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Tutuila v Punitia [2012] WSSC 107 (21 June 2012)

SUPREME COURT OF SAMOA

Faumuina Tutuila v Peni Punitia and others [2012] WSSC 107


Case name: Faumuina Tutuila v Peni Punitia and others

Citation: [2012] WSSC 107

Decision date: 21 June 2012

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

Hearing date(s): 17 – 19 August 2011, 25 – 27 April, 10 May 2012

File number(s):

Jurisdiction: Civil

Place of delivery: Mulinuu

Judge(s): Justice Slicer

On appeal from:

Order:
Representation:

T S Toailoa for the plaintiffs
R Papalii for the defendants

Catchwords:

Words and phrases:
Legislation cited:
Village Fono Act 1990
Samoan Offenders Ordinance 1922
The 1927 Amendment Act
Land and Titles Act 1981
Article 73(2) of the Constitution to the Supreme Court
The Constitution Article 6(1)
The Constitution Article 13(1)(d)
The Supreme Court (Civil Procedure) Rules 1980
The Law of Torts in New Zealand
The Village Council and Fono
The Constitution Article 111

Cases cited:
Ta’amale v The Attorney General [1995] WSCA 12
Tagaloa v Inspector of Police and Fuataga v Inspector of Police
Alaelua Vaalepa Saleimoa Vaai v Land and Titles Court
Leutuala v Mauga [2004] WSSC 9
Tagaloa v Inspector of Police
Piteamoa Mauga & Ors v Fuga Leituala
Mose v Masama & Ors (1930 – 1949) WSLR 140
Home Office v Dorset Yacht Club Inc [1970] UKHL 2; [1970] AC 1004
Sunderland Shore Council v Heymon [1998] HCA 3; [1998] 192 CLR 330
Brownie Wills v Shrimpton [1998] 3 NZLR 320
ANS v London Borough of Merton [1975] AC 728
Scott Group Ltd v McFarlane [1977] NZCA 8; 1978 1 NZLR 553
City of Kamloops v Nielson 1984
Sutherland Shire Council v Heyman [1985] HCA 41; (1985) 157 CLR 424
Governors of the Peabody Donation Fund v Sir Lindsay Parkinson & Co Ltd 1985 AC 210
Caparo Industries plc v Dickman [1990] UKHL 2; 1990 2 AC 605
Yuen Kun Yeu v Attorney General of Hong Kong [1987] UKPC 16; [1988] AC 175
Stoven v Wise [1996] UKHL 15; [1996] AC 923
South Pacific Manufacturing Co Ltd v New Zealand Security Consultants & Investigations Ltd [1992] 2 NZLR 282
Connell v Odlum [1993] NZLR 282
Tame v New South Wales
Annetts v Australian Stations pty Ltd [2002] HCA 35; (2003) 211 CLR 317
South Pacific Manufacturing Co Ltd
Lister v Romford Ice and Cold Storage Co Ltd [1956] UKHL 6; [1957] AC 555
Janata Bank Ltd v Ahmed [1981] 1 SCR 791
F v Attorney General [1994] 2
Peterson v Royal Oak Hotel Ltd [1948] NZLR 136
Commercial Union Assurance Co of New Zealand Ltd v Lamont [1988] NZCA 247; [1989] 3 NZLR 187
Kooragang Investments Pty Ltd v Richardson and Wrench Ltd [1981] UKPC 30; [1982] AC 462
Lloyd v Grace, Smith and Co [1912] AC 716;
State of NSW v Jeffrey (2000) Aust Torts Reports 81 – 580
Morris v CW Martin and Sons Ltd [1966] 1 QB 716
March v Stramare Pty Ltd [1991] HCA 12; (1990) 171 CLR 506
Hadley v Baxensdale (1854) 9 Exch 341
Donoghue (or M’Alister) v Stevenson [1932] AC 562
Caparo Industries plc v Dickman [1990] UKHL 2; [1990] 1 All ER 568
Faulkner v Keffalmos 197 1 45 ALJR 80
Baker v Willoughby [1969] UKHL 8; [1970] AC 467
Environment Agency v Empress Car Co [1997] 2 AC 22
Chappel v Hart (1998) 195 CLR 232
Cole v South Tweed Heads Rugby League Football Club Ltd [2004] HCA 29; (2004) 217 CLR 469
Miller v Miller [2011] HCA 9; (2011) 242 CLR 446
OF Nelson v Sia’aga & Others [2010] WSSC 43
London Association for the Protection of Trade v Greenlands Ltd. [1916] 2 AC 15
Cassell & Co. Ltd v Broome [1972] UKHL 3; [1972] AC 1027).
Chapman v Lord Ellesmere [1932] 2 KB 431
Alii and Faipule of Laulii v Trustees of the Estate of Jacob Helg [2011] WSSC 48
Neilson & Another v City of Swan [2008] WASCA 94
Leinenga & Anor v Logan City Council [2006] QSC 294
Northern Territory v Mengel (1995) 185 CLR 307
Sanders v Shell (1998) 196 CLR 329
Three Rivers District Council v Bank of England (No. 3) [2003] 2 AC 1
Bennett v Commissioner of Police of the Metropolis (1997) 10 Admin LR 245
Richards v State of Victoria 1999 VR 8060 of 1999
L v Reading Borough Council [2001] EWCA Civ 346; 2001 1 WLR 1575
Midland Metals Overseas Pty Ltd. v The Christchurch Press Co Ltd. [2003] 2 NZLR 298
P.N.G. Aviation Services Pty Ltd. v State of Papua New Guinea [2000] PGSG 18
Gibbons v Westminster Bank Ltd [1939] 2 KB 882
Mount Cook Group Ltd V Johnstone Motors Ltd [1990] NZHC 137; [1990] 2 NZLR 488 at 497
Rookes v Barnard [1964] UKHL 1; [1964] AC 1129
Cassell & Co. Ltd v Broome [1972] UKHL 3; [1972] AC 1027
Uren v John Fairfax & Sons Pty [1966] HCA 40; [1966] 40 ALJR 124
Australian Consolidated Press v Uren [1966] 1AC 590
Truth (NZ) Ltd v Bowles [1966] NZLR 303
Corbett v Social Security Commissioner [1962] NZLR 878
Taylor v Beere [1982] NZCA 15; [1982] 1 NZLR 81

Summary of decision:


IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU


FILE NO:


BETWEEN:


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


Plaintiffs


A N D:


TUUAMAALII PENI PUNITIA, TUPUOLA AFA LESA, ANAULI POFITU FESILI, FETAOAI VAU SAMAU, UPUESE TANIELU LEPOLU, SINAVA LIMA, PALAIALII LOUIS TAFUNAI, PALAIALII TUVALE ATOA, PALAIALII IONATANA PULA, PALAIALII GENE TAATASI, PALAIALII PAUESI TEO, ASOTASI VAA FALEALILI, TIA ELISE SOLO, GALUVAA SAGAUGA METULI, ATOA KISONA, TUUA FASI LEOTA, TUUAMAALII SIATAGA MANN, of Tanugamanono, Matais, sued for and on behalf of the Alii and Faipule of Tanugamanono


Defendants


Counsel:

T S Toailoa for the plaintiffs

R Papalii for the defendants


Hearing: 17 – 19 August 2011, 25 – 27 April, 10 May 2012


Written Submissions: 29 and 30 May 2012


Judgment: 21 June 2012


JUDGMENT OF SLICER J


  1. The lawyers for both sides have been remiss in their conduct of these proceedings. The Court began its trial of this matter on 17 August 2011 and the hearing continued until 19 August when it was adjourned. Despite endeavours of the Court to have the matter relisted, the case and its evidence did not resume until April 2012. The primary responsibility for this delay must be with Toa Law whose counsel failed to have the matter relisted. That failure is to the detriment of his clients.
  2. The Plaintiff’s case was not completed until 19 August 2011 and further adjourned because of the unavailability of counsel. There remained but one further matter of evidence. The Court resumed on 25 April 2012 when the Plaintiff’s counsel advised that he had no further questions to ask of the defence witnesses, who had given evidence on 19 August 2011. There remained one matter only before the evidence could be completed.
  3. On 4 May 2012, the evidence of the case was due to be finalised. The Court needed to receive, as evidence, the valuation report dated August 2011 and to permit the Plaintiff’s counsel to cross-examine on that report. Counsel did not appear although the Court waited for some hours for either an appearance or an explanation. The case was further prolonged.

Factual Background

  1. The Plaintiff and her immediate family had been long time residents of the village of Tanugamanono. She and her parents have long rendered service to the village and its Congregational Christian Church (“the Church”).
  2. The land occupied by the Plaintiff and her family adjoins the compound of the Church. In 2010, the Church sought to expand its physical, rather than spiritual, domain by enlarging its boundary. The dispute resulted in proceedings before the Land and Titles Court which, on 20 August 2010, permitted the Plaintiff and her family to continue residing on their land, demarking the boundary between the Church and the Plaintiff’s property and permitting the Church to continue with the construction of the pastor’s house and the church hall.
  3. Before the August order, the Village Fono had banished the Plaintiff and her extended family from the village and required them to vacate their homes within the village.
  4. The Defendants claimed that the effect of the order expired on 21 September and the Plaintiff and her family were to leave the village on that date.

Sequence of Events

  1. The land was held through the title Atoa of the Atoa Foemua branch of the title. Land had earlier been gifted or licensed by the then titleholder to the Congregational Christian Church (“CCC”) on 28 February 1906. In 2010, the Church wished to erect a hall and a CCC representative travelled to New Zealand and sought the permission of the titleholder and father of the Plaintiff and Sa’o of the family to rebuild the hall. Permission was given for the hall to be rebuilt on the original foundation. The CCC went beyond its permission and began to erect a building encroaching onto the Plaintiff’s customary land.
  2. The August proceedings, which will be later considered, involved that encroachment. The Land and Titles Court brought about a compromise setting down a boundary between the Church and the custom land. It determined that the boundary be defined by the hedge which had grown up alongside or between the allotments. The Plaintiff accepted the compromise which favoured the CCC and the Respondents. The Respondents objected to the referral of the matter to the Land and Titles Court and unlawfully, and in defiance of the Constitution and the Land and Titles Court, met and resolved to banish the whole family from Tanugamanono. The resolution was publicly pronounced by the To’oto’o and, in the Plaintiff’s words, the decree on the Plaintiff’s case as pronounced was:

“...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 4 p.m. that day and if (we) disobey then we will be burned together with our homes.”

