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Mua v Malolo [2021] WSSC 35 (16 July 2021)

IN THE SUPREME COURT OF SAMOA
Mua v Malolo [2021] WSSC 35 (16 July 2021)


Case name:
Mua v Malolo


Citation:


Decision date:
16 July 2021


Parties:
LOPAO’O NATANIELU MUA (Petitioner) and NIUAVA ETI MALOLO (Respondent)


Hearing date(s):
5, 6, 7 July 2021


File number(s):
MISC 102/21


Jurisdiction:
CIVIL


Place of delivery:
Supreme Court of Samoa, Mulinuu


Judge(s):
Chief Justice Satiu Simativa Perese
Justice Vui Clarence Nelson


On appeal from:


Order:
We accordingly conclude for the foregoing reasons as follows:
(i) None of the allegations in the Petition have been proven to the required standard of beyond reasonable doubt, all are therefore dismissed.
(ii) None of the allegations in the Counter-petition have been proven to the required standard, all allegations are likewise dismissed.
(iii) The Petitioners deposit of $2,000 is ordered to be forfeited as Court costs.
(iv) The Respondent will also pay $2,000 to the Court as costs for his dismissed Counter-petition, payable within 7 days hereof.
(v) There will be no other order as to costs.
(vi) We will issue our report to the Speaker as required by section 122 of the Act in due course.


Representation:
M. Leung-Wai & L. Sio-Ofoia for the Petitioner
T. Toailoa for the Respondent


Catchwords:
Corrupt practices – bribery – treating – election petition – counter petition


Words and phrases:
“void of election of candidate guilty of corrupt practice” – “illegal activities during period of election”


Legislation cited:
Electoral Act 2019, Part 14; ss. 94; 96(2)(a); 96(2)(b); 97(1)(a)(i); 97(1)(a)(ii); 97(1)(b)(ii); 100; 116.


Cases cited:
Ah Him v Seiuli [2021] WSSC 27 (18 June 2021);
Kasimani v Seuala [2011] WSSC 87 (8 August 2011);
Lufilufi v Hunt [2011] WSSC 49 (26 April 2011);
Petaia v Pa’u [2006] WSSC 1 (4 December 2006);
Posala v Su'a [2006] WSSC 29 (16 August 2006);
Pule Lameko v Muliagatele Vena [1970-1979];
Vui v Ah Chong [2006] WSSC 52 (26 September 2006).


Summary of decision:

MISC 102/21


IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU


IN THE MATTER:


of the Electoral Act 2019.


A N D:


IN THE MATTER:


of the Electoral Constituency of Vaisigano No. 1.


BETWEEN:


LOPAO’O NATANIELU MUA of Asau and Vaitele, a Candidate for Election.


Petitioner


A N D:


NIUAVA ETI MALOLO of Vaisala, Candidate for Election.


Respondent


Coram: Chief Justice Satiu Simativa Perese

Justice Vui Clarence Nelson

Counsel: M. Leung Wai and L. Sio-Ofoia for the Petitioner

T. Toailoa for the Respondent

Hearing: 5, 6, 7 July 2021


Judgment: 16 July 2021


JUDGMENT OF THE COURT

Background

  1. At the 2021 General Election for the Legislative Assembly of Samoa held on Friday 9 April 2021, the petitioner respondent and one other candidate competed to represent the electoral constituency of Vaisigano No. 1 comprised of the villages of Asau, Auala, Matavai, Utuloa and Vaisala in Savaii. On 16 April 2021 the Electoral Commissioner publicly notified the results as follows:

LOPAOO Natanielu Mua 541 votes
NIUAVA Eti L. Malolo 823 votes
TUIASAU Uelese Petaia 22 votes
Total number of valid votes 1,386
Informal Votes 12

Candidate declared to be elected – NIUAVA Eti L. Malolo

  1. The petitioner has brought this petition pursuant to Part 14 of the Electoral Act 2019 ("the Act") challenging the result, which names the successful candidate as respondent. The petitioner alleges the respondent is guilty of one count of bribery, one allegation of treating by way of the provision of transport to a voter to and from the polling booth at Auala, one allegation of treating by way of providing food for voters at his Vaisala home on election day, one count of treating by agency and a general allegation of treating occasioned through what has come to be known as the ‘FAST Roadshow’ held at Vaisala sometime in March 2021.

