Mauga v Leituala [2005] WSCA 1 (1 March 2005)

IN THE COURT OF APPEAL OF SAMOA
Mauga & Ors v Leituala [2005] WSCA 1 (March 2005)

Case name:	Mauga & Ors v Leituala
Citation:	[2005] WSCA 1
Decision date:	March 2005
Parties:	PITOAMOA MAUGA, SASEVE KILIFI, MAUGA PETELU, LALOAVAFILI, LILO POGAI, SAO KIVI, SAUTIA PAUGA, LAU NUMIA and TUUA MANU of Lotofaga, Safata, matais sued for and on behalf of the Ali'i and Faipule of Lotofaga, Safata (Appellants) & FUGA LEITUALA of Saaga., Siumu Planter (Respondent)
Hearing date(s):	9 December 2004
File number(s):
Jurisdiction:	CIVIL
Place of delivery:	Court of Appeal of Samoa, Apia
Judge(s):	The Rt Hon. Lord Cooke of Thorndon, Presiding The Rt. Hon, Sir Maurice Casey The Rt Hon Sir Gordon Bisson
On appeal from:	Supreme Court of Samoa, Apia
Order:	Subject to the qualifications we have mentioned, the appeal and cross-appeal are both dismissed. The appellants must pay to the respondent $3000 for costs in this court, with any allowable disbursements to be settled by the Registrar.
Representation:	LT Malifa and TRS Toailoa for Appellants R Papalii for Respondent
Catchwords:	Banishment – Land and Titles Court – damages sought – village council – punishments – special damages – general damages – aggravated damages – punitive damages – constitutional rights
Words and phrases:	“socially disruptive conduct” – “violation of natural justice against innocent family members” – “power of village councils” – “power of banishment” – “culture of compensation”
Legislation cited:	Constitution of the Independent State of Samoa, Articles. 4(2), 13(1)(d), 13(4), Land and Titles Act, ss. 49, 50; Village Fono Act 1990, ss. 6(a), 6(b), 33(2), 33(3).
Cases cited:	Board of Education v Rice [1911-1913] All ER 36; Cassell & Co Ltd v Broome[1972] UKHL 3; [1972] AC 1027; Italia Taamale v Attorney General (18 August 1995, C.A. 2/95B); Miller Ltd v Minister of Housing and Local Government [1968] 2 All ER 633; Simpson v Attorney General [Baigent’s case] [1994] 3 NZLR 667; [1995] 1 HRNZ 42.
Summary of decision:

IN THE COURT OF APPEAL OF SAMOA
HELD AT APIA

BETWEEN:

PITOAMOA MAUGA, SASEVE KILIFI, MAUGA PETELU, LALOAVAFILI, LILO POGAI, SAO KIVI, SAUTIA PAUGA, LAU NUMIA and TUUA MANU of Lotofaga, Safata, matais sued for and on behalf of the Ali'i and Faipule of Lotofaga, Safata

Appellants

AND:

FUGA LEITUALA of Saaga Siumu, Planter

Respondent

Coram: The Rt Hon. Lord Cooke of Thorndon, Presiding

The Rt. Hon, Sir Maurice Casey

The Rt Hon Sir Gordon Bisson

Hearing: 9 December 2004
Counsel: LT Malifa and TRS Toailoa for Appellants

R Papalii for Respondent
Judgment: March 2005

JUDGMENT OF THE COURT DELIVERED BY
LORD COOKE OF THORNDON

1. Banishment from the village, imposed by the alii and faipule of the village for socially disruptive conduct, is a practice that dies hard in Samoa. As this case illustrates, it can operate with altogether disproportionate harshness, in violation of natural justice and against innocent family members. Successive administrations from German colonial times onwards, have tried to extirpate it, yet instances requiring remedy by the courts can still occur. In Italia Taamale v Attorney-General (18 August 1995, C.A. 2/95B) this court accepted that, at any rate at this stage in the evolution of the country, banishment might still occasionally be necessary as a last measure of preventive control and could be ordered by the Land and Titles Court for sufficiently strong reasons, subject to a number of safeguards. But we specifically refrained from deciding whether village councils have the power. And we added 'A village council minded towards banishment from the village would be well advised to petition that court for an order rather than take an extreme course on their own responsibility’.
2. It seems hardly likely that this advice came to the ears of the Lotofaga village council. At all events they acted in a way which led Justice Vaai in a judgment delivered on 13 August 2004 to award against them a total of $164,900.00 damages, from which award they now appeal.

