Police v Afamasaga [2018] WSDC 6 (23 March 2018)

DISTRICT COURT OF SAMOA
Police v Afamasaga [2018] WSDC 6

Case name:	Police v Afamasaga
Citation:	[2018] WSDC 6
Decision date:	23 March 2018
Parties:	POLICE V MELESETE TAULA AFAMASAGA, female of Siumu and Vaitele Uta
Hearing date(s):	12 February 2018
File number(s):	D1313/17
Jurisdiction:	Criminal
Place of delivery:	District Court of Samoa, Mulinuu
Judge(s):	Judge Alalatoa Rosella Viane Papalii
On appeal from:
Order:	I find the defendant Melesete not guilty of contempt of Court for disobedience of a Court order and the charge is accordingly dismissed.
Representation:	L Sio for Prosecution
	S R Ponifasio for Defendant
Catchwords:	Contempt of Court
Words and phrases:
Legislation cited:	LTCA 1981 s.75(1)(a) & (2)
Cases cited:	Police v Malu [2016] WSDC 34
	Polynesian Ltd v Samoa Observer Company [1999] WSSC 45 Police v Wilson [2017] WSDC 17
Summary of decision:

IN THE DISTRICT COURT OF SAMOA
HELD AT MULINU’U

BETWEEN:

POLICE
Informant

AND:

MELESETE TAULA AFAMASAGA, female of Siumu and Vaitele Uta
Defendant

Counsels:
L Sio for Prosecution
S R Ponifasio for Defendant

Hearing: 12 February 2018
Submissions: 16 February 2018 (Defence)
Decision: 23 March 2018

DECISION

INTRODUCTION

1. By an order of the Lands and Titles Court (“LTC”) delivered on 24/04/09 the daughter of one of the Respondents Tu’u’u Lafu, namely the accused Melesete Taula Afamasaga (“Melesete”), was ordered to remove her shop from the land known as Saaumua at Siumu within 2 months from the date of the Decision.
2. Approximately 7 years later, on 24/04/17 Police filed a charge alleging that in the timeframe of between 25/06/09 to 28/03/17, Melesete still had not complied with the order and therefore committed the crime of contempt of court.
3. Melesete denied the charge. She argues that she did comply with the order and the charge against her should be dismissed. So the thrust of this case is whether Melesete did disobey the Court.
4. The matter went to trial where it was noted that a similar charge against Melesete was withdrawn by leave on application of the Prosecution on 28 September 2012. This was raised given concerns with the possibility of double jeopardy. But on close examination of the Court record and as conceeded by Defence counsel, that charge was withdrawn by leave and not dismissed and therefore Prosecution may refile it at a latter stage.
5. At the conclusion of the trial both Counsel sought time to file submissions and they were to file these by 16/02/18. I received Ms Ponifasio’s closing submissions but none from the Prosecution. On 12/03/18 I instructed senior associate Upolu Pouono to send out an email to the Prosecution copied to Ms Ponifasio to file their submissions together with a certified copy of LC1868P1 – P2 decision exhibited as P1 by the end of business that day. As I noted during the trial, the copy of the LTC decision tendered by Prosecution as P1 was incomplete as it did not have pages 5 & 6. To date Prosecution has not complied and I had to request an original copy of the decision from the LTC registry for my reference.
6. I must record yet again my concerns with the Prosecution’s ignorance of the directive I made and conduct of this case. In the morning of the trial when the matter was called, Prosecution was not forthcoming or truthful in informing the Court whether the matter would be proceeding. But as I later found out when the matter was recalled at 10.45am where Ms Titi appeared, Prosecution witnesses had not been summonsed and Ms Sio who had carriage of the file was busy in the Supreme Court and she had sought to have this case commence in the afternoon as it is convenient to her. Defence was ready to proceed. But I reluctantly granted the indulgence and informed the parties the matter will start at 1pm without any further dramas and for Prosecution to have their witnesses ready by then.
7. For the filing of closing submissions, an order was made. A second opportunity was given by email of 12/03/18. It was still not complied with. There was not even a courtesy of a letter or explanation regarding the non filing and I venture to say, the conduct here borders on professional misconduct which I will not tolerate. This is not some tedious matter that any counsel should brush aside.
8. The Law Society should look at holding a refresher training to remind members of their professional ethics, Court etiquettes and Counsel’s paramount duty to the Court. It is crucial that we have a high standard at the Bar. When an order or directive is made to file documents, ensure it is complied with. If for some reason it cannot be met then have the courtesy to formally write to the Court to seek an extension or explain away the situation.
9. Had it not been for the fact that the issue here really comes down to the elements of the offence and how I interpret this, I would have referred this to the Law Society. I have decided to spare counsel from the hardship of such a process and repercussions. At the end of the day, I do understand that Counsel has a hefty workload as senior prosecutor apart from being heavily pregnant but this in itself is not an excuse. I however, do not want to see a recurrence of this conduct from counsel.
10. This is my reserved decision.

