Faoa v. Asifoa

On Imposition of Sanctions for Contempt:

The motion in these consolidated actions by intervenor Lepuapua Stanley Massey Utu, for himself and on behalf of the Utu family ("Utu" or "Utu family"), to impose sanctions against defendant/intervenor Toluao Fetalaiga ("Toluao" or "Toluao family") and Pepe Lam Yeun ("Lam Yeun") for contempt came regularly for hearing on October 2, 1992. Lam Yeun is married to a member of the Toluao family.

The judgment in these consolidated actions was issued and entered on August 6, 1990. As applied to Toluao and the Toluao family, this judgment: (1) enjoined Toluao from further occupation and cultivation of land within the Village-of-A‘oloau survey in evidence (with the exception of an area which is not involved in the present contempt proceedings) and (2) declared that a small parcel of land, approximately 2.076 acres, which is depicted in survey Drawing No. 32-15-89, within a larger tract of land known as "Lago," and within the Village of A‘oloau survey, was the communal land of the Utu family. On August 9, 1990, the judgment was amended to allow certain parties, including Toluao, until September 10, 1990, at 4:00 p.m., to harvest crops belonging to them on land on which they were enjoined from further activities.

After September 10, 1990, Toluao and the Toluao family, principally through Lam Yeun’s acts, continued to occupy and cultivate the declared Utu family land. On April 24, 1991, this Court found Toluao and Lam Yeun in contempt of the Court’s orders in the judgment, as amended. The imposition of sanctions was suspended for 30 days to allow them time for compliance with the Court’s orders. Both Toluao and Lam Yeun were present when they were found in contempt. The proceedings at that hearing were translated into Samoan.

It appears from the testimony at the hearing on the present motion that Toluao and Lam Yeun may have been influenced before, on *19and after April 24, 1991, by faulty legal advice from their counsel or unlawful legal advice from their counsel’s associate, or both, during the period of various post-judgment proceedings, until their present attorney was retained. Nonetheless, they have continued their contemptuous occupation and cultivation of the declared Utu-family land up to and including the day of the hearing on the present motion. In addition, Lam Yeun and his workers on this land have acted in an aggressive manner towards members of the Utu family and on August 23, 1991, threatened physical violence against some of them.

Both Toluao and Lam Yeun have the present ability to comply with Court’s orders with respect to the declared Utu family land as set forth in the Court’s judgment, as amended.

IT IS THEREFORE ORDERED as follows:

1. Toluao is imprisoned for a period of 30 days and is fined in the sum of $5,000.

2. Lam Yeun is imprisoned until the orders with respect to the declared Utu-family land in the Court’s judgment of August 6, 1990, as amended on August 9, 1990, are performed.

IT IS FURTHER ORDERED that execution of the foregoing sentences is stayed on condition that Toluao and Lam Yeun fully comply with the orders with respect to the declared Utu family land in the Court’s judgment of August 6, 1990, as amended on August 9, 1990. Toluao, Lam Yeun and all other members of the Toluao family, and their agents, servants and employees, must immediately remove themselves and hereafter stay off of the declared Utu-family land.

IT IS FURTHER ORDERED that any trees and crops on the declared Utu-family land belonging to Toluao, Lam Yeun or other members of the Toluao family are forfeited to and are now the property of the Utu family.

IT IS FURTHER ORDERED that Toluao and Lam Yeun shall pay, not later than November 5, 1992, directly to Togiola T.A. Tulafono, attorney for Utu and the Utu family, the sum of $500 for attorney’s fees and costs incurred in these contempt proceedings.

IT IS FURTHER ORDERED that this matter is continued to November 6, 1992, at 9:00 a.m., for the purpose of reviewing Toluao’s *20and Lam Yeun’s compliance with the orders of this Court in the judgment of August 6, 1990, as amended on August 9, 1990, and this order on the imposition of sanctions for contempt. Toluao and Lam Yeun are ordered to return to this Court on November 6, 1992, at 9:00 a.m., without further order, notice or subpoena.