SUPREME COURT OF SAMOA
Letoa v Attorney General [2014] WSSC 42
Case name: Letoa v Attorney General
Citation: [2014] WSSC 42
Decision date: 1 August 2014 (ruling)
Parties:
TUIA LOGOIAI PU’A LETOA, TE’O ATAPANA, TE’O PUSA, TE’O UNASA LE’ULU AND TE’O LUKA all of Vaie’e, all Matai’s (Plaintiffs), THE ATTORNEY GENERAL, as Representative of the Ministry of Women, Social and Community Development (First Defendant), LEALAIAUMUA TEUTUPA aka LEALAIMUNA of Vaie’e, Matai (Second Defendant), TE’O LAUAMA of Vaie’e (Third Defendant)
Hearing date(s): 
File number(s): CP149/13
Jurisdiction: Civil
Place of delivery: Mulinuu
Judge(s): Justice Vaai
On appeal from:
Order:
Representation: 
M Peteru for Plaintiffs
S Ainuu for First Defendant
Catchwords: 
Words and phrases:
Legislation cited:
Internal Affairs Act 1995
Supreme Court (Civil Procedure Rules) 1980
Cases cited:
R v Imperial Tobacco Canada Ltd (2011) 3 SCR 45
Watkins v Home office & others (2006) 2 AC 395
Three Rivers District Council v Bank of England No 3 (1996) 3 All ER 558
Garret v Attorney General (1997) 2 NZLR 332
Moala v Attorney General (2010) WSSC 1
Sorrell v Smith (1925) AC 700 at 712
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

TUIA LOGOIAI PU’A LETOA, TE’O ATAPANA, TE’O PUSA, TE’O UNASA LE’ULU and TE’O LUKA, all of Vaie’e, all Matais.
Plaintiffs

A  N  D:

THE ATTORNEY GENERAL, as Representative of the Ministry of Women, Social and Community Development.
First Defendant

A  N  D:

LEALAIAUMUA TEUTUPA aka LEALAIMUNA of Vaie’e, Matai.
Second Defendant

A  N  D:

TE’O LAUAMA of Vaie’e.
Third Defendant

A  N  D:

Counsel:	M Peteru for Plaintiffs
	S Ainuu for First Defendant
Ruling: 	1 August 2014

