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Laki v Pa'u [2006] WSSC 43 (2 August 2006)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

IN THE MATTER: of the Electoral Act 1963 & Amendments

AND:

IN THE MATTER: FA’ASALELEAGA NO 2
TERRITORIAL CONSTITUENCY

BETWEEN

LEANAPAPA LAKI
of Fusi, Safotulafai, a candidate for election.
PETITIONER

AND

PA’U SEFO TAUMATA PA’U
of Fusi, Safotulafai, a candidate for election.
FIRST RESPONDENT

AND:

THE ELECTORAL COMMISSIONER
of Apia.
AMICUS CURIAE

Coram: Honourable Justice Slicer
Honourable Justice Vaai

Counsels: Mr TK Enari for the Petitioner
Mr RS Toailoa for the First Respondent
Attorney General’s Office for the Second Respondent

Hearing: 29, 30 June, 3rd – 7th July, 10th July 2006
Judgment: 2nd August 2006

JUDGMENT OF THE COURT

DELIVERED BY JUSTICE VAAI

At the 2006 General Election for the Legislative Assembly of Samoa, an election for the Member of Parliament for the Territorial Constituency of Fa’asaleleaga No 2 was held. The poll wherefore was appointed for the 31st day of March 2006.

At the said election the Petitioner and the First Respondent were candidates and the Second Respondent, on the 13th day of April 2006 declared and reported the First Respondent as being duly elected.

The Petitioner was one of the candidates at the said elections and polled sufficient votes to qualify to file this petition.

The official declaration of the result of the poll by the Second Respondent for the Territorial Constituency of Fa’asaleleaga No 2 shows that the Petitioner and the First Respondent polled the following votes:

(i) LEANAPAPA LAKI 459

(ii) PA’U SEFO TAUMATA PA’U 505

The Petitioner alleges that the First Respondent is guilty of corrupt practices in that he committed bribery as follows:-

(a) On 26th of March 2006, at Fusi, Safotulafai, did give $400 and foodstuffs to the to’onai of the Latter Day Saints congregation for the purposes of inducing members of that congregation to vote for him.

(b) On 30th March 2006, at Fusi, Safotulafai, did give $200 and two bottles of vodka to Ponali Tuua Fialii, Iosefa Fuailemaa and Lotovai Mata’u for the purposes of inducing them to vote for the First Respondent.

(c) Between 27th and the 30th day of March, gave Iva Oloapu $210 for the purposes of influencing the said Iva Oloapu and others to vote for him.

(d) On 17th March 2006, at Fatausi, gave $20 to Lupe Vave for the purpose of inducing the said elector to vote for the first Respondent.

The Petitioner seeks the following orders:

(a) that he should be declared and reported as duly elected for the Territorial Constituency of Fa’asaleleaga No 2, OR

(b) that the First Respondent was not duly elected and his election was void and so a new election should be ordered, and

(c) costs.

The Respondent has made allegations in a document entitled ‘Cross-Petitions’ in accordance with the Electoral Act 1963, s.111(6) and seeks similar orders against the Petitioner.

(a) Between the 17th and the 24th of March 2006, did give $30 to one Togiai Liua an elector for the Territorial Constituency of Faasaleleaga No 2 for the purpose of inducing the said elector to vote for him.

(b) On 30th March 2006, at Sapapalii, the Petitioner did give $40 to one Sao Akiono an elector of the Territorial Constituency of Faasaleleaga No 2 for the purpose of inducing the said elector to vote for him.

(c) On 30th March 2006, at Fogapoa, the Petitioner did give $30 to one Namulauulu Siaosi, an elector of the Territorial Constituency of Faasaleleaga No 2, for the purpose of inducing the said elector to vote for him.

(d) On 29th March 2006, at Sapapalii, the Petitioner did give $20 to one Vaisala Malo Masoe an elector of the Territorial Constituency of Faasaleleaga No 2 for the purpose of inducing the said elector to vote for him.