The Facts

3. The triviality of the triggering incident, the haste and motivation of the proceedings of the fono, and the unfavourable view of those proceedings taken by the Judge are best brought out by reproducing in full the introductory part of his judgment:
4. On the afternoon of the 9th December 2002 a teenage boy of Lotofaga village rode on a bicycle belonging to the son of the Methodist Church pastor of the same village. He was granted permission to ride but he cycled far too long which caused the son of the pastor to become agitated and angry and later told his father. Later that day while the schoolboy was playing volleyball in front of the pastor's house, he was summoned by the pastor who was still very angry from what his son told him. The pastor then said to the boy words to the effect. 'Have you seen a boy's throat being wrenched out. And if you go and tell your father I will also pull out his throat.'
5. The schoolboy was obviously upset. He went home and during the evening meal he told his older brother Faiga, who was on holiday from Australia, what the pastor said. Faiga was suspicious that his younger brother must have done or said something which angered the pastor: so he took his younger brother to the pastor's house to inquire and to apologise if necessary. They live close to the pastor's house. But the two were told by the pastor's daughters that the pastor has left in his car to conduct prayers elsewhere. The two then returned home and as they walked away the wife of the pastor called out words to the effect.
   • "You arsehole away from the land you dogs. Eat shit and go away."

They ignored the outburst from the woman and continued on home from where they soon after heard a fight. It was their other brother Sione fighting another villager Toetu. Faiga helped to break up the fight and took his brother home, and as they walked home Faiga heard the same pastor's wife calling out words to the effect:

"You thieving kids, you bad kids, you have assaulted the children of the pastor. You will suffer shame in the village."

6. The following morning the 10th December the village council met and decided to banish the family of the boys from the village. The verdict was delivered at about one o'clock in the afternoon. By four o'clock they were to leave the village. They left.

THE PLAINTIFF

7. The plaintiff is the father of the boy who rode on the bicycle. He is 61 years of age. On the 9th December 2002 he was nowhere near his village of Lotofaga where he lived together with his children and grandchildren. He and his wife have been at the National Hospital at Apia for more than a week looking after their sick grandson. In the early morning of the 10th December 2002 one of his daughters came to the hospital to fetch him on orders from the Plaintiff's matai brother. He talked to his children on arrival at the village.
8. As the plaintiff was not a matai he cannot attend village council meetings. His two matai brother Lilo and Leifi attended. At one o'clock in the afternoon the verdict was delivered by a delegation from the village council: the plaintiff and all his family are to leave the village and shall not be seen in the village after 4 o'clock the same afternoon. They all left (except for one) taking all they could and sought refuge at the wife's family at Saaga Siumu.
9. Before the banishment order the plaintiff who by his own choice remains untitled has been living at Lotofaga for fifteen years where he has established a small plantation of taro, yams, bananas, cocoa as well as raising chickens and pigs. He has also built a family home with funds remitted from Australia by his son Faiga. Photographs of the family home have been produced as exhibits. have also at the suggestion of counsels seen the house and the crops growing around it. So when the plaintiff and his family totalling 21 left on the 10th December they left behind their home, furnitures, plantation and domestic animals.
10. He sought the assistance of the police for the safety dismantling and removal of his house and possessions from Lotofaga. He was told to provide a truck but he was not allowed to go to Lotofaga. He provided a truck which came back with the dismantled garage, canoe and chairs. He claims compensation for his home and furnitures; produce of his plantation and his animals he left behind at Lotofaga. He also seeks damages for himself and his family members for the violation of their constitutional rights when they were abruptly banished from their home and village without valid or just cause, and proper enquiry; as well as damages for anxiety, distress, inconvenience and hardships resulting from the banishment.

