Home | Databases | WorldLII | Search | Feedback Supreme Court of Samoa

Tiatia v Tiatia [2002] WSSC 36 (22 November 2002)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

ITELI MANULAITI TIATIA
of Tulaele, Minister of Religion.
Petitioner

AND

AIGAIFETU ITELI M. TIATIA
of Tulaele, Housewife.
First Respondent

AND

VAASATIA POLOMA KOMITI
of Vaitele, Secretary to the Prime Minister’s Department.
Second Respondent

Counsel: FP Meredith for petitioner
Respondent in person
KM Sapolu for co-respondent

Reasons for Judgment: 22 November 2002

REASONS FOR JUDGMENT

This case is about a petition for dissolution of marriage on the ground of adultery. The petitioner alleges in his petition that his wife the respondent committed adultery with the co-respondent on four separate occasions in 1997. These occurred in or about the end of January at Mulinuu, in or about the end of March behind the Fiame Mataafa Faumuina Mulinuu II building in Apia, on or about 23 July inside the co-respondent’s office, and in or about August at Mulinuu. At the conclusion of the evidence, I dismissed the petition as I was not satisfied to the required standard that the ground of adultery had been made out. I indicated then that I will give my reasons in a written judgment in due course. I regret that has taken several months but I do that now.

The petitioner is a minister of religion of the Congregational Christian Church in Samoa. On 1 November 1982 he married the respondent in the Methodist Church at Matafele. He produced a copy of their marriage certificate in evidence. There are six children of the marriage, three boys and three girls. All the children are staying with the petitioner here in Samoa. The respondent is now living and working in American Samoa. The petitioner is not at present able to work as a minister of religion because he and the respondent have parted as man and wife and he needs to dissolve his marriage with the respondent so that he will be able to re-marry and be able to practise as a minister of religion again. In the Congregational Christian Church a minister of religion cannot be a pastor in a village unless he has a wife.

The case for the petitioner rests exclusively on verbal admissions of adultery and a written admission of adultery made to him by the respondent in May 2000. The written admission was signed by the respondent in front of the petitioner on 12 May 2000. As it will appear, the co-respondent in his evidence strongly denies the allegations of adultery made by the respondent against him. At the relevant times the respondent was working as a reporter in the “Savali” section of the Prime Minister’s Department whilst the co-respondent was also working in the same Department. The co-respondent took over as the Secretary to the Prime Minister’s Department on 3 May 1997 and he is still holding that post.

The petitioner also testified that sometime after the respondent had made her written admission to him in May 2000, he and the respondent went to the office of the co-respondent and showed the co-respondent the written admission but the co-respondent denied it. Apparently the respondent had been asked twice by the co-respondent to resign from the Prime Minister’s Department because of allegations in an auditor’s report that she had misused funds. From the evidence, that must have been in August 1977. She eventually resigned and left the Prime Minister’s Department in October in 1997. When the petitioner was cross-examined on this matter by counsel for the co-respondent, he said that when he went to see the co-respondent and asked him to see the irregularity report on his wife (the respondent), the co-respondent would not let him see any report. In my view the petitioner had no right to see any irregularity report on his wife. He is not the person who was asked to resign, it is his wife who was asked to resign. If the respondent had any reasonable ground for challenging an irregularity report against her there were avenues open to her for that and she would probably have been given a copy of the irregularity report and the grounds for being asked to resign. But the co-respondent was under no obligation to give the petitioner an irregularity report on his wife.

The evidence of the respondent consists of her oral testimony and a written statement she made to the police on 7 May 2001. The statement the respondent made to the police sets out in detail the occasions and the circumstances in which she claims to have had sex with the co-respondent. This matter not being a criminal matter, one cannot see any sound reason for taking it to the police. There is no evidence that the police filed any criminal charge. Be that as it may, what is said by the respondent in his statement to the police about the occasions and the circumstances in which she claims to have had sex with the co-respondent is essentially an elaboration on what she says in the written admission she made to the petitioner.

