The Supreme Court has found that credibility questions hanging over the heads of key witnesses were among the reasons it ruled to dismiss a petition mounted by a caretaker Minister who sought to challenge his election loss.

Chief Justice, His Honour Satiu Simativa Perese and Justice Vui Clarence Nelson last week quashed electoral challenges for the Vaisigano No. 1 constituency.

The caretaker Minister of Agriculture and Fisheries, Lopaoo Natanielu Mua alleged five counts of corrupt practices against the elected M.P. for the seat, Niuava Eti Malolo.

Niuava also pursued a counter petition in response to the challenge from Lopaoo - accusing the Minister of two claims of bribery.

Lawyers Aumua Ming Leung Wai and Lucy Sio-Ofoia represented Lopaoo while Tanya Toailoa acted for Niuava.

The Supreme Court Justices that presided the case found the evidence from the witnesses from both sides contradictory and unreliable.

 One witness alleged three counts of bribery and treating by committee members of Niuava on the election day.

Aloa Malau, a Vaisigano No. 1 voter who resides in Vaitele-fou, testified for Lopaoo.  

His evidence was that in the evening of the election week Niuava’s committee members came to his house where he was given the respondent’s phone number and told to call him for transport in Savaii.  

Whether he called the respondent or the respondent called him is unclear, the court noted, but on election day he took a ferry to Savaii.  

He testified that, as arranged with Niuava, he was met at Salelologa wharf by other committee members and directed to a white van.

Inside the van was a driver and a committee member as well as a number of other people, he said.

Under examination he said the driver drove from Salelologa wharf but between Aopo and Asau another person, by the name of Faofua, took over the wheels.

He did not say who drove from Asau to Vaisala but said he voted at the polling booth at Vaisala where there was a long queue.

However, the court found several difficulties with the witnesses' testimony saying the evidence was contradictory.

“First the evidence that he was visited at his Vaitele-fou house on the evening of Tuesday 6 April 2021 by Puleitu is not in his sworn affidavit neither is there any reference therein to him speaking to the respondent (Niuava) about transporting arrangements in Savaii,” the court said in its judgment.

“These are significant omissions which he could not satisfactorily explain.

“Second if he says he was in such a hurry to vote and return to Apia, why was there so much backtracking in his movements on the day in question.

“He says the white van from Salelologa carrying him and others, presumably also voters, continued through Asau to Vaisala driven from Asau by we do not know whom.

“They therefore would have bypassed the polling booths at both Asau and Auala as Vaisala is further away from Asau…”

The court further found that the witness seems to have been engaged in a lot of “unnecessary movement passengering in at least three different vehicles on the day” the alleged incident occurred.

“It seems to us he was a man on a mission and voting was merely a means to an end,” said the Court.

“Third, his overall credibility was unconvincing.

“There were no witnesses called by the petitioner [Lopaoo] to corroborate or in support of Aloa’s evidence…the people he says he spoke to were called by the respondent and they all gave different testimony to that of Aloa.”

The court said the onus of proof fell on the petitioner, who was required to prove the claims.

“The onus of proving an allegation rests on the petitioner and the standard required is proof beyond reasonable doubt. The preponderance of evidence being against Aloa we are not satisfied the first three allegations have been proven to the required standard,” the court ruled.

Another allegation raised by the petition related to a voter named Lote Faaee who claimed a lady by the name of "Vai" had given her a ferry ticket to Savai'i two days prior to election day.

She told the Court that she then hopped in a van with other people and was given a bottle of water and cake during the ride off to Asau where she voted.

But the court found the evidence evidence as a “most extraordinary tale”.

“As the witness admitted she did not know the respondent, she is asking the Court to believe her travel from Leauvaa in Upolu to Asau in Savaii to vote was facilitated by people she did not know and undertaken in the company of other people she did not know,” the judgement said.

“And despite the promise of a 'pasese' (transport money) she settled for a bottle of water and some cake, there being no evidence she was compensated for any of her bus fares (Leauvaa to Mulifanua, Asau to Salelologa, Mulifanua back to Leauvaa) or her return ferry ticket or any other expenses.”

The court said the witness' evidence was unsupported by any other evidence and was contradicted by the witness Vaipuese Taulapapa of Vaitele-fou or Vai.

According to Vai she never saw Lote either at Mulifanua wharf or at Vasati. She also strenuously denied providing her with a ferry ticket.

While she accepts she travelled to Savaii as she voted in Salega but said she travelled with Niuava’s wife, saying the two were friends and live on the same street in  Vaitele.

She also denied the claims from the petitioner’s witness - saying her daughter, who had accompanied her to Savai'i, bought their ferry ticket.

The court further noted that Lote is related to Lopaoo and told the court she was contacted by a relative of her father who holds the same title Lopaoo about the matter.

According to the court it was ridiculous that the witness Lote seems to suggest Lopaoo is related to her father but not to her.

“We have little difficulty rejecting Lote’s evidence,” the judgment stated.

“It is simply not credible and flies in the face of the evidence of both Sunetui and Vaipuese whom we found a most believable witness notwithstanding her connection to the respondent through his wife.

“This allegation is not proven to any extent let alone beyond reasonable doubt.”

Another claim dismissed by the court related to $3000 given by the Faatuatua ile Atua Samoa ua Tasi (F.A.S.T.) party during a roadshow to the constituency.

The Court noted that it was surprising that there was only one witness for the petitioner who  provided evidence regarding an event that was widely participated in.

“The evidence of this issue surprisingly comes from only one witness Avagatunu Kosena a matai from Asau despite indications that there were a myriad of people present,” the court said.

“Given the content of his evidence and cultural issues it raises, why the to’oto’o of the itumalo for the occasion said by him to be Alaelua Tofisala of Vaisala or possibly other orators were not called is a mystery.

“Avagatunu said Alaelua is not travelling and does not know why he was not subpoenaed to testify.”

The court said it had much reasonable doubt as to the accuracy of the sole witness in the case and had dismissed the allegation.

In relation an allegation within a counter petition alleging Lopaoo gave money to sailors who were also voters from the constituency the court did not find it was proven beyond reasonable doubt.

The court said the witnesses that testified contradicted their sworn affidavits.

Lopaoo gave evidence to deny the allegations saying he is generous by nature and gives money to people on many occasions at shops and other venue not only to the crew of the Lady Samoa.

The court referred to the Caretaker Minister’s evidence that gives because he is motivated by a genuine desire to help people less fortunate than him.

He said he has been doing this for a long time even before he became a member of parliament.

A witness by the name Tulega confirmed to the Court that the Minister always tipped and ahs a reputation for being generous.

The court said “however noble his motives may be it is in our view a dangerous practice for a political figure” especially one holding the high office of a Minister.

“Such acts of generosity can easily be interpreted to be simply another form of campaigning for political purposes using money as a lure to attract voters,” the court noted.

“Although his evidence of the instance testified to by Fuapepe and Tulega was confusing and at times contradictory we are in reasonable doubt as to whether he had the necessary corrupt intent.

“It is a marginal call which we have decided to resolve in his favour.”

The court said this is not to say that it condones such a practice saying the spectre of politicians freely passing money around as tips is not something to be encouraged and can operately adversely against the concept of free and fair electoral practices and elections.

The court concluded that the allegations against Lopaoo and counter-suit directed at the elected M.P. for Vaisigano no1 were not proven to the required standard and therefore dismissed.

Lopaoo's deposit of $2000 was ordered to be forfeited as court costs while Niuava was also to pay $2000 to the court as costs for his dismissed counter-suit.