(e) On 30th March 2006, at Fusi Safotulafai, the Petitioner by his wife and agent and in his presence did give $50 to one Maria Nive Letufuga an elector of the Territorial Constituency of Faasaleleaga No 2 in the presence of one Vitoria Aifala Faanana Gray also an elector of the said constituency for the purpose of inducing the said elector to vote for him.

(f) On 30th March 2006, at Fatausi, the Petitioner did give $50 to one Maaka Pasia an elector of the Territorial Constituency of Faasaleleaga No 2 in the presence of one Sina Pasia also an elector of the said constituency for the purpose of inducing the said electors to vote for him.

(g) On 30th March 2006, at Fusi Safotulafai, the Petitioner did give $20 to one Nora Aso, an elector of the Territorial Constituency of Faasaleleaga No 2, in the presence of Soomai Meafou also an elector of the said constituency for the purpose of inducing the said electors to vote for him.

(h) On 30th March 2006, at Vaimaga, the Petitioner by his sister and agent Letasi Anderson Paese and in his presence, did give $20 to one Meki Vetemotu Meki, an elector of the Territorial Constituency of Faasaleleaga No 2, for the purpose of inducing the said elector to vote for him.

(i) On 29th March 2006, at Sapapalii, the Petitioner by his wife and agent and in his presence and on his instruction, did give $50 and $100 to each of Titi Latu and Ioelu Mauafu Felagai respectively, electors of the Territorial Constituency of Faasaleleaga No 2, for the purpose of inducing the said electors to vote for him.

(j) On 29th March 2006, at Sapapalii, the Petitioner did give 2 large bottles of vodka to Sagalala Masami Iose, Muipu Auava Taiafa, Taemosi Mauga and Fuaina Sefo, all electors of the Territorial Constituency of Faasaleleaga No 2 for the purpose of inducing the said electors to vote for him.

(k) On 29th March 2006, at Sapapalii, the Petitioner did give $20 to one Taeu Pati, an elector of the Territorial Constituency of Faasaleleaga No 2, for the purpose of inducing the said elector to vote for him.

(l) On 30th March 2006, at Tuasivi, the Petitioner by his wife and agent and in his presence did give $100 to one Toefoi Supio in the presence of Fua Supio, Makesi Supio and Su Kasio, who are all electors of the Territorial Constituency of Faasaleleaga No 2, for the purpose of inducing the said electors to vote for him.

The court has heard the testimony from 40 witnesses as to the facts of these corrupt practices. On almost every basic fact there is a direct clash of evidence, and the task of finding the true facts in this trial is difficult in the extreme. It is not so much a finding of the facts as it is a massive and painful search operation. This is because it is patently clear both to counsels and to the court that there has been much dishonesty and perjury exhibited during the course of the testimony, so much so, that having heard from the 40 witnesses the court has grave doubts as to the reliability of many of them, at least as to aspects of their evidence. Inevitably the submissions by counsels were quite properly directed not so much to the applicable law but to the conflicting evidence of the witnesses with emphasis on the evidence they considered important and relevant from their respective points of view.

Accordingly the court has considered all the evidence, have weighed the same, drawn the proper inferences and have assessed the degree, quality and value of each item of evidence in the light of the reliability and demeanour of the witnesses exhibited during the course of their testimony.

The Court of course has reminded itself that the onus lies on the petitioner and cross petitioner to establish each allegation of corrupt practice beyond reasonable doubt and that the Respondent wrongfully intended to improperly influence the electors contrary to the spirit of the Electoral Act 1963.

Each of the allegation in the petition will now be dealt with separately in the order set out above.