LAW

Contempt of Court

11. As alluded to above, this matter is about an alleged contempt of Court for disobedience with a Court order. The law on contempt of Court is well canvassed in my decision of P v Wilson.^[1] So I will not traverse to it in full suffice to say that the contempt of court jurisdiction exists in the public interest to uphold and protect the administration of justice not just to require compliance with an instrument of state coercion.^[2]
12. As I said in Wilson, the power of this Court to commit for contempt of Court is incidental to its substantive statutory jurisdiction either by express power conferred by statute or implied. Here, it is conferred by statute namely s75 (1)(a) & (2) Lands and Titles Court Act 1981 (“LTCA”) which states:
    • “75. Offences – (1) A person commits an offence and is liable upon conviction to a fine of 5 penalty units or imprisonment for 6 months who:
      1. Disobeys any decision or order of the Court.
    • 2) Proceedings for an offence under the Act are to be taken in the District Court”
13. In Police v Malu^[3] the learned Judge Roma dealt with a similar charge brought pursuant to s75(1) (a) LTCA where he adopted as the legal test the elements of civil contempt of Court as set out by the learned CJ Sapolu in Polynesian Ltd v Samoa Observer Company Ltd.^[4]
14. I also dealt with the same provision in Wilson where I applied with reasons Judge Roma’s approach to the elements of a criminal charge of a similar nature. The elements can be succinctly identified as follows:
    1. Whether the terms of the order are clear and unambiguous;
       2. Whether Melesete had proper notice of it; and
       100. Whether she disobeyed it.
15. As I said in Wilson, it is unnecessary to prove an intention to interfere with the administration of justice. The onus of proof lies with the Prosecution from start to end and they must do so to the criminal standard of beyond a reasonable doubt.^[5]

EVIDENCE

Undisputed facts

16. In addition to the facts agreed upon by Counsel during trial, I have identified the undisputed facts as follows:
    1. Sometime in 2008, Melesete’s family constructed a building housing a shop at the front and residence at the rear (“The Building”) on land known as Saaumua at Siumu under the title Tapusalaia. At the time, there were two title holders of the title Tapusalaia;, Melesete’s uncle Tapusalaia Lautogia and Tapusalaia Terry Toomata. It is accepted that the latter works overseas and is rarely in Samoa to deal with the affairs of his extended family. The former is now deceased.
    2. The complainant and other factions or suli of Tapusalaia were unhappy with the construction of the shop culminating in Court proceedings being brought in the LTC recorded as LC 1868 P1- P2 against Tapusalaia Lautogia (Melesete’s uncle), Tu’u’u Lafu (Melesete’s Father), Tagatuai Tu’u’u and Meki Tu’ua Lafu.
    3. That LTC matter led to the decision which ordered at paragraph 30 (a) (“the LTC Order”):
       • “Ua faamaonia e le Faamasinoga le talaeseina o le faleoloa o le afafine o Tuuu Lafu mai i luga o le fanua o Saaumua i Siumu i totonu o le lua (2) masina amata atu i le aso lenei o le faaiuga.”
    4. To date the building remains on the land but the shop is no longer operable as this was removed. But the whole building has now been converted into a residence.
    5. The LTC Decision was appealed but leave was not granted.

Prosecution Evidence

17. Prosecution had originally intended to call 3 witnesses but decided to call one. Its key witness therefore was Leiataualesa Katifa Tu’u’u Faletoese (“Leiataualesa”). She had a lot to say about the history of the land and I sense from her evidence her disgruntlement and frustration with the way things are. According to Leiataualesa, her branch of the family once had their own Tapusalaia title holder. But in her view, since the reign of the remaining two Tapusalaia especially Tapusalaia Lautogia, their voice have not been heard.
18. It seemed to me Leiataualesa took this proceeding as a second stab at venting out her frustration and she also started going into other LTC decisions. I interjected and informed her that this Court has no power (jurisdiction) to hear any matter relating to customary land and matai titles as that is the legal job of the LTC. But my job is confined to determining whether Melesete did commit the crime she as complainant alleges against her.
19. The relevant aspects of her evidence can be summarised as confirming that the building is still on the land but that the shop has been removed. She also confirmed that the front part of the building was used as a shop but the rear consisting of bedrooms, lounge, kitchen and a bathroom was utilised as a residence.
20. It was put to her that at the time of the decision a faleoo was also at the back of the building used as a residence and she confirmed this. She put forth her understanding of the order as meaning removal of the whole building not just the shop and its fittings and stock. In her mind, the word aveese is not synonymous to talaese.

