IN THE SUPREME COURT OF SAMOA
Moala v Sio [2021] WSSC 40 (17 August 2021)

Case name: 	Moala v Sio	
		
Citation: 	[2021] WSSC 40	
		
Decision date: 	17 August 2021	
		
Parties: 	PAPALII TAVITA MOALA (Petitioner) and LOAU KENETI SIO (Respondent)	
		
Hearing date(s): 	Hearing: 04-06 August 2021
Submissions: 11 August 2021	
		
File number(s): 	MISC115/21	
		
Jurisdiction: 	CIVIL	
		
Place of delivery: 	Supreme Court of Samoa, Mulinuu	
		
Judge(s): 	Chief Justice Satiu Simativa Perese
Justice Tologata Tafaoimalo Leilani Tuala-Warren	
		
On appeal from:		
		
Order:	In relation to the Petition, we do not find that the allegations contained therein have been proven beyond reasonable doubt and we dismiss the Petition in its entirety.
Similarly, we also find that the allegations contained in the Counter-petition have not been proved beyond reasonable doubt, and it is dismissed.
Each party will bear its own costs.
The security for costs paid by the Petitioner will be reimbursed.	
		
Representation: 	K. Koria & P. Toma for the Petitioner 
M. Leung-Wai & L. Sio for the Respondent	
		
Catchwords: 	Agency - bribery – treating – illegal activities during period of election – void of election of candidate guilty of corrupt practice – election petition – election agent – counter petition – Roadshow – gifting – laulautasi – veracity rules	
		
Words and phrases:		
		
Legislation cited:	Electoral Act 2019 ss. 94; 96; $100; 116.	
		
Cases cited:	Ah Him v Seiuli [2021] WSSC 27; 
Election Petition re  Vaisigano  No. 1 Constituency [1967] WSLawRp 2; [1960-1969] WSLR 179 (11 August 1967);
Lameko v  Vena  [1979] WSLawRp 9; [1970-1979] WSLR 239 (10 May 1979);
Lufilufi v Hunt [2011] WSSC 49;
Mua v Malolo[2021] WSSC 35;
Olaf v Chan Chui[2001] WSSC 18;
Petaia v Pa’u [2006] WSSC 1; 
Posala v Su’a [2006] WSSC 29;
Salele v Su'a [2021] WSSC 29;
Tafili v Peto [2021] WSSC 30;
Toevai v Salevao [2011] WSSC 53;
Vui v Ah Chong [2006] WSSC 52.	
		
Summary of decision:		

MISC 115/21

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

IN THE MATTER:

of the Election Act 2019

AND:

IN THE MATTER:

Concerning the Territorial Constituency of Sagaga No. 1

BETWEEN:

PAPALII TAVITA MOALA of Faleula & Ululoloa, a candidate for election.

Petitioner

AND:

LOAU KENETI SIO, of Faleula, a candidate for election.

Respondent

Coram:		Chief Justice Satiu Simativa Perese
		Justice Tologata Tafaoimalo Leilani Tuala-Warren 
		
Counsel: 	K. Koria & P. Toma for the Petitioner
M. Leung Wai & L. Sio for the Respondent 
		