The Petition

  1. The petition particularises the allegations:
  2. The petitioner asserts these acts prove the respondent engaged in the corrupt practices of bribery and/or treating contrary to sections 94 and 96(2)(a), 96(2)(b), 97(1)(a)(i), 97(1)(a)(ii) and 97(1)(b)(ii) of the Act, and therefore pursuant to section 116 his election should be voided.

The Counter-Petition

  1. The respondent opposes the petition. He also wishes to advance a counter petition against the petitioner, which alleges corrupt practices purportedly carried out by the petitioner.
  2. The two allegations are:

The witnesses

  1. The petitioner called three witnesses in support of the petition - Aloa Mafaufau Malau, Lote Faaee and Avagatunu Kosena Masoe. The Petitioner himself gave evidence in relation to the counter-petition.
  2. The respondent called eight witnesses. Five gave rebuttal evidence against the petition – Faofua Lotu, Puleitu Leololo Asamu, Vaipuese Taulapapa, Sunetui Malolo and Taumalaulau Soliga. The other three testified in support of the counter petition – Leia Pelepesite, Fuapepe Sepeti and Tuleaga Letoa.
  3. Lefau Francis Ainuu provided an affidavit in his role as the Assistant Commissioner for the Registration Division of the Office of the Electoral Commission. His affidavit placed before the Court a hard copy of the electronic roll for the Vaisigano No.1 constituency, and the Public Notice of the Official Results of the general election held on 9 April 2021. The affidavit and its exhibits were admitted by consent.
  4. We begin with a discussion of the relevant legal principles.

Law

  1. The relevant parts of the Act are as follows;

(e) advances or pays or causes to be paid any money to or for the use of any other person with the intent that that money is to be expended in bribery at an election; or

(f) knowingly pays or causes to be paid any money to a person in discharge or repayment of any money wholly or in part spent on bribery at an election.
(3) For the purposes of this section:
(a) references to giving money includes references to giving, lending, agreeing to give or lend, offering, promising, or promising to obtain or endeavour to obtain, any money or valuable consideration;
(b) references to obtaining an office includes references to giving, procuring, agreeing to give or procure or to endeavour to procure, an office, place, or employment.
(4) Subsections (5) and (6) do not extend to any money paid or agreed to be paid for or on account of any legal expenses incurred in good faith at or for an election.
(5) A voter commits the offence of bribery if before or during an election he or she directly or indirectly, by himself or herself or by any other person on his or her behalf, receives, or agrees or contracts for, any money, gift, loan, or valuable consideration, office, place, or employment for himself or herself or for any other person for voting or agreeing to vote or for refraining or agreeing to refrain from voting.
(6) A person commits the offence of bribery if after an election he or she directly or indirectly, by himself or herself or by any other person on his or her behalf, receives any money or valuable consideration on account of a person having voted or refrained from voting or having induced any other person to vote or refrain from voting.
97. Treating:
(1) A person commits the offence of treating who in person or by any other person on that person’s behalf, either before, during, or after an election, directly or indirectly gives or provides, or pays wholly or in part:
(a) the expense of giving or providing any food, drink, entertainment, or provision to or for a person -
(i) for the purpose of corruptly influencing that person or any other person to vote or refrain from voting; or
(ii) for the purpose of corruptly procuring himself or herself to be elected; or
(iii) on account of that person or any other person having voted or refrained from voting, or being about to vote or refrain from voting; or
(b) transportation to and from -
(i) the Office of the Electoral Commission or any other place, of voters for the purpose of carrying out registration for such voters; or
(ii) a polling booth of a voter for the purpose of that voter casting his or her vote.
(2) A voter who corruptly accepts or takes any such food, drink, entertainment, or provision also commits the offence of treating.
116. Void of election of candidate guilty of corrupt practice:
The election of a candidate proven at the trial of an election petition to have been guilty of a corrupt practice at the election is void.”
  1. We respectfully consider that Petaia v Pa'u [2006] WSSC 1 (4 December 2006) correctly sets out the relevant legal principles:
  2. Further, in Lufilufi v Hunt [2011] WSSC 49 (26 April 2011) and Vui v Ah Chong [2006] WSSC 52 the Court cited with approval the commentary in Rogers on Elections (20th ed) at page 270, on the issue of a persons intent as follows:
  3. We consider that it is also important to note what this Court held in Posala v Sua:

