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

Tariu v Magele [2011] WSSC 52 (18 May 2011)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

MISC 329/11

IN THE MATTER:
of the Territorial Constituency of Faasaleleaga No. 1

BETWEEN:

PAULI PIPI TEVITA TARIU
a matai of Salelologa, Savaii, a candidate for election.
Petitioner

AND:

MAGELE MAUILIU MAGELE
a matai of Iva, Savaii, a candidate for election.
Respondent

Coram: Honourable Chief Justice Sapolu
Honourable Justice Slicer

Counsel: R Schuster and J Annandale for Petitioner
F K Ainuu and T Patea for Respondent

Hearing: 11, 12 May 2011
Orders: 16 May 2011
Judgment: 18 May 2011

JUDGMENT OF THE COURT

1. The General Election for the State of Samoa was held on 4 March 2011 in accordance with the Constitution Articles 63 and 64. The result of the election was announced by the Electoral Commissioner ("the Commissioner") on 14 March.
   
2. Voting in the Constituency of Faasaleleaga No. 1 Territorial Constituency was declared by the Commissioner as:
   

Candidates declared to be elected – GATOLOAIFAANA Amataga Alesana Gidlow and MAGELE Mauiliu Magele.

3. Gatoloaifaana and Magele ("the Respondent") were by public notice dated 14 March 2011 declared as being duly elected. No challenge has been made to the validity of the election of Gatoloaifaana.
   
4. Following the declaration, the Petitioner commenced proceedings in this Court seeking a declaration that the election of the Respondent was unlawful and, consistent with s112 of the Act, be declared void due to a finding of illegal and/or corrupt practices against the Respondent. The allegation of 'illegal practice' was abandoned at the commencement of the trial.
   
5. The particulars of the claimed bribery were confined to a single event namely;
   

"that the Petitioner alleges that the Respondent is guilty of corrupt and/or illegal practices in that he committed bribery when on 31 December 2010, the day of the annual Fiu Faletele family church service at the Petitioner's extended family's house at Salelologa, the brother of the Respondent Fiu Sisifo and a campaign committee member attended and promoted the campaign for the election of the Respondent to the Fiu Faletele family gathering and proceeded to hand over $2,000 and said to remember the Respondent in the election."

General Background

6. The extended family of the Petitioner and Respondent extended to 5 of the 11 candidates. Both parties were connected through title and family to each other, by marriage and blood. The Fiu Faletele family conducted an annual toonai held at local church and guest house of their family. The Respondent's brother regularly attended that event which was held on 31 December 2010. According to Maseiga Pipi Tariu the toonai had been a regular celebration even since she could remember many years ago.
   
7. The Respondent believed that the toonai was to be held on 30 December, a day on which he had another commitment and could not attend. The Petitioner's witnesses claimed the date had been fixed for 31 December. The Court accepts that there had been a discussion about holding the service on 30 December but that pastors and ministers of the family asked for it to be moved because they had other religious commitments. Little turns on that difference which went only to credibility. Irrespective, the church service and toonai was held on 31 December and was attended by 40 – 50 adults and a considerable number of children.
   
8. The Respondent did not attend but asked his brother, Fiu Sisifo, himself a member of the Fiu Faletele family, to present the sum of ST$2,000 on his behalf as his toonai for their family's annual service and toonai. Fiu Sisifo did so by presenting the money to Pipi Iosua as an acting 'tausi aiga' in place of Fiu Loimata the formal tausi aiga who had for reasons not connected with these proceedings declined to attend. The money was then distributed to various family members.
   
9. Witnesses said that approximately 10 matai spoke at the toonai, one of whom was Fiu Sisifo.
   
10. A second gift of $500 was presented by Fiu Kalegi whose son had just returned from New Zealand, and distributed.
    
11. There was no dispute that Fiu Sisifo presented the gift on behalf of the Respondent, but there were differing versions as to what he said at the relevant time.
    
