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Timani v Vaai [2023] WSSC 20 (12 May 2023)

IN THE SUPREME COURT OF SAMOA
Timani v Vaai [2023] WSSC 20 (12 May 2023)


Case name:
Timani v Vaai


Citation:


Decision date:
12 May 2023


Parties:
SAMAU LEATIGAGAEONO SOLITAMALII TIMANU, (Petitioner) & LAUTIMUIA UELESE VAAI (Respondent)


Hearing date(s):
18th, 19th & 20th April 2023


File number(s):
MISC 98/21


Jurisdiction:
CIVIL


Place of delivery:
Supreme Court of Samoa, Mulinuu


Judge(s):
Senior Justice Vui Clarence Nelson
Justice Leiataualesa Daryl Clarke


On appeal from:


Order:
The petition is dismissed in its entirety as the allegations for the reasons outlined have not been proved beyond reasonable doubt.

The counter petition is also dismissed in its entirety as the allegations have not been proved beyond a reasonable doubt.

In the circumstances, any deposits paid by the parties to be forfeited as court costs and each party to bear the remainder of their own costs.


Representation:
F.S. Ainuu for the Petitioner
L.A.F. Lagaaia for the Respondent


Catchwords:
Electoral petition – electoral counter-petition – bribery – treating – corrupt practices.


Words and phrases:


Legislation cited:
Electoral Act 2019, ss. 94; 96; 96(2)(a)(c); 97; 97(1)(a)(i); 107; 108; 108(1);116; 122(2).


Cases cited:
Attorney General v Tavui [2014] WSCA 3 (2 May 2014);
Lufilufi v Hunt [2011] WSSC 49 (26 April 2011);
Petaia v Pa'u [2006] WSSC 1 (4 December 2006);
re Election Petition Safata Territorial Constituency, Pule Lameko v Muliagatele Vena [1970-1979];
Tafili v Peto [2021] WSSC 30 (25 June 2021);
Vui v Ah Chong [2006] WSSC 52.


Summary of decision:

MISC 98/21


IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU


IN THE MATTER:


of the Electoral Act 2019.


A N D:


IN THE MATTER:


Concerning the Electoral Constituency of Vaimauga No.3


BETWEEN:


SAMAU LEATIGAGAEONO SOLITAMALII TIMANI, a candidate for the Constituency of Vaimauga No. 3


Petitioner


A N D:


LAUTIMUIA UELESE VAAI, a candidate for the Constituency of Vaimauga No. 3.


Respondent


Coram: Senior Justice Vui Clarence Nelson
Justice Leiataualesā Daryl Clarke


Counsel: F.S. Ainuu for the Petitioner
L.A.F. Lagaaia for the Respondent


Hearing: 18, 19 & 20 April 2023
Submissions: 21 April 2023
Judgment: 12 May 2023


JUDGMENT OF THE COURT

Background

  1. The Petitioner and Respondent were candidates for election in the By-Election held on Friday 24th February 2023 for a member to represent the Electoral Constituency of Vaimauga No. 3 in Parliament. The Constituency comprises the villages and surrounding geographical areas of Afiamalu, Avele, Faatoia, Lelata, Leone, Letava, Maagao, Magiagi, Magiagi-tai, Malololelei, Matautu-tai, Matautu-uta, Nafanua, Papaloloa, Papauta, Tanugamanono, Tanumaleko, Tiapapata, Tiavi, Vailima, Vaisigano, Vaoala, and Vini.
  2. There was no evidence led on who the candidates were for the by-election or when the Electoral Commissioner publically notified the results of the by-election. There however is no dispute between the Petitioner and the Respondent that for this by-election, the Petitioner and Respondent were each candidates for election and secured the following votes:
  3. The Petitioner has brought this petition pursuant to Part 14 of the Electoral Act 2019 (“the Act”) challenging the result. The Petitioner alleges the Respondent is guilty of the corrupt practices of bribery and treating pursuant to sections 94, 96 & 97 of the Act. There is no dispute that the Petitioner is eligible to present an election petition pursuant to sections 107 & 108 of the Act.

The petition

  1. The Petitioner called two witnesses in support of his Petition. The allegations are that:
  2. The Petitioner asserts these acts prove the Respondent engaged in the corrupt practices of bribery and treating by influence in violation of sections 94, 96 and 97 of the Act. Accordingly, that the Respondent be declared and reported as having committed corrupt practices; be disqualified from contesting in any ensuing election; and his election should be voided.

