Home | Databases | WorldLII | Search | Feedback Supreme Court of Samoa

Kuinise v Tone [2001] WSSC 21 (27 July 2001)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

IN THE MATTER: of the Electoral Act 1963

AND

IN THE MATTER: concerning the Election Petition by LAGAAIA KUINISE
against the election of LEITUALA TUUAGA TONE
to represent the Territorial Constituency of Palauli i Sasae
Petitioner

AND:

LEITUALA TUUAGA TONE
of Vaitoomuli, a candidate for election.
Respondent

CORAM: SAPOLU CJ

VAAI J

NELSON J

Counsel: Mr Tuimalealiifano AV Eti for the Petitioner
Mr M. Leung Wai for the Respondent

Date of hearing: 26, 27, 28, 29 June 2001 & 2 July 2001
Date of Decision: 27th July, 2001

JUDGMENT OF THE COURT DELIVERED BY VAAI J.

The 2001 parliamentary elections were held on Friday 2nd March 2001 and the declared results for the territorial constituency of Palauli i Sasae were as follows:-

Lagaaia Kuinise 519

Leituala Tone Tuuaga 527

Leleisiuao Palemene 479

Leituala Tone Tuuaga was accordingly declared duly elected.

The constituency of Palauli i Sasae consists of 3 villages namely Fa’ala, Vaito’omuli and Vailoa. Lagaaia Kuinise is from Fa’ala; Leituala Tone is from Vaito’omuli and Leleisiuao Palemene is from Vailoa. The Petitioner Lagaaia Kuinise who polled the second highest number of votes filed a petition against the Respondent seeking that the Respondent be declared to be not duly elected and that his election be declared void and for a declaration that the Petitioner be declared elected. In support of the petition the petitioner sets out four allegations of bribery and or treating. We shall deal with each allegation in the order they appear in the petition.

The first allegation is that on or about the 19th February 2001 the First Respondent took Galutoto Farani and her husband Poasa Nusipepa both electors to his residence at Motootua and provided them with lunch; gave them $100 fare to Faala, Savaii and offered to help them with their loan with the Development Bank of Samoa after the General Elections. In support of this allegation both Galutoto Farani and her husband Poasa Nusipepa gave evidence. Galutoto told the court that her husband had a loan with the Development Bank which was in arrears by February 2001 in the sum of $250 and the bank was threatening legal action. She obtained from a fellow worker (a relative of the Respondent) the Apia home telephone number of the Respondent who was then the sitting member of Parliament for Palauli i Sasae and a Cabinet Minister. She rang the Respondent at his home and introduced herself as the daughter of Laulu Farani. Laulu Farani is a matai of Fa’ala and is known to the Respondent. She requested $250 from the Respondent to pay the loan arrears and during the course of the conversation was given the private telephone number of the Respondent at his Ministerial office. She telephoned the Respondent the second time using his private number and was told to give him time as he did not have money at the time and he will get in touch with her. She left her work telephone number with him. On Friday the 16th February the Respondent telephoned and told her to catch the first ferry boat to Apia on Monday 19th to see him at his office at the government building. She duly travelled with her 5 year old son to Apia on the 6 o’clock ferry on the morning of the 19th and as pre-arranged with her husband who had travelled to Apia the week before on family matters, they met at the market and proceeded to the government building where they were informed that the Respondent was attending the launching of his political party election campaign manifesto at the Mother’s Centre. Outside the Mother’s Centre they met Taalili the son and ministerial driver for the Respondent who confirmed that the Respondent was inside attending a meeting. While they were talking with Taalili the Respondent came out at the conclusion of the party meeting and the Respondent was told by Galutoto of the reason for their visit as a result of their telephone conversation on the 16th February and she also expressed their desire to travel to Savaii on the last boat at 4pm that day. At the invitation of the Respondent they all travelled to the Respondent’s residence at Motootua where a number of people who travelled from Savaii for a funeral were present in the Samoan fale and in the main house. They all went inside the main house where the Respondent invited them to sit at the table for lunch and when they sat down to eat there was no other person sitting at the table so that when they ate lunch only the Respondent, Galutoto, Poasa and their child were sitting at the table. There was in fact was no other adult inside the room where they were eating except a lady who came to bring more food and left. Before sitting down to eat at the table the Respondent first walked to the Samoan fale where people who came from Savaii for the funeral were resting and upon rejoining Galutoto and Poasa at the table for lunch he told them he was unable to help with the loan repayment then but he will be able to help after the elections. He then gave them $100 as pasese back to Savaii, and at the conclusion of lunch, through his mobile phone he rang a taxi, gave them $3 for taxi fare to the market and they then left to catch the bus for the wharf. Both Galutoto and Poasa said that the Respondent during the course of handing over the $100 said to them to bear in mind the elections (tautuana le palota).

