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Asiata v Asiata [2007] WSSC 4 (2 February 2007)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

ASIATA SALEIMOA VAAI & ASIATA PENIAMINA
First Plaintiffs

AND:

SELESELE IONATANA
Second Plaintiff

AND:

ASIATA SIVANILA, TUUGALII ETI,
SELESELE TANIELU & SELESELE ELIALA
Defendants

Counsels: Ms Fotu M Vaai Hoglund for 1st & 2nd plaintiffs
Mr George Latu for defendants

Hearing: 29th January 2007
Decision: 2nd February 2007

DECISION OF NELSON, J.

In this matter the plaintiffs seek an order of interim injunction to issue against the defendants refraining them from imposing a banishment order made on 20th May 2004 and 30th May 2006 banishing the first plaintiffs from their village of Vaegā in Satupaitea, Savaii. They also seek an order refraining the defendants from imposing a prohibition order of 19th and 21st June 2006 barring the second plaintiffs from attending religious services in the neighbouring village of Pitonu’ū, Satupaitea. Further the plaintiffs also seek an order refraining the defendants from making any further banishment or prohibition orders against the plaintiffs.

I assume that by the term "refrain from imposing" the plaintiffs mean and seek an order from the court restraining the defendants from enforcing or giving effect to the banishment and prohibition orders of 20th May 2004, 30th May 2006 and 19th and 21st June 2006.

The plaintiffs contend that these orders were made in violation of and without due regard to their constitutional rights to freedom of movement, speech, assembly and association under Article 13(1) of the Constitution and in violation of and without due regard to their right to freedom of religion under Article 11(1) of the Constitution.

The approach to be taken in relation to an application for an interim injunction is well established by previous decisions of this court. See for example Esera -v- National University of Samoa [2003] WSSC 12; Eteuati -v- National Provident Fund [2005] WSSC 14 affirmed on appeal by the Court of Appeal in [2006] WSCA 9; and see also Dive and Fly Samoa Ltd. -v- Schmidt [2006] WSSC 40.

The approach is that the court must first consider whether there is a serious question to be tried and if so, it then goes on to examine where the balance of convenience lies, whether it lies in favour of the grant or the refusal of the interim injunction sought. The phrase "balance of convenience" is defined in Equity & Trusts in Australia and New Zealand [2000] second edition at pages 817 and 818 as follows:

"It is the balance of the risk of doing an injustice that better describes the process. In assessing where this balance lies, the Court must weigh the respective risks that injustice may result from its deciding one way rather than the other at a stage when the evidence is incomplete. In effect the question is to see whether the nature and degree of harm and inconvenience likely to be sustained by the defendant and the plaintiff respectively from the grant or refusal of an injunction are sufficiently disproportionate to bring down by themselves the balance on one side or the other. Where the balance of convenience clearly does not favour either party, the Court may, for reasons of prudence decide to preserve the status quo."

This definition was accepted and applied by the court in both the Esera and Dive & Fly cases, cited before.

Turning firstly to the issue of whether there is a serious question to be tried. The facts of this matter now require some examination. These facts were established by affidavits filed by all parties and counsels have agreed that these should form the basis of any factual findings for the purposes of the present proceedings. The only additional matter not canvassed in the affidavits but submitted by consent during the course of presentation of oral arguments consists of a certified copy of a Land & Titles Court decision ALC 6022 and 6022 P1 and P3 dated 24th June 2005. The decision is a decision of the Lands & Titles Court in respect of a petition by the plaintiffs for an order allowing their return to their village of Vaegā, Satupaitea.

The background of the matter is as follows: The first plaintiffs are the holders of the Asiata title in the village of Vaegā, Satupaitea. This title is also held by the first named defendant Asiata Sivanila. The second plaintiff is the senior orator of the village of Vaegā and of the district of Satupaitea and is pleaded to be a party to this action on behalf of a number of other members of his family allegedly affected by the defendants' prohibition orders.