12. The Petitioner's witnesses give differing versions of what Fiu Sisifo said, which includes:
    

"Ua le o'o mai Magele, a'o le $2,000 lea e tufatufa mo le tatou aiga; ae tautuana ane le palota";

"e tautuana le palota"; or

"ia tautuana le palota. A iai foi se taimi"

And

"O le meaalofa lea a Magele i le tatou aiga, ua le o'o mai, ae tautuana le palota. A iai foi se taimi ua tatou feiloai foi ma Magele"

13. The Respondent's witnesses, including Pipi Iosua and Fiu Sisifo, deny that any reference was made to either the election or the candidacy of Magele.
    

The Issues

14. The issues central to the Petition are:
    
    • (1) Was a presentation of $2,000 made by the Respondent's brother to a bona fide ceremony involving family with the Respondent's knowledge?
      
    • (2) Was the presentation accompanied by words relating to either the election or the Respondent as an electoral candidate?
      
    • (3) If those words were used did they make the presentation a form of bribery through the principle of multiple intentions?
      
    • (4) If (3) is proven beyond reasonable doubt was the Respondent complicit in their making or guilty by agency or put another way was Fiu Sisifo the Respondent's agent.
      
    • (5) If each of the above is affirmatively found is the Court satisfied beyond reasonable doubt that the Respondent is guilty of the corrupt practice of bribery.
      

Subsequent Conduct

15. The Petition was lodged on 23 March 2011. The Respondent requested its withdrawal and after a number of telephone conversations and meetings with the Petitioner the Respondent believed that the matter had been resolved and advised the Deputy Prime Minister accordingly. The Petitioner claimed at trial that he had not agreed to withdraw the Petition and at best agreed to think further on the matter. As a consequence the Respondent did nothing to defend the Petition, an unwise omission requiring interlocutory proceedings. Those events are irrelevant to the disposition of this matter.
    
16. However they culminated in a visit by the Respondent to Pipi Sa, the tausi aiga for the Sa Pipi family and the Petitioner's uncle. During the course of the meeting the Respondent presented Sa Pipi with 2 large fine mats, 2 boxes of corned beef and a roll of material. Counsel for the Petitioner contended that at the meeting the Respondent apologised for his own conduct and that of his agent on 31 December and that together with the gifts was an acknowledgment of guilt supportive of an admission of corruption. In Tufuga v Vaai (2011) (unreported judgment delivered on 10 May 2011), this Court regarded the performance of ifoga as evidence capable of supporting a finding of guilt of an electoral corrupt practice.
    
17. Here the position is different. Pipi Sa was not a witness and there is no evidence other than the Respondent of the meeting of 10 April 2011. He told the Court that the only apology he made was for the untoward conduct of 5 boys who had traveled by ferry to Savaii following the HRPP camp held after the election. His approach to Pipi Sa was to inform him of the reconciliation and withdrawal of the Petition and to provide for future harmony.
    
18. The Court accepts his version of events and does not regard any of the post election events as admission corroborative of corruption.
    

Evidence and Findings

19. There can be no doubt that the toonai held on 31 December was a genuine annual family ceremony of long standing. There is no doubt that the Respondent and his brother were members through blood and title of that family. There is no doubt that Fiu Sisifo had regularly attended the annual event as a family member. Had it been otherwise his presence would raise a suspicion of electoral impropriety.
    
20. The Court accepts that the Respondent could not attend. It accepts that he had an interest in strengthening his family and title connections with the extended family and hoped that he would become more deeply involved in its decisions. In part he was intending to discuss the bestowment of future titles. He was entitled to do so.
    
21. The Court accepts that the gift of $2,000 was a contribution to the cost of holding the family event and goes towards the cost to those attending of a large gathering. Given his non attendance he was entitled to make a more significant contribution as recompense. It would be otherwise if he was not closely linked through title and blood with the Fiu Faletele and Pipi families. His brother was the appropriate person to convey the presentation.
    
22. It is not necessary to make detailed findings of what exact words were said on 31 December. Some 10 matais made addresses and the words of one could be mixed with the words of another. As Maseiga Tariu said, what one said could be confused with another. The words said to have been used differed as remembered by the Petitioner's witnesses. But the varying accounts are consistent that Magele was apologising through Fiu Sisifo for his absence and hoped to become more closely involved in the future.
    
