IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

MISC 69/05

BETWEEN:

BERNADETTE MARY SAPOLU,
(also known as) TITI SAPOLU
of Malifa, Widow
Applicant

AND:

FEILOAIGA PETERS
of Vaitele, Widow
First Respondent

AND:

MATAI'A LYNN NETZLER
of Motootua, Businesswoman
Second Respondent

Presiding Judge: Justice Slicer

Counsel: S Hazelman for Applicant
T S Toailoa for Respondent

Hearing: 3 June 2010
Judgment: 2 July 2010

JUDGMENT OF SLICER J

1.	On 11 May 2005, Bernadette Titi Sapolu ("Titi Sapolu") sought an order punishing Feiloaiga Peters, the widow of Sione Peters for Contempt of Court in failing to obey an order of Vaai J made on 19 December 2003. The basis of the application was, that in defiance of the order, Feiloaiga Peters has:

1)	Not quit the disputed land

2)	Failed to pay the sum of SAT$7,800.00 awarded as damages by the judgment

A separate application is that a third person Matai'a Lynn Netzler, the Second Defendant has:

3)	Built a house which encroaches onto the land.

2.	The circumstances surrounding the controversy are set out in the original judgment of 19 December 2003 and the subsequent judgment of this Court in Lynn Netzler v Bernadette Sapolu (Titi) dated 3 July 2010, and need no detailed repetition.

3.	The dispute between the parties continued, and on 4 July 2008, Vaai J issued an Interim Injunction against Feiloaiga Peters and Netzler restraining them or their family or agents;

"…from continuing to develop the land at Vaitele belonging to the Applicant."

4.	The evidence supporting the Contempt application was that they had continued to develop the land, removed a fence and erected a fale on the property. The application repeated the pending application of 11 May 2005. It was met with the contention identical to that made in the concurrent proceedings Netzler v Sapolu as set out in the Statement of Claim dated 20 July 2009. The claim was supported by a report dated 16 July 2008 prepared by Maualaivao Piki Tuala, the Manager of Piki Tuala Surveying which stated:

"The enclosed plan shows the location of houses on Parcel 3754 as well as the area of 500m s (square metres) or 19.8 perches for the reclaimed land from the esplanade reserve towards the sea."

"There are two major variations of Lot 14 on Scheme Plan 1794 compared to Parcel 3754 on Plan 5155."

"The width of road frontage of Lot 14 is 40.37m (metres) while Parcel 3794 has a road frontage of 50.37m which is 10m. longer."

"The road frontage of 40.37m commencing from the east boundary going towards the west should finish at the dotted line through the left side of the house as shown on the enclosed plan."

"The area of Lot 14 is 05.4 perches while Parcel 3754 has an area of 20.5 perches which is 15.1 perches more than that of Lot 14."

5.	The affidavit does no more than provide a possible evidentiary basis for the setting aside of a judgment. It has no weight as against a judgment. It provides neither Respondent with any justification for their respective conduct, actions or failures.

TERMS OF THE ORDER

6.	The order of the Chief Justice was clear and unambiguous. The land was to be vacated. Although the proceedings were directed against Sione Peters, now deceased, the order was directed to the land. The widow has willfully disobeyed the order by continued occupation and the claimed permission to allow the Second Respondent to build on that land. Her arguments advanced to this Court maintained a right to disobey the order and/or claimed technical irregularities.

THIRD PARTY

7.	The Second named Respondent had notice and full knowledge of the terms of the injunctive order. In concurrent proceedings Netzler v Sapolu, she successfully argued that she had 'standing' to maintain proceedings seeking to set aside the original judgment and injunctive order. Indeed, in those proceedings, she seeks an award of unjust enrichment compensation for her breach of the order in erecting a building. Here she seeks to adopt the status of an 'unknowing stranger'. She was the person who caused the construction of a building erected in defiance of the order. She acted with knowledge and in willful defiance. She is in contempt of that order.

8.	The Defendants might have an arguable case in relation to the correctness of the boundary of the land. They have no right to disobey an order of this Court, no matter what their opinion. No matter what their title, status, wealth or importance, they have no right to disobey an order made by an instrument of State established by the Constitution. They have no right to interfere with a right obtained by a fellow citizen through judgment. To do so would be to destroy the civil society which they enjoy and derive benefit.

CONCLUSION

9.	The Court finds that the First Defendant was a knowing party to the Contempt of Court by permitting Netzler to erect a fale on the land. The Court finds that the Second Defendant has knowingly committed a Contempt of Court by her erection of a fale on the land in 2005 and maintaining it thereon since that date. Her Contempt is more serious since she constructed the house, benefited from its use and did so before receiving the 2008 opinion.

SANCTIONS

10.	These are civil contempts. The standard of proof required to establish contempt is that of 'one beyond reasonable doubt' (Re Bramblevale Ltd [1970] Ch 128) since a possible consequence is that of imprisonment. A breach of an injunction has penal consequence which includes fine or imprisonment (Polynesian Limited v Samoa Observer Company Limited [1999] WSSC 16 March 1999). The First Respondent has yet to pay the damages awarded in the original judgment and might seek to ignore a pecuniary penalty. Accordingly, non-payment of that penalty will activate a default provision. An identical approach will be taken in relation to the Second Respondent.

STAY OF EXECUTION AND EXTENSION OF TIME

11.	The Court heard an application for the stay of proceedings to file an appeal dated 27 June 2005 in respect of Appeal CA 1/2004. That application was made by the Second Respondent in these contempt proceedings. It will be dealt with, for convenience, in these reasons for judgment. Power to entertain an appeal is one of right or with leave of the Court in accordance with the Judicature Ordinance 1961 section 52. The Ordinance section 56 provides that an appeal to the Court of Appeal shall not operate as stay of execution. That power remains with this Court. A Motion for Stay of Execution and for time to file appeal was made in February 2004. Each motion was dismissed by this Court on 30 November 2004. The First Respondent, in these proceedings did nothing to advance the matter in the Court of Appeal. She has yet to prepare a record which might have advanced her case in that Court. This Court has twice ordered her to pay the Applicant's costs incurred by reason of delay or failure to abide by the requirements imposed by this Court.

12.	There is no merit in the applications and they are dismissed. 

ORDERS

1) Feiloaiga Peters is to pay the sum of $5,000.00 as punishment for Contempt of Court. Such sum is to be paid within thirty (30) days of the date of this Order. In default of payment, the Defendant is to serve one (1) month imprisonment or imprisonment until the fine is paid, whichever is the shorter.

2) Matai'a Lynn Netzler is to pay the sum of $10,000.00 as punishment for Contempt of Court. Such sum is to be paid within thirty (30) days of the date of this Order. In default of payment, the Defendant is to serve two (2) months imprisonment or imprisonment until the fine is paid, whichever is the shorter.

3)	The Respondents are to pay the Applicant's costs of these proceedings. Such costs are to be assessed on an indemnity basis.

4)	The application for a stay of proceedings made by the First Respondent in CA 1/2004 is dismissed.

5)	The application for an extension of time in CA 1/2004 is dismissed.

6)	The First Respondent Feiloaiga Peters is to pay Bernadette Sapolu the Applicant's cost on the proceedings referred to in Orders (4) and (5).

JUSTICE SLICER