Hearing:	04 - 06 August 2021
Submissions	11 August 2021
Judgment:	17 August 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 and Respondent competed to represent Sagaga 1.  Sagaga 1 comprises the villages of Aele, Faleula, Nuu, Solomona Fou and Tafaigata. On 16 April 2021 the Electoral Commissioner publically notified the results for this territorial constituency as follows:
	Loau Solamalemalo Keneti Sio			1010 votes
	Papalii Tavita Moala					688 votes
	Total valid votes					1698 votes 
	Informal votes						19
	Candidate declared to be elected – Loau Solamalemalo Keneti Sio
2. 	The Petitioner has brought this petition challenging the result which names Loau as successful candidate. The Petitioner alleges Loau is guilty of 4 counts of bribery and 1 count of treating.  Conversely, the Respondent has filed, with leave, a counter-petition.
The petition
3. 	The petition particularises the following acts of bribery:
(i) 	On or about 13 February 2021 at Aele –Fou, the Respondent gave to a gathering of the villagers of Aele money in the amount of $10,000;
(ii) 	On or about 7 April 2021 at Aele, the Respondent gave Sue Tau  $200;
(iii) 	On or about 7 April 2021 at Aele the Respondent gave Faafiu Lameta $100; and
(iv) 	On or about 20 August 2020 at Faleula, the Respondent gave the President, clergy and members of the Methodist church at Faleula, money by way of laulautasi gift giving ceremony.
4. 	The allegation of treating is particularised as the Respondent giving the President, clergy and members of the Methodist Church at Faleula, food and fine mats by way of a laulautasi gift giving ceremony on 20 August 2021.
5. 	The Petitioner prays for an order by the Court to declare Loau was not duly elected, his election is void, and a new election should be called.
The Counter Petition
6. 	The Respondent alleges against the Petitioner as follows;
(a) 	The first allegation is that on a date in the month of February 2021, the Petitioner through the leaders of the political party FAST namely, Laauli, Fiame and the Petitioner himself and other FAST members, at a gathering held at the Methodist Church Hall at Aele, being one of the villages in the electoral constituency of Sagaga 1 (distributed as follows - $1000 for the aumaga of Aele, $2000 for Faleula-tai and $2000 for Aele, plus money gifted separately for the Church Ministers) of which the following registered voters from the electoral constituency of Sagaga 1 received money, a plate of food and a bottle of water;
(i) 	Makelusa Leavasa-$20, plate of food and bottle of water;
(ii) 	Iakopo Seiloga aka Fetaiai Seiloga-$30, plate of food and bottle of water;
(iii) 	Solomona Toetu Sola-$20 and plate of food;
(iv) 	Pesamino Fetaiai Se aka Avamua-$50, plate of food and bottle of water;
(v) 	Suavine Taafi aka Pulusi Taafi-$50, plate of food;
(vi) 	Heretia Faaulu-$10, plate of food and bottle of water;
(vii) 	Losa Aitui aka Losa Pule Auimataga-$50, plate of food and bottle of water;
(viii) 	Lafaele Tauaga aka Tulimatala Lafaele-$50, plate of food.
(ix) 	FAST also promised that if FAST wins, through Petitioner being elected, that FAST will increase Pension for the Pensioners and each constituency would be given $1 million in addition to many other promises made.
(b) 	The second allegation is that the Petitioner himself or through his agents and/or Committee members gave Filifilia Folau, a registered voter of Sagaga 1, the following;
(i) 	On or about 20 February 2021 at the Petitioner’s house at Faleula, food plus 2 x $50 and 1 fine mat;
(ii) 	On or about 27 February 2021 received $100;
(iii) 	On or about 20 March 2021 received $150;
(iv) 	On or about 27 March 2021 received $300;
(v) 	On or about 8 April 2021 received $60.
(c) 	The third and final allegation is that on or about 30 March 2021 at approximately 10am at Fugalei at the Petitioner’s office, the Petitioner in the presence of his secretary and/or an agent Toleafoa Penaia, gave Toluiva Lemauai aka Asolelei Tuifao, a registered voter in Sagaga 1, $100.
7. 	The Respondent argues that the Petitioner should be declared and reported as having committed corrupt practices and should be disqualified from contesting any ensuing bi- election.
Law
8. 	The relevant parts of the Act are as follows;
	94. Corrupt Practice: 
	(1) 	A person is guilty of corrupt practice who commits: 
	(a) 	personation; or 
	(b) 	treating; or 
	(c) 	bribery. 
	(2) 	A person is guilty of corrupt practice who aids, abets, counsels, or obtains the commission of any offence listed in subsection (1). 
	96. Bribery: 
	(1) 	In this section, “voter” includes a person who has or claims to have a right to vote. 
	(2) 	A person commits the offence of bribery who, directly or indirectly in person or by any other person on his or her behalf either before, during or after voting:
	(a) 	gives any money or obtains an office to or for - 
	(i) 	a voter; or 
	(ii)	any other person on behalf of a voter; or
	(iii)	any other person, in order to induce a voter to vote or refrain from voting; or
	(b) 	does any act as a result of a voter having voted or refrained from voting; or
	(c) 	offers a gift to a person in order to induce that person to obtain, or endeavour to obtain, the return of a person at an election or the vote of a voter; or
	(d) 	in receipt of a gift whether tangible or not, obtains, engages, promises, or attempts to obtain, the return of a person at an election or the vote of a voter; or
	(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.
	100. Illegal activities during period of election:
	(1) 	In this section, “period of election” means the period during an election or by-election, commencing on the day after the Commissioner gives public notice of polling day and ending at the close of the Poll on polling day.
	(2) 	A candidate who during a period of election directly or indirectly, in person or through another person gives food, beverage, money or other valuable to a voter at a ceremony or activity is guilty of an illegal practice.
	(3) 	A voter who during a period of election obtains or attempts to obtain, directly or indirectly in person or through a person, any food, beverage, money or other valuable from a candidate for election, is guilty of an illegal practice.
	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.
9. 	We, respectfully consider that Petaia v Pa'u [2006] WSSC 1 (4 December 2006) sets out the state of the law as follows;
	To be guilty of the corrupt practices of bribery and treating the petitioner must prove that the respondent intended to induce the voters to vote other than in accordance with their conscience: Gagaifomauga No. 2 Territorial Constituency (1960-1969) WSLR 169 at 177; or gave 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: Hereford case (1869) 20 LT 405; if in any case looking at all the circumstances, the reasonable and probable effect ... 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: In the Wairau Election Petition (1912) 2 NZLR 321; re Election Petition Anoama’a East Territorial Constituency: Faamatuainu Talamailei v Savea Sione (unreported Misc 6007; (28/7/1982). Not only must the subjective intent of the respondent be corrupt but the methods employed must also be corrupt.
10. 	Further, in Lufilufi v Hunt [2011] WSSC 49 (26 April 2011), and Vui v Ah Chong [2006] WSSC 52 the Court cited with approval Rogers on Elections (20th ed) at page 270, on the issue of a person’s intent;
	"The intention of a person charged with bribery must be gathered from his acts. Mellor J in Launceston (1874) 2 O'M & H 133 said: I cannot go into any intention of the respondent, I must be governed by what he said and what he did, and by the inferences I ought to draw therefrom. And this was followed in Kingston-upon-Hull (1911) 6 O'M & H 389, per Buchnill J: You cannot allow a man to say, I did not intend to do that which amounted to bribery, if when you look at all the things which he did there is only one conclusion to draw and that is that he has done that which he said he did not intend to do."
11. 	We consider that it is important to note what this Court held in Posala v Sua:
	“An intention can never be proved as a fact; it can only be inferred from facts proven beyond a reasonable doubt.
12. 	The meaning of this observation was further discussed in Vui v Ah Chong in which Chief Justice Sapolu said:
	"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.
13. 	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].
Discussion
The petition allegations
(i) The giving of money to Sue Tau and Faafiu Lameta on 7 April 2021.
14. 	These two allegations turn on issues of credibility. 
15. 	Faafiu Lameta’s evidence is that on the morning of 7 April 2021, he saw Loau drive into Muaimalae’s house.   Faafiu appears to have approached Loau when he says Loau called out to him, and said tautuana le palota. He says Loau then reached into his pocket, took out a single $100 note and threw it down onto the ground. Faafiu says he took the money and divided it between himself ($20), Pisi ($20) and Muaimalae ($60). Although Faafiu is not a voter at Sagaga 1, he says Loau knew that his parents voted at Sagaga 1.
16. 	Muaimalae and Pisi gave evidence which contradicted Faafiu’s evidence. Muaimalae says that Loau came to visit him that morning, and that Loau was leaving as Faafiu was arriving. He says he did not see Loau give any money to Faafiu nor was any money was divided between Faafiu, Pisi or him.
17. 	Muaimalae’s nephew, Pisi Fealofai, who lives with Muaimalae, said Faafiu did come to their house that morning, but he came as Loau was leaving. He says Loau and Faafiu walked past each other, and he did not see Loau give any money to Faafiu, nor was any money divided between himself, Faafiu and Muaimalae. 
18. 	We prefer the evidence given by Muaimalae and Pisi. Having had the benefit of seeing them give evidence we are satisfied they were genuine and truthful. Both said that Faafiu asked them after Loau left “pe sa maua se ma tupe ia Loau”. When Loau allegedly gave the $100 note Faafiu suggested that Loau scrunched up the note and threw it at him as if it was a piece of rubbish.  This is a most strange way for money to be handed over in a “bribery” type of way, and no adequate explanation was offered.  To accept that money was given in this way amounted to bribery means that we need to accept that the money was given as an inducement but in a contemptuous way.  We would need more evidence about the parties relationship, if any, to be able to determine, if money had been given over, whether the respondent by his rudeness was actually intending to induce Faafiu to urge his parents to vote for him. We do not find that the allegation of giving $100 to Faafiu Lameta has been proven beyond reasonable doubt and dismiss it. 
19. 	The allegation that Loau gave $200 to Sue Tau rests on the evidence of Sue’s son, Tolomane Tau. Tolomane says that he worked for Loau on his plantation for $20 per day. He says on the morning of 7 April 2021, he went to Loau to ask for the day off so that he could take his mother to pre poll. He says Loau offered to drive him home and they went in his ministerial car. When they arrived at Tolomane’s home, he says that Loau went inside the house and gave his mother Sue $200, and said to her “tautuana le palota”.
