Police v Malu [2016] WSDC 34 (15 July 2016)

DISTRICT COURT OF SAMOA
Police v Malu [2016] WSDC 34

Case name:	Police v Malu
Citation:	[2016] WSDC 34
Decision date:	15 July 2016
Parties:	POLICE v ASILOTU MALU, ASILOTU TAGALOA FULUMOA & ASILOTU MAMOE of Vaiusu
Hearing date(s):	14 March 2016
File number(s):
Jurisdiction:	Criminal
Place of delivery:	In the District Court of Samoa, Mulinuu
Judge(s):	DCJ Fepuleai A. Roma
On appeal from:
Order:	- The prosecution has proven the charge against all 3 accused
Representation:	R. Titi for prosecution
	Leuluailii T. Malifa for accused
Catchwords:	Contempt of Court
Words and phrases:
Legislation cited:	Land and Titles Act 1981 s75(1)(a), s76, s63(3) and 70 (Part IX)
Cases cited:	Polynesian Ltd v Samoa Observer Company Ltd [1999] WSSC 45 (16 March 1999)
Summary of decision:

DISTRICT COURT OF SAMOA
HELD AT MULINUU

BETWEEN

POLICE
Informant

AND

ASILOTU MALU,
ASILOTU TAGALOA FULUMOA,
ASILOTU MAMOE of Vaiusu.
Accused

Counsel: R. Titi for National Prosecution Office
Leulua’ialii T. Malifa for Accused
Hearing: 14 March 2016
Submissions: 15 & 25 April 2016
Decision: 15 July 2016
Reasons: 12 September 2016

REASONS FOR DECISION OF JUDGE ROMA

Introduction

1. The 3 accused face 1 charge of disobeying an order of the Land and Titles Court under s75(1)(a) of the Land and Titles Act 1981 (“the Act”).
2. They denied the charge and hearing commenced on 14 March 2016. The Court heard evidence from the Deputy Registrar, Sa’u Alaimoana Isara, at the completion of which the defence conceded the following facts:
   • (i) there is a decision of the Land and Titles Court, LC 11864 P1;
   • (ii) they were aware of that decision:
   • (iii) the 3 accused continue to reside on the land.
3. Because the facts as alleged by the prosecution were conceded by the defence, Counsels were ordered to file an Agreed Set of Facts and subsequently submissions.
4. In an oral decision delivered on 15 July 2016, I found that the prosecution had proven the charge beyond reasonable doubt. I also indicated that my reasons would be available in writing. Those reasons now follow.

Charge

5. The 3 accused are jointly charged that at Vaiusu between the 22^nd December 2013 and 5 October 2015, they continued to reside on land known as Itupa, in breach of a LTC Decision LC 11864 P1, delivered on 20^th September 2013, which ordered them to vacate and take with them their belongings within 3 months and by 21^st December 2013.
6. The charge is brought under S75(1)(a) of the Act.

Facts

7. From the joint memorandum of the prosecution and defence, the agreed facts are summarised as follows:
   • (i) The 3 accused are aged 53, 75, & 60 years respectively and residents of Vaiusu;
   • (ii) The 3 accused were Respondents in a land dispute LC 11864 P1 in which the decision of the Land and Titles Court was handed down on 20 September 2013;
   • (iii) Para 5.2 (a) & (e) of that decision states as follows:

“Ua faamaonia le tulaiese loa o le Itu Tetee ma o latou auaiga e iai....Asilotu Malu, Asilotu Mamoe.....Asilotu Tagaloa Fulumoa.....ma suli uma o Lava Petelo ma Lava Ipuniu mai lo latou nofoia faamalosi o le fanua o le suafa Nuu / Nuutoetofi.

Ia tulai ese ma aveese a latou meatotino o loo i le fanua i totonu o le (3) masina e afua i le aso 20/9/2013 ma ia oo atu i le Aso 21/12/2013, ua maea faatino lea tulaga.”

(iv) All 3 accused were fully aware of the Court’s decision;
(v) On 30 September 2013, the accused requested a temporary stay of the Court’s decision. That request was declined by the President of the Land and Titles Court on 12 August 2014;
(vi) The 3 accused and their families have since continued to live on the land.

Law

8. Section 75(1)(a) of the Act under which the accused is charged, relevantly provides:

“A person commits an offence.....who disobeys any decision or order of the Court..........”

