Punitia v Tutuila [2014] WSCA 1 (31 January 2014)

COURT OF APPEAL OF SAMOA

Punitia and others v Faumuina Tutuila [2014] WSCA 1

Case name: Punitia and others v Faumuina Tutuila

Citation: [2014] WSCA 1

Decision date: 31 January 2014

Parties:
TUUMAALII PENI PUNITIA, TUPUOLA AFA LESA, ANAULI POFITU FESILI, FETAOAI VAO SAMAU, UPUSE TANIELU LEPOLU, SINAVA LIMA, PALAIALII LOUIS TAFUNAI, PALAIALII TUVALE ATOA, PALAIALII IONATANA PULA, PALAIALII GENE TAATASI, PALAIALII PAUESI TEO, ASOTASI VAA FALEALILI, TAI ELISE SOLO, GALUVAA SAGAUGA METULI, TUUA FASI LEOTA, TUUAMAALII SIATAGA MANN (Appellants), of Tanugamanono, Matais, on behalf of the Alii and Faipule of Tanugamanono.
and AFU FAUMUINA TUTUILA (Respondents) sued in a representative capacity for and on behalf of her family members who were evicted from Tanugamanono.

Hearing date(s): 13 November 2013

File number(s): CA11/12

Jurisdiction: Civil

Place of delivery: Mulinuu

Judge(s):
Justice Fisher
Justice Hammond
Justice Blanchard

On appeal from: Afu Faumuina Tutuila v Tuuamaalii Peni Punitia and others (Alii and Faipule of Tanugamanono (Supreme Court matter)

Order:

Representation:
R Papalii for Appellants
TS Toailoa for Respondents

Catchwords:
vindicatory damages
punitive damages
exemplary damages

Words and phrases:

Legislation cited:
Article III Constitution
Village Fono Act
Land and Titles Act

Cases cited:
Piteamoa Mauga & Ors v Fuga Leituala
Italia Taamale v Attorney-General
Simpson v Attorney-General
Maharaj v Attorney-General of Trinidad and Tobago
Subiah v The Attorney General of Trinidad and Tobago
Taunoa v Attorney-General

Summary of decision:

IN THE COURT OF APPEAL OF SAMOA

HELD AT MULINUU

FILE NO: C.A11/12

BETWEEN

TUUMAALII PENI PUNITIA, TUPUOLA AFA LESA, ANAULI POFITU FESILI, FETAOAI VAO SAMAU, UPUSE TANIELU LEPOLU, SINAVA LIMA, PALAIALII LOUIS TAFUNAI, PALAIALII TUVALE ATOA, PALAIALII IONATANA PULA, PALAIALII GENE TAATASI, PALAIALII PAUESI TEO, ASOTASI VAA FALEALILI, TAI ELISE SOLO, GALUVAA SAGAUA METULI, TUUA FASI LEOTA, TUUAMALII SIATAGA MANN, of Tanugamanono, Matais, on behalf of the Alii and Faipule of Tanugamanono.

Appellants

A N D:

AFU FAUMUINA TUTUILA, sued in a representative capacity for and on behalf of her family members who were evicted from Tanugamanono.

Respondents

Coram: Honourable Justice Fisher

Honourable Justice Hammond

Honourable Justice Blanchard

Counsel: R Papalii for the Appellants

TS Toailoa for the Respondents

Hearing: 13 November 2013

Judgment: 31 January 2014

JUDGMENT OF THE COURT

Introduction

[1] The appellants are Alii and Faipule, (leaders) of the village of Tanugamanono. In the Supreme Court they were ordered to pay damages for unlawfully banishing the respondent and her family (the respondents) from the village and being party to subsequent damage to their property. They were all ordered to pay damages totalling $963,710. A selected few were also ordered to pay an additional $18,585. From that decision they appeal.

Factual Background

[2] As the Alii and Faipule, the appellants make decisions on behalf of the village at meetings of the Village Fono. In technical terms, neither the village nor its Fono is a body corporate. The Alii and Faipule remain individually responsible for the decisions they make.

[3] The respondents were longstanding residents of the village. They had occupied customary land there since approximately 1959. They held the land through the title Atoa of the Atoa Foemua branch of the title. Whoever currently held that title was entitled to say who could use the land.

[4] The respondents were members of the Congregational Christian Church (the Church). The Church occupied land adjoining the respondents’ land. That land was also held through the title Atoa. Since 1906, successive holders of the title had allowed the Church to use the land for church purposes. The permission did not extend beyond the specific portion on which the church was built.

[5] In 2010 the Church wished to build a new hall on the land. The then titleholder, who was the respondent’s father and Sa’o (Head) of her family, gave permission for the Church to rebuild on the original foundation of the existing Church hall.

