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Avauli v Atiifale [2021] WSSC 39 (16 August 2021)

IN THE SUPREME COURT OF SAMOA
Avauli v Atiifale [2021] WSSC 39 (16 August 2021)


Case name:
Avauli v Atiifale


Citation:


Decision date:
16 August 2021


Parties:
VELETALOOLA FUIMAONO LOTOMUA AVAULI (Petitioner) v FUIMAONO TE’O SAMUELU ATIIFALE (Respondent)


Hearing date(s):
21, 22, 23, 26, 27, 28, 29, July & 03 August 2021


File number(s):
MISC 100/21


Jurisdiction:
CIVIL


Place of delivery:
Supreme Court of Samoa, Mulinuu


Judge(s):
Justice Vui Clarence Nelson
Justice Lesātele Rapi Vaai


On appeal from:


Order:
All in all, we therefore find in relation to the Petition as follows:
(i) The allegations of bribery and treating against the Respondent in paragraphs 5(a), (c) and (d) have been proven beyond reasonable doubt;
(ii) The allegations of bribery and treating in paragraphs 5(b) and (h) have similarly been proven beyond reasonable doubt;
(iii) The allegation of bribery and treating in paragraph 5(e) has also been proven beyond reasonable doubt;
(iv) The allegations of bribery and treating in paragraphs 5(f) and (g) have not been established, those are dismissed.
Having been found guilty of committing the corrupt practices of bribery and treating, the election of the Respondent for the electoral constituency of Falealili No. 2 is accordingly voided pursuant to section 116 of the Electoral Act 2019.
In respect of the counter-petition of the Respondent as against the Petitioner:
(i) The allegation of bribery against the Petitioner in paragraph 3 of the counter-petition has not in our view been proven beyond reasonable doubt, it is dismissed;
(ii) The allegations of bribery pursuant to paragraphs 4 and 9 of the counter-petition have been proven beyond reasonable doubt;
(iii) The allegations of bribery and treating pursuant to paragraphs 5(i), (ii) & (iii) of the counter-petition have not been proven beyond reasonable doubt, they are dismissed;
(iv) The allegation of bribery in paragraph 6 of the counter-petition was not the subject of any evidence, it is withdrawn and dismissed;
(v) The allegation of bribery pursuant to paragraph 7 of the counter-petition has not been proven to the Courts satisfaction and is dismissed;
(vi) The allegations of bribery and treating in paragraphs 8 and 8.1 of the counter-petition we find to be proven beyond reasonable doubt;
(vii) The allegations of bribery in paragraph 10 of the counter-petition we find to be proven beyond reasonable doubt;
(viii) The allegation of bribery in paragraph 11 of the counter-petition has not been proven beyond reasonable doubt and is dismissed.
We will report on these and any other matters we consider necessary to the Speaker of the Legislative Assembly pursuant to the requirements of the Electoral Act in due course.
The Petitioners deposit of $2,000 will be forfeited as costs in this matter.


Representation:
K. Koria and F. Lagaaia for the Petitioner
L. Su’a-Mailo for the Respondent


Catchwords:
Election petition – counter petition – bribery – treating – corrupt practice – illegal practice – election agent – corrupt intent


Words and phrases:


Legislation cited:
Electoral Act 2019 ss. 94(1)(b); 94(1)(c); 94(2); 96; 97; 104; 118.


Cases cited:
Ah Him v Amosa [2001] WSSC 17;
Buchnill, J in Kingston-upon-Hull (1911) 6 O’M & H 389;
D.P.P v Luft [1976] UKHL 4; (1976) 3 WLR 32;
Olaf & Ors v Chan Chui [2001] WSSC 18;
Posala v Su’a [2006] WSSC 29;
Re Election Petition Aleipata (Itupa-i-Lalo) Territorial Constituency: Tafua Kalolo v Letiu Tamatoa (1970-1979) WSLR 247;
Re Mitiaro Election Petition [1979] 1 NZLR S1;
Re Wairau Election Petition [1912] NZGazLawRp 37; (1912) 31 NZLR 321;
Rogers on Elections at page 313;
Tafili v Peto [2021] WSSC 30.


