and dealt with under three separate headings namely:

The 06th April allegation at Salelesi village.

  1. Manu Shane Alaelua of Salelesi a 30 year old male who attended University, had worked for the ANZ Bank and currently employed by another organisation, the SPPD, tried to convince the Court that he was told by one Peta Tauaneai a campaign agent of the Petitioner, that if he does not vote for the Petitioner he will be served with summons for his delinquent loan with Rowlen Finance which is a company owned by the Petitioner. Peta Tauaneai is a 46 year old unemployed married woman of the same village. She is in fact the aunt of Manu.
  2. Peta Tauaneai denied making the statement simply because she does not work for Rowlen Finance and more importantly she does not know the vote of anyone.
  3. The allegation is childish if not ridiculous. Counsel correctly did not pursue it in his oral submissions.

Eva village meeting.

  1. At the Eva village meeting of 22nd March 2021, two allegations of bribery resulted from the giving of $500 to the village matais.
  2. It is common ground that the village council of Eva held its weekly Monday meeting on the morning of Monday the 22nd March. It is also common ground that the Petitioner and Seiuli attended the meeting as pre-arranged and they were welcomed. A semi formal ava ceremony was done. Seiuli spoke first obviously in response to the welcome speech and to state the purpose of their visit.
  3. More importantly the Petitioner spoke about her candidacy in the forthcoming General Election. She told the meeting during her speech that because of the imminent election she will not be giving the meeting any money as per custom. Both Seiuli and the Petitioner left the meeting but Seiuli returned to the meeting house and gave $500 to one of the matai. She said to the matai, “E fai ai se tou malū taeao.”
  4. The orator who distributed the $500 gave the five chiefs (alii) $100 each. The orators got nothing. About 14 to 15 matais were present.
  5. No explanation was given why the giving of $500 to one matai of the meeting to buy food for the meeting justified two counts of bribery. The money was given for the meeting, not specifically for the two matais named in the counter petition.
  6. Seiuli testified. She is 70 years’ old; a retired University lecturer of Samoa language. She was embarrassed when she and the Petitioner left the meeting without complying with custom, so she walked back and gave the $500 to the meeting. The Petitioner at that time was at her car. Seiuli was asked:
  7. Three of the matais who were at the meeting testified and confirmed the statement by the Petitioner she will not comply with custom due to the pending elections. Neither of them thought at the time the $500 was a bribery. They all knew it was Seiuli’s money.
  8. Counsel for the Respondent contended that Seiuli was the campaign agent for the Petitioner who is responsible for all the misdeeds of the agent even if it was done against her express directions.
  9. Seiuli is a cousin of the Petitioner. Seiuli accompanied the Petitioner to the Eva village for support and as orator. It does not necessarily label her as an agent. A supporter does not automatically become an agent for doing a single favour for a candidate. The evidence is insufficient to prove the charge beyond reasonable doubt.

The FAST Roadshow.

  1. It is common ground that a Roadshow by the FAST party was held on the 13th March 2021 at the EFKS Church Hall at Solosolo village within the Anoama’a No. 2 Electoral Constituency. It was attended by people from the seven villages of the Constituency – Leusoalii, Luatuanuu, Salelesi, Eva, Fusi, Saoluafata and Solosolo. A traditional welcome by the district was done. What took place during the traditional and customary welcome and before the presentation of the FAST party manifesto and campaign speeches is not the focus of the complaints in the counter petition.
  2. After the presentation speeches, which also included a speech by the Petitioner, the families of the FAST party members residing in the district made customary presentations of money and fine mats to the party. These presentations are also not the subject of the complaints in the counter petition. It is the response by the FAST party towards the conclusion of the Roadshow, when seven envelopes containing $1,000 each envelope was presented to the seven villages. Five instances of bribery are alleged on the basis that five matais from the villages of Luatuanuu, Salelesi and Fusi received varying amounts of cash from the envelopes.
  3. The three allegations of treating relate to the food and drinks which were also distributed. It is common ground that food and drinks were distributed at the Roadshow. The Women’s Fellowship of the Solosolo EFKS Church provided the food for everyone.

Illegal practices and funeral exemption.

