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Meredith Ainu'u Lawyers v Muagututagata Peter Ah Him [2006] WSSC 55 (25 October 2006)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

MEREDITH AINU’U Lawyers.
Appellant

AND:

MUAGUTUTAGATA PETER AH HIM, SEAGA MEATUAI, MAUALAIVAO TAUAGALI, SAUNI OFISA, SILIMANAI PA’UTALO, LUPETULOA KALATI LAFITUANAI & FAAMAUSILI FAIGA
all of Malie, Samoan Matais.
Respondents

Counsel: S K Ainu’u for appellant
P A Fepulea’i for respondents

Hearing: 13 October 2006
Judgment: 25 October 2006

JUDGMENT OF SAPOLU CJ

Nature of proceedings

The present proceedings are concerned with an appeal by the appellant and a cross-appeal by the respondents against a decision by Judge Nelson delivered in the District Court on 29 August 2006.

What the District Court proceedings were concerned with were a private prosecution brought by the present appellant as informant against the present respondents as defendants for contempt consisting of an alleged non-compliance with an interim order and decision of the Land and Titles Court. Essentially what occurred in the District Court proceedings was that the respondents as defendants filed a motion to strike out the information laid by the present appellant as informant charging them with contempt. The strike out motion was based on four specified grounds. The learned District Court Judge rejected all four grounds of the strike out motion but then proceeded to quash the information on a different ground which, according to counsel for the appellant, was not put to counsel during the hearing of the strike out motion.

The appeal by the appellant is directed at the decision to quash the information. The cross-appeal by the respondents is directed at the rejection of one of the grounds that were put forward in the lower Court for striking out the information. I will refer to the grounds of the appeal and cross-appeal in some detail in due course.

History of proceedings in the District Court

The present proceedings were instituted by the appellant in the District Court as a private prosecution against the respondents for alleged contempt pursuant to s.75 (1)(a) of the Land and Titles Act 1980. Presumably, the proceedings were commenced in the District Court on 29 March 2006 as that was the date on which the information charging the respondents was sworn.

Subsequent events in the District Court show that on 11 April 2006, the charge was first called for mention and then adjourned without plea to 9 May 2006 for counsel for the respondents to file and serve a motion to strike out the charge. On the same day, on an oral application by counsel for the appellant, a minor amendment was made to the charge by changing the year of the alleged offence from "2005" to "2006". On 9 May 2006 when the charge was re-mentioned, it was further adjourned to 23 May 2006 for the appellant as informant to file a written reply to the strike out motion filed by the respondents as defendants. On 23 May 2006, the charge was further adjourned to 20 June 2006 for counsel for the appellant and for the respondents to file written submissions. On 20 June 2006, the charge was further adjourned to 4 July 2006 for both counsel to file their submissions. On 4 July 2006, the charge was further adjourned to 15 August 2006 for hearing the submissions by both counsel. On 15 August 2006 the hearing of the submissions proceeded and the presiding Judge reserved his decision which was delivered orally on 29 August 2006. A written copy of that decision has since been made available to this Court.

The charge

The charge, as far as relevant, alleges that at Malie, Tauamasaga, on the 15th day of January 2006, the defendants of Malie failed to comply with the interim order as well as the Court decision in L.C. 2504 P1, P2, P3. Section 75(1)(a) of the Land and Titles Act 1980 which is then cited as the charging provision provides:

"Every person commits an offence and is liable to a fine of $500 or to imprisonment for 6 months who disobeys any decision or order of the Court, or any order made under section 49 or 50."

Section 49 provides for the making of interim orders, ex parte or otherwise, by the President of the Land and Titles Court pending the final determination of proceedings which have already being commenced before the Court. Section 50 provides for the making of interim orders by the Registrar of the Court with the concurrence of two Samoan Judges, before the commencement of any proceedings, regarding a dispute that has arisen and which is likely to be the subject of proceedings under the Act. Section 75(1) (a) makes it an offence to disobey a decision of the Court, to disobey an order of the Court, to disobey an interim order issued under s.49, or to disobey an interim order issued under s.50.