[6] When the Church began to construct the new building it went beyond the permission that had been granted. The building under construction encroached onto that portion of the respondents’ family land that had been retained for their exclusive occupation. When the respondents pointed this out to the Church it refused to back down. The respondents had to bring proceedings by way of petition in the Land and Titles Court (LTC) to have the rights of her family confirmed. On 6 July 2010 the LTC granted an interim injunction to prevent further construction until the matter could be resolved.

[7] In its decision of 20 August 2010 the LTC confirmed that the respondents were entitled to remain on that part of their land where they had always been. With the respondents’ agreement, the LTC allowed the Church to continue its building programme on a portion of the land delineated by some existing hedges “for the meantime” (para 15(o) of the decision).

[8] The appellants refused to accept that outcome. They considered the respondents to be disloyal in applying to the LTC in the first place. When the LTC decision was announced they called an immediate meeting of the village Fono. The respondents were not invited. At the meeting the appellants resolved to banish them from the village. The August banishment decree was publicly announced by the To’oto’o (an orator who speaks on behalf of the village). The trial Judge records that the decree pronounced “included the threat of physical harm if the Plaintiffs did not quit the village”.

[9] When the respondents declined to comply with the banishment decree there was a hostile reaction from other members of the village. The police had to be called. After discussions with the appellants, the police advised the respondents that the appellants had agreed to postpone the banishment until 20 September.

[10] The respondents made a further application to the LTC asking for a ruling on the banishment. The Registrar called a meeting of all parties in an attempt to resolve matters. No resolution was reached. The Registrar had further communications with the parties. In the end the Registrar had to send the respondents a letter of 20 September advising that the appellants were adamant that the respondents had to leave the village as decreed.

[11] When 20 September came and went without the respondents’ departure some villagers took matters into their own hands. On 1 October 2010 a group of untitled men from the village attacked the home of Ms Tutuila and the adjoining home of her sister and brother-in-law. The attacking group included four youths, Pili Ropati, Alefaio Pauesi, Apelu Faailo and Keleka Tolai, who were sons and relatives of certain appellants.

[12] The respondents were asleep when the attacking group arrived. Using stones, the group smashed the family’s entrance door, windows, furniture and personal items and damaged three of the family’s vehicles, a silver Toyota Surf Hilux, a red Mazda pickup and a Mazda van. In the melee that followed, stones hit the neighbouring church. The evidence is unclear as to their source. In the darkness and confusion they could have come from the attacking group, members of the respondents’ family, or both. Eventually the police arrived and took charge.

[13] On the following day, 2 October 2010, the appellants called another urgent meeting of the Fono. The respondents were given neither notice of the meeting nor an opportunity to be heard at it. The appellants resolved unanimously to banish the respondents from the village with immediate effect. At the meeting one woman, Neitua Taefu, stated that the respondents’ house “should have been set on fire” the night before. Her comments were recorded and replayed on commercial television. The appellants took no steps to contradict, punish or control her.

[14] The banishment decree was publicly pronounced by the To’oto’o. The Judge accepted the respondents’ evidence that its terms were as follows:

... that all the members of the family of Faumuina Tutuila, from the eldest to the youngest, are banished from the village forever and are to leave by 4pm that day and if (we) disobey then we will be burned together with our homes.

[15] The respondents did not wait for 4.00pm. Fearful for their safety, they left the village at noon. There was no time to remove the stock from their shop, livestock, plants or other items of value. The effect of the banishment was to preclude their return along with 26 other members of the family who were living elsewhere. Altogether 32 people were banished. None of those banished had been invited to the Fono meetings in question or given any opportunity to speak in their defence.

[16] Over a period of several months following the respondents’ departure, remaining villagers removed or destroyed the hedge which the LTC had designated as the boundary between Church and family property, the family’s poultry and pigs, and their plantations of bananas, breadfruit trees, coconut trees, cocoa trees, taro, taamu and ornamental plants. They bulldozed the family’s land. Ms Tutuila’s sister was suspended from her employment at the local hospital.

[17] There were four buildings on the disputed land: a three bedroom house, a one bedroom self-contained unit with a shop annex containing stock, a one bedroom ensuite unit and a “patio”. On 16 October 2010 the villagers set fire to the buildings which were damaged or destroyed. The value of the buildings lost was $636,000.

[18] When the respondents attempted to return to inspect the damage they were prevented from doing so by a woman of the village, Rupi Tago Ropati. Untitled men surrounded and threatened the respondents. Again the police had to intervene.