Summary of decision:

MISC 100/21


IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU


IN THE MATTER:


of the Election Act 2019


AND:


IN THE MATTER:


Concerning the Territorial Constituency of Falealili 2


BETWEEN:


VELETALOOLA FUIMAONO LOTOMUA AVAULI, candidate for the Constituency of Falealili 2


Petitioner


AND:


FUIMAONO TE’O SAMUELU ATIIFALE, candidate for the Constituency of Falealili 2


Respondent


Coram: Justice Vui Clarence Nelson

Justice Lesātele Rapi Vaai


Counsels: K. Koria and F. Lagaaia for the Petitioner

L. Su’a-Mailo for the Respondent


Hearing: 21, 22, 23, 26, 27, 28, 29 July & 03 August 2021
Judgment: 16 August 2021


JUDGMENT OF THE COURT

Introduction

  1. A General Election for the Legislative Assembly of Samoa was held on Friday the 09th April 2021. The Petitioner and Respondent were two of the candidates for the Electoral Constituency of Falealili No. 2.
  2. Following the declaration of the result by the Electoral Commissioner in which the Respondent was declared duly elected, the Petitioner filed a petition seeking avoidance of the Respondent’s election, by alleging that the Respondent, in the course of his election campaign, committed the corrupt practices of bribery and treating.
  3. The Respondent in response, lodged a counter petition alleging corrupt practices of bribery and treating against the Petitioner.

Relevant Law: Bribery and Treating

  1. Bribery and treating are pursuant to Part 13 of the Electoral Act 2019 deemed to be corrupt practices: section 94(1)(b) & (c). Pursuant to section 94(2) a person is guilty of a corrupt practice “who aids, abets, counsels, or obtains the commission of any offence listed in subsection (1).”
  2. Bribery and treating are defined in sections 96 and 97 of the Electoral Act 2019. These are very wide definitions.
  3. The gist of the offences of bribery and treating is the corrupt inducement to the voter to vote, or refrain from voting. This may be given at any time, although for obvious reasons, it is usually given at or shortly before the election. There can be no corrupt practice without a corrupt intention.
  4. In ascertaining a corrupt intention in an election petition it was stated in Re Wairau Election Petition
  5. The question of mixed motives is considered in Rogers on Elections where one motive is charity or kindness and the other popularity or corruption; the question is which is the governing or dominant motive. The issue was put to the rest by Lord Diplock in D.P.P v Luft
  6. On the authority of D.P.P v Luft, it appears so long as one of the purposes of the relevant act was to promote the election of the candidate, that is sufficient to prove the intention required for corrupt practice in terms of the Electoral Act. The dominant intention test is therefore rejected as was done in by this Court in Ah Him v Amosa and by Donne CJ in Re Mitiaro Election Petition.
  7. Bribery can be committed in many ways as is apparent from section 96 but the most important and essential element is proof of the corrupt intention of the person alleged to have committed the offence. To ascertain a person’s intent one has to look at what he did and said as well as the circumstances in which the giving was made.
  8. For the allegation of bribery to succeed the Petitioner or counter Petitioner must prove beyond reasonable doubt that the act of the accused or of any person on his behalf was done with a corrupt intention.
  9. An intention can never be proved as a fact; it can only be inferred from the facts proven beyond reasonable doubt.

Avoidance of election of candidate guilty of corrupt practice

  1. There is a clear distinction in the Electoral Act between a “corrupt practice” and an “illegal practice”. The Act treats “corrupt practices” as more serious than illegal practices. Persons found guilty of corrupt practices are liable to a greater penalty than a person found guilty and convicted of committing an illegal practice.
  2. More importantly a candidate who has been elected at the election and is proved at the trial of an election petition to have been guilty of any corrupt practice, his election pursuant to section 116 Electoral Act 2019 is void.
  3. There is no similar provision for a person proved at the trial of an election petition to be guilty of an illegal practice.
  4. The Court also notes the provisions of section 104 of the Electoral Act 2019:
  5. It is clear from this that a person charged with a corrupt practice may, if the circumstances warrant that finding, be found guilty of an illegal practice. Further that a person charged with an illegal practice may be found guilty of that offence despite the fact that the act or acts in question constituting the offence amounted to a corrupt practice.

Agency

  1. Since some of the corrupt practices are alleged in the petition and counter petition to have been committed by members of the campaign committees of the respective parties, it is proper that we should avert to the principles of the law of agency in election petitions. These principles have been adequately dealt with recently in the other election petition cases. It is sufficient to refer only to the decision of this Court in Ah Him v Seiuli which adopted what was said in Olaf & Ors v Chan Chui:

Evidence

  1. Evidence in support of the petition and counter petition was by way of affidavit and oral testimony. The Court heard from 27 witnesses over a span of eight (8) days and the transcript of evidence comprises some 220 pages. On almost every basic fact there is disappointingly a direct clash of evidence and the task of determining the true facts has been extremely difficult. It is patently clear to the Court that there has been much dishonesty exhibited during the course of the testimony, so much so that the Court has grave doubts as to the reliability of many of the witnesses, at least in relation to certain aspects of their evidence. Inevitably the submissions by counsels were quite properly directly not so much to the applicable law but to the conflicting evidence of the witnesses with emphasis on the evidence they considered important from their respective points of view.
  2. 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 quality and value of the evidence, as well as the demeanour and reliability of each witness.
  3. To borrow from a famous passage, the Court will not allow nor accept a witness to say: I did not do that which amounted to bribery or treating if when all the things he did or said leads to one conclusion and that is he did what he said he did not intend to do. Likewise the Court will not allow nor accept Samoan custom and tradition to be used to disguise subtle forms of bribery and/or treating. As stated in Ah Him v Amosa :
  4. This is particularly relevant to many of the allegations raised in the Petition.

