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Mataituli v Toleafoa [2021] WSSC 38 (16 August 2021)

IN THE SUPREME COURT OF SAMOA
Mataituli v Toleafoa [2021] WSSC 38 (16 August 2021)


Case name:
Mataituli v Toleafoa


Citation:


Decision date:
16 August 2021


Parties:
LOLOMATAUAMA ESETA FAALATA MATAITULI (Petitioner) and AIONO AFAESE TOLEAFOA (Respondent)


Hearing date(s):
03-06 August 2021


File number(s):
MISC113/21


Jurisdiction:
CIVIL


Place of delivery:
Supreme Court of Samoa, Mulinuu


Judge(s):
Justice Niavā Mata Tuatagaloa
Justice Fepulea’i Ameperosa Roma


On appeal from:


Order:
In summary and for the reasons set out above, we make the following Orders:
(a) The Respondent is found guilty of all five (5) counts of bribery;
(b) The election of the Respondent from the Territorial constituency of Aana Alofi 2 is pursuant to section 116 Electoral Act 2019 hereby voided;
(c) Each party shall bear its own costs;
(d) The security for costs shall be forfeited.
(e) The Court will report to the Speaker.


Representation:
S. Ponifasio for the Petitioner
L. Su’a-Mailo for the Respondent


Catchwords:
Electoral petition – corrupt practices – bribery – agency in election -


Words and phrases:


Legislation cited:
Electoral Act 2019 ss. 96; 116;


Cases cited:
Faitua v Vaelupe [2011] WSSC 50;
Gidlow v Fiaui [2021] WSSC 28;
Kasimani v Seuala [2011] WSSC 87, citing Parker’s Law and Conduct of Elections (supra)
Petaia v Pa’u [2006] WSSC 1;
Re Mitiaro Election Petition (1979) 1 NZLR S1.


Summary of decision:

MISC 113/21


IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU


IN THE MATTER:


of the Electoral Act 2019


AND:


IN THE MATTER:


Concerning the Territorial Constituency of Aana Alofi 2


BETWEEN:


LOLOMATAUAMA ESETA FAALATA MATAITULI, candidate for the constituency of Aana Alofi 2


Petitioner


AND:


AIONO AFAESE TOLEAFOA, candidate for the constituency of Aana Alofi 2


Respondent


Coram: Justice Niavā Mata Tuatagaloa
Justice Fepulea’i Ameperosa Roma


Counsel: S. Ponifasio for the Petitioner
L. Su’a-Mailo for the Respondent

Hearing: 03, 04, 05, 06 August 2021

Judgment: 16 August 2021


JUDGMENT OF THE COURT

Background

  1. The Petitioner and Respondent were candidates for the Electoral Constituency of Aana Alofi 2 in the General Elections held on 9 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 pursuant to section 96 Electoral Act 2019.
  3. Eleven allegations of bribery are alleged in the petition. At the close of the Petitioner’s case, we granted an application to withdraw and dismissed six (6) allegations leaving the Petitioner to pursue the five (5) remaining allegations of bribery. Chronologically they relate to:
  4. The Respondent denies all allegations. As to his counter petition filed nine (9) days after the due date, we were not satisfied that the commitment and workload of former counsel; and a genuine mistaken belief by the Respondent that election petitions would not proceed constitute valid reasons for us to grant him leave to file out of time. We dismissed his application accordingly.

Agency in Election

  1. Since bribery is alleged to have been committed for and on behalf of the Respondent by his election agents on four (4) of the five (5) petition allegations, 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]
  2. “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).”[3] Similarly, the principle applies to the parent of a candidate.[4]

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 in rebuttal 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

  1. Section 96 of the Electoral Act 2019 states:
  2. Both counsel are in agreement as to the relevant legal principles which are set out in Petaia v Pa’u[5]:

Petition Allegations of Bribery

(a) 23 March 2021 – Respondent’s alleged agent Naoupu Faafisi and voters Tulasoo and Vaiee (Allegations 6(c) & (d))

