Leituala v Mauga [2004] WSSC 9 (13 August 2004)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

FUGA LEITUALA
of Saaga, Siumu, Planter
Plaintiff

AND:

PITOAMOA MAUGA, SASEVE KILIFI, MAUGA PETELU, LALOAVA FILI, LILO POGAI, LEIFI OTO, SAO PELO, SAO KIVI, SAUTIA PAUGA, LAU NUMIA, TUUA MANU of Lotofaga, Safata, matai sued for an on behalf of the Alii & Faipule of Lotofaga, Safata.
Defendants

Counsel: Mr Toailoa for the Plaintiffs
Mr P Fepuleai for the Defendants

Judgment: 13 August 2004

JUDGMENT OF JUSTICE VAAI

On the afternoon of the 9^th December 2002 a teenage schoolboy of Lotofagā 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 school boy 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."

The schoolboy was obviously upset. He went home and during the evening meal he told his older brother Faigā, who was on holiday from Australia, what the pastor said. Faigā 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. Faigā helped to break up the fight and took his brother home, and as they walked home Faigā 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."

The following morning the 10^th 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

The plaintiff is the father of the boy who rode on the bicycle. He is 61 years of age. On the 9^th December 2002 he was no where near his village of Lotofaga where he lived together with his children and grand-children. 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 10^th 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. As the plaintiff was not a matai he cannot attend village council meetings. His two matai brothers 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.

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 Faigā. Photographs of the family home have been produced as exhibits. I 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 10^th December they left behind their home, furnitures, plantation and domestic animals. 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 Lofotagā. 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 hardship resulting from the banishment.

The Defendants

The village council comprising of the Alii & Faipule of the village of Lotofagā resolved to banish the plaintiff and his family from Lotofaga. They say that they 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 9^th 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.

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 10^th December 2002 the facts upon which they based their decision to banish are those stated in the Statement of Defence.

The first ground relates to the behaviour of one of the plaintiff's 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 and son 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 stone 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's sons 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 9^th 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 for a fine to be imposed the next day. The pulenu'u 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 greet the chiefs and orators, told the pulenu'u to inform the village council of the subject matter. The pulenu'u 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. 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 views are taken and 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 plaintiff's matai brothers spoke supporting the banishment. One of them lied to the plaintiff after the meeting that he was unsuccessful in trying to change the village resolution.

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 pulenu'u. 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.

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 9^th December. But I 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 10^th December. In fact I 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.

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 Lotofagā cannot. 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.

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 plaintiff's 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 a final warning by the village council. 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 high-handed demonstration of power based upon misdirected beliefs and ill-will to banish the plaintiff from the village.

The Custom of Banishment

Banishment from the village has long been an established custom in Samoa. Its role, concept and feature were fully canvassed by Sapolu CJ in Italia Ta'amale and Ta'amale Toelau v The Attorney General (unreported 8/5/95).

"Banishment:

It appears to me that the concept of banishment as it is applied within Samoan society may not have been fully understood in some quarters in the past. By tradition, custom and usage, banishment is a measure of social control which is applied in the villages to maintain peace, harmony and order within a family, or village lands on a village by village basis will show that it is not a common practice within any one village it is a measure of social control reserved for the very serious kind of village misconduct. Such very serious misconduct is not a common occurrence within any particular village itself. It is also a measure of law enforcement within the village in the sense that banishment in a sanction which may be imposed for certain misconduct or disobedience of the rules and regulations made by the village through its Alii and Faipule (Village Council). 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.

There are two kinds of banishment known in Samoan custom. The first kind of banishment means that an individual is ostracized from the affairs of the village so that during the duration of the banishment he cannot take part in the affairs of the village, but he may still continue to reside in the village. With this kind of banishment, the individual concerned may still attend the village church on Sundays but he may not take part in the other affairs of the village. This kind of banishment is imposed for misconduct or disobedience which are not of a very serious nature. The second kind of banishment involves the expulsion of an individual from the village so that he, and sometimes his family, may not continue to reside in the village but must leave the village and live somewhere else. This second kind of banishment is imposed by the Alii and Faipule of a village on an individual for very serious misconduct such as murder, rape, serious disobedience and so on. It may also be imposed on an individual and sometimes his family, for continuing non-compliance with lesser penalties such as fines of money, pigs, taros, bread, biscuits, cartons of herring or other foodstuffs imposed by the Alii and Faipule. As in the past, non-compliance with a banishment order may have even more serious consequences for an individual for the village would then move in and forcibly evict him from the village and damage his properties. In principle by not being allowed to participate in village affairs during the duration of the banishment or by not being allowed to reside in the village during the duration of the banishment.