Petition Allegations

  1. Before dealing with the specific allegations in the petition it is proper to address in writing the issue raised by the Respondent’s counsel in her closing submissions namely that the petition alleges the offence of bribery only. But the evidence adduced in the affidavits and oral testimonies of the witnesses include allegations of treating as well.
  2. Counsel is correct. Paragraph 5 of the Petition alleges bribery only against the Respondent personally and/or through his election agent. Paragraph 5 then continues on to give particulars of the bribery but including allegations of treating, namely the giving of food and alcohol.
  3. The petition is dated the 30th April 2021. After a number of pre-trial notions, mentions and call overs the hearing of the petition commenced on the 21st July 2021. No objection was raised before the trial or throughout the trial to the inclusion of the treating allegations. Cross-examination of the Petitioner’s witnesses themselves was directed towards the allegations of treating as well as bribery.
  4. It was therefore proper in the Court’s view to accept and to consider the allegations of treating as particularised in the petition notwithstanding the failure to specifically plead “treating”. In this regard we rely on section 118 of the Act which provides:
  5. The Petition alleges in paragraph 5 thereof eight (8) instances of bribery and treating as follows:
  6. It is convenient to deal with some of these allegations together.

Allegations 5(a), 5(c) and 5(d) concerning a purported “asiga” of the Respondent at his home at Fagalii by his village.