According to the respondent’s evidence, in February 1997 she was desperate for money and she asked the co-respondent for some money which was given to her. At about 6.00pm in the evening of the same day the co-respondent came to her at work and told her to wait for him, he would take her home. It was not until about 8.00pm that the co-respondent returned to take her home. They then left the Prime Minister’s Department in the pick-up vehicle of the “Savali” section which was driven by the co-respondent. They went to Mulinuu and they had sex there. Then in March 1997, the respondent said she was working overtime when the co-respondent came and said to her he would take her home when she finished her work. About 9.30pm the respondent finished her work and the co-respondent came and took her in a double-cab pick up vehicle behind the Fiame Mataafa Faumuina II building where the Prime Minister’s Department is located and there they had sex again. The respondent further testified that in July 1997 before she travelled to a press meeting in Vanuatu she had sex with the co-respondent on a couch in the office of the co-respondent. Then in August 1997 after a cocktail function that was held at the New Zealand High Commissioner’s residence at Letava in honour of the then Prime Minister of New Zealand who was in Samoa, she went with the co-respondent and had sex at Mulinuu. Finally she said under cross-examination that she was dismissed from the Prime Minister’s Department. She also said that she was also dismissed from Pacific Development Micro-Finance where she later worked sometime after she had resigned from the Prime Minister’s Department.

Apart from what the respondent said about the occasions and circumstances in which she had sex with the co-respondent, she also says in her statement made to the police that she started working in the “Savali” section of the Prime Minister’s Department in October 1996. In June 1997 she did not work during the Independence Celebrations but when she returned after the Independence Celebrations a lady by the name of Opa who was working with her in the “Savali” section told her that her name had been called amongst those of the staff who were to be paid allowances for working during the Independence Celebrations. So she went and claimed an allowance of $150. Opa is still working in the “Savali” section of the Prime Minister’s Department and she was called as a witness by the co-respondent. In her evidence Opa denied that she said to the respondent that her name had been called amongst those of the staff who were to be paid allowances for working during the Independence Celebrations. When the respondent cross-examined this witness she asked her only one question. The question by the respondent was “A boy rang her” (meaning the respondent). The answer by the witness was that: “I say no to your question”. Furthermore, the effect of the evidence by the respondent is that she knew full well that she was not entitled to any allowance for she did not work during the Independence Celebrations but she still went and claimed the allowance. Yet she is the wife of a minister of religion and the evidence shows that she and her husband had been pastors for the Congregational Christian Church at the villages of Saasaai and Sataua in Savaii.

The respondent also says in her statement to the police that Opa and another lady by the name of Pamata who works in the administration section of the Prime Minister’s Department appeared suspicious of a relationship between her and the co-respondent. It was not explained by the respondent what made her thought those ladies appeared suspicious. Both Opa and Pamata, who was also called as a witness for the co-respondent, denied that they had any feelings of suspicion about a relationship between the respondent and the co-respondent. According to the witness Opa in her evidence in chief, the respondent quite often went out for lunch when she was working in the Prime Minister’s Department and when she returned after lunch she would sometimes say to her that she went with the co-respondent. Sometimes she would say she had met with one of Cabinet Ministers and on one occasion she said she was asked by one of the Ministers for a cup of coffee in his office. Opa said she did not take notice of what the respondent said to her as she sounded “matagaga”. The respondent, as I have already said, asked only one question to the witness Opa during cross-examination to which she received a negative answer and that was all. She did not question Opa on other parts of her evidence.

In relation to the respondent’s testimony that the co-respondent took her home after she had worked overtime, the witness Opa said in her evidence in chief that the co-respondent never takes the staff of the “Savali” section of the Prime Minister’s Department home when they work overtime. The “Savali” section has a government vehicle and a driver to take them home when they work overtime. When the respondent cross-examined this witness she did not ask the witness about this part of her evidence.

Counsel for the co-respondent in her cross-examination also questioned the respondent about her evidence that in July 1997 she had sex with the co-respondent on a couch in the co-respondent’s office and she forcefully put to the respondent that there was no couch in the co-respondent’s office. The respondent maintained it happened on a couch. The witness Pamata in her evidence in chief denied that there is or has been a couch in the co-respondent’s office. She said that the co-respondent’s office has only a desk and single chairs.

As to the evidence by the respondent that the co-respondent used to call her many times on the phone in the “Savali” section, the witness Opa testified that the telephone in the “Savali” section has no operator, any member of the staff would answer the phone when it rings. The co-respondent rarely calls the “Savali” section of the Department which has its own divisional head. She was not aware of the co-respondent calling the respondent on the telephone in the “Savali” section at any time.

