3ASR2d

3ASR2d

Memorandum of the Justices;


MEMORANDUM OF THE JUSTICES

High Court of American Samoa

July 8, 1986

__________

Service by publication should be genuinely calculated to give notice of the pendency of a proceeding and of the consequences of failure to appear.

REES, Chief Justice, and MURPHY, Associate Justice:

This is to reiterate and explain the procedures the Court has been following since May 1, 1986, with regard to notice by publication to defendants who cannot be personally served within American Samoa.

A.S.C.A. § 43.0501 provides that in certain kinds of cases notice by publication may be made upon a defendant who cannot be served personally in American Samoa. § 43.0502 specifies how notice by publication is to be made. This section requires three separate acts as elements of service by publication:

(1) Notice shall be published once each month for two consecutive months "in some newspaper or publication of general circulation."

(2) The notice shall also be posted for two months in front of the court house in Fagatogo.

(3) The notice shall also be "mailed by registered United States mail to the defendant at his last known address."

The second and third requirements are straightforward and unambiguous. We particularly note that the requirement of notice by registered mail to the defendant's last known address (even if his current address is unknown) is an absolute requirement of the statute. A court order authorizing notice by publication necessarily refers to notice in the manner required by the statute, of which notice by mail is an essential element. It has never been the practice of this Court--indeed, it is outside the Court's power-to give exemptions from the statutory requirements of § 43.0502. Although the location of the defendant's "last known address" may sometimes be a matter for interpretation- [3ASR2d34] mailing a notice to the current residence of a defendant's family, for instance, may be a better way of complying with the statute than mailing to an address at which the defendant himself lived ten or twenty years ago--the requirement that there be some attempt at notice by mail is clear and absolute.

There is, however, one ambiguity in the statute with regard to which some interpretation is necessary. The statute does not say where the publication by newspaper is to take place, and the practice has been to publish in American Samoa regardless of the whereabouts of the defendant. In the future, a court order authorizing notice by publication should be construed as requiring that such notice be genuinely calculated to reach the defendant. Thus if the defendant is believed to be in Hawaii or Western Samoa, publication should also be in that place. When the whereabouts of the defendant are uncertain but he is known to have relatives or friends in American Samoa, it may be necessary to publish both in American Samoa and the place the defendant is believed to be. Similarly, if the defendant speaks Samoan but does not speak English well, the notice should be published in Samoan.

In specifying procedures to be followed in future cases we do not mean to criticize prior practice. Indeed, § 43.0502 can easily be construed to require publication only in American Samoa. We therefore rely not only on our duty to interpret the statutory law of American Samoa but also on the administrative, supervisory, and rulemaking power of the Chief Justice. See A.S.C.A. § 3.0102, 3.0202. Indeed, the requirement that notice be genuinely calculated to reach the defendant is imposed to conform not only to the apparent purpose of the Fono in enacting the statute, but also to basic notions of due process and fair play. As the United States Supreme Court observed in Mullane v. Central Hanover Trust Company, 339 U.S. 306, "An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." Id. At 314.

These procedures shall be followed not only in cases where service on a nonresident defendant is [3ASR2d35] authorized by § 43.0501, but also in actions for the termination or relinquishment of parental rights, in which an alternative procedure provided by A.S.C.A. § 45.0318 has sometimes been followed. This section authorizes service "by publication or by any other means authorized by the court." In cased involving parental rights it is especially important that absent defendants be afforded a fair chance to be heard, and the Court will therefore authorize publications only in accordance with the above rules.

**********

Oto; National Pacific Ins. Co. v.


NATIONAL PACIFIC INSURANCE COMPANY
and GAU'ULA FAIAIPA'U, Appellants

v.

VA'AI OTO, a minor, by and through her
Guardian ad litem, SIAKI OTO, Appellee

High Court of American Samoa
Appellate Division

AP. No. 33-85

October 31, 1986

__________

Appellate court should not substitute its own judgment of the credibility of witnesses for the judgment of the trial court.

Before REES, Chief Justice, GARDNER*, Acting Associate Justice, KENNEDY**, Acting Associate Justice, TAUANU'U, Chief Associate Judge, and AFUOLA, Associate Judge.

Counsel : For the Appellants, Roy J.D. Hall Jr.
For the Appellees, Roger HazellPer

GARDNER, J.:

Again we face a contention that the evidence before the trial court is insufficient to support the judgment. With conflicting testimony it is rather obvious that the trial court believed the witnesses favoring the appellee and disbelieved those favoring the appellant. This is the prerogative of the trial court which saw and heard the witnesses. We did not. We review on the basis of a written transcript of the testimony.

A written transcript is but a pallid reflection of what actually happened in court. It does not and cannot reflect demeanor, attitude, intonation, expression, inflection or personality. As Judge Jerome Frank said, while writing for the awesome court of Judge Learned Hand, Judge Augustus Hand and himself, a transcript resembles a "pressed [3ASR2d95] flower." Then, in a flight of borrowed rhetoric, he further wrote, "the best and most accurate record is like a dehydrated peach; it has neither the substance nor the flavor of the fruit before it was dried." Broadcast Music Inc. v. Havana Madrid Restaurant Corp., 175 F. 2d 77, 80 (2d Cir. 1949).

Another judicial author of considerably less distinction once wrote, "On the cold record a witness may be clear. Concise, direct, unimpeached, uncontradicted -- but on a face to face evaluation so exude insincerity as to render his credibility factor nil. Another witness may fumble, bumble, be uncertain, unsure, contradict himself and on the basis of a written transcript be hardly worthy of belief. But, one who sees, hears and observes him may be convinced of his honesty, his integrity, his reliability." Meiner v. Ford Motor Company, 17 Cal. App. 3d 127, 140, 94 Cal. Rptr. 702, 711 (1971).

All of this is because at the trial level the judge may use all of his senses in the evaluation of a witness's testimony. He sees the witness. He hears the witness. He can, if he wishes, reach out and touch him. If he gets close enough he may even smell him and, given enough stress, might even bite him. But in the reviewing court all we have is a sterile page of questions and answers. To the trial judge a witness is alive 00 he is a living, breathing, perspiring fellow human being. To us he is a shadow, reduced to an impersonal 8-1/2 x 11 page of transcript.

Here, if the evidence of the children involved is to be believed, and the trial judge did, a four year old child (who could hardly be guilty of contributory negligence in any degree) was struck by a vehicle which was on the wrong side of the road. The driver did not testify but her father, who was riding in the vehicle did and he testified to another version. This the trial court did not accept and that, to coin a phrase is that.

Appellant also attacks the award of $45,000. That sum seems modest enough for a mangled foot resulting in surgery with an ugly scar resulting. The child's toes have become contracted as a result of the child's growth combined with the inelasticity of the scarring process. Future surgery would improve the foot but would create a grafting scar on the other leg. The doctor estimated a 40% permanent partial disability to [3ASR2d96] the foot or a 15% disability to the limb. Need more be said? Judgment affirmed.

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* Honorable Robert Gardner, Chief Justice Emeritus, High Court of American Samoa, serving by designation of the Secretary of the Interior.

** Honorable Anthony M. Kennedy, Judge, United States Court of Appeals for the Ninth Circuit, serving by designation of the Secretary of the Interior.

Oto v. National Pacific Ins. Co.,


VA'AI OTO, a minor, by and through
her Guardian ad litem, SIAKI OTO, Plaintiff

v.

NATIONAL PACIFIC INSURANCE CO. LTD., and
GAU'ULA FAIAIPA'U, Defendants.

High Court of American Samoa
Trial Division

CA. No. 86-82

November 26, 1986

__________

Court's statutory responsibility to supervise litigation involving minors imposes a duty on the court to exercise its own best judgment on the fairness of attorney fee arrangements.

In a personal injury action on behalf of a minor, court would not approve a contingency fee larger than one-third of the total amount recovered.

Before REES, Chief Justice, Presiding, AFUOLA, Associate Judge and VAIVAO, Associate Judge.

Counsel: For the Plaintiff, Roger Hazell

Counsel in this case has filed a "motion to cash C.D." which incidentally seeks to the Court's approval for a contingency fee of 40% of the award, plus reimbursement of all expenses borne by the attorney.

The Court has the statutory responsibility to supervise all lawsuits involving minors. This is the first time the contingency fee contract has been presented for the Court's approval, and we feel that a total fee of one-third of the amount recovered is the absolute maximum we can approve.

We do not intend to imply any disapproval of the conduct of the attorney or the guarding in this case. Rather, in approving fees to be paid by minors the Court must exercise its own best judgment, recognizing that reasonable people may disagree on such questions.

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Star-Kist Samoa, Inc. v. The Conquest,


STAR-KIST SAMOA, INC. and STAR-KIST FOODS, INC., Appelants

v.

THE M/V CONQUEST and SECURITY PACIFIC NATIONAL BANK, Appellees

High Court of American Samoa
Appellate Division

AP. No. 13-85

June 25, 1986

__________

High Court of American Samoa is not a "district Court of the United States" within meaning of provision of the Ship Mortgage Act granting exclusive jurisdiction to preferred ship mortgages. 46 U.S.C. § 951.

Before MURPHY, Associate Justice, KING*, Acting Associate Justice, HEEN**, Acting Associate Justice, AFUOLA, Associate Judge, and VAIVAO, Associate Judge.

Counsel: For the Appellants, Talalelei Tulafono
For Appellee Security Pacific, Roy J.D. Hall, Jr.

This case obliges us once again to define the jurisdiction of the High Court of American Samoa, and again, although we feel constrained to rule as we do, we are not happy with the result. At issue is a provision of the Ship Mortgage Act of 1920, 46 U.S.C. §§ 911-984 (1982), concerning foreclosure of preferred ship mortgages. Title 46, § 951 of the United States Code provides:

Upon the default of any term or condition of the mortgage, [a preferred ship mortgage lien] may be enforced by the mortgagee by suit in rem in admiralty. Original jurisdiction of all such suits is granted to the district courts of the United States exclusively.

The primary question facing this Court is whether the High Court of American Samoa has jurisdiction under the Ship Mortgage Act to entertain appellee's foreclosure action. [3ASR2d26]

I. Factual Background

On May 19, 1981 Conquest Fishing Corp. (Conquest), owner of the M/V Conquest of Seattle, Washington, borrowed $1,600,000 from Security Pacific National Bank of California (SPNB). Conquest properly executed and delivered to SPNB a promissory note, secured by a First Preferred Ship Mortgage executed in accordance with 46 U.S.C. § 922, and recorded by the United States Coast Guard at Long Beach, California. Conquest defaulted, and SPNB has received no payments on the note. SPNB filed an admiralty in rem action in the High Court of American Samoa to foreclose its preferred ship mortgage, and Star-Kist intervened claiming preferred maritime liens for various alleged payments for crew wages and expenses.

On December 5, 1984, the trial court denied plaintiff-appellee SPNB's motion for summary judgment, holding that the court had no jurisdiction to enforce SPNB's preferred ship mortgage, because 46 U.S.C. § 1951 grants United States District Courts exclusive jurisdiction to foreclose on such mortgages, and the Trial Division of the High Court of American Samoa is not a United States District Court. On January 10, 1985, however, on plaintiff's motion for reconsideration, the trial court reversed its original ruling. The court, per Chief Justice Robert Gardner, held instead that the trial court did have jurisdiction to entertain plaintiff's foreclosure action, that plaintiff had a valid preferred ship mortgage on the M/V Conquest in the amount of $1,600,000 plus interest, costs, and attorney fees, and that the mortgage could be foreclosed under 46 U.S.C. § 951.

The matter went to trial on February 5, 1985, and the trial court concluded that the bank had a valid first preferred mortgage under the Ship Mortgage Act, which mortgage constituted a lien on the ship and took priority over all other claims against the ship except preferred maritime liens. The court further found that appellants Star-Kist were entitled to a p referred maritime lien in the amount of $25,065 for crew wages, separation and transportation, and unsecured liens for certain other expenses.

In this appeal, appellants are challenging the jurisdiction of the High Court of American Samoa to foreclose SPNB's preferred ship mortgage. In addition, appellants take issue with the trial[3ASR2d27] court's findings concerning the amounts owed to Star-Kist under their preferred maritime lien.

II. This court lacks jurisdiction to foreclose appellee's ship mortgage.

The issue of this court's jurisdiction is unfortunately clear. Both the statutory language and the precedent's of this court prevent us from entertaining SPNB's foreclosure action.