9. Proceedings for disobedience of Court orders under s75 are akin to contempt proceedings in that they involve breaches of and non compliance with Court Orders. In Polynesian Ltd v Samoa Observer Company Ltd [1999] WSSC 45 (16 March 1999) a case of civil contempt, His Honour Sapolu, CJ says of the ingredients as follows:

“The ingredients which constitute civil contempt are threefold: these are the terms of the (injunction) must be clear & unambiguous, the defendant had proper notice of the terms of the (injunction) and the terms have been disobeyed or breached by the defendant.”

Discussion

10. To sustain the charge against the 3 accused, the prosecution must prove the following ingredients beyond reasonable doubt:
    • (i) The terms of the order or decision were clear;
    • (ii) The accused had proper notice of the terms;
    • (iii) The accused have disobeyed the terms of the order or decision.
11. I have no difficulty finding proven all 3 ingredients. From the Agreed set of facts, the following are most relevant:
    • (i) A Land & Titles Court decision LC 11864 P1, delivered on 20 September 2013 ordered that the Respondents vacate and remove their belongings from the land that they occupied. The said land belongs to the title Nuu / Nuutoetofi. Amongst the Respondents were Asilotu Malu, Asilotu Mamoe and Asilotu Tagaloa Fulumoa, the 3 accused in these proceedings;

(ii) All 3 accused were aware of the decision;

• (iii) Since the decision and up to the present the 3 accused and their families continue to live on the land.

12. But the defence raises two matters that I must deal with. The first argument is that S75(1)(a) of the Act under which the accused are charged, conflicts with their right of appeal under S76 and is therefore unconstitutional. Counsel submits that unless the accused’s appeal has been determined, S75(1)(a) being the charging provision cannot operate.
13. The constitutionality or otherwise of a legislative provision is clearly not a matter for this Court but the Supreme Court to determine. But if I were to express a view, I am of the opinion that there is no conflict between sections 75(1)(a) and 76, and the operation of S75(1)(a) is not dependent on the accused’s right of appeal under S76.
14. Firstly, it is clear under S75(1)(a) which creates the offence that the ‘disobedience’ charged is that of “any decision or Order of the Court”. It includes that of Interim Orders issued by the President and / or Registrar under sections 49 and 50. It is not limited to decisions or orders of the Appellate Division.
15. Secondly, whilst I agree with Counsel’s submission that the qualification “subject to” is a standard way of making clear which provision is to govern in the event of conflict, I am of the view that there is no such conflict between section 75(1)(a) and 76. “An appeal under Part IX” to which a decision is subject under sections 63(3) and 70, in my view refers to a final decision of the Appellate division after the hearing of an appeal, not the accused’s right of appeal as submitted by Counsel.
16. Like in other Courts, the process in the Land and Titles Court allows for appellants to seek a stay of execution of a decision at first instance until a determination of an appeal. From the agreed set of Facts, that request was made and refused by the President on 12 August 2014.
17. Understandably, the accused are frustrated by the long delay in the hearing of their appeal in the Land and Titles Court. But the issue before this Court is whether the 3 accused have disobeyed a decision of the Land and Titles Court, and that determination is not subject to the processes of the Land and Titles Court.
18. The second matter raised by Mr Malifa is that S75(1)(a), being the charging provision makes no mention of the words “contempt of court” and there is therefore no such charge. Yet the charge against the defendant cites at the end the words “contempt of court” as the offence alleged to have been committed by the accused. Counsel also objects to any amendments to the charge.
19. I accept that there is no reference to the wording “contempt of court” in s75(1)(a). In fact the offence created under that section is that of “disobeying a decision or order of the court”. But they are simply the same. Contempt of court proceedings involve non compliance with Court Orders. Even if I accept Counsel’s argument that there is no such charge under S75(1)(a), the information clearly alleges that by continuing to remain on the land between 22 December 2013 and 5 October 2015, the accused disobeyed LC 11864 P1, a Land and Titles Court decision delivered on 20 September 2013.
20. The allegations of fact in the charge sufficiently constitute an offence under S75(1)(a). The allegations are conceded by the defence. There is no need for an amendment.

Conclusion

21. For the foregoing reasons, I find that the prosecution has proven the charge against all 3 accused.

JUDGE FEPULEAI A ROMA