Police v Ainuu [2014] WSDC 8 (31 January 2014)

DISTRICT COURT OF SAMOA
Police v Ainuu [2014] WSDC 8

Case name:	Police v Ainuu
Citation:	[2014] WSDC 8
Decision date:	31 January 2014
Parties:	POLICE v FAAOLESA KATOPAU AINUU male of Motootua and AUIMATAGAI SAPANI POMARE male of Moamoa
Hearing date(s):	29 January 2014
File number(s)
Jurisdiction:	CRIMINAL
Place of delivery:	District Court of Samoa, Mulinuu
Judge(s):	DISTRICT COURT JUDGE VAAI
On appeal from:
Order:	- The charge against him is accordingly dismissed.
Representation:
Catchwords:	Contempt of Court
Words and phrases:
Legislation cited:
Cases cited:
Summary of decision:

IN THE DISTRICT COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

FAAOLESA KATOPAU AINUU male of Motootua and AUIMATAGI SAPANI POMARE male of Moamoa
Defendant

Counsel: Defendants in person

Sentence: 31 January 2014

DECISION OF DCJ VAAI

Charge:

1. The defendants face a charge of Contempt of Court for allegedly disobeying between the 21^st and the 26^th days of September 2012, an Interim Order issued on the 21^st day of September 2012 by the Registrar of the Lands and Titles Court.

Facts:

2. The Order that was issued directed the defendants, Maualaivao Pepe Seiuli and Mataafa Sailau, all of whom are heirs of the title Faualo of Apia to stop all work on the construction of a house on customary land in Tauese Apia called, Gautavai. Pule over the land Gautavai vests with the Faualo title of Apia.
3. On Tuesday the 18^th of September 2012, the Deputy Registrar of the Lands & Titles Court through several letters sent, summoned a meeting of the heirs of the Faualo title of Apia. The meeting was aimed at resolving differences between different family factions on whether to build a maota on part of Gautavai or not.
4. On Thursday the 20^th of September, the meeting was held at the Lands & Titles registry at Mulinuu. According to the Registry’s records, those who were present to represent the heirs of the family were, Mata’afa Sailau, Auimatagi Seiuli, Mele Malele, Logo F. Fa’aui, Duffy Pitone and Fesola’i Faamoemoe. Neither of the two defendants was present at the meeting. The meeting was not successful and there was no agreement reached to build a maota at Gautavai.
5. On Friday morning the 21^st of September 2012, the complainant Tauiliili Harry Schuster (who is himself an heir to the Faualo title) noticed on his way to work that the construction work had started on the foundation of the house at Gautavai. As a result, he lodged a complaint with the Registrar of the Lands & Titles Court. He also sought an order to stop any further work on the construction of the house. In response, the Registrar issued the same day, an Interim Order stopping any further construction work in the building of the house, pursuant to section 50, Lands & Titles Act 1981. The Order was served on the defendants the same day. It appeared from the evidence that construction work on the house continued that day, and also the following day, Saturday the 22^nd of September.
6. On Monday the 24^th of September 2012, Tauiliili H. Schuster who became aware the work on the construction of the house did not stop during the weekend brought to the Registrar’s attention the fact, the land to which the Interim Order issued and served on Friday the 21^st of September referred, was incorrect. It was incorrect because the Order directed certain heirs of the Faualo title (including the defendants) to stop forthwith any further work on land Gataivai which belongs to the Tamaseu title of Apia, and not work on Gautavai, the land, the subject of Mr Schuster’s complaint lodged on Friday the 21^st of September.
7. A second Order therefore correcting the name of the land, the subject of the Order from Gataivai to Gautavai was hastily prepared, signed, and served on Monday the 24^th September 2012. The only difference in the wording of the second Order from the first was the change in the name of the land to Gautavai. The four heirs to whom it was directed at did not change. It was served on Ainuu around 11.00am. There is no evidence the defendant Pomare was ever served with the corrected Order, before work was stopped two days later.
8. According to Corporal Paul Taua’a the Police received a written complaint from the Registrar of the Lands & Titles Court late Friday afternoon seeking police assistance in enforcing the Order issued earlier the same day. No action was taken by the police that day because it was apparently received late. In the afternoon on Monday the 24^th of September however, Cpl Taua’a and Constable Sefulu Sefulu paid a visit to the site of the building construction at Gautavai. Construction work was still in progress and there was no explanation why they did not intervene. Cpl Taua’a also said the construction work on the house continued the next day, Tuesday the 25^th of September.
9. On Wednesday morning the 26^th of September 2012, a group of police officers led by Cpl Taua’a went to Gautavai around 9.00am and stopped the builders from continuing any further work in the building of the house. The builders were also taken by the police to the station at Apia where Cpl Taua’a explained the reason why the police stopped the construction work.
10. According to Maualaivao Pepe Seiuli (whose name was also one of the four heirs named in the Order), he and he alone made the decision to build the maota on Gautavai. He not only applied for a developmental consent permit to build from MNRE, he provided the funds to build it and also hired the builders from his village Malie, to build the house. He said that when he received the developmental consent to build from MNRE, the master builder was instructed of the time the construction work on the house was to start, before he left for the USA. He could not be served with either of the two Orders issued because he was overseas
11. While there is evidence the Interim Order issued on Friday the 21^st of September was served on Auimatagi Pomare, he was not served with the second Order issued on Monday the 24^th September. There is no evidence either, the defendant Ainuu was present at the site of the building construction at Gautavai from Friday the 21^st when the first Order was served on him to Wednesday the 26^th of September 2012 when work was stopped by the police. Ainuu does not deny service of both the Orders on him.

