Court dismisses matai’s claim in village dispute

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Chief Justice, His Honour Patu Tiava’asu’e Falefatu Sapolu.

Chief Justice, His Honour Patu Tiava’asu’e Falefatu Sapolu. (Photo: Samoa Observer / File)

The Chief Justice, His Honour Patu Tiava’asu’e Falefatu Sapolu, has dismissed a claim brought by a matai against the Village Council of Gagaifolevao, Lefaga.

Faumuina Vitale, of Samoa and Auckland, had pleaded three causes of action in tort against the defendants. 

These are in the torts of intimidation, conspiracy by unlawful means, and intentional interference with business interests by unlawful means. 

He also made substantial claims for special damages, general damages, and exemplary damages against the defendants. 

Faumuina was represented by Fotu Vaai-Hoglund while the Village Council was represented by Alalatoa Rosella Papali’i. 

In his ruling on 14 March 2017, Chief Justice Patu dismissed Faumuina’s claim against the Village Council. 

“It appears from the evidence in this case that there was no legally enforceable contract between the plaintiff and the people of the village that the people of the village would buy from the plaintiff’s shop and that the village council induced the people of the village to breach that contract,” the ruling reads. 

“So there was no contract between the plaintiff and the people of the village capable of being breached by the people of the village. The people of the village could not have breached a contract that did not exist between them and the plaintiff. 

“The evidence shows that there were five or six shops in the village. The people of the village were free to choose which shop to buy from at any time. 

There was no contract binding them to buy from the plaintiffs shop or only from the plaintiff’s shop and not any other shop in the village. The evidence therefore does not support the first, second, third, and fourth elements of the tort of inducing a breach of contract. 

“For all the foregoing reasons, the plaintiff’s claim is dismissed. Counsel to file submissions as to costs in seven days if agreement cannot be reached.” 

The following is the Court’s ruling in full:

 

IN THE SUPREME COURT OF 

SAMOA HELD AT MULINUU 

BETWEEN:  

FAUMUINA VITALE of Gagaifo, Lefaga, Samoa and Auckland, New Zealand, formerly self-employed Businessman, and now Busdriver. Plaintiff 

AND: SU’A PALA, SU’A LA’AI, FAUMUINA LOKENI also known as FAUMUINA MOKENI, SU’A SAFUNE, FAUMUINA IIGA, SU’A AULAGA, TUAOPEPE AFATO, VAOFUSI POGISA, MALAE POFITU, and AFUIE SIU of Gagaifolevao, Lefaga, all Matais sued for and on behalf of the ALII AND FAIPULE OF GAGAIFOLEVAO LEFAGA Defendants 

Counsel: F Vaai-Hoglund for plaintiff   R V Papalii for defendants 

Judgment: 14 March 2017 

JUDGMENT OF SAPOLU CJ  Introduction

 

1. In this case, the plaintiff Faumuina Vitale is a matai of Gagaifolevao, Lefaga. As such, he is also a member of the Alii and Faipule of the village. The defendants are the Alii and Faipule of Gagaifolevao, Lefaga. The three paramount matai titles of Gagaifolevao are Su’a, Faumuina, and Tuaopepe. 

 

 

 

 

 

 

 

 

So the plaintiff’s title “Faumuina” is one of the paramount matai titles of the village. In his first amended statement of claim (amended statement of claim), the plaintiff has pleaded three causes of action in tort against the defendants. These are in the torts of intimidation, conspiracy by unlawful means, and intentional interference with business interests by unlawful means. Substantial claims are then made for special damages, general damages, and exemplary damages. 

2. At the outset, I must say that anyone who is familiar with this area of the law concerning economic torts would realise that it is complex. It is in a state of some confusion and uncertainty. This is because of recent decisions of the House of Lords. It is therefore possible that the last word has not been said in this area of the law. 

The evidence

3. The evidence According to the plaintiff’s evidence, he grew up in Gagaifolevao, Lefaga, but migrated to New Zealand in 1984. In 2011, he returned to stay permanently in Samoa and he opened a small shop on 25 April of that year on his family’s customary land at Gagaifolevao. The types of goods that were sold at his shop included groceries and freezer goods, masi saina, keke saina, alcohol, cigarettes, and clothing materials. 

4. How this matter came about was because of the banishment of one Iputau Letupu (Iputau), a matai of the plaintiff’s family from the village of Gagaifolevao by the defendants and the plaintiff as well as Iputau’s subsequent reinstatement to the village by the defendants. It appears from the evidence that Iputau was banished from the village in February 2011. The terms of such a banishment if taken literally means a life sentence. In reality that is not so. It is always of temporary and limited duration. In other words, the person banished will always be reinstated to the village after a period of time. 

5. According to the evidence of the witness Faumuina Lolesio, a relative of the plaintiff called by the plaintiff, domestic differences arose between the Iputai’s wife and her mother. Strong words were said by Iputau’s wife to her mother. However, Iputau did nothing to stop his wife but simply drove his car several times to the house where his wife and her mother were having their differences and turned around without going into the house to stop his wife. Iputau’s wife was reported by her mother to the village council with a recommendation to banish her daughter from the village. The village council or Alii and Faipule comprising of the defendants as well as the plaintiff decided not only to banish Iputau’s wife but also Iputau for not intervening to stop his wife. The terms “village council” and “Alii and Faipule” will be used interchangeably hereafter. Under cross-examination by counsel for the defendants, the witness Faumuina Lolesio said that the plaintiff was strongly in support of banishing Iputau from the village. He also said under cross-examination that there had already been tensions between the plaintiff and Iputau because of matters before the Land and Titles Court. The village council then decided to banish Iputau and his wife. However, under cross-examination Faumuina Lolesio also said that the offence Iputau was accused of was not very serious and the banishment was not appropriate. He also said that his village is merciful and that even though someone would be banished that person would always be reinstated. 

6. The defendants Vaofusi Pogisa a matai of Gagaifolevao and Su’a Aulaga a cousin of the plaintiff and another matai of Gagaifolevao were both called as witnesses by the defendants. They testified that the plaintiff was firmly in support of banishing Iputau from the village. Vaofusi Pogisa further said that the plaintiff and Iputau often clash in matters before the Land and Titles Court. Iputau was also called as a witness for the defendants and he said that he and the plaintiff often opposed each other in cases before the Land and Titles Court. 

7. As it appears from the evidence of the plaintiffs witness Faumuina Lolesio, after Iputau was banished from the village, Iputau brought the matter before the office of the registrar of the Land and Titles Court. A meeting was subsequently held between Iputau and members of the village council before a deputy registrar. Following this meeting, Iputau was not immediately reinstated to the village. But at the meeting of the village council on 30 May 2011, it was decided to have Iputau reinstated. At that time, the plaintiff was in New Zealand. So he was not present at the meeting of the village council where Iputau was reinstated. 

