Meredith & Ainuu v Ah Him [2006] WSDC 1 (29 August 2006)

IN THE DISTRICT COURT OF SAMOA
HELD AT APIA

BETWEEN:

MEREDITH & AINUU
Law firm of Savalalo
Informant

AND:

MUAGUTUTAGATA PETER AH HIM, LUPETULOA KALATI, FAAMAUSILI ALE, MAUALAIVAO TAUAGALI, SEAGA MEATUAI, SAUNI OFISA, FAAMAUSILI FAIGA and SILIMANAI PA’UTALO,
all males of Malie.
Defendants

Counsel: Mr K.Ainuu for informant
Mr P.Fepuleai for defendants

Submissions: 15th August 2006
Ruling delivered: 29th August 2006

DECISION OF NELSON, DCJ.

The informant in this case is stated in the information to be the law firm of Messrs "Meredith & Ainu’u, Lawyers." No other particulars for the law firm are provided.

The information itself is a private prosecution and has been laid by the informant against the defendants, who are eight (8) matais of the village of Malie. Such a prosecution while not common, can be brought under s.11 of the Criminal Procedure Act 1972 which provides that -

"any person who has reasonable cause to suspect that an offence has been committed may lay an information for that offence."

Sections 10-19 of the Act provide generally for the content of all informations, including private informations, in particular s.18(1) which provides that:

"if an information does not state in substance a crime...... the accused may move the court to quash it";

and s.18(2) which provides that if such motion is made before the defendant pleads, the court shall in its discretion either quash the information or amend it.

In this case, the defendants have yet to enter a plea to the charge and have moved through their counsel to quash the information on various grounds.

I deal now with the grounds advanced by the defendants for quashing the information. Grounds 1 and 2 of the Motion are essentially the same ground so I have amalgamated them into one ground. It is argued that the informant was not a party to the interim (ex-parte) order issued by the Lands & Titles Court on 9th November 2005, and the informant therefore has no locus standi to bring this charge. It is argued that the informant is the law firm of "Meredith & Ainuu" whereas the interim order was issued on the application not of the law firm, but of one of its partners personally, "Mr Fuimaono Seiuli Katopau Ainuu ma lana itu."

I agree the two entities are separate and distinct persons in law but I do not agree that this means the information cannot be brought in the name of the law firm. The reason for that being that s.11 is clear in its use of the words "any person who has reasonable cause to suspect that an offence has been committed, may lay an information" (my underlining).

The expression "any person" would include the law firm of Mr Ainuu. Furthermore, as a partner in the law firm and as a party to the Lands & Titles Court proceedings, he would have had sufficient knowledge of and therefore a basis for having reasonable cause to suspect an offence has been committed. The key ingredient of s.11 is not the identity of the informant who can be "any person". The limitation is that such person is required to have "reasonable cause to suspect that an offence has been committed." In my view the law firm has sufficient standing within the terms of s.11 of the Criminal Procedure Act to bring this charge.

Put another way, it is not necessary that the informant must be the same person or entity as that involved in the Lands & Titles Court proceedings because of the words "any person". Informants counsel makes a valid point when he says the Police are never parties to Lands & Titles litigation but they routinely lay informations for contempt of court arising out of Lands & Titles litigation. It would hamper the administration of justice in this country if the limitation advanced by the defendants were to be imposed on contempt of court charges emanating from disobedience of decisions of the Lands & Titles Court, a result I am certain was never identified by Parliament to occur.

The second ground advanced was that the interim order issued on 9th November 2005 by the President of the Court has been superseded by the subsequent decision of the full Court made on the 10th March 2006 under LC 2504 P1,P2,P3, which decision did not order the defendants to stop work on the school building concerned. While these are advanced as separate grounds by the defendants, they both relate to the one matter, viz. the court decision of 10th March 2006 and can be amalgamated under the one ground because in my respectful view the later decision of the court on 10th March 2006, whatever it may say or do, is completely irrelevant and immaterial to the charge. The charge alleges that "at Malie, Tuamasaga on 15th January 2006" the defendants of Malie failed to comply with the interim order issued on 9th November 2005. As accepted by informants counsel in presenting his submission on this matter, the real subject of the charge is disobedience of the interim order. It cannot be disobedience of the final decision of the court in March 2006 because the charge alleges a breach on 15th January 2006, two months before the final decision was issued. It would be non-sensical to uphold a charge that at Malie Tuamasaga on the 15th January 2006, the defendants failed to comply with a court decision that had not yet been made and was not made until some two months later on 10th March 2006. That being the case, the court decision of 10th March 2006 is accordingly irrelevant to the information as it presently stands and inconsistency with the court decision cannot be a basis for quashing the information.

Neither is the failure by the informant to comply with s.74(3) of the Lands & Titles Court Act 1981 fatal and a ground to quash this information. That section imposes a requirement to file a sealed copy of the relevant order or decision of the Lands & Titles Court in the District Court before the District Court can enforce same. The defendants argue that before proceedings for disobedience of such a decision or order of the Lands & Titles Court can issue under s.75(1)(a) of the Lands & Titles Court Act the pre-requisite for registration under s.74 must be satisfied. i.e. a sealed copy of the order or decision must first be filed in the District Court before the District Court can invoke jurisdiction to hear a charge of disobedience of said order or decision under s.75(1). This is because the Lands & Titles Court possesses no enforcement powers of its own and decisions and orders of that Court can only be enforced by the District or Supreme Court pursuant to s.74 of the Lands & Titles legislation.