Now the individual who is banished and expelled from the village does not become a refugee without a place to live. This is where the Samoan extended family system comes in; and the banished individual will always find relatives ion another village or in the Apia area to live with. A banished individual without relatives to live with elsewhere is simply unheard of. Another feature of banishment, which applies to both kinds of banishment, is that the duration of the banishment is not commonly expressed or spelled out. The custom in this regard is that when a banished individual is remorseful and prepared to make amends for his wrongdoing, he may return to the village and make a presentation of foodstuffs and/or fine mats to the Alii and Faipule of the village who will accept him back to take part in the affairs of the village or to reside again in the village. Sometimes the displeasure of the village ends before a banished individual requests his return to the village and make amends. In such case the Alii and Faipule may ask the individual to return to the village. Again the banished individual makes a presentation of foodstuffs and/or fine mats to the Alii and Faipule. So even though the term of a banishment is seldom specified or spelled out when a banishment is imposed, the customary understanding is that when the banished individual is remorseful and prepared to make amends for his wrong doing, or when the displeasure of the village has ended, he may return to the village. So the term of a banishment is very much determined by the interplay of two factors, remorsefulness on the part of the banished individual and the ending of the displeasure on the part of the village. No doubt the gravity of the misconduct or disobedience also plays a part in determining the term or duration pay village fines or other very serious misconduct would not expect to be accepted back into the village society within a matter of a few days, or a few months, or even a year. So the imposition by the Land and Titles Court in the present case of a banishment order without spelling out a fixed term is quite consistent withy custom and usage. The term of the banishment order will be determined by the factors already referred to. In some of the very serious cases, an individual is told by the Alii and Faipule of a village that he is banished forever from the village. Even in such a case, the use of the word 'forever' does not literally mean a perpetual life sentence. The term or duration of the banishment is still determined by the interplay between the remorsefulness of the wrongdoer the duration of the displeasure of the Alii and Faipule of the village and the gravity of the misconduct.

The sanction of banishment applied to both the matais as well as the non-matais of a village. So the members of the Alii and Faipule of a village are not themselves immune from banishment. An individual member of the Alii and Faipule may be banished by the Alii and Faipule as a collective body. Banishment which involves the exclusion of an individual from continuing to reside in a village, is not a common occurrence within a village. It is not something that happens in any particular village every year or every ten years. Some villages have not made a banishment order which requires an individual to leave the village for the last twenty, thirty, forty or more years. The impression that banishment by exclusion from village lands is a common occurrence within a village and is practised by the Alii and Faipule with almost reckless abandon is certainly not supported by the evidence. It is perhaps when one looks at the country as a whole that banishment by exclusion from village lands on a village by village basis will show that it is not a common practice within any one village it is a measure of social control reserved for the very serious kind of village misconduct. Such very serious misconduct is not a common occurrence within any particular village."

The Right to move freely and reside anywhere in Samoa: guaranteed by article 13 (1) of the Constitution:

Article 13 (1) All citizens of Samoa shall have the right:

(d) to move freely throughout Samoa and reside in any part thereof.

(4) Nothing in subclause (d) of clause (1) shall affect the operation of any existing law or prevent the state from making any law in so far as that existing law or the law so made imposes reasonable restrictions on the exercise of the right conferred under the provisions of that subclause in the interests of national security the economic well-being of Samoa, or public order, health or morals, for detaining persons of unsound mind for preventing any offence for the arrest and trial of persons charged with offences or for punishing offenders.

The plaintiff claims that the order of banishment imposed by the village violates his right and of his family to move freely and reside at any place of their choice. They have also been denied their right to a fair trial.

Counsel for the defendants submit that pursuant to article 13(4) the village Fono Act 1990 is an existing law which authorises the village council to impose the order of banishment which the defendants did impose on the plaintiff, so that by enacting the Village Fono Act, Parliament authorised the village councils to impose banishment orders as reasonable restrictions in the interests of public order on the right to move freely throughout Samoa as conferred by Article 13(1)(d). Another way of expressing the argument by the defendant is that within the meaning of article 13 (4), banishment from a village is a reasonable restriction imposed by the Village Fono Act, in the interests of public order, on the exercise of the rights of freedom of movement and residence guaranteed by article 13 (1) (d). Before turning to the Village Fono Act itself I shall deal first with the development in the law concerning the custom of banishment.