RULING OF THE COURT
The first defendant has moved to strike out plaintiff’s statement of claim and the Notice of Motion for Interim Injunction and for writs of Certiorari and Prohibition.
Background
1. 	The plaintiffs as well as the second and third defendants are all matais of the village of Vaie’e.
2. 	In 2010 Cabinet confirmed the appointment of the second defendant as the sui o le Nuu (SON) for Vaie’e village following the nomination by the village council of Vaie’e (including the plaintiff) to the Minister of the First Defendant who approved the appointment and submitted it to Cabinet for confirmation pursuant to section 14 Internal Affairs Act 1995.  The appointment was for 3 years with a fortnightly allowance of $250.
3. 	In 2012 the first named plaintiff and the second defendant and others got engaged in a dispute over some customary land, when the first named plaintiff obtained exparte an order of interim injunction against another matai, Te’o Misionare, concerning a piece of customary at Vaie’e.  Te’o Misionare disobeyed the interim order and was arrested and charged with contempt.  Matai titles, Tuia (held by the first named plaintiff) and Te’o are two paramount matai titles of Vaie’e.  Some of Vaie’e matais including the second and third defendants were unhappy with the first named plaintiff.  A village council meeting was summoned and it was decided that the first named plaintiff be banished.  The second defendant, a brother in law of Te’o Misionare delivered the banishment order.
4. 	In April 2012 the first named plaintiff complained to the first defendant about the second defendants conduct as the SON concerning his role in the banishment order.  As a result of investigations and consultations which followed the second defendant was removed as the SON by the first defendant after the matais of Vaie’e were given a specified time to reconcile and they failed to reconcile.
5. 	Bitterness between the first named plaintiff and village council of Vaiee intensified when the first named plaintiff and his supporters formed their own council creating two factions within Vaie’e village; each faction claiming to be the legitimate village council.  These claims led to a court battle in the Land and Titles Court, each faction petitioning the court to be declared the legitimate and recognised village council.  Neither faction succeeded.  The court on the 28th March 2013 ruled that the recognised village council is the combination of both.  What was said during the court hearing exacerbated the bitterness.
6. 	In the meantime the village of Vaie’e has for some 9 months been without a SON thus depriving the village of the benefits of government initiatives and programmes.  The faction which included the second and third defendants by letter of the 29th April 2013 and signed by forty nine matais requested the first defendant to reappoint the first defendant as the SON.  The Chief Executive Officer of the first defendant pursuant to section 14 (1) of the Internal Affairs Act 1995 advised the Minister to appoint the second defendant, which was done and the letter to the second defendant concerning the re-appointment of the second defendant was copied to both factions of the Vaie’e village.
7. 	It is the re-appointment of the second defendant and the banishment of the plaintiff which are at the root of the plaintiff’s complaints and claims.
8. 	The nine causes of action pleaded in the statement of claim all emanate and are grounded on the second defendant’s re-appointment as SON as well as the consequences of the banishment of the first named plaintiff.  The Notice of Motion for certiorari, prohibition and/or interim injunction seek orders to stay or set aside the appointment of the second defendant.
Sui-o le-nuu (SON)
9. 	SON is defined in section 2 of the Internal Affairs Act 1995 as sui-o le-nuu pursuant to section 14.  He is the representative of the village.
10. 	Section 14 provides for the appointment of the sui-o le-nuu.  It says:
	“The Minister acting on the advice of the Chief Executive Officer may from time to time for the purposes of this Act.
(1) 	Appoint a Pulenuu nominated by a village or villages;
(2) 	Appoint representatives of the Government to be known as Sui-ole-Malo:
	PROVIDED THAT where any village or villages fails or is unable to nominate a Pulenuu within 3 months from the time of the vacancy there shall be appointed by Cabinet acting on the advice of the Chief Executive Officer a person to hold that office.
11. 	Duties of the SON are provided for in section 15.
	Duties of Pulenuu and Sui-ole-Malo - (1) It shall be the duty of each Pulenuu and Sui-ole-Malo:
(1) 	To promote harmony in his or her village;
(2) 	To encourage the maintenance of law and order in his or her village;
(3) 	To ensure the free flow of communication between the Alii ma Faipule of his or her village and the Government, and the Ministry;
(4) 	To prepare the births, deaths, and matai title certificates in respect of the members of his or her village;
(5) 	To encourage health and sanitation activities in his or her village;
(6) 	To promote diligently, development projects that are economically viable as well as culturally and environmentally sensitive;