20. 	Maua Teofilo and Aukusitino Faafua also both work for Loau and gave evidence in rebuttal. Both say that Tolomane had asked Loau for the day off being Wednesday 7 April 2021 as he had to take his mother to pre poll. Both gave evidence that Tolomane asked for the day off the previous evening, being Tuesday evening, so they were surprised when they saw him at the gate of Loau’s home on Wednesday morning. All three of then went to Loau and Tolomane asked Loau to borrow some money for his mother’s church obligations. Maua said Tolomane asked for $200 but Loau said he only had $100 and gave him $100. They say that Loau told Tolomane that he would deduct $20 weekly from his pay to repay the $100. Loau then took all three of them in his car and dropped Tolomane home on his way to take Maua and Aukusitino to get his boat from the sea.  
21. 	Both Maua and Aukusitino described Tolomane’s house as open Samoan fale, opposite the Methodist church. The site visit confirmed this. Neither witness was able to tell the Court the colour of Tolomane’s house.  We observed that Tolomane’s house actually has no colour, it being a square Samoan fale with unpainted pou. Maua and Aukusitino were able to accurately describe the type of house and its location, and despite being pushed on the issue, and looking as if there was some major defect in their evidence and that it was not being believed, they admirably kept to their evidence that they did not know the colour of the fale.  As we say, the reason they did not know was because it had no colour.  
22. 	We accept the evidence of Maua and Aukusitino about the events of Wednesday morning. Their evidence was consistent that Tolomane asked Loau for some money for his mother’s church obligations. We cannot infer a corrupt intention on the part of Loau, as we accept that Tolomane was an employee and the money he was given was to be paid back by weekly deductions from his pay. We therefore dismiss this allegation.
(ii)	Laulautasi to Methodist Church
23. 	This allegation is that on 20 August 2020 the Faleula village, including Loau, presented a laulautasi or asiga to the President and clergy of the Methodist church in their church compound in the village of Faleula. There is no dispute that gifts by way of money, fine mats and food were presented to the President, his wife and clergy. Iosefa Mavaeao and his wife Roneo Mavaeao gave evidence of what was given over during the laulautasi. Their evidence is consistent with the evidence of witnesses for the Respondent. The only question for the Court is whether in conducting the laulautasi, there was a corrupt intention to induce voters to vote for Loau some eight months later.
24. 	Fetaiai Vaauli Sagote, Lealali Niko, and Solamalemalo Uputasi Maiava are matai who sit in the saofaiga o matai in Faleula. All gave evidence that the laulautasi was to asi the President as it had been one year since he became President. They say that a laulautasi or asiga is done by the village of Faleula when a new President starts his term, after one year of his term, and when he is unwell. These are matai who are aware of the reasons for the decisions of the village of Faleula because they sit in the village Council. They all said it was also to ask the President’s blessing for Loau’s candidacy. At the time, the village of Faleula had agreed for Loau to be the only candidate running from the constituency of Sagaga Nos. 1, and they used the opportunity presented by the laulautasi to seek the President’s blessing of their decision.
25. 	The Methodist church compound is located within the village of Faleula. The president and clergy reside in the compound. We accept that there is an ongoing relationship of respect and protection between the village of Faleula and the Methodist Church. As we heard, during the Methodist Church annual conference, Faleula villagers leoleo the compound. 
26. 	We accept the evidence given by the matai of Faleula who sit in the Council where all decisions are made. The intention of the laulautasi was not a corrupt intention on the part of Loau, but an intention by the village to honour the first year of the current President as well as to seek the president’s blessing on their candidate Loau. The laulautasi or asiga is a usual occurrence between the village of Faleula and the President of the Church. Given the unique relationship between Faleula and the Methodist church, we do not find that it has been proven beyond reasonable doubt that Loau had a corrupt intention when Faleula presented the laulautasi to the president and clergy of the Methodist church.  
(iii) The giving of $10,000 to the village of Aele
27. 	There is no dispute that when the villages of Faleula and Aele met on 13 February 2021, $10,000.00 was given. The witnesses for the Petitioner say that the Respondent gave the money himself, while witnesses for the Respondent say nofo a tula gave the money. We accept that the nofo a tula gave the money not Loau for reasons which now follow. 
28. 	 This allegation goes directly to the status of Loau within the village of Faleula and this context is highly relevant in assessing whether a corrupt intention can be inferred on the part of Loau. The Loau’s faalupega is Toetaufanua o le Malietoa. He is one of two tapaau tausi within Faleula, the other being Telea which is currently vacant. This meant he was at the time the sole tapaau tausi to whom the village gave the highest respect. This is evidence which was accepted by all witnesses from Faleula. It is also not disputed that in Faleula the nofo a tula or orators are the decisions makers in all village matters, namely Laupamalala, Leatufale and Motunuu. 