Allegation (a): Giving food and $400 to the LDS toonai

The petitioner alleges the first Respondent committed the offences of bribery and treating by providing foodstuffs and giving $400 to those electors present at the toonai of the LDS church. It is not disputed that on Sunday the 26th March the first Respondent attended the toonai of the Fusi Latter Day Saints congregation and he took with him as his share of the food two cartons of ice cream and of 3lb corned beef. For the first Respondent to be guilty of the offence of treating it must be proved that he corruptly provided the foodstuffs for the purpose of corruptly influencing those electors at the to’onai to vote for him. Not only must the subjective intent of the first Respondent be corrupt, but that the methods employed must also be corrupt. We follow and adopt the view reached by this court in re Election Petition Anoama’a East Territorial Constituency: Faamatuainu Tala Mailei v Savea Sione (unreported Misc. 6007; 28/7/1982) and in Olaf and others v Chan Chui (unreported) 18/5/2001 which adopted the reasoning in the New Zealand case of In the Wairau Election Petition (1912) NZLR 321 as to the meaning of corrupt:

"A corrupt intention is an intention on the part of the person treating to influence the vote of the person treated. The question of intention is an inference of fact which the court has to draw. If in any case, looking at all the circumstances, the reasonable and probable affect of the alleged treating would be to influence the result of the election or to influence the votes of the individual voters, it might well be inferred that it was the intention of the persons treating that this effect should follow".

Several factors have led us to the conclusion that the first respondent did not have a corrupt intention when he contributed the ice cream and corned beef to the to’onai. In the first place everyone who attended the to’onai contributed food and the first respondent was expected to contribute in the normal customary manner regardless of his candidacy in the approaching elections. Secondly the food he contributed could not be considered and was not considered by those present as lavish and excessive; in fact none of the witnesses for the petitioner considered the provision of food by the respondent to be corrupt, substantial or suspicious.

The sting of the allegation is the alleged giving of $400. It is common ground that if $400 was indeed given then it did tantamount to corrupt practice of bribery pursuant to section 96 Electoral Act 1963 simply because there was no lawful excuse explanation or justification for the alleged payment. As a consequence the evidence in support of the allegation and evidence by the respondent in rebuttal, as well as arguments by counsels were confined to the issue of whether payment of $400 was made. There was a great deal of conflict in the evidence adduced in support and in rebuttal.

In support of the allegation of payment of the $400 the petitioner called four witnesses, electors and supporters of the petitioner, who claimed they were present at the to’onai; they heard and they saw the first respondent giving the money which was later distributed amongst those present after the departure of the first Respondent. Two of those witnesses, Iosefa Futi and Siaosi Auve’a told the court that the first Respondent during his speech said the ice cream was for breakfast, the corned beef was lunch and the $400 was for dinner. Siaosi Auve’a, an untitled man was the leader of those untitled males and females who served the food at the to’onai and his role involved receiving and announcing the food given by each participant at the to’onai. He said he took the money from the first Respondent and gave it to one Masame Iakopo who distributed it to those present and it was Siaosi Auve’a who carried the money to each of the 15 recipients except Masame Iakopo who kept $20 for himself. In his affidavit Siaosi Auve’a listed the names of the 16 persons and the amounts each person received; he repeated the same names and the exact amounts under cross examination a feat described by counsel for the first Respondent as ‘just too good to be true' to be believed.

The first Respondent admitted making the customary thank you speech before his departure from the toonai but he denied referring to the food he gave in the manner described by the witnesses for the Petitioner and he denied giving any monies to the to’onai. He insisted that two of the petitioner’s witnesses, Kalolo Toala Pai and Tumu Agavale Pasa were not even at the to’onai. He attended the to’onai at the invitation of Poto Vaitupu, a high priest of the LDS Church who confirmed he invited the first Respondent to the to’onai, he also claimed that both Kalolo Toala Pai, Tumu Agavale Pasa and Siaosi Auve’a were not present at the to’onai; and he also confirmed that the first Respondent did not give $400 to the to’onai.

Masame Iakopo one of the eldest member and a patriarch of the LDS church gave similar testimony to that given by high priest Poto Vaitupu. It was he who made the "thank you" speech in response to the first Respondent’s address. He refuted allegations that the first Respondent in his speech referred to the ice cream, corned beef and $400 as for breakfast, lunch and dinner, and labelled the petitioner’s witnesses evidence as lies. He did not distribute any monies as there was no money given by the first Respondent.

In similar terms Togiai Liua another elderly member of the LDS church denied the payment of $400. He was adamant that Siaosi Auve’a was not present at the to'onai.