  1. These three allegations of bribery and two of treating arose out of a gathering of more than 50 adult people of the village of Utulaelae at the residence of the Respondent at Fagalii on Friday the 05th February 2021. It is not disputed that the gathering at Fagalii included matais, untitiled men (tauleale’a) and women. It is also not disputed that food was provided by the Respondents family by way of a BBQ, and money was also given by the Respondent which was distributed amongst everyone present.
  2. What is in contention are:
  3. The three untitled men who testified for the Petitioner told the Court they travelled to Fagalii after being told by the Respondent’s committee members at Utulaelae of a meeting that day at Fagalii at the Respondent’s residence. Tuli Momotu, a 46-year-old and Sam Kitiona a 22-year-old were transported to Fagalii with about eight others in a red double cab pick-up which they thought belonged to the Respondent and/or his committee. The third witness Fa’avae Fatu a 64-year-old told the Court that he and his brother drove to Fagalii when they received the news at Utulaelae about a meeting at the Respondent’s residence.
  4. The three witnesses denied that there was a village resolution at a village fono meeting on Monday 01st February 2021 that a village delegation will on Friday 05th February travel to Fagalii to formally acknowledge and commend the Respondent for his efforts in securing an access road for the village. Such a formal trip (an “asiga”) requires presentation of food to the Respondent’s family. The three witnesses denied that food was presented to the Respondent’s family and they similarly denied that the village gathered and put together food for the trip.
  5. In rebuttal the pulenu’u Suailua Siaosi Faletolu and a senior orator of the village Palapu Tuputasi and his brother Siliseuga Vavaō Fuimaono testified for the Respondent concerning the purpose of the visit on the 05th February. They told the Court they were all at the village meeting on the 01st February where it was agreed to the trip of the 05th February. It was decided that taro, chicken, fish, and drinking coconuts will be taken. The pulenu’u and Siliseuga termed the food as an “asiga” whereas Palapu called it a “ta’ita’I”. The pulenu'u offered to take cooked food (umu) and a pig (size 2). Each matai was asked to donate 3 taros. The untitled men to provide drinking nuts and fish.
  6. Ten matais including the pulenu'u Palapu and Siliseuga together with six untitled men were asked to take the “asiga’. They were supposed to meet at the Respondent’s house at 12 noon. Instead of 16 village representatives arriving at Fagalii, there were more than 50. There were also others from other villages like Salani. The witnesses for the Respondent termed the extra visitors as “osovale” – the uninvited.
  7. Whether invited or osovale, all those present at Fagalii shared equally in accordance with rank within Utulaelae village as determined by Siliseuga the distributor of the $2,000 pasese given by the Respondent. Palapu took with him to Fagalii his wife, his daughter and two other women of his family. He knew they would all get a share of the pasese which the Respondent would present. The pulenu'u also took his wife. He knew the wife would also get a share of the pasese. The pulenu'u arrived at Fagalii at about 9 a.m., gave the Respondent’s wife the pig and cooked food then left his wife at the Respondent’s house and went to Apia to conduct some errands.
  8. Actions always speak louder than words. It is obvious to us that the more “osovales” from the household to go to Fagalii the bigger the share the household will get in the distribution of the pasese. The ‘asiga’ label is a window dressing. There was no formal presentation of the food which the village took to Fagalii to their faipule in accordance with normal customary protocols. Furthermore the people arrived in separate cars in dribs and drabs between 9 and 12 instead of all together.
  9. We are also mindful that Palapu told the Court that the Respondent routinely travelled to the Constituency for the weekend to attend church on Sunday. Especially in view of the looming election. On Fridays, the Respondent normally returns to his village Siuniu. It is therefore illogical and inconvenient, as counsel for the Petitioner suggested in his submissions, for the village to travel a long distance to Fagalii particularly when most of the villagers do not have their own transport.
  10. We also take note of the Respondents witnesses testimony that the purported “asiga” was to thank the Respondent for a new road. In fact their evidence was that no sealed road had been constructed and opened as per usual, it had only been approved and was in the early stages of construction. It also appeared there had been a previous road construction a few years previously and no asiga or suchlike was carried out by the village in question. Casting more doubt on the bona-fides of the Fagalii visit.
  11. We believe the true position can be found in the evidence of Palapu who said the following at page 161 of the transcript:
  12. In other words the trip was to discuss with the Respondent the next steps for the proposed road and what was agreed to be taken and was taken was a mere “ta’ita’i”, in our custom something smaller and more appropriate to the occasion. An “asiga” would have been much larger and would have been conducted in quite a different manner. In addition the Respondent would have been formally notified of an “asiga” by his village. All witnesses agree no such notice was given to the Respondent who was in Parliament when the village arrived.
  13. We are also not persuaded that the recording in the pulenuu’s book of it being an “asiga” makes it so. We note the book was only produced at the instigation of the Court and was done some four (4) days after our request was made. Making its evidential value somewhat dubious. It also contradicts the evidence of the Respondents own witness Palapu who said he attended the relevant Utulaelae village council meeting which was held on a different date wherein it was agreed to take a “ta’ita’i”. There were also discrepancies amongst the Respondents witnesses as to who attended which meetings and what is recorded at the front of the Pulenuu’s book.
  14. The Court rejects the contention by the Respondent that the visit to Fagalii was a formal Asiga of the Respondent and/or as a thanks for a new village road.

Was the $2,000 pasese given with a corrupt intent?