A dispute arose in or about April 2004 between the first plaintiffs and Asiata Sivanila as to the conferral of the Asiata title by Asiata Sivanila upon the other three defendants apparently without the agreement of the plaintiffs and other heirs of the Asiata title. This dispute resulted in Lands & Titles Court proceedings, the outcome of which is not clear from the affidavits filed. What is clear is this was the start of a running battle between the parties that involved the attempted banishment of other Vaegā matais by the plaintiffs and frequent resort to the Lands & Titles Court process during 2004 and into 2005. A direct consequence of this ongoing feud was that on or about 20th May 2004 in the words of the affidavit of the first named plaintiff:

"8. That on or about the 20th day of May 2004 the defendants made it known at a meeting at Vaegā and by a written document signed by a group of matais of Satupaitea their purported banishment of the first plaintiffs from Satupaitea.

9. That from that time onwards the first plaintiffs and matais and families that support them have been intimidated into abandoning meetings at the normal meeting place of the Vaegā matai council, the committee house, for the sake of avoiding conflicts and maintaining peace and harmony in the village."

It appears from this that the order made was to banish the first plaintiffs and that such order was made at a meeting in Vaegā purportedly of the Vaegā matai council. The decision must have been banishment from the village of Vaegā only because there is no evidence before the court that the defendants or the Vaegā village council have traditional customary authority to ban people from Satupaitea district as a whole, which district includes two other villages apart from Vaegā, namely, Pitonu’ū and Satufia each presumably having their own village councils. That this is the case is accepted by the defendants - see paragraphs 11 and 26 of the affidavit of the defendant Asiata Sivanila.

What is also clear from the language of the affidavits is this dispute has degenerated and has become personal and acrimonious as such matters are liable to become. This has led to violence and threats of violence involving the supporters of the two factions and allegations of harassment, intimidation, divisive and dictatorial behaviour are being hurled by each party against the other. This has spilt over into the filed affidavits and the point is worth making again to all counsels that affidavits should always be confined to issues and matters of fact only. Opinions and judgmental statements have no place in them and ultimately they do not assist either party or the court.

Efforts appear to have been made by the first plaintiffs to reconcile with the village of Vaegā but these to date have proven unsuccessful. Accordingly the banishment order of 20th May 2004 was again reaffirmed by the village council on 30th May 2006 and it is these orders the first plaintiffs now challenge. A further consequence of the on-going friction between the first plaintiffs and the village is that on 19th and 21st June 2006, the second plaintiffs and those whom he represents were made the subject of a prohibition order barring their attendance or travelling to or being picked up for religious services of the Assembly of God congregation at the neighbouring village of Pitonu’ū, Satupaitea. The rationale for this according to Asiata Sivanila’s affidavit seems to be that for over 150 years, only one religion has been accepted in the village of Vaegā and that is the Methodist religion. The implication being that no other form of religious worship can be undertaken by people of Vaegā village.

If that is indeed correct, that would be a clear and unequivocal breach of every persons right to follow the religion of their choice as preserved by Article 11(1) of the Constitution, a right guaranteed to the occupants and people of every village in this country including the village of Vaegā. As stated by this court in Su’a Rimoni Ah Chong -v- Mulitalo Siafausa Vui, an unreported decision dated 16th August 2006:

"the power of the village and matai is important and ought to be respected by this court. But their power is not greater than the power of the Constitution, the Legislative Assembly, the Supreme Court of Samoa or the rule of law. The matai must understand and respect this statement. In turn this court ought to respect their title. But it is the law which governs us all."

For present purposes, these are the essential background facts. And by and large they represent the essential facts upon which the plaintiffs' statement of claim and prayers for relief are based. The banishment and prohibition orders sought to be injuncted are essentially the same orders sought to be declared unconstitutional and sought to be revoked by the statement of claim. There is also a claim for special damages but given the paucity of detail in the statement of claim as to the basis of the damages claim, it would appear the main thrust of the proceedings targets the banishment and prohibition orders.

Is there in this case a serious question to be tried? I agree with plaintiffs counsel that proceedings involving alleged breaches of any of the fundamental rights guaranteed by Part II of our Constitution clearly and undoubtedly raise serious issues. But the question is not whether a serious issue has been raised for judicial determination, the question is whether there is a serious question to be tried. In this regard I propose to follow the approach of this court in Esera -v- NUS referred to earlier, in particular that in examining this question, the court must also have regard to the merits of the plaintiffs claim. As was said in that case (page 9 of the PacLII case report):

"That does not mean to say, of course, that in determining whether or not there is a serious question to be tried the Court should not consider carefully the merits of the plaintiff’s claim, both in fact and in law, and if necessary embark on a full examination of the legal issues involved, because it is obvious that if, on the facts presented, the law can give the plaintiff no remedy, then he cannot obtain "interim" relief."

