IN THE HIGH COURT OF TUVALU
AT FUNAFUTI

IN THE HIGH COURT OF TUVALU
AT FUNAFUTI

Case No. 5 of 2006

BETWEEN:

SAMUELA PENITALA TEO
Petitioner

AND:

SIR TOOMU SIONE
1st Respondent

AND:

TAVAU TEII
2nd Respondent

BEFORE THE CHIEF JUSTICE

S Barlow for Petitioner
K Muaror for Respondents

Hearing: 11 October 2006
Judgment: 16 October 2006

JUDGMENT

This is an election petition brought under section 56(1) of the Electoral Provisions (Parliament) Act (Cap 102).

The petitioner seeks orders:

1. That the election of the Members of Parliament for Niutao, Hon. Sir Toomu Sione and Hon. Tavau Teii at the 3 August 2006 general election be declared null and void.

2. That a by-election be declared for the vacant seats of Niutao.

Section 56(1) requires that:

"(1) proceedings on the question whether any person has been validly elected as a member of Parliament ... shall be commenced by way of petition in the High Court in its civil jurisdiction (in this Act referred to as an "election petition")."

Most election petitions are based on allegations of election offences under the Act but the present case is brought under the common law on the ground that the respondents defamed the petitioner thereby preventing a free and fair election. Counsel for the respondents does not dispute the applicability of the common law provisions in Tuvalu law.

The common law of elections was explained in the Court of Common Pleas in the case of Woodward and Sarsons [1875] LR 10 CP 733 at 743:

"We are of opinion that the true statement is that an election is to be declared void by the common law applicable to parliamentary elections, if it was so conducted that the tribunal which is asked to avoid it is satisfied, as matter of fact, either that there is no real electing at all, or that the election was not really conducted under the subsisting election laws. As to the first, the tribunal should be so satisfied, that is, that there was no real electing by the constituency at all, if it were proved to its satisfaction that the constituency had not in fact had a fair and free opportunity of electing the candidate which the majority might prefer…As to the second, that is, that the election was not really conducted under the subsisting election laws at all, we think, though there was an election in the sense of there having been a selection by the will of the constituency, that the question must in like manner be, whether the departure from the prescribed method of election is so great that the tribunal is satisfied, as matter of fact, that the election was not an election under the existing law."

In the recent South Australian case of Featherston v. Tully (No. 1) [2002] 83 SASR 302, Bleby J, in distilling nine propositions from Woodward's case, pointed out, at 338:

"The only ground on which an election may be declared invalid at common law is by virtue of one of the two limbs referred to in Woodward v Sarsons, namely, that there is no real election at all, or that the election was not really conducted under the requirements of the Act" [in the present case, the Electoral Provisions (Parliament) Act (Cap 102)]

The Court amplified the first ground in the second proposition:

"Under the first limb…, the election will be declared void only if it can be shown that the electors did not in fact have a fair and free opportunity of electing the candidate which the majority might prefer, such as where a majority of electors are prevented from recording their votes effectively by general corruption, general intimidation, want of available machinery for voting, by fraudulent counting of votes or false declaration of numbers, or 'other such acts of mishaps.'"

The petitioner had been a member for Niutao for eight years up to the general election on 3 August 2006. At that election, there were four candidates standing for the island and the parties in the present case polled the three highest numbers of votes. The first respondent received 416, the second respondent 373 and the petitioner 318. The respective figures for the votes cast on the island itself were 194, 153 and 143.

The general allegation of the petitioner is that either one or both of the respondents so orchestrated a series of questions to the petitioner in a meeting of the Falekaupule on Niutao in July that they deliberately misrepresented his involvement in an aid project in such a way as to leave the electors with the impression that he had acted dishonestly over the use of the funds and/or that the project was not genuine. As a result of this misrepresentation, the electors did not have a fair and free opportunity of electing the candidate or, as counsel expressed it, the respondents' actions gave rise to an election which was not full and fair.

The first respondent's case is that the questions were not premeditated or coordinated by the respondents, that there was no attempt to defame the petitioner and there is no evidence to support such an allegation.