8. When Iputau was formally reinstated into the village on 11 June 2011, the plaintiff had returned from New Zealand. He objected to the reinstatement of Iputau into the village. However, Iputau was still reinstated by the village. The defendant Vaofusi Pogisa said that the Alii and Faipule decided to reinstate Iputau because they observed that peace and harmony had returned to Iputau’s family and everything was smooth again. Iputau had also been a useful member of the village and the offence for which he had been banished was not very serious. 

9. Then on Thursday 30 June 2011, the village council held its usual monthly meeting. Towards the end of that meeting, the plaintiff voiced his displeasure against the decision of the village council to have Iputau reinstated. As it appears from evidence of Faumuina Lolesio under cross-examination, the evidence of the defendant Vaofusi Pogisa and the defendant Su’a Aulaga who confirmed the evidence of Vaofusi, the plaintiff said at the meeting of 30 June 2011 that he was saddened that Iputau who had been banished for life has been reinstated so soon. The plaintiff further said that it seems that gangs have been formed within the village council as a result of which Iputau has been reinstated. He also said that he sees a gang mentality within the village. The question that has been asked by people is, who makes the decisions within the village? The answer is Su’a Pala and Faumuina Lipine. This will not achieve righteousness within the village. The question again is who makes the decisions within the village? The answer is Su’a Pala and Faumuina Lipine. This is a village of kids (children). I therefore say to the village now that whoever is forming gangs, stop it. Whether it is one or twenty matais who are forming gangs they should be removed from the village. Vaofusi said that the plaintiff spoke in a rude and offensive tone. Apart from the tone, the words were in themselves rude and disrespectful particularly in the context of a village council meeting. It was also a challenge to the decision of the village council to reinstate Iputau. Vaofusi and the witness Faumuina Lolesio both testified that there was no gang or gang mentality within the village council behind the reinstatement of Iputau into the village. So what the plaintiff said about the formation of gangs within the village council resulting in the reinstatement of Iputau would be incorrect. 

10. What the plaintiff said made many members of the village council angry. According to the plaintiff” s evidence, the defendant Su’a Pala then thanked the plaintiff and said that the brains of a dog are better than your brains Faumuina. Faumuina Lokeni, another member of the village council, intervened and said that you Su’a Pala and Su’a Laai should speak to remove this person. Su’a Laai responded that the plaintiff is banished. Faumuina Lokeni then said to the plaintiff to leave. There was no opposition from the other members of the village council. The plaintiff said he then stood up and left. After the plaintiff left, the village council decided to banish him from the village. This decision was formally conveyed to the plaintiff at his house by the defendant Su’a Aulaga the same day. This process is called “tu le to’oto’o”. 

11. The plaintiff must have then sought an interim order from the President of the Land and Titles Court on the same day or early the next day, Friday l July 2011, to stay the decision of the village council to banish him from the village. On Saturday 2 July 2011, an interim order signed by the President of the Land and Titles Court Lesatele Rapi Vaai and dated l July 2011 was served on some of the members of the village council. The interim order was to stay the decision of the village council to banish the plaintiff. A meeting of the village council was then called for Sunday evening 3 July 2011 after church service. The evidence shows that the plaintiff by that time had not left the village or if he had left the village because of the decision of the village council it was only on Thursday night 30 June 2011 because he was seen again in the village on Friday 1 July 2011. 

12. It appears from the evidence of the witness Faumuina Lolesio and the defendants Su’a Aulaga and Vaofusi Pogisa that the real purpose of the meeting on 3 July 2011 was to discuss the interim order from the President of the Land and Titles Court. It was then decided that the village council would comply with the interim order but it will file a petition with the Land and Titles Court to confirm the banishment of the plaintiff. The following day, Monday 4 July 2011 members of the village council came in the morning and lodged their petition with the Land and Titles Court. 

13. Faumuina Lolesio also testified that at this meeting on 3 July 2011, it was suggested by one of the matais present that no one in the village should be allowed to go and buy from the plaintiffs shop and the plaintiff was prohibited from interacting with anyone in the village which was then approved as a resolution of the village council. Those decisions of the village council were conveyed by Faumuina Lolesio to the plaintiff. The defendants Vaofusi Pogisa and Su’a Alaga strongly deny that there was any such resolution made by the village council on Sunday evening 3 July 2011. They said that the purpose of the meeting on that evening was to discuss the interim order of the Land and Titles Court and the response of the village council. 

14. After the petition by the village council was lodged on Monday 4 July 2011, the matter was set for hearing on Friday the same week which was 8 July 2011. After the hearing, the Land and Titles Court reserved its decision which was delivered on Wednesday 13 July 2011. The Court denied the petition by the village council to confirm the banishment of the plaintiff from the village. It appears from the reasons given for its decision that the Court considered the banishment of the plaintiff to be excessive punishment given the offence alleged by the village council against the plaintiff. I respectfully agree with the Land and Titles Court. 

15. Perhaps, it should also be noted here that the decision of the Land and Titles Court shows the plaintiffs witness Faumuina Lolesio to have been on the same side as the village council as a witness against the plaintiff. In the present proceedings, Faumuina is a witness for the plaintiff against the village council. 

16. After the decision of the Land and Titles Court, the village council returned to Gagaifolevao and held another meeting in the afternoon. Faumuina Lolesio also attended that meeting. He said that the defendant Su’a Pala spoke at that meeting saying that the plaintiff has won but the decision of the village council ‘e te’a Faumuina Vitale still remains‘. He said that he understood this to mean the decisions already made by the village council on Sunday evening 3 July 2011. He further said that the defendant Su’a Safune also spoke and said that unless the plaintiff makes a ifoga to the village and pays $5,000 to the village he would not be accepted back to the village affairs. This was also carried as a resolution of the village council. Faumuina Lolesio then said that after the meeting he went and conveyed the decisions of the village council to the plaintiff. 

