IN THE SUPREME COURT OF SAMOA
HELD AT APIA

IN THE MATTER of the Electoral Act 1963

AND

IN THE MATTER concerning the election of a Member of Parliament
for the Territorial Constituency of Sagaga le Usoga.

BETWEEN

MUAGUTUTAGATA PETER AH HIM
of Malifa and Malie, a Candidate for Election.
Petitioner

AND

MAULOLO TAVITA AMOSA
of Afega, a Candidate for Election.
Respondent

Coram: Sapolu CJ
Vaai J
Nelson J

Counsel: TRS Toailoa for petitioner
TV Eti for respondent

Hearing: 17, 18, 19, 20, 16, 27 April 2001
Judgment: 10 May 2001

JUDGEMENT OF THE COURT DELIVERED BY SAPOLU CJ

After the General Elections held on 2 March 2001, the official results were declared by the Chief Returning Officer on 12 March by public notice in the Gazette. The official results for the Sagaga-Le-Usoga territorial constituency were as follows:-

Fata Uili Kapeteni                                             185
Maulolo Tavita Amosa                                      814
Muagututagata Peter Ah Him                            802
Tulasumui Ulaese                                                67
Total number of formal votes                         1,868
Votes rejected as informal                                   17

Maulolo Tavita Amosa, who is now the respondent in these proceedings, was accordingly declared elected as the Member of Parliament for the Sagaga-Le-Usoga territorial constituency.

On 16 March, Muagututagata Peter Ah Him, who polled the second highest number of votes, filed an election petition seeking avoidance of the respondent's election under ss.112 and 113 of the Electoral Act 1963 by alleging that the respondent, in the course of his election campaign, committed the corrupt practices of bribery, treating and undue influence in terms of ss 96, 97 and 98 of the Act respectively. The petitioner also sought a declaration that he should be declared elected as Member of Parliament for his constituency. This declaration was either not pursued, or not actively pursued.

The allegations made by the petitioner are that:-

(1)        on or about 16 or 17 January 2001 at the respondent's residence at Afega, the respondent met with about 30 matais (electors) from the village of Tuanai and there presented them with 'suas' and $1,000 for the purpose of inducing and influencing those electors to vote for the respondent;
(2)        on or about 19 January 2001 at Tuanai, the respondent met with 'faletua ma tausi' (electors) of Tuanai and there presented those electors with the sum of $1,200 for the purpose of inducing those electors to vote for the respondent;
(3)        on or about 19 January 2001 at Tuanai, the respondent met with the 'aumaga' (electors) of Tuanai and there presented those electors with $800 for the purpose of inducing those electors to vote for the respondent. Subsequently on or about 23 January 2001 at the respondent's residence at Afega the respondent again met with the representatives of the 'aumaga' (electors) of Tuana'i and there gave them another $200 for the purpose of inducing those electors to vote for the respondent;
(4)        on or about 31 January 2001 at the village of Malie the respondent met with electors of Malie and there gave them $1,300, two rugby balls and four bottles of vodka for the purpose of inducing and influencing those electors to vote for the respondent;
(5)        on or about 14 February 2001 in a meeting of the 'pulega a Malua i Sasa'e' of the Congregational Christian Church of Samoa held at Tuanai, the respondent, while addressing the meeting, stated that if he wins the election he will provide a computer for the 'pulega' for the purpose of influencing those electors to vote for the respondent; There were about sixty people in that meeting and about forty of whom were electors of the Sagaga-Le-Usoga constituency;
(6)        on or about 5 February 2001 during a meeting of the village of Afega, the respondent by his uncle Fata Pemila pronounced that every elector of Afega is to vote for the respondent and any elector who does otherwise will face the traditional penalty of 'ati ma le lau' (banishment from the village) and that was done for the purpose of compelling electors to vote for the respondent; and
(7)        on or about 5 February 2001, the respondent by members of his family or agents pronounced a tapu of the 'aualuma' of Afega that all of the 'aualuma' is to vote for the respondent or otherwise face a fine of ten sows or $200 and that was done for the purpose of compelling electors to vote for the respondent.

The burden of proving each of these allegations lies of course on the petitioner who brings the allegations, and the required standard of proof is beyond reasonable doubt: In re Election Petition Safata Territorial Constituency, Pule Lameko v Muliagatele Vena [1970-1979] WSLR 239, 241. With that standard of proof in mind, we proceed now to consider each of the allegations against the respondent in turn on the basis of the evidence which was given partly by way of affidavit from nearly all of the witnesses called in these proceedings and partly by way of oral testimony.

Starting with the first allegation by the petitioner, the evidence shows that the constituency of Sagaga-Le-Usoga is made up of the villages of Tuanai, Afega and Malie. The petitioner is from the village of Malie and the respondent is from the village of Afega. On 8 January 2001 the village of Afega held its monthly meeting during which the question was discussed of who would be its candidate for the up-coming general elections to be held on 2 March. The meeting decided to put forward the respondent as the candidate for Afega. Matais were then sent to inform the village of Tuanai about the decision by Afega. This is known as the 'faaalataua'. According to the evidence given by the respondent, the purpose of this 'faaalataua' sent by Afega was to invite Tuanai to come and meet with Afega so that Afega would formally notify Tuanai of its unanimous decision on who would be its candidate for the up-coming general elections and to find out whether Tuanai would give its support.

On 10 January, a meeting was held at the respondent's residence at Afega between the two villages, each village being represented by its matais. The discussion that took place centred solely around the respondent's candidacy and the general elections. 'Suas' comprising of one carton of herring and $100 cash were then each presented to Saena and Saena, the paramount matais of Tuanai, and $1,000 was presented to the other matais of Tuanai who were present. These presentations were made by the respondent and his family and it was the respondent who made the speech that accompanied the presentations. In all there were about thirty matais in the delegation from Tuanai. All of them were electors. This allegation was not denied by the respondent. In fact in his evidence he admitted making the presentations.