  1. The Court accepts the substance of the Plaintiff’s evidence. There is some dispute as to whether the same exact words were used at a separate banishment pronouncement made on 2 October. It accepts that the wording was used on either or both of the pronouncements. It rejects the evidence of Fetaoai Vau Samau, the To’oto’o and other witnesses for the Defendants that the words were not used and the pronouncement made in peace and harmony for the benefit of the Plaintiffs. The general question is that of the two acts or decrees of banishment.
  2. Police were called to the August event and after their intervention and discussions with representatives of the Fono advised the Plaintiff that the Defendants had agreed to postpone the banishment until 20 September. They had no power to so do.
  3. The Plaintiff filed a fresh application before 20 September, ultimately successful, concerning the matter which was to be heard in February 2011.

Retribution

  1. On the evening of 1 October, men from the village, in a cowardly attack, launched a ‘stoning attack’ on the Plaintiff, her husband and children, her sister and brother in law who lived in their adjoining fale. Villagers entered the homes and smashed furniture and personal items belonging to the Plaintiff and her extended family. Damage was also caused to two vehicles owned by the family. The names of four of the cowards are known (Pili Ropati, Alefaio Pauesi, Apelu Faailo and Keleka Tolai), each of whom have as their parents and matais representatives on the Fono or Council.
  2. There are three causative links between the Alii and Faipule, the Fono, the assailants and the harm caused on 1 – 2 October. They are:
(5) incitement. It was the language used and conduct of each of the Defendants (one of whom will be separately considered) which brought about the attack.
  1. The Plaintiff and her family were asleep at the time of the stoning. The Court rejects any suggestion made by witnesses for the Defendants that the Plaintiff and members of her family had initiated the violence and that the subsequent events of 2 October were no more than a response to damage caused to the church by an unprovoked attack on it by the Plaintiff’s family. Doubtless, there were stones thrown by members of the Plaintiff’s family in self defence but it is more likely, given the disposition of the attacking forces that any of the church damage was caused by the attackers. In any event any stones, if thrown at all, were thrown in self defence. It is more likely that any damage to the church was collateral and caused by the assailants. Police eventually arrived at the scene and took control of the situation.
  2. Each Defendant, with one exception, is liable personally for the damage caused on 1 October and judgment will be against the Alii and Faipule collectively and each named Defendant jointly and severally. Each is liable through incitement, failure to properly administer the disputation and by reason of the doctrine of the law of tort and vicarious liability which will be later considered.

October 2 and Banishment

  1. On 2 October, the Fono was recalled in a special meeting. It resolved, according to defence witnesses, unanimously to banish the family for the events of the previous evening. The Plaintiff or her representative were given no notice of the meeting or given any opportunity to be heard in response to the banishment. The events of 2 October raise six distinct issues:
(5) the time given to the Plaintiff and her family to quit the premises; and
  1. The Plaintiff and her sister say that the To’oto’o used the same formal customary words as before in August namely, that she, her family and their descendants were banished from the village forever.
  2. Fetaoai Vau Samau (“Fetaoai Vau”), the To’oto’o says that on 2 October he led a peaceful procession to Afu Faumuina’s house with those in the procession singing hymns. His evidence is contradicted by another defence witness. His version seems incredible. Houses and vehicles have been wrecked; the Plaintiff and her children terrified; a history of conflict, threats and incitements; and the aftermath claimed by the defence being a quasi religious procession with hymns. Others say that the police were still in attendance. Fetaoai Vau claims that he used the words:

“Faafetai i le Atua i lona alofa ua o tatou fesilafa’i i le filemu o le Atua. Ae o le matou o’o mai e faao’o mai le finagalo tasi o le nuu e tatau ona outou tuua le nuu ae lei ta le fa.”

  1. The Court does not accept that those words were used. There was hostility, revenge and anger in the exchange, not peace and harmony. The family was to be punished for going against the CCC and matais.
  2. The second factual question is not in dispute. The Plaintiffs were given until 4 p.m. to quit land to which they were entitled. They had no time to pack, empty the shop, arrange for the removal of furniture, disconnect power and attend to the numerous tasks associated with the movement of two households. This fact alone supports the conclusion that the Defendants, individually and collectively, since the vote was unanimous, were motivated by spite, punishment and hate rather than harmony.

Banishment and the Village Fono Act

  1. The Defendants relied on the provisions of the Village Fono Act 1990 (“the Act”) in five ways, namely
  2. The Court rejects each of the above assertions.
  3. The Act section 2 defines village misconduct in relation to any village as:

“...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.”

  1. There is nothing in this provision which permitted the conduct of the Defendants. Different villages might have developed variations in custom or tradition but the section is not open ended. It is not a weapon to be used by the majority to act on whim. Misconduct is not what the powerful choose to call misconduct when their dignity is offended. It is not a vehicle to oppress or punish for personal gain. It must be grounded in custom not abuse of power. It must be proportionate to the conduct.
  2. The powers afforded by the Act are confirmed to those of order and good governance as provided for by the Act section 5, namely hygiene, the performance of service and maintenance of the village.
  3. Section 6 does not permit disproportionate or capricious punishment. It does not extend to the death penalty, maiming, whipping or beating of a helpless person. It is a limited power and does not extend to banishment of the innocent, for politics, difference of religion or a device to deprive persons of their land. It does not extend to a non resident or a person, other than a matai who resides on freehold or leasehold land.
  4. The Act is subject and cannot replace general laws of the Legislative Assembly such as the Crimes Ordinance, educational legislation, bankruptcy, marriage, divorce and the like. It is subject to the Constitution and the powers of the Land and Titles Court.

Banishment

  1. In Ta’amale v The Attorney General [1995] WSCA 12, the Court of Appeal had reason to consider the importance of banishment in Samoan culture. In that case, the trial Judge (Italia Ta’amale v Attorney General WSSC 18 August 1995) had determined that banishment per se did not breach the Constitution Article 9. In his reasons for judgment Lord Cooke reviewed the report of the Land and Titles Court of December 1975, which suggested codification of customary law. He noted the Samoan Offenders Ordinance 1922 which:

(See Tagaloa v Inspector of Police and Fuataga v Inspector of Police [1927] NZLR 883).

  1. The 1927 Amendment Act related more to exile, limiting the Administrator’s power to two years in the case of a Samoan and five years for a European. But this amendment and its replacement in 1938 had more to do with sending foreigners to New Zealand and fulfillment of the terms of the mandate requirements and its political requirements.
  2. The legislation was concerned primarily with preventing chaos.
  3. There was an element of hypocrisy in the decisions of the colonial powers. Each proscribed banishment as a form of punishment or redress but reserved the right of exile of political dissident as is shown by the exile of Ta’isi Olaf Nelson and earlier High Chiefs Mata’afa and Malietoa. It was used by the central government as a political weapon. In no way was that power extended to the Fono, the village matai or low ranking officers of the colonial power. Nor was there power to make exile permanent. It was subject to the scrutiny of the courts as shown by the successful appeal of Ta’isi in New Zealand and the decision of government in 1934 to exile him for the second time in 1934.
  4. Tagaloa and Fuataga seemed to have become entrenched into the common law of Samoa until the enactment of the Land and Titles Act 1981. President Sir Gavin Donner, acting under a different statutory power had, in 1974, issued a Practice Direction in 1974 ordering that no further banishment orders should be made as they were in violation of the Constitution. A similar direction was issued in 1980 and referred specifically to Article 13(1)(d) and (2) in support of his conclusion.
  5. In Ta’amale (supra) Lord Cooke referred back to the observations of the primary Judge Sapolu CJ when he stated, inter alia:

“The law of banishment, as I hope I have demonstrated, is also a reasonable restriction imposed in the interests of public order on the right to move freely throughout Western Samoa and to reside in any part thereof conferred by Article 13(1) (d).

This does not mean that the exercise of jurisdiction to make banishment orders is absolute, it is of course subject to law. The jurisdiction is to be exercised judicially by the Land and Titles Court always bearing in mind that the imposition of a banishment order is made in the spirit of what is fair and reasonable and according to law...An individual who is dissatisfied with a decision given at the first instance level of the Land and Titles Court also has further avenues for seeking redress. He has a right of appeal to the appellate division of the Land and Titles Court. He may apply in an appropriate case to the Supreme Court under Article 4 of the Constitution to enforce his constitutional rights and freedoms. He may also apply under Article 73(2) of the Constitution to the Supreme Court if a question arises before the Land and Titles Court as to the interpretation or effect of any fundamental rights provision of the Constitution. A combined reading of the decisions of the Supreme Court and Court of Appeal in Alaelua Vaalepa Saleimoa Vaai v Land and Titles Court clearly suggests that in an appropriate case he may also seek judicial review in the Supreme Court of a decision of the Land and Titles Court.”

and gave as the conclusion of the Court of Appeal:

“It is that history and social structure and those references in the Constitution which lead us now to hold that, within the meaning of Article 13(4), banishment from a village is, at the present time, a reasonable restriction imposed by existing law, in the interests of public order, on the exercise of the rights of freedom of movement and residence affirmed by Article 13(1) (d). The law to which we refer is that pertaining to the jurisdiction of the Land and Titles Court. While upholding the jurisdiction of the Land and Titles Court to order banishment, we do so on the express basis that the jurisdiction can only lawfully be exercised in accordance with the principles and safeguards identified in the present judgment.”