Before the First World War Western Samoa (as was then known) was a German Colony. After the war, Germany by the Treaty of Peace, renounced all her right and title over Samoa in favour of the principal Allied and Associated powers which again as a result of agreements and finally by mandate dated the 17^th December 1920 the League of Nations conferred on the Dominion of New Zealand the full power of administration and legislation over Samoa. The Samoa Act 1921 was enacted and section 46 provided that the Administrator, acting with the advice and consent of the Legislative Council of Western Samoa, may make laws (to be known as Ordinances) for the peace, order and good government of the Territory not being repugnant to the Act or to regulations under it, or to any other Act of the Parliament of New Zealand or of the United Kingdom in force in the Territory, or to any regulations there in force. It was pursuant to section 46 Samoa Act 1921 that the Samoa Offenders Ordinance 1922 was enacted. The first five sections of the Ordinance are produced in full.

"AN ORDINANCE

TO CONTROL CERTAIN SAMOAN CUSTOMS

WHEREAS by a Proclamation made by the Imperial German Governor dated the sixteenth day of September 1901 the Samoan Natives were forbidden themselves to exercise the custom of local banishment and WHEREAS powers in that behalf were thereafter exercised by the said Imperial German Governor, and WHEREAS by a Proclamation dated the twentieth day of March, 1916 and by a Regulation dated the twelfth day of February 1918 made by Military Administrator of Samoa, provision was made for the manner in which the applications for local banishment would be dealt with, and the above recited proclamation of the 16^th September, 1901 was declared to be in force and its operation was extended, and WHEREAS it was desirable to make the law plain in respect of powers concerning titles, Now, therefore, this Ordinance is made by the Administrator of the Territory of Western Samoa with the advice and consent of the Legislative Council of that Territory, and in pursuance of the Samoa Act 1921.

1. This Ordinance may be cited as the Samoa Offenders Ordinance 1922.
   
2. No Samoan person, whether he be a chief, orator or government official, shall expel or take any part in expelling any person from his village or district, under a penalty of imprisonment for a term not exceeding one year.
   
3. If the Administrator is satisfied that the presence of any Samoan in any village, district or place, is likely to be a source of danger to the peace, order or good government thereof, the Administrator may by order signed by him, order such Samoan to leave any village, district or place in Samoa and to remain outside such limits for such time as the Administrator shall think fit, and by the same or any subsequent order, the Administrator may order such Samoan to reside in any place specified in such order.
   
4. When the Administrator in pursuance of the authority conferred by this Ordinance has ordered any Samoan to leave any village district or place, he may by the same or any subsequent order if he is satisfied that such a course is necessary in the public interest and whether default has been made in compliance with such or not, authorise the arrest of such Samoan and his removal from such village, arrest such Samoan and remove him from such village, district or place and take him to such other place specified in the order.
   
5. If any Samoan is found in the village, district or place defined in any order under clause 3 hereof in breach of such order after the expiration of such term as may be specified in the order, he shall be guilty of an offence and liable to imprisonment for a term not exceeding one year."
   

The same Ordinance was cited and discussed by the Court of Appeal in Italia Ta'amale & Ta'amale Toelau v Attorney General of Western Samoa (unreported 18/8/95; CA 2/95B) where reference was made to the decision of the NZ Supreme Court in Tagaloa v Inspector of Police and Fuataga v Inspector of Police (1927) NZLR 883 which considered the validity of the 1922 Ordinance. The facts of Tagaloa v Inspector of Police briefly are that Tagaloa was ordered by the Acting Administrator to leave the district of Tuamasaga i Matu and to remain outside the district and to reside at Saluafata for three months. He disobeyed and was charged under the 1922 Ordinance. He appealed his conviction. One of the grounds of appeal was that the 1922 Ordinance was ultra vires as it did not provide for any inquiry before the banishment order was made by the Administrator. In upholding the conviction the court held by a majority of 4 to 1 that the 1922 Ordinance, a delegated legislation was enacted not for the purpose of punishing a crime but as a preventive measure necessary in the interests of peace, order and good government to order any person to depart from some particular place; and it might defeat the purpose of the legislation if the Administrator was bound to give notice and held something in the nature of a formal inquiry.

