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Supreme Court of Tonga |
IN THE SUPREME COURT OF TONGA
ELECTORAL JURISDICTION
NUKU’ALOFA REGISTRY
CV54/2025
BETWEEN:
‘AISAKE HOATATAU FINAU
of Vaini, Tongatapu
-Petitioner
AND
LATAIFAINGATA’A TANGIMANA
of Ha’ateiho, Tongatapu
-Respondent
JUDGEMENT
BEFORE:
HON. JUSTICE GARLIKC KC
Appearances:
Mr. S Tu’atafaiva and Mrs. S Fa’otusia for the Petitioner
Mr. T ‘Aho for the Respondent
Trial: 11 March 2026 – 13 March 2026
Submissions: 16, 19 March 2026
Judgement: 24 March 2026
Introduction
The general election for the 17 seats in the Legislative Assembly of the Kingdom of Tonga was held on 20 November 2025. The Petitioner is a registered voter from the village of Vaipoa, Niuatoputapu. He was a candidate in the general election for the Ongo Niua 17 constituency. The Respondent was also a candidate in the same election for that constituency. The Respondent was the successful candidate in the election. The Petitioner now contests the validity of the Respondent's election.
Grounds for the challenge
It is alleged by the Petitioner that the Respondent committed two acts of bribery, in contravention of section 21 (1)(a) of the Electoral Act (Chapter 2.03, 2020 Revised Edition) (“the Act”).
Section 21 (1) (a) of the Act states:
21 Bribery
(1) Every person commits the offence of bribery who, directly or indirectly, by himself or by any other person on his behalf —
(a) gives any money or valuable gift to or for any elector, or to or for any other person on behalf of any elector or to or for any other person, in order to induce any elector to vote or refrain from voting; or ...
The two alleged acts of bribery relied on by the Petitioner are:
(i) In or about September 2025, the Respondent committed bribery indirectly by another person contrary to section 21(1)(a) of the Electoral Act, by giving fish without good consideration to Mele Folau of Ma’ufanga, an elector, in order to induce her to vote for the Respondent at the election.
(ii) In or about September 2025, the Respondent committed bribery indirectly by another person contrary to section 21(1)(a) of the Electoral Act, by giving fish without good consideration to Telesia Tu‘ipulotu of Ma‘ufanga, an elector, in order to induce her to vote for the Respondent at the election.
The acts of bribery are alleged to have taken place in September 2025, and therefore within 3 months of the date of the general election (20 November 2025).
Section 21(3) of the Act states as follows:
(3) “For the purposes of this section, any money or valuable gift given or offered or agreed to be given (in the absence of good consideration) to any person (except a person named in section 24(3)) within 3 months of any election by or on behalf of a candidate, shall be deemed to have been given or offered or agreed to be given for the purpose of influencing the vote, unless the contrary be proved.
Burden and standard of proof
The burden of proof is on the Petitioner to prove beyond a reasonable doubt that on either of the occasions alleged in the Petition:
(a) the Respondent indirectly, by another person, gave fish without good consideration to an elector;
(b) and that he did so in order to induce the elector to vote, or refrain from voting.
Facts relied upon
The Petitioner relies on the facts as pleaded in paragraphs 13 to 21 of the petition. For convenience, I will set out the allegations below.
“13. Mele Folau is about 55 years of age, and she is married to Matakivaha
Folau. They have seven children of their marriage.
14. Mele and her husband were electors, and they voted at the election, for
the Ongo Niua 17 Constituency.
15. In or about September 2025, Mele, together with Lavinia Afu and Vesita
Kivalu, were weaving a mat at the verandah of the house where Mele
and her family reside at Ma’ufanga.
16. During their weaving, and around 12pm, Mele saw a black car.
with three people in it, stopping very close in front of the verandah.
Those three people were Mote, who was the driver, Tiulipe (Mote’s
wife), and ‘Ilaise Leua. ‘Ilaise is a sister of the Respondent’s wife
Makalita.
17. ‘Ilaise who is also known to Mele, got off the car, and the following
conversations and actions took place;
- ‘Ilaise (using the Niua dialect): Malo kotou lelei (Hello)
- Mele: Ha’u, koeha me’a ‘oku hoko? (Come, what’s going on?)