The Counter Petition

  1. The Respondent opposes the petition and brings a counter petition. The Respondent called three witnesses in support of the counter petition. In the well pleaded counter petition, the Respondent alleges bribery and treating on the part of the Petitioner as follows:
  2. The Respondent argues that the Petitioner should be declared and reported as having committed corrupt practices and be disqualified from contesting any ensuing by-election. Further, that Lealaipule Rimoni Aiafi, a Member of Parliament, be declared and reported as having committed corrupt practices.
  3. It was not clear whether Mr Aiafi, M.P. had been given notice of the Respondents allegation against him as required by section 122(2) of the Act. Efforts to join him as a party had earlier been declined by the Court as Aiafi had not participated as a candidate for the Vaimauga 3 Electoral Constituency and did not therefore fulfil the requirements of section 108(1) of the Act as to who may bring a petition. In any event, in view of our findings, the matter became moot.

Law

  1. The relevant parts of the Act are as follows;
  2. As stated in Tafili v Peto [2021] WSSC 30 (25 June 2021), Petaia v Pa'u [2006] WSSC 1 (4 December 2006) accurately sets out the current state of the law as follows:
  3. In Rogers on Elections (20th ed) at page 270 cited with approval in Lufilufi v Hunt [2011] WSSC 49 (26 April 2011), Vui v Ah Chong [2006] WSSC 52 and Tafili v Peto on the question of a person’s intent:
  4. When considering the question of intent, it is important to bear in mind what the Court held in Posala v Sua that:
  5. In Vui v Ah Chong, Chief Justice Sapolu added to this point that:
  6. 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]; applied and followed in many subsequent decisions of this court.

Discussion

Petition: The FAST Roadshow at Magiagi

  1. Much of the evidence concerning the FAST Roadshow, the subject of the Petitioner’s complaint, is not in dispute. We find particularly helpful the YouTube Video, exhibit P2 tendered by consent, of the events of that day (https://www.youtube.com/watch?v=legkgM1-jVc). A picture is indeed worth a thousand words, or as the celebrated Chinese philosopher Confucius noted - “hearing something a hundred times is not better than seeing it once”. We emphasise that the value and usefulness of authentic, good quality video evidence in any trial cannot be over-stated.

The $5000.00 Presentation to the Itumalo

  1. On the afternoon of Friday 20th February 2023 at approximately 5.00pm, a “Roadshow” was held by the FAST party at the EFKS Hall, Magiagi. At the Roadshow, Mama Anisi Christian Tua (Mama) conceded that many of the people present were voters from within the Constituency (transcript, p. 72). An introductory statement, opening prayer, hymns, sermons and campaign speeches were conducted. Speeches were given by party leaders Fiame Naomi Mata’afa and La’auli Leuatea Polotaivao Fosi. The Respondent followed with his speech and the floor was declared open for questions.
  2. After the open discussions, an ‘ava oso’ was initiated and conducted by the Itumalo for the visitors through their chosen to’oto’o, Mataipule Faaniniva Tupu. Immediately preceding the formal conduct of the ‘ava oso’, Mataipule made it clear and respectfully that he spoke for the Itumalo. The usual lauga and tugase was presented to the visitors followed by the faaaloaloga or customary presentations as follows, as described by Mama Anisi Tua (exhibit R6) and shown on the YouTube video (exhibit P2, starting at 1.31.00):
  3. In return, the FAST party responded through Vaaaoao Alofipo thanking the Constituency, village and faifeau and in customary reciprocation, gave:
  4. Following the presentation by Vaaaoao, Mataipule stood up and presented a small monetary gift to Vaaaoao and wished the gathering well and informed those present that food had been prepared before they break-up (YouTube: 1.55.25).
  5. We accept the evidence that the $5,000 monetary gift to the Constituency by FAST was given to the Constituency’s Women’s Committee Representative, Punaoalii Fetulima Kopelano and was not distributed until after the by-election (see for example exhibit R1 paragraph 11 and exhibit R2 paragraph 15; evidence Mataipule, transcript p. 84; evidence Siligatusa Galuva’a Poiva, transcript p.91). According to Punaoalii, the monetary gift was distributed to the Constituency as a whole “Sa tufa i le Itumalo ma i latou uma sa iai alo ma fanau ma taulele’a, tina o le nuu o le Itumalo sa’o ile aso lea.” (transcript p. 77).
  6. The evidence shows that some of the voters present received money from the gift from the FAST Party. This included:

The Allegations of Treating

  1. The allegations of treating centre around the food and drinks that were served at the end of the Roadshow and the faaaloaloga. The evidence for the Petitioner is that refreshments were served by the Respondent’s family because the house next to the EFKS Hall where the Roadshow was being held belonged to the Respondent’s family (exhibit P1, paragraph 13; exhibit P2 paragraph 8).
  2. In her affidavit tendered into evidence and unchallenged in cross-examination, Punaoalii explains that the preparations for the Roadshow at the maota at Magiagi was carried out by the Constituency (exhibit R2, paragraph 6). She also said that the food and drink was prepared and paid for by the Constituency and the reason why the Respondent’s family’s home was used to prepare the food was because it was next door to the Hall where the Roadshow was to be conducted.
  3. In his affidavit, Fuata Isaia Fereti said that the Respondent and FAST played no role in the Constituency’s preparations for the Roadshow (exhibit R4, paragraph 5). He also added that the preparations of the Hall and the refreshments for the Roadshow were carried out by the EFKS faifeau and youth.

No Case Submission

  1. At the close of the Petitioner’s case, the Respondent made a no case to answer submission. At the end of submissions from counsel, the Court ruled that there is a case for the Respondent to answer on the allegation of bribery. We however found that there is no case for the Respondent to answer on the allegations of treating and accordingly dismissed the treating allegations. We now give our reasons for our ruling.
  2. The law on a no case to answer submission is well settled. The law is succinctly set out by the Court of Appeal in Attorney General v Tavui [2014] WSCA 3 (2 May 2014) stating:
  3. On the allegations of bribery against the Respondent, there was clear evidence by witnesses for the Petitioner, uncontested during cross-examination, that on Friday 17th February 2023, the FAST Party conducted a “Roadshow” at the EFKS Hall, Magiagi. Over 200 people were present (transcript, p. 21). At the end of the Roadshow and speeches including from the Prime Minister, Chairman of FAST and the Respondent, an ava oso was carried out followed by a faaaloaloga by the Constituency. Cultural gifts were presented to the Prime Minister, Speaker of the Legislative Assembly, Deputy Prime Minister, Chairman of the FAST Party, the FAST Party and Cabinet Ministers (transcript, p. 26). As part of this gift-giving process, $5,000.00 was presented in return by FAST to the Constituency. There was no dispute that FAST acted at all material times as the agent for their candidate the Respondent.
  4. We are satisfied that a reasonable tribunal in these circumstances one week from a by-election might convict the Respondent on the charge of bribery. While we accept that there was no direct evidence that a specified voter had received any part of the $5,000.00, a reasonable inference open to the trier of fact is that the gift of $5,000.00 at a FAST campaign one week out from a by- election in the Constituency with over 200 people present was for the voters of the Constituency. Accordingly, we declined to dismiss this allegation.
  5. On the allegations of treating however, we were not satisfied that the evidence was such that a reasonable tribunal might convict the Respondent. In her evidence, Theresa Coffin said that for the preparations for the FAST Roadshow (transcript, p.15):
  6. In cross-examination, Theresa Coffin re-affirmed her answer in examination in-chief that she did not know where the food had been prepared (transcript, p. 31). She also stated that (transcript p. 91):
  7. In her evidence, the other witness for the Petitioner Sarona Lefu accepted that the Roadshow was being hosted by the EFKS, Magiagi (transcript, p. 39). She said that the food for the Roadshow had been brought from a house of the Respondent’s family next to the EFKS Hall (transcript p. 37). She however did not give any evidence of who or where the food had been prepared.
  8. All that could be said on the evidence before us at that stage was that the refreshments had been brought from the house of a family member of the Respondent that was adjacent to the EFKS Hall, Magiagi. There is no evidence that the food had been prepared by or on behalf of the Respondent or FAST. It was also accepted by Sarona that the host for the FAST Roadshow was the Magiagi EFKS. In those circumstances, we were not satisfied that a reasonable tribunal might find the allegations of treating against the Respondent proven. The allegations were accordingly dismissed.