Counsel for the first Respondent in his oral and written submissions invited the court to consider the evidence of the four witnesses for the petitioner as unreliable and lacking credibility. In particular he referred to the responses of the witnesses under cross examination that they were staunch supporters of the petitioner; they all vowed they would do anything to support the petitioner and to have him reinstated as member of Parliament and to have the election of the first Respondent annulled. It is understable that as supporters of the petitioner the four witnesses testified as to the events which they claimed took place at the LDS Congregation to’onai on the 26th March, five days before the poll, and as supporters they would prefer the petitioner rather than the first Respondent as their member of Parliament. Their so called admissions under cross examination do not and cannot warrant a conclusion that the four witnesses deliberately gave false evidence to bring about the avoidance of the election of the first Respondent.

Neither can we accept the suggestion that the evidence of the three witnesses for the first Respondent should be preferred over the evidence of the four witnesses for the petitioner simply because the witnesses for the petitioner are all untitled men holding no responsible positions in the church and the village whereas the three witnesses for the first Respondent are matais and elderly members of the church, two of them being a high priest and a patriarch of the church.

The court will assess the credibility of the witnesses to determine the reliability of their testimony upon the totality of the evidence. It will draw the proper inferences upon the tests appropriate to criminal proceedings. If there is a reasonable doubt then the allegation must fail.

It is not disputed that Poto Vaitupu invited the first Respondent to the to’onai. Poto Vaitupu admitted being a supporter of the first Respondent. Given the fact that the to’onai is restricted to members of the congregation and the first Respondent is not a member, a proper inference can be drawn that attendance was for the purpose of promoting the candidacy of the first Respondent. After all the first Respondent had in November 2005 visited the same congregation, presented a o’o of food and money to express his intention of running as a candidate. No complaint arose out of that presentation as he was within the confines of the Electoral Act s.97A to make that presentation. But Poto Vaitupu at the commencement of a very tactical cross examination conceded that the first Respondent referred to breakfast, lunch and dinner in his speech; he even conceded that the first Respondent referred in his speech to the ice cream being for breakfast and corned beef was for lunch. That answer given in cross examination the evidence of Siaosi Auve’a and Iosefa Futi concerning the speech of the first Respondent referring to the ice cream and corned beef for breakfast and lunch respectively is corroboration. Poto Vaitupu was then asked the very obvious question about the dinner. He was evasive and his credibility was destroyed. It is true the congregation does not have breakfast and dinner but we accept from the evidence those terms were used by first Respondent in his speech. It is also true Iosefa Futi in his sworn affidavit did not refer to breakfast, lunch and dinner as spoken by the first Respondent in his speech but that does not diminish the reliability of his testimony.

We reject the claims of Poto Vaitupu, Masame Iakopo and Togiai Liua that Siaosi Auve’a, Kalolo Toala and Tumu Agavale were not at the toonai. Siaosi Auve’a in particular was the leader of those who served and in that role he received and announced what was given at the toonai by each participant. We are satisfied beyond reasonable doubt that $400 was given for the corrupt purpose of influencing the votes and this allegation is accordingly proved.

Allegation (b): Giving of $200 and 2 bottles vodka

The money and the vodka is alleged to have been given to a group of young men who were drinking kava at one of the house of the family of Mafuolo Lotovale a paramount orator of Fusi in the afternoon of the 30th March 2006, the day before polling day. Three of the young men, all electors, gave evidence that:

(a) On the afternoon of the 30th March about 9 of them were drinking kava after they had done some cleaning up in preparation for elections the next day.

(b) The first Respondent and members of his election campaign committee came in a car, came into the house, joined in the kava drinking and the first Respondent gave them the money and vodka.

(c) Mafuolo Lotovale the matai of the family of the three witnesses came from his house and scolded the first Respondent and his group for entering the house. Mafuolo went back to his house and the first Respondent and his group left.

(d) Mafuolo Lotovale and his family are supporters of the petitioner; they are all members of the same extended family.