(7) 	To ensure that access roads in and about his or her village are properly maintained;
(8) 	To organise a traditional network in his village to prevent vandalism in respect of street lights, traffic lights, road signs, pipe lines, and village and public facilities;
(9) 	To report to the police the use by any person of dynamite or chemicals for fishing;
(10) 	To inform the Committee and the Council of new pests and diseases evidence in or about his village;
(11) 	To assist government officials in conducting surveys, research, and debt collection in his or her village;
(12) 	To maintain records of village activities;
(13) 	To render at all times such assistance as the Government may need in the successful implementation and, completion of its projects either locally or rationally.
	In addition to the duties imposed upon them by subsection (1) of this section, Pulenuu and Sui-ole-Malo shall perform:
(1) 	Any duties which may be imposed on them by regulations made under this Act or by any enactment, whether passed before or after this Act; and
	(b) 	Any duties in accordance with any Government policy as may from time to time be defined or communicated to them by the Minister.
Banishment
12. 	A village sanction to banish any villager to either physically leave the village or to banish any matai from taking part in any village activity is the traditional role of the village council.  An order to banish is then delivered by one of the matais appointed by the village council to deliver the verdict.
13. 	The banishment order inflicted on the plaintiff was delivered by the second defendant and it prohibited the plaintiff from any involvement in village council meetings and village activities.  In defiance of the order, the plaintiff and his few supporters formed their own (minority) village council, creating two factions in Vaie’e and which led to the litigation in the Land and Titles Court referred to in paragraph 5 above.  Banishment order was not made against the other plaintiffs.
14. 	It is the bitterness between the two factions and the belief by the plaintiffs that the first defendant has taken sides or conspired with second and third defendants or acted illegally to harm the plaintiff, by reappointing the second defendant.
The Strike Out Motion
15. 	Pursuant to rule 70 Supreme Court (Civil Procedure Rules) 1980 as well as the inherent jurisdiction the first defendant moved to strike out the Statement of Claim on the basis that:
(i)	the causes of action are not maintainable at law,
(ii)	the claim is frivolous, vexatious and an abuse of process, and
(iii)	the notice of motion is contrary to law, defective and has no prospect of success.
Negligence as the first cause of action
16. 	Negligence is alleged against the second defendant for which the first defendant is contended to be vicariously liable for the anxiety, stress embarrassment threats and damage suffered by the first named plaintiff.
17. 	Allegations of negligence contained in paragraphs 15 to 28 of the Statement of Claim are repetitive and confusing.  Paragraph 16 for instance alleged conspiracy by the second defendant and others to defeat course of justice, the same allegation is repeated in paragraph 20.
18. 	In essence however it is alleged that the second defendant as the SON owed a duty of care to the plaintiffs to perform his statutory duties under section 15 Internal Affairs Act 1995.  And he failed to take care by taking an active and partial role in the banishment of the first named plaintiff.  It is also alleged he used his position to advance his personal agenda to banish the first named plaintiff.  As a result of his negligence, it is alleged at paragraph 23, that the plaintiffs have suffered and continue to suffer damage.
19. 	Damage suffered according to paragraphs 26 and 27 are stress, anxiety, ridicule and threats to the life of the first named plaintiff.  No damage is claimed to be suffered by the other plaintiffs.
20. 	As against the first defendant it is alleged at paragraph 24 that the first defendant owed a duty of care to the plaintiffs to ensure that the second defendant fulfilled his statutory duties prescribed by the Internal Affairs Act.  It is also alleged that the first defendant is vicariously liable for the negligence of the second defendant.
21. 	Damages in the sum of $250,000 is claimed against the first defendant for the negligence of the second defendant.
Discussion of the first cause of action
22. 	Counsel for the plaintiffs contended that when the first defendant removed the second defendant from his appointment as SON in 2012, it was because the second defendant had acted negligently, when he and the third defendant banished the first named plaintiff, which follows that when the second defendant was reappointed in 2013 the first defendant had effectively endorsed the negligent actions of the second and third defendants back in 2012.  As there were two factions within the village, it was foreseeable that only the village of the second and third defendant would be recognised by Government and receives government assistance while the plaintiff’s village will not.