Issue

12. The issue is whether or not the defendants in the circumstances of this case were by their conduct in contempt of the Interim Orders.

Discussion

13. For the defendants to be found guilty of the charge, the prosecution must prove that they were served with the second Order, and further, that they deliberately disobeyed it. There is no doubt the Interim Order issued on Friday the 21^st of September to stop all work on constructing the house on land belonging to Tamaseu instead of construction work on land belonging to Faualo, was ineffective in determining any conduct on the part of the defendants as being in contempt of that Order. That is because the wording of that Order when issued was in law defective unless amended. It follows therefore that any accusations against the defendants for conduct alleged to be in Contempt of Court must relate only to any breaches of the second Order issued and served only on Ainuu on Monday the 24^th of September 2012.
14. Equally, there is little doubt that the second Interim Order issued and served on the 24^th of September was not obeyed when construction work continued on Monday the 24^th after the Order was served, and again on Tuesday the 25^th when work on the house continued, and when work resumed on Wednesday morning the 26th day of September before it was stopped by the police.
15. Because the second Order was not served on defendant Pomare, the charge in so far as it related to him was found not proven after the prosecution had closed its case on the day of the hearing. The charge against him was therefore dismissed, and he was accordingly discharged. This left defendant Ainuu only to answer to the prosecution case.
16. The prosecution relies on the proposition that the Court should from the evidence draw the inference that Ainuu breached the Order of the 24^th September. That is to say, Ainuu breached the second Order because as one of the four heirs named in and against whom the Order to stop the work was directed at, he did not stop the work after he was served with it. The proposition makes sense. But only to the extent that if the Court makes such an inference, it does so on the condition that it is based on and supported by the evidence. It must also be remembered that such an inference if it were to be drawn, is as a matter of evidential procedure, rebuttable. In the circumstances of this case, an inference that Ainuu breached the second Order is not supported by the evidence.
17. Firstly, there is no evidence to show, that either Ainuu had a choice about how or why his name appeared in the Order as one of the four heirs against whom it was directed at, or that an enquiry was conducted by the Lands & Titles registry if he was in fact involved in the building of the house before his name was put in the Order.
18. Secondly, an inference that Ainuu breached the Order for not stopping the work has clearly been rebutted by Maualaivao Pepe Seiuli. Seiuli claimed full and sole responsibility for building the house on the land Gautavai.
19. In my view an inference that Ainuu, simply because he is from the same lineage of heirs as Maualaivao Pepe Seiuli, and because he was one of the four heirs against whom the Order was directed at, and because he was served with the same said Order, should be held responsible for not stopping the building of a house he was never involved with, neither meets the logic of common sense nor the principles of fair play. Alternatively put, to say that Ainuu’s inaction once served with the Order requiring him to stop work on the building of a house in which there is no evidence he was ever involved with was in Contempt of Court, is ridiculous and unfair.
20. Consequently I do not find him guilty as charged. The charge against him is accordingly dismissed.

Judge Vaepule Vaemoa Vaai