  1. But at no time did the Courts give carte blanche to the Fono.
  2. In Leutuala v Mauga [2004] WSSC 9, Vaai J dealt with the banishment question when it involved personal and family conflicts. In addition he addressed the issue of the role of pastors who rather than act as servants of God use their power and influence to harm members of their village. Vaai J revisited the earlier judgment of Sapolu CJ in Ta’amale (supra) and the two forms of banishment, namely ostracism and expulsion. He accepted its connection with custom but addressed its operation in the light of the Constitution Article 13.
  3. His Honour correctly analysed the historic use of banishment during four eras namely,
  4. In Ta’amale (supra) the Chief Justice had determined that the Land and Titles Act 1981 sections 34, 37 authorised banishment, for serious misconduct such as murder and rape, and serious disobedience.
  5. Vaai J having considered the earlier decision of Sapolu CJ upholding the right of a Village Council to order banishment next considered the import of the Act. He first dealt with the affect of the Act section 3, and in an extensive passage he examined the earlier case law and stated at 12 – 14:

“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.

...

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 (sic) 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 (sic) 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 page904:

‘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.’

...

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).”

  1. His decision was upheld by the Court of Appeal in Piteamoa Mauga & Ors v Fuga Leituala WSSC, unreported 4 March 2005.
  2. The Court follows the approach and conclusion of the learned Judge. His Honour concluded that the Village Council might have power to impose a fine, the provision of fine mats and the like but not the power of banishment.
  3. A second constitutional matter arises in this case. The Constitution Article 6(1) provides that ‘no person shall be deprived of his personal liberty except in accordance with law.’ It is not necessary for this Court to determine whether banishment offends Article 6. But banishment is a punishment which requires procedural fairness before it is inflicted. Article 9 relevantly provides:

“Right to a fair trial - (1) In the determination of his civil rights and obligations or of any charge against him for any offence, every person is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established under the law. Judgment shall be pronounced in public, but the public and representatives of news service may be excluded from all or part of the trial in the interests of morals, public order or national security, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the Court in special circumstances where publicity would prejudice the interests of justice.”

  1. Here no notice was provided to the Plaintiff of the holding of a meeting which ended with a sanction. The untitled men who had engaged in the attack were summoned and examined. Their version of events was accepted. No opportunity was afforded to the Plaintiff or members of her family to attend and provide details of the attack. A witness for the defence claimed that there was no need to do so since there was a family matai present who would have been able to state their defence. The evidence is to the contrary. When Ele, the person named, attempted to speak with the Alii and Faipule, he was ignored. The duty to advise the Plaintiff and hear her version is a principle of long standing within this jurisdiction (Mose v Masama & Ors (1930 – 1949) WSLR 140).
  2. On any approach, that of Sapolu CJ in Ta’amale (supra), the more stringent position of Vaai J in Leituala v Mauga & Ors [2004] WSSC 9 or the cautious endorsement by the Court of Appeal in Ta’amale (supra), the banishment was unlawful and beyond power. The conduct of each member of the Alii and Faipule named in the writ was an abuse of power which amounted to misfeasance of office. In his Doctoral dissertation of December 1995, to the Australian National University entitlted The Rule of Law and the Fa’amatai, Asiata Vaai provides a good example of the consequences of the abuse of power committed in the name of the Fono Act. He recounts at 193 – 194:

“The Village Fono Act has been directly blamed for actions by villages that appear to directly challenge the authority of law. A matai of the village of Apia was banished for 100 years and ordered not to use his matai name his crime was having campaigned for a matai of a different village in a parliamentary by-election. Another matai of Neiafu, a village in Savaii, was carried through the village on a stick like a pig and laid beside an umu or baking oven while the village fono deliberated his fate. Intervention by the village pastor secured his release, but he died soon after of a heart attack. The most callous incident, however, which drew local condemnation and international indignation occurred at the village of Lona, Fagaloa on the North Eastern tip of Upolu in September 1993. A villager, Nuutai Mafulu Matautia, who had openly flouted the authority of the village fono was shot dead by members of his maternal descent group in front of his wife and five children, on the orders of the village Council. His home, shop and two vehicles were burnt.

Apart from the executioner, Sesela Afoa, who was a cousin of the deceased, six senior matai of the village were also charged with murder and 36 others were charged with ‘arson, throwing stones and wilful damages.’ A defence contemplated by one counsel to oppose charges against his client was that the defendants were justified in their actions by Samoan custom and traditions. Afoa was convicted of murder, the six senior matai pleaded guilty to lesser charges of manslaughter and the other defendants all pleaded guilty to the various offences filed. The defence of Samoan custom and traditions which would have necessitated a court ruling on the relationship of custom and law and the Village Fono Act, did not however eventuate.

Domestic reaction to the killing was one of outrage that accused even the Prime Minister and the Head of State as having played ‘a hand in the cold-blooded murder.’ It was claimed that the Act had created a situation that was out of hand and had given the village councils unlimited authority making them ‘think they (could) run their own ‘police department’’. Even the Commissioner of Police was claimed to have stated that ‘most villages in the country think that the law of the land is the matai law.’ International criticism was direct, describing the incident in an editorial of an Auckland, New Zealand newspaper as ‘Barbarism in Western Samoa.’”

  1. The above history shows that the meeting held on 2 October 2011, in the absence of the Plaintiff, ignored 100 years of legal jurisprudence, breached the Constitution and was contrary to the law as stated by the Supreme Court and Court of Appeal of Samoa. The principles of independence of the nation state of Samoa have been betrayed.

Decisions of Land and Titles Courts

  1. The question of banishment and the boundary of the adjoining properties in this case has been before the Land and Titles Court on many occasions. In 1917, Decision LC 508 confirmed the Pule by title Atoa and the conditions for the occupation by Faumuina. That decision, particularly the Pule by the title Atoa, was reconfirmed in 1949 (LC 508). Part 3 of Decision LC 1295 given in 1953 states:

“There has been no allocation in parts of the family about land for Atoa title at Tanugamanono. The Pule of the land including the disputed land is carried out by those who are holding the title.”

  1. On 20 August 2010, the Land and Titles Court clarified the boundary of the land which is used by the CCCS Tanugamanono. The decision (as translated) includes the following:

“13 The Petitioners do not object to the Pastor of EFKS to continue on occupying part of the land in dispute. But their desire is to have the land return to Faumuina if the Congregational Christian Church will not be using the land in future and the Court takes into account that contention by the Petitioner.

13.1 The Petitioners say that they first arrived at Tanugamanono about in the year 1952 at the time the Pastor of the CCCS has already residing on the land in dispute. And in about 1959 they then started residing in block 119/72 and they have not done a formal boundary with the church

13.2 The Court notice (sic) while examination was in progress on the land in dispute a hedges belonging to the Petitioners on the north of the Pastors of CCCS residence starting form beside the main road (Falealilis Road) heading to the Eastern Side and aslant behind the Hall in dispute and heading South and ended at where the banana plantation is located which the Petitioner claim that its their banana plantation and some parties are claiming that, that was where the CCC Pastors pig sty was located.

13.3 It is clear that no part of the Hall has encroached beyond the boundary to land occupied by Faumuina Afu Tutuila and his family taking into consideration their hedges as mentioned.

14 The Court find that if they are to fix boundary for both sides in a way which will not destroy their properties, is an appropriate and necessary manner for to maintain harmony. And that could be done if the Title Holders for Title Atoa work together in the performance of Their Pule. The most important matter which the Court notice is that Atoa Kisona, Atoa Moeono Penitito and Atoa Eti Fatupaito have agreed for the continuation of the work of CCCS.

15 And taking into consideration all matters here is the unanimous decision of the Court

(a) To confirm the compliance of decision LC 508 dated 13 Sept 1917 LC508 dated 30 August 1949 and LC 1295 dated 23 September 1953.

(e) The Petition LC 508 P3 is dismissed

(i) Other Pules raised are also denied.

(o) The Court confirms that the hedges of the Petitioners as mentioned in the reasons of the Court’s decision which is the boundary with the CCC for the meantime. The boundary on the Eastern Side, a straight line be continued on from where the hedges of the Petitioners ends heading South to the eastern side of a coconut tree which is located behind the Pastors residence up to the main road.

(u) The Court orders the completion of work to the hall and other work of the CCC of Tanugamanono

(f) The order of 06 July 2010 is set aside

(g) The land pertaining to the title Tupuola is not affected by this decision.

(l) The Court cost is $180.00 each party to pay $20.00 each from fees they paid for filing their petitions.”

  1. There was no question of any banishment order being upheld by the Court. There was no question that the Village Fono was entitled to fix a time in September when any banishment order was to take effect. The Court does not accept the evidence of any of the Defendants to that effect. The ruling shows that the Plaintiff had accepted the boundary line as fixed by the Land and Titles Court. The decision upheld the determination of 1917, 1949 and 1953. The Court noted the acceptance of Kisona, Penitito and Fatupaito to the decision.
  2. The Plaintiff and her family accepted the hedge as the boundary.
  3. The decision confirmed that:

“The land pertaining to the title Tupuola is not affected by this decision.”

  1. There was no justification for the conduct of the defendants for the events of 1 October or the decision taken on the following morning.
  2. Following the destruction of the Plaintiff’s property the Alii and Faipule petitioned the Court requesting:

“ - The Court to confirm the banishment and wiping out of Faumuina Tutuila Fereti, Afu Faumuina and their family from any land of Tanugamanono.

- Numerous conducts which breach the peace and multiple motives which cause trouble and shameful behaviours by Faumuina Tutuila and his family.

- The village in the oratory manner delivered its decree to the Respondents but are still in breach of village protocols.”

  1. The Plaintiff cross-petitioned claiming that there had been no good reason why she and her family had been banished. In its reasons for decision delivered on 12 November 2010, the Court observed at 7:

“But the banishing or wiping out of someone from village land is not proscribed.”