23. 	Elements of the tort of negligence are not disputed.  It is the contention of the first defendant and that neither the first nor second defendant owes a duty of care to the plaintiffs, and if a duty of care was owed by the second defendant, the first defendant is not vicariously liable if the second defendant breached that duty of care.
24. 	As the first defendant is seeking to strike out the claim, the court usually assumes that facts pleaded are true but it is not required to do so if the allegations in the pleadings are entirely speculative and without foundation or as Mc Lachlin observed in R v Imperial Tobacco Canada Ltd (2011) 3 SCR 45 are manifestly incapable of being proven.  Jurisdiction to strike out must be exercised sparingly; actions can only be struck out under the Supreme Court rules where it is clear and obvious that in law the claim cannot succeed.
25. 	The courts are especially slow to strike out claims in negligence which asserts novel duties of care (recognising the factually sensitive nature of the inquiry) but they must also take into account the competing consideration that a defendant ought not to be subjected to substantial cost of defending untenable claims, particularly in public law negligence.
26. 	As to duty of care methodology, counsel for the first defendant correctly submitted that the authorities disclose three tests which have been used in deciding whether a defendant sued as causing pure economic loss to a claimant owed him a duty of care in tort.  These are:
(3) 	assumed responsibility or the assumption of responsibility by the defendant;
(4) 	the threefold test, and
(5) 	the incremental test.
27. 	It must be said that whichever test is adopted, and in particular the examination of the salient features of the claim, the relationship between the parties and the policy features pointing to whether it is fair, just and reasonable to impose a duty of care, it can be said with the utmost confidence that no duty care was owing either by the second defendant or first defendant to the plaintiffs.
28. 	The SON is a village representative nominated by the village pursuant to section 14 (1)(a) Internal Affairs Act 1995.  In the event of the failure or inability of the village to nominate a SON, within a specified time, Cabinet on the advice of the Chief Executive Officer of the Ministry shall make the appointment.  Contrary to the belief of the plaintiff, the Chief Executive Officer is not obliged under the Act to seek the views of the plaintiffs prior to the appointment or reappointment of the second defendant as SON.
29. 	Duties of the SON provided in section 15 include administrative work for the government like preparing births, deaths and matai certificates as well as reporting to police of crimes like dynamiting of fish.  Other duties concern the promotion and encouragement of certain activities and projects like sanitation, economical, social and law and order within the village.
30. 	Preamble to the Acts states:
	An act to establish the Ministry of Internal Affairs and to provide for the promotion of well being of villages, village authority, to provide for the appointment of sui-o-le-nuu and sui-o-le-Malo and to provide for other matters relating to the culture and traditions of Samoa.
31. 	Pursuant to section 5 one of the principal functions of the Ministry is to consider proposals formulate policies and make recommendations to the Minister for the recognition and organisation of village authority in each village based on the Alii and Faipule Samoan Custom and traditions.
32. 	When the village council of Vaie’e banished the first named plaintiff it did so pursuant to its authority as well as the custom and traditions of Vaie’e.  The second defendant was present in his capacity as a village council member.  He delivered the verdict of the council to the first named plaintiff on orders of the council.  His status as a SON at the time was irrelevant; village protocols and customs ruled the day.  His role as the SOS does not elevate the status of his matai in the village neither does it inject any power or influence in his opinion or views in village council deliberations.  Parliament recognised this and confined the duties of the SOS to promote, encourage, assist and maintain certain activities in the village.
33. 	Other plaintiffs were not the subject of the banishment order.  They joined the first named plaintiff and formed their own group or faction which they claimed in the court hearing referred to in paragraph 5 above to be the proper and recognised village council of Vaie’e.  It reality then it was the plaintiffs who broke away formed another village council and created a division within the village of Vaie’e.  In reality also the so called two factions could never agree on a nominee for the SON due to the escalating bitterness.
34. 	Instead of challenging the legality or otherwise of the banishment, the plaintiffs, in the face of the obvious hostility between the two factions, now claim that the second defendant, a member of the opposing faction owes them a duty of care.