Prosecution’s Case

21. As I said before, no submissions were received from the Prosecution but I can discern from their evidence they are saying that there was no compliance because to date the building which once housed the shop is still on the land.

Defence Evidence

22. Melesete elected to give evidence. She admitted that it was she and her sisters who funded the construction of the shop but it is mainly her who operated it. The business licence was also registered under her name. So she conceded that she had notice of the LTC Order and that the reference to the words “le afafine o Tu’u’u’ Lafu” in the order is directed at her.
23. Melesete produced as “D1” photos of the shop showing what it once looked like when it was operable. Her evidence is, the building served two purposes; the shop at the front and residence at the rear. The faleoo was also used as a residence. She was also referred to the photos in exhibit P3 depicting that the shop had been removed but not the building.
24. However, according to Melesete once she received notice of the LTC Order she decided to comply with it. She had all its fittings, stock, signs, posters removed. The shelvings and counter was dismantled and installed in its place were window louvers. Where there was an open driveway into the shop she closed this off. She told the Court that she complied with the removal of the shop before the stipulated 2 months in the LTC Order. She said given her own understanding of the order, she decided to turn the whole building into a residence. This continues to date.

Defence Case

25. Ms Ponifasio contends that the terms of the LTC Order the subject of the charge, is ambiguous and unclear and open to interpretation and argument. She argues that Melesete did comply with the Court order in that she did remove the shop as she believed this is what the order meant especially since there was no order to vacate.
26. Ms Ponifasio further pointed out that as Melesete and her family already used the building for residential purposes they therefore extended this to the space where the shop once was. She contends Melesete did comply with the Order.

DISCUSSION

27. As I said above, essentially the thrust of this matter boils down to the issue of whether all elements of the offence have been proven to the required standard. I analyse this next.

Analysis of Elements of the Offence

28. In regards to the second element relating to notice of the order, this is a non issue, given the concession by Melesete she did have notice of the LTC order as her father Tu’u’u Lafu was a party to the LTC proceedings. She also admitted in her evidence in chief that although her father has 6 daughters, the word “afafine” referred to in the order was directed at her as she was the one who operated the shop. So the second element is proven.

Were the terms of the decision clear and unambiguous?

29. In Polynesian Limited^[6] the learned CJ Sapolu referred to the case of Liberian Trust Ltd v Founders Trust Investment Co^[7] where it was said that “if the Court is to punish anyone for not carrying out its order, the order must in unambiguous terms direct what is to be done”. .
30. The learned CJ Sapolu also referred to the English case of PA Thomas & Co v Mould^[8] where O’Connor H said that “where parties seek to invoke the power of the Court to commit people to prison and deprive them of their liberty, there has to be quite clear certainty about it”.
31. I adopted the above principles in Wilson^[9] and I do so here as well. Prosecution has brought this charge of contempt of an LTC court order. It is crucial that the terms of the order be clear and certain.
32. I must say however, I am inclined to agree with the Defence and am of the firm view that the language of the LTC order in paragraph 30 (a) of the Decision is open to or susceptible of more than one reasonable interpretation. By this it simply means that both interpretations by Prosecution and defence are plausible. In that regard, Melesete was entitled to interpret the LTC Order the manner she did given the ambiguities.
33. It is a known fact that there is plurality in the meaning and interpretation of phrases and words in our Samoan language. In other words “e uiga lasi le gagaga”. A word can connote various meanings depending on the context it is used and circumstances. With that care must be taken to ensure it is interpreted correctly within its context and circumstances. Here we have a dispute on the correct interpretation of the word talaese
34. Prosecution’s only witness Leiataualesa expressed the view that the word talaese is not the same as “aveese”. In her mind the phrase talaese le faleoloa meant dismantling the whole building. Melesete on the other hand interpreted it as meaning removing the shop only. After all on Melesete’s evidence, as confirmed by Leiataualesa, at the time of the LTC hearing and Decision the building was utilised as a shop in the front and residence at the rear. Here the LTC order was specific to the shop. Melesete did remove the shop and all its fittings and turned the whole premises instead into a residential home.
35. In my view the ambiguities implicit in the LTC decision cannot be cured and this must go to the benefit and favour of Melesete. I reiterate as I said in Wilson, that it is not the job of this Court to correct the validity or ambiguities of an LTC Order or Decision. My job is to determine whether there is contempt of Court by Melesete as alleged.
36. As stated above, if the Prosecution is to bring a contempt charge for disobedience of a Court order, the terms of the Order or decision must be clear and unequivocal. Here, the order is contradictory, open to other interpretation and therefore ambiguous and unclear. This element has not been met.