The 1922 Offenders Ordinance was repealed by the 1936 Samoa Offenders Ordinance thus devoiding the Administrator the power to order banishment from a village without notice. However the Samoa Act 1921 was amended in 1927 and it gave the Administrator power to require any person to appear before him to show cause why in the case of a Samoan why he should not be removed to another place in Samoa for a period not exceeding two years, and in the case of a European why he should not be removed from Samoa for a period not exceeding five years; on the grounds that he was preventing or hindering the New Zealand government in performing its functions under the League of Nations mandate or the due administration of the territory.

The 1927 Samoa Amendment Act was repealed by the 1938 Samoa Amendment Act which meant the Administrator henceforth no longer possessed the power to order banishment from a village.

In 1934 the Land and Titles Protection Ordinance was enacted which pursuant to section 34 established and constituted a court of record to be called The Native Land and Titles Commission with the Chief Judge of the High Court as its president. Section 37 gave the court exclusive jurisdiction in all matters relating to Samoan names and titles and other matters specifically stated in section 37 including all claims and dispute between Samoans relating to Native land and the right of succession to property held in accordance with the usages and customs of the Samoan face. The present Land and Titles Court a direct descendant of the 1934 Ordinance was created by the Land and Titles Act 1981 and pursuant to section 34 shall continue to have all jurisdiction it exercised prior to this Act coming into force. Section 34(2) which gives the court particular exclusive jurisdiction in certain matters is almost the exact replica of section 37 of the 1934 Land and Titles Protection Ordinance. Section 37 of the 1981 Lands and Titles Act provides:

37 Law to be applied (1) In all matters before it the court shall apply:

(a) custom and usage;

(b) the law relating to custom and usage;

(c) this Act and any other enactment expressed to apply to the court.

(2) Subject to sub-section (1), the court shall decide all matters in accordance with what it considers to be fair and just between the parties.

There are several observations to be made from the enactments and the court decision I have canvassed. The first is that the custom of banishment existed before the German Administration of Samoa. Secondly both the German and New Zealand Administrations forbid the Samoans from practicing the custom, and thirdly banishment was at the time they were prohibited by the German and New Zealand administrations practiced by Samoans as a form of punishment. Fourthly banishment was exercised by the administrator only as a preventive measure to maintain peace, order and good government which meant that the Administrator could remove anyone from a village before the happening of an event provided it was be necessary in the interests of peace, order and good government as was the case in Tagaloa v Inspector of Police. But this is not the case of banishment orders which are issued by the village councils as those orders are made only after an event or series of events. As Spolu CJ noted in Italia Ta'amale and v Attorney General:

"--- This second kind of banishment (expulsion from the village) is imposed by the Alii and Faipule of a village on an individual for very serious misconduct such as murder, rape, serious disobedience and so on. It may also be imposed on an individual and sometimes his family for continuing non-compliance with lesser penalties."

Another significant difference in the banishment orders authorised by law and those imposed by the village council is that the banishment order by the Administrator was for a specified time as required by law whereas the order by the village council seldom does specify the duration of the banishment. Perhaps the most significant difference is that the banishment order by the village council as highlighted in these proceedings is directed not only at the offender but includes the spouse, his children and all members of the household. Even more so, banishment orders by village council are issued without giving the culprit the right to be heard.

It is now settled law that the Land and Titles Court pursuant to the general provisions of sections 34 and 37 of the Land and Titles Act 1981 has the authority to order banishment from a village. Article 103 of the constitution provides that there shall be a Land and Titles Court with such composition and with such jurisdiction in relation to matai titles and customary land as may be provided by Act. And article 111 (1) defines Law as including: any custom or usage which has acquired the force of law in Western Samoa or any part thereof under the provisions of any Act or under a judgment of a court of competent jurisdiction. In upholding the jurisdiction of the Land and Titles Court to order banishment from the village, the Court of Appeal in Italia Ta'amale & Ta'amale Toelau cautioned that the jurisdiction should only be exercised for truly strong reasons; a banishment order should never be lightly made and the court should deliberate with the utmost care before deciding that banishment from the village cannot be avoided. Reference should also be made to the decision of Norman Smith J in Marina Ututa'aloga v Luafatasaga Iulio (19/3/87) at the Appellate Division of Land and Titles Court. In granting leave to appeal and confirming the jurisdiction of the Lands and Titles Court to make orders of banishment from the village, he observed:

"For many years it has been a customary right of the Alii and Faipule to banish people from a village to preserve the peace and harmony in the village. This custom was recognised by the legislature in framing the Samoan Ordinance of 1922 permitting the Administrator to banish people from a village or district if he was satisfied that their continued presence in the village would be likely to be a course of danger to the peace of harmony of the village or district.

