Mose v Masame [1948] SamoaLawRp 1; [1930-1949] WSLR 140 (12 February 1948)

[1930-1949] WSLR 140

HIGH COURT OF WESTERN SAMOA

BETWEEN:

MOSE

AND:

MASAME

Before: Marsack, C.J.

Date of Judgment: 12th February, 1948

MARSACK C.J. This is an important and a difficult case. I have given it earnest consideration and have had the advantage of a long conference with all three Samoan Judges. I find the following facts. The plaintiff Mose lives in Sapapali'i, but has been excluded from the affairs of the community and gives no service to the chiefs and orators. Defendants are all matais of Sapapali'i. Malietoa, one of the Fautua, is the paramount chief of Sapapali'i. Malietoa instructed the village to build him a fale there; and the chiefs and orators at a meeting decided to use any suitable trees, no matter on what land they were growing. Mose was not informed of this decision, though it is possible that he learned of it by village rumour. Masame and others entered on plaintiff's land in the latter's absence, and felled two poumuli trees for use in building the fale. Later Mose went round to where the fale was being built, and asked the master builder, Papali'i, why his trees had been cut down. Masame, who was present, intervened and said, "Go away. The master builder was acting under instructions from the chiefs and orators." Mose again asked for an explanation, which was not given. After some more words had been exchanged Mose struck Masame, who as has been mentioned, is a matai.

Early next morning a meeting of chiefs and orators was called by Tao’ai, who, it is be noted, was not present at the altercation the previous night. After a discussion lasting several hours three resolution were passed:-

(a) that Mose be tied up in a public place;

(b) that Mose be killed;

(c) that his good should be seized and his livestock killed and eaten.

None of these penalties was fixed or authorised by Malietoa. Although three defendants state that all three resolutions were passed, it appears to me more likely that the first two were proposals only, and that the final decision of the fono was the third. In any event, fortunately for all parties, only the third was put into execution.

Mose was away fishing on that day. He was not summoned to the meeting, was given no chance to make an explanation, and was not informed of the penalty decreed by the chiefs and orators. Two of the most active participants in the proceedings of the meeting were Tao'ai and Seiuli, neither of whom had been present when Mose struck Masame.

As soon as the meeting broke up Tao'ai and Seiuli called together a number of persons, instructed them to arm themselves, if possible, and marched them in a mass to Mose's land. Tao'ai had a shot gun, Seiuli a spear. This mob killed and took away four pigs and five chickens, and also remove a bunch of bananas. The food was eaten by the people of the village.

Mose now asks the Court to decide that these acts were unlawful, and he seeks to recover the value of the property taken away, together with damages for the trespass.

It is well known that the council of chiefs and orators in villages exercises disciplinary powers over the inhabitants, and inflicts penalties when it is considered that a wrong has been committed. Where such action concerns minor matters, and is consistent with natural justice, the Court does not in general interfere. But it cannot be too clearly stated that the law of the land is paramount, and it is not competent for the chiefs and orators to act in any way which conflicts with the law of the land. Defendants are in fact aware of this, as Seiuli admitted in the box.

In resolving, or seriously proposing that Mose be tied up and killed, the chiefs and orators arrogated to themselves a power which they knew they did not possess, and not one of them attempted in evidence to justify his action. Tao'ai said in evidence:-

The resolution of the village to tie him up and kill him was not carried out because it was against the law of God and man. We thought he should die because of our great anger against Mose. It was I who proposed he should be tied up and killed.

The mere fact that the fono accepted, and seriously debated, a motion that Mose be killed by order of the leaders of the village, indicates very clearly the immense gap which, in the minds of the chiefs and orators, exists between their rights and privileges and those of the taule'ale'as, if indeed the latter can be said to have any rights at all.

However, the Court has only to consider in this case, whether the defendants were justified by the circumstances in entering on plaintiff's land and forcibly despoiling him of his property.

It is clear that Mose committed an offence in striking Masame. In the eyes of the community the offence was undoubtedly aggravated by the fact that Mose was a taule'ale'a and Masame a matai. For that act he merited punishment, and would have received punishment if he had been prosecuted in the Court for assault. But that punishment would not have been imposed until Mose had been summoned before the Court, inform of the allegation made against him, and given every opportunity to make an explanation.