A. Statutory Construction

The language of § 951 is clear and unambiguous: "Original jurisdiction ... is granted to the district courts of the United States exclusively." It is beyond dispute that the courts of this territory are not article III district courts. In re Complaint of Interocean Ships, Inc., AP No. 32-84, slip op, at 5 (Noc. 129, 1985); The Vessel Pacific Princess v. Trial Division of the High Court of American Samoa,2 A.S.R.2d 21, 23 (1984); Meamaile v. American Samoa, 550 F. Supp. 1227, 1236 (D. Hawaii 1982). Nor has Congress vested our courts with the jurisdiction of a non-article III district court pursuant to the "territorial exception." Northern Pipeline Co. v. Marathon Pipe Line Co., 458 U.S. 50, 64-65 (1982). Rather, the High Court of American Samoa is a territorial court of discrete and limited jurisdiction, created pursuant to articles II and IV of the United Construction, and does not come within the plain meaning of "district courts of the United States."

Absent any clear indication of legislative intent to the contrary, the plain language of § 951 must control its construction. E.g., Ford Motor Credit Co. v. Cenance, 452 U.S. 155, 158 n.3 (1981); Letuli v. Government of American Samoa, 4 A.S.R. 830, 833 (1975). This court has examined the legislative history of the Ship Mortgage Act, and there is no clear evidence that Congress intended the language "district courts" to encompass courts of American Samoa. Appellees are correct in pointing out that the legislative history suggests that Congress was concerned with keeping the foreclosure proceedings uniform. Thus, Congress made jurisdiction exclusive in the federal district courts to prevent states courts from adjudication these foreclosure actions. The legislative history makes no mention of the jurisdiction of American Samoa or other territories. Hearings on H.R. 8873 Before the[3ASR2d28]House Committee on Merchant Marine and Fisheries, 66th Cong., 1st Sess. 95 (1919) (remarks of Mr. Ira A. Campbell, Esq., September 11, 1919); see also Smith, Ship Mortgages, 47 Tul. L. Rev. 608, 611 n. 18 (1973).

Congress has demonstrated that it can integrate American Samoa into the district court system when it intends to do so, and not necessarily by extending the jurisdiction of American Samoa's courts. For example, the Ocean Dumping Act, 33 U.S.C. § 1401(g) and the Marine Mammal Protection Act, 16 U.S.C. § 1362(3) specifically provide that "the term 'district court of the United States' includes ... in the case of American Samoa... the District court of the United States for the District of Hawaii."

Even if Congress simply overlooked American Samoa and other United States territories when it passed the Ship Mortgage Act, this court cannot of its own accord reinterpret § 951 to enlarge the jurisdiction beyond that clearly spelled out in the Act. American Samoa is unique among the American territories because it is the only one that is not within the jurisdiction of a United States District Court. Congress has created District Courts in the Virgin Islands, the Canal Zone, Guam, and the Northern Mariana Islands. Decisions from these courts are appealable to United States Circuit By contrast, decisions from American Samoa are not appealable within the United States judicial system. This is a significant reason why this court should hesitate to increase its jurisdiction without explicit directive from Congress.

B. Precedent

Recent decisions of this court have consistently refused to construe federal statutes granting jurisdiction to United States district courts as granting jurisdiction to the High Court of American Samoa. For example, in The vessel Pacific Princess v. Trial Division of the High Court of American Samoa, 2 A.S.R. 2d 21 (1984), we vacated a Trial Division order for change of venue pursuant to 28 U.S.C. § 1404(a), which provides:

For the convenience of parties and witnesses, in the interest of Justice, a district court may transfer any civil action to any other district or division where it might have been brought.[3ASR2d29]

We held that since the High Court of American Samoa is not a district court, it could not order a change of venue under § 1404(a). We stressed the difference between the courts of American Samoa and those of other territories, which as discussed, have been more completely integrated into the American judicial system.

We faced a similar issue of statutory interpretation in In re Complaint of Interocean Ships, Inc., AP No. 32-84, slip op. (Nov. 19, 1985). The owner of the M/V Ocean Pearl sought a limitation of liability under 46 U.S.C. § 185, which allows a vessel owner to petition a district court of the United States to limit the owner's liability to the value of the ship and to issue an injunction to halt claims in courts of other jurisdictions. We held that since the High Court of American Samoa is not a district court, vessel owners cannot take advantage of § 185 in this court. We held that Interocean Ships could limit its liability in this court under our admiralty jurisdiction conferred by A.S.C.A. § 3.0208(a)(3); however, this court has no power to issue an injunction to stay proceeding in other courts to effectuate the limitation of liability. Only Congress can grant us that power. See also In re Complaint of Interocean Ships, Inc., Ca. No. 43-84, slip op. (Apr. 21, 1986).

In short, precedents of this court preclude our jurisdiction here too. This court is simply not a United States district court. We cannot call ourselves a district court for the purpose of the Ship Mortgage Act, particularly where we have held several times recently that we cannot sua sponte enlarge our jurisdiction by statutory construction.

C. Policy Considerations

Members of this court have consistently bemoaned our judicial "non-entity" status, e.g.,In re Complaint of Interocean Ships, Inc., AP No. 32-84, slip op. (Nov. 19, 1985 ) (Murphy, Acting C.J., concurring); The Vessel Pacific Princess, 2 A.S.R. 2d at 24-25 (Gardner, CJ., concurring), but we find our lack of jurisdiction particularly troublesome in this case. As Chief Justice Gardner so aptly pointed out in his opinion below, policy implications strongly favor our assumption of jurisdiction in § 951 proceedings. [3ASR2d30]

First, the intent of the Ship Mortgage Act was to promote public confidence in ship financing to stimulate investment in the shipping industry. Detroit Trust Co. v. The Thomas Barlum, 293 U.S. 21, 39-40 (1934). Congress reaffirmed this purpose when it passed amendments to the Act in 1954 to provide a remedy for enforcing mortgages on foreign flag vessels. See 1954 U.S. Code Cong. & Ad. News 2451-53. American Samoa's lack of authority to enforce preferred ship mortgages thwarts the purposes of the Act.

Second, as discussed, the legislative history of the Act indicates that the exclusive jurisdiction provision was intended to provide uniform proceedings be removing state jurisdiction over foreclosure actions. Cf., e.g., Coast Engine & Equipment vs. Sea Harvester Inc., 641 F. 2d 723, 728 (9th Cir. 1981) (state procedures have no bearing on in rem admiralty proceedings under § 951 which lie within the exclusive jurisdiction of the federal courts). The legislative history does not suggest that Congress intended to preclude foreign countries or territories from foreclosing on mortgages. Chief Justice Gardner suggests that American Samoa is the only place where preferred ship mortgages cannot be enforced. There are district courts within each of the fifty states, as well as within all United States territories, common wealth, and possessions--except American Samoa, and in foreign countries, courts may often assume jurisdiction under treaties or principles of comity.

Finally, Chief Justice Gardner noted, and we agree, that today's decision may have a severely negative impact on the fishing industry of American Samoa, and thus on our economy generally.

Despite these compelling considerations, where there is no persuasive legislative history to the contrary, this court cannot use arguments of generalized congressional intent, or policy arguments that a differently worded statute would be more fair, to overturn clear statutory language. AFL-CIO v. Donovan, 757 F.2d 264, 268 (5th Cir. 1980), cert. denied, 449 U.S. 1113 (1981). We cannot cloak ourselves with jurisdiction under a federal statue where Congress has not seen fit to give it to us. Perhaps this was a mere oversight on Congress' part; undoubtedly they do not think of the ramifications of each of their pieces of legislation on American Samoa. On the other hand, [3ASR2d31] given the present unique status of the courts of this territory, and the inability of a litigant to take an appeal from these courts, Congress may have known well what it was doing by precluding our jurisdiction under § 951. At any rate, under principles of statutory construction, we must assume Congress intended what it enacted.

An operating principle in public affairs teaches that the best way to get rid of a bad situation is to make it worse. Constrained as we are be statutory language and be precedent, this court only hopes that this latest opinion in the series on our jurisdictional limitations will prompt some action to remedy the situation.

III. The Trial Court's findings on the amounts of the liens are not clearly erroneous.

Appellants Star-Kist appeal from the trial court's ruling denying portions of their claims for preferred maritime liens. They assert that the evidence presented at trial proves that they paid for crew wages and supplies, that the monies went for these purposes, and that they thus acquired a preferred maritime lien, for which they are entitled, under 46 U.S.C. § 953, to preference even over the preferred ship mortgage. The trial court awarded the appellants $553,780, including $25,065 but disapproved $361,096 additional claimed expenses.

After a careful review of the record, this court affirms the ruling of the trial court as not clearly erroneous. We find that there was substantial evidence to support of the liens, particularly given the appellants' inefficient bookkeeping methods.

This case is remanded to the trial court to determine the priority of these liens and to effect a foreclosure of the ship's mortgage under common law admiralty principles.

SO ORDERED.

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* Honorable Samuel P. King, United States District Judge, District of Hawaii, sitting pro tem by designation of Chief Justice Gardner.

** Honorable Walter M. Heen, Associate Justice, Intermediate Court of Appeals, State of Hawaii, sitting pro tem by designation of Chief Justice Gardner.

Sea Encounter; Rainwater v.


PRESTON RAINWATER, Plaintiff

v.

M/V SEA ENCOUNTER, her engines, tackle,
equipment and appurtenances in rem, Defendant.

High Court of American Samoa
Trial Division

CA. No. 96-84

October 39, 1986

__________

The High Court of American Samoa has in rem admiralty jurisdiction. A.S.C.A § 3.0208(a)(3).

The High Court of American Samoa is not a court "of the states" within the meaning of the federal statute denying admiralty jurisdiction to state courts. 28 U.S.C. § 1333.

The filing of a Chapter 11 bankruptcy petition in a United States District Court automatically stays proceedings against the petitioner in the High Court of American Samoa. 11 U.S.C. § 362(a).

The filing of a Chapter 11 bankruptcy petition in a United States District Court prevents the High Court from subsequently obtaining jurisdiction over property of the petitioner. 11 U.S.C. § 362(a).

Before REES, Chief Justice.

Counsel: For the Plaintiff, Frank Swett
For the Defendant, John Ward

The procedural history of this case, so much more voluminous and colorful than might have been suggested by its modest origins, should be of some comfort to those who fear that our society has lost the Dickensian appreciation of litigation as a thing to be done for its own sake. And it may not be over yet.

Preston Rainwater is or was a helicopter pilot who in 1984 attempted to sue the Sea Encounter, a purse seiner which he alleged had engaged him in the search for tunafish and owed him $8,589.76 for his service. His attorney served a summons on the ship's captain's brother on board the ship. Some [3ASR2d88] months later, there having been no answer, the attorney procured a clerk's default judgment (a procedure then permitted under our rules) for the principal amount plus costs. By then the ship was at sea, and efforts to collect on the judgment were unavailing. In July of 1986, however, the Sea Encounter returned to Pago Pago Harbor and Mr. Rainwater's attorney caused police officers to go aboard and seize the ship's motorboat.

After seizing the boat Mr. Rainwater's agents determined that it might not be worth the amount of the judgment. They went aboard again in order to seize the ship's skiff. The Sea Encounter then retained an attorney, who posted a bond in order to secure the release of the ship and its accessories. The attorney also filed a motion to set aside the default judgment on the ground that the vessel had never been properly served with process.

At the hearing it appeared to the Court that this motion must be granted, since our rules provide that a vessel be served not with a summons but by a warrant for the arrest of the vessel. TCRCP Special Provisions, Actions in Rem, Rule C. Rainwater's attorney, however, believed he could find some authority for the validity of the service. The Court announced that if no persuasive authority to that effect were found by 4:00 p.m. on the following day, judgment would be set aside and the case dismissed for want of jurisdiction.

At this point it gets complicated. At 3:40 p.m. on the appointed day Mr. Rainwater's lawyer, instead of coming forward with authority to sustain the earlier service, filed a new complaint along with the documents necessary to arrest the vessel. Learning of this development, the Chief Justice thereupon set aside the earlier judgment and dismissed the original complaint for want of jurisdiction. This action was taken at 4:00 p.m.

Defendant now moves to dismiss the case on several grounds, one of which has entirely to do with the timing of the Chief Justice's dismissal of the original complaint. Since the new complaint and other documents were filed at 3:40 p.m., the Chief Justice's signature twenty minutes later on an order saying "case dismissed for want of jurisdiction" is said to have had the effect of dismissing not only the first complaint but also the second one. [3ASR2d89]

We reject this argument. The first complaint was dismissed on the sole ground that service was not properly effected. A dismissal for want of jurisdiction is always without prejudice to the right of plaintiff to bring the action again if jurisdiction can be obtained. That plaintiff did this at 3:40 rather than at 4:01, and that the clerk happened to give the second complaint the same docket number as the first rather than to designate it a new action, should not preclude the plaintiff from exercising his legal right.