The co-respondent became Secretary to the Prime Minister’s Department on 3 May 1997. Prior to that he was deputy to the Secretary to the Prime Minister’s Department. The evidence given by the co-respondent strongly denies that he ever had sex with the respondent. He also denied the occasions and the circumstances in which the respondent testified that he had sex with her. He said that there was no contact between him and the co-respondent of a personal nature. He also denied that his office has ever had a couch. He also said that in 1997 he twice asked the co-respondent to resign because of a report he received from the Accounts and Administration division of the Prime Ministers Department that the respondent had accepted monies from non-Samoan citizens for certificates of identity and illegally issued receipts from the receipt book of the “Savali” section for those monies. The co-respondent said he told the respondent it was better for her to resign than be sacked for her record would then show that she had resigned instead of being sacked. The respondent eventually resigned in October 1997. A copy of her letter of resignation was produced by the co-respondent. It shows that it was received by the Prime Minsiter’s Department on 12 October 1997. It also shows the respondent saying that “she was resigning due to family problems and commitments”. According to the co-respondent the petitioner then came to his office sometime in the same month and asked him as to why his wife had been sacked. He told him that his wife had resigned. Then sometime about the second week of June in 2000, just less than three years after the respondent resigned in 1997, the petitioner and the respondent came to his office with a bundle of papers. The petitioner said some angry words to him, threatened to kill him, and threw the bundle of papers on his desk. The co-respondent said he read the papers and then said to the respondent “O a nei mea?”, what are these? The respondent looked him in the eye and then said to the petitioner “lets go”.

Thus not only did the respondent make a written statement to the petitioner alleging adultery against the co-respondent and another written statement to the police making allegations of adultery against the co-respondent, but both of them went to the co-respondent’s office and not only made insulting remarks to the co-respondent but even threatened to kill him. The evidence as it came out during the cross-examination of the petitioner by counsel for the co-respondent also revealed that the allegations of adultery made by the respondent against the co-respondent also came out in the front page of the press and was very critical of the co-respondent. Under cross-examination, the petitioner denied that he leaked the allegations to the press. The co-respondent could not have been the source of such information that came out in the press. This is an overkill. The reason given by the co-respondent for the allegations made by the respondent against him is because he had asked her to resign from her job with the “Savali” section of the Prime Minister’s Department.

The respondent cross-examined the co-respondent in a most forceful and aggressive manner that has never been seen before in this Court. The co-respondent kept his cool and continued to give his evidence in a calm manner as he had done in his evidence in chief denying the allegations of adultery and the circumstances in which the respondent said they happened. However, the cross-examination by the respondent provoked counsel for the co-respondent to make an almost equally forceful objection to the manner of the cross-examination. The objection was disallowed. The final submission by the respondent was also most forceful and aggressive. I must say her demeanour did not engender confidence in her reliability and credibility.

At the conclusion of the evidence, counsel for the petitioner relied on the statements made by the respondent to the petitioner and the police as well as the respondent’s evidence in chief to prove the ground of adultery. He also submitted at length on the question of corroboration and burden of proof. He accepted that the allegations of adultery made by the respondent stood alone without corroboration. What the respondent had said in her statements to the petitioner and the police cannot be corroboration of her oral testimony given in Court. I have, however, decided to consider the respondent’s evidence without being influenced by any requirement for corroboration. The law on corroboration has changed.

This case really comes down to two issues: credibility and burden of proof which is the civil burden of proof. Having considered the whole of the evidence, I am inclined to disbelieve the respondent to say the least. I was not impressed with her evidence and her demeanour. As a matter of proof, it is really the respondent’s word against that of the co-respondent and the two were in direct conflict. Parts of the respondent’s evidence were also denied by the witnesses Opa and Pamata which did not assist the reliability and credibility of the respondent. Apart from the respondent herself, there was no other witness who denied any part of the co-respondent’s evidence. I am not satisfied that the evidence proves the case for the petitioner on the civil standard which is balance of probabilities.

Accordingly the petition is dismissed.

CHIEF JUSTICE

Solicitors:
Meredith & Ainuu Law Firm for petitioner
Respondent in person
Sapolu Lussick Law Firm for co-respondent