17. The defendant Vaofusi Pogisa testified that the main purpose of the meeting of the village council on Wednesday afternoon 13 July 2011, after the decision of the Land and Titles Court, was to discuss that decision and whether to lodge an appeal. At that time the village council was hurt and saddened because its petition to the Land and Titles Court has been denied. He also said that may be at the deliberations during that meeting the question of banishing the plaintiff was raised because the village council was hurt. But there was no decision made by the village council to banish the plaintiff again. The main subject that was discussed at the meeting was whether to appeal the decision of the Land and Titles Court at First Instance to the Appellate Division of the Court. The village council finally decided to accept and abide by the decision of the Court and not to the lodge an appeal. Vaofusi strongly denied in his oral testimony that there was any decision by the village council to continue the banishment of the plaintiff or to prohibit the people of the village from speaking to the plaintiff or visiting his house. There was also no decision at that meeting to ostracise the plaintiff from village affairs thus banning him from interacting with people of the village while he can still remain in the village. Vaofusi further denied that there was any decision made by the village council that unless the plaintiff makes a family apology to the village council and pays $5,000 he would not be accepted back into the village. The defendant Su’a Aulaga in his oral testimony said that at the meeting on 13 July 2011, the village council discussed the decision of the Land and Titles Court whether to appeal it. It was decided that the village will not appeal but accept the decision. He repeatedly denied that the village council also decided to banish the plaintiff again from the village or to prohibit people of the village from speaking to the plaintiff or visiting his house or to prohibit the plaintiff from interacting with anyone in the village. He also said that the only type of banishment (“te’a”) known to his village is that an offender has to leave the village. Ostracism seems to be unknown to this village. Su’a Aulaga further said that the plaintiff is presently “te’a” from the village because the village council has twice requested the plaintiff in December 2011 to return to the village but he rejected both requests. He also said that it was not Su’a Safune as mentioned in the evidence of Faumuina Lolesio who suggested at the meeting on 13 July 2011 that the plaintiff should not be allowed back into the village unless he makes a ifoga to the village and pays $5,000 but Faurnuina Tavita who made that suggestion. However, the suggestion was not adopted by the village council. The decision reached by the village council was not to appeal the decision of the Land and Titles Court. 

18. It is clear from the evidence that the plaintiff continued to remain in the village and to operate his shop until he decided to close it on ll August 2011 and returned to New Zealand. So there could not have been a further decision of the village council to continue its decision of 30 June 2011 to banish the plaintiff from the village. If there had been such a decision, I would have expected the plaintiff to return to the Land and Titles Court to enforce its decision of 13 July 2011. But that never happened. So the reference to “te’a” that Faumuina Lolesio said was made at the meeting on 13 July 2011 could not have been in relation to the decision made on 30 June 201 1 to banish the plaintiff. 

19. The witness Faanenefu Taale who was called by the plaintiff testified that on a Sunday evening in 2011 after a meeting of the village council, the defendant Vaofusi Pogisa and another matai Malae Pofitu of their village came to her family’s house. They informed her of a decision by the village that her family and herself were prohibited from going to the plaintiffs house, especially herself as she was responsible at that time for cleaning the plaintiff’s land. Furthermore, she and her family were also prohibited’ from going to buy from the plaintiffs shop. Vaofusi in his oral testimony strongly denied having gone with Malae Pofitu to the house of the witness Faanenefu Taale and informed her of a decision by the village council prohibiting her and her family from going to the plaintiff’s house or from buying from the plaintiff’s shop. 

Discussion

20. After careful consideration of the evidence, I find the following as facts in this case. Iputau who is a matai of the plaintiff’s family was banished from the village of Gagaifolevao by the Alii and Faipule in February 2011. The reason for this was because of domestic differences between Iputau’s wife and her mother but Iputau did not intervene to stop even though he could have done so. The plaintiff who is also a member of the Alii and Faipule was in strong support of Iputau being banished from the village. There is evidence that the relationship between the plaintiff and Iputau had not been good because of cases before the Land and Titles Court where they opposed each other. In the opinion of the plaintiffs witness Faumuina Lolesio the banishment was an inappropriate and excessive punishment given what had happened. 

21. At the meeting of the Alii and Faipule on 30 May 2011, it was decided to have Iputau reinstated into the village. The plaintiff was not present at that meeting as he was in New Zealand. When Iputau was formally reinstated into the villa.ge on 11 June 2011, the plaintiff had returned from New Zealand and he objected to the reinstatement of Iputau. Then at the monthly meeting of the Alii and Faipule on Thursday 30 June 2011 the plaintiff made rude and offensive remarks accusing the village council of forming gangs within the council. The implication was that it was because of the formation of gangs within the ‘village council that had led to the early reinstatement of Iputau. The plaintiffs remarks made the village council angry and the plaintiff was told to leave the meeting. The village council then decided to banish the plaintiff from the village. According to the witness Faumuina Lolesio and the defendant Vaofusi Pogisa no gangs had been formed within the village and there was no ganging up within the village council to have Iputau reinstated into the village. So what the plaintiff had said about gangs within the village council was incorrect. The decision of the village council to banish the plaintiff was formally conveyed to the plaintiff by the defendant Su’a Aulaga. 

22. After the decision of the village was conveyed to the plaintiff, he left the village for the same night. However, he returned to the village the following day which was Friday 1 July 2011. On Saturday 2 July 2011 the village council received an interim order dated 1 July 2011 from the President of the Lana and Titles Court to stay the decision of the village council to banish the plaintiff. As a consequence, a meeting of the village council was called for Sunday evening 3 July 2011 to be held after church service. There is a conflict between the evidence of the witness Faumuina Lolesio and the evidence of the defendants Vaofusi Pogisa and Su’a Aulaga as to what transpired at that meeting. I have decided to accept the evidence of Faumuina Lolesio that it was resolved at that meeting that no one in the village would be allowed to go and buy from the shop of the plaintiff. It was also resolved at that meeting that the plaintiff was banned from going to the house of any family in the village and from speaking with anyone in the village. This is effectively ostracising the plaintiff from village. This part of the evidence of Faumuina Lolesio is corroborated by the evidence of the plaintiffs witness Faanenefu Taale. I am not able to accept the evidence of the defendant Vaofusi Pogisa to the contrary. 

23. The main subject that was discussed at the meeting on Sunday evening 3 July 2011 was the interim order. The village council decided that they will file a petition with the Land and Titles Court to confirm the banishment of the plaintiff from the village. On Monday 4 July 2011, the village council filed such a petition with the Land and Titles Court. The matter was then heard before the Land and Titles Court at First Instance on Friday 8 July 2011 and the decision of the Court was delivered on Wednesday 13 July 2011. The Land and Titles Court denied the petition by the village council. It appears from the reasons given for its decision that the Court considered the banishment to be an excessive punishment the circumstances. The Court did not say that the village council had no jurisdiction to penalise the plaintiff because of his conduct. What the Court said was that the banishment was an excessive penalty. 

24. When the village council returned to the village, it met again to discuss the decision of the Court and whether to file an appeal. It was decided that the village will accept the Court’s decision and not to file an appeal. The village council was, however, hurt and saddened by the Court’s decision. l have also decided to accept the evidence of the witness Faumuina Lolesio that at this meeting on 13 July 2011, the village council decided to continue its decision already made (e te’a pea Faurnuina Vitale). To the understanding of Faumuina Lolesio that was in relation to the village council’s decision on Sunday 3 June 2011, not the decision made by the village council on 30 June 2011 to banish the plaintiff from the village. 