Defendant also moves to dismiss on the ground that the High Court of American Samoa has no in rem admiralty jurisdiction at all. This, he argues, is because 28 U.S.C. § 1333 provides that the district courts of the United States "shall have original jurisdiction, exclusive of the courts of the states," of in rem admiralty actions. Since this Court's Appellate Division held last term in Star-Kist v. The M/V Conquest, App. No. 13-85, that the Ship Mortgage Act of 1920 does not bestow jurisdiction on the High Court of American Samoa, the defendant argues that the general admiralty jurisdiction statute should be similarly construed.

This case and most other in rem admiralty actions are, however, easily distinguishable from actions under the Ship Mortgage Act. The key language int hat statute provides that "original jurisdiction is granted to the district courts of the United States exclusively." 46 U.S.C. § 951. The High Court of American Samoa is not a United States district court, but neither is it a court "of the states" within the meaning of 28 U.S.C. § 1333. Moreover, the Ship Mortgage Act provision bestowed jurisdiction on a class of courts, whereas the general admiralty statute denies jurisdiction to courts that would otherwise have it. The appellate division's decision not to analogize the High Court of American Samoa into the former class hardly supports the argument that the High Court should be analogized into a "state court" in the latter case. It is also worth noting that in Conquest the Appellate Division expressed serious doubts about whether its opinion was in accordance with the intent of Congress, but felt compelled by what it regarded as the clear (albeit possibly accidental) language of the Ship Mortgage Act. In this case there is no such language. Rather, 28 U.S.C. § 1333 said nothing at all about the situation in American Samoa, which has neither state courts nor a federal district court, and left us exactly as we would have been in its absence. [3ASR2d90]

The jurisdiction of the High Court over admiralty suits in rem is expressly granted by A.S.C.A. § 3.0208(a)(3), and has been held consistent with federal law by the only federal court ever to have addressed the question. Meamaile v. American Samoa 550 F. Supp. 1227 (D. Hawaii 1982). If the logic of the Conquest case really did require us to declare a statute enacted by the Fono unconstitutional and a federal court decision erroneous on the ground of a conflict with federal law as speculative as that advanced by counsel, it would be a better argument for the reconsideration of Conquest than for its extensions.

We note also the interesting argument that the High Court has no jurisdiction because Mr. Rainwater is not himself in the territory. He has appeared through his attorney, which is the way in which courts generally secure jurisdiction over plaintiffs.

Finally, however, defendant has submitted evidence that the partnership owning the Sea Encounter has filed for Chapter 11 Bankruptcy, apparently in the Southern District of California. 11 U.S.C. § 362(a) provides that such a filing automatically operates "as a stay, applicable to all entities, of ... the commencement or continuation, including the issuance or employment of process, of a judicial, administrative, or other proceeding against the debtor..." We are unpersuaded by the plaintiff's argument that this statute does not apply to the High Court of American Samoa; even if proceedings in this Court were not "judicial" within the meaning of the statute, then they would presumably be "administrative" and subject to the automatic stay.

If jurisdiction over the Sea Encounter had been obtained prior to the institution of Chapter 11 proceedings, their effect would be merely to stay this action rather than to require its dismissal. (We note the apparently contrary conclusion of the Fifth Circuit in United States v. Barnes, 761 F. 2d 1026 (5th Cir. 1983), but are unable to reconcile this holding with the detailed provisions of 11 U.S.C. § 362(d)-(g), which allow the Chapter 11 court to grant relief from the stay so that the automatically halted proceedings can go forward. If, as the Fifth Circuit believed, the stay deprives courts of jurisdiction, then the halted proceedings could not go forward after the stay we lifted.) In this case, however, the ship [3ASR2d91] was not arrested until after the Chapter 11 petition had been filed. The automatic stay provision does not purport to depend upon the knowledge of other litigants that the Chapter 11 petition has been filed. Since the stay was already in effect at the time the ship was arrested in this case, this Court never obtained jurisdiction over the Sea Encounter.

We note that plaintiff is entitled to proceed in persons against the other defendants named in the caption of the complaint. Since the complaint states no facts suggesting that any of them may be personally liable for the debt, however, the complaint against them is dismissed without prejudice for failure to state a claim on which relief can be granted. Complaint against defendant M/V Sea Encounter dismissed for want of jurisdiction. Complaint against other defendants dismissed for failure to state a claim upon which relief can be granted.

Samoa Products v. Pereira,


SAMOA PRODUCTS, INC., Plaintiff

v.

JOE PEREIRA, Defendant

High Court of American Samoa
Trial Division

CA. No. 29-85

July 28, 1986

__________

When parties clearly intend to make a contract but do not specify some important ter, the court must imply or infer a term from all the circumstances.

When a merchant extended credit in the amount of several thousands of dollars, accepted several part payments and extended further credit, the circumstances suggested that the parties intended the debt to be paid in periodic payments rather than on demand.

In the absence of contractual or other legal basis for the collection of attorney's fees in an action to recover a debt, such fees will not be awarded and should not be included by the plaintiffs in his pleadings as part of the balance on an "open account."

Before REES, Chief Justice, and TAUANU'U, Chief Associate Judge.

Counsel: For the Plaintiff, William Reardon

This is an action on an open account. On February 22, 1985, the Plaintiff brought suit for $3,280.86 alleged to be overdue on the account. The Court heard nothing further from either party until June of 1986, when plaintiff moved for a default judgment. At the default hearing the plaintiff's accountant testified that further payments had been made on the account during 1985 and 1986, bringing the current balance to $1,896.89.

The evidence shows that since March of 1985 the defendant has been making payments on a regular basis. Plaintiff's manager testified that the principal reason for the attempt at securing a judgment at this time was that during 1986[3ASR2d46] plaintiff had been paying at the rate of about $300 every two months rather than $150 every month. Counsel for plaintiff maintains that since no terms of payment were specified, the plaintiff was entitled to repayment of the entire balance within twenty days of demand upon the defendant. If this were true, then the demand letters which plaintiff's accountant testified were sent would be sufficient to entitle plaintiff to a default judgment.

We do not agree, however, that plaintiff was entitled to payment of the entire balance on demand. When parties clearly intend to enter into a contract but do not specify one or more terms of the contract, a court must attempt to infer or imply the missing terms in light of all the circumstances. Among the most important of all the circumstances is the usual practice within the trade or profession in question; even more important are the actions and statements of the parties themselves at or near the time of agreement.

In this case it was clear that the contract was for the sale of goods on credit rather than for cash payment on delivery. Once commercial or consumer credit has been extended, the usual custom among merchants is to expect periodic payments rather than cash payment on demand of an entire balance of several thousands of dollars. Morever, the actual behavior of the parties in the early stages of this contract, which included several part payments and numerous additional extensions of credit, bolsters this presumption. Although during a subsequent period the defendant ceased to make regular payments, he has been making such payments since March of 1985. At the current rate the defendant should pay off the entire balance within a year. The plaintiff's preference for payments of $150 every month rather than $300 every two months, in the absence of any express contractual provision and of any circumstances suggesting that the parties meant to specify monthly rather than bimonthly payments, is insufficient to place the defendant in breach of his contract.

We also note that the documents submitted by plaintiff include debits of $307 in attorney's fees through January of 1986. The contract does not provide for payment by defendant of plaintiff's attorney's fees, and plaintiff argues no other legal basis for an attorney's fee award. Plaintiff's accountant was unsure whether any [3ASR2d47] additional attorney's fees had been charged to defendant's account since February 1, 1986. The court requested plaintiff to provide a complete statement of all credits and debits including those since February 1, but the statement provided ends on February 1 and reflects a balance different than that requested by plaintiff at trial. The court is therefore unable to ascertain what amount is actually owed by the defendant. It is apparently somewhat lower than the amount demanded by plaintiff.

The action is dismissed, without prejudice to the right of plaintiff to file another action if the defendant should stop making substantial periodic payments on the account.

**********

Tuia Suasuai v. Salave'a,


TUIA SUASUAI, et al., Plaintiffs

v.

SALAVE'A SEGIO, Defendant

LT. No. 1360-73

High Court of American Samoa
Land & Titles Division

May 7, 1986

__________

In a civil suit the party with a preponderance of the evidence in his favor ordinarily prevails, and when the evidence does not preponderate in favor of either party the defendant ordinarily prevails.

In an action for the registration of land in American Samoa, in which the party who has attempted to register the land is labeled the "plaintiff" and parties who object are "defendants," defendants do not acquire the right to register the land in their own names simply because the plaintiff has failed to prove his case.

In an action for the registration of land in American Samoa in which no party has proved either title or possession, the action should be dismissed without prejudice to the rights of either party.

Before REES, Chief Justice, TAUANU'U, Chief Associate Judge, AFUOLA, Associate Judge.

Counsel: For the Plaintiff, Utu Siagege R.M.
For the Defendant, Meeuta Atufili Mageo

This case began in 1973 when the Tuia Suasuai family, designated Plaintiff in this proceeding, petitioned the Territorial Registrar for the registration of 2.78 acres of land as its communal property. The Salave'a family filed an objection to the registration, claiming the land as its own. The Territorial Registrar referred the matter to the Land and Titles Division of the High Court, which after lengthy proceedings ordered in 1977 that the land be registered to the Tuia family. The Salave'a family appealed, and in 1981 the Appellate Division ordered a new trial on the ground that it was unable to procure a transcript of the first trial.[3ASR2d2]

The new trial took place on April 4, 1986. Each side presented only one witness. Each witness testified that his family had always owned and cultivated the land, had been paid by the government for the use of the land during World War II, and had continued to cultivate plantations on the land down to the present day. The Court held that neither side had proven its case, and that therefore "Plaintiffs cannot prevail" since "all ties go to the defendant."

Counsel for the Tuia family has moved for a new trial on the ground that the Court misunderstood the testimony of his witnesses. The Court observed that plaintiff's witness "admitted that Defendant family had occupied the land since l947." whereas the witness testified that both families had cultivated parts of the land since 1947 .

It is doubtful whether this misunderstanding, if it was a misunderstanding, was crucial to the holding of the Court on retrial. The actual testimony of plaintiff's witness is fully consistent with the Court's conclusion that neither side, has proven its title to the land. Moreover, counsel has not persuaded the Court that this picture would be altered by a new trial of the case -- much less that some extraordinary factor such as the discovery of important evidence unavailable at the time of trial compels a new trial in the interest of justice. The argument of plaintiff's counsel does, however, suggest the need for a modification or clarification of the Court's order so as to make it more consistent with the Court's conclusions of law and fact.

Finding that neither side had established its title, the Court ordered judgment for the defendant. In an ordinary action brought by a plaintiff seeking to use the power of the Court to deprive a defendant of something in his possession, it makes perfect sense that a "tie" should result in a judgment for the defendant. But in this case there is no proper plaintiff and no proper defendant. Nobody sued anybody for anything. Rather, under the rules of this Court prior to 1981, "the Territorial Registrar simply bundles up the file, forward(s) it to the court and somehow the case is tried." Trial Court Decision, page 1.. The Tuia family was designated "plaintiff" because it attempted to register the land; the Salave'a family was designated "defendant" because it objected. Anyone who objected to a registration of land would have been designated a "defendant" under the then-[3ASR2d3]prevailing rules, no matter how weak his title and without any requirement that he ever have occupied or cultivated any part of the land. Under these circumstances it makes no sense for the "defendant" to be declared the legal owner of the land with the right to register its title on the sole ground that the "plaintiff" did not succeed in establishing its own title. Accordingly, the action should be dismissed without prejudice to the rights of either party.

The Court recognizes that this order might result eventually in yet another trial of the case, albeit perhaps a trial in which there would be "legally cognizable pleadings which at least define the issues." Decision, page 1. It is hoped, however, that the order will instead facilitate the Court's earlier suggestion that "the two senior matais should get together and try to dispose of this matte Fa'a Samoa." Decision, page 2. In the meantime, the Court's 1978 order restraining both families from damaging each other's crops or committing any other acts that will cause strife or problems between the two families remains in force.

Order giving judgment for the Defendant vacated. Action dismissed without prejudice.

**********

Tavai v. Pone;


KALEOPA TAVAl and MEMlBERS OF THE PONE FAMILY, Petitioners

v.

PONE MISIMOA, Respondent

PONE AUELUA, Plaintiff,

v.

KALOLO PU'A, his wife and children;
PATOLO PU'A, his wife and children;
MALAEA PU'A and all her children, .Defendants

MT No.7-84
LT No. 037-85

High Court of American Samoa

Trial Division

May 15, 1986

__________

Where evidence in case involving petition for removal of a matai showed that the matai had served well for twenty-six years and retained the active support of some family members and the affection of almost all, court would not order his removal but would order him to meet with petitioners and make every effort to become reconciled with them.