What is in dispute here is whether the presentations were made with the corrupt intent in terms of the Act, that is, the intent to induce the matai electors of Tuanai who were present at the meeting to vote for the respondent at the general elections. We have concluded that in the circumstances the respondent had that intent at the time the presentations were made. It would not be realistic to view the presentations in isolation, divorced from the context in which they were made. The purpose of the meeting in which the presentations were made was clearly in relation to the respondent's proposed candidacy. The discussion that took place at the meeting was focused exclusively on the respondent's proposed candidacy and the election. The total amount of money, $1,200 in all, that was given out is not insignificant. The persons to whom the money was given were electors. And the general elections were imminent.

In his evidence, the respondent explained that it was in accordance with Samoan custom for him and his family to make the said presentations as part of the normal customary courtesies, especially as it was his wish to become an election candidate that caused the meeting with Tuana'i to be held. Even if that is so, we are of the view, for the reasons already given, that in the circumstances of what took place, compliance with Samoan custom was not the only motive, or the dominant motive, behind the presentations. It would be sufficient for the purpose of establishing the intent required for bribery and treating in terms of the Act, if one of the motives which accompanied the presentation of money or food was to induce electors to vote for the respondent: see judgment of Donne CJ in the High Court of Cook Islands in Re Mitiaro Election Petition [1979] 1 NZLR S1. at s12.

We also note in this connection the affidavit evidence of the witnesses Seugogo Leuma and Fafai Tauvaa, both electors of Tuanai, who said that at the meeting in Afega, Taliaoa Maoama, an orator who was the spokesperson for Afega, informed Tuanai that the respondent was the election candidate for Afega and asked for their support. And when the $1,000 was given out Taliaoa Maoama urged Tuanai to remember the election.

Counsel for the respondent raised one matter by way of defence that we need to refer to. He submitted that the dates of 16 or 17 January 2001 contained in the first allegation by the petitioner are wrong as the correct date of the meeting between Tuanai and Afega was 10 January 2001 as if to suggest that the first allegation must therefore be dismissed on that basis. We do not accept this submission. The actual words used in the petition are "on or about the 16 or 17 day of January 2001". The disparity between the dates contained in the petition and the correct date of the meeting is a matter of only a few days. It is also to be noted that the dates in the petition are preceded by the words "on or about". In a situation of this kind, we are of the view that s.115 of the Act, which enjoins the Court on the trial of an election petition to be guided by the merits and justice of the case without regard to technicalities, applies. We therefore do not consider that the disparity in dates is fatal to the first allegation.

Counsel for the petitioner, in this connection, referred to the English Court of Appeal decision in R v Hartley [1972] 2 QB 1, which was a case on a criminal indictment, where Sachs LJ in delivering the Court's judgment said at p.7:

"[If] the words 'on or about' the date are used in an indictment, then provided that the offence is shown to have been committed within some period that has a reasonable approximation to the date mentioned in the indictment, then the fact that the date is not correctly stated does not preclude a valid verdict of guilty".

This passage, even though stated in relation to a criminal indictment instead of an election petition, clearly supports rather than contradicts the view we have taken as to the disparity in dates in this matter.

For these reasons, we are satisfied beyond reasonable doubt that the presentation of monies constitutes bribery in terms of s.96 of the Act and the presentation of cartons of herring constitutes treating in terms of s.97.

In respect of the second allegation by the petitioner, the evidence shows that on 12 January 2001 the respondent met with about one hundred members of the 'faletua ma tausi' and the 'aualuma' of Tuanai at the women's committee house at Tuanai at about 10 am in the morning. The members of the 'faletua ma tausi' and the 'aualuma' of Tuanai who were present were electors. At the meeting, the respondent explained the issues he stood for as an election candidate and what he wanted to do for the good of his constituency, especially in the field of education as the respondent is a teacher by profession. Clearly the respondent was at the time on the campaign trail to promote his candidacy. There is nothing wrong with this. This is how political campaigning should be done. An election candidate must try to win support with ideas. Unfortunately, the respondent went further than that and gave out $1,200 to those who were present at the meeting.

According to the witness Tautala Faalaa, a female elector of Tuanai called for the petitioner, when the respondent gave out $1,200 he said that is the money to be distributed amongst yourselves 'aua le suka a le loomatua' (which literally means for each 'old lady' to buy sugar with) but bear in mind the election. If I win, whatever assistance you need we will meet. The witness Fofoaivaoese Enoka, another female elector of Tuanai called for the petitioner, also gave evidence which is substantially the same as the evidence of the witness Tautala Faalaa. The evidence of these witnesses were not expressly denied by the respondent. They were not put to the respondent.

In his evidence, the respondent stated that what he did was entirely in accordance with the requirements of Samoan custom. It was not only part of the 'faaalataua' his village of Afega had sent to Tuanai that he met with the 'aualuma' of Tuanai, but given the status of the title Maulolo he holds, it was expected of him in accordance with Samoan custom to make a presentation of money. This was more so as he was at this meeting to convey his wish to the 'aualuma' of Tuanai. As a matter of Samoan custom, he would not have been looked upon favourably if, as the holder of the title Maulolo, he did not make the monetary presentation which he made.

We think that when the respondent met with the 'faletua ma tausi' and the 'aualuma' of Tuanai, he was there principally as an election candidate and not as the holder of the title Maulolo. He was actually out campaigning for his candidacy. The meeting that was held was solely for the purpose of promoting his candidacy. What was said by him at the meeting was all about his candidacy and the up-coming general elections. The money that was given out was not insignificant and it was given to electors. At the time, the general elections were imminent. There is also the evidence of the witnesses Tautala Faalaa and Fofoaivaoese Enoka as to what was said by the respondent to bear in mind the election when he gave out the money. That evidence was not put to the respondent or denied by him. On their own accounts, the witnesses Tautala Faalaa and Fofoaivaoese Enoka would be accomplices as they received monies from the respondent's presentation which they claim to be bribes. But the evidence of one accomplice can be used to corroborate the evidence of another accomplice in material particulars. From these circumstances, the inference is irresistible that the real intent of the respondent behind the giving of money to the 'faletua ma tausi' and the 'aualuma' of Tuanai was to induce those electors to vote for him at the general elections.