  1. Palapu received $2,000 pasese after he delivered the speech on behalf of the village to the Respondent. He said it was in accordance with custom and tradition that the Respondent was obliged to give the village a pasese and the money that was given was not excessive considering the number of people who travelled from Utulaelae. Of particular relevance however was the fact that the Respondent did not invite the village to come to Fagalii. It was the initiative of the village matais, in particular the pulenu'u to undertake this visit.
  2. It was submitted by counsel for the Respondent that the dominant purpose of the meeting was about the villagers thanking the Respondent for the access road which the Respondent had pursued to construct for the village. At no time was the Respondent’s candidacy discussed at the meeting. We are not convinced by this argument for as indicated above, the evidence speaks otherwise.
  3. The Court has determined that the trip to Fagalii by the Utulaelae village on the 05th February was not a formal Asiga. Some of the people including Tuli Momotu and eight others were transported by a red double cab pick-up which was obviously from outside Utulaelae. Ownership of the said pick-up is denied by the Respondent but the fact remains it was used to transport people to Fagalii more than once. There is a very strong inference that the transportation was organised by the Respondent’s election committee. The presence of more than 50 Utulaelae residents at Fagalii is an indication that it was not merely rumour, hearsay or “tala fa’alogo” at Utulaelae that the Respondent is meeting the village at his Fagalii residence on the 05th.
  4. The testimonies of the witnesses for both the Respondent and the Petitioner and the actions of the witnesses like the pulenu'u and Palapu who transported some of the osovale to Fagalii point squarely to the fact that people were going to Fagalii to get a share of the monies the respondent will give out. Everyone knew this.
  5. It is conceded by the Respondent that the witness Sam Kitiona was approached by Siliseuga when it was discovered that Sam was testifying for the Petitioner. From page 150 of the transcript:
  6. It is also conceded that Sam was taken to Petesa, Mulinuu, the headquarters for the HRPP political party where Siliseuga was virtually living for some three (3) months after the General Elections in April. He was there to supposedly render moral support for the Respondent and the HRPP. He was obviously a supporter if not a member of the Respondent’s election committee. Siliseuga admitted in response to questions from the bench he went looking for Sam to tell Sam not to testify for the Petitioner.
  7. The Court accepts that Sam did talk with the Respondent at Petesa, Mulinuu and was given $50 as pasese. The Court also accepts the submission by counsel for the Petitioner that the conduct of the Respondent and of Siliseuga concerning the witness Sam is confirmation of the corrupt intent which accompanied the giving of the $2,000 pasese and which was distributed by Siliseuga to the voters of Utulaelae at Fagalii on the 05th February.
  8. It has been stated by this Court on many occasions and in various ways that what are often labelled as compliance with fa’a Samoa, custom and tradition “may be nothing more than a specious and subtle form of bribery, a pretext adopted to veil the corrupt purpose of gaining or securing the votes of the recipients. If this is the object of the donor it matters not under what pretext, in what form to what person or through whose hands the gift may be bestowed or whether it has proved successful in getting the desired object or not”.
  9. It is true that Parliament was in session on the 05th February 2021 but it does not necessarily follow that the Respondent was not aware of the intending visit. Tents had already been erected obviously to cater for the flow of visitors. There was at least one vehicle, a double cab pick-up truck, from outside the village, which transported people to Fagalii, and Siliseuga who was obviously one of his campaign mainstays was actively involved in the visit. The pick-up truck took the villagers direct to Fagalii and back to Utulaelae after the meeting.
  10. The testimonies of the pulenu'u and the two senior matais of Utulaelae as indicated above are in our assessment extremely suspect and unreliable. If not agents they were clearly staunch supporters of the Respondent. The trip to Fagalii on the 05th February was organised to influence and gain the support of Utulaelae village for the Respondent. The pasese was distributed to all voters present with a corrupt intent hence the subsequent efforts to conceal it by dissuading witnesses from testifying. The allegations have been proven beyond reasonable doubt.

Allegations 5(b) and 5(h) that on a day in March 2021 the Respondent gave Molimau Tasi a sack of rice, box of poultry meat and $150 cash. He also gave Mika Paulo $250 cash.

  1. It is not contested that Mika Paulo and Molimau Tasi went to the house of the Respondent at Fagalii and they were accompanied by one Fuimaono Ualesi. It is also common ground that Mika Paulo requested financial assistance from the Respondent and was eventually given $250. Molimau Tasi was also given $150, a sack of rice and box of poultry meat.
  2. Mika Paulo and Molimau Tasi took Fuimaono Ualesi with them for the reason that neither of them knew the Respondent. There is conflicting evidence as whether Fuimaono Ualesi was a campaign committee member, whether it was him who instigated the trip and what was said before the money and food was given.
  3. Counsel for the Respondent correctly submitted at paragraph [57] of her submissions the issue for determination:
  4. It was submitted for the Respondent that there was no corrupt intent. In the first place the two voters had driven from Falealili to seek his assistance. When they arrived at the Respondent’s house the Respondent had no money to give so they waited several hours for the Respondent’s wife to come home. Mika asked for $500 for a faalavelave but was given only $250. Molimau Tasi was firm he did not ask for assistance, monetary or otherwise.
  5. Counsel submitted that this allegation is similar to the matter discussed in paragraphs [40] to [43] in Tafili v Peto At paragraph [43] the Court said:
  6. We agree the giving of financial assistance upon request is not bribery per se. It very much depends on the circumstances surrounding the giving. Tafili v Peto does not say that a response by a candidate to a request for financial assistance from a voter close to election time is not bribery.
  7. The giving of food and money to Mika and Molimau according to the Respondent was on the 19th March, about three weeks away from the election. It is also clear the amounts involved were substantial. There is no evidence the Respondent was reluctant or in any way tried to refuse the request presented. It was late at night, they had been there for hours, he could have chased these gentlemen away. That was obviously not his intent because it was not in his best interests.
  8. The Court finds there was corrupt intent. The allegations of bribery and treating are proven to the required standard.

Allegation 5(e) that on the week of the General Election the Respondent gave $100 cash, a box of poultry meat, a sack of rice and box of noodles to Taumaloto Luapu’a and her family at Salani.