Banishment and ostracism

25. Banishment in the context of Samoan custom and village life is a form of punishment which involves the expulsion of an individual from a village for very serious offences like murder, rape and so forth. It may also be imposed for persistent failure to comply with relatively minor penalties for less serious offences. I prefer not embark on any discussion of the issue raised in the submissions by counsel for the defendants that the Alii and Faipule of a village should have the power to impose banishment in an appropriate case. All I say is that in terms of the village Fono Act 1990, S46 provides: “Without limiting the power of village Fono preserved by this Act to impose punishments for village misconduct the powers of every Village Fono to impose punishment in accordance with the custom and usage of its village shall be deemed to include the following powers of punishments: “(a) The power to impose a fine in money, fine mats, animals or food; or partly in one or partly in other of those things; “(b) The power to order the offender to undertake any work on village land”. 

26. Section 11, insofar as relevant for present purposes, then provides: “(1) Subject to the provisions of subsection (b), every person adversely affected by a decision of a Fono (including a decision as to punishment) shall have a night of appeal to the Court against such decision and the Court shall have jurisdiction to hear and determine the matter” 

27. It appears to me from the opening words of s.6 of the Act that they preserve the power of the Village Fono to impose punishments for village misconduct in accordance with the custom and usage of the village. This must include banishment as a form of customary punishment. I hope I can be forgiven by saying that as co-drafter of the Village Fono Act 1990 there was no intention that this Act was to remove any customary powers of the Village Fono to impose punishment. The intention was to add to those customary powers the powers provided in ss.6 (a) and (b). One of the reforms which is provided in the Act is the right of appeal in s.11 from a decision of the Village Fono including a decision as to punishment. Previously, there had been no such right of appeal. One of the purposes of this provision is to provide an aggrieved person with the opportunity to appeal to the Land and Titles Court a decision of the Village Fono as to punishment. 

28. However, in this case the banishment of the plaintiff by the village council is not a real issue. This is because except for Thursday night 30 June 2011 when the plaintiff lefi the village, he did not leave the village at any other time and closed his shop. The plaintiff remained in the village at all times and opened his shop. The banishment was also stayed by an interim order dated 1 July 2011 which was served on the village council on 2 July 2011. The village council complied with the order. The petition of 4 July 2011 by the village council to the Land and Titles Court to confirm its banishment of the plaintiff was also denied. So the plaintiff could not have suffered any financial loss to his shop because of the banishment. 

29. Ostracism is a less severe form of punishment than banishment. It is intended for less serious offences and involves the exclusion of a person from participation in the affairs of the village. However, that person can still remain in the village and attend church services. An unspoken incident of this kind of punishment is that a person who has been ostracised is not supposed to interact with the other people in the village and the other people in the village are also not supposed to talk with or interact with the person who has been ostracised. Punishment usually follows if these unspoken conditions are not complied with. But such punishment can be only a fine. 

30. In this case, what happened was that not only was the plaintiff ostracised but it was also expressly stated in the meeting of the village council on Sunday 3 July 2011 and adopted as a resolution by the council that no one in the village was allowed to go and buy from the shop of the plaintiff. This clearly suggests that the intention of the village council was not merely to punish the plaintiff for his misconduct on 30 June 2011 but to cause his shop financial loss. 

31. I will tum now to the plaintiff s causes of action against the defendants. 

The plaintiffs causes of action 

(a) First cause of action: intimidation 

32. The existence of the tort of intimidation was firmly established in the common law by the decision of the House of Lords in Rookes v Barnard [I964] AC I129. It was recently explained in OBG Ltd v Allan [2007] UKHL 21 where Lord Hoffmann (with whom Lord Walker, Baroness Hale and Lord Brown concurred) said at paras 6 and 7: “6. The tort of causing loss by unlawful means has a different history. It starts with cases like Garret v Taylor (1620) Cro Jac 567, in which the defendant was held liable because he drove away customers of Headington Quarry by threatening them with mayhem and vexatious suits. Likewise, in Tarleton v M’Gawley (1790) 1 Peake NPC 270 Lord Kenyon held the master of the Othello, anchored off the coast of West Africa, liable in tort for depriving a rival British ship of trade by the expedient of using his canon to drive away a canoe which was approaching from the shore. In such cases, there is no other wrong for which the defendant is liable as accessory. Although the immediate cause of the loss is the decision of the potential customer or trader to submit to the threat and not buy stones or sell palm oil, he thereby commits no wrong. The defendants liability is primary, for intentionally causing the loss by unlawfully interfering with the liberty of others. 

“9. These old cases were examined at some length by the House of Lords in Allen v Flood [1898] AC 1 and their general principle approved. Because they all involved the use of unlawful threats to intimidate potential customers, Salmond 1st ed (1907) classified them under the heading of ‘Intimidation’ and the existence of a tort under this name was confirmed by the House of Lords in Rookes v Barnard [1964] AC 1129. But an interference with the liberty of others by unlawful means does not require threats. If, for example, the master of the Othello in Tarleton v M’Gawley had deprived the plaintiff of trade by simply sinking the approaching vessel with its cargo of palm oil, it is unlikely that Lord Kenyon would have regarded this as making any difference. Salmond’s tort of intimidation is therefore only one variant of a broader tort, usually called for short ‘causing loss by unlawful means’ which was recognised by Lord Reid in J T Stratford & Sons Ltd v Lindley [1965] AC 269, 324: “the respondents’ action [in calling a strike] made it practically impossible for the appellants to do any new business with the barge hirers. It was not disputed that such interference with business is tortious if any unlawful means are employed”. 

33. It is clear from what was said by Lord Hoffmann in OBG Ltd v Allan that there is a broader tort called ‘causing loss by unlawful means’ and that the tort of intimidation is only one variant of that tort. In New Zealand, the same tort is referred to as ‘intentionally causing loss by unlawful means’ and was recognised as such by the Court of Appeal in Van Camp Chocolates Ltd v Aulsbrooks [1984] 1 NZLR 354, 357,- 359. The essence of the tort was stated by Lord Hoffmann in OBG Ltd v Allan [2007] UKHL 21, para 47, where His Lordship said: “The essence of the tort therefore appears to be (a) a wrongful interference with the actions of a third party in which the claimant has an economic interest and (b) an intention thereby to cause loss to the claimant. The old cases of interference with potential customers by threats of unlawful acts clearly fall within this description... Recent cases in which the tort has been discussed have also concerned wrongful threats or actions against employers with the intention of causing loss to an employee (as in Rookes v Barnard [1964] AC 1129) or another employer (as in J T Stratford & Sons Ltd v Lindley [1965] AC 269). In the former case, the defendants conspired to threaten the employer that llI'll6SS the employee was dismissed, there would be an unlawful strike. In the latter, the union committed the Lumley v Gye tort of inducing breaches of the contracts of the employees of barge hirers to prevent them from hiring the plaintiffs barges. 