We do not accept that the real motive behind the giving of money by the respondent was to comply with Samoan custom. The meeting was a campaign meeting and not a customary one. The respondent had already met with the matais of Tuanai which in Samoan custom is the village of Tuanai. When the 'faaalataua' was sent to the matais of Tuana'i that was the village of Tuanai. To meet again with the 'faletua ma tausi' and the 'aualuma' of Tuanai could not have been part of that 'faaalataua'. It was part of an election campaign. But even if some people may think that the respondent was complying with Samoan custom, if one of his motives in giving out money was to induce the electors at the meeting to vote for him in the general elections, that is sufficient for the purpose of establishing the corrupt practice of bribery. We believe that was the real motive of the respondent in this incident.

We need also refer to the disparity in dates as shown in the evidence of the respondent and what is contained in the petition as this was raised as a matter of defence. The respondent's evidence is that the meeting with the 'faletua ma tausi' and 'aualuma' of Tuanai was held on 12 January 2001. We accept that evidence as opposed to what is contained in the second allegation in the petition that the meeting was held on or about 19 January 2001. For the reasons we have given in relation to a similar disparity in dates in relation to the first allegation, we also conclude that the disparity in dates in this incident is not fatal to the second allegation.

For the reasons we have given, we find the second allegation of bribery made against the respondent proved beyond reasonable doubt in terms of s.96 of the Act.

As for the third allegation by the petitioner, it actually relates to two allegations of bribery. One which involved the presentation of $800 to the 'aumaga' of Tuanai at Tuanai, the other which involved the giving of $200 to representatives of the same 'aumaga' at the respondent's residence at Afega. The evidence shows that after the respondent's meeting with the 'faletua ma tausi' and the 'aualuma' of Tuanai on 12 January, the respondent on the same day met with the 'aumaga' of Tuanai. There were about sixty electors at that meeting. At this meeting the respondent explained the reasons for his wish to run as a candidate in the elections and the issues he stood for. He also handed out pamphlets setting out those issues and what he wanted to do for his constituency if elected. He then responded to questions from his audience. If the respondent had stopped there, his campaign would have been quite lawful and proper. It is the way a political campaign should be conducted, for votes should be won with ideas and not with food or money. Unfortunately, the respondent did not stop there. He went further and presented $800 to the 'aumaga' of Tuanai.

Now the witnesses Iole Faalaa, Faifua Lio and Paletasala Taiala Tovia, who are electors of Tuanai called for the petitioner, all testified they were present at the first meeting with the 'aumaga' of Tuanai and each of them received money from the $800 that was presented by the respondent. Iole Faalaa received $20 and Faifua Lio and Paletasala Taiala Tovia each received $10. The witnesses Iole Faalaa and Paletasala Taiala Tovia also testified that the respondent when giving out the money asked the 'aumaga' to remember him on election day. These witnesses would be accomplices because by their own accounts they claim that the monies they received were bribes. It can therefore be dangerous to act on their individual evidence without corroboration. However, the law provides that the evidence of one accomplice can provide corroboration for the evidence of another accomplice in material particulars. We see the evidence of these witnesses as corroborating one another.

In his own evidence, the respondent admitted that he did give out $800 to the 'aumaga' of Tuanai when he met with them which provides further corroboration of the evidence given by the witnesses Iole Faalaa, Faifua Lio and Paletasala Taiala Tovia. He explained in some detail that what he did was expected of him by Samoan custom given the status of his title Maulolo and the fact it was him who wanted to run as an election candidate. Thus the money he presented to the 'aumaga' of Tuanai was in accordance with custom.

Having regard to the circumstances surrounding the monetary presentation made by the respondent to the 'aumaga' of Tuanai, we do not accept that his real or only intention was to comply with Samoan custom. The clear inference is that he wanted the 'aumaga' of Tuanai to look favourably upon his candidacy and thus vote for him at the election. Not to give out money could result in those electors not looking favourably upon the respondent and thus not vote for him at the election. The respondent's real motive was therefore to win the support of the 'aumaga' of Tuanai for his candidacy.

For those reasons, we find to have been proved beyond reasonable doubt that the presentation of money made by the respondent to the aumaga of Tuanai on 12 January 2001 constitutes bribery in terms of s.96 of the Act beyond reasonable doubt.

We turn now to the second part of the third allegation by the petitioner. The evidence shows that on 23 January 2001, the respondent held another campaign meeting at his family's house at Afega. About two hundred electors including about sixty non-matai electors from Tuanai were present. The meeting took about two hours. During the meeting the respondent gave out pamphlets which set out the issues he stood for as an election candidate and what he intended to accomplish for his constituency if elected. He explained those issues and responded to questions from the audience. Again if the respondent had stopped there, there would have been nothing wrong with his campaign. As we have already stated, it is the way political campaigning for an election should be carried out. Unfortunately, the respondent went further and gave out another $200 to the representatives of the 'aumaga' of Tuana'i who were present.

The evidence of the elector Iole Faalaa who was present at that meeting shows that the respondent gave out $200 to the aumaga of Tuanai and said "Ia alofagia le palota" which really means, vote for me at the election. Iole Faalaa also testified that he received $30 out of that money when it was distributed amongst the 'aumaga' of Tuana'i. Faifua Lio, another non-matai elector of Tuanai who was present at the same meeting, also testified to the respondent giving out $200 to the representatives of the 'aumaga' of Tuanai from which he received $5. The witness Paletasala Taiala Tovia, another non-matai elector from Tuanai, who was present at the same meeting, gave substantially the same evidence.