  1. Taumaloto, a 65-year-old mother told the Court that on Tuesday 06th April 2021, three days before the election, she was visited at her home at Salani by the Respondent and his wife. She was given $100, box of chicken, sack of rice and box of noodles. She was told to remember the elections. She is neither related to the Petitioner nor the Respondent and says the Respondent has never done this before.
  2. The giving of the money and foodstuffs is not disputed by the Respondent. Two of Taumaloto’s adult children Logo Fuimaono and Vaiala Matapo’o testified for the Respondent to explain that the giving was not accompanied by a corrupt intent. It was in fact the habit of the Respondent to assist the family. Logo lives inland some distance away from the mother but he claims the Respondent’s generosity to his mother and grandmother has been ongoing for over eight years. The issue of “Tautua fa’aauau” was not raised. Vaiala who lives with the mother but works in Apia also told the Court the Respondent has for years been assisting the family financially and with foodstuff. Contrary to his mother’s evidence, Vaiala insisted they are related (other than by title) to the Respondent.
  3. We cannot overlook the fact that the gifts were substantial. Or ignore the timing. The two children may be correct that at times in the past the Respondent did assist; but to give the food and money which Taumaloto insisted was unusual a few days before the election, in the Court’s view, was with a corrupt intent. We are satisfied the allegations are proven beyond reasonable doubt.

Allegation 5(f) that on the 03rd April 2021 the Respondent and his wife gave Sakaria Kirismasi $60 and a bottle of alcohol.

  1. Sakaria told the Court that he and his cousin Vaalotu Isaako went to the house of the Respondent at Siuniu village to talk about the election. He and the Respondent attend the same Latter Day Saints Church. Inside a room he met with the Respondent, his wife and a woman called Sasa.
  2. He was given $60 by the wife and a bottle of Red Label Whiskey by the Respondent.
  3. Vaalotu testified for the Respondent. He denied going with Sakaria to visit the Respondent at Siuniu.
  4. The Court has grave doubts concerning the reliability of the testimony of Sakaria. His demeanour during cross-examination and questions from the bench was extremely poor. This uncorroborated allegation is dismissed.

Allegation 5(g) that on the 06th April 2021, the Respondent by his agent Lupe Sasa gave $200 cash, a box of chicken and sack of rice to Tuuane Tavae.

  1. Tuuane Tavae testified that on the evening of the 06th April 2021 at about 8pm, Lupe Sasa visiited him at his house. Lupe Sasa is a neighbour. She gave him the money and foodstuff and told him to remember the election.
  2. He told the Court that Lupe Sasa is the agent of the Respondent. No basis was given for his assumption that Lupe Sasa was the Respondent’s agent; neither was the Respondent’s name mentioned when the food and money was given.
  3. The evidence is grossly insufficient, this allegation is dismissed.