29. 	This means in practical terms that if Loau formally visits another village or an event, e masii Faleula, meaning the village accompanies Loau. 
30. 	We accept Fetaiai’s evidence that the meeting was held at the request of the Aele Pulenuu sometime last year. This meeting finally took place on 13 February 2021. When Loau and Faleula arrived into Aele, taulealea of Aele lined the main road which runs through Aele, ava o le feiloaiga was conducted and speeches followed. After the speeches, Faleula gave $10,000 divided as follows;
(a) 	$4000 for the ava o le feiloaiga;
(b) 	$3000 for taumafataga;
(c) 	$2000 for taulealea;
(d) 	$500 for faifeau; and
(e) 	$500 for the lauga.
31. 	We accept that there was no food provided by Aele to the visiting party. We accept that the oral evidence the $10,000 was from the bank account of the village of Faleula. The respondent’s witnesses evidence on this point was not challenged in cross-examination and there was no contrary evidence led in rebuttal. We accept that although Aele neighbours Faleula, this is the first election in which they have been part of the same electoral constituency. We accept that Faleula is the only nuu mavae in this electoral constituency making it the most important in cultural terms. We accept that Faleula was united in their support for Loau and the roll in Faleula is just over 1700, while Aele has 269. 
32. 	We approach Toleafoa Jeffrey’s evidence with caution in relation to this meeting. He gave evidence that he was a committee member for the Petitioner and related to the Petitioner. His support for the Petitioner was obvious and this undermines the weight we can accord his evidence.  Toleafoa Jeffrey said Loau was distributing the money with his sister. Other witnesses said that Loau did not distribute the money, that such a role was left to the other Faleula matai who accompanied Loau.  
33. 	We accept that the giving of $10,000 to Aele was part of Faleula’s custom of paying the highest respect to their tapaau. The decision to give the money was not made by Loau but by the nofo a tula.  Further, it was not his money. The evidence of Lealali Niko who is both the treasurer and secretary of Faleula village council is particularly compelling. He was asked in cross examination by Counsel whether it is correct that the whole village of Faleula listens to Loau. He replied e sese. He says no one person decides for Faleula. It is the nofo a tula and afioaga who make decisions.
34. 	Indeed, we consider that the circumstances tell against an inference of a corrupt intention on the part of the respondent.  Having secured the support of the Faleula Village Council, he did not actually need to call on the relatively smaller number of votes from Aele. The actual results of the election demonstrate this point; Loau’s election majority was 322, significantly more that the total number of eligible voters in Aele of 269.  Of course, we do not lose sight of the inquiry in this petition as to whether there was a corrupt intention to persuade a single voter to vote in a particular way.  However, it would belie common sense to disregard the factual reality that in these circumstances it is extremely unlikely that there was a need to corruptly intend to influence an Aele elector’s vote.  It may be that if the number of voters in each village were comparable, a closer scrutiny would be warranted.  But, where in this case the village of Faleula carried by some margin a majority of the constituency, it is more likely that the true purpose of the feiloaiga – demonstrated by the guard of honour, is the cultural respect accorded by the Faleula village on Aele, which we note had been a number of months in the planning.
35. 	We do not find that the amount of the money given in these circumstances was excessive. The context within which we need to assess the amount of money given and whether it in and of itself can undoubtedly demonstrate a corrupt intention, are the village’s own rules of conduct and tu ma aga.  Where donations are demonstrably outside the village council’s own practice, that may indicate a corrupt intention.  Villages and itumalo have different tu ma aga.  In Faleula, the nofo a tula did not think this amount was excessive given their reverence for their tapaau.  Some senior matai said that the amount of $10,000 was small compared with other gifts in other cases.  One senior matai hoped that the $10,000 which had been agreed could be added to on the day.  He said Faleula was a wealthy village and it had a healthy bank account balance. We note that there was no food given by Aele.  The petitioner suggested this showed a failure to carry out cultural protocol and that this therefore meant the money must have been imbued with a dishonest purpose.  We respectfully disagree.   In totality, the amount was not considered excessive by those who made the decisions in the village, they were going to give the money whether they had been given taumafataga or not. 