Presentation of $5000.00

  1. The question for determination in this case is whether the Petitioner has proven beyond a reasonable doubt that the Respondent intended to induce the voters to vote other than in accordance with their conscience, or gave money with the intention of influencing the election, either generally, as by acquiring popularity, or with the intention of influencing a particular voter to vote or refrain from voting. Not only must the subjective intent of the Respondent be corrupt but the methods employed must also be corrupt.
  2. There is no question that the FAST Party at the Roadshow on the 17th February 2023 one week prior to the by-election presented $5,000.00 to the Constituency. However and most significantly, the $5,000.00 was given in response (‘tali faaaloalo’) to an ‘ava oso’ and substantial presentations from the Constituency. This is an accepted cultural practice as is an ‘ava oso’ for visitors. It is also notable that the customary processes at issue were initiated by the hosts of the occasion.
  3. The amount given by FAST to ‘tali faaaloalo’ is also relevant. The Constituency presented to the Prime Minister, Speaker of the Legislative Assembly, Deputy Prime Minister, Cabinet Ministers, Chairman of FAST and the FAST Party in total the sum of $7,000.00, plus large fine mats and other gifts of value. In response, FAST gave the Constituency $5,000.00. FAST gave substantially less than FAST and its members received in money, fine mats and gifts. There was evidence that they had to resort to the $7,000 cash given to make up their $5,000. To fail to reciprocate would be an affront to customary etiquette and a huge public embarrassment for the Party. The suggestion that FAST had some other option available is unrealistic and inconsistent with our tu and aga faa-Samoa. The amount presented was not excessive in the circumstances.
  4. We are not satisfied that the $5,000.00 presented was with the corrupt intention of inducing voters nor are we satisfied that the method employed was corrupt.
  5. This allegation has not been proved beyond reasonable doubt.

Counter Petition

  1. The Counter petition alleges two incidences of bribery as detailed in paragraph 6 above and two allegations of treating arising from the one event. The Respondent called four witnesses in support of his counter petition.
  2. We will discuss the evidence and make findings in relation to each allegation.

$100 cash to Talia Laloata Baker and Masaga Kennech

  1. The Respondent’s evidence for the counter-petition is that on the morning of Monday the 20th February 2023, the week of the by-election, one Talia Laloata Baker (“Talia”) and his good mate Masaga Kennech (“Masaga”), were “shopping” at Punaoalii Fetulima Kopelani’s (“Punaoalii”) shop at Magiagi. Punaoalii received a phone call from the Petitioner which she put on her phone speaker. The Petitioner spoke to her about the election and asked her to keep a look out for people in their family and village to support him. The Petitioner told her that “a iai ni tagata e fia feiloai mai e maua a’u ile fale.” (exhibit R7, paragraph 6)
  2. Talia and Masaga overheard the conversation and Talia asked to speak to the Petitioner. Talia then told the Petitioner that “ua leva na ou faalogo ia te oe, ae oute lei vaai i lau susuga Samau.” (exhibit R7, paragraph 6) The Petitioner then said to them come to his house at Vaivase and Talia and Masaga left.
  3. At the Petitioner’s house at Vaivase-tai, the Petitioner was at home with his wife. Not long after, Lealaipule Rimoni Aiafi (“Aiafi”) arrived with Fepuleai Atila Ropati. Aiafi joined them seated on the Petitioner’s veranda. The Petitioner then motioned (‘fegegoai’) to Aiafi (evidence Talia, transcript, p. 118) and according to Masaga, asked Aiafi “pe iai sau mea iina mo nai toeaiina ia” (transcript, p. 110) Aiafi then went into the house, returned and gave both Talia and Masaga a $100.00 note each.
  4. The evidence for the Petitioner in response to the counter-petition was that the meeting occurred not on the Monday but on Thursday 23rd February 2023. The Petitioner had called Punaoalii concerning differences within their family following pre-polling the day before. During the course of the discussion, Punaoalii gave the phone to the two taulelea (Talia and Kennech). He did not ask them to come to his house but he was surprised when they arrived and that they said they had been told by Punoalii to come. They introduced themselves as Magasa Kennech and Laloata Baker. Not long after, Aiafi arrived and it began to rain. As the Petitioner and Aiafi had matters to talk about, they said their farewells. Due to the rain, Aiafi drove them to a nearby taxi stand. Aiafi’s evidence is he did not at any time give either Masaga or Talia $100.00.
  5. It is possible that in the week running up to the by-election, the Petitioner invited potential voters Talia and Masaga to his home and $100.00 was given to them both as alleged. However, we must be satisfied beyond a reasonable doubt that the events as alleged occurred. We are not so satisfied after hearing the evidence of Talia and Masaga. These two gentlemen were reminiscent of characters from the famous Hollywood movie ‘The Blues Brothers’.
  6. We found Talia in particular, but also Masaga to both be unconvincing and not credible witnesses. We found Talia tried to tailor his evidence in an effort to advance his credibility. He denied that he had said to the Petitioner and Aiafi words to the effect that “o a’u lea na tu ai ma malo ai Tapunuu Niko, e $3,000.00 la’u tupe na maua ai” (transcript, p. 120). However, both Aiafi (transcript p. 165) and Masaga (transcript, p. 112) contradict that evidence.
  7. Both Talia and Masaga in their affidavits exhibits R9 and R8 also amended, according to them independently, paragraph 8 of their affidavits after signing it, changing the description of Aiafis vehicle from “pikiapu” to “4 door”. According to Talia, the correction was made three weeks after signing. We are satisfied that the witnesses colluded in terms of at least some of the evidence they would give, undermining their credibility and reliability as witnesses.
  8. We found the evidence of the Petitioner and Aiafi unwavering and largely consistent. We are not satisfied beyond a reasonable doubt that $100.00 was paid by Aiafi to Talia and Kennech as alleged. These allegations have not been proven beyond a reasonable doubt.