23. Every person attending was aware that the Respondent was a candidate. It is unlikely that the fact was mentioned by at least one of the speakers. It is possible that Fiu Sisifo used the word 'candidate'. Even so its use, in the context of this family gathering did not make it a corrupt statement or convert a proper reference into a criminal act.
    
24. Given our findings on agency it is not necessary to conclusively determine the differing accounts. To do so unnecessarily would further exacerbate the differences within the family and cause further harm. It is sufficient for us to say:
    
    • (1) someone referred to the election and candidate during the speeches;
      
    • (2) it is probable that Fiu Sisifo made some reference to his brother as a candidate. In doing so it did not make an otherwise lawful presentation corrupt or create a multiple intention as discussed in the cases;
      
    • (3) we would not be satisfied beyond reasonable doubt that Fiu Sisifo used the words as alleged in the Petition and would not convict on this alone.
      
25. The Court has stated the above as an attempt to encourage future harmony within the families.
    
26. The allegation is that of bribery through agency. Our findings are:
    
    • (1) There is no evidence that the Respondent requested his brother to refer to the election when he made the presentation;
      
    • (2) No general authority was given other than that as a family member;
      
    • (3) The Respondent had not appointed nor by implication created Fiu Sisifo as his election agent. The Petitioner's witnesses believed Fiu Sisifo was an agent since no candidate could operate without one. That is insufficient evidence. The Respondent said that he had no election committee and the Court accepts that at least as of 31 December 2010 there was no such committee. Whether the helpers or scrutineers at the booths on the polling day had earlier helped the candidate in preparation is irrelevant. The operative date for this challenge is 31 December.
      

Had Fiu Sisifo gone to a non family meeting, given money and referred to the election the matter would be different. The law of evidence might permit the Court to infer or conclude agency through conduct and words but such is not the case here.

(4) The Court has considered the position of a close relative and agency in Tufuga v Vaai (supra), when it stated at paragraph 53:

"Even though there is a presumption that a close family member is an agent for a candidate, the mere fact that an alleged agent is a brother of the candidate is not sufficient to establish agency (Ipswich Case (1857) Wolf & D. 173 at 178)."

A candidate cannot assume that because he uses a family member to assist in his election that he can call it 'family loyalty' rather than 'election agency'. Agency is a question of fact since the Electoral Act 1963 s96 clearly provides:

"Every person commits the offence of bribery who, directly or indirectly by himself or herself or by any other person on his or her behalf..."

It is the evidence and surrounding circumstances, not family relationship which permits a court to infer or imply agency.

(5) The Court is not satisfied beyond reasonable doubt that on 31 December 2010 Fiu Sisifo was the agent of the Respondent.

Conclusion

27. The Court is not satisfied beyond reasonable doubt that the Respondent is guilty of the corrupt practice of bribery.
    

Costs

28. The Respondent claimed that the matter had been settled before trial and that as a term of that settlement he had agreed to pay the Petitioner's costs on withdrawal. He then did nothing which was unwise. The Petitioner likewise took no steps other than to reply on the original affidavits. He was also unwise. Any agreement ought to have been formalised. Inaction by both raises suspicion of ambush or indifference. The Court was required because of the conduct or lack thereof to defer other matters, sit as a Court of four, and undertake interlocutory hearings to provide justice to the parties, entertain a strike out motion and preclude the Respondent from making counter-allegations.
    
29. The result is that the Court orders each party to pay their own costs and that the deposit paid by the Petitioner be forfeited.
    

ORDERS

(1) That the Petition dated 23 March 2011 be dismissed.

(2) That each party pays their own costs of the matter.

(3) That the security provided by the Petitioner in accordance with the Act s107 be forfeited and released to the Registrar of the Court in accordance with the Election Petition Rules 1964 R26.

_______________________________
Honourable Chief Justice Sapolu

_______________________________
Honourable Justice Slicer