The decision under appeal

As mentioned earlier, the lower Court in its decision rejected all four grounds of the respondents’ motion to strike out the information charging them with contempt for non-compliance with an interim order and a decision of the Land and Titles Court. The respondents’ cross-appeal is directed at this particular part of the lower Court’s decision. More specifically, it is the contention for the respondents that one of the four grounds that were rejected should not have been rejected. I will return to this contention later in this judgment as it forms the specific ground of the respondents cross-appeal.

As also mentioned earlier, after the lower Court had rejected all four grounds of the respondents strike out motion, the Court then proceeded to quash the information on a different ground that was not put to counsel. I turn now to the reasons given in the lower Court’s decision for quashing the information.

In his reasons, the learned District Court Judge pointed out that the arguments by the defendants (the present respondents) have served to highlight a very important and key matter which is the adequacy of the information. As His Honour pointed out, the information charges conjunctively two failures to comply. The first is the failure to comply with an interim order and the second is the failure to comply with the Court decision in L.C. 2504, P1, P2, P3. This Court decision was not delivered until 10th March 2006 but the information alleges that the defendants on 15th January 2006 failed to comply with that decision. I respectfully agree with the District Court Judge that it is clearly not possible for the defendants to fail to comply on 15th January 2006 with a Court decision that was not delivered until 10th March 2006 so that the defendants could not be convicted on that basis. Counsel for the appellant also appears to accept this part of the decision under appeal.

His Honour then refers to the alleged breach of the interim order and says that no date is specified for the interim order, the author of the interim order is not identified, the issuing Court is not specified, and there are no particulars to show how the interim order was breached. His Honour then states that the information must of necessity be limited to only the allegation regarding non-compliance with the interim order. His Honour further states that the information is most inadequate and appears to have been drafted and laid in a rush with little regard for correctness and accuracy and that the information also fails to comply with s.16 of the Criminal Procedure Act 1972. He then came to the crucial part of his decision by asking the question whether the Court should order further particulars under s.17 of the Criminal Procedures Act 1972, or allow an adjournment sought by counsel for the informant to clarify the relevant aspects of the interim order, or whether the information should be quashed under s.18 (2) of the Act. The Judge then concludes that in the exercise of his discretion the information should be quashed. His reasons for coming to that conclusion are: (a) the information does not state in substance a crime of which any of the defendants could be convicted, (b) the informant has had sufficient opportunity to amend the information, and (c) the defendants have not sought an order for further particulars and it is therefore not appropriate for the Court to fill in fundamental defects in the information by ordering particulars.

As I understand the decision by the District Court Judge to quash the information, what he is saying is this. The information charging the respondents does not state in substance a crime of which any of the defendants could be convicted. The reason being that the defendants were being charged, inter alia, that on 15th January 2006 they failed to comply with Court decision in L.C. 2504 P1, P2, P3 but that decision was not handed down until the 10th March 2006. So the defendants could not have been convicted for failing to comply with a Court decision which, at the material time, was not in existence. The information should therefore have been limited to failing to comply with the interim order. But that interim order is not adequately particularised in the information. The information was therefore quashed under s.18 (2) of the Criminal Procedure Act 1972 for the reasons already referred to.

Relevant statutory provisions

The relevant statutory provisions to the resolution of this appeal are ss.16, 17, 18 and 170 of the Criminal Procedure Act 1972. Section 16 which requires every information to contain sufficient particulars as will fairly inform the defendant of the substance of the offence with which he is charged provides:

"(1) Every information shall contain such particulars as will fairly inform the defendant of the substance of the offence with which he is charged.

(2) The particulars of the nature of the alleged offence shall, so far as is possible, use the words of the enactment creating the offence, and may refer to any portion of that enactment, and, in estimating the sufficiency of any such information, the Court shall have regard to such words or reference.

(3) The particulars shall include the time and place of the alleged offence, and the person (if any) against whom, or the thing (if any) in respect of which, it was committed.

(4) Except as hereinbefore provided, no information shall be held to be defective for want of form or substance."

It is clear from s.16 that an essential function which an information is supposed to perform is to fairly inform the defendant of the substance of the offence with which he is charged. This is necessary to enable the defendant to prepare and present his defence. But that is not the only function of an information. At common law, the information must also fairly inform the Court in which it is laid of the nature of the offence charged.

