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Court of Appeal of Samoa |
IN THE COURT OF APPEAL OF SAMOA
HELD AT APIA
CP 8/07
BETWEEN:
ASIATA SALEIMOA VAAI & ASIATA PENIAMINA,
Samoan matai of Vaega, Satupaitea
First Appellants
AND:
SELESELE IONATANA,
Samoan matai of Vaega, Satupaitea
Second Appellants
AND:
ASIATA SIVANILA, TUUGALII ETI,
SELESELE TANIELU & SELESELE ELIALA
Respondents
Coram: The Honourable Justice Baragwanath
The Honourable Justice Slicer
The Honourable Justice Fisher
Hearing: 11 September 2008
Counsel: F. V. Hoglund for plaintiffs
G. Latu for defendants
Judgment: 19 September 2008
Context
1. The appellants Asiata Saleimoa Vaai and Asiata Peniamina were banished from their village of Vaega in Satupaitea, Savaii. The appellant and Selesele Ionatana was prohibited from attending religious services in the neighboring village of Pitonu’u. They issued proceedings based on Article 4 of the Constitution against the respondents Asiata Sivanila, Tuugalii Eti, Selesele Tanielu and Selesele Eliala whom they claim to have been responsible for the banishment and prohibition orders. They appeal with leave of the Supreme Court against a judgment of Nelson J which struck out the names of the respondents as parties on the grounds that the proper defendant is the Village Council, namely the Alii and Faipule, sued by joinder of "Asiata Sivanila as representative of the Alii and Faipule of Satupaitea" whom he had joined as second defendant under Rule 36 "Representative proceedings".
2. It is the appellant’s contention, pleaded in their amended statement of claim, that they are rightful holders of the paramount title Asiata in the village of Vaega. They plead that the title Asiata has absolute authority ("tofa") in Satupaitea and in matters of banishment only an Asiata can without due process banish or pardon a villager at any time; if the Alii and Faipule agree and the Asiata does not, the will of the Asiata prevails. They accept that the respondent Asiata Sivanila is also a rightful holder of the title Asiata, but claim that the respondents Tuugalii Eti, Selesele Tanielu and Selesele Eliala, with the collusion of Asiata Sivanila, have been unlawfully exercising the authority of the title Asiata in the District of Satupaitea, particularly in making the challenged banishment and prohibition orders. They assert that the orders have infringed the appellant’s constitutional rights and seek declarations to that effect, orders revoking the banishment and prohibition orders, injunctions and damages or compensation.
3. In an earlier judgment, in which Justice Nelson declined to order interlocutory relief, the Judge had said:
"In the present case, the evidence before the court is clear and uncontradicted. The banishment and prohibition decisions in question were made at a meeting in Vaega of the Vaega Village Council. The entity that made the decisions are the Alii and Faipule of Vaega and not the defendants individually or collectively as a group. There is certainly no evidence before the court that the defendants have the necessary customary authority to issue banishment or prohibition orders or that they did individually or collectively purport to do the same. Such a function or power normally rests in the Alii and Faipule of a village not in individual matais or a group of matai. The views of individual matais or a group of matai can of course carry much weight depending on the peculiar or special customs and traditions of the particular village but it would e a strange scenario indeed for four matais of any village to be permitted to make decisions for and on behalf of the village council. There is no evidence before the court that Vaega has any such peculiar or special customs and traditions.
4. Counsel for the appellants applied, no doubt in response, for joinder of Asiata Sivanila as representative of the Alii and Faipule of Satupaitea. Counsel for Asiata Sivanila, Tuugalii Eti, Selesele Tanielu and Selesele Eliala replied by applying for an order striking out those defendants on the grounds:
[they] are not the correct parties as they did not commit or authorize any of the acts giving rise to the causes of action in the [amended statement of claim]
Decision of the Supreme Court
5. That application was granted by the Judge in the judgment under appeal which stated:
I do not propose to revisit the issue of the proper defendant. The judgment of 2nd February 2007 and my observations above make the position clear. While the strike out power is one to be exercised sparingly, it can be invoked "where it is very plain and obvious that the plaintiffs claim is so clearly untenable that it cannot possibly succeed" (per Sapolu Chief Justice in Enosa v Samoa Observer Co. Ltd & others [2005] WSSC 6). This is the case here, the defendants’ motion succeeds, the four named defendants are stuck out as parties to these proceedings.
Submissions on appeal
6. On appeal Mr Latu sought to support the decision by a careful analysis of the evidence before the Court at the strikeout application. He submitted that it fully supported the Judge’s decision to strike out the names of Asiata Sivanila, Tuugalii Eti, Selesele Tanielu and Selesele Eliala. The appellants had filed an affidavit by Asiata Saleimoa Vaai stating:
3 The predominant feature of Satupaitea tradition is the position of preeminence of the Asiata title and its holders in the affairs of the District of Satupaitea that comprise the villages of Pitonuu, Vaega and Satufia.
4 The title Asiata according to Satupaitea tradition is the body and soul of its village authority and its Alii and Faipule. The title has authority over land, the sea and its people.
...
i) A decision of the "tofa" can be made by the senior holder of the title at any time within or without the matai council or Alii and Faipule;
ii) Only an Asiata by "tofa" can make banishment orders
...
7 The Council of the district of Satupaitea...has been in conflict since on or about 2004 and has as a result divided into two factions [one supporting the appellants and the other the respondents] .
...
10 The District Council and consequently the Alii and Faipule having split in two, neither faction can claim to represent the whole Alii and Faipule of Satupaitea.