  1. The Petition of the Alii and Faipule was dismissed and the Cross Petition was allowed.
  2. On 23 March 2011, the Land and Titles Court ordered Anauli Pofitu Fesili, Palaialii Louis, Tavui Iose, Tuu Fasavalu, Fetaoai Vau Samau and Tuua Peni to cease the bulldozing of the land as petitioned by Atoa Penitito. It further ordered the Respondents to comply with the previous order of 20 August 2010, confirming the boundary of the disputed land. It threatened each of the named Defendants with a term of imprisonment of six months if there was non compliance.
  3. This decision is important for a number of reasons including:

(1) it gives the lie to the Defendants’ claim that the October banishment was for the good of the Plaintiff’s family;

(2) it shows that six of the named Defendants were prepared to continue with the appropriation of the land for their own benefit to the detriment of the Plaintiff’s;

(3) it shows contempt of the court order made on 20 August 2010, a matter relevant to the question of punitive and exemplary damages, at least, as against the above-named Respondents;

(4) the threat of imprisonment, in law, is one personal to the named Respondents as against a collective body. It reinforces any decision by this Court to order damages against defendants personally as against a Fono and/or Alii and Faipule;

(5) the persons named in paragraph 54 above could not have carried out the destructive work without the knowledge and consent (implicit or actual) of each Defendant and the Fono.

  1. The order noted that the Land and Titles Court intended:

“...the maintaining of harmony and peace and in compliance of court decision hence we take this avenue of the Act.”

  1. None of the Defendants have taken steps to achieve the desired aim of the Court. The banishment order remains in place; no offer of restitution has been made and the Defendants, or at least some of them, seek to make use of the Plaintiff’s land held by custom.
  2. This case involves misuse of custom as a vehicle to enhance the property of the Church and the personal benefit of at least some of the Defendants, without objection by the others.

Conspiracy and Causes of Action

  1. The pleadings are less than precise and are confusing. The Plaintiff, as representative of her family pleads in her Statement of Claim:
  2. The remedies sought were:
  3. The Defendants pleaded in their Statement of Defence:
  4. The Defendants’ pleading in paragraph 18 can be readily dealt with. The Supreme Court (Civil Procedure) Rules 1980 Part 5 permits the commencement of an action. Part 8 permits interlocutory motions and Rule 71 governs the grant of interim orders. Part XIX Rules 193 allows for injunctive relief but does not assist the Defendants’ plea. The Defence paragraph 18 is dismissed.
  5. During the trial, Counsel for the Plaintiff indicated that he would rely on the Tort of Conspiracy and was asked by the Court to ‘tidy up’ or reformulate the pleadings. In their written submissions, the Defendants point out there had been no amendment to the pleadings as requested. Nor is there any reference to conspiracy in the Plaintiff’s final submissions.
  6. The tort of conspiracy is complex (see Todd (supra) 13.4) and the Court has accordingly proceeded with this judgment on the basis of the identified torts together with the principles of duty of care and vicarious liability.
  7. If the Court is wrong in following the traditional tests or approach then it would reach a similar conclusion through Constitutional law based on causation in the following terms:

Duty of Care

  1. Act and omission both give rise to duty (Home Office v Dorset Yacht Club Inc [1970] UKHL 2; [1970] AC 1004, Sunderland Shore Council v Heymon [1998] HCA 3; [1998] 192 CLR 330, Brownie Wills v Shrimpton [1998] 3 NZLR 320). Here, once the Plaintiffs were wrongly evicted from the land, the Fono was required and had a duty to protect the vacant property. The Defendants held both a personal responsibility, as ones who had decided on the eviction, and the collective body through the doctrine of vicarious liability.
  2. In ANS v London Borough of Merton [1975] AC 728, the House of Lords stated that the issue of duty was to be approached in two stages, namely;

“...whether as between the alleged wrongdoer and the person who has suffered damage there is a sufficient relationship of proximity or neighbourhood such that, in the reasonable contemplation of the former, carelessness on his part may be likely to cause damage to the latter, in which case a prima facie duty of care arises. Secondly, if the first question is answered affirmatively, it is necessary to consider whether there are any considerations which ought to negative, or to reduce or limit the scope of the duty or the class of person to whom it is owed or the damages to which a breach of it may give rise.”

  1. ANS (supra) was followed by the New Zealand Court of Appeal in Scott Group Ltd v McFarlane [1977] NZCA 8; 1978 1 NZLR 553, and the Supreme Court of Canada in City of Kamloops v Nielson 1984 2 SCR 2 but was questioned by the High Court of Australia in Sutherland Shire Council v Heyman [1985] HCA 41; (1985) 157 CLR 424. ANS (supra) was later questioned in the House of Lords in Governors of the Peabody Donation Fund v Sir Lindsay Parkinson & Co Ltd 1985 AC 210, and in subsequent decisions culminating in Caparo Industries plc v Dickman [1990] UKHL 2; 1990 2 AC 605, when the English Courts abandoned the two stage test and approved the statement of Brennan J in Sutherland (supra) that the law should develop novel categories of negligence incrementally and by analogy with established categories rather than a massive extension of a prima facie duty of care restrained only by indefinable stage two considerations (see generally: The Law of Torts in New Zealand, Todd 4 Ed, 5.2 n35). The differing tests may result in the same consequence (Yuen Kun Yeu v Attorney General of Hong Kong [1987] UKPC 16; [1988] AC 175; Stoven v Wise [1996] UKHL 15; [1996] AC 923. The New Zealand Courts applied ANS (South Pacific Manufacturing Co Ltd v New Zealand Security Consultants & Investigations Ltd [1992] 2 NZLR 282; Connell v Odlum [1993] NZLR 282) although the second area of inquiry looks outside the relationship of the parties and the second to the factors relevant to that relationship and involves the broader implications for the community, including policy considerations. The second or ‘external’ stage of the inquiry involves an explicit assessment of extraneous considerations of policy or principle both for and against a duty.
  2. Whilst the Australian approach maintains a rejection of the original test of ANS (Capro (supra); Tame v New South Wales; Annetts v Australian Stations pty Ltd [2002] HCA 35; (2003) 211 CLR 317) the difference must be seen in light of the prescient statement of Cooke P in South Pacific Manufacturing Co Ltd (supra) that at 294:

“A broad two-stage approach or any other approach is only a framework, a more or less methodical way of tackling a problem. How it is formulated should not matter in the end. Ultimately the exercise can only be a balancing one and the important object is that all relevant factors be weighed. There is no escape from the truth that, whatever formula be used, the outcome in a grey area case has to be determined by judicial judgment. Formulae can help to organise thinking but they cannot provide answers.”

  1. Here the Court is satisfied on either test that each Defendant, with the exception of Atoa Kisona, namely the Alii and Faipule as representatives of the Fono (whose decision was unanimous) and as an individual owed a duty of care to the Plaintiff to protect the Plaintiff’s property from damage. The question of principle or policy consideration embraces or can be replaced by the custom of Samoa of matafaioi.
  2. The reasons include:
  3. It is inconceivable that within a village any of the Defendants were unable to foresee or ought to have foreseen loss and damage. It is inconceivable that any of the Defendants were unaware of the identity of the persons referred to in (9) above. It is inconceivable that any of the Defendants were unaware of risk. It is inconceivable that any of the Defendants were unaware of the fate of the livestock.
  4. The Village Council and Fono owed a duty of care to the Plaintiff through the doctrine of vicarious liability. Irrespective of whether the banishment was permitted by law, once executed the Village Council or Fono remained responsible for the protection of the property. Here the claim for damages is made against:
  5. The stoning of the Plaintiff’s premises was unlawful and, at least, condoned by the Defendants. At least four of the sons of the Defendants were directly responsible. The Defendants had a duty of care to ensure that the August decision of the Land and Titles Court was obeyed. It did not meet that duty.
  6. The banishment itself was unlawful and the decision, on any criteria, one of abuse of power and misfeasance of office.

Vicarious Liability

  1. Vicarious liability arises where one person or institution is held to be liable for the tort committed by another even if the liability does not arise from a particular act committed by the defendant. The most common application of the doctrine is the relationship between employer and employee, or the state and its agencies.
  2. Redress through vicarious liability requires answers to three preliminary questions, namely
  3. The relationships can vary and the tort committed outside of the normal terms of that relationship (Lister v Romford Ice and Cold Storage Co Ltd [1956] UKHL 6; [1957] AC 555; Janata Bank Ltd v Ahmed [1981] 1 SCR 791; F v Attorney General [1994] NZEmpC 135; [1994] 2 ERNZ 62). International or ‘wilful’ tortuous acts such as assault and trespass may attract vicarious liability when committed within the scope of the relationship (Peterson v Royal Oak Hotel Ltd [1948] NZLR 136; Commercial Union Assurance Co of New Zealand Ltd v Lamont [1988] NZCA 247; [1989] 3 NZLR 187.
  4. Here the Defendants, both individually and collectively, had a special relationship through family, custom and the Act itself, with the members of the village and especially the young untitled men. The relationship can be described by custom as ‘matafaioi’ as used in the term:

“o le matafaioi le maluapapa o le aia tatau.”

  1. The matai as elders or sa’o within their family had rights or ‘aiatatau’ which can correspond with the common law doctrine of duty of care.
  2. The Defendants had wrongfully banished the Plaintiff and her extended family. That banishment had been set aside by the Land and Titles Court. It was the duty of the Defendants to enforce that decision, both as a matter of law and matafaioi.
  3. The Defendants deny any knowledge of the events of 1 October, nor accept any responsibility for the damage caused. It is beyond belief that the breaking of windows, the pelting of rocks and the smashing of furniture would go unnoticed. It is beyond belief that the pronouncement of perpetual banishment against the Plaintiff, her family including small children, on the same day that a Court of Samoa pronounced on the validity of the Plaintiff’s claim and set a boundary for the land. It is beyond belief that the violence was committed without the tacit understanding that there would be no consequence.
  4. The violence was to the benefit of the Defendants’ aims, namely the eviction of the family, which, itself, is an indication that the conduct came within the terms of the relationship (Kooragang Investments Pty Ltd v Richardson and Wrench Ltd [1981] UKPC 30; [1982] AC 462) even if the conduct be criminal (Lloyd v Grace, Smith and Co [1912] AC 716; State of NSW v Jeffrey (2000) Aust Torts Reports 81 – 580; Morris v CW Martin and Sons Ltd [1966] 1 QB 716).
  5. The Defendants collectively, and some of the Defendants personally, come within the doctrine of vicarious liability for the events of 1 October.
  6. The question of the subsequent damage caused through fire will be separately considered.

