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Tafua v Eteuati [2021] WSSC 33 (5 July 2021)

IN THE SUPREME COURT OF SAMOA
Tafua v Eteuati [2021] WSSC 33 (05 July 2021)

MISC 95/21

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

IN THE MATTER:

of Election Petitions as per Part 14 of the Electoral Act 2019

BETWEEN:

TAFUA MALUELUE TAFUA, candidate for the Constituency of Aleipata Itupa-i-Lalo.

Petitioner

AND:

FIUGALU ETEUATI ETEUATI, candidate for the Constituency of Aleipata Itupa-i-Lalo.

Respondent

Coram: Justice Niavā Mata K. Tuatagaloa

Justice Lesātele Rapi Vaai

Counsels: M. Lui for the Petitioner
J. Brunt & E. Peters for the Respondent

Hearing: 28^th – 30^th June 2021
Judgment: 05^th July 2021

JUDGMENT OF THE COURT

Introduction.

1. The Petitioner and the Respondent were two of the candidates for the Electoral Constituency of Aleipata Itupa-i-Lalo in the General Elections held on 09^th April 2021.
2. The official results declared by the Electoral Commissioner on the 16^th April 2021 showed that the Respondent polled the highest number of votes at 805 and the petitioner with 777. The Respondent was accordingly declared the elected member.
3. A challenge to the proclamation of the election by way of Election Petition was filed by the Petitioner seeking orders to declare void the election of the Respondent.
4. In seeking to void the election of the Respondent the Petitioner relies on the Respondent’s corrupt practices namely bribery and treating prescribed by sections 96 and 97 of the Electoral Act 2019.
5. In response, the Respondent filed a RESPONDENT’S RESPONSE TO THE PETITIONER’S ELECTION PETITION AND COUNTERCLAIM in which the Respondent denies all the allegations of corrupt practices. It also contains allegations of corrupt practices against the Petitioner. We will refer to the response and counterclaim as the counter petition.

Evidence.

6. Evidence adduced in support of the petition and of the counter petition has been by way of affidavits and oral testimonies. Twenty five witnesses testified as to the facts and the corrupt practices, bribery and treating alleged in both the petition and counter petition.
7. Both counsels are in agreement as to the relevant applicable law concerning the elements, the required standard of proof, agency and corroboration. Inevitably the submissions of counsels were quite properly directed not so much to the applicable law but to the evidence of the witnesses with emphasis on the evidence they considered relevant and supportive of their arguments.
8. The Court bears in mind that to be guilty of corrupt practices of bribery and treating the Petitioner and Counter Petitioner must prove that the Respondent intended to induce the voters to vote other than in accordance with their conscience, or with the intention of influencing a voter to vote or refrain from voting. The subjective intent of the Respondent must not only be corrupt, the method employed must also be corrupt.^[1]
9. The Court has considered all the evidence, has weighed the evidence, has drawn proper inferences, has assessed the quality and value of the relevant evidence as well as the demeanour and reliability of the witnesses. It is also indebted to counsels for their very helpful submissions.
10. The Court accordingly embarks on a review of the oral and affidavit testimonials in relation to each allegation and counter allegation and render its finding in respect of each allegation.

The Petition allegations.