This Ordinance was challenged and the Court of Appeal in the case of Tagaloa and Fuataga v Inspector of Police (1927) NZLR 883 and upheld. The custom has acquired the force of law."

It must be emphasised however that under the 1922 Ordinance the Samoans were expressly prohibited from practicing the custom of banishment. The decision highlighted that banishment orders issued by the Administrator shows that they were considered at that time a necessary feature of the system of law and government. And when banishment orders were considered unnecessary in the machinery of law enforcement the ordinances which created them were accordingly repealed. Banishment however is a custom and usage long established.

The Village Fono Act 1990

AN ACT to validate an 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.

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 6 of this Act.

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 future exercise of power and authority by every village Fono of the affairs of its village in accordance with custom and usage.

Section 6 is produced 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.
     

Counsel for the defendant submits that when the defendants resolved to banish the plaintiff and his family from the village they did so in accordance with custom and usage of their village of Lotofagā. By virtue of section 3 of the Village Fono Act he contends that the village council was granted the mandate, authority and power to banish the plaintiff and his family from the village. Any misdeed or offence carried out against the village pastor is considered by the Village Council as a very serious offence bearing in mind the special relationship a pastor holds in the village so that in the circumstances banishment was the appropriate remedy. I accept from the submission and from the evidence that banishment was imposed as a penalty. I also accept from the submissions and the evidence firstly that while swearing at a pastor's wife is a serious offence, swearing by a pastor's wife is not an offence at all in the village of Lotofagā and secondly fighting with a pastor's son is a serious offence, while an assault and insult by the pastor is not an offence in the same village. If the plaintiff's son Sione is guilty of swearing and fighting, they are offences under the Police Offences and Crimes Ordinances which cannot by any measure be classified as serious offences. They are certainly not the type of misconduct for which the Land and Titles Court would justify making an order to banish anyone from the village.

Perhaps the most unpleasant consequence of the submission is that with hundreds and hundreds of Village Councils in Samoa and with so many variations and different interpretations of customs and usages as well as the different procedures adopted by the different village councils, fair and equal treatment of village residents cannot be guaranteed. Article 9 of the Constitution confers on every person a right to a fair trial which includes the right to be informed promptly and the right to defend himself. It is one of the reasons that I reject the contention by counsel for the defendants that the Village Fono Act requires the rules of natural justice to be examined in terms of the custom and usage of Lotofaga village. I also reject the contention that the Village Fono procedures of not giving notice and the right to be heard are fair in the context of village custom and usage. The simple answer is that if the Village Councils are by law given the power, authority and mandate as argued by the defendants then they must also comply with the requirements of the law. To accept the argument by the defendants would mean that while the Land and Titles Court in determining an application for a banishment order is required to comply strictly with the rules of natural justice the Village Council pursuant to the Village Fono Act is not obliged to comply.

The Village Fono Act in my view does not confer on the village council legal authority to order banishment from the village. Firstly to do so would tantamount to winding back the clock of progress. It is true that in 1927 in Tagaloa v Inspector of Police the majority of the court took the view that banishment was not a form of punishment but a preventive measure within the Samoan Society. At that time of course Samoan natives were perceived by foreign administrators as living in a uncivilised lifestyle in which materialism and individual wealth was secondary to communal type of existence where sharing was a common feature so that banishment was probably viewed as having a minor or no impact on the natives lifestyle. With evolution of time the accompanying developments brought about amongst other things changes in lifestyle, perception and attitudes. Banishment from the village may now be viewed as not only preventive but also punitive. Indeed Ostler J in 1927 in delivering his dissenting judgment in Tagaloa v Inspector of Police argued that the same form of banishment in a civilised society would be viewed as punitive as well when he said at page 904:

"I find it difficult to see how it can be argued that such treatment is merely preventive and not punitive. Even in a civilised country the banishment of a subject from his hometown to some remote part of the country for some indefinite term could not but be felt to be a heavy punishment."