THE DEFENDANTS

11. The village council comprising of the Alii and Faipule of the village of Lotofaga resolved to banish the plaintiff and his family from Lotofaga. They say have a duty to maintain peace and order within the village and the banishment order was appropriate because.
    • (i) one of the plaintiff's son was drunk on the 9th December 2002; he then took the bicycle of the son of Methodist Minister and when confronted by the wife of the Methodist Minister the drunken son swore at her. The other sons then joined in and tried to throw stones at the Methodist Minister's house.
    • (ii) There were prior incidents involving the plaintiff's family and the Methodist Minister; and
    • (iii) The village has a pact with the Methodist Minister and the village is therefore obliged to look after the Minister.
    • (iv) That the village council were within their rights to maintain peace and good order in the village and their decision to banish the plaintiff and his family were appropriate.
12. I shall now deal with each of the grounds upon which the defendants based their decision to banish the plaintiff and his family. The pulenu'u testified. He was present at the office of the solicitor for the defendants when the chief orator (tu'ua) of the village relayed to their solicitor the reasons for the banishment. I therefore accept that when the defendants met on the morning of the 10th December 2002 the facts upon which they based their decision to banish are those as stated in the Statement of Defence.
13. The first ground relates to the behaviour of one of the plaintiffs son on the 9^th December 2002. That is one of the plaintiff's son was drunk; he then took the bicycle of the son of the Methodist pastor and when confronted by the wife of the pastor the drunken son swore at her. The other sons then joined in and tried to throw stones at the Methodist Minister's house. But the plaintiff's son who rode the bicycle gave evidence and he said he does not consume alcohol; he is a student: in fact the pulenu'u conceded under cross-examination that the plaintiff's son does not consume alcohol. With the permission of the pastor's son he rode the bicycle and later in the day he was questioned by the pastor who then uttered the insulting words I referred to at the beginning of this judgment. Neither the pastor nor his wife gave evidence which leads me to accept the evidence of the plaintiff's son that he was not drunk; he did not take the bicycle by force; he was not confronted by the wife of the pastor; and he did not swear at the pastor's wife. And there is not the slightest evidence to support the rest of the allegation namely that the plaintiff's other sons later joined in and tried to throw stones at the pastor's house. The pulenu'u who reported the incident to the council meeting told the meeting that the wife of the pastor told him the plaintiff son tried to throw stone at the pastor's house. It was never explained to the court the mode of behaviour of the sons of the plaintiff which amounted to trying to throw stone (my emphasis). Other than what the pastor's wife told the pulenu'u there is no other evidence to support the allegation. It follows from my determination of the evidence that the first ground upon which the village council based its decision to banish the plaintiff and his family is unfounded. The pulenu'u however also told the Court he went to the pastor's house in the evening of the 9th December after two boys of the village told him that the plaintiff's sons had assaulted the pastor's children. The two boys who informed the pulenu'u did not witness the assault but they were told by others and it was on that basis that they informed the pulenu'u. On arrival at the pastor's house the two matai brothers of the plaintiff and another village matai were already there with the pastor and his wife; and it was at the pastor's house the pulenu'u was told by the pastor's wife that Sione, one of the plaintiff's son swore at her and the plaintiff's other sons tried to throw stones at their house. He was also told that the two matai brothers of the plaintiff have already apologised on behalf of the plaintiff's children but the pulenu'u was obviously determined to exercise his little authority within his little village and told the two matai brothers of the plaintiff to prepare fora fine to be imposed the next day.
14. The pulenuu then left to consult the chief orator Saseve who told the pulenu'u to summon the council meeting early the next morning which was done. At the council meeting the chief orator in his opening remarks to formally and customarily greets the chiefs and orators, told the pulenu'u to inform the village council of the subject matter. The pulenuu told the village council that the plaintiff's sons have assaulted the pastor's son. Sione (the plaintiff's son) swore at the pastor's wife and the pastor's wife said she has no protection within the village of Lotofaga. The village then deliberated on allegations by the pastor's wife placed before the village council through the pulenu'u.
15. According to customs the two senior chiefs Sao and Mauga spoke first; they both favoured banishment; they spoke as representative of their respective sections of the village council although they never consulted with the other chiefs they represented. But that is custom. Their view are taken accepted as the view of those other chiefs they represent because they are senior in ranks. Other speakers representing the other sections of the village council followed in the same fashion and supporting banishment. Even the plaintiffs matai brothers spoke supporting the banishment. One of them lied to the plaintiff after that meeting that he was unsuccessful in trying to change the village resolution.