11. Allegations (a), (j) and (s) were withdrawn and not pursued.
12. Allegations (b) and (c) arose out of a meeting of untitled men of the village of Samusu at the house of the pulenu’u on the afternoon of the 27^th March 2021. The meeting was requested by the pulenu’u and several young men, also voters, including Fua Toma, Esau Fretton, Tavae Anitoni and Filipo Leota attended. Both the pulenu'u and the Respondent were talking at another house of the pulenu'u a short distance away. After the Respondent left the pulenu'u then gave the young men $400 and two boxes of liquor. He told the gathering it was from the Respondent. There is conflicting evidence as to whether the pulenu'u said anything to the untitled men when he left. What is not contested is that nothing was discussed at the so-called meeting; the Respondent was at the pulenu'u’s residence and the gathering dispersed after the money and liquor were distributed. Fua Toma, Esau Fretton, Tavae Anitoni and Filipo Leota received $20 each.
    • (a) The sting of the allegations is that $400 and two boxes of liquor was given. Fua Toma and Esau did receive their share of the money.
    • (b) Both Fua Toma and Esau Fretton are not registered voters of Aleipata Itupa-i-Lalo but they are voters registered elsewhere. In Kasimani v Seuala^[2], the Court held after referring to the relevant sections of the Electoral Act 1963, (sections 2, 14 and 96 Electoral Act 2019) a voter not registered within the Constituency of the candidate is capable of being bribed.
    • (c) No evidence was tendered to question the reliability of the testimony of the four witnesses. The Court is satisfied that the money and liquor were given. No explanation was tendered for the giving. It was given with a corrupt intention.
    • (d) The Court finds the two allegations of bribery proven.
13. Allegation (d) alleges the Respondent’s wife gave $150 to Fiu Senio for the purpose of inducing Senio to vote for the Respondent.
    • [13.1] Both Fiu Senio and his wife Leaauta told the Court the Respondent’s wife drove to their home. Fiu went outside to the car. Fiu was questioned as to the number of and names of voters in their household. Ten names were checked by the Respondent’s wife against the roll. Fiu was then given $150. Fiu’s wife confirmed that $150 was given.
    • [13.2] It was contended under cross-examination that the $150 was given for the 10 packets of cucumber and two baskets of coconut which the Respondent purchased from the witnesses’ flea market stall by the main road in front of his house, but it was denied by the witness.
    • [13.3] The Court accepts the Respondent’s wife gave the $150 after she checked the electoral roll. It was given with a corrupt intent. This allegation of bribery is proven.
14. Allegation (e) alleges the giving of $300 to members of the Latter Day Saints working bee at Utufa’alalafa village.
    • [14.1] It was during the last week of March 2021 the working bee members which included Fiu Senio and Logomaleata Matautia were assisting one of the village family when the Respondent and his wife drove by and stopped. The Respondent introduced himself as one of the candidates in the pending elections. As he was leaving he gave the working bee $300 for drinks. The witness Logomaleata confirmed Fiu’s testimony.
    • [14.2] Counsel for the Respondent contended that the allegation has not been proven beyond reasonable doubt because the Respondent did not have the corrupt intent. He told the working bee the $300 was for drinks and that is exactly what the recipients did.
    • [14.3] An intention can never be proved as a fact. It can only be inferred from facts proven beyond reasonable doubt. “In a charge of bribery a corrupt motive must in all cases be strictly proved. The Court has always refused to give any exhaustive definitions on the subject and has always looked to the exact facts of each case to discover the character of the transaction”^[3].
    • [14.4] This allegation is proved.
15. Allegation (f) alleges the Respondent gave fish to Fotupule Matulino for the purpose of corruptly influencing Fotupule to vote for him.
    • [15.1] It was about the 25^th – 26^th March while Fotupule was driving home at his village at Saleaaumua, the road was partly blocked by the Respondent’s dyna truck selling fish. Tomafua Fiava’e, known to be one of the Respondent’s committee gave him a fish. The Respondent who was there with the electoral roll then checked Fotupule’s name against the roll.
    • [15.2] Tomafua who gave the fish testified in support of the counter petition. Under cross-examination, he originally denied he was the agent for the Respondent though he often accompanied the Respondent or the Respondent’s wife on several trips to sell the fish at Aleipata district. He conceded giving the fish to Fotupule, but he told the Court Fotupule wanted a fish but did not have any money at the time but will pay later as was usually the case in the past.