The chiefs and orators granted him no such rights. They condemned him unheard, without even notifying him of the offence he was alleged to have committed, and they executed the penalty without telling him of the decision, or the reason for it, and, in fact, when he was away from home.

The evidence of the witnesses, and the information given to me by the Samoan Judges, make it clear that by traditional Samoan custom handed down through the ages, it is only in comparatively trivial cases that the offender is haled before the fono and asked to explain his conduct. Where the offence is serious, it is customary for the chiefs and orators to meet and decide the matter in the absence of the alleged delinquent, and to impose and enforce a penalty without notifying him of their decision.

There is thus a very definite conflict between Samoan custom and the justice administered by the Courts. The defendants themselves, in fact, recognise this conflict and even admit that the custom may be unjust. This is shown by the answers given by each of them in the box to the question, "Is it just to penalise a man without giving him the opportunity of being heard in his own defence?"

Tao'ai says:-

It is fair to give an offender a chance of explaining, but in this case there was no point in bringing Mose before the meeting as he does not serve the chiefs and orators. If I were brought up on a criminal charge, I would expect to be given an opportunity to explain....Our village council does not usually ask the offender to appear before it, except in cases of a trivial nature....We did not ask Mose to come before the chiefs and orators because he is a man of very bad acts...A matai should act fairly. The action in this case was unfair because of Mose's bad deeds to the village.

Masame answers the question thus:-

I think there is a law of the Government that a man should be given a chance to explain before he is punished, but it is not a law of our village. No taule'ale'a is allowed to state a case before the chiefs and orators. We enforced the penalty before notifying Mose because he was defying the decision of Malietoa.... A Matai should act fairly and justly towards taule'ale'as, if they render good service to the matai and the village.

Seiuli in his evidence says:-

I know that by the law of the land every one is entitled to be heard in his own defence. It is fair and just law. It was not fair to condemn Mose without hearing him, but it is the custom of the village. I do not know why we should be required to advise Mose of the offence charged against him. It certainly would not have been fair to give judgment against us in this case without summoning us and hearing our defence.

Notwithstanding the realisation of the injustice of their action, the chiefs and orators proceeded to condemn plaintiff without hearing him, and execute the penalty without telling him what it was or why it was imposed. This is so gross a violation of the elementary principles of justice that the Court cannot possibly support their action. It may make for discipline and peace in the village that the matais should take effective steps to punish an affront to their dignity; but the Courts cannot lend their approval to any custom, however ancient, which denies to an accused person a right freely available to the lowliest member of a civilised Christian community. I must not be understood as saying that Samoan custom will not be recognised. The Court realises that custom and law can exist side by side, and the Court will not interfere with any custom which is just and in the best interests of the community. But there must always be a right to appeal to the law, and if the Court finds that a custom is working injustice, the Court will not uphold it. That is the case here.

All the witnesses endeavoured to justify their action on the ground that Malietoa's dignity had been offended and his authority questioned. In the opinion of the Court this looks much like a deliberate attempt to confuse the issue. I am unable to find one scrap of evidence that Mose had done anything derogatory to Malietoa's position as paramount chief. He was not told of the decision to take any suitable trees, wherever growing. He merely asked why his trees had been cut down, and nobody would tell him. He did not oppose the cutting of the trees. In fact that was done in his absence. And he did not deny Malietoa's right to have them. He did not speak one word, or do one act, which might be considered disrespectful to Malietoa. Even if he might be assumed to have heard of the decision to build a fale for Malietoa, though it is quite likely that he did not hear of it as he is excluded from participation in the affairs of the community, he did nothing to hinder that building, or to oppose the authority of Malietoa. In the opinion of the Court, the defendants considered that Mose was a worthless member of the community, and to attempt to justify their otherwise indefensible action against him they sought to drag in the great name of Malietoa.

The finding of the Court is that the entry on plaintiff's land and the taking away of his goods was unlawful and unjustified, and the plaintiff is entitled to damages. Only two of the defendants, Tao'ai and Seiuli took part in the operations. Masame in evidence said that he had nothing to do with the raid on Mose's property, and disclaimed all responsibility. There is no evidence against Samamoa. Consequently, Judgment will be against Tao'ai and Seiuli only.