The meaning of this observation was further discussed in Vui v Ah Chong in which Chief Justice Sapolu observed:

"I accept that in order to ascertain a person's intention one has to look at what he said and what he did in the circumstances of what took place. It is not physically possible to look into a person's mind to see what he was thinking at the time when he gave out money or valuable consideration to an elector or voter. So one looks at what he said and what he did and infer from that as a fact what his intention was at the time of the giving. Sometimes the impression given by what a person said may be inconsistent with what he did. It will be for the court to decide which of the two conveys the person's true intention.”
  1. The burden of proving each of the allegations lies 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] and subsequent decisions.

The petition evidence

  1. The first three allegations outlined in paragraphs 3(a), (b) and (c) above relies solely on the evidence of Aloa Malau. There is no dispute he was a qualified voter or that he voted at the Auala, Savaii polling booth on election day. He lives in Vaitele-fou and says he has lived in Upolu since 1997.
  2. His evidence was that in the evening of the Tuesday of election week (Tuesday 06 April 2021) Respondents committee member Puleitu Leololo Asamu (“Puleitu”) came to his house at Vaitele-fou and gave him the Respondent’s phone number saying to call him in Savaii for transport to the polling booth. Whether he called the Respondent or the Respondent called him is unclear but on election day he took the 6:00 am ferry to Savaii. He says that as arranged with the Respondent he was met at Salelologa wharf by other committee members and directed to a white van. Inside the van was a driver and committee member Faofua Lotu (“Faofua”), a sailor on the Lady Samoa, as well as a number of other people. In examination in chief he said the driver drove from Salelologa wharf but between Aopo and Asau, Faofua drove. He did not say who drove from Asau to Vaisala.
  3. On arrival at the polling booth at Vaisala he noted the long queue. He spoke to Puleitu and advised him of his desire to return to Upolu the same day. He says Puleitu agreed to take him in his white car to Auala to vote. On the way they called into the Respondents house at Vaisala. He was there invited by the Respondents wife Sunetui Malolo (“Sunetui”) to return and have a meal after voting as there would be a “fiafia” that evening. Alternatively he could stay the night at their “faletalimalo” and everyone would receive “pasese” for the return trip to Apia. He told her he wished to return to Apia that day as there was no-one looking after his house.
  4. He and Puleitu then continued their journey to Auala where he voted. After which they returned to Vaisala and had a “heavy meal” at the Respondents house. Following which the Respondent arrived and drove him and others back to Salelologa in his white pickup. At the Jet Over Inn at Salelologa he gave him a $50 “pasese” and he caught the 4:00 pm ferry back to Upolu.
  5. We have many difficulties with this witnesses testimony. First the evidence that he was visited at his Vaitele-fou house on the evening of Tuesday 06 April 2021 by Puleitu is not in his sworn affidavit neither is there any reference therein to him speaking to the Respondent about transportation arrangements in Savaii. These are significant omissions which he could not satisfactorily explain.
  6. Second if as he says he was in such a hurry to vote and return to Apia, why was there so much backtracking in his movements on the day in question? He says the white van from Salelologa carrying him and the others, presumably also voters, continued through Asau to Vaisala driven from Asau by we do not know whom. They therefore would have bypassed the polling booths at both Asau and Auala as Vaisala is furthest away from Asau. Without stopping to vote. Furthermore, if his priority was to return to Apia after voting at Auala, why travel in the opposite direction to Vaisala? He seems to have been engaged in alot of unnecessary movement passengering in at least three different vehicles on the day - the white van, Puleitus white car and the Respondents white pickup. Seems to us he was a man on a mission and voting was merely a means to an end.
  7. Third, his overall credibility was unconvincing. As for example when in cross examination he was questioned about leaving the voting queue at Vaisala. From the transcript page 13 of his evidence:
  8. There were no witnesses called by the Petitioner to corroborate or in support of Aloas evidence. The people he says he spoke to were called by the Respondent and they all gave different testimony to that of Aloa. Puleitu disputed various parts of his evidence as did Faofua who said it was he who arranged for the white van to come to Salelologa. He said that because he wanted to cast his vote first and then work on the 2:00 pm sailing, he rang his uncle in Auala. His uncle accordingly picked him up together with his relatives Faalua and Saito from Salelologa wharf. He says they gave Aloa a lift because they knew him and felt sorry for him as there were no buses running, it being a public holiday. He stayed at Vaisala and caught a further lift with Puleitu and Aloa to Auala to vote where the queue was not as long. They returned later to Vaisala where he met Aloa and the following exchange occurred:
  9. Neither Puleitu who was driving or Faofua who was a passenger mentioned anything about stopping off at the Respondents home at Vaisala and having a conversation with the Respondents wife as claimed by Aloa. Suitupe in her evidence also denied having such a conversation with Aloa.
  10. Faofua also denied he was a committee member for the Respondent explaining that he was far too busy with his duties as a sailor and –
  11. These are significant contradictions of Aloa’s evidence.
  12. The onus of proving an allegation rests on the Petitioner and the standard required is proof beyond reasonable doubt. The preponderance of evidence being against Aloa, we are not satisfied the first three allegations have been proven to the required standard.
  13. We deal next with the allegation outlined in paragraph 3(e) above concerning voter Lote Faaee (“Lote”). In support the Petitioner called only Lote. She is from Asau but resides at Leauvaa-tai. She said she was given the Respondents cell number by a relative and told she would get a “pasese” to Savaii from him. She rang the Respondent and arranged to meet him at Vasatis petrol station at Salelologa on Wednesday 7th April. At Mulifanua wharf that morning she was given a ferry ticket by an Asau lady named “Vai” who resides at Vaitele. On arrival at Salelologa she rang the Respondent and was told to take a taxi to Vasatis. At the petrol station she tried to pay the taxi-driver but he refused to accept any money. She was then called over to a white van by a man she did not know and told to get in. She did together with a number of others. The Respondent and Vai then pulled up in a pickup and the entourage proceeded to Auala. Conversations inside the van with people she did not know related to her voting for the Respondent. She received a bottle of water and some cake during the ride and was dropped off at Asau. Where she voted. She stayed in Savaii for the weekend returning to Upolu on the Monday.
  14. We found this a most extraordinary tale. As the witness admitted she did not know the Respondent, she is asking the Court to believe her travel from Leauvaa in Upolu to Asau in Savaii to vote was facilitated by people she did not know and undertaken in the company of other people she did not know. And despite the promise of a “pasese” she settled for a bottle of water and some cake, there being no evidence she was compensated for any of her bus fares (Leauvaa to Mulifanua, Asau to Salelologa, Mulifanua back to Leauvaa) or her return ferry ticket or any other expenses.
  15. Her evidence was unsupported by any other evidence and was contradicted by the witness Vaipuese Taulapapa of Vaitele-fou (“Vai”). She said in cross-examination she knows Lote because her husband is also from Asau and she never saw Lote either at the Mulifanua wharf or at Vasatis. She also strenuously denied providing her with a ferry ticket. She accepts she travelled to Savaii on Wednesday 07 April as she votes in the Salega electoral constituency. She hitched a ride with the Respondents wife Sunetui as they are friends and live on the same street at Vaitele. Their ferry tickets were provided by her daughter Ivapene who accompanied her. At Salelologa she rode in a vehicle driven by the Respondents son Amosa while the Respondent and his wife left in their white pickup. They all stopped at Vasatis probably for petrol and to discuss who would drop them off. Amosa did so at Samata before proceeding on to Vaisala. She did not see Lote at any time. The evidence of Sunetui was also to the same effect, viz no Lote to be seen anywhere. She also confirms Ivapene bought their ferry tickets.
  16. It also appears Lote is related to the Petitioner. Her evidence in answer to the courts questions was that she was initially contacted in this matter by a relative of her father who holds or is connected to the ‘Lopao’o’ title. Her answers suggested he is related to her father but not to her. Ridiculous.
  17. We have little difficulty rejecting Lotes evidence. It is simply not credible and flies in the face of the evidence of both Sunetui and Vaipuese, whom we found a most believable witness notwithstanding her connection to the Respondent through his wife.
  18. This allegation is not proven to any extent let alone beyond reasonable doubt.
  19. We turn now to the allegation involving the Roadshow at Vaisala in March 2021 as detailed in paragraph 3(d) above. The evidence on this issue surprisingly comes from only one witness Avagatunu Kosena (“Avagatunu”) a matai from Asau despite indications that there were a myriad of people present. Given the content of his evidence and the cultural issues it raises, why the to’oto’o of the Itumalo for the occasion said by him to be Alaelua Tofisala of Vaisala or possibly other orators were not called is a mystery. Avagatunu said Alaelua is not travelling and does not know why he was not subpoenaed to testify.