The second respondent's case is that the questions were sound and valid attempts to seek clarification and explanation from those involved in the project and any suggestion of defamation is groundless.

The petitioner gave evidence himself and called two further witnesses. Each respondent gave evidence but neither called further witnesses.

In Featherston's case, Bleby J dealt with the effect untrue or misleading advertisements may have to render the election void at common law and acknowledged the difficulty of determining how, if at all, the advertisements might have affected the will of the voters or whether the will of the electors was so overborne by the statements in them that there was no real electing at all in the sense of the first limb of Woodward's case. That difficulty is exacerbated in the present case by the parties' different views of the events and their effect.

However, it is first necessary to look briefly at the history of the aid project which was the central theme of the alleged concerted attack.

The Project

The petitioner explained that the project started in 2002 as a suggestion by an elder in the Niutao Church to seek funding for a new classroom. Following further discussion, it was decided, instead, that the funds should be requested to build a hall for the use of the whole community.

In 2003 a request for funding was put forward by the petitioner on behalf of the Falekaupule. This 'Request for Funding' has been exhibited and names the petitioner as the contact. It states that the project will be implemented by the Falekaupule under the supervision of the Kaupule. The Director of Works is identified as the agency to oversee the management/procurement of materials and disbursement of funds.

Although there were various necessary steps taken advancing the project over the intervening period (and the petitioner called the, then, Pule Kaupule to confirm his involvement) it was not until 11 July 2006, just three weeks before the election, that a 'Grant Contract' between the Japanese Embassy and the Niutao Kaupule was signed at a ceremony in the Government Building on Funafuti. At that ceremony, Nukulasi Kaupeka signed on behalf of Niutao.

The parties also signed an undated 'Procurement Contract' for the supply of materials between the Niutao Kaupule and a Fiji company, Vinod Patel. The petitioner told the Court that this agreement had followed a competition between three potential suppliers as would be usual in such a project. An email from the Japanese Embassy, also exhibited, confirms that was the case and that the Embassy paid the funds directly to Vinod Patel.

Also signed at the meeting on 11 July 2006 was a letter from Nukulasi as 'Island Secretary for Niutao Kaupule' headed 'Request for Payment' and addressed to the Japanese Embassy. It is on unheaded paper and is undated but it requests the payment of US$78,385 for the project based on the Grant Contract of 11 July 2006.

The petitioner was the Minister for Natural Resources at the time and he was present at the signing.

At the hearing, both respondents acknowledged that the project was genuine and that the materials are now arriving in Tuvalu.

The Niutao Meeting

On 27 July there was a meeting on Niutao called by Nukulasi of all persons over 50 years of age. It was a week before the general election and these three candidates were present.

1. The petitioner's version

At the meeting about seven elders asked questions which challenged the authenticity of the project. They appeared to be asked in a co-ordinated manner and linked with the final comments of the second respondent who spoke at length at the end of the meeting from a prepared document. He also referred to a list of suggested problems with the project which had been prepared by a private contractor.

The reason Nukulasi had signed for the Kaupule on 11 July was because the petitioner had asked the Kaupule to choose a representative. For about an hour before the signing, the petitioner had gone through the documents with Nukulasi to ensure he understood what it was all about as it appears he cannot read English. The petitioner was, therefore, surprised to hear Nukulasi saying at the meeting that he signed the documents without understanding them and that he had felt he was being kept in the dark.

Nukulasi also told the meeting that the Japanese Charge d'affaires gave the petitioner a small brown envelope which was a 'little bit thick' and the petitioner took it off with him after the signing. The petitioner denied ever receiving such an envelope. The question was directed harshly at him and he said he responded harshly, raising his voice. His reaction was partly because the man who, in the petitioner's opinion, was accusing him of dishonesty had, himself, a criminal record. However, he apologized for his outburst and told the meeting he would look for such an envelope when he returned to his office on Funafuti.

This gave rise to a number of questions and suggestions that the envelope contained money which the petitioner had deposited in his personal bank account. He was asked by one elder how much interest he would earn if he had deposited the money in his bank account.