When senior matai of a family brought action to evict family members from communal land after they had insulted and threatened him, but .family members had formerly rendered service to him for many years and had given their labor and money to build family guest house, court would not order eviction but would order them to show respect for matai and refrain from disrupting peace and harmony of the family and village.

Before REES, Chief Justice, LUALEMAGA. Associate Judge, AFUOLA, Associate Judge, and VAIVAO, Associate Judge.

Counsel: For the Petitioners/Defendants, Asaua Fuimaono [3ASR2d10]
For the Respondent/Plaintiff, Malaetasi Togafau

Kaleopa Tavai and thirty-nine others petitioned the High Court for the removal of the Pone title of from Pone Auelua. The petitioners alleged that they were blood members of the Pone family; that members of the family had quarrelled and that Pone had failed to bring peace to the family; that Pone had himself taken sides against family members contrary to customary procedures; that Pone had failed to attend fa'alavelaves at the family's home village of Fagali'i and other places,. and to perform other duties of a matai; and that Pone had refused to become reconciled with members of the family. Pone Auelua denied these allegations, appending a petition from about a hundred persons claiming to be blood members of the Pone family who opposed his removal, and also brought a separate action seeking the eviction of some of the original petitioners from Pone family land. The two actions were consolidated at trial.

There was conflicting testimony on almost all important points, including whether various people on both sides were really blood members of the Pone family. Certain facts, however, are clear: Pone Misimoa is a good man who has served the family loyally and well during most of the twenty-six years he has held the title. He retains the active support of some family members and the affection of almost all. For some years, however, Pone Misimoa and some other family members have been at odds with the children of Malaea Pu'a.

Although Pone Auelua has expressed doubts about whether the Pu'as are blood members of the Pone family, there was convincing evidence at trial that they are blood members. It is in any case undisputed that they have lived on family land as family members for some years now. They contributed not only their labor but also their money to te building of family guest house, and for many years rendered service not to Pone but to another person. There was evidence that some of the Pu'as had insulted and even threatened Pone and that some members of the family were frightened of them. Nevertheless, even assuming that the Pu'as were entirely to blame at first, it seems to the Court that Pone should have attempted more vigorously to restore peace within his family and [3ASR2d11]to become reconciled with all members of his family.

Accordingly, it is the judgment of the Court that Pone shall not be removed, but shall meet with the petitioners and make every effort to become reconciled with them. It is further judgment of the Court that the Pu'as shall not be evicted from Pone family land, but shall render service to Pone and show him all the respect due him as senior matai of the family in accordance with Samoan custom, and shall refrain from any actions that are disruptive of peace and harmony within the family and the village. It is hereby so ordered.

**********

Talili v. Satele


PETER TALILI, et al., Plaintiffs

v.

SATELE MOMOSEA, et al., Defendants

High Court of American Samoa
Land and Titles Division

LT. No. 18-86

July 14, 1986

__________

In a Samoan land dispute between members of the same family, building a house on the disputed land will cause "great and irreparable injury" within the meaning of a statute regulating injunctive relief, since at the trial on the merits the court might find that the senior matai of the family had an obligation to consult with family members before building the house.

A party should not be allowed to avoid an injunction that would otherwise issue against his simply by doing all the irreparable harm he plans to do with no advance warning to those who will be injured.

Before REES, Chief Justice, Presiding, TAUANU'U, Chief Associate Judge and OLO, Associate Judge.

Counsel: For the Plaintiffs, Charles Alailima
For the Defendants, William Reardon

This case is another installment in a long standing dispute between branches of the Satele family. See, e.g., Satele v. Faga, 2 A.S.R. 26 (1938); Satele Mosegi v. Momosea, L.T. 1544-1975; Momosea v. Talili, L.T. 029-77; Talili v. Foma'i L.T. 72-79; and Momosea Satele v. Talili, L.T. 1984.

On May 29, 1986, the plaintiffs in the instant case requested a temporary restraining order and preliminary and permanent injunctions against defendants, claiming that defendants had that morning caused a bulldozer to destroy standing crops belonging to plaintiffs, including a number of mature breadfruit and coconut trees whose destruction amounted to irreparable harm; that the plaintiffs had no advance warning of these actions; and that without the requested orders the [3ASR2d37] destruction could be expected to continue. The court issued a temporary restraining order and an order to show cause why a preliminary injunction should not issue. On June 3 the Court held a hearing on the order to show cause, and the parties asked for a continuance until June 24. On June 24 the defendants appeared and argued that the preliminary injunction should not issue for several reasons:

1) Defendant Satele is the sa'o of the Satele family, with authority to dispose of family land. He assented to the bulldozing in order to provide a house for his sister.

2) A previous order of this court in a dispute between the same two factions of the Satele family had recognized that once a Satele was chosen he would have the authority to resolve land disputes within the family. This incident was therefore no more than the inevitable outcome of that long standing dispute.

3) Although a sa'o ordinarily must consult with the family before ordering major disruptions in settled patterns of family land use, prior decisions of this court have recognized that this land (Tomea or To'omea) is for the benefit of the Pili branch of the Satele family. Satele v. Faga, 2 A.S.R. 26 (1938); and Satele Mosegi v. Momosea, L.T. 1544-1975. Since the plaintiffs are not members of the Pili branch of the family, Satele had no obligation to consult with them before disposing of the land.

4) In any case, plaintiffs have been occupying more and mor family land, without consultation with the sa'o and in violation of the 1984 court order.

5) Finally, even if plaintiffs would otherwise be entitled to a preliminary injunction, they are no longer entitled to one with reference to the land that has already been cleared. The "irreparable harm," if any, has already occurred with the destruction of the trees. If defendants build a house on the cleared land and are found to have done so wrongfully, they can be ordered to take down the house. Therefore the building of a house will not amount to irreparable harm, and an injunction would be improper.

The first four of these issues are best resolved after a trial at which both parties have a [3ASR2d38] chance to muster all their evidence and all their arguments. Whether a sa'o has a duty to consult with family members who are occupying a certain piece of land, but who are not members of the branch of the family to whom the benefit of the land has been dedicated by a prior court decision, involves several difficult questions of law and custom. Since it is quiet possible that either side could prevail in litigation over such questions, we would ordinarily enjoin all parties from taking any actions to change the status quo with regard to the land pending the outcome of the litigation.

The defendants' fifth assertion, however, raises an interesting and troubling question. To deny the injunction would be to hold that parties can avoid injunctions that would otherwise issue against them simply by doing all the irreparable harm they plan to do with no advance warning to those who will be injured. Such a holding would be disturbing if only because of the incentive effect it might have on parties to future land disputes. Yet A.S.C.A § 43.1301(j)(2) clearly requires that "great or irreparable injury will result to the applicant before a full and final trial can be fairly held" as a prerequisite to a preliminary injunction. The obvious import of the words is that the injury must be such as can be avoided by the injunction.

Part of the answer to this dilemma is found in the particular nature of the right being asserted by plaintiffs. It is quite possible that the Court could ultimately find that Satele does have the right to dispose of family land in whatever way he believes to be in the best interest of the family, but only after thorough consultation with all affected members of the family. In this case whether a house had been built in the meantime on the disputed land could have a profound and lasting effect on the plaintiffs, since it is presumably more likely that family discussions would result in forbearance to build a house on the land than in agreement to tear down a house already built. Insofar as it would dramatically alter their chances for achieving the outcome they desire in such family discussions as might take place after the trial, the further development of the land would therefore cause great and irreparable injury to the plaintiffs.

In apparent recognition of the unusual nature of the interests often being asserted in Samoan [3ASR2d39] land disputes, the Fono has provided that in such disputes a Justice of the High Court may make such "preliminary orders as to him seem just to restrain any Samoans from ... exercising any right or doing any act, matter, or thing concerning or affection any Samoan land" pending the outcome of the litigation, without requiring that any specific irreparable harm be shown. A.S.C.A § 43.0303.

We therefore grant the preliminary injunction as requested. All parties are enjoined from doing any act on or affection the land To'omea, except that all parties may continue to cultivate and otherwise use areas already being cultivated and used by them prior to the onset of this litigation. No new kinds of cultivation or other use, and in particular no further development of the cleared land, are permitted pending the final outcome of this litigation.

**********

Taito; Sialega v.


SIALEGA FAMILY, Plaintiffs

v.

TAITO FAMILY, Defendants

High Court of American Samoa
Trial Division

LT. No. 18-85

October 23, 1986

__________

A tract of land located on the outskirts of a village, which has come to be regarded as part of that village, may still be the communal land of a family from a neighboring village that has long occupied the land.

A family which has occupied a tract of land for a t least thirty years, and which has on many occasions acted as the owner of the land in ways that were utterly inconsistent with the claim of another family, has acquired the land by adverse possession even if it had not done so by original occupancy. A.S.C A § 37.0120

Damages should not be awarded for mental anguish, ridicule, and embarrassment caused by one family having claimed to own land that was actually owned by another.

Before REES, Chief Justice, TAUANU'U, Chief Associate Judge, and AFUOLA, Associate Judge.

Counsel: For the Plaintiffs, Aviata Fa'alevao
For the Defendants, Asaua Fuimaono

At the second hearing of this case the Sialega family produced witnesses who reiterated the family history to the effect that the Taitos had first came to Oneoneloa as guests of the Sialega family. This was again denied by the Taito witnesses.

The Court also heard the testimony of Taito Tauaiga, the senior matai of the Taito family, who had not been present at the first hearing. He testified that he had lived on Oneoneloa as a child for several years beginning in around 1926, and named the members of his family who had occupied Oneoneloa continuously since that time. [3ASR2d79]

Each side presented evidence concerning Laumau Moe'olo, who appeared at the first hearing to have been the principal occupant of the land for many years. The Sialegas advanced the theory that Laumau was a lesser matai of the Sialega family with nor formal relationship to the Taitos. This theory appears to have been something of an after thought; the evidence for it consisted primarily of the fact that Laumau is a matai title of Nu'uuli whereas the Taitos are a family of Faganeanea. Laumau Moe'olo was not a member of the Sialega family by blood or by marriage, but the Sialegas claimed to have made him a matai of their family on account of his loyal service. In the first hearing, however, he appeared principally as a Taito relation about whom nobody seemed to have much information. His "service" with regard to Oneoneloa seems to have consisted largely in peopling it the Taitos.

The Court is unanimous in believing the testimony of High Chief Taito to be the most credible and consistent explanation of this matter. The Laumau title was held by his older brother, Laumau Taufase'e, prior to 1944. In that year Taufase'e was selected to hold the Taito title. He moved to Faganeanea and bestowed the Laumau title on Moe'olo, a native of Manu'a who was married to his first cousin Pupa. Witnesses for both sides testified that Laumau Moe'olo occupied Oneoneloa, as well as certain other land in Nu'uuli associated with the Laumau title, during most of the period from 1944 until his death in the early 1980s. Like his predecessor Taufase'e, he apparently regarded himself and was regarded as a Taito and not as a Sialega. High Chief Taito attended the funeral of Laumau Moe'olo in California and testified that no Sialega family members were present. The funeral of Pupa in Nu'uuli was also a Taito family affair. Although Laumau may originally been an independent Nu'uuli family, the title seems to have become closely associated with the Taito family. Similarly, the Taito family originated in Faganeanea and remains formally a Faganeanea family, but the Taito titleholders for most of this century have had their roots in Nu'uuli and many Taito family members reside in Nu'uuli.

Regardless of the formal relationship between the Laumau and Taito titles, we are satisfied that the Taitos have occupied Oneoneloa since the early part of this century and have believed themselves to be occupying it in their own right. Moreover, testimony at the second hearing corroborated the[3ASR2d80] evidence at the first hearing to the effect that during at least thirty years prior to the early 1980s the Taito family had on many occasions acted as owners of the land in ways that were utterly inconsistent with the claim of the Sialegas. By the time the Sialegas asserted or reasserted their ownership of the land -- in an incident leading up to a meeting or meetings at the Office of Samoan Affairs about which eyewitness accounts diverged wildly -- the Taitos would already have acquired the land by adverse possession even if they had not done so by right of original occupancy.

The defendants have filed a counterclaim, demanding compensation for the money the government would have paid if the removal of rocks and dirt from the land had not been interrupted by this lawsuit, for damage to the defendants' crops that was caused by the government operations, and "for mental anguish ridicule and embarrassment suffered due to plaintiff's actions in claiming land which has always been known as defendant Taitos land from time immemorial."