34. Under the current law there are two types of intimidation. There is the two-party intimidation where the unlawful act of the defendant is directed against the plaintiff causing loss to the plaintiff and there is the third party intimidation where the defendant’s unlawful act is directed against a third party resulting in loss to the plaintiff. The judgment of Lord Hoffmann in OBG Ltd v Allan [2007] UKHL 21 is concerned with a third party intimidation and it is the same tort that the plaintiff relies upon in this case. 

35. On the basis of OBG Ltd v Allan [2007] UKHL 21 and Van Camp Chocolate Ltd v Aulsebrooks Ltd [I984] 1 NZLR 354, the learned authors of the The Law of Torts in New Zealand (2009) 5th ed by Todd et al state at 13.3, p 618 the elements of the tort of causing loss by unlawful means as follows: “First, the defendant must have intended to cause loss to the claimant. Secondly, in pursuit of that intention, the defendant must interfere with the actions of a third party in which the claimant has an economic interest, using unlawful means. Thirdly, there must be resulting actual damage to the plaintiff. Fourthly, there may in exceptional circumstances be a defence of justification” 

Intention

36. The first element of causing loss by unlawful means emphasises the requirement for there to be an ‘intention to cause loss to the plaintiff”. This requirement of ‘intention’ in the tort of causing loss by unlawful means was explained in OBG Ltd v Allan [2007] UKHL 21, 26 by Lord Hoffmann as follows: “Finally, there is the question of intention. In the Lumley v Gye tort, there must be an intention to procure a breach of contract. In the unlawful means tort, there must be an intention to cause loss. The ends which must have been intenduced are different. South Wales Miners Federation v Glamorgan Coal C0 Ltd [1905] AC 239 shows that one may intend to procure a breach of contract without intending to cause loss. Likewise, one may intend to cause loss without intending to procure a breach of contract. But the concept of intention is in both cases the same. In both cases it is necessary to distinguish between ends, means and consequences. One intends to cause loss even though it is the means by which one achieved the end of enriching oneself. On the other hand, one is not liable for loss which is neither a desired end nor a means of attaining it by merely a foreseeable consequence of one’s actions”. 

37. By contrast, Lord Nicholls who was in the minority in OBG Ltd v Allan seems to be of the view that ‘intention’ in the unlawful means tort must be the intention specifically directed at causing loss to the plaintiff, albeit as a necessary means to an end. At paras pp. 164-165, His Lordship said: “164. I turn next, and more shortly, to the other key ingredient of this tort: the defendant’s intention to harm the claimant A defendant may intend to harm the claimant’s business either as an end in itself where, for instance, he has a grudge against the claimant. More usually a defendant intentionally inflicts harm on a c1aimant’s business as a means to an end. He inflicts damage as the means whereby to protect or promote his own economic interests. “165. Intentional harm inflicted against a claimant in either of these circumstances satisfies the mental ingredient of this tort”. 

38. The case of OBG Ltd v Allan [2007] UKHL 2] is not binding on the Samoan Courts but it deserves the highest respect as a persuasive authority. After consideration of these aspects of both the judgments of Lord Hoffmann and Lord Nicholls and the relevant commentary in The Law of Torts in New Zealand (2009) 5th ed by Todd et al, para 13.3.01, pp 619-623, I have decided to follow the judgment of Lord Hoffmann regarding the intention required to satisfy the first element of the tort of causing loss by unlawful means. 

Unlawful means

39. With regard to the requirement of ‘unlawful means’ in the second element of the tort of causing loss by unlawful means, the judgments of the Law Lords also do not speak with one voice. In OBG Ltd v Allan [2007] UKGL 21, paras 49 and 51, Lord Hoffmann said: “49. [Acts] against a third party count as unlawful means only if they are actionable by that third party. The qualification is that they will also be unlawful means if the only reason why they are not actionable is because the third party has suffered no loss. In the case of intimidation, for example, the threat will usually give rise to no cause of action by the third party because he will have suffered no loss. If he submits to the threat, then, as the defendant intended, the claimant will have suffered loss instead. It is nevertheless unlawful means. But the threat must be to do something which would have been actionable if the third party had suffered loss. (emphasise mine). 

“5l. Unlawful means therefore consists of acts intended to cause loss to the claimant by interfering with the freedom of a third party in a way which is unlawful as against that third party and which is intended to cause loss to the claimant. It does not in my opinion include acts which may be unlawful against a third party but which do not affect his freedom to deal with the claimant”. 

40. On the other hand, Lord Nicholls in OBG Ltd v Allan [2007] UKHL 21 adopted a wider interpretation of unlawful means to embrace all acts a defendant is not permitted to do whether by the civil law or the criminal law. At para 162, His Lordship said: “[I] accept the approach of Lord Reid and Lord Devlin and prefer the wider interpretation of ‘unlawful means’. In this context the expression ‘unlawful means’ embraces all acts a defendant is not permitted to do whether by the civil law or the criminal law”. 

41. The difference between the two approaches is that under Lord Hoffmann’s approach, the expression ‘unlawful means’ seems to be restricted to civil wrongs whereas under Lord Nicholls wider approach ‘unlawful means’ embraces both civil wrongs and criminal wrongs. 

42. To throw more light on the scope of what is ‘unlawful means’, I refer to what Lord Nicholls said in OBG Ltd v Allan [2007] UKHL 21, paras 149-151. His Lordship said that there is some controversy about scope of ‘unlawful means’ in the context of the tort of causing loss by unlawful means. On one view, unlawful means covers common law torts, statutory torts, crimes, breaches of contract, breaches of trust and equitable obligations, breaches of confidence, and so on. Another view is that in this context ‘unlawful means comprise only civil wrongs. A third view is that ‘unlawful means’ are limited to torts and breaches of contract. I have referred to these different views on the scope of the expression ‘unlawful means’ mentioned by Lord Nicholls because later on I will have to decide whether the conduct of the defendants in this case amounted to ‘unlawful means’. 

43. In the subsequent case of Revenue and Customs Commissioners v Total Network SL [2008] UKHL I9 which was concerned with the tort of conspiracy by unlawful means, Lord Walker seems to be of the view that ‘unlawful means’ in relation to the tort of conspiracy by unlawful means embraces both crimes and torts. His Lordship said at paras 93-95: “[All] the statements of general principle in the classic cases seem to me to be consistent with the proposition that unlawful means, both in the intentional harm tort and in the tort of conspiracy, include both crimes and torts... provided that they are indeed the means by which harm is intentionally inflicted on the claimant (rather than being merely incidental to it). . . “94. From these and other authorities I derive a general assumption, too obvious to need discussion, that criminal conduct engaged in by conspirators as a means of inflicting harm on the claimant is actionable as the tort of conspiracy, whether or not that conduct, on the part of a single individual, would be actionable as some other I011... “95. In my opinion your Lordships should clarify the law by holding that criminal conduct...can constitute unlawful means provided that it is indeed the means (what Lord Nicholls of Birkenhead in OBG at para 159 called instrumentality) of intentionally inflicting harm”. 

