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Salele v Sua [2021] WSSC 29 (25 June 2021)

IN THE SUPREME COURT OF SAMOA
Salele v Sua [2021] WSSC 29 (25 June 2021)

MISC 93/21

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

IN THE MATTER:

of the Electoral Act 2019

AND

IN THE MATTER:

Concerning the Territorial Constituency of Salega 1

BETWEEN:

AFUALO LUAGALAU WOOD SALELE Candidate for the Constituency of
Salega 1

Petitioner

AND:

FEPULEAI FAASAVALU FAIMATA SUA Elected Candidate for the Constituency of Salega 1

Respondent

Coram: Justice Niavā Mata K. Tuatagaloa
Justice Fepuleai Ameperosa Roma

Counsels: T. Fagaloa for the Petitioner
M. Lui for the Respondent

Hearing: 14 June 2021
Judgment: 25 June 2021

JUDGMENT OF THE COURT

Background

1. The Petitioner and Respondent were candidates for the Electoral Constituency of Salega 1 in the General Elections of 09 April 2021.
2. The Electoral Constituency of Salega 1 consists of five villages: Samata-uta, Samata-tai, Faiaai, Fogatuli and Fagafau.
3. The Electoral Commissioner on 16 April 2021 declared the official results as follows where the Respondent was declared and reported as the duly elected candidate. The Petitioner polled the third highest number of votes:
   • AFUALO Wood Uti Salele 373
   • FEPULEAI FAASAVALU Faimata Sua 381
   • LEUMUAVA Asalemo Tuimauga 63
   • TOOMATA Aki Tuipea 375

The Petition

4. The Petitioner seeks to declare invalid and void the election of the Respondent for having breached the Electoral Act 2019 by way of corrupt and illegal practices by himself or on his behalf. The alleged corrupt practices relate to:
   • (a) Donation of $2000 given by FAST Party on behalf of the Respondent at its Roadshow at Samata-uta on 18 March 2021; and
   • (b) Donations of $500 given to the Autalavou and $2000 given to the Au Uso Fealofani (Women’s Fellowship Group) of the Samata-uta Methodist Church by the Respondent and his FAST supporters when they attended the church service on Good Friday, 02 April 2021.
5. The Petitioner claims that the Respondent and his supporters had breached the ‘prohibited period’ for campaigning by attending the Good Friday service on 2^nd April 2021 and the ‘period of election’ by directly or indirectly, in person or through another person giving food or money to eligible voters at a Church activity.
6. The Petitioner called five (5) witnesses including the Petitioner himself.

Opposition and Counter-Petition

7. The Respondent denies that he gave monies to the Autalavou, the Au Uso Fealofani of Samata-uta Methodist Church and at the FAST Roadshow. He further denies that the monies presented were given on his behalf.
8. The Respondent further counter-petitions the Petitioner with one count of corrupt practice namely bribery as follows:
   • (i) On or about 21 March 2021 at Faiaai, Savaii the Petitioner conducted the Church service at the Faiaai Methodist Church and gave $340 to the aulotu with the purpose of inducing voters to vote for him.
9. The Respondent called eight (8) witnesses in rebuttal of the petition and in support of his counter-petition against the Petitioner.
10. We will deal with the Petition and Counter-Petition separately in our judgment.

The Law

(a) Standard of Proof

11. When considering each allegation in the petition (or counter-petition) we bear in mind that the petitioner (or counter-petitioner) bears the onus of proving the respondent’s guilt and the required standard of proof is beyond reasonable doubt.^[1]