The first Respondent admitted approaching the kava drinking group, but claimed that he went there because one of them, namely Ponali Tuua Fialii, came to his funeral parlour about 7 o’clock in the morning that day seeking an audience with the first Respondent; but the first Respondent did not want to see Ponali then, and Ponali was told to go home and the first Respondent would see him later. On his way to the village of Tapueleele later that day the first Respondent and his group of four matais called in to see Ponali who was drinking kava with others. Mafuolo Lotovale then arrived and gave them a dressing down but Oloapu Fa’asolo advised Mafuolo that they were there at the invitation of Ponali. Mafuolo left and Ponali then spoke and offered support for the first Respondent and sought assistance from the first Respondent if he was to be elected. The first Respondent then left leaving his group behind to drink kava.

Oloapu Fa’asolo and three other matais who accompanied the first Respondent testified confirming the first Respondent’s account of what happened at Ponali’s house and denying the giving of the money and vodka by the first Respondent. They left Ponali’s house about 30 minutes after the first Respondent’s departure and as they were about to leave Ponali asked for some money to buy more kava and $50 was given by Oloapu Fa’asolo.

Oloapu Fa’asolo and three others matais, namely Letoa Paulo, Masaga Visesio and Pesamino Maleko, denied being members of the first Respondent’s campaign committee although they appear to have accompanied the first Respondent on several occasions where corrupt practices were alleged during this trial and became an inevitable conclusion during the course of this trial, Oloapu Fa’asolo, Letoa Paulo and Masaga Visesio were election agents for the first Respondents despite their feeble denials.

Ponali denied going to the funeral parlour early that morning and he also denied that Oloapu Fa’asolo told Mafuolo Lotovale that the first Respondent and his group were there at the invitation of Ponali.

Mafuolo Lotovale under cross examination also denied that Oloapu Fa’asolo told him they were there at the invitation of Ponali. All that Mafuolo Lotovale claimed was that a request was made to meet the boys for a short time.

Ponali under cross examination told the court that it was Oloapu Fa’asolo who handed over the $200 and the vodka which in turn contradicted his affidavit evidence that it was the first Respondent who gave the vodka and money. The other two witnesses however maintained it was the first Respondent. Despite the inconsistency, which in any event are natural and bearing in mind that the powers of memory and observation differ between individuals we are satisfied the $200 and vodka was handed to the men drinking kava whilst the first Respondent and his four matais were all present. By accepting the vodka and money which can only be described as a bribe the three young men must be treated as accomplices as they were parties to the receipt of the bribe. It is permitted but dangerous to convict on the uncorroborated evidence of an accomplice. Their evidence being similar is compelling in its veracity and there is no suggestion of any collusion. The allegation is proved.

Allegation (c): Payment of $210 to Iva Oloapu between the 27th and 30th March

On the 27th March Iva Oloapu was told by Oloapu Fa’asolo a matai of his family to come to his house. Tapu Salele another matai of the family was also there as well two other untitled men so that there were five electors at the meeting which Oloapu Fa’asolo summoned to gather support for the first Respondent. The first Respondent then arrived later after Oloapu Fa’asolo rang him to come and the first Respondent was told by Oloapu Fa’asolo of the family’s decision to support him. After thanking the family for the support the first Respondent gave Oloapu Fa’asolo some monies and left. Oloapu Fa’asolo then distributed the money and gave Iva Oloapu $60.

The first Respondent, Oloapu Fa’asolo, and Tapu Salele all admit Iva Oloapu was at the family gathering at Oloapu Fa’asolo’s house and that the first Respondent went there and was told of the family support. But all denied the giving of the money by the first Respondent to Oloapu Fa’asolo. Oloapu Fa’asolo however gave Iva Oloapu $20 on request from Iva for some monies.

Iva Oloapu also told the court that on the 29th and 30th March he was given $50 and $100 respectively at the gatherings at the first Respondent’s funeral parlour. We find that on both occasions the first Respondent’s vehicle came to pick him and took him to the first Respondent’s funeral parlour.

Again the first Respondent and his supporters Oloapu Fa’asolo, Masaga Visesio and Letoa Paulo denied the giving of money because there was no gathering on the 29th and secondly on the 30th March that the gathering at the first Respondent’s place was for family members only in order to prepare for elections the next day.