    • [15.3] This contention by Tomafua if it is correct, then there was no need to search for Fotupule’s name on the electoral roll. Tomafua is not a reliable witness. His credibility vanished under cross-examination as well as questions from the bench.
    • [15.4] The giving of fish is corroborated by similar incidents which will be dealt with in the course of this judgment.
    • [15.5] The allegation of treating is proved. A corrupt intent to influence the voter accompanied the giving of the fish.
16. Allegation (g) is concerned with the giving of $30 and fish to Matulino Lopesi of Saleaaumua.
    • [16.1] It was about the same time as alleged in paragraph [15] above. Matulino was trimming the hedge by the main road in front of his house. A white dyna truck selling fish stopped and the Respondent’s wife called out to Matulino. She then gave Matulino fish for food and $30 for his beer.
    • [16.2] It was close to elections. The giving of food and money to a stranger and voter is not normal. There is no rational explanation other than a corrupt motive to influence the voter.
    • [16.3] The allegations of bribery and treating are proved.
17. Allegation (h) involves the giving by the Respondent of $30 and fish to Falesau Penitito to influence Falesau to vote for the Respondent.
    • [17.1] It was about the same day and time as in allegation discussed in [16] above at Saleaaumua village and the same dyna truck selling fish with Tomafua Fiava’e accompanying the Respondent and his wife.
    • [17.2] Falesau told the Court that Tomafua called him to come to the truck. He was given the fish by Tomafua and $30 by the Respondent’s wife. He was also given a bottle of Vodka.
    • [17.3] This testimony and that of Matulino (in paragraph [16] above) proves beyond reasonable doubt a corrupt motive to influence voters. The allegations of bribery and treating are proved.
18. Allegation (i) alleges the Respondent gave Vaisala Fa’amate fish to corruptly influence his vote.
    • [18.1] Vaisala Fa’amate told the Court that it was a Thursday of the week before election that the Respondent and his wife came and parked their car on the side of the road in front of his house. He as well as other voters went over to the car. The Respondent checked Vaisala’s name on the roll and Vaisala was then given fish.
    • [18.2] For the Respondent and his wife to visit the Constituency a week before election armed with the electoral roll and free fish invites and justifies only one logical conclusion. He intended to corruptly influence the votes.
19. Allegation (k) alleges the Respondent gave Tavae Anitoni $40 for the purpose of inducing him to vote for the Respondent.
    • [19.1] Tavae Anitoni was one of the untitled members who attended the meeting at the pulenu'u’s house on the 27^th March 2021 where the $400 and liquor given by the Respondent was distributed.
    • [19.2] The distribution of $400 and liquor was discussed in allegations (b) and (c); but the receipt by Tavae of the $20 was not a component of the allegation. It is part of this allegation. It is also further alleged that Tavae on the 08^th April 2021, the day before election, received another $20 from the Respondent.
    • [19.3] Tavae told the Court that on the evening of the 08^th April, there was a gathering at his neighbour Iopu’s house. There were about 14 people there. The Respondent and his committee were present and urged people to remember the vote. $280 was given by the Respondent to Tavae to distribute. Tavae gave himself $20.
    • [19.4] Tavae received $20 from his meeting and from the meeting on the 27^th March. A total of $40.
    • [19.5] Both monies were without a clout of doubt given with a corrupt motive.
20. Allegation (l) alleges the Respondent gave Enele Kuki $30 and fish to corruptly influence Enele to vote for him.
    • [20.1] On the 07^th April, the voters of Mutiatele village were invited to a gathering at Oto’s house at Mutiatele. Enele Kuki attended. At least 50 others attended including Tuileisu To’o and her husband Mailei To’o. The gathering was attended by the Respondent and his wife.
    • [20.2] At the gathering the Respondent talked about the forthcoming election; his desire to improve access roads to plantations, better water supply and electricity. The names of those attending were then checked against the roll and given monies. Enele Kuki received $30, Tuileisu $30 and her husband Mailei who is a voter elsewhere $20.
    • [20.3] Enele Kuki also told the Court that he was also given a fish on an earlier date in March 2021. The Respondent’s dyna truck stopped in front of his house and Tomafua, the Respondent’s agent, called him to come. His name was checked by the Respondent’s wife against the electoral roll and he was then given a fish.
    • [20.4] Respondent’s counsel contended that this witness Enele, a relative of the Petitioner should be disbelieved; but the contention does not refute the fact that money was distributed amongst those present as their names were checked against the list.