36. 	In the case of Ah Him v Seiuli [2021] WSSC 27 (18 June 2021) the same amount was given by Seiuli for “suākī” or “mālū taeao” to Seiuli’s village council after a village council meeting. The Court ruled that the amount of $10,000 was excessive in terms of the sum normally spent on the village’s suākī or mālū taeao and was given by Seiuli after the village had consumed the already prepared mālū taeao. That differs significantly from the present case. Loau did not give the money. The money was given by matai of Faleula. The money here was given to a separate village, which was included for the first time into the electoral constituency of Sagaga 1 and which had welcomed Loau like Queen Elizabeth according to some Faleula matai. The money was also given to reflect the respect that Faleula had for its tapaau tausi, whereby the village of Faleula did masii to accompany Loau to a meeting requested by Aele. 
37. 	We do not find a corrupt intention on the part of Loau in the giving of this money. This allegation is dismissed.
Agency
38. 	The Petitioner has sought to amend the allegations to include agency. This is relevant only to the two allegations of the laulautasi and the giving of $10,000. Both were not done personally by Loau but by matai of Faleula who the Petitioner alleges are agents of Loau.
39. 	The law of agency is well established. This Court said in the cases of Toevai v Salevao [2011] WSSC 53 (27 May 2011); Petaia v Pau [2007] WSSC 19 (15 January 2007); Olaf v Chan Chui [2001] WSSC 18 (31 May 2001); Election Petition Territorial Constituency of Anoamaa-i-Sasa'e, Lufilufi v Hunt and in Election Petition Territorial Constituency of Vaisigano No.1, Tufuga v Vaai, that a person may become an agent in either of two ways: by actual appointment or employment, or by recognition and acceptance, and in determining the question of agency all the circumstances must be taken together.
40. 	In this case, the agents are alleged to be the matai of the village of Faleula, those who made the decision to take the laulautasi to the Methodist church and those who accompanied Loau to Aele. There being no evidence of actual appointment or employment, agency depends here on whether there was recognition that these matai were agents of Loau.
41. 	The intention behind the laulautasi is not a corrupt intention by the matai of Faleula, as we have found that the purpose of the laulautasi was to acknowledge the President’s first year and seek his blessing.
42. 	In relation to the meeting between Faleula and Aele, the respect that these matai have for their tapaau was the intention behind the giving of the money. That respect does not automatically translate into a corrupt intention on their behalf. We believe more is needed. This was a visit decided by the nofo a tula of Faleula, carried out by them with Loau being present. It is particularly compelling that we find that it was Aele that requested the meeting with Loau, Aele becoming part of Sagaga 1 for the first time and there being so few voters in Aele.
43. 	There was cross-examination on whether members of Komiti o le Nuu were members of Loau’s election committee. The Faleula matai who gave evidence without hesitation said they were. In our view that candour arises because the village had just one candidate - Loau. There was one village and one village council in support of Loau. As we have discussed, we consider the laulautasi and meeting with Aele to be high level village obligations. There was no evidence or allegation pointing to the village committee engaging in activities normally associated with election committees and why such a state of affairs might have been improper. In our view, in this case, even if the Komiti o le Nuu acted as Loau's election committee we do not consider that this alone would support an inference of a degree of impropriety or corrupt behaviour.
44. 	Even if we found that these matai were agents of Loau, as they are recognized as such, we do not find that they had any corrupt intention which can be attributed to Loau, in their masii to Aele to accompany their tapaau,. 
Counter Petition
45. 	The Respondent pointed to three events in support of his counter-petition:
(i) 	A road show held by the FAST party in February 2021, wherein a sum of money was handed over by FAST representatives to the crowd gathered at Aele, which gift it is alleged was not in accordance with tu ma aga.  
(ii) 	Payments which were made to one of the Petitioner’s committee members amounted to bribery because they were not justified, required or appropriate and were made to the committee member to stay the course and for Petitioner to retain the committee member’s support. 
(iii) 	A payment of $100 given to Toluiva Lemauai, a voter who attended the petitioner’s office at the invitation of Toleafoa Penaia, one of the Petitioner’s committee members.
(i)	FAST Roadshow
46. 	There is no dispute that a road show was held at Aele in February 2021.  It was a political rally, at which FAST presented its campaign, and its campaign promises that it would implement if elected to power.  They also urged those present to vote for the Petitioner, who spoke at the rally. FAST gave Aele the sum of $4,500 for an “ava” which did not take place, contrary to affidavits filed by the Petitioner.  
47. 	In support of its contention that $4,500 was excessive and disproportionate to the nature of the ceremony alleged to have happened, the Petitioner pointed to three overlapping factors - the low attendance by senior matai from Faleula: there was no aliitaeao or agatonu: and, the suggestion by FAST to dispense with the ava ceremony because of a lack of time meant that the amount of money paid, presumably prepared for an ava ceremony, was therefore clearly not justified in the absence of the ceremony.   
48. 	The respondent relies on the treatment of sums of money in cases such as Tafili v Peto [2021] WSSC 30 (25 June 2021), a case involving the gifting of $500.  They rely on paragraphs [24] and [25]:
	[24] 	The money was given after the ava oso, an entirely appropriate customary cultural response.  The timing of which is during faaaloaloga is consistent with customary practice tali le faaaloalo i le faaaloalo.
	[25]	The amount was $1,000 per village.  The amount of $1,000 given to each village is not excessive by any standards.  While the evidence does not establish how many voters were present from the respective villages, we note that according to Exh P1 for the Petitioner (the Electoral Roll) Leulumoega has 910 registered voters and Nofoalii 1,315.  We would more likely find an intention to be corrupt if the money given was utterly excessive considering either the number of voters present or the total number of potential voters.
49. 	The respondent also relied on Salele v Sua [2021] WSSC 29 (25 June 2021), where $2,000 was gifted, and the Court held that the payment was made in response to faaaloaloga and culturally appropriate in accordance with Samoan custom.  The counter-petitioner urged that the Electoral Court also drew the same distinction in Mua v Malolo [2021] WSSC 35 (16 July 2021), a case involving the gifting of $3,000.  
50. 	As if to stress the lack of cultural appropriateness of the gifting, the counter-petitioner stressed that the disbursement of the money to all the persons present was contrary to the cultural protocol that the money would be normally shared by the matai who gave tugase for the ava.
51. 	We do not appear to have been referred by the counter-petitioner to the decision of this Court in Ah Him v Seiuli referred to earlier in this decision.  The Ah Him decision appears at first to align with the counter-petitioner’s contention that the gifting was not culturally appropriate.  
52. 	However, the evidence in this case suggests two significant factors which tell against the counter-petitioner’s argument, which on the face of Ah Him might suggest he has committed bribery – corruptly inducing a voter to vote for a particular candidate by means of money or other valuable gift.
(a) 	The money was gifted not just to the residents of Aele, but also to the villages and representatives of Faleula, Nuu and Tafaigata.  It would be incorrect to say that the money in this case was being gifted to one entity or village, as was the case in Ah Him.  
(b) 	Ava which was collected for the aliitaeao were instead gifted to the FAST party as ava momoli. In other words, ava that were to have been used for the aliitaeao were, apparently because of a lack of time, presented to the FAST party to take with them.  We consider that this is a faaaloalo, not one which should be encouraged in the context of events connected with the electoral process, but it is nevertheless a faaaloalo to the FAST representatives from those gathered at the meeting for the FAST representatives.  In accordance with the principle e tali le faaaloalo i le faaaloalo it was culturally appropriate for the recipient of the faaaloalo to return the faaaloalo, which is traditionally represented by a gift of money.
53. 	These two distinctions appear to us to pose the following uncertainty – was the payment of $4,500 a corrupt attempt to induce voters to vote for FAST, and the petitioner in particular, dressed up in the guise of our tradition and culture?
54. 	We consider that this question cannot be resolved affirmatively to the requisite standard of beyond reasonable doubt.  The FAST rally was clearly a political rally – for FAST to discuss and announce their anavatau.  The point of the rally was to induce people to vote in a particular way or for a particular person.  However, not one witness was called to say that the political rally was but a sham or somehow some vehicle for handing out monetary bribes.  Witnesses who attended referred with reverence to the attendance at the rally by the leaders of FAST, in particular the Sa’o Faapito who is now Samoa’s Prime Minister.  The purpose of the rally was to gather support for the local candidate, and he spoke at the rally.  One witness even recounted the campaign promises.  In our view, it appears to us that a bona fide political rally took place.  
55. 	What the counter-petitioner asks of this court is to find that the payment of money corrupts by attempting to induce the voter to a particular political view (otherwise regarded as political campaigning).  But to make such finding requires the Court to prefer one interpretation of tu ma aga over another.  Both interpretations may in fact be correct – reasonable people can and often hold different views/interpretations.  Except in the case where one view is demonstrably unsupportable, we are not convinced that candidates should be penalized for holding a genuine and bona fide difference of view as to the correct interpretation of tu ma aga, particularly as between different villages and or itumalo.  If there is to be a standardized practice, then that is a matter for Parliament to consider. 
56. 	In this case, the difference of interpretation is that the counter-petitioner says there cannot be an ava without the ceremony.  If there was no ava then the money given on account of the ava could only be a corrupt bribe. On the other hand the petitioner says that there was faaaloalo when they were given the mat of tugase to take with them.  They responded by offering their own faaaloalo – the money, and therefore the gifting of money was culturally appropriate and not a corrupt bribe.
