By Linny Folau

The Supreme Court in Nuku'alofa today dismissed an election petition filed against Tongatapu No.1 People’s Representative to the Legislative Assembly, Tevita Puloka for alleged bribery, in the lead up to the 2021 General Election campaign. By Linny Folau.

The petition was filed by Siaosi Pohiva, who lost his parliamentary seat to the new candidate, Puloka, in the General Election of 18 November 2021.

Pohiva sought a declaration from the court that Mr Puloka's election was void, on the grounds that he committed bribery on three occassions, in breach of section 21 (1) (a) of the Electoral Act, and sought his election to be declared void.

However, Mr. Pohiva failed to prove his claims.

Hon. Mr Justice Cooper today issued a written 35-pages judgment dismissing the petition, after hearing evidence presented over three-days of trial on April 19-21, at the Supreme Court in Nuku'alofa.

He ordered that Pohiva pay Puloka's costs in this proceedings.

Allegations not proven 

The first allegation was that Mr. Puloka had bribed Vika Tu'ipulotu, the mother of Toti Tu'ipulotu with a gift of $100 in September 2021.

The judge said the initial petition was filed on 17 December 2021, which referred to an affidavit that Toti had sworn on 3 December 2021.

“There is no such affidavit,” he said.

Toti's affidavit was not filed until 26 January 2022, where as the respondent's first affidavit was filed on 6 January 2022.

"It also set out that Vika was influenced by the gift so she asked her daughter Toti to vote for the respondent. That was not part of the evidence before me."

The judge said, Toti's cross-examination was significant.

"Having heard her answers, I am of the clear view that she was not a reliable witness and was motivated against Mr Puloka."

The judge said, she accepted Mr Puloka was a support and had done much for her and her family but would give no credence to the other suggestions of kindness.

“From this, I judged she had an agenda to follow and it was not based on the ... good deeds and generosity she acknowledged he had shown her,” he said.

"Whilst I have considered the case under this head of claim widely and noted deviations in the pleadings at an early stage or the impressive evidence called by the respondent in his defence, the simple fact is that the sole witness to this allegation was so unreliable that I cannot attach any credence to her evidence. I am quite sure there was no giving of $I00 at all in September 2021."

“The last gift being at Christmas 2020 and that was a charitable donation; this allegation and so this claim must fail,” said the judge.

The second failed claim was that Puloka bribed Uili 'Ahokava with $100 one night, during the campaign period in October 2021. 

The judge said, the only evidence that this was given to influence his vote came from Mr 'Ahokava.

"His credibility has been fundamentally damaged by giving untrue evidence as to his recalling the dates 9 and 11 of October."

“He also repeatedly gave inaccurate  evidence about attending Mr Puloka's residence only once, among others.

“This claim also failed,” he said.

Finally, in the third failed claim, Mr Puloka had gone to Hala'ovave Government Primary School and gifted soap (sometime referred to as hand sanitisers in the evidence) and masks on 15 November 2021.

The majority of the children's parents and staff were from his constituency.

The judge said at this time Tonga faced a new situation with the Covid 19 was at last detected in Tonga.

“One can say that the gift was close to the election and it was unprecedented, but so was the apparent finding of a case of COVID 19. In the rest of the world, beyond the borders of Tonga, the virus had been raging for approximately two-years. Tonga was one of the very few places in the world that still had not had a single case,” he said.

“In this case these were donations to children and teachers; the children in the main, the unvaccinated population of Tonga. Soldiers and Police were also recipients.

"To put it another way, I am sure that the respondent has proved that they were proper recipients, so tending to demonstrate it was a charitable gift, as though close to the election, so was the reported emergence of the virus in our community."

He said it was “arguably an unprecedented gift; but that would be a blinkered approach as it was a reaction to an unprecentend event, albeit one widely expected.”

"There was nothing dishonest or corrupt in the donation of soap and masks. In fact, the reverse, it appears to me that this was nothing short of laudable and a genuine wish to help the people of Tonga."

The judge ruled that the respondent had proved on the balance of probabilities that the giving of the soap and face masks were charitable gifts.

He also did not agree with the submission that this would fall to be considered an exception under section 24 (3) of the Act. The allegation is bribery, not overspending contrary to section 24.

In finding that Mr Pohiva failed to prove all three allegations, the judge ordered him to pay for Mr Puloka's costs and incidentals of this proceedings.

Mr Pohiva is the eldest son of the late 'Akilisi Pohiva, a former Prime Minister and TBU 1 People's Representative.

He was represented by Mr Corbett, while Mrs Petunia Tupou acted for Puloka.