35. 	Furthermore they claim they have suffered loss and damage through stress, anxiety, embarrassment and ridicule.  The first named plaintiff in his affidavit claimed he did not accept the banishment order.  With the other plaintiffs they formed their own sub village, obviously to tell the opposing faction and the rest of the world that they are the recognised village council.  No financial or physical loss is claimed.  If there is or was physical threat, the criminal law provides sanction.  Anxiety, stress and embarrassment are inevitable wherever and whenever there are disagreements and hostilities.
36. 	Neither the first defendant nor the second defendant can be said to owe a duty of care to the plaintiffs.
37. 	But even if the court ruled that the second defendant owed a duty of care which the second defendant breached, the first defendant in the circumstances cannot be held vicariously liable for the breach simply because:
(1) 	when the second defendant attended the meeting of the village council which discussed and approved the banishment of the first named plaintiff, he was not attending in his capacity as SON but as a member of the village council.
(2) 	As the village representative lives in the village doing his normal duties as a village resident, whatever he does on his frolic cannot be labelled to be done by him as the SON.  He is given a fortnightly allowance, not a salary, which follows he does not receive entitlements and benefits received by the officers and employees of the Ministry.
(3) 	If the relationship is one of employer and employee the second defendant cannot be labelled to be acting in the course of his employment when he attended the village council meeting as a member of the village council.
38. 	It follows the cause of action should be struck out and is struck out.
Second cause of action – Misfeasance in Public office
39. 	The plaintiffs claim the Minister of the first defendant abused his public office and committed misfeance in public office by
(1) 	At a funeral of the family member of the Minister, the Minister accepted from the second defendant and his group a fine mat worth about $1,000.
(2) 	the Minister in respond to the group’s request to reinstate the second defendant as the sui o le nu’u for Vaie’e indicated he will grant the request.
(3) 	About 12 days after the request was made the second defendant was reappointed as sui o le nu’u.
(4) 	in reappointing the second defendant the Minister acted with malice against the first named plaintiff.
40. 	As the Minister deliberately acted with malice to cause harm to the plaintiffs, the plaintiffs claim $250,000 damages.
Discussion
41. 	The leading English authority on the subject of misfeasance in public office is the House of Lords decision in Watkins v Home office & others (2006) 2 AC 395 which reviewed previous cases including Three Rivers District Council v Bank of England No 3 (1996) 3 All ER 558.  It confirmed that the tort of misfeasance is actionable only where the claimant has suffered loss or damage, which was caused by the tortious conduct of the public officer.  Its function is to compensate the claimant, not to punish the public officer.
42. 	There is nothing in the statement of claim to indicate the existence of any damage or loss suffered by the plaintiffs so that even if misfeasance is admitted by the first defendant, the absence of loss or damage to the plaintiffs is fatal to the claim by the plaintiffs.
43. 	This cause of action is also struck out.
Breach of Statutory Duty by First Defendant
44. 	The plaintiffs allege the first defendant breached its statutory duties specified in section 14 by ignoring the requirements of s.14 and instead took into account irrelevant considerations.  It also breached its duty by:
(5) 	failing to consult with the plaintiffs prior to reappointment of the second defendant.
(6) 	making the appointment before the two sides of the village reconciled.
(7) 	the Minister of the first defendant’s failing to act impartially and without favouritism at the family funeral.
45. 	For the breach of statutory duty by the First and Second defendant the plaintiffs seek damages of $250,000.
46. 	To allege that the first defendant breached its statutory duty when he failed to consult the plaintiffs prior to the reappointment of the second defendant is false simply because section 14 does not require the Minister or the Chief Executive Officer to consult with anyone.  It is also false to allege that the first defendant should have delayed the reappointment of the second defendant until the two sides have reconciled.  The proviso to section 14 (1) authorises Cabinet to appoint a SON on the advice of the Chief Executive Officer within three months from the time the position was left vacant.  To delay the appointment until reconciliation is effected, as contended by the plaintiffs, tantamount to taking into account irrelevant considerations not contemplated nor specified by the Act.  It would also be contrary to logic and good sense to appoint someone who did not have the backing of the majority of the village.