    • [20.5] No explanation was tendered for the giving.
    • [20.6] The allegations of bribery and treating are proven beyond reasonable doubt.
21. Allegation (m): The Respondent gave Tuileisu To’o $30 and food and drove Tuileisu to the polling booth to vote for the purpose of corruptly influencing Tuileisu to vote for him.
    • [21.1] The giving of $30 was at the house of Oto at Mutiatele on the 07^th April which was dealt with in paragraph [20] above. We found the giving of monies at the said gathering to be corrupt.
    • [21.2] In respect of the giving of food and transport to the polling booth, Tuileisu testified that on polling day she and her husband were walking to the polling booth when the Respondent’s wife drove by and took them. They bought food, doughnuts before being dropped off at Lotoipue booth. They did not vote there. They caught another car and went to Saleaaumua where they voted.
    • [21.3] This witness admitted she is a relative of the Petitioner which prompted counsel for the Respondent to contend that the reliability and credibility of the witness should be approached with caution.
    • [21.4] There is nothing in the evidence to suggest that the Respondent’s wife went specifically to look for the witness and her husband to take to the booth. They were walking when they got picked up. They did not refuse the offer to be driven to the booth.
    • [21.5] But food was bought on the way to the booth which was a short distance away. It was polling day. Although by no means excessive the Court is satisfied there was corrupt intent when food was provided.
    • [21.6] Bribery and treating are proved.
22. Allegation (n): The Respondent gave Filipo Leota $20 for the purpose of inducing Filipo to vote for him.
    • [22.1] Filipo Leota was one of the untitled men who attended the meeting of the 27^th March where $400 and liquor was provided by the Respondent as discussed in paragraph [12].
    • [22.2] The Court has ruled the giving of $400 of which Filipo received $20 was corruptly given. This allegation is accordingly proved.
23. Allegation (o): The Respondent gave Tauvela Tamiano $40 for the purpose of inducing Tauvela to vote for him.
    • [23.1] Tauvela attended the gathering at Iopu’s house at Mutiatele on the 08^th April 2021 discussed in paragraph [19.3] above. She told the Court that Laneselota was also there.
    • [23.2] She received $20. The Court has ruled the giving of cash at that meeting was corruptly given.
    • [23.3] Tauvaela also told the Court she received another $20 from the Respondent on Sunday the 13^th March at Aiga’s house at Samusu. When she arrived at Aiga’s house, Puipui Tauemu and the Respondent were both there with about 40 other people. At the end of the meeting Puipui gave $600 to one Masaga to distribute. The Respondent and Puipui then left and Masaga distributed the $600. Tauvela received $20.
    • [23.4] Counsel for the Respondent contended it was a family gathering and Tauvela was not supposed to be there. The Respondent did not know Tauvela was there. When Tauvela was asked about this issue, she responded there were others, non-family members who were there as well.
    • [23.5] The Respondent did not testify. Tauvela and others who were not family members were not asked to leave. Instead they were given a share of the $600.
    • [23.6] The giving of $600 was with a corrupt motive. The allegation is proved.
24. Allegation (p): The Respondent gave Mailei To’o and his wife $20, food and dropped them off at the booth on polling day for the purpose of inducing them vote for the Respondent.
    • [24.1] The giving of $30 and food to Mailei’s wife is discussed in paragraph [21] above. The same facts relate to the giving of $20, and food to Mailei, as well as the transportation to the booth.
    • [24.2] The allegations of bribery and treating are also proven.
25. Allegation (q): The Respondent gave Laneselota Andy $20 and liquor for the purpose of inducing Laneselota to vote for him.
    • [25.1] Laneselota was at the house of Iopu on the 08^th April 2021 together with about 14 other voters as discussed in paragraphs [19.3], [23.1] and [23.2] above. The Court ruled that giving of the money at that gathering was corruptly given. Laneselota received $20.
    • [25.2] Laneselota also told the Court that on the evening of the 01^st April 2021 after a game of volleyball, he and two others were walking home when Puipui Tauemu, the Respondent’s agent stopped his car and gave them four small bottles of whisky.
    • [25.3] Puipui was at the house of Aiga on Sunday 13^th March 2021 as discussed in paragraph [23.4] to [23.6] above. The Respondent was also present and he gave Puipui $600 which Puipui gave to the gathering. Puipui is undoubtedly the agent of the Respondent. He was involved in allegation (o) discussed in paragraph [23.3].
    • [25.4] Allegations of bribery and treating are proven.
26. In summary the Court finds proven beyond reasonable doubt 13 counts of bribery and 8 counts of treating against the Respondent.