In his evidence, the respondent admitted to making a further presentation of $200 to the representatives of the aumaga of Tuanai at the meeting held at his family's residence at Afega on 23 January. His explanation was that his original plan for Tuanai was to give $1000 to the 'aualuma' of Tuanai when he met with them on 12 January and another $1,000 to the 'aumaga' of Tuanai when he met with them later on the same day. However, when he went to meet with the 'aualuma' of Tuanai, he found there were also 'faletua ma tausi' present. So he decided to increase the money to be given out at that meeting to $1,200 to include the members of the 'faletua ma tausi' who were present. As a consequence, only $800 was left with him which he later gave out at the meeting with the 'aumaga'. Thus when he saw senior members of the 'aumaga' of Tuanai at the meeting held at his family's house at Afega on 23 January, he felt that was the opportunity to give them another $200 to make up to $1000 the money for the 'aumaga' of Tuanai as he had originally planned.

The Court has already held that the presentation of $800 to the 'aumaga' of Tuanai constitutes bribery. We hold the subsequent presentation of $200 to the 'aumaga' of Tuanai is also bribery. We do not accept that the respondent's real or sole purpose in giving out $200 was simply to make up to $1,000 the money for the 'aumaga' of Tuanai. At the time of this second presentation, the general elections were drawing close. The respondent was clearly out campaigning to win support for his candidacy. No doubt he wanted to win in the elections. The meeting held on 23 January at Afega was another of the respondent's campaign meetings. For him to give out $200 to electors of Tuanai in such circumstances, he was actually running a real risk of being found guilty of bribery. To consider such presentation in isolation without having due regard to the circumstances in which the presentation was given would be unreal. We find that the respondent's real purpose in making that further presentation of $200 to the 'aumaga' of Tuanai was to induce them to vote for him at the elections. Accordingly, it is bribery in terms of s.96 the Act.

In relation to the fourth allegation by the petitioner, it is clear from the evidence of the witnesses Muliavii Misiko, Palauli Vaai, Silimanai Vena Leapai, Tuataua Tausiilenuu and Sagato Fepuleai, who are electors of the village of Malie called for the petitioner, that on 31 January 2001 the respondent and some members of his election committee met with matais and non-matais of Malie at the residence of the pulenu'u of Malie. Amongst those people were matais, women and members of the aumaga of Malie. The witness Tuataua Tausiilenuu estimated about twenty matais and fifty non-matais of Malie were present.

At this meeting, the respondent spoke in support of his candidacy. He explained the issues for which he stood as an election candidate and what he would do for the constituency if elected. Pamphlets which set out those issues and what the respondent would do if elected were also distributed. The respondent then gave out 'lafos' (monetary gifts) of $100 and $50 to some of the matais who were present and handed $1,000 to the pulenuu to be distributed amongst the other members of the village of Malie who were present. He also gave the pulenuu two rugby balls for the Malie rugby team and four bottles of vodka. In total the respondent presented $1,300, two rugby balls and four bottles of vodka. The witness Muliavii Misiko said that when the $1,000 was presented, the respondent stated "Good luck for the election" whereas the witness Sagato Fepuleai said that the respondent stated "bear in mind the election". These pieces of evidence were not denied by the respondent and were not put to him. The witnesses Muliavii Misiko and Sagato Fepuleai also said that the pulenuu, when distributing the $1,000 presented by the respondent, made threatening remarks about what he would do to those non-matai electors who were given money if they do not vote for the respondent. From the monies given out by the respondent Muliavii Misiko received $30, Palauli Vaai received $30, Silamanai Vena Leapai received a 'lafo' of $100, Tuataua Tausiilenuu received a 'lafo' of $50 and Sagato Fepuleai received $10. On their own accounts, all these witnesses must be treated as accomplices. But as already stated, the evidence given by one accomplice can provide corroboration for the evidence of other accomplices.

In his evidence, the respondent explained at length that his purpose in making these presentations of monies, rugby balls and bottles of vodka was to comply with Samoan custom. He said that at the time of his election campaign there were differences between his village of Afega and the village of Malie so that Afega would not send a 'faaalataua' to Malie as it had done with Tuanai concerning the respondent's candidacy. For that reason, according to the respondent's evidence, he decided not to meet with the village of Malie otherwise he would offend his own village of Afega. However, with the assistance of one of his election committee members, the respondent was able to obtain the consent of the pulenuu of Malie for the respondent and his election committee to meet with the 21 year old electors and the rugby team of Malie. It was the respondent's wish to meet with the 21 year old electors and members of the Malie rugby team. The proposed meeting was accordingly arranged to be held on 31 January at the house of the pulenu'u of Malie.

On the day of the meeting, the respondent went with his election committee to Malie with two rugby balls and four bottles of vodka as the respondent's 'oso' (customary gift) for the 21 year olds and members of the Malie rugby team. The respondent also had with him $300 but that was not planned to be part of the 'oso'. Upon arrival at the venue for the meeting, not only the 21 year olds and the Malie rugby team turned up, but also matais and women. The respondent testified he was caught by surprise and was unprepared. So he sent back one of his election committee members to his wife at Afega for another $1,000 as the customary dignitaries of Malie comprising of Maualaivao. Auimatagi and the Toafitu had come to the meeting. The pulenuu of Malie then made a speech followed by a speech by the respondent. After the exchange of customary speeches, the respondent then addressed the meeting about his election candidacy. He explained the issues he stood for and what he wanted to do for the constituency if elected. Pamphlets which set out these issues and what the respondent would do for the constituency if elected were also given out. The pamphlets were clearly intended for the 21 year old electors. The respondent also answered a few questions from the audience concerning his candidacy.