44. The view expressed by Lord Walker in Revenue and Customs Commissioners v Total Network SL comes close to the minority view of Lord Nicholls in OBG Ltd v Allan [2007] UKHL 21 as to the meaning of the expression ‘unlawful means’. However, the view taken by Lord Hoffmann with whom the majority concurred in OBG Ltd v Allan [2007] UKHL 21 is that for the purpose of the tort of intimidation as a variant or species of the broader tort of causing loss by unlawful means, the expression ‘unlawful means’ covers only civil wrongs . With respect, this does not appear to be a satisfactory situation with the expression ‘unlawful means’ having one interpretation in relation to intimidation and another interpretation in relation to conspiracy by unlawful means. Anyhow, I do not have to decide between the two different interpretations of ‘unlawful means’ in this case because there is no suggestion that the actions of the defendants in ostracising the plaintiff amounted to a crime. 

Discussion

45. As earlier pointed out, ostracism is a form of customary punishment which is imposed by a village council on an individual for less serious offences within a village. It involves the exclusion of an individual from participation in village affairs but he can still remain in the village and attend church services. An unspoken incident of this form of punishment is that the ostracised individual is not supposed to interact with other people in the village, that is to say, he is not supposed to go to the house of any person in the village or to talk to any of them. In this case, the village council at its meeting on Sunday evening 3 July 2011, in effect, ostracised the plaintiff from village affairs following the interim order from the President of the Land and Titles Court to stay the banishment which the village council had imposed on the plaintiff on 30 June 201 l. The village council also resolved that no one in the village was to buy from the plaintiff’s shop. It is clear that the intention behind this resolution was to cause financial loss to the plaintiff. On 13 July 2011 at its meeting held after the decision of the Land and Titles Court at First Instance, the village council reaffirmed its decision. 

46. As to the first element of the tort of causing loss by unlawful means, namely, that the defendant must have intended to cause loss to the plaintiff, I am satisfied on the evidence that the plaintiff has established that element. 

47. As to the second element of the tort, namely, that in pursuit of that intention, the defendant must have interfered with the actions of a third party in which the plaintiff has an economic interest by using unlawful means, I am not satisfied that the means used by the defendants as village council were unlawful. That is because the resolution by the village council to prohibit anyone in the village from buying from the plaintiff’s shop would not be actionable as a civil wrong by the people of the village as the third parties against the defendants. As Lord Hoffmann pointed out in OBG Ltd v Allan [2007] UKHL 21, para 49: “49. [Acts] against a third party count as unlawful means only if they are actionable by that third party  the threat must be to do something which would have been actionable if the third party had suffered loss”. 

48. The people of the village did not suffer any loss, nor could they have suffered any loss because the evidence of the plaintiff and the defendant Vaofusi show that there were four or five other shops in the village that the people of the village could have gone and buy from if they were not to buy from the plaintiffs shop. Furthermore, the village council did not commit any tort, crime, breach of contract, breach of trust and equitable obligation, breach of confidence and the like: see OBG Ltd v Allan [2007] UKHL 21 per Lord Nicholls at para 149. The plaintiff has therefore not established the second element of the tort of causing loss by unlawful means by way of intimidation. In view of this conclusion, it is not necessary to consider the third element of the tort regarding damages and the fourth element regarding the defence of justification. 

49. In Samoan custom, it is unheard of that if a village council in ostracising a member of the village is said to be intimidating that person. Ostracism is a form of customary punishment for a wrong done and its purpose is punishment not intimidation. The consequence of the ostracism is that no one in the village is supposed to interact with the person who has been ostracised. In this case, that would necessarily involve not going to buy from the plaintiffs shop for that would be interacting with the plaintiff. It just so happens that the person ostracised in this case has a shop. In my view, a person should not be immune from ostracism simply because he has a shop which may suffer financial loss as a result of the ostracism. If this is to be so, then there will be one customary law for people in the village without shops and a different customary law for people in the village with shops or other businesses which may be affected by an ostracism. This cannot be right. It is also to be noted that any person who is dissatisfied with a decision of a village council, including a decision as to punishment, has a direct right of appeal to the Land and Titles Court under s.11 of the Village Fono Act 1990. 

50. The unlawful means which are relied upon by the plaintiff are interference with contractual relations between the plaintiff and people of the village and interference with freedom of speech and freedom of movement under Article 13 of the Constitution. I have already dealt with the meaning of the expression ‘unlawful means’ in this context as explained in OBG Ltd v Allan [2007] UKHL 21, para 49 per Lord Hoffmann, para 162 per Lord Nicholls. 

51. As to interference with freedom of speech and freedom of movement, Article 13 (1) of  the Constitution, insofar as relevant, provides: (1) All citizens of Samoa shall have the right:

(a) To freedom of speech and expression;

(b) ...

(c) ...

(d) To move freely throughout Samoa and to reside in any part thereof”

 

52. It appears from clauses (2), (3) and (4) of Article 13 that the right to freedom of speech and expression and the right to move freely throughout Samoa and to reside in any part thereof are not absolute rights. Reasonable restrictions can be imposed by law on the exercise of those rights. With regard to the right to freedom speech and expression, Article 13 (4) provides that reasonable restrictions may be imposed, inter alia, in the interests of public order, for preventing any offence, or for punishing offenders. So we have such offences as uttering insulting words or threatening words under the Police Offences Ordinance 1990. Article 13 (2) provides, inter alia, for reasonable restrictions which may be imposed by law for preventing contempt of Court, defamation, or incitement to commit any offence. Similar restrictions may be imposed inter alia, on the right to freedom of movement in the interests of rational security, for detaining persons of unsound mind, for preventing any offence, for the arrest and trial of persons charged with an offence, or for punishing offenders. 

53. Ostracism is a measure of social control and a fonn of customary punishment for the purpose of maintaining law and order as well as peace and stability within a village. The plaintiff had made rude and offensive remarks at the village council at this meeting on 30 June 2011 accusing members of the council of forming gangs within the council which had led to the early reinstatement of Iputau into the village. The accusation, as the evidence shows, was unfounded and it made many members of the village council angry. As a result, the village council decided to banish the plaintiff from the village. However, the plaintiff did not leave the village except for Thursday night 30 June 2011. He still remained in the village and opened his shop. The village council then filed a petition with the Land and Titles Court to confirm its banishment. This was denied on 13 July 2011 because the Court considered the banishment to be excessive punishment in the circumstances. Upon return to the village, the council decided to ostracise the plaintiff which involved people of the village not talking to the plaintiff or visiting his house and the plaintiff not doing the same thing although he may still stay in the village and move around within the village. Any member of the village who did not comply was likely to be fined by the village. 