[19] The appellants petitioned the LTC asking it to confirm “the banishment and wiping out of Faumuina Tutuila Fereti, Afu Faumuina and their family from any land of Tanugamanono”. The respondents cross-petitioned against the banishment. In a decision of 12 November 2010 the LTC dismissed the appellants’ petition and upheld the respondents’. It held that the purported banishment was invalid.

[20] When the LTC decision was announced the respondents sought to return to the village. The appellants rejected their overture.

[21] In February 2011 the respondents obtained an order from the LTC preventing the continued destruction of the family plantation. By that time, however, many of the crops had already been destroyed and livestock taken.

[22] On 23 March 2011, on the petition of Atoa Penitito, the LTC ordered three of the appellants (Anauli Pofitu Fesili, Palaialii Louis and Fetaoai Vau Samau) and three others (Tavui Iose, Tuu Faasavalu and Tuua Peni) to cease the bulldozing of the land under dispute. The Court further ordered the appellants to comply with its order of 20 August 2010 and threatened each named defendant with six months’ imprisonment for non-compliance.

[23] The appellants have never withdrawn the banishment order. Ms Papalii explained to us that according to Samoan custom the respondents’ request to return in November 2010 was insensitive and inappropriate. At that time the “wound from the LTC decision was so fresh as it had just been delivered” and “e le mafai ona ta mata se laau” (the tree cannot be cut while it is raw). She explained that the respondents’ approach would have had more prospect of success if they had allowed the displeasure of the village to abate, made amends, and showed remorsefulness for their conduct.

[24] The respondents no longer wish to return. They fear for their lives if they were to do so.

Supreme Court proceedings

[25] The respondents brought proceedings in the Supreme Court seeking damages for the losses of herself and her family. The sole cause of action pleaded was breach of the “right ... to move freely throughout Samoa and to reside in any part thereof” guaranteed by Art 13 (1) (d) of the Constitution.

[26] Following a defended trial, Slicer J found in favour of the respondents. He concluded that the banishment was a breach of the Constitution and that it had caused heavy loss to the respondents. As to liability for damages, he relied principally on the unpleaded torts of negligence and misfeasance in public office.

[27] The Judge gave judgment “against the Alii and Faipule collectively and each named Defendant except Atoa Kisona jointly and severally” stating that each was liable “through incitement, failure to properly administer the disputation and by reason of the doctrine of the law of tort and vicarious liability”. He went on to note that even “[i]f the Court is wrong in following the traditional tests or approach then it would reach a similar conclusion through Constitutional law”.

[28] As to damages the Judge noted that “the Defendants have breached the Constitution Article 9 and 13 ... [and] orders made by the Land and Titles Court, an institution established by the Constitution” and that this warranted an order for “punitive” damages. He noted the “contempt” with which the respondents were treated which led to his assessment of “exemplary” damages.

[29] As to property losses the Judge valued the items damaged from 1 October at $9,000 for vehicles and $9,585 for household items, making a total of $18,585. An order was made for payment of this amount against those appellants whose family members took part in the 1 October incident (appellants 1, 2, 3, 4, 5, 6, 11 and 14). Based on valuations, the buildings damage was assessed at $635,736 and the crops and livestock at $50,310. $15,000 was awarded for a destroyed motor vehicle, $112,664 for chattels in the various buildings, $100,000 as punitive damages and $50,000 as exemplary damages.

[30] Each appellant was found liable for the total of those damages, $963,710. In addition some of the appellants were found liable for the $18,585 attributable to the 1 October incident.

The Appeal

[31] In this Court the appellants advanced many grounds of appeal. One was abandoned. The remainder Ms Papalii helpfully grouped under the following headings:

(1) The Village Fono did have the power to banish.

(2) There was no jurisdiction to award damages in the absence of a tort.

(3) There was no casual connection between the appellants’ actions and the losses.

(4)There were no valid claims in tort.

(5) The quantum awarded was excessive.

(1) Village Fono power to banish

[32] This ground of appeal was expressed as follows:

The Trial Judge erred in law in his finding that the appellants did not have any authority to banish and further finding that the appellants had relied on the Village Fono Act 1990. The appellants did not rely on this Act but had argued that they have authority to banish pursuant to customs and usage which forms part of the law in Samoa under Article 111 Constitution.

[33] The point has already been addressed by this Court in Piteamoa Mauga & Ors v Fuga Leituala (WSCA 4 March 2005) (“Mauga”). That decision had built upon the earlier decision of this Court in Italia Taamale v Attorney-General (18 August 1995, C.A 2/95B). The two decisions traversed in detail the Constitution, the Village Fono Act 1990, the customary law, and earlier decisions of the Courts of Samoa and elsewhere, bearing upon the question of banishment.

[34] There is little point in traversing the same ground again in detail. It is all to be found in those two decisions. The Court’s conclusion in Mauga was that:

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.