The Court is unaware of any case in American Samoa or anywhere else in which a litigant had been awarded damages for mental anguish at having somebody else claim to own his land, and does not wish to have the distinction of being the first court to make such an award. Nor can the Court calculate the actual economic loss, if any, to the defendants as a result of the interference with their contract until it can be ascertained whether the government is willing to resume its operations under the contract. Judgment on the counterclaim is therefore deferred in order to allow the Taitos to resume negotiations with the government and to claim damages, if any, after the conclusion of such negotiations.

Complaint dismissed; judgment on counterclaim deferred.

**********

Taito; Sialega v.


SIALEGA FAMILY by PAEPAETELE IELUA, Plaintiffs,

v.

TAITO TUI, Defendant.

High Court of American Samoa
Land and Titles Division

LT. No. 18-85

July 22, 1986

__________

That no member of a family occupying a tract of land has ever rendered service to senior matai of another family is evidence tending to show that the family occupying the land was not occupying it as tenants or permittees of the other family.

That matai of family occupying a tract of land asserted ownership in legal documents required by law to be conspicuously posted and publicly recorded, and that no one objected to such assertions, is evidence tending to show that the family was occupying the land in its own right but is not dispositive of title.

Since many Samoan families allow other families to live on their land, "hostile" possession within the meaning of territorial statute allowing acquisition of land by adverse possession must be proved by evidence of acts unequivocally inconsistent with the ownership of the land by another family. A.S.C.A 37.0120.

Before REES, Chief Justice, AFUOLA, Associate Judge, and VAIVAO, Associate Judge.

Counsel: For the Plaintiff, Aviata Fa'alevao
For the Defendant, Asaua Fuimaono

This is a case such as often arises when land long given over a plantations and family dwelling places begins to be converted to other and possibly more lucrative uses. It also presents a difficult instance of the need to reconcile certain features of Anglo-American property law, first introduced by the territorial administration and the courts but later enacted into statute by the Fono, with the Samoan customary law that is the principal source of property rights in American Samoa. [3ASR2d41]

The land called Oneoneloa has long been occupied and cultivated by the Taito family. Plaintiffs, the Sialega family, claim that Oneoneloa is one part of their tract of land called Avau and that the ancestors of the Taitos settled there by permission of an ancestor of the Sialegas. The Taitos claim that their ancestors cleared Oneoneloa from virgin bush on their own initiative and have always held it in their own name. In any case, the families apparently lived side by side more or less peacefully until 1985, when the Taitos concluded an agreement with the American Samoa Government by which the government would purchase and remove rocks and dirt from Oneoneloa. The Sialegas sued for damages, preliminary and permanent injunctions, declaratory judgment, attorneys' fees, costs, and such other relief as the court might deem just. The government discontinued its operations on Oneoneloa, and the Taitos brought a counterclaim demanding compensation for interference with their contract and also for mental anguish.

It is difficult to choose between these two fervently held versions of the history of Oneoneloa. There was no specific evidence to contradict the testimony by several witnesses that the Taitos had never in their memories rendered service to the senior matai of the Sialega family, as would have been appropriate had the Taitos been occupying Oneoneloa at the sufferance of the Sialegas. There was, however, testimony to the effect that some elderly members of the Taito family reside to this day in a guest house belonging to the Sialegas and render service to the Sialega family. Nor is it unheard of for a Samoan family to permit guests to reside on family land for long periods of time without rendering service.

There was evidence that on at least two occasions prior to the present dispute, once in 1968 and again in 1982, matais of the Taito family asserted taht Oneoneloa was their family land in legal documents required by law to be conspicuously posted and publicly recorded. The fact that such assertions were made and that neither the Sialega family nor anyone else objected is of some evidentiary value, but is not dispositive of title to the property.

One witness called by the Sialega family, High Chief Lavata'i, testified that his land is bounded [3ASR2d42] on the east by a Sialega property called Gaoteote, (1) but that to the east of Gaotote is land called Onloa belonging to a relative of the Taito family. When pressed by counsel for the plaintiffs, Lavata'i said he could not say for sure whether the people living on Oneoneloa were its owners, but that "since I was born I saw this family live on this land." High Chief Lavata'i is sixty-four years old.

In support of their assertion that the Taito family has always been occupying Oneoneloa as guest of theSialega family, the plaintiffs emphasize that Oneoneloa is considered part of the village of Nu'uuli, whereas the Taito family is a family of Faganeanea. Although it is true that under Samoan custom a family generally owns communal land only in the village with which the family is principally associated, it is important to notice the precise location of this land and the circumstances under which the area was settled. Oneoneloa is on the main road between Nu'uuli and Faganeanea, slightly closer to the center of Nu'uuli but substantially less than a mile from the center of Faganeanea. The adjacent Sialega land called Avau, on the other hand, is slightly closer to the center of Faganeanea than to the Center of Nu'uuli. The undisputed testimony is that either the Sialegas or the Taitos or both cleared all of this land from virgin bush. At that time, to have described Oneoneloa or Avau as being "in" Nu'uuli or Faganeanea would have been just another way of saying that the family which had settled the land was a family of that nearby village. Indeed, as recently as 1982 a building permit procured by Fa'alai Taito from the Department of Public Works and posted at Oneoneloa represented the land as being in Faganeanea, although it is more often regarded as part of Nu'uuli. If either the fa'a Samoa or the twentieth-century mapmaker's felt need for neatness were deemed to require that each village have definite and perfectly contiguous boundaries, the property rights of all families who own land near the borders of villages--the Sialegas' title to Avau no less that the Taitos' title to Oneoneloa--might be diverted at a stroke of the mapmaker's pen. [3ASR2d43]

The uncertainty about the historic title to Oneoneloa might be rendered moot by the previous of A.S.C.A § 37.0120 that "actual, open, notorious, hostile, exclusive and continuous occupancy of real estate for 30 years confers a title thereto by adverse possession, which is sufficient against all." There was testimony in the record to the effect that the Taitos have been living exclusively, continuously, openly, and notoriously on Oneoneloa for at thirty years, and that their occupancy has been hostile to the claim of the Sialegas in that no service has been rendered to the senior matai of the Sialega family. The plaintiffs' failure to rebut this testimony, however, may be explained by the fact that it was apparently offered to corroborate the Taitos' claim to historic ownership rather than to establish a claim by adverse possession.

Although the concept of prescription or adverse possession was developed by Western legal systems to resolve precisely such controversies as this one, we are reluctant to apply it without a more thorough and deliberate exposition of the facts and arguments by both sides. Many Samoan families allow other families to live on their land, and in enacting the adverse possession statute the Fono cannot have intended to punish or deter this traditional form of generosity too severely. If the Taitos originally came to occupy Oneoneloa as guests of the Sialegas, some definite signal to the host family should be necessary to convert the occupancy from "friendly" to "hostile" in order to begin the statutory period of adverse possession.

We therefore defer decision of this case pending another hearing at which counsel for both parties should adduce evidence on the following points:

1) What was the understanding of the parties thirty to forty years ago about the nature of the Taitos' occupancy of Oneoneloa? (We note that direct evidence on this point was in conspicuously short supply at the first hearing. The senior matai of the Taito family, whom we understand to be residing in Hawaii, did not testify. The Sialega family likewise presented little or no direct evidence of the situation during this crucial period. Neither party called as witnesses the elderly members of the Taito family who are said to be residing with the Sialegas). [3ASD2d44]

2) If the Taitos were understood at that time to be guests of the Sialegas, what acts did they subsequently perform that were unequivocally inconsistent with the Sialegas' continued ownership of Oneoneloa?

3) If the Taitos began at some point to act as owners of the land, what acts did the Sialegas perform to give notice of their objection to the Taitos' assertion of ownership?

We are reluctant to require the expenditure of further time and money on this case by the parties and by the Court. In future cases we intend to decide as best we can on the basic of the evidence and arguments presented at the first hearing. In light of the uncertain relationship between the concept of adverse possession and customary Samoan hospitality, however, and in light of the large number of families that could be affected, we defer decision pending plenary consideration of this issue.

1. This land, to the west of Oneoneloa, is referred to by both parties to this litigation as Ote. Both the Sialegas and the Taitos claim to be the owners of Ote. This court expresses no opinion on the question.

Lutali ; Fa`atiliga v.


FA'ATILIGA TAPUVAE, MAFA TUIKA, TU'UTAU P. FANENE, 
TIA PENITUSI, ERIC HOWLAND, LOUISULU LE'I, 
POPOALI'I UOTI, FAIVALE GA'OPO'A, ROBERT KEY, 
PASELIO LEATISUA, and NOFO VAILAAU, for 
themselves, for the AMERICAN SAMOA DEVELOPMENT 
CORPORATION (ASDC), and for the shareholders of ASDC 
similarly situated, Plaintiffs,

v.

A.P. LUTALI as individual, as former Director and 
President of ASDC, and as Governor of American 
Samoa, ENI HUNKIN as individual and as Lieutenant 
Governor of American Samoa, STEVE WATSON as 
individual and as Executive Assistant to the 
Governor, J.R. SCANLAN as individual, as Assistant 
to the Governor
 and as Director of ASDC, 
LEULUMOEGA S. LUTU as individual and as Attorney 
General of American Samoa, JOHN SAMIA as 
individual and as Chairman of the Board of 
Directors of ASDC, FAAUUGA ACHICA as individual 
and as Secretary of ASDC, VERA ANNESLEY as 
individual and as Director of ASDC, FAIIVAE 
A. GALEA'I as individual and as Director of 
ASDC, TUIAFONO MAUTIA as individual and as 
Director of ASDC, SILI K. SATAUA as individual 
and as Director of ASDC, AIGA TASI, Inc., LI'A 
AFUVAI as an officer of Aiga Tasi Inc., and 
DEVELOPMENT BANK OF AMERICAN SAMOA, Defendants

High Court of American Samoa
Trial Division

CA No. 103-86

December 24, 1986

__________

Court would not grant motion to dismiss territorial government as defendant in shareholders' derivative suit on the ground of sovereign immunity where government had created bank, made loans, executed mortgages, acquired stock in corporation, assumed management of the corporation, voted in corporate elections, and undertaken to sell the bank's majority interest in the corporation, since such actions might have given rise to an implicit agreement to be held responsible for breach of obligations thus undertaken. [3ASR2d140]

When an offer for bids to purchase stock shares owned by territorial government is extensively publicized, sale price was substantially higher than book value of shares, and evidence of poor financial performance of corporation suggests that shares might not be worth even their book value, the best evidence of the value of the shares is what they actually brought on the market.

In stockholders' derivative suit, where there was no evidence tending to prove diminution in value of minority stockholders' shares, minority stockholders could no to complain that majority stockholder accepted too low a price for its shares.

Court should not interfere with business judgment of the management of a corporation on matters such as giving directors one free weekend a month at hotel owned by corporation, employing officer of corporation that had purchased an option to become majority shareholder, and letting him examine corporate books.

Corporate management had a fiduciary duty to minority shareholders that precluded forgiveness of debts to corporation owned by associates of majority shareholder without some valid business purpose.

Before REES, Chief Justice, AFUOLA, Associate Judge, and VAIVAO, Associate Judge.

Counsel: For the Plaintiffs, Aviata Fa'alevao
For Defendants ASG et al., Phyllis Coven, Assistant Attorney General, and Moega Lutu, Attorney General
For Defendant Aiga Tasi, Steven Lee and Hartwell Blake, Honolulu, Hawaii, pro hac vice

This case arose out of an effort by the territorial government (A.S.G.) to "privatize" the ownership of the only hotel in American Samoa.

Early in 1985 A.S.G. made a public announcement that it would offer for sale 87,796 shares in the American Samoa Development Corporation (ASDC), the corporation that owns the Rainmaker Hotel. These shares comprise a large majority of the shares in ASDC. They are held in the name of the Development bank of American Samoa, an enterprise established by territorial statute and wholly owned by A.S.G. See A.S.C.A § 28.0101 et seq. Two bids were submitted, and in October [3ASR2d141] 1985 A.S.G. entered into a one-year option contract with Aiga Tasi, Inc., a Texas corporation. According to the option contract Aiga Tasi had the right to purchase the shares for $1 million provided that it also assumed $690,000 in ASDC debts and made a commitment to invest $38 million in improvements to the hotel and related facilities. The agreement was entered into by A.S.G., and the sale of the hotel was later endorsed by the Board of Directors of the Development Bank, whose members are appointed by the Governor with the advice and consent of the Senate.

In July 28, of 1986 eleven persons brought a shareholders' derivative action seeking an injunction against the sale of the shares, as well as other relief including a declaratory judgment that A.S.G. owns no shares in ASDC. Two of the shareholders were dismissed from the action on the ground that they had purchased their shares after most of the events of which they complained had already happened (apparently with the principal purpose of participating in the lawsuit) and therefore had no standing to claim that they had been damaged by these events. The parties then agreed that the suit be dismissed without prejudice, and the remaining nine plaintiffs brought this action. In addition to A.S.G., the Development Bank, the members of the Board of Directors of ASDC, and various government officials, the new action named Aiga Tasi, Inc., and Li'a Afuvai, an Aiga Tasi employee who had been serving without pay as general manager of the hotel, as defendants.

