IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

FUATINO LANGKILDE nee O’BRIEN
of Elise-fou Apia and Satapuala Samoa.
Applicant

AND:

SAPANI LELEIMALEFANA, PAULO FUIONO,
PALE TAUMAIA, SINEI SEVE, LEAUMA POE,
NEEMIA FA’ATUMUA, TAEFU LEPALE and
JUNIOR MATAAFA
of Elise-fou Apia, Samoa.
Respondents

Counsels:	R. Schuster for the applicant
P. Fepuleai for the defendants

Ruling:	18th August 2008

ORAL RULING OF NELSON J.

Before the Court is an application for an order of interim injunction restraining the respondents from interfering obstructing or preventing the applicants and her children from re-entering the village of Elise-fou and occupying their house therein. A further order is sought estopping the respondents from any future unlawful acts of eviction or harassment of the applicant and her children.

The applicant is a member of the village of Elise-fou and on the 10th June 2008 her and her children had been banished from the village by the council of elders of the village known as the "Fono o Toeaina o le Nuu". The documents before the court indicate, and the courts decision can only be based on affidavits as to factual matters placed before it, it cannot be based on any other material, these documents indicate that the banishment arose out of actions carried out not directly by the applicant or the children but by her estranged husband. The husband had defied an earlier banishment imposed on him by the Fono a Toeaina by returning to the village and stabbing and killing a man alleged to be an intimate acquaintance of the plaintiff. 

The applicant initially accepted the Fono decision but has now chosen to bring proceedings seeking her return to the village. It is not clear from the material before me whether allowing her return given the circumstances of this matter would be conducive to the peace order and stability of the village or would be in the best interests of the applicant and her children without some form of reconciliation between the applicant and the village. The onus remains on the applicant to show that there are valid and proper grounds for the issue of the orders of interim injunction sought.

The principles that the court must have regard to are well settled and need not be regurgitated. Essentially the exercise is to see if there is a serious question to be tried and if so does the balance of convenience favor the granting of the orders sought or not. Reference should be made to cases such as Esera v NUS [2003] WSSC 12 and Asiata Saleimoa Vaai v Asiata Sivanila and others (unreported) 2nd February 2007, those contain the relevant legal principles the court must apply.

As to the first limb, there is no doubt that a decision to banish is a serious matter and village councils should be very wary of making such decisions because the consequences are drastic and it is important such decisions are made for the right reasons and against the right parties. The Court of Appeal decision in Pitoamoa Mauga v Alii & Faipule of Lotofagā Safata in March 2005 illustrate the pitfalls awaiting the injudicious village council. As there noted by the Court of Appeal in upholding an award of $150,000 in damages against the village council of Lotofagā, the banishment "can operate with altogether disproportionate harshness, in violation of natural justice and against innocent family members". It is a remedy that should be saved "as a last measure of preventive control" and village councils are well minded to keep in mind that they can petition the Lands & Titles Court for orders in such circumstances rather than taking such "an extreme course on their own." In this case the respondents are not a village council of a traditional Samoan village but the principles set out by the Court of Appeal in that decision apply equally in my view to decisions of the Fono to banish members of their community. 

Is there then a serious question in this case to be tried? For the answer to that one must examine the historical background of the occupation of the property in question the village of Elise-fou which is the home of migrants from the Ellice Islands now known as Tuvalu.

These lands were purchased from its original owner in 1936 and 1937 and by Deed of Conveyance dated 27th August 1948 the property was formally conveyed to the Secretary of Samoan Affairs to hold as trustee for and on behalf of the Ellice Islanders in Samoa and their descendants. A copy of this deed has been annexed to the statement of claim in this matter and there seems no dispute the deed is a legally valid document, has been properly registered and vests title in the land in the Secretary of Samoan Affairs as trustee on behalf of the Ellice Island community. That deed recites that the purchasers, who are a number of stated persons of Apia on behalf of themselves and all Ellice Islanders and their descendants, have requested the trustee to accept the conveyance of the land to hold the same upon trust for all Ellice Islanders and their descendants in Samoa and that the trustee has agreed to accept the trust. The land was accordingly conveyed to the trustee to hold the same in trust for and on behalf of the Ellice Islanders and their descendants in Samoa forever.

The Secretary of Samoan Affairs was superseded by the Secretary to Government and his modern counterpart is the Chief Executive Officer of the Ministry of the Prime Minister and Cabinet. He is the trustee and registered owner of this land. The organizational structure according to the documents placed before the court seem to be that while he is the trustee of the property and must concur in all the major decisions of the village, the daily affairs of the Ellice Island community is governed by the "Fono o Toeaina" and a document known as the "Code of Conduct" of 1945. The Code was agreed upon at a conference of Ellice Islanders convened from 21 to 28th November 1945 at Elise-fou and the conclusions of that conference are set out in the Code the Samoan version of which has been appended as Exhibit "A-2" to the affidavit in reply in this matter. The English translation is attached as Exhibit "A-1" but it is likely that the agreed upon and applicable version in 1945 would have been the Samoan version. Where there is any conflict between the two, I prefer to follow the Samoan version.