  20. Avagatunu’s evidence was the $3,000 presented by the Roadshow to the Itumalo was bribery because it was presented prematurely, i.e. before the traditional presentations of “sua”. Had it been in response to the presentation of “sua” there would in his opinion have been no difficulty as that would be in accordance with the customary practice of “tali faaaloalo.”
  21. The difficulty with Avagatunu’s evidence is that it is unsupported by any other witness and it is contradicted by the evidence of the Respondents witness Taumalaulu Soliga (“Taumalaulu”). Taumalaulu is a Vaisala matai but lives in Falelauniu. She deposes to also being present on the day as part of the FAST party Roadshow. She is a cousin of the Respondent.
  22. She gives a totally different account and says the sequence of events was as follows: first and foremost, as per usual, was the “lotu” followed in accordance with custom and tradition by the ‘ava’ ceremony. This was followed by the “faalauiloa” by FAST and an opportunity was given to those present for questions arising therefrom. When this was completed the Itumalo engaged in the traditional “suas”, in this case a substantial number as sua were presented not only for the FAST party but also individual office-holders being the Leader and Deputy Leader. All sua were accompanied by “pasese” and even Avagatunu agreed that the value of the suas alone would have been in excess of $3,000. In cross-examination Avagatunu mentioned the figure of $6,000.
  23. In reciprocation Taumalaulu says the FAST then presented envelopes for the ava, the Komiti that prepared where the Roadshow was held plus the $3,000 meaalofa. Food was the concluding item.
  24. The other difficulty with Avagatunu’s evidence is he purported in oral evidence to add something totally new. He said towards the end of his examination in chief that when the $3,000 was presented the orator also said “Paloka mo le FAST”. This is not contained in his submitted sworn affidavit. When asked to explain this omission he seemed to put the blame on counsel who prepared his affidavit. It is a crucial additional piece of evidence.
  25. We have no hesitation in rejecting this part of his evidence. The matter of clearly articulating what is alleged to have been said which amounts to bribery, is critical in an affidavit submitted in an election petition trial in support of a bribery allegation. To produce such an incriminating piece of evidence for the first time at trial is trial by ambush and is in breach of a party’s Constitutional right to a fair trial guaranteed by article 9 of the Constitution. No question that if the witness had mentioned it, Petitioners counsel would have included it in the affidavit. It is not there because he did not mention it, he did not mention it because it is a recent fabrication.
  26. This casts substantial doubt on the veracity of his entire testimony which in any event is contradicted, notwithstanding by a cousin of the Respondent.
  27. We are also of the view that if events had unfolded as stated by Avagatunu this would amount to a breach of protocol and custom. We doubt that this would have been allowed by the matai participants on the day on either side to occur.
  28. We are not satisfied the evidence of the sole witness called by the Petitioner on this issue is reliable. We have much reasonable doubt as to its accuracy. This allegation is also not proven to the required standard.
  29. Although not touched upon by counsel we have also considered whether the Roadshow breached the requirements of section 100 of the Act which provides:
  30. For these purposes we take judicial notice that 09 March 2021 was the day the Electoral Commissioner gave public notice that Friday 09 April 2021 was election day. The “period of election” wherein the giving of money food or other valuable thing unless at a funeral is prohibited, ran from 10 March 2021 to 6:00 pm 09 April 2021 being essentially the one month before election day. If the FAST Roadshow at Vaisala was shown to have been undertaken during this period, it would render it liable to being found to amount to an illegal activity.
  31. We accordingly carefully scrutinised the evidence in this regard. We found that while all witnesses agreed it was held as Avagatunu deposed sometime “in the month of March 2021”, no-one was able to say when in March it occurred. There was also evidence from Taumalaulu that it occurred earlier in the year (“amataga o le tausaga”). We know from other cases that the FAST Roadshows in Savaii were held early in 2021.
  32. In the circumstances we are not satisfied beyond reasonable doubt that the Roadshow at Vaisala was held within the prescribed prohibited period in terms of section 100 of the Electoral Act and accordingly find there is insufficient evidence that it could amount to an illegal activity rendering the Respondent guilty of committing an illegal practice.