The Counter Petition.

27. At the commencement of the counter petition, counsel for the Respondent did not make an opening statement but called a witness, Lafoga Sola, a voter of the Constituency, who testified that the Petitioner did, in the presence of his campaign committee at Tiavea, prior to election did distribute envelopes containing monies, at a gathering of voters. This allegation was not put to the Petitioner when he testified. Surprisingly, counsel for the Petitioner did not object.
28. But the Court was concerned. This witness and the others to follow intended to give testimonials concerning the Petitioner personally or through his agents, corruptly influencing the voters to vote in his favour.
29. Counsel for the Respondent correctly conceded that the specific allegations by the witness were not put to the Petitioner. He stated however that he did generally put the issue to the Petitioner under cross-examination.
30. The Court agrees the giving of monies to the voters was generally put to the Petitioner under cross-examination. It was acknowledged by the Petitioner that he was not an angel – that he has been in Parliament for two terms, that it was always the expectation of electors of the Constituency for the elected member to assist in times of funerals, weddings and family activities.
31. This response by the Petitioner should have prompted counsel to counter and trigger the asking of specific allegations to the Petitioner. He did not. He intended to call 15 witnesses in support of the counter petition. He submitted that in the interest of justice, the Petitioner should be recalled after 15 witnesses testified.
32. The Court refused. No credible excuse was tendered for the failure to cross-examine the Petitioner on the allegations raised in the counter petition. Section 118 of the Electoral Act 2019 which provides for real justice to be observed does not assist the Respondent. Nineteen witnesses were called by the Petitioner, another 15 witnesses were intended to be called in support of the counter petition.
33. The Court disallowed the application to recall the Petitioner and ordered the Respondent to confine its counter petition to allegations alleging corrupt practices by those which the Respondent claim were the campaign committee members of the Petitioner.
34. Five instances of corrupt practices of bribery and five of treating are alleged to have been committed by the agents of the Petitioner to promote the election of the Petitioner.
35. The Court considers that the state of the law who is an agent is set out in Petaia v Pa’u^[4] as follows:
    • (a) A person may become an agent in either two ways:
    • (b) by actual appointment, or
    • (c) by recognition and acceptance.
    • (d) In determining the question of agency all the circumstances must be taken together.
    • (e) Entrusting to an agent of acts to be done may be in express terms or arise by implication.
36. A candidate however innocent is liable for any illegal acts of the agent. In Olaf & Ors v Chan Chui^[5] it is said:
    • “A candidate however innocent would be liable and responsible for any illegal acts done by or under the authority of his agent in the sense that the election will be avoided. It makes no difference whether the candidate did not authorise, did not know, or had no consent to the doing of the illegal act. In fact even if the agent acted illegally in defiance of express instructions to the contrary from the candidate, the election of the candidate will be avoided. This approach is consistent with the spirit of the legislation that elections should be conducted by honest and proper means and untainted by under hand influences.” (See Ah Him v Seiuli).