  1. Illegal practices in relation to the election are dealt with under section 100 Electoral Act 2019 which reads:
  2. Section 100 creates a strict liability offence, which is punishable under section 103.[6] It imposes an absolute prohibition to the giving or exchange of food, money, fine mates or other valuable at a ceremony or activity except at a funeral during the “period of election”.
  3. It is common ground that the period of election commenced on the 10th March 2021; three days before the FAST Roadshow at Solosolo. Period of election is defined in section 100(1) to mean the period commencing on the day after the Commissioner gives public notice of polling day.
  4. It is not required that the acts of giving or exchange of money or food be accompanied by a corrupt intent in order to constitute an illegal practice. Likewise an elector or voter who obtains or attempts to obtain any food, money, drink or other valuable from a candidate is guilty of illegal practice.[7]
  5. Although ceremony or activity are not defined it is clearly implicit from the wording of the sections 100(2), (3) and (4) that any occasions other than a funeral in which Samoans are obligated or required by custom or traditions to make presentations of money, food or other valuables is a ceremony or activity contemplated by section 100.
  6. The presentation of envelopes of money and food at the Roadshow was an illegal activity under the Electoral Act.
  7. The FAST party was quite entitled to hold its campaign rally in compliance with the approved methods provided in section 42 since the prohibited period for campaigning (“the prohibited period”) stipulated in section 43 has not commenced. But the campaign rally activity must not involve the giving and exchange of food, money, fine mats or other valuable.

Was FAST agent for the Petitioner?

  1. The answer is obviously in the affirmative. The Petitioner was a member and FAST candidate. Although she may not have been involved in the organisation of the Roadshow it could not be ignored the Roadshow was at her village; her candidacy promoted through the manifesto and her speech.

Corrupt and Illegal Practice.

  1. A corrupt practice is a thing the mind goes along with; an illegal practice is a thing the Legislature is determined to prevent, whether it is done honestly or dishonestly.[8]
  2. There is a clear distinction in the Electoral Act between a corrupt practice and illegal practice. A person found guilty of corrupt practice is liable to a term of imprisonment not exceeding 4 years whereas for illegal practice the maximum imprisonment term sentence is not more than 3 years. The Act regards corrupt practice as more serious.
  3. Section 104, Electoral Act provides that a person charged with a corrupt practice may if the circumstances warrant be found guilty of an illegal practice, and a person charged with an illegal practice may be found guilty of that offence despite that the act constituting the offence amounted to a corrupt practice.
  4. Counsel for the Respondent with commendable frankness conceded he overlooked section 100, Electoral Act. Counsel for the Petitioner obviously also overlooked section 100.
  5. The giving of money at the Roadshow which we have determined to be an illegal practice were not given specifically for the individuals stated in the counter petition. The envelopes of money were earmarked for the villages.
  6. The food was prepared and given out by the Women’s Fellowship of the EFKS Church of Solosolo to feed everyone including the FAST party. The Women’s Fellowship, on the evidence cannot be determined to be agents of the Petitioner or of FAST. The 3 allegations of treating are dismissed.

Persons who are not parties to the petition but alleged to be guilty of corrupt or illegal practice.

  1. Section 122(1) Electoral Act requires the Court to report to the Speaker of the Legislative Assembly once any charge is made out in an election petition of any corrupt or illegal practice having been committed at the election.
  2. However, if someone who is not a party to the petition or a candidate on behalf of whom the seat is claimed by the petition, section 122(2) requires notice to be first given to the affected person before reporting him or her to have been proven guilty.
  3. We adopt the same approach made by this Court in Posala v Su’a[9] that we have not heard any oral or written request to any person coming within the ambit of section 122(2) and there has been no request to give any notice to that person or persons.

Conclusions.

  1. We make the following orders:

JUSTICE VAAI
JUSTICE ROMA

[1] Petaia v Pa’u [2006] WSSC 1; Faitua v Vaelupe [2011] WSSC 50.
[2] Re Mitiaro Election Petition (1979) 1NZLR S1.
[3] Petaia v Pa’u [2006] WSSC 1 (04 December 2006).
[4] Transcript, page 25.
[5] Transcript, page 46.
[6] See also Posala v Su’a [2006] WSSC 29; and Ah Him v Amosa [2001] WSSC 16.
[7] Electoral Act 2019, section 100(3).
[8] Field J in Barrow-in-Furness (1886) 4 O’M & H 77. See also Posala v Su’a at para [28].
[9] Supra.

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