- ‘Ilaise: Sai pe (It’s alright)
‘Ilaise then walked back to the car, opened the trunk and picked up a plastic bag with a fish cut stake in it; and walked back with it to Mele.
- ‘Ilaise-: Mele, kote o mai pe ko e talamai ‘e
Makalita ke manatu’i hono hoa, ‘oku fili ‘a Lata (Mele, we just come because Makalita said to remember her husband, Lata is a candidate)
- Mele: ‘Oku fili ‘a Lata? (Is Lata a candidate?)
- ‘Ilaise: ‘Io (Yes)
- Mele: ‘O, pe’i sai ke tau sio kiai (Oh, alright we’ll see)
- ‘Ilaise: ‘Oku toe ‘iai ha taha? (Is there anyone else?)
- Mele: Ko Viliami Mahe pea mo Telesia Tu’itupou, ‘oku na kei fili pe ki Niua (It’s Viliami Mahe and also Telesia Tu’itupou, they still vote for Niua).
- ‘Ilaise: ‘O, toe to’o mai pe milemila ‘a Sia, pea ke toki fa’iteliha koe ho’o ‘ave kia Sia. (Oh, bring Sia a bag, and it’s up to you when to give it to Sia)
‘Ilaise then picked up another plastic bag with a fish cut stake in it, and handed it to Mele).
- ‘Ilaise: ‘Oku ke toe ‘ilo pe ‘oku toe ‘iai ha kau Niua? (Do you know whether there are other people from Niua?)
- Mele-: Mou vakai atu feitu’u Ha’amoko (You check the Ha’amoko area)
19. Sia (Telesia) told Mele that it is alright for her to have it.
- Mele: Malo e lelei (Hello)
- Lata (Respondent): Thank you (Malo)
- Mele: ‘I ai ha me’a ‘e hoko? (Anything happening?)
- Lata : Fe ‘a Vaha? (Mele’s husband)
(Where is Vaha?)
- Mele: ‘Alu ‘a Vaha ia ‘o ngaue (Vaha has gone to work)
- Lata : Koe lele mai pe koe sio ki he teu fili (We just come
because of the upcoming election)
- ‘Ilaise (with Lata standing close by): Mele, koe o mai ai pe ke manatu’i ‘a Lata he fili. (Mele, we are coming again, to remember Lata at the upcoming election)...”
The issue in this case
In the context of the allegations in this case, section 21 of the Act requires the Petitioner to prove that the Respondent, indirectly through ‘Ilaise, gave the fish to Mele without consideration, with the intent to induce Mele to vote for him. The issue in this case, where the alleged bribery occurred within three months of the election, is whether the Petitioner has proven beyond a reasonable doubt that ‘Ilaise Leua was giving the fish, either (or both) to Mele Folau and to Mele Folau for Telesia Tu’ipulotu, as agent of the respondent, and acting on his behalf. Once the Petitioner has established those facts, the burden of proof shifts to the Respondent (pursuant to section 21(3) of the Act) to prove (on the balance of probabilities) that the giving of the fish was not given or offered for the purpose of influencing the vote.
The Petitioner’s case
The Petitioner’s case is that the Respondent, indirectly through ‘Ilaise Leua, provided fish to Mele Folau and Lavinia ‘Afa; and that the Respondent used ‘Ilaise Leua to give the fish in an attempt to influence the vote.
The Respondent’s case
The Respondent agrees that ‘Ilaise did give fish to Mele Folau and Lavinia ‘Afa. However, the Respondent’s position is that ‘Ilaise acted entirely on her own and was never instructed to give the fish by the Respondent or his wife.
Consideration of the evidence and the submissions made by the parties
The credibility of witnesses and the reliability of their evidence is, of course, a matter for the court to decide. The court can draw reasonable inferences from the witnesses' evidence, provided it is satisfied that it is safe to do so and that no reasonable, alternative explanation is plausible.
In Saulala vs Piukala [AC 10 of 2022, paragraph 11], the Court of Appeal endorsed the summary of the relevant provisions of the Electoral Act, by the Lord Chief Justice. In paragraph h, the Lord Chief Justice said:
“As it will rarely be acknowledged by a Respondent that he/she gave a payment or valuable gift to buy votes, the existence of such intention will usually only be gathered from acts viewed against all the circumstances of the case. The Court cannot go into the intention of the Respondent nor be dictated by what the Respondent says he/she intended. The determination must be governed by what the Respondent said and did, and by inferences that ought to be drawn therefrom.”