57. 	There is no evidence before this Court to suggest that when FAST asked to taofi the ava ceremony because of time restrictions, or for the ava to be given to them to take with them, that there was any corrupt intention on their part.  The counter-petitioner invites us to draw that inference from his interpretation that because the ceremony was not performed that it was wrong for the money to be given over.  It may have been procedurally wrong in the counter-petitioner’s eyes, but was it corrupt?  We cannot responsibly answer that question without more evidence, and it is the counter-petitioner who has the burden of proving his case.  
58. 	We are not satisfied that this allegation has been proved to the requisite standard and dismiss it.
(ii)	Payments to committee members
59. 	The counter-petitioner says that money paid to Filifilia Folau was bribery by the petitioner whilst Filifilia was a committee member.  Evidence of this bribery was the amount of the payments paid to Filifilia and the lack of any documentation which supported that Filifilia did any work for the money.
60. 	We had the benefit of seeing and hearing Filifilia give his evidence.  He spoke about promoting the petitioner when he was out and about and when he worked as a fisherman.  We are unable to discern from the evidence that there was any time when Filifilia was being paid to stay the course.  He appeared to us to be involved and enjoyed his role as a representative for the petitioner.
61. 	We consider this allegation to be contrived and devoid of a credible evidential foundation. It is dismissed.
(iii)	Payment of $100 to Toluiva Lemauai
62. 	As with the allegation concerning payment to Filifilia Folau, we also found this ground to be lacking any credible foundation. We have been invited to accept that Toluiva went to the petitioner’s office early one morning and after a brief exchange the petitioner gave her $100, witnessed by Toleafoa Jeffrey Peni.  
63. 	We must remind the counter-petitioner that it is not simply the act of giving money which is prohibited by the Electoral Act – it is the act of giving money to induce a voter to vote or refrain from voting.  In other words, the counter-petitioner must lead evidence which shows or supports an inference that the payment of money has been made in order to induce a voter to vote or refrain from voting.  When the voter has been shown to have been induced to vote or refrain from voting by the payment of money, that is bribery, and bribery is a corrupt practice.
64. 	The counter-petitioner’s evidence appears to be that although the petitioner may have asked Toluiva and her husband to vote for him, Toluiva responded by saying that she intended to vote for the Sa’o of her family and not the petitioner. Nevertheless, Toluiva said the petitioner told her he would leave her with his request, and he gave her $100 when she left.  The counter-petitioner invites the Court to draw from the making of the payment that this was a payment to induce Toluiva to vote for him. We consider that submission to be undermined by the evidence.  The witness intended to vote for the Sa’o of her family.  For whatever reason the petitioner gave $100 to Toluiva, we can confidently say that it could not have been to induce her to vote for him because she had just told him she was going to vote for the Sa’o of her family.  If the $100 was intended to be a bribe to have her change her mind, one would think that to persuade someone to vote against the leader of their family would have taken a payment with many more zeros than that offered by the petitioner. 
65. 	The counter-petitioner submits that it would be irrational for Toluiva to simply show up at the petitioner’s office because she did not know the petitioner, effectively to ask for money.  In our view it is just as implausible that Toleafoa invited a known family member of the counter-petitioner (their political rival) to attend at the petitioner’s office for the purpose of bribing her to vote for them.  There is simply not enough evidence to be satisfied beyond a reasonable doubt. 
66. 	This allegation is dismissed.
Veracity
67. 	Before our conclusion, we touch briefly on veracity rules as it arose in this hearing. Counsel for the Respondent posed questions to three of the Petitioner’s witnesses concerning either their previous convictions, status in the Church clergy or in the village council. All questions were to question that person’s veracity. We have disregarded all these questions and answers.
68. 	Counsel are well aware of sections 26 and 27 of the Evidence Act 2015 on how veracity rules are applied. In order to allow evidence about a person’s veracity, Counsel must show that the evidence proposed is substantially helpful, and this is done by showing one or more of the following matters;
(a) 	Lack of veracity on the part of the person when under a legal obligation to tell the truth (for example, in an earlier proceeding or in a signed declaration);
(b) 	That the person has been convicted of one or more offences that indicate a propensity for dishonestly or lack of veracity;
(c) 	Any previous inconsistent statements made by the person;
(d) 	Bias on the part of the person;
(e) 	A motive on the part of the person to be untruthful.
69. 	None of these matters were established by Counsel.
Conclusion
70. 	In relation to the Petition, we do not find that the allegations contained therein have been proven beyond reasonable doubt and we dismiss the Petition in its entirety.
71. 	Similarly, we also find that the allegations contained in the Counter-petition have not been proved beyond reasonable doubt, and it is dismissed.
72. 	Each party will bear its own costs.
73. 	The security for costs paid by the Petitioner will be reimbursed.

CHIEF JUSTICE PERESE
JUSTICE TUALA-WARREN