16. So what the pulenu'u has told the court as the grounds upon which the defendants based their decision to banish differ significantly from the grounds stated in the Statement of Defence. I shall now deal with the allegations which the pulenu'u said he told the council meeting namely that the plaintiff's son Sione assaulted the Minister's son and swore at the Minister's wife. It is hearsay evidence as it was related by the Minister's wife to the pulenuu. Evidence was also called by the defendants to the effect that the plaintiff's son Sione was fighting with the pastor's son and another village youth and Sione was heard swearing but neither these witnesses nor the pastor's wife appeared before the village council so that the allegations before the village council were totally hearsay. It must be borne in mind however that the rules of evidence applicable in a court of law which include the rule against hearsay do not apply to proceedings before a tribunal, so that hearsay evidence is admissible and may be taken into consideration by a tribunal in forming its decision but before doing so the tribunal must give the other side a fair opportunity of commenting on it and of contradicting, it. See Board of Education v Rice [1911 - 1913] All ER 36; Miller Ltd v Minister of Housing and Local Government[1968] 2 All ER 633.
17. I accept from the evidence for the plaintiff and for the defendants that one of the plaintiff's son (Sione) did fight with the pastor's son and another villager and I also accept that Sione did swear on the night of the 9th December. But do bear in mind that the evidence called by the defendants in these proceedings was not the evidence before the village council when they decided the fate of the plaintiff on the morning of the 10th December. In fact am very doubtful about the sincerity of the evidence of the defendants. As the reasons for the banishment given by the pulenu'u in his sworn testimony differ substantially from the grounds given in the Statement of Defence, the court is entitled to be accorded the courtesy of an explanation for the disparity in the versions and since there is none the obvious logical conclusion must be drawn.
18. The second ground advanced by the defendants to justify their banishment order was the previous incidents involving the plaintiff's family and a former Methodist pastor of the village. It is alleged that the plaintiff did fight with a Methodist pastor; a claim which the plaintiff denied under cross-examination because he did not fight with the pastor; in fact he was assaulted by the pastor. The incident arose while the plaintiff and other untitled men of the village were policing the village evening curfew when the pastor's son was seen infringing the curfew and was stopped until the curfew was over. The pastor did not like his son being held over to comply with the village rules. He went looking for the plaintiff, he questioned the plaintiff and threw three punches at the plaintiff's mouth. The plaintiff was investigated by the village council. Had it been the plaintiff who threw the three punches he would certainly have been banished then because, as the defendants say in their Statement of Defence and final submissions, the pastor is under the protection of the village due to the pact with the village. Which means according to the defendant's logic the pastor can throw punches at the villagers of Lotofaga without fear of retaliation or threat of the consequences and the pastor's son can roam the village during curfew hours while the true sons of Lotofaga cannot.
19. So the Methodist pastor views himself and his family to be above village laws and was therefore agitated when his son was stopped to comply with the village curfew. Before being ordained as a pastor he most probably lacked the skill and the courage to throw any punch at a man of his size but given the protection of the village pact and the clerical trademark his arrogance and boxing skills magically emerged. In any event the defendant's allegation against the plaintiff's past behaviour cannot be sustained. As the pulenu'u of the village did admit, no penalty was imposed on the plaintiff. He committed no offence. Neither did the village council dare impose a penalty on the aggressive biblical man for he is like all other pastors according to the village lores and beliefs, God's physical presence in the village.
20. In an effort to justify the banishment order, other incidents of misconduct including smoking of marijuana and drunkenness not mentioned in the Statement of Defence were levelled at the plaintiff under cross-examination. It was suggested under cross-examination that the plaintiff's sons were fined by the village for smoking marijuana and for drunkenness which were all denied by the plaintiff. The plaintiffs matai brothers also testified for the defendant to the effect that the plaintiff displayed arrogance and assaulted one of the matai brothers and the plaintiff was given final warning by the village council.
21. Both matai brothers in terms of financial and living standards are both inferior to the plaintiff which probably accounts for their obvious hostility towards the plaintiff. In accepting the plaintiff's denial again I find it difficult to comprehend why these serious allegations were not included in the Statement of Defence which leads me to the conclusion that the allegations were a last minute orchestration of excuses to paint a character of an undesirable and a troublesome plaintiff which would justify a highhanded demonstration of power based upon misdirected beliefs and ill-will to banish the plaintiff from the village. We need not reproduce other passages, While counsel for the appellants complained of alleged lack of balance and indulgence in irony and rhetoric in the judgment under appeal, it was not possible to shake its foundations. They are that, as the Judge said, this was certainly not the type of misconduct which in the Land and Titles Court would justify an order to banish anyone from the village; that virtually instant banishment was ordered with at best a minimum of notice and without more than the most perfunctory inquiry, and that as well as the plaintiff himself (who, so far as the evidence goes, appears to have been totally innocent) twenty other members of his family were banished and a 24years old son was assaulted.