Did Melesete wilfully disobey the Order?

37. In regards to the issue of whether Melesete did wilfully disobeyed the LTC order in (a) as alleged, I am not satisfied on the evidence this has been met either
38. The word wilful simply means deliberate and intentional. Here, the evidence I have before me confirms that Melesete did comply in accordance with her interpretation of the LTC Order. As discussed above, in her mind, the LTC Order tells her to remove her shop. She did exactly that. It is uncontested that there is no longer a shop. The photos submitted confirm this and even the witness Leiataualesa also confirmed it.
39. Although common sense tells me that the LTC order would have attracted some financial loss, Melesete put this aside and removed the shop before the two months period expired. This evidence is unrebutted. As I said in Wilson, this is hardly a flagrant disregard of a Court order rather it is more in accordance with it.
40. I also note and concur with the Defence there was no order to the effect that Melesete and her family could no longer occupy the land nor is there an order for them to vacate the land. Had that been the intention of the LTC Order, it would have clearly said so rather than being vague and silent on such an important issue. But the only order is to remove the shop from the land which was done. The building is now a residential home.
41. This also makes sense as having perused the LTC decision in full, I note it did not go anywhere near the occupational rights of Melesete’s family as suli of the Taputasalaia title. But what was attacked was the pule faasa’o of Tapusalaia Lautogia and his not considering the view of other suli of the title. Other concerns by the parties to the LTC proceeding recorded in the Decision are with businesses on family lands such as Bluebird Water. It seems they were unhappy with Tapusalaia Lautogia not accepting their request that lease payments should be paid by these businesses to custodial beneficiaries of the land.
42. From all this, I can deduce that the LTC Decision was focused on the shop being a business which benefited only the defendant but not the rest of suli of the family who are all entitled to the land.
43. I must again reiterate, it is not my job to perfect the decisions of the LTC. I have no jurisdiction whatsoever to do this. My job is to determine whether the allegation against Melesete of contempt of court for disobedience of a Court order has been proven to the criminal standard.
44. For me to draw a finding here that just because the whole building was not removed this therefore tantamount to wilful contempt of court and a finding of guilt is in my view not in the interest of justice at all. .
45. On the evidence I am not satisfied that this element has been substantiated to the required standard and I am therefore also not satisfied that Melesete wilfully disobeyed the order to support a charge of contempt of court.

CONCLUSION

46. Applying the law to the evidence, I find that the prosecution has not proven beyond a reasonable doubt each element of the offence. .
47. I therefore find the defendant Melesete not guilty of this offence and the charge is accordingly dismissed.

Observation

48. I note with concern this is not the first time this matter has been before this Court. As I said above a similar charge was brought against the defendant previously which was withdrawn by leave. Then on 24/04/17 this charge was filed. I also sensed during the trial from Leiataualesa there is still a sense of discontentment with the way things are.
49. This matter cannot continue like this. There must be finality. You need to start talking to each other on the best way forward for your family.

JUDGE ALALATOA R VIANE PAPALII

---

^[1]P v Wilson [2017] WSDC 27
^[2]Taylor Bros Ltd b Taylor Group Ltd [1990] NZCA 178; [1991] 1 NZLR 91 at 93. Also see Zhang v Kind David Investment Ltd & Young & Fen Ying [2016] NZHC 3018
^[3]P v Malu [2016] WSDC 34
^[4]Polynesian Ltd v Samoa observer Company Ltd [1999] WSSC 45
^[5] Solicitor General v Broadcasting Corporation of NZ [1987] 2 NZLR 100; also Zhang supra n 2; also see Mal usupra n 3 and Wilson Supra n 1
^[6] Supra n 4.
^[7]Liberian Trust Ltd v Founders Trust Investment Co [1932] 2 KB 87 at p 95
^[8]PA Thomas & Co v Mould [1968] 1 All ER 963
^[9] Supra n 1