That Code allows the occupation of the property at Elise-fou by any Ellice Islander to live in that part of the land designated by the Fono of Toeaina and it further provides that no one can be evicted from the lands unless he is one who "constantly causes trouble" or "brings the village into disrepute". In such cases the Fono can evict that person. It is this Code of Conduct according to the affidavits before the Court that has governed the affairs of Elise-fou since 1945 and it is pursuant to the powers conferred by this Code that the Fono of Toeaina purported to banish the plaintiff and her children.

The applicant here argues that her banishment is unlawful and in violation of her constitutional right to freedom of movement and residence under article 13 (1)(b) of the Constitution. She also attacks the decision of the Fono on its merits and says there is no justification in punishing her and her children for the actions of her estranged husband. She asserts she has a legal right to reside in the village and in the house in question in which she has always lived as do her children and because she has had to move to the village of Satapuala and live with relatives many miles away from the village, the welfare and educational and other needs of her children have been detrimentally affected.

The respondents on the other hand argue the applicant has no legal rights in respect of the land as she is not the registered owner of the property. The land is freehold land title to which is clearly vested by Deed in now the Chief Executive Officer of the Ministry of the Prime Minister and Cabinet. They say while the day to day running of the village is vested in the Fono of Toeaina, on significant and important matters the trustee is always consulted and his approval to a particular course of action sought. Thus the trustee approved the original banishment of the husband of the applicant as evidenced by his letter dated 22nd November 2007 to that effect exhibited as Exhibit "B" of the affidavit in reply. It is not clear from the material before me what the position of the trustee is in relation to the banishment of the applicant and her children and I do not know if his advice or approval has been sought or received by the Fono of Toeaina. The respondents also contend that the banishment order made by them was appropriate because the applicants actions have brought the village into disrepute as evidenced by adverse front page newspaper headlines in the local publications concerning the stabbing and alleged murder that occurred in the village. To allow the applicant and her children back into the village now would seriously disrupt the stability and good governance of Elise-fou. 

That these are serious issues and allegations is not to be doubted. But the first task in an application of this nature is to ascertain whether there is a serious question to be tried. And the pre-determinative to that exercise is whether there is a legal question at all that needs to be considered. As noted in the Asiata Vaai decision referred to earlier, if as a matter of law the applicant cannot be given permanent relief then there is no justiciable question to be tried and the applicant is not entitled to interim relief. The issue is relevant here because the piece of land in question is not a piece customary land controlled by the Alii and Faipule or a village council. The land in this case from which the applicant is sought to be evicted is freehold land registered in the trustee of the Ellice Islands community. 

Normally the right to evict a person from freehold land vests in the registered legal owner of that land. In this case the documents show that person to the Chief Executive Officer of the Ministry of the Prime Minister and Cabinet. The land is not registered in the Fono of Toeaina or in the name of the Ellice Island community and there is no evidence before the court that the Chief Executive Officer of the Ministry of the Prime Minister and Cabinet issued, endorsed or approved the order to banish the applicant and her children or that he has lawfully delegated that power to the Fono of Toeaina. The only order he approved was the banishment of the applicants husband but that is not the subject of these proceedings and this application. The fact that he approved the earlier banishment confirms that approval or ratification by the trustee is required. What this means is that the order that was made by the Fono of Toeaina evicting and banishing the plaintiff and her children from the land is as a matter of law null and void. 

This is not to be critical of the actions of the Fono of Toeaina but that is the legal effect of the banishment order they made because of the situation of the registration of the ownership of their land. There is accordingly no valid order against which an injunction need to issue. In other words there is no question to be tried and the application should be dismissed because there is no order lawfully made to banish her in the first place.

Before I do that formally however I wish to say this to the parties involved in this case. Obviously this will not be the end of the matter because I anticipate the position can be rectified by the trustee proceeding to issue the necessary eviction order against the applicant and her children. But the parties should be cautious that the innocent are not punished for the actions of the guilty. There is a colloquial saying that I am sure everyone is aware of "ia pa’ū sa’o pea le samala ile ulu ole fao". From the documents before the court it seems that the applicant and her children have become victims of male testosterone gone wild but it is also incumbent on the applicant in the long term interests of her children and her family to reconcile any differences with the village. In my experience in a war between a village and one of its members there are no winners there are only losers. If the parties are going to proceed further in this matter I would urge that if they cannot resolve their dispute amicably to submit it to mediation and try to reach a solution that is for the common good of everyone concerned which at the end of the day is the real function of a Fono of Toeaina of any village.

However for the reasons given the application for an interim injunction is dismissed. Proceedings will be adjourned to the 1st September 2008 for the parties to advise what is going to happen with the substantive claim in this matter. 

There will be no order as to costs on the application.

JUSTICE NELSON