(b) Corrupt Practices and Illegal Practices

12. The Electoral Act 2019 (“the Act”) distinguishes between the more serious practices identified as “corrupt practices” of personation (s.95), bribery (s.96), treating (s.97) and undue influence (s.98) from those which the Act refers to as “illegal practices” (ss.99 & 100).
13. The Act further provides for a “prohibited period” (s.43(3)) during which campaigning is prohibited) and “period of election” (s.100) during which any candidate who in person or through another gives food, beverage, money or other valuable at a ceremony other than a funeral is guilty of an illegal practice (100(2) & (3)). The relevant sections are as follows:
    • “42. Approved methods:
    • (1) A candidate must only use the approved methods of campaigning provided under subsection (2).
    • (2) The approved methods for campaigning are as follows:
    • (a) handing out of pamphlets providing the candidate’s -
    • (i) personal background; and
    • (ii) academic qualifications; and
    • (iii) issues for which he or she supports;
    • (b) use of billboards to provide a pictorial presentation of the candidate and issues of which the candidate wishes to inform the public; or
    • (c) oral or filmed presentations or speeches using any mode of communication available which includes electronic devices.
    • (3) In this section “electronic devices” means any device that can be used to promote a candidate’s message for elections.
    • 43. Commencement and cut-off date for campaigns:
    • Subject to subsection (2), the campaigning period commences within 3 days after the close of nomination.
    • A candidate is prohibited from campaigning during the prohibited period.
    • (3) In this section, “prohibited period” commences at 12.00pm on the day before the designated period in section 60(2) and ending after the official declaration of results.
14. Accordingly, the ‘prohibited period’ starts at 12noon the day before pre-polling which is Sunday, 4^th April 2021 to 17^th April 2021 (Saturday), the day after the official results.
15. As to Illegal activities, section 100 provides:-
    • 100. Illegal activities during period of election:
    • (1) In this section, “period of election” means the period during an election or by-election, commencing on the day after the Commissioner gives public notice of polling day and ending at the close of the Poll on polling day.
    • (2) A candidate who during a period of election directly or indirectly, in person or through another person gives food, beverage, money or other valuable to a voter at a ceremony or activity is guilty of an illegal practice.
    • (3) A voter who during a period of election obtains or attempts to obtain, directly or indirectly in person or through a person, any food, beverage, money or other valuable from a candidate for election, is guilty of an illegal practice.
    • (4) Despite subsections (2) and (3) it is not an illegal practice if the act referred to under those subsections is carried out at a funeral.
16. The Electoral Commissioner declared polling day on 09 March 2021. Accordingly, the ‘period of election’ commences from 10^th March 2021 to 10^th April 2021.
17. Where a candidate who has been elected at any election is proved at trial of an election penition to have been guilty of anrucorrupt practice, his election shall be void. Section 116 is esed so as t as to apply in respect of any corrupt practice.
18. Angal practice on the other hand does not void an election unon unless the Supreme Court finds that such practice (reasonably inferred) resulted in the election of the candidate, in which case the election therefore, shall be void (s.117(1)). We further note s.117 (2) which says:-
    • "(2) Except under this section, an election is not void by reason of the general prevalence of corrupt or illegal practices"

(c) Bribery

19. Section 96 relevantly states:
    • “96. Bribery:
    • (1) In this section, “voter” includes a person who has or claims to have a right to vote.
    • (2) A person commits the offence of bribery who, directly or indirectly in person or by any other person on his or her behalf either before, during or after voting:
    • (a) gives any money or obtains an office to or for -
    • (i) a voter; or
    • (ii) any other person on behalf of a voter; or ...”
20. To find the Respondent guilty of bribery therefore, the Petitioner must prove beyond reasonable doubt the following elements:
    • (a) The candidate (either directly or indirectly through another person);
    • (b) gives money;
    • (c) to a voter;
    • (d) for the purpose of inducing the voter to vote.
21. Since, the Petition alleges giving monies by the FAST Party at a FAST and by Friends for Fiame on behalf of the Respondent., it is necessary that we consider first the law of agency before the allegations in the petition and counter-petition.

(d) Agency in election

22. The principles of the law of agency in election may be summarised as follows:^[2]
    • (a) A person may become an agent in either of two ways:
      • (i) by actual appointment or employment.
      • (ii) by recognition and acceptance.
    • (b) In determining the question of agency all the circumstances must be taken together.
    • (c) Entrusting to an agent of acts to be done may be in express terms or arise by implication.
    • (d) The candidate is responsible for all the misdeeds of the agent committed within the scope of his authority although done against his express directions and even in defiance of them.
23. Since the allegation in the petition involved the giving of $2,000 by the FAST Party and by Friends 4 Fiame on behalf of the Respondent, it is necessary that we consider first the law of agency before the allegations in the petition and counter-petition.