'Lafos' of $100 and $50 were then given out by the respondent to the matais of Malie who were present. It appears $300 was spent on lafos. The sum of $1,000 was then handed by the respondent to the pulenuu for distribution to the rest of the people who were present. The rugby balls and four bottles of vodka were also given to the pulenuu. So the respondent does not dispute having given monies and other valuables at this meeting at Malie. What he disputes is that he did not have the intention of bribing or treating the electors who were at this meeting.

Essentially what the respondent was saying was that his purpose for making these presentations was to comply with Samoan custom. He is the holder of the title Maulolo. The customary dignitaries of Malie had come to his meeting. In the circumstances it was difficult for him not to observe Samoan custom by giving out 'lafos' to the matais and $1,000 for the others present. He felt glad at the opportunity to meet with the customary dignitaries of Malie and he said if he had had $5,000 on him at the time he would have given all of it to those present. The respondent considered the sum of $1,000 to be insufficient.

If the purpose of the respondent in making these presentations was to comply with Samoan custom as he put it, the Court takes the view that that was not the only or the dominant purpose behind those presentations. The meeting was a political campaign meeting, not a customary one. The purpose of the meeting was for the respondent to meet the 21 year old electors of Malie. The only subject that was discussed at the meeting was the issues the respondent stood for as an election candidate and what he would do for the constituency if elected. The elections were imminent. The evidence also shows that this was the first time the respondent had shown so much generosity to the people of Malie. The clear inference to be drawn is that the real purpose behind these presentations was to gain the support of the electors present for the respondent's candidacy. The respondent, however, said in Samoan custom he would not have been regarded favourably as the holder of the title Maulolo if he had not made these presentations. We are of the view if that is correct, the respondent's real purpose was to gain support for his candidacy. He must have known that any unfavourable consideration of himself as the holder of the title Maulolo would impact unfavourably on his candidacy for at the time he was not only the holder of the title Maulolo but also an election candidate, and what affects the respondent as the holder of the title Maulolo would also necessarily affect the respondent as an election candidate. As the respondent was on the campaign trail at the time he made his presentations of monies, rugby balls and bottles of vodka, we are of the view the most influential consideration in his mind at the time was not to comply with Samoan custom, but to win in the elections.

We therefore conclude that the allegations of bribery and treating contained in the fourth allegation by the petitioner have been proved beyond reasonable doubt in terms of s.96 and s.97 of the Act.

As for the fifth allegation by the petitioner, the evidence shows that on 14 February 2001, the 'pulega a Malua i Sasa'e' of the Congregational Christian Church, which includes the villages of Tuanai, Afega and Malie that make up the Sagaga-Le-Usoga constituency, held a meeting at Tuana'i. About sixty people attended the meeting and about forty of them are electors of the Sagaga-Le-Usoga constituency. According to the evidence of the witness Pautalo Vaalele who is a deacon and elector of Malie called for the petitioner, the respondent was present at that meeting of the 'pulega' and he addressed the meeting and offered to provide a computer for the 'pulega' if he wins the election. The witness Fafai Tauvaa, an elector of Tuanai who was also called for the petitioner gave similar evidence.

In his evidence the respondent denied that what was mentioned at the meeting was a computer. He said what was talked about was a photocopier. The effect of his evidence is to deny that he made a promise to the 'pulega' he would provide a photocopier for them if he wins in the elections. The witness Apelu Lelevaga, who is the elder minister of the Congregational Christian Church for Tuanai, testified that he was the chairman of the meeting of the 'pulega' which was held at Tuanai on 14 February and what was discussed at that meeting was not a computer but a photocopier. He denied that the respondent offered to purchase a photocopier for the 'pulega'.

We have given careful consideration to the evidence in relation to the present allegation and we are not satisfied beyond reasonable doubt that what is alleged by the petitioner against the respondent did happen. This allegation is therefore dismissed.

In respect of the sixth allegation made by the petitioner, the witness Taliaoa Sooula for the petitioner said that about two weeks before the elections', a delegation of the 'aualuma' of his village of Afega came to his home and informed his family that Fata Pemila, an uncle of the respondent, had pronounced a village tapu that all the electors of Afega are to vote for the respondent or face banishment from the village. Elisapeta Faasavalu another witness for the petitioner also testified that about two weeks before the elections, a delegation of the 'aualuma' of her village of Afega come to her home and informed her family of the village tapu which required all electors to vote for the respondent or face the traditional penalty of banishment from the village. The purpose of this evidence is to establish against the respondent the allegation of undue influence under s.98 of the Act.

There are several difficulties with this allegation against the respondent. The evidence adduced in support is all hearsay which necessarily affects the weight to be attached to it. Fata Pemila was also called to testify and he denied ever making a pronouncement for all the electors of Afega to vote for the respondent or face banishment from the village. He said that could not have been done as there was a second candidate, Fata Uili Kapeteni, for Afega contesting the elections. Apparently the title Fata and the title Maulolo are the two paramount orator titles of Afega. If it is true a tapu was pronounced as alleged, it must necessarily follow that Fata Uili Kapeteni, his family and supporters would be banished from Afega. But there is no evidence that Fata Uili Kapeteni, his family and the electors who voted for him have been banished from Afega as to render credibility to the present allegation. Further, no evidence was given to show that the respondent had any knowledge of the tapu which is being alleged against his uncle Fata Pemila or that Fata Pemila was an agent for the respondent as to make the respondent vicariously liable for the actions of Fata Pemila.

Accordingly, this allegation against the respondent is also dismissed.

We have also considered the evidence adduced for the petitioner in support of the seventh allegation which is one of undue influence against the respondent and the evidence adduced for the respondent to counter that allegation. There is no evidence to connect the respondent to the alleged tapu imposed by the 'aualuma' of Afega on its members to vote for the respondent or face banishment. There is also no evidence the respondent had any knowledge of such a tapu. There is also no evidence that the 'aualuma' of Afega were agents or acting as agents for the respondent when they imposed the tapu alleged by the petitioner against them.