In the present case, the evidence before the court is clear and uncontradicted. The banishment and prohibition decisions in question were made at a meeting in Vaegā of the Vaegā Village Council. The entity that made the decisions are the Alii and Faipule of Vaegā and not the defendants individually or collectively as a group. There is certainly no evidence before the court that the defendants have the necessary customary authority to issue banishment or prohibition orders or that they did individually or collectively purport to do same. Such a function or power normally rests in the Alii and Faipule of a village not in individual matais or a group of matai. The views of individual matais or a group of matai can of course carry much weight depending on the peculiar or special customs and traditions of the particular village but it would be a strange scenario indeed for four matais of any village to be permitted to make decisions for and on behalf of the village council. There is no evidence before the court that Vaegā has any such peculiar or special customs and traditions.

The plaintiffs argue in their written submissions that the defendants have not denied they are responsible for the banishment orders, but that is clearly not correct as the defendants' statement of defence in paragraph 4 expressly denies this allegation. Neither do the defendants admit same in paragraph 8 of the statement of defence because that merely states that they are in agreement with, in other words they support, the banishment order. It is also clear from the affidavit of the first named defendant Asiata Sivanila that the orders at issue were made by the Alii and Faipule of Vaegā not by the defendants.

It is obvious the plaintiffs have brought their action against the wrong defendants. Counsel’s answer in oral argument that the reason for this is because of the plaintiffs' belief that it is really the defendants who are behind the decisions does not change this fact. That may well be true given the history of this matter but it does not operate to confer on the plaintiffs a legal cause of action against the defendants individually or collectively as a gang of four matais.

I am also mindful and have taken judicial notice insofar as judicial notice can be taken of such matters of the genealogy of the district of Satupaitea and the village of Vaegā. That shows three separate and distinct genealogies for the three village of the district, Satufia, Vaega and Pitonu’ū. And it further shows that the alii of Vaega comprise not only holders of the paramount title Asiata but also includes other matais such as Tupa’i, Fauatea, Tavu’i and Tuimaseve to name a few. The first plaintiffs must have been aware of this because when they petitioned the Lands and Titles Court in 2005 for orders overturning their banishment from the village, they cited in their petition not only three of the four defendants but also a number of other village matais, no doubt in their capacity as members of the village council. Their failure to do likewise here will probably be fatal to their action.

In reaching this decision, I reject the defendants' argument in their written submissions of forum non conveniens and the suggestion that the Lands & Titles Court is exclusively where this dispute belongs and should be tried. I reject it because irrespective of whether or not there are proceedings pending contemplated or even issued in the Lands & Titles Court an aggrieved party can at any time come to the Supreme Court for orders to safeguard his constitutional rights "by appropriate proceedings" as provided for by Article 4(1) of the Constitution. Article 4 (2) empowers the Supreme Court "to make all such orders as may be necessary and appropriate to secure to the applicant the enjoyment of any of the rights conferred under the provisions (of Part II)." This can be done at any time and may be done concurrent with or in the absence of proceedings in any other court. There is no fetter on this empowerment. And this view would also be consistent with the general supervisory jurisdiction the Supreme Court has been given over proceedings in the Lands & Titles Court conducted contrary to or in breach of an applicants fundamental rights under the aforesaid Part II of the Constitution. Such jurisdiction was established and clearly defined by cases such as Aloimaina Ulisese & others -v- L&T Court & others a decision of Justice Young, dated 4th November 1998 and the unreported judgment of Sapolu CJ in Lafaialii -v- AG & others [2003] WSSC 8, dated 24th April 2003.

I do however accept the defendants' argument that the decisions in question were made not by the defendants but by the village council of Vaegā and that is the village council of Vaegā against whom proceedings challenging such decisions would properly lie. I have accordingly come to the conclusion that in respect of the first issue, there is no serious question to be tried as against these defendants. It is clear from the facts no cause of action lies against the defendants for decisions made by the village council of Vaegā and if the law cannot give the plaintiffs a remedy, they are not entitled to obtain any interim relief.

