Supreme Court dismisses Semisi Sika’s election petition [1]
Wednesday, April 20, 2022 - 23:15. Updated on Thursday, April 21, 2022 - 09:32.
An election petition filed against Tongatapu No. 2 People’s Representative to Parliament, Dr ‘Uhilamoelangi Fasi for alleged bribery, during the 2021 General Election campaign was dismissed by the Supreme Court on April 15.
The petition was filed by Semisi Sika, who lost his parliamentary seat to the new candidate, Dr Fasi, in the General Election in November 2021. Sika was seeking a declaration from the court that Dr Fasi's election was void, on the grounds that he committed bribery, pursuant to section 32 of the Electoral Act.
However, Sika failed to establish the facts to support any of his claims.
Lord Chief Justice Whitten QC in a written 48-pages judgment dismissed the petition, after hearing evidence presented over three-days of trial on April 7, 8 and 10.
The General Election was held on 18 November 2021, and Semisi Sika and Dr Fasi were among the candidates vying for election as the representative of the Tongatapu 2 constituency.
Sione 'Etika represented Mr Sika and Clive Edwards SC for Dr Fasi.
Allegations
Mr Sika's first claim alleged that on 16 November 2021, Dr Fasi gave Siosaia ‘Ahokovi of Haveluloto $100.
The second claim alleged on 3 November 2021, Dr Fasi indirectly gave groceries to members of the community police at 12 community police posts in Haveluloto.
His third claim alleged that on the first week of November 2021, Dr Fasi also directly or indirectly gave Telusila Pelesikoti $300; alternatively, paid her electricity bill in the sum of $300.
In his fourth claim, he alleged that on 7 October 2021, Dr Fasi indirectly gave $400 to the steward of the Church of Tonga at Haveluloto as a gift towards a fundraising by the church members.
Mr Sika submitted that in each instance, Dr Fasi did these in order to influence the vote.
Mr Sika gave evidence and called ten witnesses. While, Dr Fasi gave evidence and called four witnesses.
Not a first hand witness
“In addition, Mr Sika’s affidavit contained a summary of the evidence to be given by his other witnesses. He was not a first-hand witness in relation to any of the claims,” said the Lord Chief Justice.
"All but two of Mr Sika’s other witnesses were required for cross-examination. As a general assessment, I found that the quality of their evidence, particularly under cross-examination, ranged from clear and credible to confused and confusing."
Denial
Dr Fasi in his evidence denied the first claim.
The judge found that Mr Sika had failed to establish the first issue in his favour, and the first claim failed.
Second claim - groceries
Here, there was no evidence or suggestion that Dr Fasi gave the groceries himself, said Lord Chief Justice Whitten.
"I am satisfied that 'Epele [Sekeni] accurately conveyed that the groceries had come from the committee’s leftover funds and that Dr Fasi had asked for the funds to be used for the benefit of the community police. …the idea of applying the funds for groceries in support of the Community Police was proposed by the Chairperson; and that it was supported by all members of the committee, including Dr Fasi, all went wholly unchallenged,” he said.
Third claim
The Lord Chief Justice said on this claim, Mr Sika relied on affidavits from Sivoki Vaioleti and ‘Ailini Fonua, living in Haveluloto.
Dr Fasi denied ever making a payment, directly or indirectly, of $300 (or any amount) to either Pasikala or Telusila Prescott.
The Lord Chief Justice said, the glaring question on this claim was why Telusila was not called to give direct evidence of having received $300 from either Dr Fasi or ‘Epele on Dr Fasi’s behalf.
"In my view, it was reasonable to expect Mr Sika to call Telusila to give direct evidence rather than solely relying on second-hand hearsay from Sivoki and ‘Ailini.
“The absence of any evidence of a reasonable explanation for not calling Telusila supports an inference that her evidence would not have assisted Mr Sika’s case and enables the Court to more readily accept the respondent’s."
Fourth claim
On this claim, Kevin Toto gave evidence that on 7 October 2021, the church treasurer, Saia Vea, told him that a donation of $400 from Dr Fasi had been received.
Lord Chief Justice Whitten said there was no evidence to contradict, and they were not challenged, that the $400 came from those four committee members.
Accordingly, the Lord Chief Justice said that even if the donation was made on behalf of Dr Fasi, the money was not given to or for any identifiable elector or electors in order to influence the vote of that elector or those electors.
The fourth claim also failed.
Mr Sika was then ordered to pay Dr Fasi's cost of the proceedings.