  1. To prove both allegations the Petitioner relies on the evidence of Tulasoo Vili, a 59 year old father of Fasitoo - uta and his daughter Vaiee Tulasoo. Both are voters of Aana Alofi 2. Their evidence is that on 23 March 2021 at around 5pm, they were paid a rare visit by the Respondent’s mother Naoupu Faafisi who was accompanied by Itagia Neemia and Manuulalelei (Ula) Lealaisalanoa. Itagia was driving and Ula was seated on the passenger seat. Naoupu was seated on one of the back seats.
  2. They approached the van and spoke to Naoupu who then gave them a $100 each and said “tautuana le palota a si a’u tama.” As to whether it was normal for Naoupu to visit, the following was asked under cross examination of Tulasoo:
  3. It was further suggested under cross examination that the purpose of Naoupu’s visit was to thank them for their support for her husband’s election in the most recent parliamentary term. Tulasoo and Vaiee maintained that no such words were spoken other than “tautuana le palota a si a’u tama”; they each received $100; and it was inside the van that they were given the money.
  4. In rebuttal the Respondent relies on the evidence of Itagia and Ula. Itagia is a niece of Naoupu. She lives and has lived most of her life with the Respondent’s family. Ula has been working for the Respondent’s family business for many years. They say a $100 was given to Tulasoo. They did not see that Tulasoo had passed the money to Vaiee. They deny that Naoupu mentioned anything about the elections when she handed Tulasoo the money.
  5. Upon a careful consideration of the evidence, we accept the testimony of Tulasoo and Vaiee and find that each of them received a $100 from Naoupu who further told them ‘e tautuana le palota a si a’u tama’. It is simply not credible that on a rare visit by the Respondent’s mother two (2) weeks out from the elections, she would turn up to just thank Tulasoo and his family for supporting her husband in a parliamentary term that ended two (2) weeks earlier and simply avoid mention of the upcoming elections.
  6. The question however is whether on the evidence, we are satisfied that she was agent of the Respondent. We bear in mind that whilst evidence of close acquaintance with the candidate is important evidence to establish agency, the mere fact that the alleged agent is mother to the candidate is not sufficient.
  7. Counsel for the Respondent submitted that apart from Naoupu being mother of the Respondent, there is no evidence that she was a member of the Respondent’s committee or that she had any involvement in promoting his candidacy.
  8. We do not agree. Despite evidence by the Respondent suggesting that unlike his father he had no election committee, we find highly relevant the evidence of Tulasoo and Vaiee that when Naoupu gave them money she also told them “e tautuana le palota a si a’u tama.” Clearly she was promoting the candidacy of her Respondent son. It is immaterial whether or not the Respondent knew. She did not normally visit and on the rare occasion when she did two (2) weeks out from the elections, she handed the two voters money.
  9. We are therefore satisfied beyond reasonable doubt that Naoupu was agent for the Respondent.
  10. On the same evidence we are satisfied that her only intention was to corruptly induce both Tulasoo and Vaiee to vote in favour of the Respondent.
  11. We find proven both allegations of bribery.

(b) 3 April 2021 – Respondent’s alleged agent Toleafoa Faafisi and voters Lotoa Pulusila and Pualele Reupena (Allegations 6(f) & (i))

  1. The Petitioner relies on the evidence of Pualele Taematua Reupena and Lotoa Pulusila in support of these allegations. Both are voters and not members of the Respondent’s committee but were present amongst many others in a meeting at the house of the Respondent’s father in late afternoon 3 April 2021. Their attention was drawn to the meeting by others who told them ‘o la e fai ai le tufagatupe’.
  2. Present at the meeting were the Respondent; his parents and siblings; and other family members. Pualele and Lotoa’s evidence is that the Respondent spoke at the meeting when money was being distributed by Ula among those present. According to Pualele, the Respondent told them ‘e le o se faatosina ae tautuana le ekisi.’ The amounts distributed varied. Pualele and Lotoa each received $50.
  3. It is not disputed that a meeting took place and attended by about 50 to 70 people. All if not most of whom received monies with varying amounts from $50 to $200. It is strongly denied however that it was to promote the Respondent’s candidacy six (6) days out from the election.
  4. The Respondent in rebuttal relies on his evidence and the testimony of eight (8) witnesses namely Tuialii Kesi Danielson, Efa Piliati, Ropati Katopau, Ti’afelelea’i Leaupepe, Fa’aea Perefoti Mose, Letoga Vaotoga Filimalo Amosa, Alefa Leofo and Manuulalelei Lealaisalanoa. All were election committee members for the Respondent’s father in previous parliamentary terms. Through that membership, some became members of some government advisory committees.
  5. Their evidence is that the meeting was supposed to be of the Respondent’s father’s election committee. The purpose was for the Respondent’s father to thank them for their support and discuss what to later present to the village and constituency in return for their support of his candidacy in previous parliamentary terms. The presence of many others apart from the committee was allowed by the Respondent’s father. Only the Respondent’s father spoke at the meeting. The monies distributed including those received by Pualele and Lotoa were his and gifted by him in return for the support of his committee and the village during his term in Parliament. The Respondent did not address the meeting and like his other siblings, his presence was only in support of his father. The Respondent did not have an election committee.
  6. Having listened to the testimony of each witness and observed their demeanour, we prefer the evidence for the Petitioner. That the Respondent did address the meeting and when the monies were handed out, he told the gathering “e le o se faatosina, ae ia tautuana le ekisi.” It is immaterial that the meeting was supposed to be for only members of the Respondent’s father’s election committee. The fact is a large number of other people ended up at the meeting and all received monies from the distribution.
  7. We are further not persuaded that the meeting was solely for the purpose of thanking supporters of the Respondent’s father. Despite the denial by the Respondent and his witnesses, it is simply not credible that six (6) days out from the election, the focus would just be on the Respondent’s father’s previously ended parliamentary term, with the upcoming elections completely ignored. In our view, the meeting was both an opportunity to thank supporters of the Respondent’s father and promote the Respondent’s candidacy a few days out from the elections. We find that the Respondent made use of the opportunity by addressing the meeting and telling them when monies were being handed out “e le o se faatosina ae ia tautuana le ekisi.”
  8. It was suggested by the Respondent that with his father’s and family background in elections, they knew the risks involved and were careful to ensure that the promotion of his candidacy would not be the subject of the meeting.
  9. We accept that he did not need to promote his candidacy. He was a businessman well known for his generosity to families and contribution to projects in the village and district. We are satisfied however on the evidence that despite his awareness of the risk, he took that risk and used the meeting as opportunity to promote his candidacy by reminding those present of the elections.
  10. We are further satisfied beyond reasonable doubt that the Respondent’s father was his agent. The undisputed evidence is that he was present and seated with the Respondent. He also addressed the meeting before the monies which Ula received from him were distributed to those present. The Respondent himself also spoke and referred to the elections. In those circumstances, we can confidently infer that the Respondent recognised and accepted the actions of his father.
  11. We are further satisfied that the monies handed out for and on behalf of the Respondent was intended to corruptly induce those present to vote in his favour.
  12. We find proven both allegations of bribery concerning the voters Pualele Reupena and Lotoa Pulusila.