The lawsuit became even more complicated when on October 15, 1986in the midst of extensive discovery and about a month before the scheduled trial date, the option contract expired without Aiga Tasi having purchased the shares. Plaintiffs then amended their complaint, shifting its primary focus from an attempt to enjoin the sale to requests for declaratory relief concerning the ownership of the shares and damages for alleged mismanagement of the hotel during the period surrounding the option contract and the employment of Li'a Afuvai. Various cross-claims and counterclaims ensued. The most noteworthy of these were claims by Aiga Tasi that A.S.G. had breached the option contract by refusing to consumate the sale of the shares and that the plaintiffs had tortiously interfered with the option contract. All claims involving Aiga Tasi were then severed[3ASR2d 142] from the action, and the remainder of the claims finally went to trial on December 9, 1986.

The presentation of the plaintiffs' case took two days, at the conclusion of which all defendants moved to dismiss the action. The Court granted the motion to dismiss, except with regard to certain claims involving an ultra vires personal loan made by ASDC and the forgiveness of debts alleged to be owned ASDC by ASG, an ASG official, and Aiga Tasi. The defendants involved in these transactions then agreed to the entry of a consent judgment against them on these claims. The parties have requested this written opinion.

Although the plaintiffs' amended complaint is a voluminous document alleging many improprieties over the years, the claims on which relief might conceivably have been granted and on which plaintiffs attempted to present some evidence can be summed up as follows:

(1) The plaintiffs claimed that the Development Bank owned no shares in ASDC, and that the four certificates representing 87,769 shares in the name of the Development Bank had been "illegally and/or improperly issued." (At trial the plaintiffs acknowledged that two of the certificates represented shares that were genuinely owned by the Development Bank, but contested the 60,072 shares evidenced by the other two certificates.)

(2) The plaintiffs claimed that the By-Laws of ASDC had not been lawfully enacted, thus calling into question the legality of many corporate acts including the election of the current Board of Directors.

(3) The plaintiffs asserted improprieties in the election at which most of the current Directors were elected.

(4) The plaintiffs asserted that the current directors had been "appointed" by the Governor rather than elected by the shareholders as provided by law and by the ASDC Articles of Incorporation.

(5) The plaintiffs claimed that the Option Agreement with Aiga Tasi was part of the deliberate attempt to sell the hotel for far less than it was worth to an enterprise composed of close associates and supporters of territorial government officials;[3ASR2d143] that the Option Agreement violated certain provisions of the ASDC Articles of Incorporation; and that ASDC had suffered a consequent diminution in value.

(6) Finally, plaintiffs alleged various acts of corporate mismanagement including the unjustified forgiveness of debts to ASDC, a personal loan made by ASDC in violation of its Articles of Incorporation, excessive compensation of directors, and access by defendant. Afuvai to corporate records during his employment by Aiga Tasi.

Defendants introduced other legal issues into the case by way of affirmative defenses. Motions for partial summary judgment and to strike parties were filed a few days before trial urging that plaintiffs were barred by the statute of limitations, estoppel, and laches from denying that the Development Bank owned the ASDC stock; that the individual defendants were not liable in their personal capacities because they had acted in good faith and within the discretionary duties of their offices; and that A.S.G. cannot be sued at all (except in tort in accordance with the provisions of the Government Tort Liability Act, A.S.C.A. § 43.1201 et seq.) because of the doctrine of sovereign immunity.

The statute of limitations, estoppel, laches, and good-faith immunity questions all depended on evidence that was not submitted to the Court prior to the trial, and were therefore deferred until the trial. Our decision on this motion makes it unnecessary to reach those questions. The broader claim by A.S.G. of absolute immunity from any non-tort suits amounts in this case to the assertion that the government created a bank, made loans, took mortgages, acquired stock in a corporation whose other shareholders were private persons, substantially assumed the management of the corporation with its attendant fiduciary duties to those persons, voted on behalf of the bank in corporate elections, and undertook to sell the bank's majority interest in the corporation, all without any implicit agreement to be held responsible for any breach it might commit of the obligations thus undertaken. Although any holding by this Court on the contours of sovereign immunity in the Territory should issue only after plenary briefing and argument in a case in which the issue is crucial, and our decision on the merits on this motion to dismiss makes sovereign immunity [3ASR2d144] irrelevant except as regards the relatively minor instances of mismanagement on which the plaintiffs presented a prima facie case, we hold for the purpose of this motion that the doctrine does not apply.

The crucial issue in this case is whether the Development Bank owns the shares it claims in ASDC. Although the transactions by which the stock was acquired happened only a decade or two ago, prior to the trial neither the Court nor any of the parties had a complete picture of how they occurred. Governor A.P. Lutali, who was one of the original Trustees of ASDC and who was called as a witness by the plaintiffs, testified that the formation of ASDC was the first experience American Samoans had ever had with forming and running a corporation, so that not all of the transactions were handled or documented precisely as would have been done in New York or Washington. As the minutes of some of the corporate meetings introduce into evidence reflect, there seems long to have been an undercurrent of resentment among some shareholders who never understood quite how the bank got its stock and suspected that somebody was pulling a fast one. The situation has been complicated further by a series of fires that destroyed many A.S.G. and Development Bank documents, and by the fact that some of the transactions were handled primarily by former officials of the corporation, the bank, or the government who have left Samoa and are not available as witnesses. Nevertheless, the testimony of Governor Lutali and the exhibits introduced during his testimony do afford a coherent and credible account of how the Development Bank acquired its stock.

The idea behind ASDC was to ensure that development in American Samoa would benefit American Samoans. Stock in the new corporation was therefore sold at $10 per share primarily to A.S.G. employees who paid for it by voluntary payroll deductions. About 1300 people purchased a total of between 20,000 and 30,000 shares. (1) The sum thus [3ASR2d145] raised, however, was not nearly enough to pay for the construction of a hotel. The corporation therefore borrowed $500,000 from the Bank of American Samoa, the predecessor institution of the Development Bank. Subsequently the corporation desired to borrow more money, primarily from federal government agencies which insisted that the obligation to the Bank be discharged before they would lend money to ASDC. On April 16, 1969, therefore, the ASDC Board of Directors voted to authorize the delivery to the Bank of 52,496 shares of ASDC stock and to receive in return the notes representing unpaid principal and interest on the $500,000 loan. It was through similar decisions by the ASDC Board of Directors to capitalize corporate debts that the Development Bank acquired its other three certificates. All of these transactions were proved at trial by documentary and testimonial evidence, and all were within the authority granted the Board of Directors by the ASDC Articles of Incorporation and by applicable statutes.

The plaintiffs put forward two pieces of evidence that might have tended to cast doubt on the validity of two of the stock certificates. First, they attempted to introduce a record of the release of a mortgage securing the $500,000 loan to ASDC. Since the mortgage was released in 1969 and left on the books of the Bank as unpaid until 1971 because of a bookkeeping error. The record of the mortgage release was excluded from evidence because plaintiff's counsel had omitted it from a list of trial exhibits required before trial as a result of a discovery request and subsequent court order. If it had been introduced, however, it would not have helped the plaintiffs' case. In the first place, a mortgage can be released for some other reason than the payment of the underlying debt. More importantly, the minutes of the April 16, 1969 meeting show precisely how the debt was to be paid: by the issuance of the stock certificate. That the certificate was not physically produced until 1971 (perhaps as a replacement for an earlier certificate in the name of the predecessor institution, or perhaps for some other unknown reason) does not contradict the clear documentary evidence of the 1969 transaction.

Similarly, the plaintiffs' argument that the minutes of a later meeting reflect a motion to capitalize $76,030 in debt by issuing the [3ASR2d146] Development Bank 7,603 shares, but not that the motion was ever voted on, would have been unavailing even if the minutes had been admitted into evidence. The certificate for 7,603 shares is prima facie evidence of its own validity; that it was issued and that there is no record of the debt having been paid in any other way strongly suggest that the omission of the words "motion passed" was a clerical oversight.

The overwhelming preponderance of the evidence at the close of plaintiffs' case also favored the defendants on the other issues.

-- There was documentary and testimonial evidence that the By-Laws had been promulgated by the original incorporators soon after the formation of ASDC, and no evidence at all that they had not.

-- With regards to the "appointment" of Directors by the Governor, it is clear from the evidence that what the Governor did was to instruct his assistant to cast the 87,796 votes held by the Development Bank in favor of certain candidates at the shareholders' meeting. This is in accordance with the ASDC By-Laws, which explicitly allow the Governor or his proxy to cast the votes of any agency of ASG. The plaintiffs admitted that the Development Bank was an agency of A.S.G. for the purpose of construing this provision of the By-Laws. The Directors of ASDC were elected by the shareholders; the candidates backed by the majority shareholder won the election.

-- No evidence was presented tending to cast doubt on the fairness of the bidding process for the Option Agreement. The offer for bids was extensively publicized. The sale price of $1,690,000 was substantially higher than the book value of the ASDC shares, which was $877,960. Moreover, it is not even clear that the shares would have brought their book value on the open market, since there was testimony from all sides on the poor financial performance and physical condition of the hotel. Plaintiffs did submit evidence that the hotel was insured for $11.5 million dollars, but this does not contradict the proposition that the value of ASDC's assets might be far less. A fire insurance policy should be for the amount it would cost to rebuild a building. Whoever buys the hotel will have to do a lot of rebuilding after paying the purchase price in order to get it into serviceable condition. In the absence of any evidence casting doubt on the [3ASR2d147] fairness of the bidding process, the best evidence of the value of the shares is what they actually brought on the market. In any case, since the Development Bank does own the shares it is not at all clear that any other shareholder has a legal right to complain about the price the bank chooses to take for them. No evidence was submitted tending to prove any diminution in value of the minority shareholders' stock as a result of the Option Agreement and surrounding events. Although the sale of the shares to Aiga Tasi would have violated certain provisions of the ASDC Articles of Incorporation and By-Laws, it is clear that the parties to the agreement understood that amendments to these provisions would be necessary prior to the sale. The Articles and By-Laws both provide for their own amendment by the Board of Directors of ASDC, so nothing in ASG's agreement to sell its shares in anticipation of such amendments violated any law or any right of minority shareholders.

-- Some of the allegations of corporate mismanagement amount to policy decisions with which it is not a court's business to interfere. The payment to Directors of $200 per meeting and a free weekend at the hotel once a month is an example of such a decision. Similarly, letting Li'a Afuvai work for a hotel without salary, and letting him look at the books of the corporation after his employer Aiga Tasi had already bought an option to buy the majority of the shares, are not decisions with which we would interfere even if we personally believed them to be bad decisions.

-- Three of the incidents about which plaintiffs presented evidence, however, are precisely the sorts of matters on which majority shareholders who control a corporation do have responsibilities to minority shareholders. The forgiveness of a debt to A.S.G., which owned 80% of the shares in the corporation, or to a high A.S.G. official, or to Aiga Tasi at a time when Aiga Tasi seemed about to become majority shareholder, can by seen as a way of paying dividends to the majority but not to the minority. Although the personal loan given by ASDC to a hotel employee did not contain this element of self-dealing, it was forbidden by the Articles of Incorporation.

The only defendants connected in any way with these transactions were A.S.G., Governor Lutali in his official capacity, the ASDC directors in their official capacities, and the President of ASDC (who personally authorized all three transactions) in [3ASR2d148] his official and personal capacities. All claims against all other defendants were dismissed except claims by or against Aiga Tasi, which will be considered at a future hearing. All claims against A.S.G., Lutali, Samia, and the ASDC Directors are dismissed except those connected with the three debt transactions. With regard to these three debt transactions. With regard to these three claims the remaining defendants were given their choice of presenting evidence and argument that the transactions were justified or consenting to declaratory and injunctive relief against these and similar transactions. The defendants chose to agree to the proposed consent judgment.

**********


 

1. There is conflicting evidence on the number or privately held shares outstanding. According to the testimony of the secretary of ASDC, the 87,796 shares owned by the Development Bank may be closer to 70% of the shares than to the 80% that has been widely assumed. It is not necessary to resolve this question in this case.

Lutali; Fa`atiliga v.


FA'ATILIGA TAPUVAE, MAFA TUIKA, TU'UTAU P. FANENE, 
TIA PENITUSI, ERIC HOWLAND, LOUISULU LE'I, 
POPOALI'I UOTI, FAIVALE GA'OPO'A, ROBERT KEY, 
PASELIO LEATISUA, and NOFO VAILAAU, for 
themselves, for the AMERICAN SAMOA DEVELOPMENT 
CORPORATION (ASDC), and for the shareholders of ASDC 
similarly situated, Plaintiffs,

v.