The first respondent questioned the genuineness of the documents because they bore no official stamps and some were not dated. He stated that, from his experience as a long serving parliamentarian, they were unofficial.

When the second respondent made his long final speech, he said he had consulted with some high profile 'clever sons of Niutao' and their consensus was that the documents were unofficial. He also told the meeting he had made enquiries with the Ministries of Home Affairs and Finance but no one seemed to know anything about the project and it had not gone through the official channels. Further enquiries with the Aid Management Office had received the response that the project was only a title with no other information.

The petitioner was in a difficult position. He tried to explain to the meeting but he felt the prejudice he suffered was irreversible. Following the meeting, he tried to have the whole project confirmed by the Government. As a result, he received documents which clearly showed that it was genuine but they arrived the day before the poll - too late to clarify his role and clear his name.

The petitioner considered that the whole incident was directed to insinuating that there was something wrong with authenticity of the project. He called two witnesses who had been at the meeting and who had been left with the same overriding impression.

2. The first respondent's version

The first respondent has also been a member of Parliament for nine years previously and has held various ministerial portfolios.

He agreed that they were a number of questions asked and that some of those questions challenged the authenticity of the project. In the light of his political experience he considered they were valid matters to raise at such a forum. He felt the meeting exhibited all the hallmarks of a vibrant democracy and good governance, in particular the need for public figures to be accountable and transparent in their dealings.

He has no recollection of the specific questions about which the petitioner complains but he explains that his comments about the authenticity of undated and unstamped documents were made to allow the petitioner to clarify and explain more fully the status of the agreement and the progress made.

He suggested that the petitioner is perhaps misreading some of the events and wrongly reading a conspiracy into them. An example is the petitioner's feeling that the fact the second respondent was using notes for his lengthy final remarks was especially significant. The first respondent pointed out that addressing a meeting such as this is more likely to be effective if it is preceded by careful preparation and the reference by the second respondent to the enquiries he had made of the 'clever sons of Niutao' was evidence of extensive preparation for the meeting.

In his affidavit, the first respondent acknowledges from experience that anyone who is playing a leading role in developing a particular project would feel frustrated and disappointed if questions were raised in respect of his efforts. He therefore understands the petitioner's allegations of conspiracy and defamation but he insists they are unfounded.

At the end of the meeting he proposed that the Falekaupule should write to the government asking to hold the project until further enquiries could be made.

His overall version was that this had been a proper meeting at which a number of questions were asked and challenges made but they were all the stuff of a normal Falekaupule meeting especially one at which the candidates were present immediately before an election.

3. The second respondent's version

If the first respondent had showed a degree of detachment from the issues raised and the reaction of the petitioner, the second respondent took a very different approach.

In both his affidavit and his oral evidence he took an aggressive stance. He denies there was any conspiracy or that he ever implied there was no project. In fact he told the court that he specifically told the meeting that the project was genuine. He was throughout, he said, not challenging the project but the procedures.

He denied that his actions were in any way to spoil the petitioner's chances of election and thus to improve his own. His concern was to ascertain the true state of the project.

The second respondent does not agree with the petitioner's recollection of the actual questions asked. He recalls no mention of a small envelope - the question that angered the petitioner sufficiently to make him raise his voice. His recollection is of a reference to copies of the signed agreements being in a large brown envelope. Similarly, he recalled the question about interest was to enquire if Vinod Patel would have been able to make an extra profit from interest by investing the whole sum.

He accepts there were numerous questions and many were put forcefully but they were aimed at trying to clarify the position. They were directed principally at the reason why the whole sum had been paid to Vinod Patel, whether other quotations had been obtained and how the undated and unstamped documents could be genuine. In his affidavit he challenges the right of the petitioner to act as the contact and thus 'side-line' the Director of Works.

He also suggests that the petitioner's perception of defamation was because of his disappointment that "he had carefully engineered the project to come through just before the election and that it would benefit him politically, however, things did not work out as planned".