This allegation is therefore also dismissed. That concludes the allegations made by the petitioner in his petition against the respondent.

Before leaving the petition, we consider that the Court should say something concerning certain matters that came out of the evidence relating to this petition. To give money to an elector for the purpose of inducing such elector to vote for a candidate amounts to the corrupt practice of bribery in terms of s.96 of the Act. Similarly, to give food or drink to an elector for the purpose of influencing such elector to vote for a candidate amounts to the corrupt practice of treating in terms of s.97 of the Act. Compliance with Samoan custom is not a defence if the real purpose or one of the purposes behind the giving of money, food or drink is to induce or influence an elector to vote for a particular candidate. The Court will be particularly astute in scrutinizing evidence of custom to see that custom is not used as a veil to obscure what is in actual fact an intention to induce or influence an elector to vote for a candidate at an election.

Secondly, an elector who knowingly accepts a bribe or treat also commits bribery or treating. If it is true, as suggested from the evidence, that during the time of elections it has become the habit of electors to have expectations of being given money, food or drinks by the candidates of their constituencies, then the sooner such habit stops the better. It provides for clean and lawful elections if electors are to vote on the basis of issues and policies rather than on the basis of such one day, or a few days, benefits such as money, food or drink given to them by candidates or expected by them from candidates.

Thirdly, there is no particular time period when bribery or treating is allowed. Bribery and treating for election purposes are prohibited at all times. It will therefore be a mistake to think that bribery and treating are allowed outside the "period of election", which commences on the day after the Chief Electoral Officer gives public notice of polling day and ending on polling day, but prohibited within that period. What the law says is that, except at a funeral, any candidate who gives money, food or drink to an elector during the period of election commits an illegal practice in terms of s.99A. It does not matter if there was no intention or purpose of inducing or influencing the elector to vote for a particular candidate. Such a giving within the period of election is deemed an illegal practice. Liability for an illegal practice is therefore strict. But if such a giving is also made with the intent or for the purpose of inducing or influencing an elector to vote for a candidate, then it becomes the corrupt practice of bribery or treating.

We turn now to the respondent's counter petition which contains allegations of bribery and treating against the petitioner. The respondent alleges that:-

(1)               on or about the afternoon of 22 December 2000, the petitioner met with more than twenty matais and more than twenty 'taulelea' of Tuanai at his premises at Saleufi and gave each matai $100 and each taulelea $50 for the purpose of inducing those electors to vote for the petitioner thereby committing the corrupt practice of bribery; and

(2)               on or about the evening of 30 January 2001, the petitioner held a party for about five matais and more than twenty 'taulelea' of Tuanai at his residence at Leififi Malifa and served them with beer and other drinks and gave $100 to each matai and $50 to each 'taulealea' for the purpose of inducing those electors to vote for the petitioner thereby committing the corrupt practices of treating and bribery.

Dealing now with the first allegation in the counter petition, the evidence of the witnesses Aauloa Fale, Pouono Tupai, Anisi Saimoni and Faleaupu Faalaa who are electors of Tuanai called for the respondent, show that on late Friday afternoon, 22 December 2000 they attended a meeting held at the petitioner's premises at Saleufi. About twenty matais and twenty taulelea, all electors of Tuanai, were present. Most if not all of the people present were sitting on chairs. The presence of these electors at the petitioner's premises at Saleufi was in response to an invitation sent by the petitioner through his election committee to meet with Tuanai. At about 4.30pm the petitioner arrived at the meeting. He made a brief speech thanking those present for accepting his invitation. He then gave some money to his employees to be distributed amongst those people who were present. Each matai was given $100 and each 'taulealea' was given $50.

The witness Aauloa Fale who is a matai elector was given $100. He testified that at the meeting, the petitioner asked for the support of those present and to remember to vote for him and that he wanted to meet with them again. The evidence of this witness was seriously shaken under cross-examination from counsel for the petitioner and we would have disregarded his credibility completely if it was not for the fact that what he said about the petitioner giving out monies at his premises at Saleufi was corroborated by the other witnesses called for the respondent and confirmed by the petitioner himself and his witnesses in their evidence. The witness Pouono Tupai who is a 'taulealea' elector received $50. He testified that at the meeting the petitioner stated to remember the election and that they would meet again. The witness Anisi Saimoni, another 'taulealea' elector, also received $50. He testified that the petitioner stated to bear in the mind the election. The witness Faleaupu Faalaa, another taulealea elector, also received $50. He also testified that the petitioner shook hands with those present as they were about to depart and said to him don't forget, we'll meet again. On their own accounts, all of these witnesses would be accomplices for they all claim that the monies which were given to them were bribes. As such, it will be dangerous to act on the individual evidence of each of these witnesses without corroboration. We bear that in mind in considering the evidence of these witnesses. At the same time we also bear in mind that the evidence of one accomplice can provide corroboration for the evidence of another accomplice in material particulars.

In his evidence, the petitioner admitted to the meeting held at his premises at Saleufi and the presentation of monies he made to the matais and 'taulelea' of Tuanai in the sums stated by the witnesses for the respondent. The members of the petitioner's election committee, namely, Fata Ilalio, Iosefa Moevao and Iole Faalaa who testified on this aspect of the first allegation in the counter petition also confirmed the meeting at the premises of the petitioner at Saleufi and that each matai and taulealea of Tuanai who was present was given $100 and $50 respectively. To this extent, the evidence given by and for the petitioner provides corroboration for the evidence given by the witnesses for the respondent.