On this basis the application for an interim injunction must be denied, but even if the plaintiffs were able to overcome the first threshold, I am not convinced the interim injunction sought should issue given the circumstances of this case. The remedy is at the end of the day a discretionary equitable remedy and being discretionary, the court can have regard to a wide range of factors, most and arguably all of which would be relevant to the second phase of the courts enquiry, namely where lies the balance of convenience in each particular case. But not all factors necessarily fit neatly under that head and as early as the American Cyanamid decision itself (American Cyanamid -v- Ethicon [1975] UKHL 1; [1975] 1All ER 504) at page 511, Lord Diplock recognized "there may be many other special factors to be taken into consideration in the particular circumstances of individual cases." One such special factor is existent in this case, this being an assessment of the likelihood or possibility of further violence if the injunctions sought are issued. The affidavits filed speak of actions taken "for the sake of avoiding conflicts and maintaining peace and harmony in the village" and differences "spreading to other parts of the district of Satupaitea": paragraphs 9 and 10 of Asiata Saleimoa Vaai’s affidavit. Paragraph 15 of that affidavit refers to unsuccessful attempts by the plaintiffs at reconciliation "in the hope that the defendants would change their minds for the sake of peace and the district as a whole"; and how these had to be abandoned because the house where the reconciliation was to take place was "burned and stoned and two people were seriously injured": paragraph 20. In addition matais who supported the first plaintiffs in Vaegā were harassed and intimidated and two houses of one family were also burnt: paragraph 21.

Mr Vaai’s supplementary affidavit in paragraph 4 refers to how "injury will be suffered by the plaintiffs or damage will most certainly be done to our properties namely, vehicles by the defendants or their agents the next time we go to the village of Vaegā to carry out our customary obligations." Paragraph 5 of the same affidavit talks of a supporter and family member of the first plaintiffs being "in very real danger of being attacked by the defendants or their agents" if these family members fail to heed the warning and allow the first plaintiffs to meet in their house on the familys’ land. There are allegations made of threats and intimidation and one of the supporting affidavits of the plaintiffs refers in paragraph 3 to a not so subtle threat of further violence and trouble from the village made as recently as September 2006.

The affidavit filed by the first named defendant on behalf of all the defendants also speaks of "defiance of the banishment order ...............resulting in more strife and violence" and further banishment of other matais. The Lands & Titles Court ruling in ALC 6022 is under appeal and the defendants allege that the first plaintiffs return to the village at this stage "would only ignite fresh division and strife within the village which is only starting to return to normal since the first plaintiff's banishment": paragraphs 21 and 23 of the affidavit of Asiata Sivanila.

It is against this background that the plaintiffs seek the intervention of the Court. The effect of issuing the orders sought by the plaintiffs would clearly be to negate the banishment and prohibition orders of the village council of Vaegā and free up the first plaintiffs to return to the village and the second plaintiffs to resume their worship of choice in the neighbouring village.

I am not confident this would be a wise action for the court to take. It seems on the material before the court this would only inflame what is already a flammable situation and the likelihood of further violence is in my assessment quite high particularly given how emotionally charged these issues are and have become.

This is not to say the court is taking one side over the other. Quite the contrary, the rights and wrongs of the matter are for full debate and argument on another day. What concerns me here is what should be done in the interim and I am not confident the court should exercise its discretion in favour of the plaintiffs given the tensions that clearly exist in the village. This would also be a further reason for declining the plaintiffs' application for interim relief.

I would conclude by saying that the refusal to issue the interim injunction should not be taken by the defendants as a vindication of the correctness or otherwise of the decisions in question. The court has already expressed a tentative view on the constitutionality of the village council decision vis-à-vis the second plaintiff and his or their right of religious worship and it may be that the village council decision to banish the first plaintiffs is also totally without merit. Certainly the Lands & Titles Court at first instance found that to be the case in the proceedings ALC 6022 and 6022 P1 and P3.

Given the findings made in this interim enquiry, I leave it to the plaintiffs to consider their position and future action and the appropriate measures to take in respect of the substantive claim. The claim will accordingly be adjourned to the 19th February 2007 for mention only and the file will be noted that the application for an interim injunction is denied for the reasons given.

SUPREME COURT JUDGE