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Vaai v Sivanila [2008] WSSC 73 (4 June 2008)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

ASIATA SALEIMOA VAAI &
ASIATA PENIAMINA.
First Plaintiff

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

Reasons: 4th June 2008

LEAVE TO APPEAL – REASONS

Leave to appeal was granted to the applicants on 7th April 2008, reasons to be published. These are those reasons.

Background:

It would be useful to briefly set out the history of these proceedings.

By ex-parte Motion dated 27th June 2006 the plaintiffs/applicants ("the plaintiffs") sought various orders of interim injunction against the defendants/respondents ("the defendants") based on the alleged unconstitutional and improper behaviour of the defendants in making certain banishment and prohibition orders against them. On 28th June 2006 the Honourable Chief Justice ordered the proceedings be served on the defendants. After various adjournments for legal representation and other matters the proceedings came before me on 29th January 2007. On 2nd February 2007 I delivered the first of three rulings.

The decision of 2nd February 2007 was essentially that because the defendants had not made the decisions complained of, no cause of action lay against them and there was accordingly no serious question to be tried: see page 6 pp of the decision. This being so the application was denied. I further expressed the view that the plaintiffs had also failed to meet the second requirement of the test for interim injunctions and the court would not in any event have granted the interim relief sought: page 8 of the decision. No appeal was lodged against those findings.

By Notice of Motion dated 19th February 2007, the plaintiffs sought leave to amend their claim by adding as second defendant a named defendant as representative of the Alii and Faipule (Village council) of the district of Satupaitea. The defendants opposed the application and also moved to strike out the action on the basis that no cause of action lay against them. This was heard on 8th May 2007 but as the issue of whether or not the Alii and Faipule are an entity recognized by law as capable of being sued had not been covered by counsels submissions, I called for further submissions.

These were duly received and by judgment dated 10th August 2007 I held that the proper defendant being the Alii and Faipule of the village of Vaega, the application to amend was granted but by adding the Alii and Faipule of Vaega as defendant: page 4 of the decision. This the court is empowered to do under rule 32 of the Supreme Court Civil Procedure Rules 1980. For the same reasons I struck out the defendants as parties to the proceedings.

It is against the decision to strike out the defendants that the appellants now seek leave to appeal to the Court of Appeal by way of a number of motions: Notice of Motion for leave to appeal dated 16th August 2007 filed in the Supreme Court Registry, Notice of Motion for leave to appeal dated 3rd September 2007 filed in the Court of Appeal Registry and a Notice of Appeal dated 16th August 2007 filed in the Court of Appeal Registry. The motions have differing bases but it is only necessary to examine those cited in the application for the leave of this court for as was noted in Ale v Vaili [1994] WSSC 29, this court has no jurisdiction to examine applications direct to the Court of Appeal for leave, special or otherwise.

In response the defendants filed in this court a Motion opposing leave dated 5th November 2007 which in the course of presentation of submissions defendants counsel indicated had been superceded by their Motion opposing leave dated 21st January 2008.

Submissions:

The first ground of the plaintiffs Motion is that the matter is of sufficient importance for referral to the Court of Appeal. This is based on s.51(b) of the Judicature Ordinance 1961 which provides:

"An appeal shall lie in any action, cause or matter, not being a criminal proceeding, to the Court of Appeal from the Supreme Court.

(a) As of right when the matter in dispute amounts to or is of the value of $400 or upwards; and

(b) With leave of the Court of Appeal or of the Supreme Court if in the opinion of either Court the question involved in the appeal is one which by reason of its general or public importance or the magnitude of the interests affected, or for any other reason, ought to be submitted to the Court of Appeal for decision."

The plaintiffs argue the identity of the persons responsible for the prohibition and banishment orders goes to the core of their action. They allege these persons to be the defendants. I accept identification of the makers of the relevant orders is a fundamental issue. And as noted in the decision of 2nd February 2007 and the subsequent ruling of 10th August 2007 the evidence before the court is that the village council of Vaega made these orders, not the village council of the district or the four defendants. This is also consistent with the allegations pleaded in the Statement of Claim which refers in many places to banishment of the plaintiffs from "the village of Vaega, Satupaitea," prohibition of entry "into the village of Vaega, Satupaitea" and a Lands & Titles Court decision in respect of "the village affairs of Vaega, Satupaitea." These allegations are for the purposes of a strike out application assumed to be true: see Enosa v Samoa Observer [2005] WSSC 6 and many other authorities to this effect.

On this basis the plaintiffs application to amend was partially granted and the action against the defendants was struck out. The plaintiffs attempt to introduce a new cause of action through an amended statement of claim was also dealt with by the judgment of 10th August 2007, page 3.

The plaintiffs submit the issue of identity is of sufficient general or public importance to be referred to the Court of Appeal. They say whether individual matai can be held responsible severally or jointly for actions affecting the fundamental rights of village members is important not only generally but as a matter of public interest.

With respect this misses the point. The liability of individual matais is not in issue because individual matai did not make the decisions complained about. The decisions were made by the village matai collectively as a village council. What is in issue is the liability of the council for such decisions. That is a matter to be determined at the eventual hearing of these proceedings.