Where the two sides are in conflict is on the question of whether the presentation of monies made by the petitioner was for the purpose of inducing the electors to whom the monies were given to vote for the petitioner at the general elections. One of the main grounds into which this conflict resolved itself is whether what was done by the petitioner was in accordance with Samoan custom. The petitioner and his witnesses including Tupa'i Simi the pulenuu of Tuanai, said what was done was in accordance with Samoan custom. The respondent and his witnesses, on the other hand said it was not. Much evidence was given and much time was spent on this aspect of the case. After consideration of the relevant evidence and the opposing views on Samoan custom given by the two sides, the Court is of the view that what took place at the petitioner's premises at Saleufi was not Samoan custom as such. In the first place, if this was the petitioner's 'o'o' to the village of Tuana'i as the then sitting Member of Parliament for the Sagaga-Le-Usoga constituency, it would have been appropriate and in accordance with custom to have the 'o'o' performed at Tuanai or at least at some other place within the constituency. It is not custom, in our view, for the petitioner's 'o'o' to be performed here in Apia. Secondly, it is clear from the evidence of the petitioner himself that his decision to have his 'o'o' at his premises at Saleufi was based on the advice given to him by the 'tuua' of his village in order to lighten the burden for him as he had also performed a 'o'o' to the constituency a few months before in July 2000 after he had won in the parliamentary by-election held in June. Thus it is clear that the petitioner's decision to have his 'o'o' at Saleufi was not based on considerations of Samoan custom, but was for the purpose of reducing the burden on him. Thirdly, there was no exchange of customary speeches or an ava ceremony which are the usual features of a customary meeting. Fourthly, in a customary meeting only matais meet, the taulelea of the village do not take part in the meeting except for the purpose of preparing and serving the ava and performing other services as required of them by the matais. In this meeting, both matais and 'taulelea' were present together and were sitting on chairs. Fifthly, it appears that what happened at this meeting was that the petitioner made a brief speech thanking those who were present then monies were given out. A matai then responded by thanking the petitioner for the monies; the meeting then dispersed. In substance and in form, this can hardly be described as a proper meeting or a meeting consistent with Samoan custom. It is clear that the petitioner and those at the meeting just got together, the petitioner then made a brief speech, someone else made a speech in reply, monies were then given out and everyone went home. It appears that what happened was just a brief get together for the purpose of the petitioner giving out monies to the electors present then everyone went home happy. This is hardly a proper meeting in accordance with Samoan custom. Sixthly, the witnesses for the petitioner testified that each matai was given a 'lafo' of $100 and each 'taulealea' was given a lafo of $50. If that was so, it is not Samoan custom to give a 'lafo' to a taulealea. The petitioner's witness Tupa'i Simi, who is the pulenuu of Tuanai also testified that it is not Samoan custom to give a 'lafo' to a 'taulealea'. Our own experience confirms that as a fact.

Be that as it may, the real question for the Court's determination is whether the presentation of monies was made by the petitioner for the purpose of inducing electors to vote for him at the elections and not whether it was made in accordance with custom. Samoan custom provides no defence to electoral bribery if the real purpose or one of the purposes behind a presentation of money is to induce an elector to vote for a candidate at the elections. The relevance of evidence of Samoan custom is to show whether the real intention behind a presentation of money is to comply with custom thus negativing any allegation that the real intention behind such a presentation was to induce an elector to vote for a particular candidate at the elections. The Court will, however, be particularly astute in scrutinizing such evidence.

Other evidence were adduced to show that the presentation of monies made by the petitioner at his premises at Saleufi was not made for the purpose of inducing the electors of Tuanai who were present to vote for the petitioner. The petitioner testified that prior to the general elections, incumbent Members of Parliament of his political party were advised to make their 'o'os' to their constituencies. He also sought legal advice from his solicitor on what can legitimately be done. He also sought advice from the 'tuua' of his village of Malie about performance of his 'o'o' for his constituency. The 'tuua' of his village advised him to lighten matters by performing his 'o'o' at his residence because the petitioner had performed quite a burdensome 'oo' for his constituency in July 2000 after he became Member of Parliament for his constituency in the parliamentary by-election held the previous month. Because of that advice, the petitioner decided to perform his 'oo' at his premises at Saleufi. Instead of performing one 'oo' for all the three villages of his constituency, the petitioner performed three separate 'oos,' one for each village. Thus the 'oo' for Malie was performed on 20 December, the 'oo' for Afega was performed on 21 December and the 'oo' for Tuanai was performed on 22 December. About $4,000 in total was given for Tuanai. It is clear from the evidence that what was involved in these individual 'o'os' was much less in terms of money than the one 'oo' the petitioner performed for the whole of his constituency in July 2000.

Evidence was also given by and for the petitioner that it is the practice for incumbent Members of Parliament to present 'oos' to their constituencies at the end of their parliamentary terms. The petitioner's immediate predecessor as Member of Parliament for the Sagaga-Le-Usoga constituency had done the same thing at the end of his parliamentary terms and on one such occasion he performed his 'oo' in a nightclub in Apia instead of doing it within the constituency. Evidence was also given by and for the petitioner which denied the evidence given by the witnesses for the respondent that the petitioner had said at the gathering at Saleufi to remember the elections and words to like effect.