The issues

24. It is common ground that the Respondent did not give out monies to any voters. It is also common ground that the donations were made by FAST and Friends 4 Fiame. In that regard, the principal issues that require our determination in relation to the Petition are:
    • (i) Are the Friends 4 Fiame agents of the Respondent? Is FAST an agent of the Respondent?
    • (ii) Were the monies given by Friends 4 Fiame and FAST given with the motive to induce voters to vote and thereby, corrupt practice?

(a) Is FAST agent for the Respondent?

25. The Respondent submitted that FAST was not his agent. Whilst not disputed that he is a member of FAST, his Counsel contended that he was not involved in the decision making as to where and when the FAST Roadshow goes, on what day and how much FAST is to give where there is fa’aaloaloga. The responsibility was that of a special committee of the FAST Party, of which he was not part.
26. We respectfully do not agree. The Respondent was a member of FAST. The Roadshow was that of FAST. It was being held at the Respondent’s constituency. He was present and he (together with the other candidates contesting for FAST) was introduced as the FAST candidate running for the Constituency in the elections. We infer from those circumstances and conclude that the Respondent had accepted and recognised FAST as his agent.
27. The question therefore becomes one of whether the intention behind the FAST donation was to corruptly induce voters to vote in the Respondent. We address that issue in the course of our judgment.

(b) Are the Friends 4 Fiame agent for the Respondent?

28. The Petitioner’s allegation is that money was given at church by the Respondent or on behalf of the Respondent. The clear evidence by all witnesses, is, that the money was given by friends of Fiame through one of its members, namely Tauiliili Alise Stunnenberg.
29. The Respondent’s evidence is that he does not personally know the Friends 4 Fiame and he had only seen them a couple of times with Fiame. At no time prior had he spoken to or socialised with any one of them. Further, the Respondent did not know that the Friends 4 Fiame were going to make donations.
30. There is no evidence provided by the Petitioner of any ‘agency’ relationship between the Respondent and the Friends 4 Fiame as a group or to any one of them. The Petitioner has failed to prove beyond reasonable doubt that money given by Friends 4 Fiame was given on behalf of the Respondent.

The Evidence for the Petition (and Rebuttal)