Allegations in Counter Petition.

Allegation 1.

37. It is alleged that Faigata Alofa of Lotoipue village, a campaign agent of the Petitioner gave Sovala Eti Tovale one box of chicken, one beginning of rice and $25 on the 30^th March 2021.
    • [37.1] Sovala told the Court that he is not related to Faigata. “Neither does Faigata usually give my family food or money.”
    • [37.2] Sovala also testified that Faigata told him the food and money were from the Petitioner. He also said Faigata was a member of the Petitioner’s committee because Faigata told him the food and money were from the Petitioner.
    • [37.3] He was specifically asked under cross-examination that he was guessing Faigata was an agent because of what he said when he gave the food and money. He said yes. He was then asked:
      • Question: Lona uiga la e te lē o faamaonia po’o se komiti a Tafua?
      • Answer: Na iloa lava e a’u o le komiti a Tafua.
      • Question: Faafefea na e faamaonia?
      • Answer: Na iloa lava e a’u ia o le faatosina lea a Tafua i le o’o atu o komiti i lo’u aiga.
    • [37.4] Later in cross-examination when he denied knowledge of names of the Respondent’s campaign committee he was questioned:
      • Question: A e faapea mai o lea e te iloa le komiti a Tafua, le a le mea e te lē iloa ai isi komiti a isi sui pei o Fiugalu...?
      • Answer: Sa'o lelei lava le saunoaga.
      • Question: E sa’o le a?
      • Answer: Oute lē iloa e a’u le komiti lea a Tafua.
38. Attempts by the Respondent’s counsel to establish by leading questions in re-examination that Faigata was agent failed to repair the damage.
    • Question: E i ai foi le fesili sa tuuina atu e le tamaitai loia o tau fesasiai ai lau tali lea i le komiti a Tafua, tagata lea o Faigata Alofa....o Faigata alofa?
    • Answer: Ia.
    • Question: O le komiti a Tafua a?
    • Answer: Lau Afioga...e sa’o lelei.
39. We find that Faigata Alofa is not an agent of the Petitioner. The allegation is dismissed.

Allegation 2.

40. It is alleged that on the 30^th March 2021 the Petitioner’s committee members gave to the family of Ioane Leone of Mutiatele one box of chicken and one bag of rice.
41. Ioane Leone could not recall the names of the Petitioner’s campaign committee who came to his house; neither did he explain to the Court how he knew or formed the view the people who came and gave the food were members of the Petitioner’s committee. All that alleged to have been said was “Remember the election.”
42. There is nothing to connect those who allegedly gave the food to the Petitioner.
43. The allegation is dismissed.

Allegation 3.

44. It is alleged that on the 27^th March 2021 the Petitioner’s campaign committee gave $30 to Sesilia to induce Sesilia to vote for the Petitioner.
45. Sesilia told the Court that on the 27^th March 2021 the Petitioner’s campaign committee told some of the voters of the village of Tiavea to gather at the residence of one Vaeai Tupuimatagi. Sesilia Fiu did not attend but her husband did and came with $30 for Sesilia. Sesilia claimed that Vaeai was the campaign agent for the Petitioner as she had seen the Petitioner and Vaeai was the campaign agent for the Petitioner as she had seen the Petitioner and Vaeai together on one occasion.
46. Nothing was said about what took place at the meeting, or which committee member informed Sesilia Fiu and others to meet at Vaeai’s place, or which committee member gave out the money including the $30 for Sesilia.
47. Counsel for the Respondent invited the Court to draw the inference that Vaeai was the agent as it was his house that was used to host the gathering. Vaeai may have been a supporter and therefore agreed to make his house available for the meeting; it does not make him an agent. That is another logical inference to be drawn from the evidence.
48. The circumstances does not establish that Vaeai was the campaign committee member; neither does it suggest it was Vaeai who gave or distributed the money.

Allegation 4.