Subsequent to the decision in Tagaloa v Inspector of Police the Samoa Act was amended in 1927 requiring the Administrator to give notice before determining whether a banishment order should be made. Moreover the 1922 Samoa Offenders Ordinance and the Samoa Amendment Act 1927 as I have earlier observed gave the Administrator authority to make banishment orders as it was considered at the time necessary, but in subsequent years the power to make the order was abolished by repealing the empowering enactment in 1938. The system of government and law evolved and developed making the banishments futile and unnecessary. Indeed the custom of banishment from the village was expressly prohibited by both the German and New Zealand Administration to be exercised by Samoans. It is therefore difficult, in fact impossible to comprehend why the Legislature would in 1990 with the enactment of the Village Fono Act intended to empower the village councils to make banishment orders. Village Councils by virtue of custom and usage as conceded to by counsel for the defendants, cannot give notice; cannot allow an accused person to be present to question witness and present his defence and cannot guarantee to an accused person a fair trial as provided by article 9 of the Constitution. The Samoan Court has for a long time condemned the inability of village councils to comply with the principles of natural justice as Marsack CJ noted in Mose v Masame et al (1930-1939) WSLR 140 at 142:

"Notwithstanding the realisation of the injustice of their action, the chiefs and orators proceeded to condemn (the) 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 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."

Secondly, section 3 (2) and (3) of the Village Fono Act simply authorises each village council to exercise its powers and authority in accordance with custom and usage of the village. Power and authority are not defined, but the village fono cannot exercise any power or authority which is unlawful or contrary to law. It can only exercise power authorised by law. It follows therefore that a village fono cannot order anyone to be removed from customary land as that power is lawfully vested in the Lands and Titles Court pursuant to the provisions of the constitution which established that court and the provisions of the Lands and Titles Court Act 1981 which gives that court the jurisdiction to make banishment orders. Section 5 of the Act gives the village fono other powers which are, in the normal course of village life, not part of custom and usage; village fono is empowered to make rules for the maintenance of hygiene and to foster and encourage promotion of economic development within the village. Section 6 then provides the village fono with power and authority to issue punishment if the rules of the village fono are infringed which include imposition of fine, fine mats, animals or food. The exclusion of banishment as a punishment is intentional on the part of the legislature so as not to confer on the village fono the authority to impose banishment. Provision of fine mats, animals and food were, like banishment, all traditional forms of punishments that the village council did impose so that the omission of banishment as a form of punishment authorised by the Village Fono Act is deliberate. For the above reasons I conclude that the Village Fono Act does not grant the village council power to banish anyone from the village. Within the meaning of article 13 (4) banishment from a village by a village council is not a reasonable restriction on the exercise of the right of freedom of movement and residence conferred by article 13 (1).

Before dealing with the question of damages I must return to the banishment order and deal with the evidence relating to one of the plaintiff's child who did not leave Lotofaga on the 10^th December contrary to the banishment order. He is 24 years old and was at the time living with his uncle Leifi, one of the plaintiff's matai brother. When the banishment order was made the plaintiff's son was at the plantation and no one including his uncle informed him on his return to the village. He was at his uncle's house when the untitled men of the village came on a mission on instructions from the village council to take him before the council. They were armed with sticks and stones. He was assaulted. He ran for safety to the road but others were waiting there; he ran to the neighbouring village where his pursuers caught him. He was again attacked. An elderly woman tried to stop the assault; she even threw her body on top of the boy but she was pulled away. She saw injuries on the face and head as the untitled men carried him back to Lotofagā and taken before the village council. The Pulenu'u confirmed in his evidence that the boy was injured. The elderly lady was concerned for the boy's safety, she knew the boy and she also heard the assailants calling to beat him to death; so she and her matai husband went to Lotofagā village and begged the village council to give them the boy. Their wish was granted and they took the boy to reunite with his parents. The plaintiff's matai brother with whom the boy has been living did absolutely nothing.

In considering the question of damages I bear in mind that the plaintiff's removal from the village was at very short notice; he was not allowed back to collect or conduct an actual counting and costing of what he left behind. I will deal with the various claims for special damages under the various headings.

Buildings and Furnitures

Under this heading the plaintiff claims $105,960.00 for the replacement cost of the house and furnitures As a result of the banishment order he has to provide accommodation for his family elsewhere. But he has not permanently lost his home and furnitures. He can return to his home at the end of the life of the banishment order. The inconvenience he has suffered by not living in his own home is a factor to be considered under general damages. But in the event the defendants as a result of these proceedings make the order permanent so as to deprive the plaintiff permanently of his home, the plaintiff can always seek the assistance of the court. He is granted leave to do so. His claim however for the replacement cost of the house and furniture is refused.