Furthermore, I do not agree the issue of identity is one of general or public importance. It is peculiar to the circumstances of this case and no issue of general principle is raised or involved. Compare decisions concerning the equivalent New Zealand provision where the courts have held these matters to be of general or public importance: whether "barristerial immunity" should continue to apply in New Zealand – Chamberlains v Lai [2005] NZSC 32; whether a party was "an employee" or an "independent contractor" under the terms of applicable employment legislation – Bryson v Three Foot Six Ltd. [2005] NZSC 6; important questions of electoral law such as the proportionality of Parliament – Prebble v Huata 25th August 2004.

The second ground of the plaintiffs Motion is that they have an appeal as of right pursuant to section 45(3) of the Judicature Ordinance 1961 which provides:

"An appeal shall lie to the Court of Appeal from any decision of the Supreme Court in any proceedings under the provisions of Article 4 of the Constitution."

The provision is a statutory restatement of article 81 of the Constitution and its terms are clear enough. It has three main features: firstly an appeal lies to the Court of Appeal but it is not stated to be as of right. Contrast section 51(a) which specifically provides for appeals as of right. By virtue of section 54(1) therefore, leave of the Supreme Court is required. Secondly the provision applies to "any decision of the Supreme Court." Counsel for the defendants has conceded this includes decisions on interlocutory applications as well as final decisions. Thirdly and finally the decision must have been made in "proceedings under the provisions of article 4 of the Constitution." Again the words are plain enough. The relevant proceedings are proceedings instituted pursuant to article 4 of the Constitution which provides:

"(1) Any person may apply to the Supreme Court by appropriate proceedings to enforce the rights conferred under the provisions of this Part.

(2) The Supreme Court shall have power to make all such orders as may be necessary and appropriate to secure to the applicant the enjoyment of any of the rights conferred under the provisions of this Part."

The question is whether the decision sought to be appealed was made in the course of an article 4 proceeding?

The Statement of Claim seeks inter alia declarations that the banishment and prohibition orders issued by the defendants are unconstitutional and accordingly are invalid and of no effect. It also seeks revocation of these orders and a perpetual injunction in respect of any future such orders by the defendants. While article 4 of the Constitution is not pleaded clearly relief is being sought in respect of alleged breaches of the plaintiffs fundamental rights to freedom of movement and freedom of religion.

Such relief is obtainable pursuant to article 4(1) "by appropriate proceedings." No form of proceedings however is specified neither has any been established by Act or by regulation. In cases where the intervention of the courts have been sought a form of "appropriate proceeding" has not been laid down. Neither is the form of order the Supreme Court may make provided for or prescribed. Article 4(2) confers the discretion to make "such orders as may be necessary and appropriate" to secure an applicants fundamental rights.

It is clear the form of proceeding and type of relief was intended by the framers of the Constitution to be flexible, adaptable to the circumstances of a particular case. This would be in keeping with the notion of the Constitution as a living breathing entity evolving to meet the dynamics of modern society, the "living and evolving thing" referred to by the Court of Appeal in Pita v Attorney General [1995] WSCA 6 designed in the words of Edmund Burke "to preserve by changing."

The approach to be followed to constitutional interpretation is equally clear:

"We have already indicated our agreement that the Constitution should be interpreted in the spirit counseled by Lord Wilberforce in Minister of Home Affairs v Fisher [1979] UKPC 21; [1980] AC 319. He speaks of a constitutional instrument such as this as sui generis; in relation to human rights of a generous interpretation avoiding what has been called the austerity of tabulated legalism; of respect for traditions and usages which have given meaning to the language; and of an approach with an open mind. This involves, we think, still giving primary attention to the words used, but being on guard against any tendency to interpret them in a mechanical or pedantic way": Attorney General v Saipaia Olomalu [1982] WSCA 1, 11 as reaffirmed by the Court of Appeal in Pita v Attorney General [1995] WSCA 6 at page 10.

Applying these considerations to the facts and taking a generous interpretation avoiding what Lord Wilberforce called "the austerity of tabulated legalism" I am of the view the Statement of Claim sufficiently falls within the description "proceedings under the provisions of article 4 of the Constitution" and that accordingly an appeal from a decision on an interlocutory application made in the course of such proceedings lies to the Court of Appeal, but only with the leave of the Supreme Court.

As to the criteria for granting leave some assistance is afforded by section 51(b) and its reference to the general or public importance of an issue and the magnitude of the interests affected "or for any other reason" which must mean "or for any other sufficient reason."

I have dealt with the general and public importance argument. As to the "magnitude of the interests affected" I can only conclude this must refer to the interests of the parties to these proceedings in particular the plaintiffs who have had their claim against the original four defendants in effect substituted by a claim against the in my view proper defendant, the Vaega Village Council. I accept this has affected the nature of the claim and that from the view point of the magnitude of the interests affected, leave should be granted for the appellate court to consider the correctness or otherwise of the decision. While not stated in the relevant Judicature Ordinance provisions there must also be in my respectful view a requirement that the interests of justice be served by a grant of leave. I am satisfied such interests would be served by a grant of leave.

Leave to appeal is granted and pursuant to section 54(3) it is conditional on the appellants providing security for costs in the sum of $200 within 7 days hereof.

JUSTICE NELSON