54. In my view, ostracism is a necessary measure of social control for the purpose of maintaining order, peace and harmony within a village and therefore a reasonable restriction on the constitutional rights of freedom of speech and freedom of movement. Ostracism is not of indefinite duration. An ostracised individual is always welcomed back into the village after a period of time. In the event that an individual is dissatisfied with an ostracism imposed on him by a village council, he has a direct right of appeal to the Land and Titles Court under s.11 of the Village Fono Act l990. I conclude that the decision by the village council in this case to ostracise the plaintiff was not in breach of the plaintiff’s right to freedom of speech and expression and his right to freedom of movement provided under Article 13 of the Constitution. 

55. I am also doubtful that in this context a breach of the right to freedom of speech and expression and the right to freedom of movement is a ‘civil wrong’ which would fall within the meaning of ‘unlawful means’ as explained in OBG Ltd v Allan by Lord Hoffmann with whom the majority concurred. I reserve my position on that issue. The point was not addressed in the submissions of counsel. (b) Second cause of action: unlawful means conspiracy 

56. There are two forms of the tort of conspiracy, unlawful purpose conspiracy and unlawful means conspiracy. The plaintiff relies on unlawful means conspiracy in its second cause of action. This tort and its elements were explained in Wagner v Gill [2014] NZCA 336, paras [47]-[50] where the New Zealand Court of Appeal was concerned with unlawful means conspiracy, French J, in delivering the judgment of the Court, said: “[47] The tort of conspiracy is one of a group of torts loosely known as economic torts, all of which have as their purpose the prevention or control of conduct that damages or interferes with the business interests of others. “[48] There are two forms of the conspiracy tort. The first form is conspiracy to injure, sometimes called predominant purpose conspiracy or unlawful purpose conspiracy. The second form is the tort of unlawful means conspiracy... “[49] The tort of unlawful means conspiracy is said to be committed where two or more persons combine and agree that at least one of them will use unlawful means to cause damage to the claimant. The claimant must in fact suffer loss or damage as a result. “[50] It was common ground that there are four essential elements or ingredients of the tort: “(i) the existence of a combination; “(ii) unlawful action (unlawful means); “(m) intention to injure the claimant; and “(iv) actual damage caused to the claimant.” 

57. French J then went on in Wagner v Gill [2014] NZCA 336, at para 54: “[54] The concept of ‘unlawful means’ in the context of economic torts is a controversial and difficult one. There are inconsistent authorities. Some limit the concept to torts, others to torts and breaches of contract, and others yet again to any unlawful conduct of any kind, whether civil or criminal. To complicate matters further, recent English decisions suggest there may be different patterns of liability depending on whether it is a three party tort situation or a two party tort situation: OBG Ltd v Allan [2007] UKHL 2]; and Revenue and Customs Commissioners v Total Network SL [2008] UKHL 19. A three party situation is where the harm is inflicted on the claimant through an intermediary, as distinct from being inflicted directly by the defendant”. 

58. French J then noted that in OBG Ltd v Allan [2007] UKHL 21, the House of Lords was dealing with the scope of “unlawful means” in relation to the tort of causing loss by unlawful means and held by a majority that in a three party tort situation the required “unlawful means” must be a civil wrong actionable at the suit of the third party. In Her Hon0ur’s opinion, this would encompass tort and possibly breaches of contract. She also referred to the dissenting opinion of Lord Nicholls in OBG Ltd which suggested that the concept of “unlawful means” in this context is much wider and could encompass common law torts, statutory torts, crimes, breaches of contract, breaches of trust and equitable obligations, breaches of confidence and so on. French J then referred to Revenue and Customs Commissioners v Total Network SL [2008] UKHL I9 where the House of Lords held in relation to the scope of “unlawful means” in the tort of unlawful means conspiracy, that criminal conduct can constitute “unlawful means” in unlawful means conspiracy regardless of whether or not that same conduct on the part of a single individual would be actionable as some other tort. In other words, the House of Lords decided in Revenue and Customs Commissioners v Total Network SL [2008] UKHL 19 that ‘unlawful means’ in the tort of conspiracy by unlawful means is not limited to tortuous conduct but would also cover criminal conduct. 

59. At para [71] of the judgment, French J said: “We accept that Total Network is authority for the proposition that in order to qualify as unlawful means for the purposes of unlawful means conspiracy, the conduct need not be independently actionable at the suit of the claimant...We also accept that Total Network is authority for the proposition that unlawful means is not limited to tortuous conduct”. 

60. French J then stated at para [73] the following limitations which appear from the decision in Revenue and Customs Commissioners v Total Network SL [2008] UKHL 19 : “[93] (a) The Law Lords were careful to confine their ruling to criminal conduct, which they saw as the most reprehensible category of unlawful means... “(b) It is clear from the decision that not even every criminal act will qualify as unlawful means. It must be a crime that has as its purpose the protection of the particular claimant.

“(c) The Law Lords were also careful to limit their comments to the two party tort situation, relying on the fact of there being no third party as additional grounds for distinguishing the case from OBG...” 

61. In The Law of Torts in New Zealand (2009) 5th ed, by Todd et al, p.641, the learned authors in discussing the Revenue and Customs Commissioners v Total Network SL [2008] UKHL 19 “The House of Lords held unanimously that some, but not all, crimes could amount to unlawful means for the tort of unlawful means conspiracy. The primary test apparently, is whether the relevant offence existed to protect the claimant as a victim so as to leave an obvious lacuna if civil liability did not follow. Distinguishing OBG Ltd v Allan [2007] UKHL 21, their Lordships held that the concept of unlawful means differed as between the tort of conspiracy by unlawful means and the tort of causing loss by unlawful means...” 

62. I have referred at some length to the decision in Revenue and Customs Commissioners v Total Network SL and the discussion by the New Zealand Court of Appeal of that decision in Wagner v Gill [2014] NZCA 336 for the assistance of the Samoan lawyers who may be required to advise clients in this area of the law, but that decision is strictly not relevant to this case because there is no suggestion that the defendants committed any criminal conduct. It is also to be noted that in Revenue and Customs Commissioners v Total Network SL, the House of Lords was dealing with the tort of unlawful means conspiracy in a two party situation. This case is concerned with a three party situation. 