[35] In a careful argument in this Court, Ms Papalii submitted that a critical argument had been overlooked in Mauga. She said that in that case the Ali’i and Faipule had relied upon the Village Fono Act 1990 as the source of their power to banish. She distinguished that approach from her present argument that the power was derived from customary law which had not been diminished by the Village Fono Act.

[36] We do not think that a proper reading of Mauga permits that distinction. Delivering the judgments of the Court in that case, Lord Cooke pointed out that the history of banishment in Samoa had been traversed in Taamale and that the two judgments were to be read together (p8). The history of Samoan banishment is primarily about banishment by Village Fonos in the exercise of their customary powers.

[37] It was with that background that Lord Cooke said this is relation to the more limited punishment powers retained in the Village Fono p9):

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 Court to which we referred in our Taamale judgment as pp60 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.

[38] The sole source of a Fono’s banishment power prior to the Village Fono Act was customary law. It follows that when Lord Cooke spoke of the implausibility of a legislative intention to endorse the village power of banishment by silence, he could only have been speaking of the implausibility of a legislative intention to continue the customary power to banish that had hitherto existed. The argument now advanced by Ms Papalii is the very argument which Lord Cooke was rejecting.

[39] Even assuming that the power to banish under customary law had survived the Village Fono Act, which we do not accept, the constitutional question is whether the customary village power to banish has continued to represent a reasonable restriction in the interests of public order.

[40] Ms Papalii submitted that pursuant to Article 111of the Constitution, custom and usage that had acquire the force of law was to be regarded as “law”; that the power to banish amounted to “existing law” by the time the Constitution was adopted; and that clause (4) of Article 13 made the right to reside in any part of Samoa under clause (1) subject to the operation of an existing law in so far as it imposed reasonable restrictions in the interests of public order. We have no difficulty with any of those propositions.

[41] However we are unable to accept Ms Papalii’s further proposition that a customary law permitting banishment by Fonos does represent a reasonable restriction in the interests of public order. On that subject Lord Cooke said this in Mauga (p10):

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 many 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 village councils also have the power would be ‘tantamount to winding back the clock of progress’. And we are fortified in our ruling by noting that is one of Samoa’s own indigenous Supreme Court Judges who said as much.

[42] It is open to this Court to depart from a prior decision if a sufficiently compelling case can be made for doing so. However we can see no reason for departing from the view expressed by the Cabinet appointed Committee in its 1975 Report on Matai Titles, Customary Land and the Land and Titles Court, Vaai J in Taamale, and Lord Cooke, and the other judges of the Court of Appeal in Mauga.

[43] It is not as though Village Fonos are denied the opportunity to banish. As those authors and judges have pointed out, Fonos can obtain banishment decrees from the LTC wherever justified. Nor need there be any delay. In urgent cases they can obtain appropriate interim orders from the President or the Registrar of that Court under ss49 and 50 of the Land and Titles Act. But direct banishment decrees without the involvement of the LTC are unlawful and a breach of the Constitution.

[2] Jurisdiction to award damages in the absence of tort

[44] Ms Papalii submitted that even if there had been a breach of rights conferred by the Constitution, there could be no liability to pay damages unless the appellants had also committed a tort against the respondents.

[45] Again this contention was directly refuted in Taamale and Mauga. Those decisions make it clear that in Samoa, as in equivalent overseas jurisdictions, breach of the fundamental rights and freedoms conferred by the Constitution can itself give rise to liability for damages in appropriate circumstances. In Samoa the power to impose damages flows from Article 4 which provides:

4. Remedies for enforcement of rights-(1) Any person may apply to the Supreme Court by appropriate proceedings to enforce the rights conferred under the provisions of this Part.

(2) The Supreme Court shall have 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 the provisions of this Part.

[46] No reason has been advanced for departing from the conclusion in Taamale and Mauga that damages can be granted under Article 4, a conclusion supported by a long line of cases in overseas jurisdictions. Whether to grant a constitutional remedy, and if so the nature and scope of the remedy, are ultimately discretionary. However it is not necessary to engraft a private law tort onto the constitutional claim. The constitutional claim can give rise to a remedy in its own right.

[3] Casual connection between appellants’ conduct and damage suffered

[47] It is not disputed that the appellants were responsible for the banishment decrees. Para 6(c) of the Statement of Defence filed on their behalf states:

That the stone throwing incident caused much anger amongst the villagers and it was prudent that the Council stepped in to intervene and to restore security, peace and harmony amongst all concerned. Yes the Defendants admit banishing the Plaintiff on 2 October having decreed that it was in their best interest and for their safety given that the matter had gotten out of control and it was it was important to restore peace and harmony first. (emphasis added)

[48] The Judge also records (para 93(5)) that:

The banishment of 20 August was unanimously supported by the Defendants and the decree pronounced by the To’oto’o included the threat of physical harm if the Plaintiffs did not quit the village.