The Counter-petition

  1. The two Counter-petition allegations are particularised in paragraph 6 above. The first involves the $50 allegedly given to Fuapepe Sepeti (“Fuapepe”) a voter from Auala who works as an engineer on the Lady Samoa III. She says that on the 6:00 am crossing Salelologa to Mulifanua on Wednesday 07 April 2021 she was sent to turn on the Business Class air conditioning. While there she noticed the Petitioner and another minister seated in Business Class. She remembered the absence of pre-polling forms for staff of the Lady Samoa III and so questioned the Petitioner on the matter. In the course of their conversation the issue of where she voted was raised leading to the Petitioner giving her $50 for a “fagu igu”. The Petitioner also gave the Business Class waitress some money for a bowl of saimin noodles. She claims this is the first time the Petitioner has given her money as she does not know him.
  2. The oral evidence of this witness contradicts her sworn affidavit submitted to the court. There she says she was essentially passing by the Business Class lounge on her way to the engine room when she poked her head in and saw the Petitioner and his fellow minister. That was when she remembered the issue of the pre-polling forms. No mention of being instructed and sent to turn on the Business Class air conditioning and hard to understand why an engineer would be required for flipping a switch/pressing a button.
  3. There are also significant differences between her evidence and that of the Business Class waitress Tuleaga Letoa (“Tuleaga”) who was called by the Respondent. This witness said what she heard was the $50 was a “pasese” and she denied expressing disappointment to Fuapepe that Fuapepe had taken her “tip”. She said she is usually tipped by the Petitioner with the change from purchase of noodles but on this day, no tip as the Petitioner gave the money to Fuapepe.
  4. Fuapepes evidence also conflicts with that of Leia Pelepesite (“Leia”) another engineer on the Lady. He said the pre-polling forms for the crew were received in good time. He seemed to think it was 01 April 2021 which accords with the pre-polling dates set by the Electoral Commissioner.
  5. These problems with the evidence of Fuapepe means we cannot safely rely on her testimony.
  6. The Petitioner naturally denied there was any corrupt intent behind the giving of the $50. He says he is generous by nature and gives money to people on many occasions, at shops restaurants and other venues, not only to the crew of the Lady Samoa. Although he appears to favour the crew in particular those serving in Business Class because he is a frequent traveler on the Lady. He styles himself a “blind giver” who is motivated by a genuine desire to help people less fortunate than him. He says he has been doing this for a long time even before he became a Member of Parliament. Tuleaga confirmed the Respondent always “tipped” and has a reputation for being “generous”.
  7. However noble his motives may be, it is in our view a dangerous practice for a political figure. Especially one holding the high office of Minister of State. Such acts of “generosity” can easily be interpreted to be simply another form of campaigning for political purposes using money as a lure to attract voters. Although his evidence on the instance testified to by Fuapepe and Tuleaga was confusing and at times contradictory, we are in reasonable doubt as to whether he had the necessary corrupt intent. It is a marginal call which we have decided to resolve in his favour.