Joint and Several Responsibility - Stoning

  1. If the Court is wrong in my conclusion stated in paragraph 16, at least some of the Defendants ought be held liable personally and severally. That is so for reasons different from or additional to the ones stated in and preceding paragraph 16.
  2. The conduct of the men on the evening of 1 October did not follow from a decision of all the Defendants as Alii and Faipule of the village. But the conduct of or absence of restraint of the parents or family members of those who carried out the attack is a cause of the violence. Ultimate responsibility for a family may be with the Sa’o but the Defendants whose family members took part in the attack ought be held responsible. Each was a father or close relative and a matai. It was common knowledge that the Plaintiff had:
  3. The Defendants named below were the parents of some of the assailants. Each had a duty to control the conduct of the untitled men who were their children. Their failure to prohibit misconduct was a cause, within the meaning of March v Stramare Pty Ltd [1991] HCA 12; (1990) 171 CLR 506, of the attack on the property on the evening of 1 October.
  4. Each has committed a breach of duty of care and is personally liable for the damage caused. The implication of this will be later stated.

Causation and 1 October

  1. In Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22; [2002] 1 AC 32, [2002] 3 All ER 305, Lord Hoffman summarised the law in the following terms in his speech at 54, 56, 57 and 58.

“[54] In my opinion, the essential point is that the casual requirements are just as much part of the legal conditions for liability as the rules which prescribe the kind of conduct which attracts liability or the rules which limit the scope of that liability. If I may repeat what I have said on another occasion, one is never simply liable, one is always liable for something – to make compensation for damage, the nature and extent of which is delimited by the law. The rules which delimit what one is liable for may consist of casual requirements or may be rules unrelated to causation, such as the foreseebility requirements in the rule in Hadley v Baxensdale (1854) 9 Exch 341, [1843–60] All ER Rep 461. But in either case they are rules of law, part and parcel of the conditions of liability. Once it is appreciated that the rules laying down casual requirements are not autonomous expressions of some form of logic or judicial instinct but creatures of the law, part of the conditions of liability, it is possible to explain their content on the grounds of fairness and justice in exactly the same way as the other conditions of liability.


[55] In the law of negligence, for example, it has long been recognised that the imposition of a duty of care in respect of particular conduct depends upon whether it is just and reasonable to impose it. Over vast areas of conduct one can generalise about the circumstances in which it will be considered just and reasonable to impose a duty of care: that is a consequence of Donoghue (or M’Alister) v Stevenson [1932] UKHL 100; [1932] AC 562, [1932] All ER Rep 1. But there are still situations in which Lord Atkins’ generalisation cannot fairly be applied and which it is necessary to return to the underlying principles and inquire whether it would be just and reasonable to impose liable and what its nature and extent should be: see Caparo Industries plc v Dickman [1990] UKHL 2; [1990] 1 All ER 568, [1990] 2 AC 605.

[56] The same is true of causation. The concepts of fairness, justice and reason underlie the rules which state the casual requirements of liability for a particular form of conduct (or non-casual limits on that liability) just as much as they underlie the rules which determine that conduct to be tortuous. And the two are inextricably linked together: the purpose of the causal requirement rules is to produce a just result by delimiting the scope of liability in a way which related to the reasons why liability for the conduct in question exists in the first place.

[57] Across most grounds of liability, whether in tort, contract or by statute, it is possible to generalise about casual requirements. These generalisations are explored in detail by Hart and Honoré Causation in the Law (2nd edn, 1985). They represent what in ordinary life would normally be regarded as the reasonable limits for attributing blame or responsibility for harm: for example, that the defendant’s conduct was a necessary condition for the occurrence of the harm (the ‘but for’ test), that it was not caused by the informed and voluntary act of another responsible human being and so on. To that extent, these casual requirements are based upon common sense. But, as Hart and Honoré also point out, there are situations in which these generalisations would fail to give effect to the reasons why it was thought just and reasonable to impose liability. For example, if it is thought just and reasonable to impose a duty to take care to protect someone against harm caused by the informed and voluntary act of another responsible human being, it would be absurd to retain a casual requirement that the harm should not have been caused.

...

[58] The same link between the grounds of liability and the casual requirements can be seen in cases of statutory liability. Sometimes the casual requirements are expressly stated; if not, the courts will construe the statute as requiring the casual connection which best gives effect to its policy.”

(the above is taken from the All ER at pages 339 – 340).

  1. The duty was to guard the premises from a later attack. Although the fire was a later event which in some cases require apportionment (Faulkner v Keffalmos 197 1 45 ALJR 80) it was the original wrongdoer who ought be equally liable with the actual perpetrator for the damages (Baker v Willoughby [1969] UKHL 8; [1970] AC 467.
  2. There is sufficient evidence to establish on the balance of probability that the actions or conduct of some of the Defendants, generally or immediately, caused the untitled men to commence the attack on 1 October. There are some connections, namely

Pili Ropati is a member of the family which includes Anauli Pofitu Fesili, Fetaoai Vau Samau, Tupuola Afa Lesa, Galuvaa Sagauga Metuli, Upuese Tanielu Lepolu and Sinava Lima.

Alefaio Pauesi is the grandson of Palaialii Pauesi Teo.

Apelu Faailo is a member of Palaialii Pauesi Teo’s family.

Keleka Tolai is the nephew of Tuuamaalii Peni Punitia, the pulenuu of the village.

(3) the youths were questioned by members of the Fono the following morning and not one was punished by the village. It was the Plaintiffs who were punished.
(4) Neitua Taefu, the woman who attended the fono meeting, is a member of the family of Atoa Kisona.
(5) 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.
  1. The matai had either lost control of their village and permitted the attack without interference or actively supported their kin in the unlawful conduct when the September deadline had been passed.
  2. The Court will apply the test as stated by the High Court in March v Stramare Pty Ltd (supra).
  3. The Court finds that the conduct and failure to intervene and prevent the stoning attack on 1 October was a cause of damage inflicted on the Plaintiff’s property on 1 October.
  4. The Court finds that:

Causation and Fire

  1. The principles governing the question of causation concern the factual links between action or inaction which have been stated by the House of Lords in Environment Agency v Empress Car Co [1997] 2 AC 22 and the High Court in Chappel v Hart (1998) 195 CLR 232.
  2. The test is best explained by reference to March v Stramare (supra). In that case:

“7. Mason CJ said three things that set the direction for the determination of causation for the next 35 years. They were:

(1) The division of the issue of causation into these two specific questions placed too much weight on the ‘but for’ test of causation to the exclusion of the commonsense approach that the common law has always favoured.

(2) They implied that value judgments had no part to play in resolving causation as an issue of fact.

8. McHugh J took a different approach. His Honour said that the ‘but for’ test of causation should be the sole test of legal causation. Any other rule limiting responsibility for damage caused by a wrongful act or omission should be recognised as a policy-based rule, concerned with remoteness of damage, and not with causation.

9. In March v Stramare Mason CJ and McHugh J came to the same conclusion. It was held that the negligence or wrongdoing which was causative of the harm.”

  1. The banishment on 2 October was unlawful. The time given to the Plaintiff and her family was an act of spite and hatred. The Court neither accepts that it was for the benefit of the Plaintiffs nor carried out properly or in accordance with custom.
  2. The Defendants’ position was made worse by the events which preceded the pronouncement. A meeting was held and the untitled men invited to give their version of events. The Plaintiffs were neither invited to the meeting nor afforded any opportunity to reply. The decision to banish was unanimous and, given the order of the Land and Titles Court, each person who voted at the meeting committed a misfeasance of office and for that and other reasons became personally and collectively responsible for the subsequent harm caused to the Plaintiffs. There is also evidence of incitement to burn made at the meeting: Neitua Taefu, a member of Atoa Kisona’s family, attended the meeting and her statement recorded and replayed on commercial television. Her words as recorded were:

“If I had known what had happened last night, I would have come, for I heard what happened. I now understand last night. I would have burnt their house down.”

An alternate translation made by the Registrar reads:


“...about the situation it is correct, what I am saying if I could come last night, I came last night when I heard but now I understand, last night everything on the land should have been burnt...and last night this house should have been burnt.”

Neitua Taefu concluded:

“...the house should have been set on fire last night.”

  1. The threat of fire was consistent with the version given by the Plaintiff. It is consistent with the threat made by the To’oto’o on two occasions. Not one matai spoke against Neitua Taefu or condemned her for those words.
  2. Both houses and the shop annex were set alight on 16 October. No one has admitted responsibility for the actual crime.
  3. When the Plaintiff attempted to return to the scene to inspect the damage she was prevented from doing so by Rupi Tago Ropati, a woman of the village. Her conduct resulted in the Plaintiff’s group being surrounded and threatened by untitled men, requiring intervention by police. That is a matter relevant to the issue of aggravated and punitive damages.
  4. Atoa Kisona attended the Land and titles Court in August 2010. He had travelled to Samoa from Australia and was delegated to act as the To’oto’o on 20 August. From his evidence the Court deduces that much of the trouble was caused by the pastor.
  5. Atoa Kisona delivered the original edict and did not permit a reply. Other witnesses claimed that the Plaintiff and her family were represented by Atoa Eti. Their claim is belied by Atoa Kisona who confirmed that Atoa Eti had originally been at the meeting, became shy and did not attend all of the meeting. He also confirmed that it was Atoa Penitito who pleaded for a stay in the banishment order for a period of 4 – 6 weeks which explains the message passed on by police earlier referred to.
  6. Atoa Kisona returned to Australia and was not present on the evening of 1 October or the meeting of 2 October. He did not return to Samoa until 25 – 26 November.
  7. Atoa Kisona is related to Defendants 1, 2, 3, 7, 8, 9, 11, 12 and 15. He alone of all the Defendants incurs no responsibility for the harm caused to the Plaintiff by the fire.
  8. The action brought against him, both as an individual and a member of the Alii and Faipule of Tanugamanono is dismissed.
  9. Tuuamaalii Siataga Mann (“Tuuamaalii Siataga”) had worked late on 1 October and was awakened by the stone throwing. He claimed that the stones were landing on Asiata Atoa’s house and the extended family home. He claimed to have walked to the scene of the stone throwing but did not see the fight. However, he managed to claim at trial that the stones were being thrown by the Sa Saili family who is the husband of Nossie Tutuila, the Plaintiff’s sister.
  10. Tuuamaalii Siataga is a Defendant. The Court does not accept significant portions of his evidence. It accepts that he eventually restrained the untitled men and that he did not incite the ‘boys’ to start the stoning. It does not accept his version of what occurred on 2 October, who were not directly involved in the stone throwing were permitted to give their account of the preceding night but no member of the Plaintiff’s family given a like opportunity.
  11. He voted for banishment in the absence of Afu Faumuina. He equivocated stating:

(1) the banishment was because of the unprovoked attack on the Church by Nossie’s boys;

(2) there was no need to permit the Plaintiff to give her version;

(3) he denied any threat if the Plaintiff did not quit the property by 4 p.m.;
(4) he took steps to protect the property after banishment claiming that the village (see cases such as Cole v South Tweed Heads Rugby League Football Club Ltd [2004] HCA 29; (2004) 217 CLR 469, Brodie (2007) 234 CLR 330, Miller v Miller [2011] HCA 9; (2011) 242 CLR 446 and cases cited therein) and that a villager, Michael Sinave, was forced and ordered to pay 500 sows as punishment. That claim was either a guise or a farce. The punishment of payment of 500 sows shows it to be meaningless. He claimed the $1,000 was paid into the village account. In the unlikely event that he was telling the truth the fact remains that none of it was ever offered to the Plaintiff as recompense; and
(5) the village had no responsibility for anything which had happened.
  1. Tuuamaalii Siataga was reticent as to who was present at various times. He conceded only that the First Defendant was the pulenu’u. As to the other Defendants he averred:
(1)
That Tuumaaalii Peni
Was the pulenuu
(2)
Tupuola Afa Lesa
not present on the night of the stoning;
(3)
Anauli Pofitu Fesili
not present on the night of stoning;
(4)
Fetaoai Vau Samau
not present although he lives in the village;
(5)
Upuese Tanielu Lepolu
lives in New Zealand; not present;
(6)
Sinava Lima
not present but lives in the village;
(7)
Palaialii Louis Tafunai
was with him and did nothing except calm the situation;
(8)
Palaialii Tuvale Atoa
lives in the village but not involved;
(9)
Palaialii Ionatana Pula
Lives at Moto’otua;
(10)
Palaialii Gene Taatasi
lives in the village but not present;
(11)
Palaialii Pauesi Teo
lives in the village but not present;
(12)
Asotasi Vaa Falealili
lives in the village but not present;
(13)
I’a Elise Solo
lives in the village but was not involved;
(14)
Galuvaa Sagauga Metuli
self but attempted harmony;
(15)
Atoa Kisona lives in Australia. No involvement. Even Atoa Kisona admitted attending the August meeting and acting as To’oto’o but was not present until November;
(16)
Tuua Fasi Leota
has no knowledge; and
(17)
Tuuamaalii Siataga Mann
has no knowledge

  1. The names and numbers of the Defendants are set out for convenience.
1.
Tuuamaalii Peni Punitia
2.
Tupuola Afa Lesa
3.
Anauli Pofitu Fesili
4.
Fetaoai Vau Samau
5.
Upuese Tanielu Lepolu
6.
Sinava Lima
7.
Palaialii Louis Tafunai
8.
Palaialii Tuvale Atoa
9.
Palaialii Ionatana Pula
10.
Palaialii Gene Taatasi
11.
Palaialii Pauesi Teo
12.
Asotasi Vaa Falealili
13.
Tia Elise Solo
14.
Galuvaa Sagauga Metuli
15.
Atoa Kisona
16.
Tuua Fasi Leota
17.
Tuumaalii Siataga Mann
  1. When pressed in cross-examination he denied involvement in the instructions given for the defence pleadings. He accepted that he was present at a meeting but that Palaialii Louis and other matai met with the lawyer. That question was significant because of the pleading in the Defence paragraph 6(c), which 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 important to restore peace and harmony first.”

  1. He claimed that his primary obligation was to protect the Church.
  2. He admitted voting for banishment at the October meeting although he knew that the decision was contrary to an order of the Land and Titles Court.
  3. Except for statements against self interest or unless corroborated by other reliable evidence the witness is not accepted as accurate or reliable.
  4. Palaialii Tuvale Atoa (Defendant 8) was a later witness called by the Defence. He is the Secretary of the Human Rights Protection Party (“HRPP”) for the whole of Samoa and as a village was aware of the July 2010 dispute. He confirmed that the decision to banish the Plaintiff and her family was taken immediately after the publication of the decision of the Land and Titles Court on 20 August which supported the Plaintiff’s claim. He was aware that the Plaintiff had filed a petition challenging the banishment order.
  5. He confirmed that Tuuamaalii Peni, the pulenu’u, was present at the scene of the stoning incident and that Tuuamaalii Peni was present. Pili and Keleka appeared to be drunk. Police were in attendance.
  6. Palaialii Tuvale claimed that he and others decided to settle the matter quickly and that he and Tuuamaalii Peni notified the village accordingly. Afu was not invited. Pili and his companions were examined and the village accepted the word of drunks over those who may have been sober. He claimed to have acted with rightness to protect the Plaintiff and her family.
  7. Palaialii Tuvale took no steps to chastise the offenders or the villagers as a whole. One might have expected greater leadership and influence by the Secretary of the HRPP.
  8. Nossie, the Plaintiff’s sister and the victim of the assault, was suspended from her work at the hospital because of fear that the nearby hospital itself might be imperiled by the villagers. Palaialii Tuvale had the power and status to prevent this from happening.
  9. In his defence he said that a trespasser, Michael, had been punished for trespass and maintained that the October banishment was for the peace, harmony and safety of the community; the same justification used by the two former colonial powers.
  10. Palaialii Tuvale was also ambiguous in his evidence. He confirmed the power or right of the matai to make the rules concerning the governance of the village and that villagers were under a duty to obey directions. Yet he did not call Afu to the meeting since he felt the matai could not control the behaviour of the untitled men and women at such a meeting because of their anger. That version contradicts the hymn and harmony version given by Fetaoai Vau Samau and Tuuamaalii Siataga.
  11. Palaialii Tuvale had a duty as a matai, a member of the Alii and Faipule and a senior member of the ruling political party to protect the property of the banished families. He did nothing.
  12. He was aware that the hedge was to remain the boundary as determined by the Court. He was aware that the hedge has been removed. He was aware that the banana plantation cultivated by the Plaintiffs no longer exists. He was aware that the destruction of the plantation had been carried out by members of the CCC.
  13. The last witness called by the defence (apart from a valuer) was Fetaoai Vau Samau (Defendant 4). He confirmed that on 2 October, the villagers taking part in the banishment were angry. He disagreed with the version given by Palaialii Tuvale and Palaialii Louis. Fetaoai Vau claimed to have stayed at the rear of the banishment procession to intervene if there was trouble. The decree was directed at Afu’s father and all of his descendants i.e. a lifetime banishment. He confirmed that he pronounced the decision, which this Court finds to be beyond power, contrary to the Constitution and a contempt of court. He claimed that his action accorded with the custom of this village, which might differ from other villages, a loophole used by many in the exercise of power under the Act and disparaged by earlier decisions of this Court.
  14. Fetaoai Vau was equivocal that the term ‘a grindstone will burn’ was used although such is a phrase or term used in Samoan custom to constitute a threat to burn the fale and its contents.
  15. Palaialii Tuvale persisted with his attempts to have the banishment confirmed or upheld by the Court in November 2010. His attempts were unsuccessful. The continued involvement by a senior official of the governing party does not give the Court confidence in the fairness and integrity of the political process and ought not provide Samoa with a belief that certain party officials will act with fairness and within the law.
  16. He did little, if anything, to protect the property of citizens of Samoa. He acted in contempt of an order of a Court appointed and empowered by the Constitution of the State of Samoa.
  17. He put personal interest and favour ahead of his duty as a powerful agent and officer of a party governing the State.

The Constitution Article 111

  1. The Defendants seek to rely on the Constitution Article 111 as protecting their rights of banishment and punishment. Article 111 is an interpretative provisions and does not assist the Defendants.

Joint and Several Liability: Fire Damage

  1. In OF Nelson v Sia’aga & Others [2010] WSSC 43, the Court held at paragraphs 61 – 62 the Defendants jointly and severally for the damage done to the Plaintiff’s property, stating:

“61. The Defendants are liable for the jointly and severally damages and the Plaintiff is entitled to the award against each Defendant (London Association for the Protection of Trade v Greenlands Ltd. [1916] 2 AC 15, Cassell & Co. Ltd v Broome [1972] UKHL 3; [1972] AC 1027). The Court has no power to apportion damages as against the [Defendants] even though their culpability might vary (Chapman v Lord Ellesmere [1932] 2 KB 431). They are joint or severally liable.


(a) In this case a number of the Defendants, named in the original Statement of Claim, are deceased. Enforcement through an estate or otherwise is not a matter for this judgment.”
  1. In the case of the Alii and Faipule of Laulii v Trustees of the Estate of Jacob Helg [2011] WSSC 48, the Plaintiffs were held liable, jointly and severally for the costs of an action they had brought against the Trustees of the Helg family.
  2. There are many cases in which a breach of duty by a public officer, here the Fono and its members constitute an abuse of power, if the acts which comprised they breach were intentional or deliberate and accompanied by dishonesty, malice or bad faith. Conduct by a public officer in excess of power would constitute an abuse of power for the purposes of tort. The principles of vicarious liability apply to the tort of misfeasance in public office (Neilson & Another v City of Swan [2008] WASCA 94 and cases cited therein).
  3. The damages alleged to have been suffered must be linked to the relevant act of negligence (Leinenga & Anor v Logan City Council [2006] QSC 294). There can be dual liability on the part of an individual or group of individuals as stated by the High Court in Northern Territory v Mengel (1995) 185 CLR 307, when in their joint judgment Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ stated at 347:

“The cases do not establish that misfeasance in public office is constituted simply by an act of a public officer which he or she knows is beyond power and which results in damage. Nor is that required by policy or by principle. Policy and principle both suggest that liability should be more closely confined. So far as policy is concerned, it is to be borne in mind that, although the tort is the tort of a public officer, he or she is liable personally and, unless there is de facto authority, there will ordinarily only be personal liability. And principle suggests that misfeasance in public office is a counter part to, and should be confined in the same way as, those torts which impose liability on private individuals for the intentional infliction of harm. For present purposes, we include in that concept acts which are calculated in the ordinary course to cause harm, as in Wilkinson v Downton, or which are done with reckless indifference to the harm that is likely to ensure, as is the case where a person having recklessly ignored the means of ascertaining the existence of a contract, acts in a way that procures its breach.