[49] He made a similar finding in relation to the second banishment decree of 2 October 2010. In this Court those findings were not disputed.

[50] The thrust of Ms Papalii’s submission was not that the appellants were not responsible for the decrees but that there was no casual nexus between the decrees and the losses suffered by the respondents.

[51] We agree that to the extent that the damages sought are compensatory, as distinct from vindicatory, a causal link must be shown between and loss. Because constitutional damages involve broad discretions and value judgments, we do not think that the casual link must be approached on an unduly refined or technical basis. However it is undoubtedly the case that a loss could not be compensated without showing that it was caused by the unconstitutional act complained of.

[52] In the present case the unconstitutional acts were the two banishment decrees of August and October 2010. The tangible losses for which compensation is sought began with the damage to the respondents’ property on 1 October 2010. It continued with the destructive acts of the remaining villagers in the first half of October 2010, the arson on 16 October 2010, the bulldozing of the land and the subsequent removal and/or destruction of property. The loss also includes the past and future exclusion of the respondents from their property for an indefinite period. The question is whether those losses were attributed to the banishment decrees.

[53] There was no evidence of violence or damage to property prior to the banishment decree of 20 August 2010. The Judge found that the decree was accompanied by the threat of physical harm if the respondents did not depart. Having obtained a decision of the Land and Titles Court in their favour, it was scarcely to be expected that they would leave voluntarily. The August banishment decree was suspended until 20 September 2010 but apparently regarded as active from that date. As reported by the Registrar of the LTC on 20 September 2010, the appellants were adamant that the decree must be immediately complied with.

[54] When the suspended decree came back into force on 20 September 2010 the respondents did not leave and physical harm followed. Ms Papalii was forced to submit that this was a coincidence. We are unable to accept this. It was exactly what had been threatened. There is an irresistible inference that the violence and destruction were a reaction to the respondents’ failure to comply with the decree.

[55] Nor could it have come as any surprise to the appellants that all or some of the villagers would take matters into their own hands. There is conflicting evidence as to the involvement of, or encouragement by, individual appellants. The Judge found that certain named appellants were personally implicated. But on any view of the matter the appellants must have known that destruction and violence was likely. In that knowledge they failed to put in place sufficient safeguards to ensure that the respondents and their property would be protected.

[56] The second banishment decree followed on the morning after the first round of destruction and violence. The second decree was accompanied by the threat that the respondents would be burned along with their homes if they did not comply. This time they did comply. But the result was to leave their homes, buildings, retail stock, livestock, and plantations unguarded. Given the history, it was unsurprising that the villagers that remained would remove or destroy what was left behind. That is what happened. Against the appellants failed to put in place adequate safeguards to protect the property that had been left behind. They could hardly be surprised at the result.

[57] The Judge approached causation rather differently but we see no reason to question his ultimate conclusion that the losses were caused by the appellants. That makes it unnecessary for us to analyse in greater detail the further involvement of individual appellants in specific acts of violence and destruction. And loss of access to the family property for an indefinite period was not only foreseeable but the purpose of the banishment decrees.

[4] Claims in tort

[58] Ms Papalii challenged the Judge’s conclusion that the appellants were liable for the torts of misfeasance in public office and negligence.

[59] The submissions were understandable given that much of the judgment was concerned with those torts. With respect to the Judge, however, it was unnecessary to embark upon causes of action in tort. They had not been pleaded by the respondents and, at least in the special circumstances of this case, it was unnecessary to do so. In this case the respondents were entitled to rely upon the breach of constitutional rights as a direct route to damages.

[60] We agree that where defendants are sued as individuals it will normally be necessary and appropriate to rely upon tort or other private law cause of action. The long-established criteria for liability in tort and other private law causes of action will generally make them a better vehicle for establishing liability than the broad discretions and value judgments that constitutional remedies entail. Private law causes of action are, and will remain, the primary source of liability in Samoa. Breach of constitutional rights should generally be resorted to only where private law causes of action would not be a satisfactory substitute.

[61] However there is no absolute rule to that effect. In Simpson v Attorney-General [Baigent’s Case] [1994] 3 NZLR 667 (CA) at 678, for example, Cooke P said this:

As to the level of compensation, on which again there is much international case law, I think that it would be premature at this stage to say more than that, in addition to any physical damage, intangible harm such as distress and injured feelings may be compensated for; the gravity of the breach and the need to emphasise the importance of the affirmed rights and the deter breaches are also proper consideration; but extravagant awards are to be avoided. If damages are awarded on causes of actions not based on the Bill of Rights, they must be allowed for in any award of compensation under the Bill of Rights so that there will be no double recovery. A legitimate alternative approach, having the advantage of simplicity, would be to make a global award under the Bill of Rights and nominal or concurrent award on any other successful causes of action.

