Bid by banished matai to revive criminal proceedings quashed

Banished matai from the village of Leulumoega have failed in a bid to revive criminal proceedings they had brought against the village Alii and Faipule.

The matai had questioned the Attorney General’s Office discretion to discontinue criminal proceedings they had previously attempted to instigate via a private prosecution.

Fa’atoafe Saufau Leoli Sanele and Vaitogi Sefo, had asked to file charges of contempt of Court against the Alii and Faipule that is led by former Speaker, Tolofuaivalelei Falemoe Leiataua. 

However the Attorney General’s Office whom is the second respondent in the matter filed a Notice to Discontinue the private prosecution brought by the applicants. 

On 13 March 2018 the applicants filed a notice of application under Article 73(2) of the Constitution in the Supreme Court.

In her decision, Justice Mata Keli Tuatagaloa concluded the Notice of application and supporting affidavit are struck out. 

She ruled that the Attorney General has the discretion under Article 41(2) of the Constitution to discontinue any criminal proceedings. 

“There was no flagrant impropriety in the exercise of the Attorney General’s discretion to discontinue the private prosecution [in the] District Court,” said Justice Tuatagaloa. 

“The private prosecution brought by the Applicants/Informants in the District Courts against the First respondents/defendants is discontinued. 

“The First respondents are discharged as defendants in the prosecution matter against them by the applicants as Informants.”

The banished matai have been ordered to pay costs of $2,500 each to the Alii and Faipule and the Attorney General’s Office.  

The applicants and the Alii and Faipule were parties to a Land and Title Court (L.T.C.) matter in relation to the ‘fa’alupega and faiganuu’ or salutations and traditional honorifics of the village of Leulumoega that resulted in them being banished. 

The L.T.C. decision dated November 2015 says the applicants are ordered to “apologise to the village and perform the usual traditional ways of Leulumoega without any further words which would cause dispute in the village”. 

The decision also noted the Alii and Faipule of Leulumoega is to accept the apology and for the applicants to be accepted back to internal village affairs if the Alii and Faipule are satisfied. 

The applicants claim that immediately after the delivery of L.T.C. decision on November 2015 they sought to meet and apologise to the Alii and Faipule the following day. 

But they were informed by a matai on behalf of the Alii and Faipule that the village of Leulumoega needed to meet first to discuss the process of the apology to be carried out and what is required of the applicant. 

by way of letter the applicants were informed by the village of the conditions they are to comply with or what is required of them carrying out their apology to the village.  

In February 2016 the applicants apologised to the village of Leulumoega through a letter. 

It later wrote to the L.T.C. Registrar seeking their assistance to investigate and charge the Alii and Faipule for contempt of Court – for not accepting their written apology. 

The Attorney General’s Office had submitted that the Notice of Application is not the right procedure but that of Judicial Review.  

It argued that the applicants did not carry out an apology in accordance with the usual customs of the village of Leulumoega as per decision of L.T.C. 

They attempted to apologise by way of letter but that is not in accordance with tradition and customs of the village. 

Furthermore it pointed out the matter of laying a criminal charge of contempt of court against the first respondent was initiated by the applicants on March 2016 with the Registrar of L.T.C. who referred it to the Police for investigation 

The Ministry of Police carried out an investigation and on 1 August 2016 advised the Registrar of L.T.C. by way of letter that there was no evidence of contempt against the Alii and Faipule in relation to the L.T.C. decision.

The Police did not lay any charge of contempt against the first respondent. 

But despite the advice by the Police, the applicants proceeded with a private prosecution against the Alii and Faipule.

The Attorney General who considered all relevant evidence and information to the case confirmed that there is no prospect of a successful prosecution or conviction against first respondent for contempt of Court.

Furthermore, it stated is not in the public interest that the matter be prosecuted therefore the continuation of the private prosecution is a clear abuse of process.

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