It may be that analogy with the torts which impose liability on private individuals for the intentional infliction of harm would dictate the conclusion that, provided there is damage, liability for misfeasance in public office should rest on intentional infliction of harm, in the sense that that is the actuating motive, or on an act which the public officer knows is beyond power and which is calculated in the ordinary course to cause harm. However, it is sufficient for present purposes to proceed on the basis accepted as sufficient in Bourgoin, namely, that liability requires an act which the public officer knows is beyond power and which involves a foreseeable risk of harm.

If misfeasance in public office is viewed as a counterpart to the torts imposing liability on private individuals for the intentional infliction of harm, there is much to be said for the view that, just as with the tort of inducing a breach of contract, misfeasance in public office is not confined to actual knowledge but extends to the situation in which a public officer recklessly disregards the means of ascertaining the extent of his or her power.”

  1. Mengel (supra) was followed by the High Court in its subsequent decision in Sanders v Shell (1998) 196 CLR 329, which added procedural unfairness to the basis for liability. Here the penalty on the perpetrator for trespass was a fine of $1,000 and 500 sows was a meaningless gesture made worse by the claim that the money was paid into the Fono’s account and none offered to the Plaintiff as recompense. That was compounded by the refusal of the village to allow the Plaintiff to revisit the scene and to permit the destruction of the Plaintiff’s crops.
  2. The Court does not accept the Defendants acted to protect the safety of the Plaintiff and her family. The Defendants acted:

(1) out of malice;

(2) in contempt of the Land and Titles Court;

(3) in breach of procedural fairness;

(4) beyond power;

(5) in reckless indifference to the consequences of their conduct and inaction;

(6) in a manner calculated to cause harm.

  1. Subjective reckless indifference as to the consequences of the act was sufficient to establish the element of tort dealing with the state of mind of the public officer in doing the act, which included indifference to the consequence of the act, in the sense of not caring whether the consequences happen or not (Three Rivers District Council v Bank of England (No. 3) [2003] 2 AC 1). In that case, the House of Lords revisited the requirements to establish the tort and Lord Hope of Craighead summarised the essential elements at 246 as:

“First, there must be an unlawful act or omission done or made in the exercise of power by the public officer. Second, as the essence of the tort is an abuse of power, the act or omission must have been done or made with the required mental element. Third, for the same reason, the act or omission must have been done or made in bad faith. Fourth, as to standing, the claimants must demonstrate that they have a sufficient interest to sue the defendant. Fifth, as causation is an essential element of the cause of action, the act or omission must have caused the claimants’ loss.”

  1. Each of the Defendants was a public officer. The Defendants individually and collectively had a duty to take reasonable care in providing procedural fairness and ensuring the safety of the Plaintiff’s property after the unlawful banishment. They had the same duty even if the banishment had been lawful.
  2. Both the individual and the statutory body can be held responsible for the tort and consequent damage. As was said in Bennett v Commissioner of Police of the Metropolis (1997) 10 Admin LR 245:

“Actions against the police for assault, in using excessive force in effecting an arrest or interrogating a suspect, can be brought. Why should an action or misfeasance in public office not be brought? I can see no reason why not. The police and the CPS, like everyone else, are subject in the discharge of their duties to the rule of law. There is no public interest that requires them to be afforded immunity against actions based on malicious or knowing abuses of their powers.”

  1. Bennett was approved by an Australian Court in Richards v State of Victoria 1999 VR 8060 of 1999, and the House of Lords in L v Reading Borough Council [2001] EWCA Civ 346; 2001 1 WLR 1575.
  2. No, or at least insufficient, steps were taken by the Defendants to protect the property. The Court does not accept the claim that a protective degree had been made preventing access. Even had one been passed it was insufficient to meet the standard of care. The Court was told that a youth had been punished by a fine, a meaningless gesture.

Damages: 1 October

  1. The rock attack was originally made on the residence and the vehicles parked outside. Some of the young men forced their entry into the building, and did considerable damage to household furniture and items. The Court accepts the valuation of the items damaged as a result of the acts of stoning and assesses the damages as a result of the attack in the following terms:
Particulars of Damage
Damage to Vehicles
Silver Toyota Surf Hilux
$4000
Red Mazda Pickup
$3000
Mazda Van
$2000

Total “A”
$9,000



Damaged Household Items

1 Big Pot Plant
$150
1 TV Rack/Cabinet
$500
TV Entertainment Set
$585
PC Set
$2,000
Stereo
$750
Water Cooler
$700
Shelf
$350
Dishes/Glasses/Cups
$600
Glass Dinner Table
$1,500
Louvers/Frames/Screen & Cocoa Wire
$1,500
Main Entrance Door
$900

Total “B”
$9,585
Total

$18,585

  1. A pickup truck namely, a Mazda van was destroyed, valued at $15,000 and 4 Mag Rims valued at $4,000 was stolen some time after the events of 1 October and will be included in the amount of the damages caused by the fire.

Damages: October 16

  1. The Court accepts the assessment of damages as pleaded, for the cost of repairing the damaged buildings. The particulars state:
Particulars
Buildings
Building # 1 (1 B/R, Living Room, Dinning Room, Kitchen, Shower & Toilet, Store (Shop)
$120,000
Building # 2 (3 B/R, Living Room, Dinning, Kitchen, Bathroom, Front and Rear Porch)
$180,000
Building # 3 (1 B/R, Bath & Toilet)
$25,000
Garage and Tool Room
$50,000
Total “C”
$375,000
  1. The sum of $4,000 representing that of the motor vehicle will be added to the calculation.
  2. The Court is aware of two valuation reports tendered in evidence; P18 and D3, dated August 2011 and October 2010, prepared by Kaisara Real Estate Management and Central Property Valuers.
  3. The October valuation states the current market value of the residence, shop and unit as $419,000 and the Building Replacement Value as:
Main Dwelling
Self Contained Unit with a Shop
Self Contained Unit
Patio
Total
$322,000
$137,000
$20,000
$37,000
$416,000

  1. The August 2011 estimated the current market value as $636,000 which, doubtless, represents a change in the market between the two dates. It does not provide an estimate of the replacement costs. McGregor on Damages 14 Ed. states at 1337:

“The award cannot be a sum greater than the amount claimed if the plaintiff has specified a sum in his pleadings. If the court finds for a greater amount than the plaintiff has claimed he must seek leave to amend the pleadings before the amount found can be awarded. Under the general provision for amendment of R.S.C., Ord. 20, r.5, the court has full power to allow such amendment; generally a plaintiff, upon a verdict in his favour for more damages than claimed, has met with no difficulty in obtaining an immediate amendment.”

  1. If such be the modern law then the Plaintiff ought be permitted to amend the pleadings to represent the higher amount. In his written submissions Counsel for the Plaintiff stated that the Plaintiff claimed the value of $668,736 which was $33,000 more than the Plaintiff was claiming but conceded that the opinion evidence had failed to take into account 20% depreciation and 8% inflation. No application was made to alter the pleadings.

Post October Damages

  1. The Plaintiff obtained an order from the Land and Titles Court in February 2011, preventing the continued destruction of the plantation. Much of the damage had been done and the crops destroyed. In addition, because of the banishment, their livestock was stolen. The Plaintiff claims in her Statement of Claim damages in the following terms:
Crops, Plants, Pigs, Poultry
Bananas, Breadfruit Trees, Coconut Trees, Cocoa Trees, Taro, Taamu
$250,000
Ornamental Plants
$20,000
Poultry
$15,000
Pigs
$10,000
Total “D”
$295,000

  1. She called Muaiufi Aiono as a witness, a person with qualifications and experience in the value of livestock. His evidence was consistent with the claim made by the Plaintiff.
  2. The same principles as have been stated in relation to the ‘fire’ damage apply here. The banishment caused the Plaintiff’s property to be abandoned and her absence permitted others to steal the property. The destruction of the crops could only have been undertaken with the knowledge and consent, implicit or otherwise, of the Fono and the Alii and Faipule and with one exception one of the Defendants as individuals.
  3. The use of earth moving equipment and destruction of the crops weakens any argument that the Fono acted in good faith for the protection of the Plaintiff and her family. It strengthens the Plaintiff’s contention that the Defendants acted with malice and an intention to harm. It strengthens her argument that this dispute was over land and amounted to a land grab.
  4. The Plaintiffs suffered the loss of two dwellings, a self contained unit with a shop, household goods and stock from the shop. In addition, they lost livestock and produce from their plantation. The structures were built on customary land so that the valuations do not include any land value component.
  5. In October 2010, the Plaintiff employed Central Property Valuers to evaluate the loss to the Plaintiff for the damage caused through the fire.
  6. The valuation summary was:
Valuation Summary:
Other Assessments:
Land Value
Nil
Market Rent/Month
Nil
Current Value Improvements:
Main Dwelling
Self Contained Unit with a Shop
Self Contained Unit
Patio
Add Improvements: storage and carport
$258,000
$110,000
$16,000
$30,000

$5,000
Building Replacement Value
Main Dwelling
Self Contained Unit with a Shop
Self Contained Unit
Patio
$322,000
$137,000
$20,000
$37,000
Current Market Value of Land and Buildings
$419,000
Other Improvements
Replacement Value


Marketability:
Good
Summary:
We therefore confirm that the subject property with the improvements has a Current Market Value of $419,000 tala, given the current market conditions and existing improvements on the land.