In his evidence in Court, he repeatedly denied any intention to harm the petitioner's chances in the election and insisted he did not consider the project was very important in that respect. I find that inconsistent with the passage from his affidavit. I accept he knew nothing of the project until the signing on 11 July and I am satisfied that he undoubtedly considered it would be likely to improve the petitioner's chances of being elected. As a result, he set about trying to ascertain the details and mounted a well prepared campaign to attack it in the Falekaupule.

Conclusion

The burden is on the petitioner to prove on the balance of probabilities that these remarks were defamatory and that, as a result, the electors were so misled that the election could not be seen to be fair. On the evidence before me, I cannot accept that has been proved. Whilst I have, as I have stated, reservations about the second respondent's true intention and about his assessment of the effect of this project on the election campaign on the island, I am satisfied that much of the petitioner's complaint arises from his disappointment with the manner in which a perfectly genuine project was being challenged. It was an understandable reaction.

Despite the assertion by the second respondent, I do not find any evidence to suggest the signing so shortly before the election was deliberately engineered. However, I accept it was, for the petitioner, very fortunate timing and I have no doubt he considered it would redound in his favour on the island. As it turned out, it was, in fact, a mixed blessing. The closeness of the election ensured it would be at the forefront of the elector's minds but, once it was vigorously attacked and his explanations were apparently not being accepted, the short time prevented him from obtaining the proof he needed of the propriety of the whole project. Ironically it was only a few weeks after the election that the whole island would see the project start.

I am satisfied it was his subjective view of the nature, number and interrelationship of the questions which left him feeling they were insinuating more than they, in fact, were. It is quite clear from his witnesses that others drew conclusions similar to his. However, as I have stated, the Court can only declare the election void if the circumstances were sufficient to drive the Court to the conclusion that there was no real election at all. This falls far short of that.

This was clearly a well planned and managed campaign by the second respondent and possibly the first respondent. Three weeks before the election they were suddenly confronted with an unexpected situation that would improve the petitioner's chances and in consequence reduce theirs.

As is the situation throughout Tuvalu, election issues are discussed in the Falekaupule. This was an election. A candidate was entitled to challenge his opponents and draw them into open debate. I do not accept the second respondent's claim that he simply wanted to confirm the project was genuine and properly administered. If that was the case, he could simply have asked the petitioner.

The first respondent said he did not ask the petitioner because he had no time. There is insufficient evidence to say whether or not that was the case.

What the evidence does clearly show is that the second respondent went about gathering as much information about the project as he could and ensuring he had supporters at the meeting who could raise the questions. He then gave a lengthy speech relying on his right to the last word before the meeting closed. The first respondent supported him at the meeting.

In terms of democratic elections, the second respondent did nothing wrong. Many of the issues could properly be said to require clarification. The petitioner was given the opportunity to answer and supply the clarification but it would appear he was not prepared as well as was the second respondent. He reacted to it as an attack on his integrity and, taking that subjective view, read much more into it than he should have done. That was the seed of the suggestion of defamation.

I accept some of the comments may have gone beyond the bounds of accuracy or truth. Some may have been offensive but the solution was to answer them in such a way as to clear them up. The second respondent had prepared his case without giving the petitioner warning and took him unawares by the intensity of the challenge. As a result, he turned what was, on 11 July, a potential disadvantage into an advantage on 27 July and, by the timing, prevented the petitioner regaining his previous advantage.

That is politics. Open debate can be a most effective campaign strategy. It may, and often does, inflame or excite people to say things that are hurtful, offensive or untrue. That, I am satisfied, happened here but the petitioner undoubtedly had the opportunity to answer. I am satisfied that the matters raised, even if inaccurate, were valid matters of concern about the project to the people present in the Falekaupule. The meeting gave them the opportunity to challenge the petitioner over them and they did.

That falls far short of saying that there was no real election or that the electors did not have a fair and free opportunity to elect the candidate of their choice. The petition is dismissed.

I certify to the Minister under section 58(3) of the Act that the election of Sir Toomu Sione and Tavau Teii as the members for Niutao was valid and is hereby confirmed.

I further direct that a copy of this judgment be forwarded to the Minister and to the Speaker of the House.

Dated this 16th day of October 2006

Gordon Ward
CHIEF JUSTICE