Counsel for the Petitioner submits in his closing submissions (paragraph 14) that the main issue in this case, where the alleged bribery occurred within three months of the election, is whether the petitioner has proved beyond a reasonable doubt that ‘Ilaise Leua was giving the fish, both to Mele Folau and to Mele Folau for Telesia Tu’ipulotu, as agent of the respondent and acting on his behalf. Regarding the crucial question of whether the Respondent was acting through ‘Ilaise Leua, counsel for the Petitioner adopted the statement of the court in the case of Saulala v Piukala at paragraph 11, where the court stated (in sub-paragraph k):
“In an election context, a person may become a candidate’s
agent by either actual appointment or employment or by
recognition and acceptance of their actions by the candidate.
In determining whether agency is established all the circumstances
should be taken into account. Personal intimacy is evidence of
agency. In the case of a candidate’s wife, where she concerns
herself in her husband’s election she is ipso facto regarded
as his agent and is taken to have acted on his behalf.”
Counsel for the Petitioner submitted that the evidence given by Mele Folau in her Brief of Evidence, especially paragraphs 12-25 (pages 27-29 of the Court Book), is credible and reliable. In cross-examination, her evidence was not shaken. I agree with that submission and I found her to be a truthful, accurate and reliable witness.
He submitted that Mele Folau’s evidence is substantially corroborated by the evidence of Lavinia ‘Afa (page 32 of the Court Book), paragraphs 9 and 10. Her evidence was not challenged during cross-examination. I agree with this submission, although the evidence of Mele Folau does not require corroboration in the strict sense, as I found her evidence to be truthful and accurate. For the sake of clarity, I found Lavinia ‘Afa to be a reliable witness who was honestly presenting her account.
In cross-examination, the Respondent admitted that both his wife Makalita and ‘Ilaise Leua supported his campaign for the election. The Court did not hear any evidence from the Respondent’s wife, Makalita, but both Mele Folau and Lavinia ‘Afa testified that ‘Ilaise Leua told them, when giving the fish to Mele Folau, that they were coming because Makalita asked her to remember her husband Lata in the election. I accept that evidence as truthful, and I find as a fact that this is the case.
Regarding the evidence of ‘Ilaise Leua, called on behalf of the Respondent, counsel for the Petitioner argued that she is not a credible witness and that her testimony is unreliable. He submitted that ‘Ilaise attempted to omit Makalita and to distance her from the reasons for giving the fish to Mele Folau and Telesia Tu’ipulotu. However, during cross-examination, ‘Ilaise confirmed that she knows Lata (the Respondent) very well and maintains close contact with Makalita. She also stated that at no time did Makalita inform her that Lata was a candidate in the election. She denied that Lata ever told her he was a candidate, and in cross-examination, she said there was no occasion when Lata asked her to accompany him to help with his campaign. She also denied ever going with Lata to Mele Folau’s residence in Ma’ufanga.
However, when paragraph 25 of Mele Folau’s brief of evidence was put to ‘Ilaise in cross-examination, she admitted that she went with Lata, but she said that there were 3 others who went with them. Counsel for the Petitioner submits that ‘Ilaise lied to the Court when she denied in cross-examination that there was a time that she went with Lata to Mele Folau’s residence at Ma’ufanga. Furthermore, ‘Ilaise also lied to the Court in cross-examination when she stated that there was not a time that Lata asked her to go with him and help in his campaign. The Respondent’s evidence was that he asked ‘Ilaise to go and show him Mele’s residence at Ma’ufanga.
I agree with the submissions made by counsel for the Petitioner, and I have concluded that the evidence of ‘Ilaise is, at best, entirely unreliable, and in some respects untruthful. My conclusions regarding the untruthfulness of ‘Ilaise are reinforced by the fact that in cross-examination (and in answer to questions asked by me to confirm what she said) she admitted that she had lied about one aspect of her evidence. I shall deal with this admission of perjury later in my judgment, when dealing with the Respondent’s submissions.