(a) The FAST Roadshow at Samata-uta on 18 March 2021

31. The FAST Roadshow of 18^th March 2021 was not caught by the ‘prohibited period’^[3] therefore the Roadshow as a way of campaigning was lawful. We agree that any money or food given within the period of election^[4] if given to induce vote(s) for the Respondent will amount to bribery. The question is whether the $2,000 given at the Roadshow by FAST was given solely or predominantly to induce voters to vote for the Respondent.
32. The Petitioner himself was not present at the FAST Roadshow where he alleges that $2000 was given by FAST to the Constituency for the purpose of inducing voters to vote for the Respondent. Two witnesses were called to give evidence for the Petitioner.
33. The witnesses Fuatia Fereti and Fiu Tafale Tufuga gave similar evidence. They are both matai and electors from the village of Fogatuli in the Territorial Constituency of Salega 1. Their evidence was that the hosting of the FAST Roadshow was by the villages of Samata-uta and Faiaai. The Respondent has connections to both villages. In their affidavits, they say the $2000 given by the spokesperson of FAST to the Constituency was a bribe to induce voters to vote for the Respondent who is a member of FAST. In oral evidence, they said that when the $2000 was handed over, Laauli also said “to vote for Fepuleai”. They were individually asked why those words or what Laauli had said was not in each of their affidavits and their responses were, they did not remember at the time or that the affidavit was for something else.^[5]
34. The two witnesses said the four villages of Salega 1 were apportioned $500 each and they accepted the portion for the village of Fogatuli and were responsible for dividing it amongst the members of their village who were present at the Roadshow. Fiu was asked as to whether he would accept the money if he was the ‘tootoo’ for Fogatuli and he said he would. Fuatia was asked whether he saw the Respondent handing money to the spokesperson of FAST and he said yes and yet such crucial evidence was not included in his affidavit and had only just come out now.
35. The problem with the evidence of these two witnesses is that they have sworn affidavits of what they said they saw took place that did not contain what they are now saying in court. Their affidavits were sworn three weeks after the General Elections. Yet in Court, they said they did not remember at the time but they do now. We find their evidence in relation to what Laauli may have said and the handing of the money by the Respondent to the spokesperson of FAST questionable and unreliable.
36. In rebuttal the Respondent and his witnesses Ifata Meti Pupumai, Matanana Pele and Tuisalega Fualau Fua denied that the $2000 given by FAST was with the intention to induce voters to vote for the FAST candidate (Respondent) running for Salega 1. They said that the $2000 was given to the Constituency for the faaaloaloga provided by the Constituency to FAST after their fa’alauiloa. They knew about the $2000 from people around but did not see when it was handed over or who handed it over. The Respondent said the money was that of FAST Party and not from him.
37. The witness Tuisalega Fualau whom we found credible was involved in the organising of the hosting of the FAST Roadshow. Asked if the timing of the FAST Roadshow and the giving of $2000 was in view of the upcoming election to induce voters to vote for the FAST candidate, he disagreed saying that all he knew was that the Roadshow was to faalauiloa the FAST Manifesto and the $2000 was in response to the faaaloaloga by the Constituency of Salega 1. He agreed that the presentation was in accordance with Samoan customs (tu ma aga) and therefore culturally appropriate. He was asked whether he saw the Respondent giving the envelope or money to the FAST spokesperson or heard Laauli saying words to the effect to vote for the Respondent. He said none of that took place.
38. The witnesses including those for the Petitioner were asked what the purpose of the FAST Roadshow was and they responded that they understood it to be a publicity campaign for their Manifesto (faalauiloa le latou anava tau) and making known their candidates.
39. Other than the two witnesses for the Petitioner who claim that Laauli had said something to the effect ‘to vote for the Respondent’ when the money was handed over, none of the witnesses called for the Respondent (or the Respondent himself) corroborate that allegation. For reasons said earlier, we find this part of the evidence by witnesses, Fiu and Fuatia unreliable and simply not credible.
40. All the witnesses for the Petitioner and Respondent agree that it is in accordance with Samoan customs “e tali le faaaloalo i le faaaloalo” and especially so where a village or villages are involved with hosting a group of people.
41. From the evidence, we accept the following facts:
    • There was a FAST Roadshow on 18^th March 2021 at Samata-uta for the Constituency of Salega 1;
    • The Respondent, Fepulea’i was present at the Roadshow;
    • That $2000 was given over by FAST;
    • The $2000 was given over in response to the faaaloaloga by the Constituency to FAST and was not given before the faaaloaloga or without any faaaloaloga;
    • The giving of $2000 in response to the faaaloaloga is culturally appropriate and in accordance with the Samoan customs (tu ma aga).
42. In those circumstances, we find that compliance with Samoan custom was the dominant motive behind the giving of the $2000 by FAST.
43. The Petitioner therefore has not satisfied us beyond reasonable doubt that the $2000 given by FAST to the Constituency of Salega 1, was bribery with the corrupt intention to induce voters to vote for the Respondent.