49. It is alleged that Faigata Alofa on behalf of the Petitioner gave Tiligi Sio of Lotoipue, a voter, one box of chicken, one bag of rice and $25 on the 30^th March 2021. Faigata told him it was a meaalofa from the Petitioner.
50. This witness like Sovala Eti Tovale, stated under cross-examination that he was not certain that Faigata was a committee member of the Petitioner, but under re-examination he was certain.
    • Question: E le’i faapea atu foi Faigata a mea o ia e komiti iā Tafua, e lē sa’o lea?
    • Answer: O lea lava.
    • Question: O lou oe taumatemate a. O Faigata Alofa o se tasi o komiti a Tafua a?
    • Answer: O lea lava.
51. Under re-examination he was asked:
    • Question: Sa manino lau faalogo o le fesili lena?
    • Answer: O lea lava.
    • Question: O le a tonu la lau tali i le tagata lea e igoa iā Faigata Alofa?
    • Answer: O le komiti a Tafua.
52. Both Tiligi Sio and Sovala Eti Tovale are like coconut trees which bend whichever way the wind blows. The Court will not be persuaded by swinging coconut trees. In any event the witness however firm they may be under re-examination, neither of them could point to any fact or circumstances upon which they draw their conclusions as to agency.

Allegation 5.

53. It is alleged by Patelesio Tomafua that on Tuesday the 30^th March 2021 the Petitioner through his agent Faigata Alofa gave Patelesio a half sack of rice, a half box of chicken and $25. Faigata told him the items were from the Petitioner for the election.
54. Patelesio Tomafua told the Court that Faigata Alofa is the Petitioner’s committee member from Lotoipue village.
55. He knew Faigata Alofa was the Petitioner’s committee member within his village of Lotoipue.
56. When pressed under cross-examination how else, other than his personal belief, that Faigata was a member of the Petitioner’s committee, he responded:
    • “Ona o lea na ou vaai i ai iā Faigata Alofa o i ai i le fono a komiti a Tafua i le laoa a Tafua.”

This piece of evidence gets very close to identifying Faigata as a committee member for the Petitioner. Excessive unwarranted cross-examination can be fatal.

57. Tomafua, as the Court noted earlier is an unreliable witness. His demeanour was unimpressive. Despite credible evidence he continued to deny giving free fish to the voters after their names were checked against the electoral roll. He undoubtedly wanted to protect his master. Although he lives at Lotoipue, he told the Court he saw Faigata at the residence of the Petitioner at Saleaaumua.
58. In the circumstances the Court cannot accept that Faigata was the agent if he did give the food as alleged. The allegation is dismissed.

Allegation 6.

59. It is alleged that on the 29^th March 2021 a bag of rice and $100 was given to Simamao Patu by one Tafesilafa’i. She testified the, said Tafesilafa’i suggested to her to vote for the Petitioner who has the backing and support of the village. She thanked him for the food and money.
60. The testimony of the witness expressed two general propositions: Firstly, she was told by Tafesilafa’i that she and her family should vote for the Petitioner. Secondly, she was told that the Petitioner has the support of the village.
61. There was simply no suggestion that the food and money was from the Petitioner or given on behalf of the Petitioner. Significantly there is no suggestion Tafesilafa’i was the agent of the Petitioner. The allegation is dismissed.

Result.

62. The allegations in the counter petition are dismissed.

Conclusion.

(a) Thirteen (13) allegations of bribery and eight (8) allegations of treating against the Respondent are proven beyond reasonable doubt.
(b) Five (5) allegations of bribery, and five (5) allegations of treating against the Petitioner are dismissed.
(c) In view of our findings we declare the election of the Respondent void pursuant to section 116 of the Electoral Act 2019.
(d) The Respondent shall pay costs of $2000. The security for costs shall be refunded to the Petitioner.
(e) The Court will report to the Speaker pursuant to section 122 of the Electoral Act 2019.

JUSTICE TUATAGALOA
JUSTICE VAAI

^[1] See Petaia v Pa’u [2006] WSSC 1 (04 December 2006).

^[2] Kasimani v Seuala [2011] WSSC 87 (08 August 2011).

^[3] Spring CJ in Gagaifomauga No. 2 Territorial Constituency (1960-1969) WSLR 171 at 177.
^[4] Petaia v Pa’u [2006] WSSC 1 (04 December 2006).
^[5] Olaf & Ors v Chan Chui [2001] WSSC 18 (31 May 2001).