Appropriateness of unlawful conspiracy in the context of a village council

63. The English cases of Allen v Flood [1898] AC I (HL) and Crofter Head Woven Harris Tweed Co Ltd v Veitch [1942] AC 435, 442 (HL) from which the tort of conspiracy was derived were in the area of commerce and perhaps industrial disputes. So are the New Zealand cases of Van Camp Chocolates Ltd v Aulsbrooks Ltd [I984] 1 NZLR 354 and Pete ’s Towing Services Ltd v Northern IUW [1970] NZLR 32, 55-56 (a trade union case) relating to economic torts. The present case arose from decisions of a village council exercising its powers of maintaining order within a village which is not a commercial or industrial context. l therefore have reservations whether the economic tort of conspiracy by unlawful means is appropriate in the circumstances of this case where a member of a village is ostracised by a village council for an offence alleged against that member\. However, I reserve my position whether there may be other circumstances where the tort of conspiracy by unlawful means is appropriate in the context of decision-making by a village council. It seems that policy considerations play a large part in this particular area of the law. 

64. As it was pointed out by French J in Wagner v Gill [2014] NZCA 336, paras [79] - [8l]: “[79] An overriding theme, however, in all economic tort cases is that the encroachment of the common law into the regulation of economic competition must for obvious reasons be subject to some limits. In cases such as this one, the drawing of those limits ultimately depends not on close textual analysis of the authorities but largely on policy considerations, having regard to the purpose of the tort. “[80] We accept, for the purposes of argument and without deciding the point, that a breach of fiduciary may in principle qualify as unlawful means for the purposes of unlawful means conspiracy. That would be consistent with the statements of principle in two older New Zealand cases, Ruddock v Sinclair [I925] NZLR 677 and Fairbairn, Wright & Co v Levin Co Ltd (1914) 34 NZLR 1. “[81] However, in our assessment, there are strong policy reasons why it should not be so recognised in the type of situation before us in this case” (emphasis mine). 

Discussion

65. In OBG Ltd V Allan [2007] UKHL 21 para 49, Lord Hoffmann with whom the majority concurred said that ‘unlawful means’ in relation to the economic tort of causing loss by unlawful means of which intimidation is variant means a civil wrong actionable at the suit of a third party. This is in the context of a third party intimidation. By contrast, Lord Nicholls in the same case said that the expression ‘unlawful means’ embraces all acts a defendant is not permitted by the civil law or the criminal law. This broad view of ‘unlawful means’ would seem to encompass common law torts, statutory torts, crimes, breaches of contract, breaches of trust and equitable obligations, breaches of confidence and so on. In Revenue and Customs Commissioners v Total Network SL [2008] UKHL 19, the Law Lords unanimously held that in relation to the economic tort of conspiracy by unlawful means, the expression ‘unlawful means’ encompasses both civil wrongs and criminal wrongs. This comes close to the view of Lord Nicholls in OBG. Because in Revenue and Customs Commissioners v Total Network SL [2008] UKHL 19 the House of Lords was dealing specifically with the tort of conspiracy by unlawful means. I will, for the purposes of this pan of this judgment adopt their meaning of ‘unlawful means’. But because there is no suggestion of criminal conduct in this case, I will only have to consider whether the conduct of the defendants as village council amounted to a civil wrong. On this basis, I feel compelled to go back to the meaning of ‘unlawful means’ given by Lord Hoffmann in OBG Ltd v Allan [2007] UKHL 21, para 49. I have already decided in relation to the tort of causing loss by an unlawful means that the village council did not commit any civil wrong. It therefore follows that the second element of conspiracy by unlawful means, namely, unlawful action or unlawful means has not been established. 

66. Furthermore, it would not be appropriate as a matter of policy to extend the economic tort of conspiracy by unlawful means to this case given the facts before the Court: Wagner v Gill [2014] NZCA 336, paras [79]-[81]. There is no commercial or industrial flavour about the facts of this case to justify extending conspiracy by unlawful means to it. The plaintiff could have appealed the decision of the village council to ostracise him to the Land and Titles Court under s.11 of the Village Fono Act 1990 just as he had applied to the President of the Land and Titles Court for an interim order when the village council decided to banish him from the village. The tort of conspiracy by unlawful means arose from a very different context and has been applied in overseas jurisdiction in a very different context. However, in saying this, I reserve my position on whether there may be other circumstances where it is appropriate for conspiracy by unlawful means to apply to a decision of a village council. That issue was not raised or addressed in this case. 

67. For those reasons, the second cause of action is also dismissed. 

(c) Third cause of action: interference with business interests by unlawful means

68. It seems from the 2th, 4th and 5th editions of the Law of Torts in New Zealand by Todd et al that the economic tort of interference with business interests by unlawful means is now classified as a species of the broader tort of causing loss by unlawful means which has already been discussed in relation to the plaintiff’s first cause of action pleaded in intimidation. l do not have to discuss the tort of causing loss by unlawful means all over again. But the unlawful means relied upon by the plaintiff are interference with contractual relations and interference with freedom speech and freedom of movement as provided under Article l3 of the Constitution. I have already dealt with these constitutional issues under Article 13. 

69. In case I may have misunderstood the submissions by counsel for the plaintiff whether what is intended is the economic tort of causing loss by unlawful means or the economic tort of inducing a breach of contract, I will deal briefly with the tort of inducing‘ a breach of contract. In The Law of Torts in New Zealand (2009) 5th ed by Todd et al, the learned authors state the elements of the tort of inducing a breach of contract at para 13.2, p.606 as follows: “The effect of OBG v Allan, then, was to restore the original principles in Lumley v Gye and to confirm that the following elements to liability needed to be shown: (1) There must be a legally enforceable contract in existence. (2) The defendant must have engaged in conduct which in fact induced a breach of the contract. (3) The defendant must have known that his or her conduct would induce the breach. (4) The defendant’s conduct inducing the breach must have caused loss or damage to the plaintiff (or if an injunction is sought, there must be clear indication that such loss will occur). (5) Even if elements 1 to 4 are satisfied, a defence of justification might arise, albeit only in exceptional circumstances”. 

70. It appears from the evidence in this case that there was no legally enforceable contract between the plaintiff and the people of the village that the people of the village would buy from the plaintiff’s shop and that the village council induced the people of the village to breach that contract. So there was no contract between the plaintiff and the people of the village capable of being breached by the people of the village. The people of the village could not have breached a contract that did not exist between them and the plaintiff. The evidence shows that there were five or six shops in the village. The people of the village were free to choose which shop to buy from at any time. There was no contract binding them to buy from the plaintiffs shop or only from the plaintiff’s shop and not any other shop in the village. The evidence therefore does not support the first, second, third, and fourth elements of the tort of inducing a breach of contract. 

Conclusion

71. For all the foregoing reasons, the plaintiff’s claim is dismissed. Counsel to file submissions as to costs in seven days if agreement cannot be reached. 

 

CHIEF JUSTICE 

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