In response to the allegation the Respondent confirmed that Galutoto Farani telephoned him twice but he said that both calls were made to his office requesting monies to pay their loan. Both requests were denied. On her first call she introduced herself as the daughter of Laulu Farani who is well known to him and she told the Respondent she is employed by Bluebird Salelologa. He denies he rang Galutoto on the 16th February; that it was Galutoto who rang him for the second time on his private office line on the 16th February inquiring whether money has been found for their loan. And he did not invite her to come to Apia on the 19th February so that when he met her and Poasa outside the Mother’s Centre on the 19th February for the first time he again turned down her request for money to pay their loan. Galutoto then requested that they be dropped off at Vaivase but when the car stopped at the Respondent’s house at Motootua, Galutoto and Poasa also got off and followed the Respondent into the house uninvited and as they were walking to the house Galutoto again requested the Respondent for the money as they wish to catch the last ferry to Savaii that day. On entering the house members of the Respondent’s family were at the table having lunch and on his return after hanging his coat the Respondent saw Galutoto and Poasa sitting at the table eating and again he told them there is no money before he proceeded to the Samoan fale with his wife to greet his guests from Savaii. The Respondent did not see Galutoto again that day and he therefore denies giving Galutoto and Poasa $100 as pasese to Savaii; he denies telling them he will help with the loan repayment after the elections; he denies ringing a taxi and he denies giving them $3 for taxi fare to the market. As of that day he was not sure whether Galutoto and husband were voters in his constituency.

Lefine the wife of the Respondent said she was at their house at Motootua when the Respondent and a couple walked in on the 19th and she knew the couples names then because it was mentioned to her by her husband. She heard the Respondent tell Galutoto and her husband that there was no money to give and she and her husband then left for the Samoan fale. Before leaving for the Samoan fale her husband never gave Galutoto and husband any money; did not offer to help them with their loan; and did not offer them any food. She did however know that Galutoto and her husband were from Fa'ala and were electors in the Palauli i Sasae constituency. The significance of this part of her evidence will be referred to later in our judgment.

Other members of the Respondent’s household also gave evidence to the effect that the Respondent did not sit down at the table and eat with Galutoto and husband; he did not give them $100; he did not offer to help with their loan after the elections and he did not pay for the taxi fare. They insist that Galutoto and her husband joined other members of the family at the table and after eating, they walked to the road and were not seen again.

In considering the allegation we have of course reminded ourselves that the onus lies on the petitioner to establish each allegation beyond reasonable doubt and that the Petitioner must prove that the Respondent intended to corruptly influence the electors contrary to the spirit of the Electoral Act : See our decision in Muagututagata Peter Ah Him v Maulolo Tavita (Sagaga Le Usoga Territorial Constituency) given on the 10th May 2001.

There is a direct clash of evidence adduced by the witnesses for the Petitioner and the evidence given by the witnesses for the Respondent and it has been necessary to examine the testimony of each witness with great care because at least one or several witnesses are either lying or are gravely mistaken. Galutoto for instance said she rang the Respondent at his home requesting assistance for their delinquent loan and was told by the Respondent to give him time as he did not have any money at the time. She was also given the private number of the Respondent which she rang the second time. The Respondent on the other hand admitted Galutoto telephoned twice but he said that on each occasion he turned down her request. Galutoto also said the Respondent telephoned her on the 16th February to come to Apia on the 19th but the Respondent on the other hand said it was Galutoto who rang him on the 16th February using his private line.