Iva Oloapu made an affidavit statement sworn on the 20th April prepared and drafted by counsel for the petitioner concerning the payments of the money. Subsequent to that date he was brought from Savaii by Oloapu Fa’asolo and taken to the first Respondent’s house at Moto’otua, Apia. Oloapu Fa’asolo knew Iva had already made a statement in support of the petition and Oloapu Fa’asolo attempted to convince the court that he came to Apia with Iva at Iva’s suggestion. Despite his character assassination of Iva, Oloapu Fa’asolo failed to convince the court that the testimony of Iva should be treated with caution. We prefer the evidence of Iva and reject as untrue the testimony of Oloapu Fa’asolo; we are satisfied there was an attempt by Oloapu Fa’asolo to change the story told by Iva Oloapu in his affidavit.

We also accept the evidence of Iva that Oloapu Fa’asolo distributed money and gave $60 to Iva on the 27th after the first Respondent departed from Oloapu Fa’asolo’s house. No convincing explanation was given why it was necessary for the first Respondent to go to the house of one of his campaign committee member in order to be told of the support of the four members of the family of the first Respondent’s committee member. We also accept the uncorroborated evidence of Iva Oloapu that he was given $50 and $100 on the 29th and 30th March. The allegation is proved.

Allegation 5 (d): The giving of $20 to Lupe Veve

Lupe Veve was at his plantation on the 17th March when he saw the first Respondent’s vehicle and the Electric Power Corporation (EPC) vehicle arrive to instal a street light close by. While the EPC men were working he saw the first Respondent who came by himself giving monies to other electors before he walked over to Lupe Veve, gave Lupe $20 and told him to ‘bear in mind the ballot’.

In rebuttal the first Respondent denied giving $20; he does not know Lupe Veve but did recall seeing a boy inside a fence when he and his usual cronies Oloapu Fa’asolo, Masaga Visesio and Letoa Paulo went to assist the EPC workers instal a street light. The usual three all know Lupe Veve who they claimed was standing some distance away and was never approached by the first Respondent. Whatever assistance they offered to the EPC workers in installing a street light remains a mystery.

Lupe Veve is an accomplice who insisted that Oloapu Fa’asolo, Masaga Visesio and Letoa Paulo did not accompany the first Respondent. The first Respondent was driving a pick up truck and the three men sitting in the back should have been easily visible to Lupe Veve. We accept his evidence and the allegation is proved.

We now turn to consider the allegations in the counter petition. On the application by counsel for the first Respondent allegation (d) was withdrawn after a witness testified in support of the allegation and we are satisfied on what counsel for the first Respondent relayed to the court that the witness who did testify had deliberately lied under oath. Appropriate steps will be pursued by the office of Attorney General, as agreed to by counsel from that office who appeared for the Electoral Commissioner, to deal with that particular witness.

Allegations of bribery levelled at the Petitioner will for convenience be dealt with and categorised as to the dates on which they are alleged to have been committed, as follows:

(i) Acts of bribery committed on the 30th March.
(ii) Acts of bribery committed on the 29th March.
(iii) Acts of bribery committed on the 17th – 24th March.

Allegations of bribery on the 30th March: allegations 7 (b), (c), (e), (f), (g), (h), (l)

Seven counts of bribery are levelled against the petitioner for giving monies to electors for the purpose of inducing those electors to vote for him. Four of the allegations allege that the petitioner personally gave the money; two of the allegations allege that the money was given by his wife in the presence of the petitioner; and one allegation allege the money was given by his sister in the presence of the petitioner.

On his own admission given during his testimony the petitioner travelled from Apia (where he spent most his time) to his electorate on Sunday the 26th to actively promote his candidacy and during the week of election he visited quite a number of families, and it was during those visits the first Respondent alleges that the petitioner by himself and through his wife committed the acts of bribery.

It is alleged that:

(i) The petitioner went to the house of Sao Akiono to seek support and he gave Sao Akiono $40.

The petitioner admits going to the house but denies giving money.