Section 16(1) of the Criminal Procedure Act 1972 is identical in terms to s.17 of the Summary Proceedings Act 1957 (NZ). In the decision of the New Zealand Court of Appeal in Police v Wyatt [1966] NZPoliceLawRp 10; [1966] NZLR 1118, McCarthy J when dealing with s.17 of the Summary Proceedings Act 1957 (NZ) said at p. 1133:

"Obviously the degree of particularity needed to inform a person adequately of the substance of a charge must vary according to the nature of the offence. I point out that it is the substance, the essence or pith, of the charge which must be revealed by the particulars, not the details relied upon to establish the charge. It will, I think, be readily apparent that in some cases only a few particulars will be necessary to convey the substance. In others, especially where the offence is a complex one...more will be required."

In Asquith v Wilkinson (1983) 1 CRNZ 19, Barker J summarised the position with regard to the requirement for particulars in s.17 of the Summary Proceedings Act 1957 (NZ) by saying at p.21:

"The effect of s.17 has been discussed in a number of cases by the Court of Appeal: Police v Wyatt [1966] NZPoliceLawRp 10; [1966] NZLR 1118, Ford v Police [1961] NZLR 949, and Udy v Police [1963] NZPoliceLawRp 17; [1964] NZLR 235, 239. The authorities disclose that the degree of particularity required must vary according to the nature of the offence. There is no hard and fast rule: one must look at the essence of the charge specified, not the details relied upon to establish the charge. In some cases, only a few particulars will be necessary to convey the substance. In more complex cases, more particulars will be required."

Section 17 of the Criminal Procedure Act 1972, which is the next relevant provision is similar in terms to the proviso to s.331 of the Crimes Act 1961 (NZ) and it provides:

"The Court may, before ruling upon the sufficiency of any information, and at any time if satisfied that it is necessary for a fair trial, order that further particulars in writing be furnished by the informant or prosecutor."

It is clear that s.17 gives the Court power to order an informant or prosecutor to furnish further particulars in relation to an information before ruling on the sufficiency of an information or where that is necessary for a fair trial. Apart from statute, the Court also has such power at common law: see Police v Wyatt [1966] NZPoliceLawRp 10; [1966] NZLR 1118 at p. 1132. As to the exercise of the Court’s power to order further particulars, Turner J said in Police v Wyatt (supra) at p.1131:

"It should be made clear, however, if it is not already perfectly clear, that in any case in which a defendant can reasonably claim that the justice of his own case requires any more, in the way of particulars, than has been furnished in the information, such particulars should readily be ordered."

At p.1134, McCarthy J said:

"[All] this does not mean that when a person charged is left in doubt as to what really is the allegation against him, he is not entitled to further details. If he is embarrassed, he is entitled to an order for those necessary to inform him adequately; and I would expect that Magistrates will freely order such particulars. A refusal by a Magistrate to order additional particulars, when the justice of the case requires them, would, in my mind be reviewable on appeal."

The third relevant provision is s.18 of the Criminal Procedure Act 1972 which is identical in terms to s. 342 of the Crimes Act 1961 (NZ) except that s.18 refers to an "information" whereas its New Zealand counterpart refers to an "indictment". Section 18 provides:

"(1) No objection to an information shall be taken by way of demurrer, but if an information does not state in substance a crime the prosecutor or the defendant may move the Court to amend it, or the accused may move the Court to quash it or in arrest of judgment, as provided in this section.

(2) If the motion is made before the defendant pleads, the Court shall in its discretion either quash the information or amend it.

(3) If the defect in the information appears to the Court during the trial the Court may if it thinks fit amend it, or may in its discretion quash the information or leave the objection to be taken in arrest of judgment."

It is clear that s.18 applies only to an information that "does not state in substance a crime." In Adams on Criminal Law (1992) at para CA342.05, the learned authors state that the primary purpose of the said s.342 of the Crimes Act 1961 (NZ) is to prevent persons from being tried or sentenced for acts which, even if proved, are not in law crimes. An example given by the learned authors of a case where an indictment was quashed for not stating in substance a crime is Mackay v R [1972] NZLR 694 where the offences with which the defendant was charged were no longer punishable in law. On the other hand, an example of an information disclosing no offence which can be amended instead of being quashed was explained in Broome v Chenoweth (1946) 73 CLR 583 where Dixon J said at p.601:

"Whether an information disclosing no offence can be amended has been the subject of some difference of judicial opinion. Some Victorian cases will be found discussed by Cussen J in Knox v Bible [1907] ArgusLawRp 61; (1907) VLR 485 at pp.498-500, and the matter is very fully examined by Clark J in Davies v Andrews (1930) 25 Tas, L.R 84 at pp.91-110, where cases from other jurisdictions are collected. Probably it is necessary to deal with the question as a matter of degree and not by a firmly logical distinction. An offence may be clearly indicated in an information, but, in its statement, there may be some slip or clumsiness, which upon a strict analysis results in an ingredient in the offence being the subject of no proper averment. Logically it may be said in such a case that no offence is disclosed and yet it would seem to be a fit case for amendment, if justice is not to be defeated. By contrast, at the other extreme, an information may contain nothing which can identify the charge with any offence known to the law. Such a case may not be covered by the power of amendment."

The last relevant provision is s.170 of the Criminal Procedure Act 1972 which is identical in terms to s.204 of the Summary Proceedings Act 1957 (NZ). It provides:

"No information, complaint, summons, conviction, sentence, order, bond, warrant, or other document, and no process or proceeding shall be quashed, set aside, or held invalid by any Court by reason only of any defect, irregularity, omission, or want of form unless the Court is satisfied that there has been a miscarriage of justice."

On the basis of the New Zealand cases which have considered s.204 of the Summary Proceedings Act 1957 (NZ), I am of the view that if an information is defective, but the defect is not sufficient to make the information a nullity, s.170 of the Criminal Procedure Act 1972 would apply to rescue it from invalidity unless there has been a miscarriage of justice. There will be a miscarriage of justice if the defect has caused the defendant significant prejudice or has rendered the information an abuse of process: R v McColl [1999] NZCA 131; (1999) 17 CRNZ 136 at p.143. The onus of showing a miscarriage of justice lies on the person raising such miscarriage and the standard of proof is on the balance of probabilities. If, however, the defect is so serious so as to result in a nullity, then s.170 will not apply to rescue the information from invalidity: Police v Thomas [1976] NZCA 41; [1977] 1 NZLR 109, 121, which was concerned with the validity of a notice to prosecute; Mathieson v Allan [1979] NZHC 69; [1979] 2 NZLR 200, 202, which was concerned with the validity of a summons; R v Sanders (1994) 12 CRNZ 12, 14-15, which was concerned with the validity of a search warrant; and R v McColl [1999] NZCA 131; (1999) 17 CRNZ 136 which was also concerned with the validity of a search warrant.

In Police v Thomas [1976] NZCA 41; [1977] 1 NZLR 109, 121, Cooke J in the New Zealand Court of Appeal said in respect of the validity of a notice to prosecute given to a defendant:

"If a notice considered as a whole is defective, s.204 will apply unless there has been a miscarriage of justice. No doubt s.204 is unavailable if a defect is so serious as to result in what should be stigmatised as a nullity. But nullity or otherwise is apt to be a question of degree: compare Broome v Chenoweth (1946) 73 CLR 583, 601, per Dixon J; New Zealand Institute of Agricultural Science Ine v Ellesmere County [1976] 1 NZLR 630, 636 and the authorities there cited. In practice the questions of miscarriage of justice and nullity will often tend to merge".

In the recent case of R v Sanders (1994) 12 CRNZ 12 where the New Zealand Court of Appeal was concerned with the validity of a search warrant an application for search warrant, Cooke P on behalf of himself and Casey J said at p.15.

"Fisher J has provided a valuable general discussion of ss. 198 and 204. We have no doubt that it will be helpful in the resolution of cases arising under those sections. Shortcomings in procedure and documentation are so various, however, that we have reservations as to how far any formula could be evolved that would provide anything in the nature of an automatic analytical answer to issues under the two sections. In the end it is always a question of the relative seriousness or otherwise of an error. If the error is so serious as to attract the description nullity, s.204will not assist. Inevitably questions of degree and judgment arise." (emphasis mine).

See also the judgment of Fisher J, the third member of the Court, at pp.22-23. In the more recent case of R v McColl (supra), Tipping J, who delivered the judgment of the New Zealand Court of Appeal in that case, referred with approval to the passage I have cited from the judgment of Cooke P and Casey J in R v Sanders (supra) as well as parts of the judgment of Fisher J, and then said at p.143:

"If the defect is such as to nullify the application [for a search warrant], s.204 will not come to the rescue. But if the defect falls short of nullification, the question will be whether there has been a miscarriage of justice. The onus of proving such a miscarriage rests on the proponent and the standard of proof is the balance of probabilities.