The counter-petition

  1. The counter-petition alleges twelve (12) instances of bribing and treating on the part of the Petitioner. As with the Petition it is convenient to deal with some of the allegations together.
  2. The first allegation is that on or about Thursday 08 April 2021 at the house of Fuimaono Ualesi Pe’a at Salani, Falealili the Petitioner gave out $50 bribes to Fuimaono Ualesi Pe’a, his wife Malaeulu Pe’a, his children Noa Ualesi Pe’a and Tava’e Ualesi Pe’a and his good friend Mika Paulo: paragraph 3 of the counter-petition. The affidavit evidence of Fuimaono Ualesi Pe’as is to that effect but it also contains the extraordinary statement that as he was leaving, the Petitioner told him for him and his wife to vote for the Respondent but have the children vote for him.
  3. This evidence was not supported by either the wife or his “uo mamae” Mika Paulo who in their evidence made no mention of the Petitioner coming to the house of Fuimaono Ualesi the night before the elections and handing out monies to them. The children were not called.
  4. There are other problems with the evidence of Fuimaono Ualesi. He is not only related to the Respondent but his trial evidence differed from his affidavit in relation to allegations concerning the Petition and in some instances directly contradicted the evidence of numerous other witnesses. He also said in cross-examination he only read his affidavit at home after he signed it and while dissatisfied with its contents, he took no action to correct it. Even though he knew where the office of instructing counsel was in Apia having been there to give her instructions for his affidavit. From page 120 of the transcript:
  5. And from pages 121 and 122 of the transcript:
  6. For these reasons, we have decided to disbelieve this part of the witness’s evidence. The first allegation of the Counter-petition has not been proven to our satisfaction or beyond reasonable doubt and it is accordingly dismissed.
  7. The second allegation is that in the early morning hours of election day Friday 9th April in front of Seugalii Tusi’s shop at Utulaelae, the Petitioner and his nephew Veletaloola Fuimaono Taliilagi (“Taliilagi”) distributed bribes to voters of Utulaelae including Iakopo Utumalae (paragraph 4 of the counter-petition) and Petaia Silipa (paragraph 9 of the counter-petition). The evidence of these two taulele’a’s from Utulaelae was generally consistent in relation to this allegation and was to the effect that in the early morning hours, they were informed the Respondent was coming around to give out money. Iakopo found out via his younger brother and Petaia who was “eva” on the main road with his cousin Pula, from the Petitioner himself who called them over to Seugalii Tusi’s house. Petaia lives across the road from Seugaliis shop.
  8. Their evidence was there were many people of the village present and $25 was being given to single taulele’as and $50 per couple. Petaia and Pula received $25 each and Iakopo and his wife $50. The Respondent and Taliilagi came in a white pickup driven by Taliilagi and the usual phrase of “tautuana le palota” or words to that effect accompanied the bribe. Iakopo thought all the people of his village including Petaia were there (page 201 of transcript) while Petaia said Iakopo was there as were most of the village. This was confirmed in cross examination at page 196 of the transcript:
  9. While the store was locked, he was able to view this clearly as the outside light of the shop was on and there is a street light beside the talie tree in front of the store.
  10. In answer to this evidence the Respondent elected not to testify but instead called his daughter Michaelene Talataina. Her evidence was essentially that of an “alibi” witness she saying that the night before the election her father slept with her 6-year-old son in the two storey fale-palagi at the front of their property at Salani. She slept with the many guests and aiga at one of the back houses and saw her father take the young boy to the front house around 12 midnight. From where he emerged at about 5:00 a.m. of election day. She refers in her affidavit to the presence of Pitolua Kalama an old lady from Salani as a confirmatory witness but this person was not called.
  11. This is not strong alibi evidence. It is possible she was mistaken as to her times, it is also possible her father left with Taliilagi from the front house and returned without her knowledge. Furthermore she was not with her father during the hours the witnesses claimed to have seen her father giving out money at Utulaelae. Curiously her fathers nephew Taliilagi was not deposed or called and we cannot overlook the fact that she is the Petitioner’s daughter who naturally would seek to protect her father.
  12. We found the evidence of the two taulele’as cogent and consistent differing only on minor details which can reasonably be expected. We are not convinced by the poor quality alibi evidence, we are satisfied these allegations in the counter-petition have been proven beyond reasonable doubt.
  13. The next allegation to be considered concerns the alleged giving of money and food in February 2021 by the Petitioner to Loine Lauvao a registered voter of Falealili No. 2 and then member of the Petitioner’s campaign committee: paragraphs 5(i) & 5(ii) of the counter-petition.
  14. Loine Lauvao is a most curious individual. Her affidavit evidence is that in February 2021 she agreed to be a scrutineer (“failautusi”) for the Petitioner. This despite not knowing him and despite the fact that she knew the candidate for her village was the Respondent who was being supported by her husband and her children.
  15. She now comes to the court as a witness for the Respondent alleging that while she served as a member of the Petitioner’s committee she received money and food which she maintains was bribery and treating: $100 and a plate of food in the second week of February 2021as per paragraph 5(i) of the counter-petition, $50 and a plate of food in the 3rd week of February 2021 as per paragraph 5(ii) of the counter-petition and $20 from the Petitioner at an official training for scrutineers by the office of the Electoral Commissioner held at Tuanaimato immediately prior to the 2021 General Election. She also testified about taking the Respondent to see her auntie Tumua Matagi a registered voter of Falealili 2 living at Faleula where she witnessed the Petitioner give her auntie a $150 bribe: paragraph 5(iii) of the counter-petition. The auntie was not deposed or called by the Respondent as a witness in these proceedings.