Counsel for the Petitioner submits that the only inference that can be drawn from the evidence, is that Lata (the Respondent) must have had knowledge that ‘Ilaise went with the fish to Mele Folau’s residence and asked Mele and her family to remember him at the election. Counsel submitted that the evidence of Mele Folau in paragraph 13 of her brief of evidence that ‘Ilaise told her that they came because Makalita asked to remember Lata, for he is running for election, is the truth of what ‘Ilaise told Mele Folau. He further submits that the only inference that can be drawn from the evidence is that it was Makalita who told ‘Ilaise to give the fish to Mele Folau and ask her to remember Lata in the election because she (Makalita) was supporting Lata in his campaign. He submits that Makalita thereby concerned herself in Lata’s campaign for the election, and that she is ipso facto regarded as his agent and is taken to have acted on his behalf.
I have considered these submissions carefully, and I have concluded that the inferences counsel suggests can properly be drawn from the evidence, and that I am satisfied it is appropriate to do so. For the avoidance of doubt, I have not concluded that the Respondent was acting indirectly through ‘Ilaise merely because his wife was involved in the campaign. I have not assumed that Makalita is ipso facto to be regarded as the Respondent’s agent simply because she is his wife. Rather, I have reached the conclusion that the Respondent was acting indirectly through ‘Ilaise’ on the basis of all the evidence that I have heard.
Counsel for the Petitioner further submitted that when Lata (the Respondent) and ‘Ilaise went to Mele’s residence on 11 November 2025 (see paragraph 24 & 25 of Mele’s brief of evidence on page 29 of the Court Book), and ‘Ilaise told Mele that they were there again to remind Lata about the election, whilst Lata was standing very close by, this constitutes evidence of his knowledge of and involvement in the actions by ‘Ilaise and Makalita when they gave fish to Mele Folau and asked her to remember Lata at the election. I agree with this submission, and I find that the Respondent’s presence at Mele’s residence on 11 November is not merely a coincidence; rather, it is evidence that supports the reasonable inference that the Respondent was involved in the giving of the fish on the previous occasion when ‘Ilaise visited the house.
In cross-examination, the Respondent admitted that his wife Makalita and ‘Ilaise Leua supported his campaign for the election. The Court did not hear any evidence from Makalita, the Respondent’s wife, but both Mele Folau and Lavinia ‘Afa testified that ‘Ilaise Leua told them, when giving fish to Mele Folau, that they were coming because Makalita had asked her to remember her husband Lata in the election. I place significant weight on this evidence, which leads me to draw the clear inference that, in relation to the giving of the fish, the Respondent was acting through ‘Ilaise Leua.
The Respondent contends that the statutory presumption under s.21(3) does not apply because the Petitioner has not proven that the gift was given “by or on behalf of” the Respondent. He claims that this requires proof of agency. He argues that, without evidence that the alleged actor was acting on behalf of the Respondent, the presumption is not triggered, and the burden of proof does not shift. Whilst I concur with the legal basis of the Respondent's submissions, I disagree with his factual assertions. I have already stated that I find as a fact that the Respondent was acting indirectly through ‘Ilaise in relation to the giving of the fish.
As to the credibility of the evidence of ‘Ilaise, counsel for the Respondent submits as follows:
“The inconsistency elicited in cross-examination about whether she initially remained in the shuttle on 11 November 2025 is a collateral matter. It does not relate to the September 2025 events that form the basis of both grounds of the Petition.”
This submission arises from the fact that, under cross-examination, ‘Ilaise admitted that she had lied in her evidence under oath when she first stated that she did not get out of the shuttle at Mele’s residence on 11 November 2025. For counsel to dismiss this admitted perjury as “a collateral matter” and to attempt to make her worthy of belief is, in my view, wholly unrealistic. The admitted perjury by this witness led me to the firm belief that I could not rely upon her evidence as a whole and that she was not a witness who was telling the truth, either in her witness statement, or in her evidence under cross-examination. Accordingly, I rejected her evidence that she was not acting on behalf of the Respondent as being untruthful.
Counsel for the Respondent also argues that the Petitioner’s case relies solely on hearsay. I reject that argument. The evidence of Mele Folau and Telesia Tu’ipulotu is direct evidence of what was said and done by ‘Ilaise. Under section 35(b) of the Election Act, the court may admit such evidence as in its opinion may assist it to deal effectively with the case, notwithstanding that the evidence may not otherwise be admissible in the Supreme Court.