Loss of Plantation

Under this heading the plaintiff claims $50,000.00 for the two plantations; a taro plantation further inland from the village and a small one around the house consisting of cocoa plants and poumuli trees. As a result of the brief inspection of the house I concur with the defendant's counsel suggestions during cross examination of the plaintiff that his figures of 2,000 cocoa plants and 400 poumuli trees are grossly exaggerated and inevitably I must also treat in the same vein his approximate value of his taro crops at $50,000 to $80,000 as well as his yams. I allow $10,000 under this heading bearing also in mind that the proceeds of sale of the plantation produce would have been expended for the maintenance of his large family.

Animals

I accept that the plaintiff before his banishment from the village raised a number of pigs, chickens and 3 horses for which he should be compensated. Without the benefit of independent evidence I allow damages at a reduced price. The claim for the 3 horses at $1,500 per horse is reduced to $500 per horse, a total of $1,500; for 2 large boars at $1,000 per boar is reduced to $400 per boar, a total of $800; for 20 piglets at $100 per piglet is reduced to $50, a total of $1,000; for 20 chickens of $10 per chicken is reduced to $5, a total of $100; and 5 sows at $300 a total of $1,500. A total of $4,900 is allowed under this heading.

Under the heading of special damages judgment is given for the plaintiff in the sum of $14,900.

General Damages

Under this heading the plaintiff seeks substantial damages for violation of the constitutional rights of each member of his household; for the unfair treatment they suffered in the hands of the defendants and for the inconvenience, hardship, anxiety, distress and embarrassment they unduly suffered as a consequence of the banishment order.

When the banishment order was delivered the plaintiff and his family had only three hours to pack all they could and leave before the deadline. They knew the consequences of non-compliance; one of the plaintiff's sons who did not leave suffered at the mercy of the village youths. The plaintiff and the rest of the household have in the meantime managed to get transport and sought refuge at the wife's family who were obliged to squeeze them in. But there was not enough room at the wife's family for everyone which necessitated the plaintiff to build a lean-to (attachment with no walls). Before the completion of the lean-to, the plaintiff's sons slept in the car. Other than trying to re-organise his own life, arrangements have to be made to place the school-aged children and grandchildren at school including payment of fees and new school uniforms. Undoubtedly the adult members of the plaintiff's household suffered distress, anxiety and inconvenience. They have all been denied the comfort of their home; denied to live at the place of their choice; denied attending to their animals, plantation and other daily chores, denied attending the church of their choice. They were mercilessly stripped of their self-esteem. The plaintiff himself committed no offence, neither did the other 20 members of the household; but they were discriminated against and persecuted without a word. Without a doubt they suffered. Although the younger children and grandchildren may have been confused and did not fully comprehend the events of the day and the subsequent expedition and resettlement away from home, they have at their very young ages become refugees within their own country. Readjustment to their new environment and resettlement into new schools was inevitable. Without doubt they are unaware of their constitutional right to move freely and reside anywhere in their country of birth; without doubt they have been denied of their rights. They too suffered. Misery, anxiety and distress imposed on twenty innocent persons by a village council of church lovers, at the instigation of a puissant clergy and his foulmouthed wife, resulting from trivial incidents blown out of proportion. The plaintiff and his family are entitled to damages to compensate for the violation of their freedom, and the resulting sufferings. Following from my above observations I am also satisfied that aggravated damages are warranted. One of the major aggravated factor is the obvious discrimination levelled at the plaintiff in favour of the pastor and his wife and the presumption of guilt against the plaintiff's son. Added to that is the defendants deliberate display of high mindedness when they gave the plaintiff and his family a mere three hours to pack and leave; followed by orders to the untitled men to catch and bring before the village council one of the plaintiff's son who did not leave. They knew very well what the untitled men were going to do with the plaintiff's son.

As to quantum I find little assistance from the decided cases. In Tofilau Eti Alesana v Samoa Observer and Savea Sano Malifa (unreported decision of Bisson J; Supreme Court of Samoa; 6/7/98). Bisson J found on the evidence circumstances which warranted an award of aggravated damages against the two defendants for maliciously publishing an article which was grossly defamatory of the plaintiff. An award of $50,000 was made.