$500.00 Pasese at Petesa Hall

  1. The final allegations of bribery and treating relate to the single incident at the Petesa Hall, Mulinuu on the 2nd February 2023. Much of the evidence is not in dispute. On the 2nd February 2023, the matai of Matautu took the Petitioner to the HRPP Headquarters at Petesa Hall and presented him as their candidate for election seeking HRPP endorsement. Vaea Kalepo Pupualii (“Vaea”) acted as their spokesperson. The Petitioner sat with the village (transcript, p. 134). No ava of any kind was conducted. Following the presentation, a lafo was given to Vaea and the HRPP responded with $500.00 ‘pasese’ as their faaaloaloga to the Matautu matai. They were also informed that food had been prepared for their gathering. We accept that the food had been prepared by the HRPP.
  2. The ‘pasese’ was divided at the Petesa Hall. The amount of $50.00 was given to the senior matais and $20.00 to the junior matais. Pio Tuaimalo, a voter in the Constituency received $20.00.
  3. We are satisfied that there is nothing in these allegations. At the time of the presentation of the Petitioner to the HRPP and the giving of $500.00 pasese to the matai of Matautu who accompanied him, the Petitioner was not a candidate for election for the HRPP. He was being presented as Matautu’s proposed sui for election and was seeking HRPP endorsement. Formalities were carried out as part of the presentation of the Petitioner to the HRPP. At the conclusion of that presentation, the hosts, the HRPP reciprocated the presentation by the nuu with pasese of $500.00. This is in accordance with Samoan customary courtesies. The Respondent’s own witness Pio Tuaimalo accepted this (transcript, p. 134):
  4. It also seems somewhat absurd that when the matai of Matautu present their candidate seeking HRPP endorsement, that the HRPP through Fuimaono Atifale Te’o would attempt to bribe them with $500.00 pasese to support their own candidate. That is because the only reasonable inference is that those presenting the Petitioner already supported his candidacy and do not need to be bribed to vote for him.
  5. Similarly, the food and drinks was prepared by the HRPP prior to the HRPP endorsing the Petitioner as a candidate. We also accept that the food and drinks provided were part of ordinary customary protocols for hosts to extend to guests on an occasion such as this.
  6. Accordingly, we find that the allegations in the counter-petition have also not been proved beyond reasonable doubt.

Conclusions

  1. The petition is dismissed in its entirety as the allegations for the reasons outlined have not been proved beyond reasonable doubt.
  2. The counter petition is also dismissed in its entirety as the allegations have not been proved beyond a reasonable doubt.
  3. The Petition and to some extent the Counter Petition in this case should not in our view have been brought, they are deficient in both fact and appreciation of basic customary practices and our tu and aganuu faa-Samoa. The Courts time could have been more productively utilised on resolving genuinely litigable disputes.
  4. We serve notice that future spurious allegations of this nature may result in awards of full indemnity costs. All that prevents us here is the fact that this would represent a radical departure from the petition cases that arose out of the 2021 general elections.
  5. In the circumstances, any deposits paid by the parties to be forfeited as court costs and each party to bear the remainder of their own costs.

SENIOR JUSTICE NELSON
JUSTICE CLARKE

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