During the course of his testimony the Respondent spent considerable time expounding on a theory that the Petitioner and his witnesses (including Galutoto and her husband who were all from Fa'ala Palauli and members of the Mormon faith) were engaged in a plot to bring about his downfall by manufacturing false evidence or setting him up to commit acts of corrupt practices. He insists that Galutoto came to Apia uninvited; accosted him for money to pay the loan; she demanded to be taken to Vaivase in the Respondent’s car; she and her husband went into the Respondent’s home uninvited and they sat themselves down at the table and ate without being asked. The Respondent at that point, at his home at Motootua on the 19th February 2001, (12 days before election day) also said he did not know whether Galutoto and her husband were electors in his constituency. But the Respondent’s wife in her testimony said she knew the names of Galutoto and her husband that day because her husband the Respondent mentioned them and she also knew they were from Fa’ala and were electors at Palauli i Sasae constituency. The proper inference to be drawn from her evidence is that since it was the Respondent who told her of the names Galutoto and Poasa it would also be true that it was also the Respondent who told her that Galutoto and Poasa were electors of Palauli i Sasae. We therefore do not accept the evidence of the Respondent when he said that on the 19th February 2001 he did not know whether Galutoto and Poasa were electors in his constituency. Secondly if he is correct that Galutoto telephoned twice asking for some money, and if she introduced herself as the daughter of Laulu Farani (who was known to the Respondent), and with the elections pending; it would be out of caution and out of curiosity to any candidate to cause an inquiry to be made if she is in fact the daughter of Laulu Farani from Fa'ala and an elector as well. Thirdly it is conceded that Galutoto did telephone the Respondent on his office private number and which number Galutoto said was given to her by the Respondent. Having considered the evidence and having assessed the degrees, quality and value of each item and event in the light of the reliability and demeanour of witnesses we have come to the conclusion to prefer the evidence of Galutoto as more truthful and accurate and we are accordingly satisfied that she was invited by the Respondent on the telephone on the 16th February to travel to Apia on the 19th February where they were invited by the Respondent to his house at Motootua. We are also satisfied that it was the Respondent himself who gave to Galutoto his office private telephone number. At the same time he knew very well that both Galutoto and her husband Poasa were electors in the electoral constituency of Palauli i Sasae. We accept that upon their arrival at Motootua there was food prepared for the Respondent’s family and his guests who had come from Savaii for a funeral, and Galutoto and her husband were invited to join in. Although we are not satisfied that the provision of the food did amount to treating we are satisfied that it was an illegal practice and we find this incident proven as such.

As to the second and third part of the first allegation there is again a direct conflict of evidence as the Respondent and members of his household flatly denies the giving of $100 to Galutoto and husband and the promise to assist with the loan after the election. We have accepted that Galutoto came to Apia at the request of the Respondent in connection with her request for the loan repayment and she and her husband were invited to the Respondent’s house at Motootua. We have found against the Respondent in the first part of the first allegation and we also prefer the evidence of Galutoto and her husband in respect of the second and third part of the allegation. In our view it would be non sensical to ask Galutoto to come to Apia to be told that assistance cannot be given. Elections were pending and according to the Respondent each of the 3 villages of the Palauli i Sasae constituency was supporting its own candidate. Despite his answers to the contrary in his testimony that he did not need the votes of Fa’ala electors like Galutoto and Poasa we are satisfied he needed the votes from the other villages as he knew he was running a tight race. It is against all logic for the Respondent to say that he did not want the votes of certain electors because after all the purpose of election campaigns is to win as many votes as possible. We have after consideration of the evidence come to the conclusion that $100 was given by the Respondent to Galutoto and her husband and the Respondent also offered to assist with the loan after the elections and that both instances constitutes bribery in terms of Section 96 of the Act. Both Galutoto and her husband would be accomplices because by their own accounts they claim that the money and the offer to assist with the loan after the elections were both bribes. Although it is dangerous to act on their individual evidence without corroboration, the law does provide that the evidence of one accomplice can provide corroboration for the evidence of another accomplice, and we view their evidence as corroborating one another.

There has been reference in the oral testimonies of both Galutoto and husband that the Respondent also gave them $3 as taxi fare from his house to the Market. As there is no such allegation in the petition we are of the view that we need not consider that matter further.

We now turn to consider the second allegation namely that on or about the 1st March 2001 at Salelologa market, the Respondent requested one Fa’afoi Moana Ah Chee an elector to vote for him and presented him $5 and such act was witnessed by one Logo Opeka an elector.

Faafoi a taxi driver by occupation was on the afternoon of the 1st March at the taxi stand besides the Market and the ANZ Bank Salelologa when he saw the Respondent in his double cap pickup. Faafoi tried to hide because the Respondent had asked him earlier to remember the elections but the Respondent honked the horn, stopped his car and called out to him. When he went over to the car the Respondent said to him “o uo mo aso uma a’o uso mo aso vale, aumai lau ekisi ma a’u.” The Respondent then reached inside his shirt pocked and gave him $5 before he drove away and Laulu Opeta another taxi driver who was watching came over and asked if he had received $100. Faafoi showed Laulu the $5 note. Inside the Respondent’s car was the Respondent’s wife and a young child and on the tray of the pickup was one Taumaoe a relative of the Respondent who was at the market before jumping onto the pickup. Taumaoe, the Respondent and the Respondent’s wife are known to Faafoi. Faafoi said he saw Taumaoe jump onto the pickup before the Respondent gave him $5.