(ii) The petitioner went to the house of Namulauulu Siaosi to win his vote and gave Namulauulu $30.

The petitioner denies giving money but he did visit the elector.

(iii) The petitioner went to the house of Maaka Pasia for support and gave $50.

The petitioner admitted visiting to seek support but denied giving the money.

(iv) The petitioner went to the house of Soomai Meafou to seek support and gave $20.

The petitioner admitted visiting on the 27th but denied giving money.

(v) The petitioner and his wife went to the house of Maria Nive Letufuga and the wife gave $50 to win their votes.

The petitioner admitted going with his wife on the 27th but denied giving the money.

(vi) The petitioner and his wife went to the house of Toefoi Supio to seek support and gave $100.

The petitioner admitted he went to the house without his wife and denied giving the money.

We find that in at least two of the allegations there are but minor dispute as to the dates the petitioner made the visits either by himself or with his wife. The evidence however despite the absence of corroboration in some instances is quite compelling as to the pattern of a last minute concerted effort by the petitioner to win votes by visiting families and soliciting votes of the electors. It is incredibly difficult to comprehend that the petitioner decided to visit his electorate only during the week of election to promote his candidacy by simply visiting and begging support. We find the six allegations of bribery levelled at the petitioner and his wife proved beyond reasonable doubt.

The seventh allegation is that Vetemotu Meki went to the shop of the Petitioner’s sister when she was given $20 by the sister in the presence of the petitioner. Despite denial of knowledge by the petitioner we also find this allegation proved despite its uncorroborative nature.

Allegations of bribery on the 29th: 7 (i) (j) (k)

In support of allegation 7(i) two electors, a brother and sister, told the court of a visit by the petitioner and his wife to their home in which he begged support but was told it was too late. On instructions from the petitioner the wife gave $50 to the sister and $100 to the brother. Again the petitioner and his wife did not deny their visit; their claim that they are related is denied by the brother and sister. A further $200 was paid to the brother for the agricultural produce of taros and taamus supplied by the brother at the request of the petitioner and since the $200 was a genuine payment for goods supplied, the payment is not the subject of complaint.

Given the nature and pattern of electioneering undertaken by the petitioner, we have no difficulty in finding this allegation proved.

Allegation (j) involves the giving of two bottles of vodka to four young boys of Sapapalii to induce the young electors to vote for the petitioner. The four young boys all told the court they were sitting at the village cricket pitch when the petitioner drove by and invited them to go to the house of a certain elector where upon their arrival they were given the vodka by the petitioner. On the other hand the petitioner claims the young boys ran behind his car and upon arrival at the same house they requested the vodka which he refused. We reject his evidence and accept the evidence of the four boys and consequently we find the charge proved.

Allegation (k) relates to the giving of $20 to one Taeu Pati an elector who was on his way inland to feed his pigs when the petitioner stopped his vehicle, gave him $20 and begged Taeu for his vote. The payment of $20 is again denied by the petitioner but we find the evidence of the witness compelling as the petitioner really had no good reason to stop his vehicle. We also find this allegation proved.

Corrupt practice between 17th and 24th March: Allegation 7(a)

The final allegation in the counter petition is that between the 17th and 24th March the petitioner and his wife went to the home of Togiai Liua and begged his support. He was given $30 for his vote.

The petitioner did admit visiting the elector on the 27th March but again denied giving the $30. Again we find there is but a minor dispute as to date that the petitioner did make the visit. We accept the uncorroborated evidence of the elector and find the charge proved.

The order of the court is as follows:

(i) In view of our findings that four allegations of bribery and one allegation of treating have been proved against the First Respondent we declare the election of the Respondent void under section 112 of the Electoral Act.

(ii) We also find that ten allegations of bribery and one allegation of treating have been proved against the petitioner.

(iii) Each party will bear his own costs.

The court will report its findings to the Honourable Speaker accordingly.

Honourable Justice Slicer
Honourable Justice Vaai

Solicitors

Kruse Enari & Barlow Barristers & Solicitors for the Petitioner
Toa Law for the First Respondent
Attorney General’s Office, Apia for the Second Respondent