47. 	The receipt of the fine mat by the Minister at the funeral of a relative was given during the customary exchanges of gifts and at the time the Minister was present as a member of his family and not in his capacity as a Minister.  Undoubtedly a substantial number of other people related to the deceased through titles, marriage and friendship made similar cultural presentations.  The allegation by the plaintiffs is not only speculative, it is outrageously misleading.
48. 	This allegation must also fail.
Institutional Liability of First Defendant
49. 	This cause of action was not pursued, has no substance and is struck out.
Illegality
50. 	Paragraph 61 of the Statement of claim alleged that the decision of the first defendant to continue the appointment of the second defendant as SON is illegal on the basis that:
(8) 	it contravenes or exceeds the terms of the power which authorises the making of the decision
(9) 	it pursues an objective other than that for which the power to make the decision was conferred.
51. 	Confusion again creeps into the pleadings by the pleadings in paragraphs 62 and 63 which allege real and perceived bias against the first defendant.  Paragraph 64 then alleges that the decision to reappoint the second defendant be declared void and set aside on the basis of bias and or illegality.
52. 	As pointed out in paragraphs 46 above the reappointment of the second defendant was in accordance with the proviso of section 14 (1) of the Act.  This allegation against the first defendant must fail and is struck out.
Irrationality and Procedural Impropriety
53. 	The root of the plaintiffs complaint is the reappointment of the second defendant without consulting the plaintiffs and giving the plaintiffs the opportunity to be heard.  And because the second defendant was selected from the other faction of the village, the majority of the village council, the plaintiffs claim at paragraph 78 of the Statement of Claim the reappointment has seriously harmed and detrimentally affected the plaintiffs.
54. 	The harm is neither physical or economical.  The damage is obviously the emotional hurt and pain.  One of the highest ranking matai has been unfairly banished by his own village council for pursuing his legal right and he is obviously embarrassed within his own village as well as in the wider community.  What is happening in Vaie’e is not uncommon amongst other villages.  And usually no one wins.
55. 	Irrationality, Procedural Impropriety and Illegality are grounds for judicial review in public law and do no constitute a cause of action in civil law.  See Garret v Attorney General (1997) 2 NZLR 332; Moala v Attorney General [2010] WSSC 1.
56. 	Even if the statement of claim seeks orders for certiorari or prohibition the pleadings and the events leading to the reappointment of the second defendant cannot support an allegation that the Minister or the Chief Executive Officer of the first defendant breached the rule of natural justice, made a decision which he or she has no power to make, misconstrued the Act and asked the wrong question, or took into account irrelevant considerations.
Conspiracy by the First and Second Defendant
57. 	It is alleged the first defendant by its Minister and or its Chief Executive Officer conspired with the second and third defendant to reappoint the second defendant.  The instances the plaintiffs rely upon in support of the conspiracy include the giving of the fine mat to the Minister during a funeral and other instances which I have already covered in the other causes of actions.
58. 	As a consequences of the conspiracy the plaintiffs claim at paragraph 111 they continue to suffer harm and damage and claim $250,000 damages.
59. 	Apart from the fact that the pleadings do not support a prima facie finding of conspiracy, the plaintiffs have not pleaded what damage was inflicted on them as a result of the conspiracy. The quotation most frequently cited in tortious conspiracy is the well known passage in the speech of the Lord Chancellor of England in Sorrell v Smith (1925) AC 700 at 712:
	“I deduce as material for the decision of the present case two propositions of law which may be stated as follows: -
(1) 	A combination of two or more persons wilfully to injure a man in his trade is unlawful and, if it results in damage to him, is actionable.
(2) 	If the real purpose of the combination is, not to injure another, but to forward or defend the trade of those who enter into it, then no wrong is committed and no action will lie, although damage to another ensues.
	The distinction between the two classes of case is sometimes expressed by saying that in cases of the former class there is not, while in cases of the latter class there is, just cause or excuse for the action taken.”
60. 	No damage has been incurred by the plaintiffs and this cause of action should be struck out and is struck out.
Result
(1) 	The allegations in the statement of claim and in the Notice of Motion against the first defendant are struck out.  Similarity the Notice of Motion is also struck out.
(2) 	Plaintiffs to pay costs of $500
(3) 	Should the plaintiffs wish to pursue their claim against the second and third defendants leave is granted to file and serve an amended statement of claim and to be listed for mention on the 15th September 2014.

JUSTICE VAAI