Intention to Induce - Respondent’s submissions
Counsel for the Respondent submits that the Respondent was not present, did not speak, did not send anyone, and did not authorise anything. He submits that no witness has given evidence of any communication from the Respondent, directly or indirectly, that could amount to an inducement.
Furthermore, he submits that, under s.21(1)(a), the Petitioner must prove that the gift was made with the intention of influencing a vote. The law requires proof of intention, not assumption.
Finally, he submits that, even if fish were given, there is no admissible evidence that it was given for the purpose of inducing a vote. Ordinary generosity cannot be transformed into criminal intent without proof.
The relevant legal provisions
Section 21 of the Act provides as follows:
(1) Every person commits the offence of bribery who, directly or indirectly, by himself or by any other person on his behalf —
(a) gives any money or valuable gift to or for any elector, or to or for any other person on behalf of any elector or to or for any other person, in order to induce any elector to vote or refrain from voting; or ...
Section 21(3) of the Act states as follows:
(3) “For the purposes of this section, any money or valuable gift given or offered or agreed to be given (in the absence of good consideration) to any person (except a person named in section 24(3)) within 3 months of any election by or on behalf of a candidate, shall be deemed to have been given or offered or agreed to be given for the purpose of influencing the vote, unless the contrary be proved.
I find that the presumption provided for by section 21(3) is triggered in this case, and the Respondent has not proved the contrary.
As I have said, the court is entitled to consider all the evidence and draw such inferences as it finds proper to do so, and decide whether ‘Ilaise was acting independently or on behalf of the Respondent, and whether the Respondent did so in order to induce an elector to vote.
After reviewing the evidence (and rejecting ‘Ilaise’s evidence as untruthful), I am satisfied beyond a reasonable doubt that: (i) ‘Ilaise did give fish to Mele and Telesia; and (ii) she did so on behalf of the Respondent and on his instructions; and (iii) that he did so in order to induce any elector to vote or refrain from voting.
For completeness, I should state that I have considered all the evidence provided by the Respondent in his sworn declaration (see page 45 of the Court Book for the English translation) and during cross-examination. I was not impressed by the Respondent’s answers in cross-examination. He consistently avoided giving direct and straightforward answers; instead, he appeared to respond only to questions he preferred, rather than those he was actually asked. I regret having to conclude that the Respondent was not truthful when he told the court that he was not involved in the giving of the fish.
Finally, regarding the evidence about the Respondent's visit to the Petitioner’s house, when the Petitioner’s wife was asked to persuade her husband to withdraw the election complaint, and another attempt by the Respondent to have the election petition dropped occurred when he sent a text message to Mr. Sita on 13 January 2026 (see exhibit “P1”), in which he stated:
“Thank you for the assistance, and remember the brother to stop our case.”
I have reached the conclusion that these two matters do not, by themselves, provide further evidence that the Respondent acted indirectly through ‘Ilaise in giving fish to Mele and Telesia. I regard this evidence as neutral. However, I remain satisfied beyond a reasonable doubt that the Respondent did act through ‘Ilaise when giving the fish to Mele and Telesia.
Findings of fact
Therefore, I find as a fact that the Respondent, indirectly through ‘Ilaise Leua, to give fish to Mele Folau and Lavinia ‘Afa. Moreover, I am satisfied beyond a reasonable doubt that the Respondent used ‘Ilaise Leua to give the fish in order to influence the vote.
Accordingly, I find that the allegations made in the Petition have been proven by the Petitioner, and that the Respondent has committed the offence of bribery within the meaning of section 21 of the Election Act (2020 Revised Edition). Moreover, I am satisfied that the circumstances of the offence are sufficiently serious to warrant declaring the Respondent's election void, and that he should be unseated by the Legislative Assembly. Finally, I hereby certify that the election was void, and I shall forthwith certify in writing that determination to the Speaker.
Therefore, I order as follows:
HON. JUSTICE GARLICK KC
JUDGE
NUKU’ALOFA
24 March 2026
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URL: http://www.paclii.org/to/cases/TOSC/2026/6.html