THE LAW

22. The history of the banishment jurisdiction in Samoa is traversed in Italia Taamale, and in the present case Vaai J has gone over some of the same ground, Both judgments include extensive quotations from the valuable explanation of the custom of banishment given by Sapolu CJ in the Supreme Court in Taamale's case. We avoid repeating again here most of what we said in Taamale. Our judgments in that case and this would have to be read together by anyone seeking some familiarity with the subject. What does need adding here is reference to the provisions of the Village Fono Act 1990. That Act was not relevant in Taamale.

The Village Fono Act 1990.

23. AN ACT to validate and empower the exercise of power and authority by Village Fono in accordance with the custom and usage of their villages and to confirm or grant certain powers and to provide for incidental matters.
24. Village Fono is defined as the assembly of the Alii and Faipule of the village meeting in accordance with the custom and usage of such village and includes the plural. And Village misconduct means any act conduct or behaviour which is or has been traditionally punished by the Village Fono of that Village in accordance with its custom and usage and has the extended meaning required by section of this Act.
25. Section 3 (2) gives the Village Fono authority to exercise power or authority in accordance with the custom and usage of that village. Section 3 (3) validates and empowers the past and futures exercise of power and authority by every village Fono of the affairs of its village in accordance with custom and usage.
26. Section 6 reads in full:
    • 6. Punishments:
    • Without limiting the powers of Village Fono preserved by this Act to impose punishments for village misconduct the powers of every Village Fono to impose punishment in accordance with the custom and usage of its village shall be deemed to include the following powers of punishments:
      • (a) The power to impose a fine in money, fine mats, animals or food; or partly in one or partly in others of those things;
      • (b) The power to order the offender to undertake any work on village land.
27. In contrast with section 6(a) the absence of any express provision for banishment gives rise to an irresistible inference. It is unthinkable that the legislature would have intended to endorse by silence as drastic a village power as banishment, especially in the light of the 1975 Report on Matai Titles, Customary Land and the Land and Titles to which we referred in our Taamale Judgement at pp. 6 to 8. That Report, made to the Minister of Justice by a Committee appointed by Cabinet, recommended that thenceforth banishment orders should be made by the Land and Titles Court only. We have no doubt that the omission of any corresponding power from the Village Fono Act was deliberate policy on the part of the Samoan legislators of 1990. Nor would it be plausible to suggest that they contemplated discrimination by leaving such a matter to the past practice of each particular village.
28. It follows that, within the meaning of Article 13(1)(d) and (4) of the Constitution, the right of all citizens of Samoa to move freely throughout Samoa and reside in any part thereof is not limited by any existing law as to the powers of a fono. In this action the plaintiff, who claims a representative capacity on behalf of all affected members of his family, is prima facie entitled to enforce that right.

THE ARGUMENT FOR THE APPELLANTS.

29. There were two substantial strands in Mr Malifa's address to this court. First, in aid of his contention that the judgment under appeal lacked balance, he placed repeated weight on what he called cultural democracy: the need to marry modern democratic ideals and human rights with indigenous customs and traditions. In advancing this as a general concept counsel was on sound ground. The constitutional cases in this court concerning the Matai system, which he cited, support it. Where the argument must break down, though, is that a marriage has already been effected, through recognition that a carefully circumscribed power of banishment is at present possessed by the Land and Titles Court. We agree with Vaai J that to go further by holding that a village council also have the power would 'tantamount to winding back the clock of progress'. And we are fortified in our ruling by noting that it is one of Samoa's own indigenous Supreme Court Judges who has said as much.
30. A question raised from the Bench during the hearing of this appeal related to urgent situations. Counsel were evidently agreed that interim orders by the President or the Registrar of the Land and Titles Court could meet that situation. Reference was made to sections 49 and 50 of the Land and Titles Act.
31. The second main strand in the argument for the appellants was a suggestion that village councils could be controlled by administrative law remedies. Of course that can be done, if essential, in appropriate cases. But if, as we think, the power of banishment has been withheld from village councils; the court has no right to confer that power by saying that it would have to be exercised fairly. Furthermore there are hundreds of such councils. Among them maybe influential individuals whose grasp of or instinct for the principles of natural justice could not be guaranteed. The fate in this case of our cautionary remarks in Taamale and of our recommendation of a petition to the Land and Titles Court contribute to our lack of confidence in the efficacy of judicial precepts in this field.