A.P. LUTALI as individuals, as former Director and 
President of ASDC, and as Governor of American 
Samoa, ENI HUNKIN as individual and as Lieutenant 
Governor of American Samoa, STEVE WATSON as 
individual and as Executive Assistant to the 
Governor, J.R. SCANLAN as individual, as Assistant 
to the Governor
 and as Director of ASDC, 
LEULUMOEGA S. LUTU as individual and as Attorney 
General of American Samoa, JOHN SAMIA as 
individual and as Chairman of the Board of 
Directors of ASDC, FAAUUGA ACHICA as individual 
and as Secretary of ASDC, VERA ANNESLEY as 
individual and as Director of ASDC, FAIIVAE
A. GALEA'I as individual and as Director of 
ASDC, TUIAFONO MAUTIA as individual and as 
Director of ASDC, SILI K. SATAUA as individual 
and as Director of ASDC, AIGA TASI, Inc., LI'A 
AFUVAI as an officer of Aiga Tasi Inc., and 
DEVELOPMENT BANK OF AMERICAN SAMOA, Defendants

High Court of American Samoa
Trial Division

CA No. 103-86

December 5, 1986

__________

Only in extraordinary circumstances will a court compel the testimony of the chief executive of the jurisdiction in which the court sits.

Most information available from chief executive of state of territory can be just as easily obtained from lesser officials.

Party may compel testimony from chief executive of state or territory only if it seems absolutely necessary to make out his case and the party can convince the court that there is some chance the testimony will enable him to prevail. [3ASR2d125]

Before being allowed to compel testimony of territorial Governor regarding alleged scheme to dispose of government property for less than its actual value, party must produce other evidence of Governor's personal involvement in such scheme.

Where incumbent Governor was actively involved in affairs of a corporation before he became Governor and is the only available witness with detailed knowledge of events material to litigation involving the corporation, a party may compel his testimony.

Before REES, Chief Justice.

Counsel : For the Plaintiffs, Aviata Fa'alevao
For the Defendants, Phyllis Coven, Assistant Attorney General

Counsel for defendant Governor A.P. Lutali have moved to quash plaintiffs' subpoena of Governor Lutali to testify at the trial.

Only in extraordinary circumstances will a court compel the testimony of the chief executive of the jurisdiction in which the court sits. The cases cited by counsel for the Governor, holding that chief executives and other administrative officials may not be questioned with regard to their quasi-judicial review of administrative procedures, are one instance in which the executive immunity from such compulsion is virtually absolute. In other cases, more general concerns having to do with the respect due to the leader of a co-ordinate branch of government, the fact that in most instances the information available from the chief executive can be just as easily obtained from lesser officials, and the recognition that the chief executive is an extraordinarily busy person will make a court most reluctant to allow a party to compel his testimony. On these grounds this Court recently granted without a hearing a motion to quash a scheduled second deposition of Governor Lutali in this case. On the other hand, concern for the right of a litigant to his day in court prevents executive immunity from being absolute. Although the rule varies from jurisdiction to jurisdiction and from case to case, a fair summary is that a party may compel such testimony only if it seems absolutely necessary to make out his case and the party can convince the court that there is at least some chance that the testimony will enable him to prevail.[3ASR2d126]

In this case plaintiff has accused Governor Lutali of intimate personal involvement in a scheme to sell the Rainmaker Hotel for far less than its actual value and to turn over the management of the hotel to people who are alleged to have squandered the assets of the hotel in various ways including the forgiveness of debts owed by the Governor's campaign organization. Counsel for the government have characterized these charges as totally unfounded, and at present the Court has seen nothing to substantiate them. If Governor Lutali's actions since assuming office were the only area in which plaintiffs sought to compel his testimony, the Court would be strongly inclined to require that plaintiffs produce other evidence both of the improper activities and of the Governor's personal involvement in them before being allowed to compel his testimony.

In this case, however, a major area in which the Governor's testimony is sought concerns events that happened before he became Governor. It happens that Governor Lutali was one of five directors of the American Samoa Development Corporation during the time when many of the transactions leading up to the government's assertion of ownership of eighty per cent of the shares in the corporation took place. Morever, it appears that at least three of the other four former directors are unavailable to testify by reason of absence from the Territory, and that some of the documentary evidence surrounding the transactions may have been destroyed in a fire. Under these circumstances the denial to plaintiffs of the right to call Governor Lutali as a witness would be manifestly unjust. The Court must therefore reluctantly deny the motion to quash the subpoena.

The Governor will not, however, be required to be present in the courtroom throughout the trial waiting to testify. Counsel for plaintiffs should calculate the approximate time at which they plan to call the Governor to testify and should notify his counsel immediately. If that time is inconvenient the Court will attempt to work around the Governor's schedule. The Court also expects that counsel will observe the high standards of decorum and courtesy required by the Code of Professional Responsibility and by the traditions of the Samoan people.

**********

Louise V; Ralston Purina Co. v.


RALSTON PURINA COMPANY, Plaintiff

v.

M/V LOUISE V., Defendant

A. ROLAND VIRISSIMO, Intervenor

v.

RALSTON PURINA, Defendants in Intervention

High Court of American Samoa
Trial Division

CA No. 78-85

August 4, 1986

__________

One who delegates his affairs to lawyers, accountants, and others, and who signs the documents his own agents have prepared for him, cannot escape liability to a third party by claiming that the documents are not binding on him because he did not read or understand them.

Before REES, Chief Justice, and TAUANU'U, Chief Associate Judge.

Counsel: For the Plaintiff, Roy J.D. Hall, Jr.
For the Intervenor, William Reardon

Intervenor, the president and sole stockholder of Louise V Inc., asserts that the skiff aboard the Louise V is his personal property and therefore cannot be seized with the ship to satisfy a judgment against the vessel.

Even if the court were satisfied that the skiff was Mr. Virissimo's personal property it would not follow that it could not be seized. The Preferred Ship Mortgage purports to cover "any and all additions, improvements, and replacement hereafter made" in or on the ship, specifically including "skiffs." Mr. Virissimo had notice of this provision when he placed the skiff aboard the Louise V, since he had signed the mortgage in his capacity as president of the corporation. [3ASR2d49]

In any case, the court is satisfied that the skiff is the property of Louise V Inc. The original agreement and bill of sale were in the name of Mr. Virissimo. Neither document was ever recorded in the Coast Guard records where the ship's mortgage was registered or elsewhere. (The agreement originally had the handwritten words "Louise V skiff" in a bottom corner of the first page, but this had been covered with correction fluid by the time the intervenor's attorney received it from the intervenor.) The skiff was paid for witha check drawn on Jeanne Lou, Inc., yet another corporation controlled by Mr. Virissimo. In every subsequent document submitted to the court by either party, except those prepared after the onset of the dispute leading to the present litigation, the skiff is treated as an asset of Louise V Inc. Not only was the skiff claimed for tax purposes by Louise V Inc. and not by Mr. Virissimo, but the purchase price of $162,000 was also listed on the books of Louise V Inc. as a debt to Jeanne Lou Inc.

On July 29, 1985, several weeks after suit was filed, one of Mr. Virissimo's accountants wrote that it had quite recently come to his attention "that two power skiffs paid through Jeanne Lou Inc. in December 1982 and February 1983, and put on board the Capt. A.R. and the Louise V., were to be treated as personal loans to you and not loans to each of these two Nevada Corporations." He pointed out that "the books of the three corporations mentioned previously will have to be adjusted and the Federal Income Tax Returns...will have to be amended to reflect this fact." Subsequent documents submitted by the intervenor treat the skiff as the property of Mr. Virissimo rather than that of the corporation.

On the witness stand Mr. Virissimo emphasized that he is a simple fisherman who knows little of taxes and lawyers and has a poor memory for numbers, documents, people, places, and events. He attributed the treatment of the skiff in his records and those of his corporations to the desire of his lawyers and accountants to save him money on taxes, but stressed that they had no authority to deprive him of his property. He admitted signing many of the documents in question, including his own tax returns, but insisted that he had never read any of them.

This line of defense is inadequate. Everyone who turns his affairs over to others intends the[3ASR2d50] delegates to produce good consequences rather than bad ones. Mr. Virissimo quite sensibly did not care which of the entities in his control had title to the skiff so long as he derived maximum benefit from it. Prior to the institution of this litigation his agents had decided that the way to maximize the benefit of the skiff to Mr. Virissimo was for it to belong to Louise V Inc. When suit was filed they had occasion to reconsider the wisdom of this decision. Insofar as the rights of the plaintiff are concerned, however, the intervenor must live with the original decision he allowed the people who conduct his affairs to make for him.

The complaint in intervention is dismissed.

Le`iato; In re Matai Title


AUMOEUALOGO S. SOLI, and VAILA'U SILIGA, Appellants

v.

ETEUATI LE'IATO, Appellee

[In the Matter of Matai Title "LE'IATO" 
in the village of Faga'itua]

High Court of American Samoa
Appellate Division

AP. No. 007-86
AP. No. 008-86

December 22, 1986

__________

Trial court holding that no candidate prevailed on issue of best hereditary right was not substantial error justifying reversal by appellate court, where (1) trial court found that there were "minute distinctions" among candidates' blood relationship to original titleholder, and (2) candidate who prevailed at trial would clearly have had the best hereditary right under traditional rule that hereditary right to title depends on blood relationship to any holder of the title.

Before REES, Chief Justice, MURPHY, Associate Justice, KENNEDY*, Acting Associate Justice, TAGO, Associate Judge, and A'AU, Associate Judge.

Counsel: Appellant Aumoeualogo pro se
For Appellant Siliga, Edwin Gurr
For the Appellee, Tau'ese SuniaPER CURIAM:

Appellants Aumoeualogo Soli and Vailaau Siliga challenge the decision of the Land and Titles Division of the High Court awarding the matai title "Le'iato" to appellee Eteuati Le'iato.

The court rendered its decision after consideration of each of the four criteria set out in A.S.C.A § 1.0409. Although both appellants have put forward strong evidence of their qualifications for this title, we affirm the decision of the High Court.

A court confronted with the necessity of deciding which candidate should succeed to a matai [3ASR2d134] title is required by § 1.0409 to consider: (1) which candidate has the "best hereditary right"; (2) "the wish of a majority or plurality of the clans of the family"; (3) " the forcefulness, character and personality of the candidate and his knowledge of Samoan customs"; and (4) "the value of the holder of the title to the family, village, and country." In this case, the court determined that no one candidate prevailed on the first, second, or third factors. It then determined that appellee Eteuati prevailed on the fourth factor.

On the issue of which candidate had the best hereditary right, the court found that the title at issue is an ancient one and that a claim of a blood relationship ten to twelve generations removed from the original titleholder is therefore plausible. It then ruled that at this level, minute distinctions between candidates would be deemed irrelevant.

This question -- whether "minute distinctions" in blood relationship to an original titleholder ten or twelve generations ago are legally significant -- is an apparently unintended consequence of the Court's decision of the Trial Division, holding that blood relationship was to be calculated only to the original titleholder and not to any subsequent titleholder, was a derogation from the previously settled law. See, e.g., in re Matai Title Alalamua, 4 A.S.R. 93 (1972); Suega v. Sunia, 4 A.S.R. 263 (1962);Sueuga v. Laisene, 2 A.S.R. 82 (1939). Prior to the Court's holding in Sotoa, claimants invariably traced their ancestry to recent titleholders as well as to more ancient ones, so that the distinctions tended to be among children and grandchildren of former titleholders (blood relationships of ½ and 1/4 respectively) or at least among descendants who could claim blood relationships of 1/8, 1/16, or 1/32. Under these circumstances the Court would hold that claimants were tied only if their blood relationships were precisely equal. Whether this rule should reconsider that part of the Trial Division'sSotoa holding that counts blood relationship only to the original titleholder, are questions we need not reach in this case. After appellants Aumoeualogo and Siliga had each moved for a new trial, the Court affirmatively found that no candidate had established his superior claim by the preponderance[3ASR2d135] of the evidence. Since there was a dispute over how many generation had occurred since the establishment of the title, (1) there is evidence in the record to support the trial court's finding and we are therefore prohibited from disturbing it.

On the issue of the support of a majority or plurality of the clans the court found that each candidate had some clan support but no candidate could be said to have the support of a majority or plurality. The court determined that of the seventeen clans listed on the questionnaires, no candidate could claim the support of more than four. Although appellant Siliga may have claimed the support of one more clan than appellee Eteuati, he only listed the support of three clans. The court was justified in concluding that Siliga's support was not sufficient to lift him ahead of the other candidates on this factor.