(b) Samata-uta Methodist Church on 2 April 2021

44. The Petitioner’s evidence is that he was not present at the Good Friday church service at Samata-uta Methodist Church but that he has witnesses who were there. The Petitioner is adamant that the giving of money on the Good Friday church service a week before the General Election had resulted in more votes at Samata-uta for the Respondent. The Petitioner claims that this is his village and he had always won by a big margin but because of the donations given by Fiame some of those votes have gone to the Respondent.
45. The Petitioner’s allegations in this part of his Petition relate to two donations handed over by Fiame whilst attending the Good Friday service at the Samata-uta Methodist Church, the $500 to the Autalavou and $2000 to the Au Uso Fealofani (Church Women’s Fellowship Group). The Petitioner called two witnesses – Selu Patrick and Viki Polo Mase.
46. Selu is the President of the Samata-uta Methodist Church Autalavou. Viki is a member of the Autalavou and part of the Au Uso Fealofani. Selu’s evidence is that during the Autalavou’s program, the faifeau invited donations to assist the Autalavou, and a friend of Fiame walked up and gave him an envelope which contained $500. To him the money was a donation to the Autalavou and he was grateful for the assistance. Viki gave evidence that the Church women were asked to stay behind after the Autalavou for a program with Fiame. The program was a talk on violence against women by Fiame. Viki said that $2000 was given over by Fiame after the program before any faaaloaloga. When questioned further that the $2000 was only handed over in response to faaaloaloga done for Fiame, Viki conceded that she did not know of any faaaloaloga as she had left before that was done.
47. The Respondent does not deny that he was at the church service with the Leader of FAST, Fiame Naomi and her friends. He said the monies that were given were by the friends of Fiame and not by him or Fiame. This evidence is corroborated by Lister Selu Hosea and Elisapeta Pele.
48. Lister is the secretary of the Autalavou. Both Lister and Elisapeta were at the Easter Friday service on the said day and said that the $500 was donated by friends of Fiame. Lister said she saw Tauiliili Alise go up and put money in the collection plate while Elisapeta said she saw the friends of Fiame that attended the church service all go up and put money in the collection plate. Despite the inconsistency in their evidence with that of Selu who said that Tauiliili Alise gave him the envelope which had $500, what is clear from the evidence is that it was neither Fiame nor the Respondent who donated or handed the money over for the Autalavou but Friends 4 Fiame. It is also clear from Lister and Elisapeta’s evidence that it, were not just the Friends 4 Fiame that donated but also other members of the church.
49. Tauiliili Alise Stunnenberg, a member of Friends 4 Fiame confirmed in evidence that sums of $500 for the Autalavou and $2000 for the Au Uso Fealofani of the Samata-uta, Methodist Church were donated by the group and that she was the one who handed over the envelopes containing the amounts. According to Tauiliili, the group was formed when Fiame left the HRPP and before joining the FAST Party to provide support in whatever way for Fiame.
50. The Respondent said that Fiame did not attend the church service as the Leader of FAST but as President of the National Council of Women hence the request by her to conduct a program with the Church Women’s Fellowship Group after the service on Violence against Women.
51. Both the Petitioner and Respondent in their sworn affidavits have Samata-uta as one of their villages from the Electoral Constituency of Salega 1. In our view, there is no merit in the Petitioner’s claim that the reason why the Respondent polled more votes from Samata-uta was because of the Methodist Church. There is also no evidence that the votes received by the Respondent from Samata-uta were all those people from the Samata-uta Methodist Church.
52. There is no evidence of any thing said in reference to the upcoming elections when the donations were made. It was not just the Friends 4 Fiame who donated, members of the church also donated when the faifeau announced or invited donations during the Autalavou program.
53. The court accepts the following evidence:
    • Fiame, the Respondent and Friends 4 Fiame were at the Good Friday church service at the Samata-uta Methodist Church;
    • Friends 4 Fiame is a group of women friends of Fiame who accordingly provide financial assistance and support for Fiame;
    • Monies of $500 to the Autalavou and $2000 to the Au Uso Fealofani (Church Women’s Fellowship Group) were given over as donations by the Friends 4 Fiame.
54. With that evidence, we find that the Petitioner has not proven beyond reasonable doubt that the donations made were by or on behalf of the Respondent. We find further that the donations were ‘not’ made with the required corrupt motive of inducing members of the Samata-uta Methodist Church to vote for the Respondent.