A miscarriage will arise if the defect has caused significant prejudice to the person affected, here Mr McColl...There would also be a miscarriage of justice if we were satisfied that the defects rendered the application an abuse of process..."

Discussion

The information in this case does not state in substance a crime. So at first blush s.18 of the Criminal Procedure Act 1972 would apply. However, s.18 (1) provides that where an information does not state in substance a crime, the prosecutor or the defendant may move the Court to amend it, or the defendant may move the Court to quash it. If, as provided in s.18 (2), a motion is made before the defendant pleads, the Court in its discretion may either quash or amend the information. As there was no motion by the defendants/respondents to quash the information on the ground that it does not state in substance a crime, ss.18 (1) and (2) would appear not to apply. It is debatable whether s.18 (3) which gives discretionary power to the Court "during the trial" to amend a defect in an information or to quash it would have applied to what occurred in the District Court. The reason is that it was not argued in this appeal whether the quashing of the information in this case followed a defect which appeared in the information "during the trial" or not. For the purpose of the argument, I would assume that s.18 (3) applied and that the District Court had the discretionary power to amend or quash the information.

Two issues arise for discussion from the exercise by the District Court of its discretionary power to quash the information. The first issue is that the information was quashed under s.18 (2) on a ground that was not raised in the respondents strike out motion or with counsel for the informant/appellant. In consequence, counsel for the appellant did not have the opportunity to address or make submissions on the ground on which the information was quashed. The quashing of an information is a drastic action. As a matter of procedure, if the Court is mindful of quashing an information, the informant or prosecutor should first be given the opportunity to make submissions before such drastic action is taken. That will be natural justice in action. Unfortunately, natural justice has been raised by the appellant as one of the grounds of appeal and not as a ground for judicial review. As I pointed out to counsel for the appellant in the course of submissions, alleged non-compliance with the requirements of natural justice is a traditional common law ground for judicial review. However, there is here no motion for judicial review.

The second issue for discussion is whether the information should have been quashed. This is the central issue in this appeal and it requires consideration of all four provisions, ss.16, 17, 18 and 170 of the Criminal Procedure Act 1972. What gives rise to some difficulty in interpretation is that those provisions are based on the provisions of two different New Zealand statutes instead of one. Sections 16 and 170 are based on corresponding provisions in the Summary Proceedings Act 1957 (NZ) and ss.17 and 18 are based on corresponding provisions of the Crimes Act 1961 (NZ). Notwithstanding the history of these provisions of the Criminal Procedure Act, the Court should seek an interpretation that will make them co-exist in harmony within the Act. In saying this, I have found helpful guidance from the Australian case and New Zealand authorities referred to earlier.

The starting point for any consideration should be s.18 of the Act. The primary defect with the information is that it does not state in substance a crime. Section 18 therefore prima facie applies to it. In the absence of any motion from the defendants/respondents to quash the information for not stating in substance crime, s.18 (1) and s.18(2) would not apply. It is also debatable whether s.18 (3) applies. In the absence of any submissions on s.18( (3), I will assume for the purpose of the appeal that it does apply. The question then is whether the learned District Court Judge in the exercise of his discretion should have amended the information or quash it under s.18.

In my view, if the defect in an information is that it does not state in substance a crime and it is incapable of being amended to disclose a crime, then the information can be quashed under s.18: see Mackay v R [1972] NZLR 694. Such an information will be a nullity. See s.13 which prescribes the form for an information and s.15 which provides that every information shall be for an offence. Being a nullity, s.170 will not apply to save such an information from invalidity: Police v Thomas [1976] NZCA 41; [1977] 1 NZLR 109, 121, per Cooke J; R v Sanders (1994) 12 CRNZ 12, 15 per Cooke P; R v McColl (1999) CRNZ 136, 143 per Tipping J. On the other hand, if an information that does not state in substance a crime is not a nullity and is capable of being amended to disclose a crime, then the question of whether the information should be amended or quashed under s.18 requires consideration of s.170 which provides that no information shall be quashed by reason only of any defect, irregularity, omission or want of form unless there has been a miscarriage of justice. There will be a miscarriage of justice if the defect, irregularity, omission or want of form has caused the defendant significant prejudice or has resulted in an abuse of process: R v McColl (supra) at p.143.