I bear in mind there are 21 plaintiffs and at least eight are children. Three the plaintiffs have since the date of the banishment order left for Australia where they live permanently. I also bear in mind the obvious hostility levelled at the plaintiff during the hearing; obviously the defendant's view the plaintiff's instigation of these proceedings as an affront to their dignity. Since October 2002 the plaintiff and his family have been banished from their home and there is no indication of an early return.

I award the plaintiff general damages of $100,000.00.

Punitive Damages

I am mindful that under this heading damages may only be awarded where the conduct giving the cause for complaint is of such nature that it merits punishment. They are punitive in nature and are therefore an exception to the general rule that damages are compensatory. Their provenance is described by the NZ Court of Appeal in Daniels v Thompson (1998)3 NZLR 22 at 28:

"The origin of exemplary damages (probably better described as punitive damages), is usually said to lie in two cases decided in 1763, Huckle v Money (1763) 2 Wils 205 and Wilkes v Wood [1763] EngR 103; (1763) Lofft 1. In those cases substantial damages awarded by juries for improper interference by public officials with subjects were justified as "exemplary damages". The purpose of the awards was said to be to punish and deter, and to express the jury's outrage at the defendant's conduct. A related purpose mentioned in subsequent cases was to appease the victim and to discourage revenge: for example Merest v Harvey [1814] EngR 330; (1814) 5 Taunt 442, where the Judge more specifically referred to the undesirable practice of duelling. Punishment and deterrence are of course purposes which are served by the criminal law. The introduction of criminal law purposes into the law of torts did not represent a new development, but reflected the common historical roots of the laws of tort and crime. Both branches of the law being addressed in large parts to the same type of conduct, the modern separation of their different purposes and procedures was still being completed at that time.

The main reasons for the long-standing lack of separation between the laws of crime and tort may be seen originally in the failure of a more primitive system to rationalise the distinction, and at a later stage perhaps in the inability of relatively weak authorities to prosecute criminal offenders as fully as desirable. Also, the criminal law was part of the common law, and in the process of development and enlargement in scope. Against that background, awards of exemplary damages in the eighteenth century may appear as remnants of the old lack of distinction rather than as a new development in the law of remedies."

I have characterised the conduct of the village council as high handed when it resolved to banish the plaintiff and his family from the village. The defendants outrageously ignored the interests of the innocent young children; it is conduct which offend human decency and triggers the imposition of punitive damages: When Samoa ratified the Convention on the Rights of the Child it was a genuine gesture to protect our children and this court has on a number of occasions echoed it will protect those rights with jealousy.

Article 3(1) of the convention states:

"In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legal bodies, the best interests of the child shall be a primary consideration.

Article 16 (1) No child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence, nor to unlawful attacks on his or her honour and reputation.

(2) The child has the right to the protection of the law against such interference or attacks."

The rights of the plaintiff's children and grandchildren have been violated; their wellbeing sacrificed and punitive damages are warranted. Punitive damages bear no relation to what the plaintiff and his family should receive by way of compensation, as punitive damage is not to compensate but rather to punish; they are in the nature of a fine which is meant to act as deterrent to the defendants and others from acting in the same manner.

When they resolved to banish the plaintiff and his family they disregarded logic and every principle of decency which is a foundation for an award of punitive damages. Twenty innocent persons were unduly punished for an offence committed by a member of their family. Arrogance and high-mindedness superseded logic and commonsense, it is conduct which tantamounts to ill-will and maliciousness and should be discouraged. As to quantum of damages to be awarded under this heading, precedents are again scarce. In Tuivaiti (Tariu) v Sila (Faamalaga) & Others (1980_1993) WSLR 17 punitive damages were awarded against three of the four defendants who banished an untitled man and his family from his village for his failure to attend church contrary to village rules. St John CJ held the conduct of the defendants when they banished the plaintiff to be high-handed and ill will and awarded punitive damages of $1,000. That was in 1979.

I award punitive damages of $50,000. As to costs I bear in mind that one of the plaintiff's son came to Samoa to give evidence. His travel and accommodation expenses should be recovered against the defendants. Costs of $8,000 are ordered against the defendants. Judgment for the plaintiff as follows:

Special Damages $ 14,900

General Damages $100,000

Punitive Damages- $ 50,000

JUSTICE VAAI