11 The [respondents] and their followers who are only part of the Alii and Faipule of Satupaitea have however presumed to be the Alii and Faipule of Satupaitea in making their banishment and prohibition orders
7. Mr Latu submitted that such evidence had been refuted by the evidence of the respondents, which the Judge was entitled to accept. It included an affidavit by Asiata Sivanila expressing disagreement with the assertions of Asiata Saleimoa Vaai, stating:
...such allegations are contrary to the custom and usage of Satupaitea and in effect if tantamount to an autocratic dictatorship by an Asiata which does not reflect custom and usage or practice today by the District of Satupaitea.
The respondents also filed an affidavit by some one hundred matai describing themselves as "Alii and Faipule of Vaega and Pitonuu of the District of Satupaitea" who deposed:
6 That we are...informed that the [appellants] allege...that only Asiata can make banishment and prohibition orders in Satupaitea, without consultation or support from the rest of Alii and Faipule.
7 That with all respect to Asiata Sivanila, all matters concerning the District, such as the banishment of a holder of the Asiata title [,] is a matter concerning the Alii and Faipule.
8 That although Asiata has absolute authority and respect within Satupaitea as expressed through the ‘tofa’ as a matter if practice and custom where there are serous matters concerning the district, Asiata consults with the Alii and Faipule seeking their support and agreement, before his tofa is implemented through the Alataua (orator group).
9 That effectively all such decisions as supported by the Alii and Faipule and implemented by the Alataua is a mandate of the Alii and Faipule.
10 That ... the ... banishment and prohibition orders ... against the [appellants] were made after consultation with us the Alii and Faipule and implemented by the Alataua and in effect is our mandate.
8. The respondents relied as well on a decision of the Land and Titles Court, from which an appeal is yet to be heard, directing the respondents to cease the banning. It referred to the banning order as "a decision of the Village". The appellants’ response was that such expression was that of that Court, not of the appellants, and was in error.
9. The respondents further submitted that the issue had been determined authoritatively by Nelson J’s first judgment, which had not been challenged on appeal.
Discussion
10. The topic of banishment has been the subject of careful consideration by the Supreme Court and this Court. The leading authority is Tamale v Attorney-General CA 2/95B 18 August 1995. Sir Robin Cooke P cited extensively from a decision of Sapolu CJ at first instance. It included at p32 the passage:
Banishment may have been exercised in the past years by a matai against a member of his family but usually banishment was exercised within a village by the Alii and Faipule of the village. Nowadays, banishment is exercised almost exclusively, if not in fact exclusively, by the Alii and Faipule of a village.
This Court stated its general agreement with the observations of the Chief Justice. It expressed however a reservation:
... we are not called upon in this case to consider whether village councils, as distinct from the Land and Titles Court, have authority to order this kind of banishment. We must not be understood as now expressing any opinion on that question.
11. In Leituala v Mauga (Supreme Court of Samoa 13 August 2004) Vaai J rejected a submission that the Village Fono Act 1990, which recognizes the assembly of the Alii and Faipule of the village meeting in accordance with its custom and usage, confers on that village council legal authority to order banishment from its village.
12. We offer no opinion on that topic. We confine ourselves to the statement that both law and fact in this area are contested and it would be premature to form any conclusion upon either before full trial of the issues in dispute.
13. As to law, it is now well settled that the law can and must evolve to keep pace with the character and needs of the society it serves: see Crown Health Finance Agency v P [2008] NZCA 362 [317 – 321]. This Court in Tamale v Attorney General at p 31 recognized the prospect:
...that as ...Samoa continues to develop the time may come when banishment will no longer be justifiable.
But such evolution is best performed by an appellate court with the benefit of the judgment of the trial court reached after the refining process of cross-examination and submission by counsel on each side.
14. As to fact, we understand the view of Nelson J that Tamale v Attorney-General had given such a clear steer that, coupled with the evidence on which Mr Latu relied, it could confidently be said that the Alii and Faipule, sued by joinder of Asiata Sivanila as their representative, were the proper defendant and that in terms of Rule 32 Asiata Sivanila, Tuugalii Eti, Selesele Tanielu and Selesele Eliala had been improperly joined. An alternative approach might have been to join the Alii and Faipule which under the law of Samoa are recognized by both the Village Fono Act and the Land and Titles Act 1981: the case is more obvious than that of the Indian temple which in Bumper Development Corporation v Commissioner of Police for the Metropolis [1991] 1 WLR 1362 (CA) under the law of Tamil Nadu was held to have juristic capacity to sue and be sued.
15. But it is fundamental that a litigant is entitled to have disputed issues of fact determined at trial after having full opportunity to put forward its best case. There can be exceptions, as under a summary judgment procedure which the Rules Committee might consider establishing, perhaps on the New Zealand model. But here, however strong the present evidence, it cannot be confidently predicted that the respondents’ argument must necessarily succeed at trial. If Vaai J was right in Leituala v Mauga and if that judgment were held to apply in this case, the Alii and Faipule would have no authority to banish; so if the present appeal were dismissed, it could on one view turn out that the decision was in fact that of Asiata Sivanila, Tuugalii Eti, Selesele Tanielu and Selesele Eliala, as the appellants contend. Another possibility is that both the property constituted village fono and individual matai have the power to banish. But any such decisions would clearly be premature until the evidence has been heard, both as to the customs of this village in general and as to the particular events with which this case is concerned.
Decision
16. It follows that the appeal must be and is allowed. The names of Asiata Sivanila, Tuugalii Eti, Selesele Tanielu and Selesele Eliala as First Respondents are restored. But because the issue whether they are in fact proper parties is yet to be resolved the question of costs, like all other issues in the case, is reserved for determination by the Supreme Court.
Honourable Justice Baragwanath
Honourable Justice Slicer
Honourable Justice Fisher
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