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District Court of Samoa |
IN THE DISTRICT COURT OF SAMOA
Held at Apia
BETWEEN:
TUUU IETI TAULEALO,
Director, Department of Lands
Survey & Environment
Informant
AND:
MAXKAR LIMITED
Defendant
Counsels: T. Potoi-Vaai for informant
A. Roma for defendant
Hearing: 25th March 2002
Decision: 20th January 2004
ORAL DECISION OF JUDGE NELSON
It will not be helpful to go into the reasons for delay in the Court rendering its decision. Suffice to say the file went AWOL which is not an uncommon problem around here. No fault of counsel or parties but the court does formally apologise to counsel and the parties for the delay.
The decision is being delivered orally but if counsel wish a copy, please contact my judges associate and she will arrange for transcribing same.
This case involves proceedings brought under the Lands Survey & Environment Act 1989 (“the Act”) specifically s.141(3) thereof which allows the Director of Lands Survey & Environment (“the director”) to lay an information for breaches of s.141(2). Here, the director has laid an information alleging the defendant was in breach of the provisions of s.141(2)(a) in that the defendant has “without right, title or licence” trespassed onto Government land by allowing the eaves of the ground floor of its building, on the Convent Street side of the building, to encroach onto the road reserve area of the said Convent Street.
It is common ground that the eaves of the defendants building does overlap onto the road reserve of Convent Street and that the airspace above the road reserve of Convent Street as well as the road reserve itself are Government lands within the definition of “lands of the Government” under s.141(1)(a) and s.2 of the Act and Article 101 of the Constitution. It is clear from sections B and C of defence counsels submissions that these matters are not in dispute - i.e. it is not in dispute that the defendant has trespassed onto Government land by allowing the eaves of the Convent Street side of its building to be built over the road reserve area of Convent Street.
The extent of the defendants trespass is clearly defined by sheets A03, A04 and A05 of the defendants architectural drawings submitted as Exhibit “A” in this case. What is however hotly contested and disputed by the defendant is that part of the information which says the trespass was committed “without right, title or license”.
The defendant says the trespass was lawful in that it had a license for same. That license was a building permit from the Public Works Department (“PWD”) dated 14th March 2001 which was given after that department received, vetted and approved the defendant's architectural plans and drawings for its building - which drawings comprise Exh. “A” submitted by the parties to the court.
For the full factual background and circumstances of this matter, the parties also submitted to the court an agreed statement of facts dated 25th March 2002. This statement and its various exhibits represent the agreed upon factual background and circumstances of these proceedings. That alleviated the necessity to call evidence and the court is thankful to counsel for utilising this method of placing undisputed facts before the court because it obviously saved much time and the expense that would have been incurred in calling expert and other witnesses to appear and give evidence.
This approach is to be commended and is to be encouraged especially in the District Court where the courts sitting time is a very valuable commodity. I do not propose to reiterate the agreed statement of facts but do say that the court has given it close consideration and analysis. The court has also considered counsels written and verbal submissions.
The crux of the matter is whether the defendants building permit dated the 14th March 2001 provides the defendant with a complete defence to the charge. The defendant says it does. It was properly and validly obtained from PWD after the department received and reviewed the defendants building plans. It therefore constitutes a license within the terms of s.141(2)(a) and the defendant company has accordingly committed no offence or infringement of s.141(2)(a).
The informant on the other hand argues the defendant is in breach of s.141(2)(a). The informant says the land in question is “Government land” and that the only entity that can license or sanction the use of or any trespass over government land is the Land Board established under s.6 of the Act. The Land Board did not issue to the defendant any license or approval to trespass over the road reserve in question. Neither did the defendant seek Land Board approval. There has accordingly been no license granted within the terms of s.141(2)(a). The building permit is not a “right, title or license” within the terms of s.141(2)(a) and the defendant therefore cannot raise the building permit as a defence and it has committed an offence under s.141(2)(a).