The information in this appeal does not state a crime because of the inclusion in the information of the words "as well as the Court decision in L.C. 2504 P1, P2, P3." It should have been clear and plain to whoever drafted the information that those words were totally unnecessary for the purpose of the information. As a consequence of their inclusion in the information, the information did not disclose a crime. I do understand the apparent displeasure of the District Court Judge with this defect in the information. Be that as it may, the information could have been amended to disclose a crime. This could have been achieved by simply deleting the objectionable words" as well as the court decision on L.C, 2504 P1, P2, P3." Once that was done, the information would have disclosed an offence of contempt for failing to comply with an interim order. That brings me to the next defect in the information which is the absence of adequate particulars in respect of the interim order.

The present information includes particulars as to the time and place of the alleged offence as required by s.16(3). As the alleged offence is for failing to comply with an interim order, it was unnecessary for the information to contain particulars of any person against whom the alleged offence was committed, or a thing in respect of which the alleged offence was committed. This is because contempt is an offence committed against an order or decision of the Court and not against a person. The learned District Court Judge was of the view that there were insufficient particulars in respect of the interim order. He stated that no date is specified for the interim order, the author of the interim order is not identified, the issuing Court is not specified, and it is not specified how the defendants breached the interim order. In my respectful view, it is sufficient for the purpose of an information laid under s.75 (1) (a) of the Land and Title Act 1981 to allege that a defendant failed to comply with an interim order. As for the absence of other particulars, the question is whether further particulars should have been ordered or the information should have been quashed.

Section 16 (1) requires every information to contain such particulars as will fairly inform the defendant of the substance of the offence with which he is charged. Section 17 provides that the Court may at any time if satisfied that it is necessary for a fair trial, order the informant or prosecutor to furnish further particulars. I agree with the District Court Judge that further particulars are clearly required in respect of the interim order so as to fairly inform the defendants of the substance of the offence with which they were charged. The difficulty which has arisen is that the defendants did not apply for any further particulars and the District Court Judge took the view that as there was no application from the defendants for further particulars, it was not appropriate for the Court to fill in what he described as "fundamental and basic defect" in the information by ordering further particulars.

If by the words "fundamental and basic defects in the information" what was intended is that the information is a nullity, then as a question of degree and a matter of judgment I respectfully disagree. In my view, the absence of sufficient particulars in respect of the interim order is not so serious so as to render the information a nullity: R v Sanders (1994) 12 CRNZ 12, 15 per Cooke P. There is also no stated requirement in s.16 or s.17 that an application from the defendant was a necessary precondition to give the Court power to order the informant or prosecutor to furnish further particulars so as to fairly inform the defendants of the substance of the offence under s.16 or to ensure a fair trial under s.17. As the failure to give sufficient particulars in respect of the interim order has not, in my view, made the information a nullity, s.170 which provides that no information shall be quashed by reason only of any defect, irregularity, omission or want of form unless there has been a miscarriage of justice, is applicable to this case. What is to be noted is that there was no application in the District Court from the defendants for further particulars in respect of any matter in the information, including the interim order. Perhaps the reason for this is because it appears from the submissions for the defendants in the District Court that the defendants were already aware of the date of the interim order, its author and the issuing Court. There was also no complaint from the defendants in the District Court that they were inconvenienced, handicapped or embarrassed in the preparation of their defence due to insufficient particulars in respect of the interim order. There was also no complaint of miscarriage of justice by reason of significant prejudice caused to the defendants or abuse of process. It follows that the information should not have been quashed for the stated "fundamental and basic defects."

It also appears that the attitude of the Courts is to order further particulars in respect of an information where justice requires that course to be taken. In Police v Wyatt [1996] NZLR 1118, North P said at pp.1128-1129:

"[It] would seem that Mr Holland, in making his submissions that the informations should be dismissed, must have overlooked for the moment the provisions of s.204 which provides that no information is to be quashed or set aside by reason of any defect or want of form unless the Court is satisfied that there has been a miscarriage of justice. Plainly, if the informations are defective, the proper course is to require the prosecution to give further particulars, and only if the necessary particulars are refused should dismissal be contemplated."