Laulu Opeta a taxi driver from Fa’ala Palauli said he was at the taxi stand besides the ANZ Bank on the afternoon of the 1st March when he noticed the Respondent’s pickup came from behind the market towards the taxi stand and stopped about 10 feet from him. In the front seat were the Respondent and his wife. He saw the Respondent talking to Faafoi Ah Chee and while they were talking he saw the Respondent reached inside his shirt pocket with his right hand and gave to Faafoi who was standing besides his wife what appears to be money. When the car left he walked over to Faafoi and inquired whether it was $100 which he had just received from the Respondent and Faafoi showed him the $5 note which he was still holding in his hand. Faafoi then went to the market and bought ava with the $5.

In reply to this allegation the Respondent does not deny that he did drive between the market and the ANZ Bank on the afternoon of the 1st March (the day before the election) after shopping at the Ah Liki Wholesale. But he denies he stopped his car to talk to Faafoi Ah Chee. According to the evidence of the Respondent, he was driving by the market when he saw Faafoi waving at him and he simply honked his horn in response but he did not stop his car to talk to Faafoi or give him any money.

Taumaoe Sau Aperila gave evidence that on the afternoon of the 1st March he saw the Respondent’s pickup moving slowly between the Salelologa Market and Ah Liki wholesale and he hopped on and sat at the back leaning against the rear of the tray and facing the front. He heard the honking and saw Faafoi waving to the pickup but the pickup did not stop.

The wife of the Respondent also said in evidence that as their vehicle was going besides the market a man lifted his hand and the Respondent honked in response.

We have given careful consideration to the conflicting evidence of the Respondent and his witness and the witnesses for the petitioner and we have decided to accept the evidence given by the witnesses for the petitioner. Laulu Opeta who witnessed the conversation between the Respondent and Faafoi Ah Chee saw the Respondent giving what appeared to be money to Faafoi and he immediately walked over to Faafoi when the Respondent left to inquire as to the amount of money given. Laulu Opeta like all other witnesses for the Petitioner is from Fa’ala and is of the Mormon faith and it has been suggested by the Respondent that Fa’afoi Ah Chee and Laulu Opeta were some of the players in the conspiracy to bring about the downfall of the Respondent. Both Faafoi Ah Chee and Laulu Opeta were unshaken under cross examination. The suggestion by the Respondent is untenable in the face of the evidence placed before us. We are satisfied that $5 was given by the Respondent to Faafoi Ah Chee with a corrupt motive the day before election. This allegation of bribery is proved beyond reasonable doubt.

In respect of the third allegation it is alleged that on or about the 1st March 2001 between 3pm and 4pm, the Respondent visited Galutoto Farani at her place of employment, Bluebird Industries at Salelologa and wanted to know where she was voting and invited her to stop by after work at his residence at Vaitoomuli for some money as he had no money to give her right away.

Galutoto in her evidence said that on the 1st March in the afternoon while she was working at the Bluebird Compound Salelologa she saw the Respondent came and gestured to her to come and they then walked to his car where he told her that the bank was closed and she should come to his home at Vaitoomuli Palauli after work where he will have some money to give to her. Galutoto did not go to the Respondent’s house.

Poasa Nusipepa the husband of Galutoto in his evidence said that he was at the Salelologa wharf on the afternoon of the 1st March to await a ferry to Apia when the Respondent approached and asked him if he was going to Apia. Poasa said he was and was given $40 by the Respondent and the Respondent also told him that he will visit Galutoto at her place of employment.

Concerning this allegation the Respondent says that on the 1st March he travelled with his wife and grandson to Savaii arriving at Salelologa wharf about 2pm or 3pm. After shopping at Ah Liki wholesale they drove between the Market and ANZ Bank where Faafoi Ah Chee waved and he honked the car horn in response. They then drove to Vaitoomuli with his wife and grandson and with Taumaoe Aperila sitting at the back on the tray of the pickup. He forgot to inform his relatives living at Salelologa that a car will be sent to pick them up on election day and they turned around. After speaking to the relatives they headed back to Vaitoomuli and on their way they stopped at the Bluebird compound to buy chips and cans of soft drinks for the grandson. As the Respondent was walking back to his car with chips and drinks he said he was approached by Galutoto for money to pay her loan. He told Galutoto he will not help her because he believed she has no loan at all and he then got into the car and drove away.