  1. It was accompanied by photographs and attempted a comparison of the value before and after the fire. In August 2011, a valuations in similar form which covered the current market value of the damaged and burnt buildings as at the date as:
Building No.
Area:
Rate Per Square Metre
Estimated Value
1
149
$1,500.00
$223,500.00
2
54.6
$600.00
$32,760.00
3
212.47
$1,500.00
$318,705.00
4
40.42
$1,500.00
$60,630.00
Total

$635.595.00

“Reconciliation of Final Value

As a result of our data analysis and investigation it is our opinion that the Current Market Value of the Damaged and Burnt Building erected on this property on August 1, 2011 as follows:

Say $636,000.00

(Six Hundred & Thirty-Six Thousand tala)”

  1. Where damages are awarded for a loss in relation to property the normal measure is based on the market value of the property at the time of the tort. However, where by reason of a fluctuation in the supply and demand position of the property, its market value changes between the time of the wrong and the time that the judgment is entered, the time for assessment is that of the time of repair (duty of a party to mitigate loss) or in this case, the time of replacement (Sachs v Miklos [1984] 2 KB 23). Here the matter is made more complex since the Plaintiff and her family had been wrongfully banished from customary land and was unable either to mitigate loss or have the necessary repairs or reconstruction. In addition, there have been changes in the value of currency between the time of the damage and the time of the trial. Allowance will be made for those two factors.

Exemplary and Punitive Damages

  1. In OF Nelson (supra), this Court set out the principles of aggravated and exemplary damages in the following terms at 46 – 51:

“46. Aggravated and Exemplary damages may be awarded in cases of trespass (Moore v Shelley [1883] 8 App. Cas. 285, Livingstone v Rawyards Coal Co. [1880] UKHL 3; [1880] 5 App. Cas. 25, Bulli Coal Mining Co. v Osborne [1899] AC, Cassell & Co. v Broome supra).

  1. A Plaintiff is entitled to both forms of damages. In actions for tort the Court may take into account the Defendants’ motives, conduct and manner of the trespass. The Defendants behaved in a high-minded, insulting and aggressive manner (Rookes v Barnard [1964] UKHL 1; [1964] AC 1129). Their conduct up to the commencement of the action, including the contents of the joint affidavit and the answers given in cross-examination is relevant to the assessment (Cassell v Broome supra). However the damages are usually awarded for unnecessary and further injury to the pride and dignity or reputation of the Plaintiff. The Plaintiff as a corporation has no emotion or feelings and any award is difficult to assess. Here, it is possible to assess punitive damages which will take into account the conduct of the Defendants and to punish them for the harm caused to the company. Given that the remedy for aggravated damage is designed to compensate the Plaintiff for personal harm, no assessment will be made for the Plaintiff. The question of a corporation’s entitlement to aggravated damages was considered by the New Zealand Court of Appeal in Midland Metals Overseas Pty Ltd. V The Christchurch Press Co Ltd. [2003] 2 NZLR 298, a Court composed of 5 members. Although the Court was concerned with a case of defamation and injury to reputation, it dealt with the question of aggravated damages and a corporation. The majority concluded that the claim was an unnecessary complication since a corporation could recover damages for ‘injury to the corporate pocket’ which might include damage for goodwill but not injury to corporate feelings. The Plaintiff relied on, as authority, the decision of the Supreme Court of Papua New Guinea in P.N.G. Aviation Services Pty Ltd. v State of Papua New Guinea [2000] PGSG 18 that aggravated damages are a corporate remedy. However their Honours concentrated on the role of damages for injury to trading reputation and loss of goodwill and here there is no evidence that the reputation of the company has suffered or its goodwill value lessened (Gibbons v Westminster Bank Ltd [1939] 2 KB 882, Mount Cook Group Ltd V Johnstone Motors Ltd [1990] NZHC 137; [1990] 2 NZLR 488 at 497).
  2. The English Courts have confined the remedy of exemplary damages to three categories namely;
    1. oppressive or unconstitutional conduct by government;
    2. where the defendant’s conduct was designed or calculated to make a profit;
    3. where it is expressly authorized by statute.

(Rookes v Barnard [1964] UKHL 1; [1964] AC 1129, Cassell & Co. Ltd v Broome [1972] UKHL 3; [1972] AC 1027).

  1. Previous to Rookes the English Courts had blurred the distinction between aggravated and exemplary damages. The House of Lords required a strict distinction and a jury direction to the effect that if, and only if, the sum awarded by way of compensation was inadequate to punish the defendant, they might mark their disapproval of the conduct by awarding a larger sum. In his speech Lord Devlin in dealing with the distinction said at 1128;

“But the fact that the two sorts of damage differ essentially does not necessarily mean that there should be two awards”.

  1. In Broome (supra) Lord Hailsham addressed the question of one award. He believed that in a case of exemplary damages involving more than one defendant, only one award could be made which represented the lower sum for which any of the defendants could be held liable.
  2. The confinement of the remedy by the House of Lords as stated above has not been followed by the Australian and New Zealand appellate Courts (Uren v John Fairfax & Sons Pty [1966] HCA 40; [1966] 40 ALJR 124, Australian Consolidated Press v Uren [1966] 1AC 590, Truth (NZ) Ltd v Bowles [1966] NZLR 303, Corbett v Social Security Commissioner [1962] NZLR 878, Taylor v Beere [1982] NZCA 15; [1982] 1 NZLR 81).”
  3. Those principles will be applied here consistent with the reasons given by Vaai J in Leituala (supra), and the decision of the Australian and New Zealand courts.

Punitive Damages

  1. In Leituala (supra), Vaai J assessed $50,000 as punitive damages in a case involving the banishment of a family following a minor incident between a school boy and the son of a pastor, in an action based on a breach of the Constitution Article 13. Here the Defendants have breached the Constitution Article 9 and 13, but further were vicariously responsible for the destruction of valuable property and continued interference with the crops and plantation of land to which the Plaintiff’s family were entitled. The conduct breached orders made by the Land and Titles Court, an institution established by the Constitution.
  2. Allowing for the more serious nature of the unlawful conduct, its continuous nature and inflation, the appropriate assessment of punitive damages is that of $100,000.

Exemplary Damages

  1. The Plaintiff and her family were treated with contempt. They were not afforded the opportunity to be heard on the banishment issue, were given but short and unreasonable time to vacate the premises, refused permission to return to at least check their assets, provided with no opportunity to remove their livestock and had their plantation destroyed long after the event. No other compromise was ever offered by the Defendants and the affidavit of Fetaoai Vau Samau, paragraphs 12 and 15 is self serving, equivocal and disingenuous. Afu’s attempt to compromise referred to in her affidavit paragraph 12 was rejected and Fetaoai Vau maintains at paragraph 13 that it is the fault of Afu.
  2. Exemplary damages are assessed in the amount of $50,000.
  3. Even if the English approach stated above was adopted, a single award of $150,000 would still have been appropriate.

Effect of Joint and Several Judgment

  1. It is important to state the effect of a joint and several judgment. It means that each Defendant is equally responsible for the whole of the damages as stated in the orders. If the collection Fono does not have the resources, the Plaintiffs have a right of enforcement for the whole amount as against each Defendant personally. They are entitled to enforce the judgment against the personal assets of each Defendant, both real property and personal effects.

ORDERS:

(1) The action against Atoa Kisona is dismissed.
(2) The assessment of damages for property loss although greater than the sums pleaded will be in accordance with the pleadings and the closing submissions of counsel.
(3) Judgment is entered in favour of the Plaintiff as against each of the remaining Defendants.
(4) Special damages for loss and damage incurred on 1 October is assessed in the sum of $18,585 and the Defendants: Tuuamaalii Peni Punitia, Tupuola Afa Lesa, Anauli Pofitu Fesili, Fetaoai Vau Samau, Upuese Tanielu Lepolu, Sinava Lima, Palaialii Pauesi Teo and Galuvaa Sagauga Metuli ordered to pay such sum, jointly and severally.
(5) Special damages for loss and damage to the residence and buildings incurred as a result of the burning of the property on 16 October are assessed in the sum of $635,736 and the Defendants, jointly and severally, ordered to pay the sum of $635,736 to the Plaintiff.
(6) Special damages for the loss and damage to chattels are assessed in the sum of $112,664, being:
Chattels in Stock in Building 1
$53,594
Chattels in Building 2
$48,970
Chattels in Building 3
$4,440
Chattels in Garage/ Storeroom
$5,660
Total
$112,664

and the Defendants, jointly and severally, are ordered to pay the sum of $112,664 to the Plaintiff.

(7) Special damages for the loss and damage to the Plaintiff’s motor vehicle are assessed in the sum of $15,000 and the Defendants, jointly and severally, are ordered to pay the sum of $15,000 to the Plaintiff.
(8) Damages for the destruction of the crops and the loss of animals of the Plaintiff are assessed in the sum of $50,310 and the Defendants, jointly and severally, ordered to pay the sum of $50,310 to the Plaintiff.
(9) Damages for the breach of Constitutional rights in the form of punitive damages will be consistent with the assessment in Leituala (supra), but allowance made for inflation, will be awarded in the sum of $100,000 to be paid jointly and severally by the Defendants.
(10) The Defendants, jointly and severally, are to pay to the Plaintiff exemplary damages in the sum of $50,000.
(11) In the final submissions, Counsel for the Plaintiff stated at paragraph 30:

“The Plaintiff and her family do not wish to return as they would be fearful for their lives. We submit that it would not be wise for the Court to make such an order as it would only be placing the lives of the Plaintiff and her family in grave danger. They have been uprooted by the Defendants and the Plaintiff and her family is simply asking for compensation for what they have lost. The Defendants are free to help themselves to the remains of the Plaintiff’s buildings, which at best, would only be nominal salvage value.”

No injunctive or restraining orders will be made.

(12) The Defendants, jointly and severally, are to pay the Plaintiff’s costs, such costs to be taxed.
(13) The parties have liberty to apply in the event of any mathematical errors in the summary of the orders for damages.

JUSTICE SLICER

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