  16. We are not impressed by such evidence. The reasonable inferences we can draw are that Loine was either extremely ignorant or intensely conniving to the extent that she implanted herself within the Petitioner’s campaign committee in order to garner evidence against the Petitioner. There is no rationale or reasonable explanation otherwise for her conduct. Either way, we are of the view it would not be safe to rely on her evidence.
  17. Having come to this conclusion, it is not necessary to deal with the many other valid criticisms of Loine’s evidence made by counsel for the Respondent. We find these allegations not proven to the requisite standard, they are dismissed.
  18. The Respondent offered no evidence in relation to the allegation in paragraph 6 of the counter-petition, that too is dismissed.
  19. The next allegation is that on a night undated during election week, the Petitioner gave Aigaimaulupe Lipine of Salesatele, Falealili a $30 bribe at the house of Aiga’s uncle Lalau Migo: paragraph 7 of the counter-petition. Only Aiga testified and neither Lalau Migo or anyone else present at the house was called.
  20. The evidence of Aiga was far from satisfactory. It contained contradictions for e.g. as to who advised him about the “tufaga-tupe” at the house of Lalau Migo and in some areas, his trial evidence differed from his sworn affidavit. His oral testimony was it was his fried Mali’o Sauea who told him about the gathering but his affidavit says it was a taule’ale’a named Tulua who informed him. His explanations for some things was also unconvincing. Such as how he knew Mali’o was a committee member for the Petitioner. He said in response to questions from the Court he knew this because Mali’o and the Petitioner frequently travelled around together at night. His night vision must be quite remarkable.
  21. We have a reasonable doubt about his evidence, we dismiss this allegation
  22. The next allegations are that on or about Thursday 08 April 2021 at Salesatele, Falealili the Petitioner through his agents Leota Sapati and Moe Tulouna gave Tauanuu Toafa Tautu at his house at Salesatele a bottle of Rover Vodka (paragraph 8 of the counter-petition) and in the early morning hours of election day the Petitioner himself visited and gave Tauanuu a $30 bribe (paragraph 8.1 of the counter-petition).
  23. The evidence of Tauanuu was that Leota Sapati and Moe Tulouna are matais of his village and they came around on 08 April asking who he and his wife were supporting. He told them he had not decided and they urged him to vote for the Petitioner. Although not expressly stated in his affidavit, he said they told him they were committee members for the Petitioner. Whereupon they gave him the bottle of Rover and told him to wait for a visit from the Petitioner. The Petitioner came early the following morning, gave him $30 and asked for his vote.
  24. The Petitioner’s answer to this evidence is the testimony of his daughter Michaelene. We have already expressed our reservations about her evidence.
  25. We find Tauanuu’s evidence clear and concise and it is in our opinion reliable. We are satisfied the Petitioner committed treating through his agents in the village of Salesatele as alleged and that he also bribed Tauanuu as alleged. Based on the evidence we have heard this charge is proven beyond reasonable doubt.
  26. The next allegation is contained in paragraph 10 of the counter-petition which says that in the evening of Thursday 08 April the Petitioner and his nephew Taliilagi distributed $50 bribes to the taulele’a of the village of Sapo’e who were lined up on the main road policing the usual curfew. This was witnessed by Veletaloola Tauaima’a Savili who himself received $50.
  27. Veletaloola Savili as a holder of the Veletaloola title is a relative of the Petitioner. He obviously knows the Petitioner and also knows Taliilagi. His evidence was that on 08 April while the taulele’as of Sapo’e were on the main road policing the evening curfew, the Petitioner and Taliilagi drove past and gave each of the twenty or so taulele’as present $50 bribes. While not in his affidavit, he also said to him to “tautuana le palota”. The vehicle used belonged to Taliilagi and was driven by the Petitioner. This was confirmed by him in cross examination at page 186 of the transcript:
  28. Although no other witness was called on the issue, this remained the evidence of Veletaloola Savili who is as noted earlier a relative of the Petitioner. We have no cause to doubt its veracity, the witness was clear and composed when testifying. We choose his evidence over the alibi evidence of the Petitioner’s daughter, we find this allegation proven beyond reasonable doubt.
  29. The final allegation is that at the end of March in the week before the General Election the Petitioner through his agent and committee member Nuu Faleupolu Asotolu gave to Suailua Tifi Maanaima of Sapo’e, Falealili a bribe of $30: paragraph 11 of the counter-petition. This is alleged to have occurred when Nuu a matai of Sapo’e visited Suailua at his house. The evidence of Suailua was also to the effect that Nuu likewise handed out $30 bribes to the other occupants of the house being Suailua’s sister and mother and had done so to his wife on a previous occasion on his return from a faalavelave in Savaii.
  30. The latter part of his evidence vis-a-viz the wife is not referred to in his affidavit. What in fact is stated in his affidavit is the alleged bribery at the end of March was the first time the Petitioner has given them money. Quite the opposite to his trial evidence.
  31. We also note that when Nuu Faleupolu gave evidence, these matters were not put to him as they should have been by either counsel. It would therefore be dangerous and unfair for us to rely on such evidence, we accordingly dismiss these allegations.

Conclusions

  1. All in all, we therefore find in relation to the Petition as follows:
  2. Having been found guilty of committing the corrupt practices of bribery and treating, the election of the Respondent for the electoral constituency of Falealili No. 2 is accordingly voided pursuant to section 116 of the Electoral Act 2019.
  3. In respect of the counter-petition of the Respondent as against the Petitioner:
  4. We will report on these and any other matters we consider necessary to the Speaker of the Legislative Assembly pursuant to the requirements of the Electoral Act in due course.
  5. The Petitioners deposit of $2,000 will be forfeited as costs in this matter.

JUSTICE NELSON
JUSTICE VAAI

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