[62] Cooke P could see no difficulty in an action in which damages for breach of constitutional rights co-existed with private law causes of action so long as there was no duplication of compensation for the same loss.

[63] Private law causes of action would not have been a satisfactory substitute in the present case. Undoubtedly there were trespasses to person and property. There may also have been misfeasance in public office and conspiracies to injure. But at that level of specificity there would have been difficulties in proving that individual appellants were responsible for individual acts of violence and destruction. Vicarious liability for the acts of individual villagers was unlikely. As to negligence, there are difficulties in the concept that where defendants embark upon unlawful acts they must carry them out carefully. The more direct route is to sheet home liability to the unlawful act itself.

[64] In this case the unlawful acts were the making of the banishment decrees. The harm suffered was directly attributable to the decrees. The decrees were made by the appellants in their capacity as office-holders in a public body, the Village Fono. A Village Fono is a local authority and therefore part of “the State” as defined in Article 3 of the Constitution. It was an appropriate case for approaching liability at the global level that all appellants were responsible for the banishment decrees and that all were therefore responsible for the consequences. Because a Village Fono is unincorporated, its office holders have personal liability jointly and severally. The respondents were entitled to rely upon constitutional rights rather than private law causes of action. The same approach was taken in Mauga in similar circumstances.

[5] Quantum of damages

[65] Ms Papalii submitted that even if loss were caused by a constitutional breach for which the appellants were responsible, there were errors of principle in the assessment of damages. She submitted that the damages award was excessive and that the ultimate figure ought to have been arrived at globally rather than on a piecemeal basis.

[66] To put these criticisms in context it will be convenient to consider the question whether there ought to have been a monetary remedy at all, the call for moderation in constitutional damages, and the distinction between calculated and global awards. There was no appeal against the joint and several nature of the damages burden.

Should there be a monetary remedy at all?

[67] The Courts will not grant damages in every case in which there has been a breach of the constitution causing harm to the plaintiff. Relief for a constitutional breach must be tailored to the particular case. In some cases the modest nature of the breach, or the minor harm to the plaintiff, will mean that no remedy is warranted at all other than perhaps a declaration. Some cases may call for an injunction. In some, nothing less than monetary relief will meet the case: Baigent’s Case, supra; Maharaj v Attorney-General of Trinidad and Tobago (No 2) [1978] UKPC 3; [1979] AC 385; [1978] 2 All ER 670 (PC).

[68] In the present case the threshold remedies question is whether this Court ought to exercise its discretion in favour of constitutional damages. Slicer J awarded damages but founded them upon a number of alternative causes of action of which breach of the Constitution was merely secondary. The way in which the constitutional discretion ought to be exercised in this case must be approached afresh.

[69] On this aspect Ms Papalii’s primary submission was that the banishments were necessary in the interests of the safety of the respondents and public order in the village.

[70] We cannot accept this. Although there appears to have been prior discord between the respondents and the Church over the boundary issue, there is no evidence of any threat to safety and public order until after the first banishment decree of 20
August. For reasons developed earlier, it was that decree, fortified by the further decree of 2 October, that created the need for special measures to protect safety and public order. The decrees were a cause, not a response.

[71] There were aggravating features:

(a) On neither occasion when banishment was proposed were the respondents given any opportunity to be heard. This was a clear breach of Article 9 of the Constitution.

(b) The pretext for the banishment was the respondents’ application to the LTC and consequent disrepute that this was said to bring to the village. But the mere fact that certain villagers had sought to have their rights clarified by one of the Courts of Samoa could never be the subject of legitimate criticism, let alone punishment. If disrepute was brought to the village, it was due to the unlawful acts of others, initially the Church and then the Village Fono.

(c) The banishment decrees were made in direct defiance of decisions of the LTC. They were a contempt of court.

(d) The banishment decrees were combined with threats of violence to person and property.

(e) If the appellants took any steps to maintain order they were manifestly ineffective. The appellants did not put in place adequate safeguards to avert the probable consequences of their unlawful acts.

(f) When the respondents’ rights were again vindicated by the LTC in November 2010, and they sought to return, their overtures were rejected. The suggestion that it was for the respondents, rather than the appellants, to show remorse and make amends is difficult to understand. As the LTC decisions show, the appellants were the ones who were consistently in the wrong.