The Counter-Petition

55. The Respondent’s counter-petition alleges that the Petitioner on or about 21^st March 2021 at Faiaai, Savaii conducted a sermon at the Faiaai Methodist Church and gave $340 to the aulotu with the purpose of inducing voters to vote for him.
56. The Petitioner attempted on the morning of trial to file an Affidavit of Petitioner as evidence in rebuttal to the counter-petition. We denied the application for reasons that the response was way out of time; no proper application for leave and supporting affidavit was filed; and Counsel for the Petitioner provided no valid reasons as to why it was not filed within time. There is therefore no rebuttal evidence against the counter-petition.
57. The Respondent’s only witness in support of the counter-petition was Tuisalega Fualau, His evidence is that the Petitioner had asked their faifeau that he wanted to come and lead the service at their church. It was after the service and during the usual Sunday toonai with the failauga that the Petitioner was presented with $460 as talilauga and the usual sua or faatamalii. Towards the end before the Petitioner and his wife departed, he (Petitioner) returned his talilauga presented as a ‘donation’ of $160 to the faifeau and $300 back to the church.
58. The clear and undisputed evidence of Tuisalega is as follows:
    • (i) The Petitioner had asked the faifeau of the Faiaai Methodist Church to lead the sermon on 21 March 2021;^[6]
    • (ii) The Petitioner had never at any time prior lead a sermon at their church at Faiaai. This was the first time that the Petitioner had done so;^[7]
    • (iii) The Petitioner when leading the sermon said to the congregation “faamalulu atu e le o sau e lauga faatosina” (he was not there for electioneering purposes);^[8]
    • (iv) The Petitioner was hosted to a Sunday toonai where he was presented with a talilauga of $460 and the usual sua and faatamalii. The Petitioner thanked the congregation and they then had toonai;^[9]
    • (v) Whilst having toonai that the Petitioner talked about the elections; the need to change the government; that the government is heavily in debt; and that his party was willing to form an alliance with other parties to bring about this change;^[10]
    • (vi) The Petitioner also during toonai asked that he village of Faiaai open up the elections – “Ou te tatalo atu ile tatou nuu, tatala le palota.”^[11]
    • (vii) The Petitioner (and his wife) before departing returned his talilauga in the form of donations of $160 to the faifeau and $300 to the church.
59. Tuisalega’s evidence is that when the Petitioner started talking about the election, he knew that was the reason why he (Petitioner) had asked for the opportunity to lead the sermon at their church; and why he had given all his talilauga money back.
60. We do not have a problem with the Petitioner gifting or donating his talilauga back to the faifeau and the church. In our view, the Petitioner was free to donate and gift as he did. It is what the Respondent said or talked about prior to donating/gifting the talilauga that concerns us.
61. In the beginning of his sermon the Petitioner said to the congregation that he was not there for electioneering purposes. The question is, why would he say that if he was there genuinely and solely for the purpose of leading a church sermon? Then during toonai the Petitioner spoke or talked about the elections which was three(3) weeks away. Although the Petitioner did not say to the people at the to’onai to vote for him; he spoke about his political party aligning with other parties to change the government. The fact that he is the leader of a political party and a candidate contesting the elections for Salega 1 constituency is also highly relevant.
62. Tuisalega impressed us as someone who has lived and involved himself at every level of a Samoan upbringing. He is a 72 year old member of the church, a paramount title holder of Faiaai and also a senior ‘failauga faamaoni’ (lay preacher) of the Methodist Church. Tuisalega has a deep knowledge of the Samoan culture, his village and church affairs. We find no reason to doubt his evidence as to what was said by the Petitioner and what he gave during the toonai.
63. In those circumstances, we can reasonably infer that the gifting of the talilauga by the Petitioner was with the dominant motive to corruptly influence the voters at the Methodist Faiaai to vote in his favour in the imminent general elections.
64. We find that the Respondent’s counter-petition has been proven beyond reasonable doubt.

Conclusions

65. We make the following orders:
    • (a) The petition is dismissed in its entirety as the three (3) allegations of bribery have not been proved beyond reasonable doubt.
    • (b) The counter-petition against the Petitioner has been proven beyond reasonable doubt.
    • (c) The security for costs of $2000 paid by the Petitioner is forfeited.

JUSTICE TUATAGALOA
JUSTICE ROMA

^[1]Safata Territorial Constituency; Pule Lameko v Muliagatele Vena (1970-1979) WSLR 239, 241; Posala v Su’a [2006] WSSC 29.

^[2] The Harwich case 2 O’M & H 61,70 adopted in Jacob John Olaf, Jack Netzler Others v Vang Sung Chan Chui [2001] WSSC 18; Faitua v Vaelupe [2011] WSSC 50
^[3] See paragraph [11]
^[4] See paragraph [12]
^[5] Evidence of Fuatia Fereti
^[6] Transcript, pages [96], [100]
^[7] EXH D7(1) - Affidavit of Tuisalega Fualau Fu’a a.k.a. Fualau Fu’a Timo (dated 11 May 2021) at paragraph [2];
^[8] Ibid, at paragraph [4]; Transcript, p.101
^[9] Transcript, p.94
^[10] EXH D7(2)- Affidavit of Tuisalega Fualau Fu’a a.k.a. Fualau Fu’a Timo (dated 11 May 2021); Transcript, p.95
^[11] Transcript, p.96