IN THE SUPREME COURT OF SAMOA
HELD AT APIA

MISC. 23374

BETWEEN:

TOOMALATAI LAUVAI II
of Vailoa Aleipata
Appellant

AND:

POLICE
Respondent

Counsel: TRS Toailoa for appellant
G Latu for respondent

Hearing: 21 December 1998
Judgment: 19 January 1999

JUDGMENT OF SAPOLU, CJ

It is not necessary to go through the long history of the land dispute from which the present appeal proceedings originated. Suffice to start from 1991. In May 1991, the Land and Titles Court sitting at first instance heard proceedings between the present appellant and other parties in relation to the land called "Vailoa" which is situated at Vailoa, Aleipata. The land is occupied by the appellant. On 24 May 1991, the Land and Titles Court sitting at first instance delivered its decision. That decision was against the appellant who then appealed the decision to the appellate division of the Land and Titles Court. The Court's appellate division heard the appeal in July 1995 and on 1 September 1995 delivered a decision which dismissed the appellant's appeal and ordered him and his party to vacate the land which was the subject of Court proceedings and remove all their properties, except any useful crops or trees growing on the land, no later than 1 March 1996. The decision of the Court is in Samoan. As it is the decision to which the present appeal relates, I will set out the decision in full:

"Ua teena le talosaga toe iloilo, ae mo le faaatoatoaina o faaiuga tau i lenei mataupu o lea e i ai le suiga i le faaiuga a le Faamasinoga lea na faia i le aso 24 o Me 1991 ma ua mafua ai le talosaga toe iloilo, i le faaopoopoina o le poloaiga lea.

E poloaiina le itu talosaga (Toomalatai Lauvai II ma isi) ina ia talia ese ma aveeseina uma o latou fale faapea ma a latou meatotino uma o loo i le vaega o le fanua o Vailoa lea e i lalo o le pule a le suafa Puepuemai, ia aua nei silia le aso l o Mati 1996. Vagana ai, ia aua nei faatamaia pe faaleagaina ni laau aoga o loo ola i luga o le vaega o le fanua o le suafa Puepuemai o loo faaaogaina e le itu talosaga.

O le tau o lenei Faamasinoga e $100 e totogiina atu e le itu talosaga mai tupe sa faaulu ai la latou talosaga toe iloilo.

O le a maua i le Ofisa o le Resitara kopi o lenei faaiuga faapea ma mafuaaga i se aso lata mai".

The Court's reasons for its decision were subsequently given to the parties in writing. 

Since the decision of the appellate division of the Land and Titles Court was delivered on 1 September 1995, the appellant has continued to remain on the land contrary to the decision of the Court that he must vacate the land no later than 1 March 1996 and remove all his properties except any useful crops or trees. Up to now the appellant is still occupying the land. As a result of his disobedience of the decision by the appellate division of the Land and Titles Court, he was charged and prosecuted in the Magistrates Court under section 75 of the Land and Titles Act 1981. Section 75(1)(a) of the Act provides:

"(1) Every person commits an offence and is liable to a fine of $500 or to imprisonment for 6 months who:

(a) disobeys any decision or order of the Court, or any order made under section 49 or 50".

It is the first part of section 75(1)(a) which relates to disobedience of a decision of the Court which is relevant for the purposes of the present appeal. Section 75(2) then provides:

"(2) Proceedings in respect of any offence under this Act shall be taken in the Magistrates Court".

At the trial of the charge against the appellant in the Magistrates Court, the decision of the appellate division of the Land and Titles Court was produced by the prosecution in evidence as an exhibit. It is clear from the evidence that was before the Magistrates Court that the appellant is still occupying the land in question contrary to the Court's decision of 1 September 1995. That was confirmed by the appellant himself in his own evidence when in reply to a question whether he was going to vacate the land he said no.

The learned Magistrate who presided at the trial found the appellant guilty as charged and accordingly convicted the appellant and sentenced him to 6 weeks imprisonment. The appellant through his then counsel lodged an appeal against his conviction as being against the weight of the evidence and against his sentence as being manifestly excessive in the circumstances. Since his appeal was lodged, the appellant has engaged a different counsel. His new counsel represented him at the hearing of the present appeal.

As to the appeal against conviction, counsel for the appellant put forward legal submissions based on the provisions of the Land and Titles Act 1981 which submissions were not put forward during the trial in the Magistrates Court. In essence, the submissions for the appellant were that the decision of the Land and Titles Court in respect of which the appellant was prosecuted and convicted was a "final decision" of that Court in terms of the provisions under Part VIII of the Land and Titles Act 1981. That being so, the final decision of the Court should have been published in the Savali newspaper as required under section 69 of Part VIII of the Act in order to make it complete. Failure to publish the final decision of the Court would, therefore, render it incomplete. And no person should be charged or prosecuted under section 75 of the Act on a final decision that is not complete. Counsel for the appellant then further submitted that the prosecution in the lower Court should have adduced evidence to show that the final decision which was the subject of contempt proceedings had been published as required by section 69 of the Act. The absence of such evidence meant that it was not known whether the final decision in question was complete or not. Accordingly the prosecution had not proved the charge beyond reasonable doubt and the conviction entered against the appellant in the Magistrates Court should be quashed.