(g) The harm caused was great. Property losses were high. Six people were evicted from their homes. Another 26 were prohibited from returning to their ancestral lands. It is uncertain whether it will ever be safe for the respondents to return.

[72] This was an unusually bad breach of the Constitution. We are left in no doubt that the remedial discretion should be exercised in favour of awarding constitutional damages. The next question is quantum.

Moderation in damages.

[73] Ms Papalii pointed out that in Mauga at p12 this Court said that:

“... it does not wish to encourage big awards in Constitutional rights cases. There is a widespread international concern about a growth of culture of compensation. The award in this case [$150,000] is high by any standard and, it must be hoped, probably not of great importance as a precedent”.

[74] We do not seek to depart from that sentiment. Even where a court decides that constitutional damages should be granted, there will be a preference for moderation when it comes to quantum.

[75] Moderation can be applied only after considering the potential elements of damage in the particular case. For that purpose a useful distinction can be drawn between compensatory damages (damages designed to financially restore the plaintiff to the position that he/she would have occupied but for the breach of the constitution) and vindicatory damages (damages designed to vindicate constitutional rights in the eyes of the parties and the community as a whole) – see further Taunoa v Attorney-General [2007] NZSC 70; [2008] 1 NZLR 429 (SC) at 480, 514 and 532.

[76] Although both the compensatory and vindicatory elements of damages must be considered, it is ultimately the total award that matters. One must guard against adding vindicatory damages to compensatory damages without regard for the vindication which compensatory damages may have achieved without more. The most convenient way of avoiding that trap is to start with compensatory damages and then to see whether anything additional is required for vindicatory reasons. The Privy Council put it this way in Subiah v The Attorney General of Trinidad and Tobago [2008] UKPC 47 at [11]:

Having identified an appropriate sum (if any) to be awarded as compensation, the court must then ask itself whether an award of that sum affords the victim adequate redress or whether an additional award should be made to vindicate the victim’s constitutional right.

[77] The normal purpose of compensatory damages is to restore the plaintiff to the position he or she would have occupied but for the wrong done (restitution in integrum). Compensatory damages can in turn be subdivided into general damages for intangible injury (e.g. physical or mental suffering, humiliation, invasion of privacy, loss of freedom of speech, and loss of freedom of movement) and special damages for proven and tangible losses (e.g. payment of a finite medical expense or loss of a specific item of property shown to have had a particular value).

[78] The point of this analysis is to show that there is ample opportunity for restraint in those areas in which large value judgments are involved. There is necessarily a degree of arbitrariness in the figure adopted for general and vindicatory damages. The vast majority of constitutional breach cases are confined to intangible damages of that kind. So as a general rule it is not difficult to allow policy considerations to influence the level of damages for constitutional breach.

[79] Special damages are different. Once a tangible loss is proved, there can be no room for discretion or argument over the sum required to fully compensate. A decision to deny recovery of all or part of proven special damages would therefore be a decision to deny full compensation to an otherwise meritorious plaintiff. We are aware of no constitutional case in which damages have been thought appropriate in principle but proven special damages have been declined or diminished. That is not to say that this could never happen. But at the very least a reason would need to be found and articulated before denying proven special damages once the anterior decision had been made to award monetary damages in principle.

[80] In this case we have already decided that damages should be granted. Consequently there is a strong case for awarding those special damages that have been specifically proved. But to the extent that other heads of damage are claimed, the approach should incline to the moderate.

Calculated and global awards

[81] Ms Papalii submitted that if damages were to be awarded in this case at all, the figure ought to have been a single one arrived at on a global basis.

[82] The point has already been made that vindicatory damages should not be permitted to duplicate any vindicatory function that might already be served by compensatory damages. One way of avoiding that danger is to roll both up in a single figure. That was the approach favoured for intangible damages (i.e. (general plus vindicatory) by Cooke P in Baigent’s Case, supra at 678 and in Mauga at 12 and 13. An equally acceptable approach, and the one which tends to be favoured in other jurisdiction, is to assess compensatory damages first and to then ask whether any supplement is required for vindicatory reasons (see, for example, the Privy Council in Subiah supra).

[83] Even if the global approach to intangible damages is adopted, we do not think that it was ever intended to extend to special damages. Distinct figures are usually assigned to general and special damages to ensure that each is adequately recongised. So if a court decides to adopt a global figure for general and vindicatory damages, it would be logical to assess any special damages first and then to separately assess the global figure.

[84] Certainly that was the approach taken in Maunga. In that case the first instance Judge had awarded $14,900 for special damages, $100,000 for general damages and $50,000 for punitive damages. As to the special damages of $14,900 the Court of Appeal commented (p12) “There is no serious issue about that figure”. As to the other heads of damage, the Court of Appeal preferred a global figure. Rolling all elements of intangible damages into one, it awarded $150,000 plus the special damages of $14,900, a total of $164,900. If a global approach is adopted at all, there is no rule or practice to suggest that special damages should be included in the global figure awarded for intangible items.

