To' Aleapai v Police [2010] WSSC 57 (11 June 2010)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

IN THE MATTER: of General Appeal under the Criminal Procedure Act 1972

BETWEEN:

SEMAU TO'ALEAPAI
Sale'aula, Matai
Appellant

AND:

THE POLICE
Defendant

Presiding Judge: Justice Slicer

Counsel: T Malifa for the Appellant
P Chang for the Defendant

Hearing: 26 March and 14 May 2010
Judgment: 11 June 2010

Charge: Contempt of Court

JUDGMENT OF SLICER J

1. The Appellant seeks review of a decision of the District Court finding him in Contempt of Court for disobeying an earlier order concerning the use or occupancy of land. There had been a dispute, of long standing, between the Appellant and other members of his village concerning the boundary of land at Saleaula. There had been an earlier determination of the dispute by the Lands and Titles Court in favour of the Appellant which was appealed by other members of the village to the President of the Court of Appeal of that Court. The Court of Appeal dismissed the appeal in part but, in doing so, re-determined the boundary of the land which was the subject of contention.
   
2. Following that determination of the Court, the Appellant cleared a portion of the disputed land and erected some buildings on it. He was charged with Contempt of Court pursuant to the Lands and Titles Act 1981, section 75 (1) (a).
   
3. He was convicted by the District Court and appealed that decision to this Court. The Appellant had represented himself at the hearing of the District Court and in this Court was granted leave to adduce further evidence which included the recall of an officer of the Lands and Titles Court, Queenie Ah Sue. The Appellant had represented himself and the record of proceedings showed a degree of uncertainty in the presentation of his defence, and that he could show an arguable case in support of his claim of error. The appeal proceeded as a rehearing but one confined to the issue raised in the leave application and the additional evidence received by this Court. No question of credibility of witnesses arises on this appeal.
   

GROUNDS ON APPEAL

4. The grounds of appeal relevantly state:
   

"1. The said conviction was arrived at despite the District Court Judge saying "ua nenefu I lona mafaufau le tuaoi sa'o";

"2. The said conviction was based on a wrong understanding of the Western boundary of the land in question, Matalevai, as declared by the Land & Titles Appeal Court in its final decision ALC 4944 P1-P3, which, if the Court had taken a visit to view that boundary, would have held that that said boundary is as declared in that ALC 4944 P1-P3;

"3. The said conviction was based on the evidence of a witness, an officer of the Land & Titles Court in Tuasivi, which evidence deliberately misstated the said Western boundary as to begin southward from another poumoli that between 100 and 150 meters eastward of the one stated by the Land & Titles Appeal Court in ALC 4944 P1-P3 to be: "Sisifo ma Amuimuia, amata atu i le poumoli - eletise o lo'o i le itu i sasa'e o le ulu i tafatafa o le alatele o le Malo (Matu), fa'asa'o ai i le laina sa'o i uta (Saute) i le pito pa i le itu i Sisifo a le aiga o Semau Ta'olepai o lo'o i ai le Toganiumuli".

5. The Court heard evidence from the officer of the Lands and Titles Court referred to in Ground 3. Any suggestion that she 'deliberately misstated' the terms of the boundary is rejected. The question is the interpretation of the decision of the Lands and Titles Court fixing the line of the disputed boundary in 2004. A sketch map was prepared by Ms. Ah Sue, the officer already referred to, which was tendered on the hearing before the learned primary Judge. She had visited the disputed site and recorded the differing boundaries as interpreted by the opposing parties. A copy of that plan is annexed to this judgment as a guide to the evidence relied on by the respective parties and the interpretation of the original order. The Appellant and fellow landowners of his village had been in dispute about a number of matters including the line of the western boundary. The Lands and Titles Court upheld most of the Appellant's claims. The landowners appealed the original decision to the Appeal Court which dismissed their appeal. In doing so it allowed a challenge to the precise location of the boundary and varied its line from that previously relied on by this appellant.
   
6. The Court of Appeal confirmed;
   

"...that the decision ALC 4944 P1-P3 of 6th March 1998 remains except for the following amendments; the first part regarding the boundary of the land of Mataolevai on the Western side shall be read as follows:

"West of Amuimuia commencing from the electric post on the eastern side of the breadfruit tree beside the main road (north), straight line inland (south) to the corner of the fence on the western side of Semau Toalepai's family is where the coconut plantation is located."

7. The judgment of the learned primary Judge states at paragraph 5, the terms to be;
   

"...bounded to the south with Amuamuia, beginning at the electrical post that is located east of the breadfruit tree beside the road belonging to the Government (north), a straight line would then be drawn directly inland from the electrical post to the southern end at where the family of Semau To'aleapai have their plantation of young coconuts."

8. As can be seen from the plan, there were two breadfruit trees near the boundary. On the appellant's interpretation, the northern tree, nearest the road to Satoalepai, is the commencing reference; the adjacent fence post would mark the boundary line. That interpretation turns on the wording 'beside the road'. The contrary interpretation is that the southern tree is the identifying mark and the fence post is due east of the tree and provides the accurate reference point.
   
9. The Appellant had erected structures in the disputed area, an action which had been given rise to the contempt proceedings.
   

JUDGMENT APPEALED

10. The learned primary Judge accepted the evidence of the adjoining landowner that the appealed decision had altered or redefined the boundary to preclude the clamed right of the appellant. To that acceptance he added the evidence of the appellant in cross-examination that he conceded that paragraph (e) of the 2004 decision had altered the 1998 boundary and that he had continued to 'use the same area he had used under and prior to the decision of 1998'. The learned primary Judge was entitled to reach the conclusion which he did.
    
11. In this Court, the Lands and Titles officer, who had drawn and provided the sketch plan, explained the sketch in more detail. She maintained that the tree nearest to the road relied on by the Appellant was next to the first post but that the second or southern one was in direct line with the eastern fence post. Since it was in direct line with the second post, the commencing point accorded with the wording of the 2004 order. She stated also that she had drawn the plan in accordance with the wording 'straight line...directly inland to the southern end...where...the family of Semau...have their plantation of young coconuts'.
    
12. It was common ground that the end of the stone wall shown on the sketch marked the southern boundary.
    
13. The Court concludes that the terms of the 2004 order provide for a boundary line commencing at right angles to the road and going in 'a straight line...directly inland'.
    
14. The two terms of reference, 'east of the tree' rather 'south east' and 'directly' being 'due south' or 'direct' rather than 'south east' or 'at an angle' accords with the conclusions reached by the learned primary Judge.
    
15. The Court has compared the wording on the 1998 and 2004 declarations or orders made by the Lands and Titles Court. That comparison supports the Respondent's contention at the hearing of this appeal.
    
16. Translation of the description stated by the Lands and Titles Court in the 1998 decision reads:
    

"...bounded to the west with Amuimuia, beginning from the breadfruit tree beside the road, a straight line would then be drawn directly inland, to the western end of the fence of the family of Semau where there is a plantation of young coconuts."

Counsel for the Appellant prefers a different form of wording suggesting as a more correct translation, the following:

"West with Amuimuia, beginning with the breadfruit tree near the main road, take a straight line south (uta) to the corner (or edge) of the fence (pa) to the west side of Semau;s family where there is a young coconut plantation."

Both versions refer to a commencing point of 'the breadfruit near (beside) the (main) road.'

17. On the Appellant's argument, there would have been no reason for the Court of Appeal to vary its Order since the commencing point would be the same breadfruit tree. The terms of the 2004 provide for an electric post east of the breadfruit tree. Comparison of the two Orders supports the Respondent's interpretation.
    
18. The appeal is dismissed.
    

JUSTICE SLICER