In order to have a clear understanding of counsel's submissions on the issue of conviction and the reasons why I do not accept them, I will now examine those submissions in detail. Counsel for the appellant in his submissions relied principally on sections 63, 69 and 70 which are all contained in Part VIII of the Land and Titles Act 1981. Section 63, which was the first provision referred to by counsel, provides:

"Final decision of the Court - (1) The final decision of the Court shall be in accordance with the opinion of the majority of the members present.

(2) In arriving at the final decision every Samoan Judge and Assessor hearing the petition shall have an equal voice.

(3) The final decision of the Court is subject to appeal under Part IX".

In considering each subsection of section 63 in turn, section 63(1) refers to the "final decision" of the Court being in accordance with the opinion of the majority of the members present. The expression "member of the Court" is defined in section 2 of the Act to include the President or Deputy President, and every Samoan Judge or Assessor who constitutes the Court in respect of any matter. The expression "Court" is separately defined in section 2. The use of the term "members" in section 63(1) must, therefore, include assessors and the Court whose final decision is referred to in that subsection must be the Land and Titles Court sitting at first instance and not the Court's appellate division. This becomes more clear in section 63(2) which provides that every Samoan Judge and Assessor shall have an equal voice in arriving at the Court's final decision. This must mean that the Court section 63 is speaking about is the Court which includes Assessors in its composition. And that is the Land and Titles Court sitting as a Court of first instance and not the Court's appellate division whose composition is provided in section 77 and it does not include Assessors. It follows that the final decision which is referred to in section 63(2) is that of the Court at first instance and not the Court in its appellate division.

In addition, the language of section 63(2) speaks of a final decision by every Samoan Judge and Assessor hearing a 'petition'. Proceedings before the first instance division of the Land and Titles Court are commenced by filing a petition as provided in section 43 whereas proceedings before the Court's appellate division are commenced by filing an application for leave to appeal: see sections 78 and 80. So by speaking of a final decision by every Samoan Judge and Assessor on the hearing of a 'petition', section 63(2) is clearly referring to a final decision of the Court at first instance and not the Court on an appeal.

Section 63(3) then provides that a final decision of the Court is subject to appeal under Part IX of the Act. Part IX of the Act makes provisions for appeals from final decisions of the first instance division of the Court to the appellate division of the Court. The final decision which section 63(3) provides is subject to appeal must be that of the first instance division of the Court and not that of the Court's appellate division for you cannot appeal to the Court's appellate division against its own decisions.

Section 65, which is the next relevant provision, then provides:

"Delivery of decisions - Every decision shall be delivered in open Court by the President or Deputy President presiding".

Section 65, clearly speaks of a Court where the President or a Deputy President presides. The expression "Deputy President" is defined in section 2 of the Act to mean a Deputy President of the Court appointed under the Act. Under section 27 a Samoan Judge may be appointed as a Deputy President. Section 77 which provides for the composition of the Court's appellate division further provides that the President presides at sittings of the appellate division: it does not allow for a Deputy President to preside. So section 65 of the Act by making express reference to the President or Deputy President presiding must be referring to the first instance division of the Court because the President or a Deputy President may preside in proceedings before that division of the Court whereas in the appellate division of the Court only the President may preside but not a Deputy President.

The next relevant provisions are sections 66 and 67 which provide in turn:

"66. Reasons for decision - Every decision on a petition shall give the reasons by the Court, or the majority of its members, for the decision.

67. Form of final decision - The final decision of the Court shall be drawn up under the seal of the Court and the hand of the President or Deputy President, and the Samoan Judges and Assessors that concur in the decision, and shall be in the form numbered 6 in the Second Schedule".

What I have said in relation to sections 63 and 65 is also applicable to sections 66 and 67. I would only add that form 6 in the second schedule of the Act for final decisions of the Court expressly provides spaces for the signatures of Assessors. That must mean that a final decision referred to in section 67 is a decision of the first instance division of the Court where Assessors can sit as members and not the Court's appellate division where Assessors are not allowed to sit.

Section 69, which is the main provision counsel for the appellant relied upon in his submissions, then provides:

"Final decision complete on publication - (1) As soon as practicable after delivery, the Registrar shall publish particular of every final decision of the Court on any petition.

(2) The final decision shall be deemed complete upon publication under subsection (1)".