Important arguments and have considered it carefully because it has implications beyond the current proceedings. I am not persuaded this is the proper construction of these statutory provisions: firstly if this argument is correct, it would mean that an arbitrary distinction must be drawn between prosecutions for contempt under s.75(1)(a) of the Lands & Titles Act and prosecutions under the other subsections of s.75(1) because charges under 75(1)(b)(c)(d)(e) & (f) do not necessarily involve a "decision or order" of the court.

Secondly, there is nothing in s.75 which states that a s.74 compliance is a necessary pre-requisite for bringing of contempt charges under s.75(1)(a). There is certainly nothing in the legislation that links the two sections, one to the other. It seems more likely they were intended by Parliament to be stand alone provisions, providing different kinds of relief for different but overlapping situations and circumstances. It is little understood that s.74 is in fact the real enforcement mechanism for decisions of the Lands & Titles Court. Following success in Lands & Titles litigation, parties too often rush to prosecution for contempt of court of people who refuse to accept the result and who disobey the orders or decisions made. What people fail to realise is this only leads to criminal processes for punishing the offender by way of fine or imprisonment, but it does not stop the offender from continuing to disobey or follow the Lands & Titles decision. The offender is free to continue offending after paying his fine/serving his term. Contempt charges do not ensure compliance with the Lands & Titles orders because the wrong mechanism is being utilized. The proper mechanism to force compliance is using - s.74. That is by registering the order in the Supreme or District Court and because both courts have substantial powers and mechanisms for enforcement under their respective Rules of court, they are able to carry out enforcement of the orders of the Lands & Titles Court. An example that comes to mind would be an eviction order in a case where the Lands & Titles Court has ruled that a certain person or family has no right to reside in or continue to occupy a particular piece of customary land, a common form of redress issued by a customary land court. Section 74(2) then allows the enforcement mechanism of either the District or Supreme Courts to be brought into operation as the customary land court has no such special processes or procedures; another example would be enforcement and collection of orders as to costs payable by unsuccessful parties to Lands & Titles litigation and how it was intended that the civil procedures of the courts of civil jurisdiction could be easily enjoined for that purpose. I believe this to be the true intent and meaning behind s.74 and it marries in with the legislative regime and jurisdictions assigned to the various courts by the Constitution and the Legislature. I certainly would be most reluctant to impose the requirement sought by the defendants on contempt of court charges without a clear and unequivocal expression of legislative intent from Parliament.

This limb of the defendants argument must also fail but I have addressed it as it is an important argument to resolve. Furthermore, the arguments by the defendants have served to highlight one very important and key issue, and that is the adequacy of the information.

The information alleges that at Malie, Tuamasaga on 15th January 2006, the defendants failed to comply with the interim order as well as failed to comply with the court decision in L.C.2504, P1,P2,P3.

As regards the allegation of failure to comply with court decision LC.2504 the court has already expressed its views. Clearly it is not possible for the defendants on the 15th January 2005 to fail to comply with a decision not made till two months later on 10th March 2006 and accordingly, it is not possible for the defendants to be convicted on this basis.

In connection with the breach of interim order allegation, a few matters must be noted: no date is stated or specified for the interim order, the author of the interim order is not identified, the issuing court is not specified, no particulars of the interim order are specified or how it is alleged that the defendants breached the said interim order. I would have expected a higher standard of drafting from the informant who are supposed to be a firm of trained legal professionals.

The information must of necessity be limited to only the allegation that at Malie, Tuamasaga on 15th January 2006 the defendants failed to comply with the unspecific "interim order". The information is most inadequate and appears to have been drafted and laid in a rush with little regard for correctness and accuracy. The information also fails to comply with s.16 of the Criminal Procedure Act 1972 ("information to contain sufficient particulars"). The question now is whether the court should order further particulars under s.17 of the Criminal Procedure Act, or allow an adjournment as sought by informants counsel for him to clarify the relevant and material aspects of the interim order, or whether the court should quash the information under s.18 of the Criminal Procedure Act 1972 as sought by the defendants.

I have come to the conclusion that because of the problems/deficiencies in the wording of the information that I have already referred to, the information "does not state in substance a crime" of which any of the defendants could be convicted. Sufficient opportunity to amend the information has already been given to the informant. This is the fifth calling of this matter in court and the defendants have had to appear on all five occasions to answer this charge. On 11th April 2006, an amendment of the information was sought by the informant, and was granted by me. Amendment only addresses date of information, not the issues of substance I have referred to. No further opportunity to amend should be given to an informant who quite frankly should have got it right in the first place.

The defendants have not sought an order for further particulars and it is not appropriate for the court to fill in fundamental defects in an information by ordering particulars.

The appropriate course considering all the circumstances is in the exercise of my discretion to quash the information. I do so under s.18(2) of the Criminal Procedure Act 1972, the information is quashed accordingly.

DISTRICT COURT JUDGE