  8. But this is not to say the court condones such a practice. Because the spectre of politicians particularly Ministers of State freely passing money around as “tips” is not something to be encouraged and can operate adversely against the concept of free and fair electoral practices and elections.
  9. Based on the evidence adduced, we find that the first of the two allegations in this matter has not been proven to the required standard.
  10. As to the second allegation, Leias evidence is that on the 6:00 am sailing Salelologa to Mulifanua on Saturday 03 April 2021 he was sent to turn on the Business Class air conditioning. He met the Petitioner who asked where he was from. He told him Vaisala and in examination-in-chief he said “sa ou vaaia lava le laufofoga fiafia o le toeaina ina ua ou tali atu iai ou te sau mai Vaisala”. His further evidence was after discussing the elections the Petitioner gave him $50 for a “fagu inu”. This was the first time he had met the Petitioner although he has seen him before most probably on previous trips.
  11. In fact Leia who is a Samoan born 24 year old from Vaisala is not a voter in the Vaisigano No. 1 electoral constituency, he is registered in Sagaga No. 3. The Respondent argues however that makes no difference. As explained in cases such as Kasimani v Seuala [2011] WSSC 87 and recently in Ah Him v Seiuli [2021] WSSC 27:

“Section 2, Electoral Act 2019 defines “voter” as a person who qualifies as such under section 14. Section 14 then prescribes the qualifications as someone who has not been disqualified under s17 or 24 and is 21 years of age or above and a Samoan citizen. Section 96 on bribery provides that ‘voter’ includes a person who has or claims the right to vote.

  1. In Kasimani v Seuala [2011] WSSC 87 (8 August 2011), the Court referred to Parker’s Law and Conduct of Elections (2007) Vol 1, para 20.4 where the learned authors state in relation to The Representation of the People Act 1983 (UK) which governs parliamentary elections in England, as follows:
  2. The Court held that although a person who received a bribe was not qualified to be an ‘elector’ for the constituency in terms of s16(2)(b) of the Electoral Act 1963, he was an ‘elector’ in terms of s2 and of s96(1) and therefore capable of being bribed.”
  3. Bribery can therefore also occur in respect of a person registered to vote in another electoral constituency, the key element being his capacity to be registered as a “voter” in any electoral constituency. On this basis we are satisfied Leia was a person capable of being bribed.
  4. As with the last allegation the essential question is whether the money given to Leia was given with the corrupt intent to bribe, we being satisfied that money was indeed given by the Petitioner to Leia. As with the first allegation we are left in reasonable doubt notwithstanding the poor quality of the Petitioners evidence on the witness stand. It is reasonably possible the Petitioner was engaging in his usual activity of being a “blind giver” although we do wonder exactly how blind he was. The law is the benefit of any reasonable doubt is to be given to the incriminated party which we so do.
  5. The second allegation is accordingly not proven to our satisfaction to the requisite degree.

Decision

  1. We accordingly conclude for the foregoing reasons as follows:

CHIEF JUSTICE PERESE
JUSTICE NELSON

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