From the views I have already expressed on sections 63, 65, 66 and 67, I conclude that the expression "final decision" used in section 69 as in the other provisions of Part VIII of the Act refers to a decision of the first instance division of the Court and not the appellate division.

As the decision that was the subject of the contempt prosecution in the Magistrates Court was a decision of the appellate division of the Land and Titles Court and not a final decision of the Court at first instance, section 69 like all the other provisions of Part VIII of the Act do not apply to the present appeal.

Be that as it may I would like to go on to refer to section 70 as that was one of the main provisions that counsel for the appellant relied upon in his submissions. Section 70 provides:

"Effect of final decision - Subject to an appeal under Part IX every final decision of the Court on a petition shall be deemed to be judgment in rem and shall bind all Samoans who are affected by it, whether parties to the proceedings or not".

My previous comments also apply to section 70. It appears from the words "final decision of the Court on a petition" in section 70 that the final decision as mentioned in that provision is a decision of the Court at first instance on a petition and not of the Court's appellate division on an appeal. The fact that the final decision spoken of in section 70 is subject to appeal under Part IX of the Act again clearly suggests that that final decision must be that of the first instance division of the Court rather than its appellate division for you cannot appeal to the Court's appellate division against its own decisions but you can appeal on a final decision of the Court at first instance to the appellate division.

When one turns to the provisions of Part IX of the Act which deals with appeals from a final decision or order of the Court, section 76(1) provides:

"Subject to subsection (2), any party to any proceedings may appeal against any final decision or order of the Court".

Section 76(2) is not relevant for present purposes but section 76(1) picks up the expression "final decision of the Court" from Part VIII of the Act and provides a right of appeal against such a decision. This must mean a "final decision" of the Court in terms of sections 63 and 70 of Part VIII which provide that a final decision of the Court is subject to an appeal under Part IX. That final decision, which may be the subject of an appeal under Part IX, must be a final decision of the Court at first instance.

Section 78(2) under Part IX then provides, as far as relevant, that in granting leave to appeal the President may order a stay of proceedings under the final decision. Section 79 then provides the grounds upon which leave to appeal may be granted. One of those grounds as provided in section 79(1)(e) is that the 'Court' did not have jurisdiction to make the final decision. That must mean the Court at first instance. Section 80(2) then provides that an application for leave to appeal must state whether the application for leave to appeal is against the whole or any part of the final decision. Section 81 provides for the time period in which an appeal must be filed against a final decision and the jurisdiction of the President to extend such a time period. Section 89 which provides for the Court's powers on an appeal empowers the Court, amongst other things, to set aside or vary the final decision which is appealed.

All the aforesaid provisions of Part IX of the Act speak of a final decision of the Court which is the subject of an appeal to the appellate division. The composition of the Court to hear an appeal is provided in section 77 and it consists of the President and two Samoan Judges appointed by him. This is of course different from the composition of the first instance division of the Court to hear a petition which includes Assessors.

Furthermore, a decision of the Court's appellate division is not referred to as a final decision but simply a decision. Section 90 under Part IX provides:

"The decision of the Court under this Part is final". (italics mine)

There is a marked difference between a "final decision" and saying a "decision" is final. It appears to me that under the scheme of the Land and Titles Act 1981, the legislature has purposely created two divisions of the Land and Titles Court and deliberately chosen to describe a decision of the Court at first instance on hearing a petition as a "final decision" and a decision of the appellate division on hearing an appeal as simply a "decision".

For the reasons stated, the appeal against conviction is dismissed.

As to sentence, counsel for the appellant submitted that because section 75(1) of the Land and Titles Act 1981 refers first to a fine of $500 and then to a term of imprisonment of 6 months, that suggests that the Act requires the Court to consider a fine as a penalty before moving on to consider a term of imprisonment. I do not accept that is the intention of the legislature. If it had been Parliament's intention that the Court should first consider a fine as a penalty before considering imprisonment, it could easily have said so in clear and express terms in section 75 or elsewhere in the Act. But Parliament has not so said. I am, therefore, not able to accept his submission. Counsel for the appellant also indicated that he was relying mainly on his submissions relating to conviction.

I am, however, in respectful agreement with the sentence of 6 weeks imprisonment imposed by the learned Magistrate for the reasons he gave. I would only reiterate that the appellant was ordered by the appellate division of the Land and Titles Court to vacate the land by 1 March 1996. By the time proceedings were heard in the Magistrates Court on 2 September 1998 the appellant was still in occupation of the land. In his evidence he displayed continuing defiance of the Land and Titles Court decision when he replied no to a question whether he was going to vacate the land.

In all then the appeal against both conviction and sentence is dismissed.

CHIEF JUSTICE

Solicitors: 
Toailoa, Apia, for appellant
Attorney General's Office, Apia, for respondent