The difficulty with the informants argument is that it asks the court to read into s.141(2) words that are not there Essentially the informant is asking the Court to construe s.141(2) as saying “Every person commits an offence against this Act who, without right, title or license from the Land Board” (italics are mine) trespasses onto Government Land. That is plainly not what s.141(2) says. It merely provides without any further amplification or clarification that one commits the offence if one does not have a “right, title or license”. It does not go on to provide how or on what basis such a “right, title or license” can be obtained or acquired, or from whom it can be obtained or acquired. I am unable to import into s.141(2) words or a limitation that is plainly not there.
Furthermore, there is no principle of statutory construction that would justify reading such an interpretation into the legislation. This is an offence punishable by a substantial money penalty or imprisonment up to one year. It is a criminal offence provision. While counsel failed to address argument on this issue, an examination of the relevant authorities indicates that the general rule of construction for such offence provisions is it must be given a strict interpretation The words of the subsection allow little room for flexibility. And as the Privy Council stated in Liew Sai Wah [1969] 1 A.C. 295 at page 301 -
“A man is not to be put in peril upon an ambiguity, however much or little the purpose of the Act appeals to the predilection of the Court, and the rule of strict construction means no more than that if, after the ordinary rules of construction have first been applied as they must be, there remains any doubt or ambiguity, the person against whom the penalty is sought to be enforced is entitled to the benefit of the doubt”
Even after applying the cardinal rule of statutory construction contained in s.5(i) of our Acts Interpretation Act 1974 requiring a “fair large and liberal construction and interpretation”, I am unable to import into s.141(2) the qualification suggested by the informant. If anything, that approach supports an interpretation that does not limit s.141(2) in the manner suggested by the informant.
If it is desired by the Land Board or Ministry of Lands that only the Land Board can grant such “rights, titles or licenses” or to limit the granting of rights or licenses over such lands to only those granted by the Land Board, then statutory amendment is required to limit the operation of s.141(2). But as the subsection presently stands, it is in my view wide enough and open enough for a building permit from PWD to be regarded as sufficient to confer a “right, title or license” authorising the trespass in this case.
The argument put forward by the informant must fail and the defendants defence must succeed and the information must be dismissed. But before I do so, there are some auxiliary but important matters raised by counsel in their submissions that I should address for the sake of completeness and for future clarification.
First is paragraph 9 and 10 of the informant's submission which suggests that sections 13 and 14 of the Act are the foundation for the exercise of the directors' powers to lay this information. This is not correct. The directors power to lay such an information is based solely on s.141(3) which provides there can be no conviction under s.141 “except on the information of the director etc.” That is the only basis and authority he requires to lay the information in this case. Sections 13 and 14 of the Act relate to actions for recovery of land, prevention of trespass to government lands, eviction proceedings in respect of government land, etc. - i.e. civil remedies as opposed to criminal prosecutions for breach of the offence provisions of the Act.
Second issue was one not addressed by counsel but it concerns the applicability of this offence provision to a corporation. The defendant here is a registered corporation, but the penalty for this offence is not only a monetary fine, but also imprisonment for up to one year - see s.144. The question therefore arises as to whether a corporation can be validly prosecuted under s.142 given that you cannot imprison a corporation. The point was not argued by counsels and given the courts decision, it is not necessary to address that issue at this time but if there are to be future prosecutions of corporations under these or similar offence provisions, the informant must bear in mind that issue will need to be argued and resolved.
The third and final matter concerns paragraphs 14 and 16 of informant's submission which refers to the functions of the PWD under their 1959 legislation. The informants attention is drawn to s.4(j) of that legislation which is the section that authorises the PWD “to examine, approve and supervise the erection of buildings and structures”. That of course is the statutory basis upon which the PWD in this case approved and issued the defendants building permit. As such, that department was therefore also carrying out lawfully and properly its statutory duty to vet and approve the defendants building plans and accordingly, there is no question in the courts mind as to the validity of the building permit issued. It is noted neither counsel questioned the validity of the building permit so on that aspect, everyone seems to be in agreement.
The other submissions from counsel are not relevant to the issues at hand or the decision, but I thank counsel for them and for their work. Again I apologise for the lateness of delivery of the courts decision. For reasons stated earlier, the charge against the defendant company is accordingly dismissed.
Counsel have not pursued the issue of costs - there is therefore no order as to costs.
DISTRICT COURT JUDGE
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