Police v Tamaseu [2017] WSDC 28 (29 September 2017)

DISTRICT COURT OF SAMOA
Police v Tamaseu [2017] WSDC 28

Case name:	Police v Tamaseu
Citation:	[2017] WSDC 28
Decision date:	29 September 2017
Parties:	POLICE v PERISE MALO MISILUKI TAMASEU, female of Apia
Hearing date(s):	18 September 2017
File number(s):	D4452/16
Jurisdiction:	CRIMINAL
Place of delivery:	The District Court of Samoa, Mulinuu
Judge(s):	JUDGE ATOA SAAGA
On appeal from:
Order:	Whilst I am satisfied that there has been a breach of the Court Order, I am inclined to accept that the Defendant has a valid defence for having breached the Court Order and for that reason, I do not find her guilty of the offence of contempt of court. The charge of contempt of court is hereby dismissed.
Representation:	Sergeant Stanley for Prosecution
	Unrepresented
Catchwords:	Contempt of Court
Words and phrases:
Legislation cited:	LTA 1981 ss. 50 & 75(1)(a)
Cases cited:
Summary of decision:

IN THE DISTRICT COURT OF SAMOA
HELD AT MULINU’U

BETWEEN:

POLICE
Informant

AND:

PERISE MALO MISILUKI TAMASEU, female of Apia
Defendant

Counsels:
Sergeant Stanley for Prosecution
Unrepresented

Hearing: 18^th September 2017
Submissions: 22^nd September 2017
Decision: 29^th September 2017

DECISION OF JUDGE ATOA-SAAGA

The Charges

1. The Defendant was charged with contempt of court. The particulars of the charge are as follows:
   1. On or between 20^th August 2016 and 6^th day of October 2016, the above named Defendant of Tauese and Vaoala, disobey the Interim Order issued by the Registrar of Lands and Titles Court namely, “ Ua poloaina nei lau susuga Perise Malo Misiluki Tamaseu ina ia taofia nei loa ona toe faia pe faaauau se galuega o lou fale o loo faia I le taimi nei I luga o le fanua o Tauese I Tauese I Apia, sei vagana ai ua masuigamalie lenei mataupu. “Ae peitai e le o usitaia lava e le o loo faasaga iai lenei mataupu, e ala lea I le faaauau pea ona fausia o lona fale I le taimi nei, thereby commit the crime of Contempt of Court.
2. The Defendant does not dispute that there was a breach of the court order dated 18^th August 2016. Her defence however is that the breach was authorized by the Senior Officer for Lands and Titles Court Registration Nuu Ropati on the 13^th September 2016 when he conducted an inspection of the site in dispute on the said date.

Law

3. As there is no dispute that there is a breach, I will not delve into the law on Contempt of court other than stipulating the sections under which the Defendant has been charged with.
4. The Defendant has been charged with Section 50 and 75(1)(a) of the Lands and Titles Act 1981. Section 50 states that,

“If the Registrar is satisfied that a dispute has arisen between Samoans which is within the jurisdiction of the Court, and is likely to be the Subject matter of proceedings under this Act, he may, with the concurrence of the President or 2 Samoan Judges before the commencement of proceedings, make an order as he thinks fit to restrain any Samoan from:

1. remaining in possession of or entering upon any land;
2. holding or using any Samoan name or title; or

100. exercising any right or doing any act matter or things concerning or affecting any land or any Samoan name or title.

5. Section 75(1) (a) further provides that, “A person commits an offence and is

liable upon conviction to a fine of 5 penalty units or to imprisonment for 6 months who disobeys any decision or order of the Court, or any order made under section 49 or 50;

The Evidence:

6. Prosecution called 3 witnesses Senior officer for Registration Nuu Ropati, Tapuai Toamua Tamaseu and Tua Misiluki. The Defendant elected to give evidence. She also called Tamaseu Warren, Sipili Tamaseu Tiedeman and the Defendant’s son Pili Eti.
7. On the 18^th August 2016, a Court Order prohibiting any work to be done on the property at Tauese was served on the Defendant. The Defendant ceased from carrying on any work on the site in dispute.
8. On the 29^th August 2016, a letter from Tamaseu Vaa and Tamaseu Leni was filed with the Lands and Title Court advising the Court that they have agreed to the continuation of the work on the land. The work was the reconstruction of the Defendant’s home. The Defendant’s home was burnt to the ground earlier that year.
9. On the 9^th September 2016, a letter written by Namulaulu Manuele Fuiono was received by the Defendant and Tamaseu Leni and Tamaseu Vaa. The letter stipulated that the Lands and Titles Office was going to conduct an inspection of the site on the 13^th September 2017.
10. All the Defence witnesses including the Defendant were at the site on 13^th September 2016. Sipili Tiedman is the daughter of Tamaseu Vaa and she appeared on behalf of her father that afternoon as her father was unwell and could not be at the site. Namulaulu however did not turn up by late afternoon. Tamaseu Warren called the office to ask as to why there was no inspection and found out that Namulaulu was on leave that day.
11. Soon after, Senior Officer Nuu Ropati arrived at the site with the driver. He apologized on behalf of the Ministry and an inspection was conducted. After the inspection, Tamaseu Leni asked him as to what should they do now that the inspection is completed and Nuu told him in the presence of all the Defence witnesses to continue the work as there has now been agreement by the chiefs (sao) of the family for the Defendant to continue the work. Tamaseu Leni then turned to the Defendant and said to her to continue the work as she had heard what Nuu had said. Soon after, Nuu Ropati left the property.
12. The Deputy Registrar vehemently denied that he had told Tamaseu Warren and the Defence witnesses that they could continue the work. He referred the Court to a report that he had prepared on the 13^th September 2017. It was addressed to the Registrar of the Courts but through the Assistant Chief Executive Officer of Lands and Title. The letter supported the request by the Defendant.
13. He further stated that he had no reason to tell them what he has alleged to have told him as he did not have any authority to cease the work.
14. Sometime in late September and early October 2016, the Prosecution witnesses Tapuai Toamua Tamaseu and Tua Misiluki lodged a complaint with the Office of the Lands and Titles Court asking as to why the Defendant has continued to build on the land. They object to the building on the property because of their claim that the property belongs to all of them and not just to the Defendant. They were not present at the inspection on the 13^th September 2016.
15. On the 19^th October 2016, a letter was received from the Registrar of the Lands and Title Court to revoke the Court Order on the basis that the two chiefs Tamaseu Leni and Tamaseu Vaa had consented to the continuation of the work.
16. On the 3^rd November 2016, an information was filed against the Defendant for contempt of court. There were further adjournments until the matter was finally set down for hearing on the 18^th September 2017.
17. From the time that the Defendant was charged to the hearing date, there have been attempts by the Defendant to discuss with Nuu Ropati what he had told them on the 13^th September 2016.

DISCUSSION

18. After hearing the evidence, I am inclined to accept the Defence version of events. They were all credible witnesses and there was no reason for the Defence witnesses Tamaseu Leni and Sipili Tiedeman to lie on oath to support the Defendant. I found the Deputy Registrar evasive and defensive when he gave evidence. His focus was on the technical aspects of the court order. The Court however will not reneged from considering whether he had told the Defendant to continue the work.
19. I am persuaded that he had given that undertaking on the basis that he was confident that his report will be reviewed and that a decision will be made immediately. A letter to revoke the Court Order was only served on the Defendant a month later. Unfortunately for the Senior Officer a complaint was lodged by the other Prosecution witnesses for a contempt of court proceedings which has now put him in a very unfortunate and awkward position for having a genuine belief that the court order was no longer necessary because the two chiefs have given their consent.
20. He should not have given that undertaking to the Defendant and the Defence witnesses especially given that he represents the Office of the Lands and Titles Court.

CONCLUSION

21. Whilst I am satisfied that there has been a breach of the Court Order, I am inclined to accept that the Defendant has a valid defence for having breached the Court Order and for that reason, I do not find her guilty of the offence of contempt of court.
22. The charge of contempt of court is hereby dismissed.

JUDGE ATOA-SAAGA