After giving careful consideration to all of this evidence, we have come to the conclusion that the monies which were given by the petitioner to the 'taulelea' electors of Tuanai at Saleufi on 22 December 2000 were accompanied by an intention to induce those electors to vote for the petitioner at the 2001 general elections. We are of the view that the presentation of 'lafos' of $50 to each 'taulealea' elector cannot be explained on the basis of Samoan custom for it is not custom to give 'lafos' to the taulele'a of a village, only matais are presented with 'lafos'. We also consider the sums of $50 given to each 'taulealea' elector of Tuanai to be substantial and not insignificant. Furthermore, the customary practice when making a presentation to a village, apart from any 'lafos' or 'suas' for the matais, is to give the whole presentation to the village and the matais of the village will decide what to give to the 'taulealea' or 'aumaga'. The evidence of the petitioner is that he received complaints after his 'oo' in July 2000 that the 'taulelea' of Tuanai received very little from the matais who distributed Tuanai's share of that 'oo'. So he decided to give monies direct to the 'taulele'a' of Tuanai to ensure there was no more of such a complaint. With respect to the petitioner, we are of the view that the giving of sums of $50 to each 'taulealea' elector of Tuanai was not just for the purpose of meeting such a complaint; it was also for the purpose of gaining favour with those electors for the purpose of the up-coming elections. How the matais of Tuanai distributed Tuanai's share of the petitioner's 'o'o' in July 2000 would be a matter between the matais and 'taulelea' of Tuanai themselves and of no real concern to the petitioner. The real reason or one of the reasons, as we see it, for the petitioner being concerned was because he wanted the support of the 'taulelea' of Tuanai at the elections.

We are also not able to accept the evidence that at that point in time the petitioner had not made up his mind whether to run in the general elections. Given the trouble he had been to of seeking advice from his solicitor and from the 'tuua' of his village on what to do, we are of the view the petitioner had made up his mind at that stage to run again as a candidate in the 2001 general elections. There is also evidence that since September 2000 the petitioner and his election committee were already working on making certificates of identities (IDs) for some of the electors of Sagaga-Le-Usoga. The petitioner also appears to be an intelligent businessman. We do not believe that after only a few months as Member of Parliament for his constituency, he would spent $4,000 on each village of his constituency, apart from his money spent on IDs, unless he had by 22 December made up his mind to run again as a candidate in the 2001 general elections.

We wish to point out here that there is no law which says that the presentations of 'oos' by incumbent Members of Parliament to their constituencies at the end of their parliamentary terms are immune from the provisions of the Electoral Act 1963 which make a presentation of money or food for the purpose of inducing or influencing electors to vote for a particular candidate bribery or treating. If the purpose or one of the purposes of a 'oo' is to gain favour with the electors of a constituency and thereby inducing or influencing those electors to vote for the presenter or giver of the 'oo' at an election, that is bribery or treating, as the case may be, in terms of the Act. It does not matter if the 'oo' is performed outside of the period of election. Counsel for the respondent made a thoughtful point when he submitted that if the law allows incumbent Members of Parliament to make 'oos' at the end of their parliamentary terms but not the other election candidates, that may give the incumbent Members of Parliament an advantage over other election candidates who are not in that category. Counsel further submitted that the law will be imposing double standards in favour of incumbent Members of Parliament as against other election candidates for the playing field will not be level as between the two categories of candidates. The Court takes due notice of these submissions. As we have already stated, if the purpose or one of the purposes of a 'oo' is to induce or influence electors to vote for the presenter or giver of the 'oo' in an up-coming election, that is bribery or treating, as the case may be, in terms of s.96 or s.97 of the Act. There is nothing in the Act which gives immunity to a 'o'o' from its provisions on corrupt practices.

For the foregoing reasons, we are satisfied beyond reasonable doubt, that the presentation of monies made by the petitioner to 'taulelea' electors of Tuanai at Saleufi on 22 December 2000 amounted to bribery in terms of the Act. We are left with some doubt in relation to the monies presented to the matais. That part of the first allegation in the counter petition is therefore dismissed.

As for the second allegation in the counter petition, the respondent relies on the evidence of two witnesses. These are Ifo Saena, a 'taulealea' elector of Tuanai, and Manase Ainoa, a resident of Tuanai who is an elector in a different constituency. Essentially what these witnesses said is that on 30 January 2001 they were present at a party held by the petitioner at his residence at Malifa. Attending the party were matais and 'taulelea' of Tuanai. Beers were served and the petitioner gave out $100 to each matai and $50 to each taulealea. Because the witness Ifo Saena does not drink alcohol, he was given a large bottle of coke. Both these witnesses also said that during the party the petitioner asked the people who were present for their support in the election. On their own accounts these witnesses must be treated as accomplices.

The petitioner and members of his election committee Fata Ilalio, Iosefo Moevao, Iole Faalaa, Fafai Tauvaa and Seugogo Leuma strongly denied in their evidence that the gathering at the petitioner's residence at Malifa on 30 January was a party and that beers were served and monies were given out. They also testified that what took place at the petitioner's residence was not a party but a meeting of the petitioner's campaign committee and only ice water was served. The meeting took less than an hour.

Given the conflict in the evidence and the fact that the evidence of the witnesses Ifo Saena and Manase Ainoa were seriously shaken by the skilful and effective cross-examination from counsel for the petitioner, we are left in a reasonable doubt whether beers were served and monies were given out by the petitioner at his residence at Malifa as alleged in the counter-petition. That doubt must be resolved in favour of the petitioner.

Therefore the second allegation in the counter petition is dismissed.

All in all then we find four allegations of bribery and two allegations of treating proved beyond reasonable doubt against the respondent in terms of s.96 and s.97 of the Act respectively. Given the margin in the general elections of twelve votes between the petitioner and the respondent and the large number of electors who were involved in the allegations of bribery and treating made by the petitioner, we also find that the corrupt practices committed in relation to the election for the purpose of procuring the election of the respondent prevailed so extensively that it may be reasonably supposed to have affected the result of the election in terms of s.113 of the Act.

Accordingly we declare the election of the respondent void under s.112 of the Act. Alternatively, the election of the respondent is also declared void under s.113 of the Act.

In addition, we find one allegation of bribery proved beyond reasonable doubt against the petitioner in terms of s.96 of the Act.

The Court will report its findings to the Honourable Mr Speaker.

As the petitioner succeeded in his petition in part, and the respondent succeeded in his counter petition in part, we make no order as to costs.

Solicitors:
Toailoa & Associates for petitioner
TV Eti for respondent