(c) Visit on 5 - 6 April 2021 to voter Fuamai Kirisome (Allegation 6(b))

  1. To support the allegation the petitioner relies on the evidence of Meipo Taualeo’o Vena, a granddaughter of Fuamai Kirisome. Her evidence is that sometime between 5 and 6 April 2021, she met the Respondent in front of their shop. He asked about her grandmother and she told him she was at their house located seaward. Later that day, the Respondent turned up at the house. Except for Meipo and her grandmother Fuamai, no one else was present.
  2. The Respondent spoke to Fuamai and was heard saying “e faasa iā (ia) ona alu atu iā ia i tulaga o le palota, ae na alu atu e asi atu lana ma’i.”[7] He gave her $200 before he left. The Respondent does not normally visit Fuamai. The last time Fuamai was hospitalised due to illness was around June to July 2020.
  3. In rebuttal the Respondent relies on his testimony and that of Fuamai Kirisome herself. It is not disputed that $200 was given. But their evidence is that it was a gift for Fuamai who had been ill and had not been attending church. The Respondent says that his relationship with Fuamai goes back many years when he started using Fuamai’s land as access to where landfills were extracted for the construction of the seawall project. Fuamai is also one of the elders of their EFKS church whom he looks for and normally greets and gives money to at church and elsewhere.
  4. With her age and condition, Fuamai impressed us with her memory and account of how the events unfolded. She contradicted the evidence of Meipo as to when she was ill and hospitalised. She maintained that it was in February 2021 and that the visit by the Respondent was three (3) weeks after she was discharged. She also confirmed that the Respondent normally gives her money.
  5. Despite the timing and mention by the Respondent of the elections during his visit, Counsel argued that it was normal for him to give Fuamai money as with the other elderly of his church; that his only intention was to check on her and not to corruptly induce her vote in his favour.
  6. We accept that the Respondent’s relationship with Fuamai goes back a long way; and it involves him gifting her money on several occasions. We do not also doubt that the Respondent’s kindness extended to many others in the village including the elderly at his church. But we find that on this occasion, he did not just visit to check on Fuamai. He also intended to corruptly influence her vote in his favour. He very well knew the elections were only two (2) to three (3) days away. He deliberately used the opportunity under the guise of checking on her and tried to evade liability for the gift by saying he was not there to see her about the elections.
  7. We therefore find also proven this allegation of the petition.

Orders

  1. In summary and for the reasons set out above, we make the following Orders:

JUSTICE TUATAGALOA
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] Kasimani v Seuala [2011] WSSC 87 (8 August 2011), citing Parker’s Law and Conduct of Elections (supra) Vol 1, para19.51.
[4] Gidlow v Fiaui [2021] WSSC 28 (21 June 2021).
[5] Petaia v Pa’u [2006] WSSC 1(04 December 2006).
[6] Transcript, p16.
[7] Exhibit P1, para 4.

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