REMEDIES

32. By Articles 4(2) of the Constitution, the Supreme Court has power to make all such orders as may be necessary and appropriate to secure to the applicant the enjoyment of any of the rights conferred under this Part of the Constitution. We do not doubt that this extends to monetary compensation: such an Article should not be read narrowly. Compare Simpson v Attorney-General [Baigent's case] [1994] 3 NZLR 667, [1995]1 HRNZ 42,even without an express remedies clause.
33. In the present case the Judge awarded $14,900 for special damages. There is no serious issue about that figure. Taking the view that misery, anxiety and distress had been highhandedly imposed on twenty innocent persons, he considered that general damages should include aggravated damages, awarding a 'total of $100,000 for general damages. Then he added $50,000 for punitive damages, much influenced by the defendants’ disregard of the interests of the plaintiff's young children and grandchildren, at least eight in number.
34. The plaintiff cross-appeals, seeking some increases, but we are not prepared to augment figures assessed by a Judge who saw and heard the witnesses, had the whole flavour of the case and was far from unsympathetic to the claim. As for the appeal by the defendants against quantum, this court does not wish to encourage big awards in constitutional rights cases. There is a widespread international concern about a growth culture of compensation, The award in this case is high by Samoan standards and, it must be hoped, probably not of great importance as a precedent. But it was a bad case. On balance we are not persuaded that the total was a tala too much.
35. There is substance, however in Mr Malifa's submission that any award should be a global one. Several linked reasons so indicate. First, one of the points brought out in the House of Lords in the famous of Cassell & Co Ltd v Broome [1972] UKHL 3; [1972] AC 1027 is that if damages are split up into categories of purely compensatory, aggravated and exemplary (or punitive), there is a danger of duplication. Then it has to be remembered that, depending on the circumstances, an award of compensatory (including aggravated) damages may itself be a sufficient punishment. Then again, while we would not wish to exclude altogether the possibility of purely exemplary or punitive damages for breach of constitutional rights, we think that such a jurisdiction should at least be reserved for very serious cases.
36. As Hardie Boys J said in Simpson at pp. 703 and 87 of the respective reports, ...'the emphasis must be on the compensatory and not the punitive element. The objective is to affirm the right, not to punish the wrongdoer’.
37. Applying a global approach, we make an internal adjustment of the Judge's figures. In our view a total of $150,000 (plus the special damages) is a proper sum to compensate the whole family affected by the unlawful and unwise conduct of the village council.
38. That award in itself is sufficient punishment without any additional element. We note as well that the Judge reserved leave to apply to the Supreme Court for restoration to his home in the village. That reservation will continue to apply. Counsel for the appellants claimed that there would be no problem; the house is available.
39. A further point arises. The plaintiff sued as a representative of his family, but the Supreme Court judgment does nothing by way of allocation. To some of the proceeds the plaintiff will be entitled personally. Some will fall to be divided among adult members of the family whose rights have been infringed. Some should be held on trust for infant children, The case must therefore be remitted to the Judge, with the same total award, to settle by approved family agreement or judicial ruling how the compensation is to be shared.
40. Before leaving the case we note that the issue of ostracism within the village, as distinct from banishment, was not argued in this case. In the absence of full argument and examples, we think it preferable to make no observations on that issue.
41. Subject to the qualifications we have mentioned, the appeal and cross-appeal are both dismissed. The appellants must pay to the respondent $3000 for costs in this court, with any allowable disbursements to be settled by the Registrar.
    

THE RT HON. LORD COOKE OF THORNDON
THE RT. HON, SIR MAURICE CASEY
THE RT HON SIR GORDON BISSON