[85] To summarise:

(a) Even where breach of a constitutional right has caused injury to a plaintiff, the Court has a discretion whether to award damages.

(b) If the Court decides to award damages it is likely, although not bound, to award proven special damages (i.e. compensation for tangible losses such as the loss of a specific item of property shown to have had a particular value).

(c) Any additional sum for general damages (i.e. compensation for intangible harm such as physical or mental suffering, humiliation, invasion of privacy, loss of freedom of speech or loss of freedom of movement) should be moderate.

(d) Having arrived at the total for compensatory damages (i.e. the special plus general damages) the Court should ask whether that sum adequately meets the need to vindicate constitutional rights in the eyes of the parties and the community as a whole.

(e) Only if compensatory damages do not adequately vindicate constitutional rights should an additional sum be added by way of vindicatory damages.

Specific heads of damage in this case

[86] We start with special damages. The Judge assessed the losses for items damaged on 1 October as $9,000 for vehicles and $9,585 for household items, a total of $18,585. An order was made for payment of that amount against those particular appellants whose family members took part in the 1 October incident. We do not think that the evidence supports that approach. Nor has there been any cross-appeal seeking to share responsibility for those losses among all appellants.

[87] Given the unsatisfactory situation in relation to allocation of the 1 October losses among appellants, the relatively small amount involved, the magnitude of the other claims, and the broadly discretionary nature of constitutional damages, we do not think that those particular losses need to pay any further part in the assessment of damages.

[88] The principal tangible losses followed the October decree. The evidence accepted by the Judge was that the damage to buildings resulted in a loss of $635,736; damage to crops and livestock a loss of $50,310; destruction of a motor vehicle a loss of $15,000; and loss or damage to chattels in the various buildings, a loss of $112,664. These findings were not challenged on appeal. The total under that heading is $813,710.

[89] The sum of $813,710 is much higher than any that has been awarded in Samoa for breach of a constitutional right. It is also very high by comparison with overseas jurisdictions such as New Zealand. On the other hand this case is unusual in that the great bulk of the claimed damages take the form of special damages. Breaches of constitutional rights do not normally result in extensive damage to property, certainly damage to this extent. Further, the damages are to be shared among 32 people. Taking those factors into account, along with the fact that this was a very serious breach of constitutional rights, we uphold that portion of the damages.

[90] In their statement of claim the respondents also sought general damages of $1 million, pleading that the events had “caused them a great deal of mental distress and anxiety and have caused a great deal of insult and injury to the Plaintiff’s feelings and dignity”. They also sought $5 million for punitive and/ or aggravated damages, pleading that the appellants’ conduct was “outrageous, deliberate, vicious and criminal and placed the lives of the Plaintiffs in grave danger”.

[91] In additional to special damages the Judge awarded $150,000 describing the addition as $100,000 for “punitive damages” and $50,000 for “exemplary damages”. He made no reference to “general damages”.

[92] A preliminary point is that “punitive damages” and “exemplary damages” are the same thing. The modern term subsuming such concepts in the wider need to vindicate constitutional rights is “vindicatory damages”.

[93] In this Court there has been cross-appeal seeking general damages per se. On the other hand the respondents were doubtless content with the addition of $150,000 for intangible losses without undue concern over labels. The authorities demonstrate the high level of overlap among the various elements of intangible damages in this area. It is important to focus on the total without undue preoccupation with the individual components which go to make it up.

[94] In other circumstances we would have been inclined to uphold the $150,000 on the basis that it was a reasonable figure for general plus vindicatory damages. There could be no doubt over the suffering which the banishments caused this family. Nor could there be any doubt over the oppressive conduct of the appellants in defiance of Court orders.

[95] However the very high special damages, coupled with the general tendency to moderation in constitutional damages, persuades us that in this case the $150,000 should be reduced to $50,000. Modest though that sum may be, it will serve as symbolic recognition of the suffering of the family and the outrageous conduct of the appellants over and above the already heavy special damages.

Result

[96] The appeal against liability is dismissed. The appeal against quantum of damages is allowed on a limited basis. In lieu of damages awarded in the Supreme Court, the appellants will be jointly and severally liable to pay special damages of $813,710 plus general and vindicatory damages of $50,000, a total of $863,710.

[97] The respondents have had substantial success in the appeal. The appellants must pay the respondents’ costs in the sum of $5,000.

Honourable Justice Fisher

Honourable Justice Hammond

Honourable Justice Blanchard