I would also refer to the passages from the judgments of Turner and McCarthy JJ in Police v Waytt at pp. 1131 and 1134 respectively, which have already been cited in this judgment, as providing helpful guidance on the question of further particulars where an information does not contain sufficient particulars so as to fairly inform a defendant of the substance of an offence with which he is being charged.

In conclusion, it is my respectful view that the information should not have been quashed but should have been amended by deleting the words "as well as the Court decision in L.C. 2504 P1, P2, P3." The informant should then be ordered to furnish further particulars to specify the date of the interim order, to identify the author of the interim order, and to specify the issuing Court. It is not an answer for the appellant to say that the respondents were already aware of these particulars. Section 16 (1) is clear that an information must contain such particulars as will fairly inform the defendant of the substance of the offence with which he is charged. So the required particulars must appear in the information.

I will turn now to the cross-appeal by the respondents. One of the four grounds for the motion by the respondents in the District Court to strike out the information was that the failure of the appellants to comply with the requirements of s.74 (3) of the Land and Titles Act 1981 was fatal to the appellant’s private prosecution. The learned District Court Judge rejected all four grounds of the strike out motion including this specific ground. Essentially, the cross-appeal by the respondents is that the District Court Judge erred in rejecting this specific ground which is elaborated in the notice of cross-appeal as follows:-

(a) The appellant is required by s.74 (3) of the Act to file a sealed copy of the order or decision of the Land and Titles Court in the District Court before that order or decision can be enforced.
(b) The failure of the appellant to file a sealed copy of the order or decision of the Land and Title Court he was relying upon was fatal to his contempt prosecution.
(c) The learned District Court Judge should also have quashed the information on this ground.

I am in respectful agreement with the conclusion reached by the learned District Court Judge that this ground of the respondents strike out motion in the District Court should be rejected. What s.74 of the Act reflects is the absence of any power in the Land and Titles Court to enforce its own decisions or orders. The enforcement of such decisions or orders is with the Supreme Court or District Court as the case may be.

Section 74 (1) provides that every decision or order of the Land and Titles Court shall be enforced in the Supreme Court or District Court as the case may be. Section 74 (2) then provides that for the purpose of s.74 (1): (a) every decision or order of the Court shall be deemed a judgment or order of the Supreme Court or District Court as the case may be, and (b) every rule of procedure of the Supreme Court or District Court shall apply with any necessary modification to such decision or order. Section 74 (3), which is the material provision, then provides:

"(3) A sealed copy of the decision or order to be enforced under this section shall be filed in the Supreme Court or District Court" (italics mine)

The relevant information was laid under s.75 which is the offences provision of the Act. It was not laid under s.74. The requirements of s.74 (3) applies only to a decision or order "to be enforced under this section", which would be s.74. The present prosecution was initiated under s.75 which of course is not s.74. So the order to be enforced here by contempt proceedings is an order to be enforced under s.75 and not s.74. There is no requirement for a sealed copy of such an order to be filed with the Supreme Court or District Court.

There is also nothing in s.74 (3) which provides that non-compliance with its requirements will be fatal to an information laid under s.75 (1) (a). With respect to counsel for the respondents, the interpretation he is advocating is not borne out by s.74 (3). In other words, I cannot see from ss. 74 (3) and s.75 (1) (a) an intention on the part of the legislature that before laying an information for contempt under s.75(1) (a), a sealed copy of the decision or order which has not been complied with shall be filed in the District Court and that failure to do so will have the consequence of invalidating the information.

The cross-appeal is therefore dismissed.

Conclusions

1. The appeal is allowed and the information is remitted back to the District Court to be dealt with by a different Judge on the basis explained this judgment.
   
2. The cross appeal by the respondents is dismissed.
   
3. In all the circumstances I have decided not to make an order as to costs against either party. Each party will bear his/their own costs.
   

Before leaving this judgment, the impression I had during the submissions by counsel is that the interim order in question has been overtaken by the Land and Titles Court decision under L.C. 2504 P1, P2, P3 of 10 March 2006 which did not order the defendants to stop the school building as previously ordered in the interim order. This would to be a relevant factor to be taken into consideration in favour of the respondents for sentencing purposes, should the charge of contempt against them be established.

CHIEF JUSTICE