The Respondents wife in her evidence told the court that after driving between the Market and the ANZ Bank where Faafoi Ah Chee waved at them they went to Salelologa to visit their relatives before going to the Bluebird mall to buy chips and drinks. She confirmed the testimony of her husband that as the Respondent was walking to the car after buying the chips and drinks he was followed by Galutoto who requested money from him but he turned her down. The drinks her husband bought were cans of soft drinks.

Taumaoe who was sitting at the back of the pickup confirmed that their vehicle stopped at Bluebird mall where the Respondent bought some chips and drinks and on his way back to the car he was followed by a girl who was talking to him. The drinks the Respondent bought were bottles of soft drinks.

Here again the court is faced with conflicting evidence which it has to resolve and determine which evidence should be accepted. In the first place there is the evidence of Poasa Nusipepa who was at Salelologa wharf where he talked to the Respondent who told him that he was going to visit Galutoto at her working place. That part of the testimony of Poasa was never challenged in cross examination by Respondent’s counsel and neither was it referred to by the Respondent in his evidence. We therefore conclude its truth has been accepted by the Respondent. Secondly there is the evidence of the Respondent that on their way to Vaitoomuli Palauli he realised that he had forgotten to tell his relatives at Salelologa that a car will come on election day to pick them up. They then returned to Salelologa to his relatives place and on their way back to Palauli after seeing their relatives he called into the Blurbird Mall to buy chips and drinks. But the wife of the Respondent told the court that their relatives at Salelologa that they visited were not electors of Palauli i Sasae constituency. And there is also the oral testimony of Taumaoe Aperila who was sitting at the back of the pickup that from the market where he saw Faafoi waved, the pickup turned left to travel towards Salelologa main road to visit relatives. And after seeing the relatives they turned back to go to the Bluebird Mall.

As a consequence of the evidence we have just referred to we have decided to accept the evidence of Galutoto that the Respondent went to the Bluebird Mall specifically to see Galutoto and not to buy chips and drinks. We also accept her evidence that the Respondent requested her to come to his place after work to get some money as he had none with him. We are satisfied that the request was made with a corrupt intent to induce Galutoto to vote for the Respondent. This allegation is also proven beyond reasonable doubt.

We now turn to the final allegation namely that on Election day at about 8am the Respondent drove through Fa’ala Palauli while one Sala Agagalii Tuufuli an elector was walking on the road from a shop towards her home and he stopped by her and presented her $20 and also requested her to vote for him.

Sala Agagalii Tuufuli in her evidence said that on the morning of election day she was walking home on the main road from the shop when she saw the Respondent’s vehicle coming from Salelologa direction. It was about 8 o’clock and she was walking towards the Salelologa direction. The vehicle went by her, stopped, reversed and when it stopped besides her she noticed it was the Respondent driving. The Respondent after inquiring about her father gave Sala $20 and requested her to vote for the Respondent. Sala thanked the Respondent and the Respondent then drove away. Under cross examination she could not remember the colour of the Respondent’s pickup; she could not remember what she did with the $20 she received; she could not remember what she bought at the shop that morning; and she could not remember whether the Respondent’s pickup honked its horn that morning.

The Petitioner also gave evidence and he said that on the morning of election day at about 8 o’clock he saw the Respondent driving his pickup towards Salelologa direction and on its return it stopped in front of the shop honked its horn about 3 times and then left. The petitioner’s house is not far from the shop and is fairly close to the road. At the time the Respondent’s vehicle stopped and left again the petitioner saw no one walking on the road. He could see the car and no one went to the car when it stopped.

The Respondent denies driving his vehicle on election day towards Salelologa direction. He said he was in his house all morning before he walked to the booth to cast his vote at about 10am at Vaitoomuli. A number of witnesses were called to confirm that the Respondent was at his home all morning until he left by foot to cast his vote.

In our view the allegation cannot be sustained on the evidence adduced by Sala Agagalii Tuufuli and the petitioner himself. The evidence is conflicting and unreliable and bearing in mind the standard of proof the evidence falls far short of the required standard and the allegation is accordingly dismissed.

In view of our above findings we accordingly declare the election of the respondent void under section 112 of the Act.

The Respondent is ordered to pay costs of $800.00 to the Petitioner which costs include the hearing of the Petition and costs of the preliminary motion by the Respondent to strike out which was unsuccessful.

The court will report its findings to the Honourable Speaker.

Solicitors:
Mr Tuimalealiifano TV Eti for the petitioner
Mr M Leung Wai for the first respondent