The court found that no candidate prevailed on the issue of forcefulness, character, personality, and knowledge of Samoan customs. Both appellants claim that the court erred in that conclusion. Because we have not had the opportunity to observe the candidates that the trial court has had, we must of necessity defer to the findings of the trial court if they are at all supported by the record. Given the outstanding backgrounds of the appellants and the appellee, we think the court had ample basis to conclude that "each is a man of honor and of integrity... an honest, God-[3ASR2d136]fearing and responsible member of society...(with) and acceptable knowledge of Samoan customs and traditions and of the customs, traditions and history of this family."

The court found that appellee Eteuati prevailed on the issue of the value of the candidate to family, village, and country. Each appellant contest this finding, and each has presented a cogent showing that he is of extraordinary value to his community. Appellant Siliga is an accomplished physician, who has also served his country well in various positions in the field of public health. Appellant Soli is a recognized attorney, and has served in various high government positions. We have no doubt that either of these appellants would have served will as Le'iato. Nevertheless, appellee Eteuati is also of exceptional value to his village, family, and country. He has served for twenty-nine years as a physician, for four years in the House of Representatives, and for two years in the prestigious position of Speaker of the House. He has also been very active community service. The court, forced to decide among an array of fine candidates, was not clearly erroneous in choosing appellee Eteuati for the title. Having had a chance to observe the candidates, the court no doubt included the age and health of all the candidates in its calculus, and we are not in a position to second-guess that determination on the record before us.

One further issue that we must address concerns appellee Eteuati's place of birth. The Fono has determined that a candidate to succeed to a matai title must either have been born on American soil or have been born to parents who were inhabitants of American Samoa but who were, at the time of his birth, residing abroad temporarily. (Such a candidate must also renounce allegiance to the country of his birth at age eighteen or reside in American Samoa for ten years prior to his candidacy.) A.S.C.A § 1.103. Doubt has been cast over appellee Eteuati's birthplace as a result of the production of a birth certificate showing that a child was born to his mother in Western Samoa on the date of his birth. On the other hand, he has sworn under oath that he was born in American Samoa, and that his parents have always so advised him.

If we were required to resolve the question of appellee Eteuati's actual place of birth, or to[3ASR2d137] review such a resolution by the trial court, we would be hard pressed to draw a conclusion based on these two pieces of hearsay evidence. We are not, however, required to decide this question. The trial court found that regardless of his actual place of birth, appellee Eteuati meets the statutory prerequisite for candidacy because his parents were inhabitants of American Samoa temporarily living outside American Samoa, and he has resided in American Samoa for over ten years. We have been presented with no evidence from which we can say that this conclusion is clearly erroneous.

The decision of the Land & Titles Division of the High Court is AFFIRMED.

Justice Murphy dissenting:

I am unable to join with the majority in this case. The question of whether or not matai titles should be litigated in the High Court in the first place has been questioned in a variety of forums on various occasions. I do not propose to rehash that issue. I do say that so long as these cases are being decided in Court the Court should comply with the procedure set forth by the Fono. I refer, of course, to the requirement that findings of fact and conclusions of law be made. A.S.C.A § 1.0409(d). Granted, Conclusions of law are difficult to come by, since we are not dealing with legal issues at all, but customs and traditions. (The majority nevertheless makes an effort in its decision to announce a legal principle regarding the determination of "clans".) As anyone who has heard very many of these cases knows every family and village has its own customs and traditions and methods of arriving at a consensus in the decision making process. The family leaders themselves often disagree as to precisely what these customs and traditions are. I believe that the Court should announce as its "conclusions of law" just what customs, traditions or if you will, rules it is using to reach its decision. One family may count its faletama from the first descendants of the original titleholder. A different family may count them from the point of view that each succeeding titleholder creates a new "clan" or faletama. It doesn't matter which custom is followed, but the Court should announce what formula it is using. Likewise, the findings of fact should be specific. They may be wrong, but they should be specific. In other words, a [3ASR2d138] candidate should know why he lost and why the other fellow won.

In this case, the Court held that all candidates were about equal as to hereditary right, support of the clans (without deciding how many clans the family has ) and forcefulness, character etc. The sole determining factor announced was the fourth statutory consideration ie: value of the holder of the title to the family, village and country. In my opinion, this is not what the Fono had in mind.

The majority has examined the trial transcript and finds that the Court had before it sufficient evidence to reach the conclusion it arrived at. I don't doubt that nor do I argue that the candidate selected is not the best choice. I am simply stating that the Court did not tell us how it reached its decision. It is required under the statute to do so.

As pointed out by Counsel Gurr in his brief, Chief Justice Jochimsen expressly rejected this method in 1975.

The family members look to the Court to make these findings, not only for purposes of the case at bar, but for future guidance of the family when the next vacancy occurs. If the Court does not make clear where it is coming from, it can choose whom so ever it pleases without any real explanation. This case was handled a bit too causally for me. The appellee didn't even bother to file a brief until compelled to do so, long after the time provided in the rules had passed. I'm sure the trial Judges took this case seriously, but that doesn't come across in the decision rendered. I would remand the case back to the trial Court to either expand or clarify their decision or to grant a new trial.


* Honorable Anthony M. Kennedy, Judge, United States Courts of Appeals for the Ninth Circuit, serving by designation of the Secretary of the Interior.

1. Appellant Aumoeualogo Soli, for instance, testified that he hd 1/64 blood relationship to the original titleholder, Le'iato Togiola. This would mean that he was only six generations removed from this ancestor. Appellee Eteuati, on the other hand, testified that he bore only a 1/2048 relationship to Togiola, which would lead to the conclusion that Togiola lived several hundred years earlier than according to Aumoeualogo's version. It is clear that the trial court did not accept Aumoeualogo's version. See Trial Court Opinion at page 2. Similarly, candidate Siliga vacillated in his estimate of his own relationship and the court was apparently not inclined to accept his testimony. We note, incidentally, that under the pre-Sotoa rule the appellee would apparently prevail over either of the two appellants. The appellee claims a 1/16 relationship to the nearest titleholder, appellant Aumoeualogo claims 1/32, and appellant Siliga a more distant relationship.

Lea`e; Lea`e v .


KOLIO LEA'E, Petitioner,

v.

SIVE M. LEA'E, Respondent

High Court of American Samoa
Trial Division

DR. No. 13-86

September 2, 1986

__________

If counsel is dissatisfied with the interpreter's English translation of a witness's Samoan testimony, his remedy is to object immediately so that any error can be corrected or to ask the witness any questions that may be necessary to eliminate ambiguities in the official record, which is kept in English.

Associate Judges of the High Court of American Samoa, who speak both Samoan and English, may correct any inaccuracies they detect in the translation of Samoan testimony into English as soon as such inaccuracies occur.

The post-trial and appellate stages of a proceeding, which with a few extraordinary exceptions must be based upon the record made at trial, are not the appropriate forum for counsel to request corrections of English translation of Samoan testimony.

Before REES, Chief Justice, and OLO, Associate Judge.

Counsel: For the Petitioner, Albert Mailo

At the hearing on petitioner's "Motion for New Trial and Reconsideration" counsel for petitioner repeatedly urged the Court to construe or enlarge the record by reference to counsel's own written notes of his client's testimony. Counsel argued that although the English translation of his client's testimony might seem to preclude the court from granting his client had not engaged in habitual cruelty against his wife, or had been provoked into any mild cruelty in which he did engage. In [3ASR2d57] particular, counsel said his client had used the word "fasi" to describe what he had done to his wife. Although the interpreter translated this word as "hit," counsel insists that the word might denote a mere "slap on the wrist."

Quite aside from the dubious legal relevance of this datum--we decided not only that plaintiff's action was barred by his own habitual cruelty, but also that he had established no habitual cruelty on the part of his wife -- we feel compelled to write in order to stress the impermissibility of post hoc attempts to alter or enlarge the record of a trial.

If counsel is dissatisfied with the interpreter's translation of any part of a witness's testimony, his remedy is to say so immediately so that the error, if any, can be corrected. Counsel is also free to ask the witness any questions that he feels are necessary to eliminate ambiguities in the record. (The word "hit" in English can also be used to designate a slap on the wrist, and if counsel thought his client had merely slapped his wife on the wrist he could have asked him to enlarge upon this part of his testimony.)

The Samoan Associate Judges are also available to correct any inaccuracies they detect in the translation as soon as such inaccuracies should occur.

The post-trial and appellate stages of a proceeding, which with a few extraordinary exceptions must be based upon the record made at trial, are not the appropriate forum for such corrections.

**********

Lea`e; Lea`e v.


KOLIO LEA'E, Petitioner

v.

SIVE M. LEA'E, Respondent

High Court of American Samoa
Trial Division

DR No. 13-86

August 4, 1986

_________

"Habitual cruelty or ill usage" in divorce statute does not encompass mere disagreement between the spouses, not even disagreement on matters about which the spouses have strong feelings and beliefs. A.S.C.A § 42.0202.

A divorce for habitual cruelty or ill usage may be granted in the absence of physical violence, but only when the record reflects a pattern of conduct that is so shameful or bizarre as to be unbearable, and in which it is reasonably clear who is the wrongdoer and who is the victim. A.S.C.A § 42.0202.

Husband admission that he sometimes beat his wife required the court to dismiss his action for divorce where territorial statute requires dismissal if the plaintiff is shown guilty of one of the grounds for divorce. A.S.C.A 42.0206(a)(5).

Before REES, Chief Justice, OLO, Associate Judge, and VAIVAO, Associate Judge.

Counsel: For the Plaintiff, Albert Mailo

Plaintiff seeks to divorce his wife on the ground of her habitual cruelty and ill usage. The wife signed a "waiver of appearance and consent" from prepared by the plaintiff's attorney, and plaintiff moved for judgment be default. At the default hearing the plaintiff testified that his wife's cruelty and ill usage consisted of not doing things he told her to do, driving around in her car while he was at work, and showing insufficient respect for him. Pressed by the court and by his attorney to describe a few of the more serious instances of the behavior to which he objected, he added only that his wife did not respect his [3ASR32d52] sisters as she should have done according to Samoan custom. He then testified that her behavior had sometimes caused him to hit her.

The law of American Samoa requires that every divorce case be heard in open court, whether or not the defendant appears, and that the court inquire not only into the facts alleged in the petition but also into possible defenses and countercharges. A.S.C.A § 42.0205. The obvious purpose of this provision is to give effect to the decision of the Fono not to provide for divorce on the ground of "incompatibility" or irreconcilable differences." Instead, the statute prescribes four "fault-based" grounds for divorce: adultery, habitual cruelty or ill usage, ,desertion, and long term imprisonment. A.S.C.A § 42.0202. Parties who wish a "no-fault" divorce may secure one by voluntarily living apart for five years. Id. The imposition on the court of an affirmative duty to examine all issues that might have been raised by the parties is apparently designed to prevent parties from circumventing the five year requirement by mutual agreement.

We recently emphasized that "habitual cruelty or ill usage" does not encompass mere disagreement between the spouses, not even disagreement on matters about which the spouses have strong feelings and beliefs. Chun v. Chun, 3 A.S.R. 2d 23 (1986). The allegations and arguments made in this case suggest the need for some elaboration on this holding.

Habitual cruelty as a ground for divorce was imported to the United States from the English ecclesiastical law, which allowed a wife to obtain a legal separation when her husband's cruelty had caused her bodily harm or a reasonable apprehension of bodily harm. In Evans v. Evans, 1 Hagg. Con. 35, 161 Eng. Rep. 466 (1790) Lord Stowell announced the rule that "what merely wounds the mental feelings is in few cases to be admitted, where not accompanied with bodily injury, either actual or menaced." Id., quoted in x v. x, 47 A. 2d 470, 473 (Del. 1946). More recently, American courts have tended to construe having no physical impact on the plaintiff, provided either that it produces an impairment of health or other bodily symptoms." H. Clark, The law of Domestic Relations in the United States 343 (1968).

As recently as 1968, however, a leading commentator observed that many courts had refused [3ASR2d53] to broaden the definitions to include serious psychological injury without physical symptoms. H. Clark, supra, at 343; see, e.g., Fryman v. Fryman, 5 Ill. App. 2d 479, 125 N.E. 2d 853 (1955); Cannon v. Cannon, 46 Del. 237, 82 A.2d 737 (Super.Ct. 1951). This seems to have been the reason for the enactment in some jurisdictions of provisions for divorce on the basis of "indignities" or, as in American Samoa, "ill usage." See Clark at 342. Thus in Swett v. Swett, C.A. No. 2683-74, this Court observed that cruelty "comprehends conduct addressed to the body," whereas ill usage "is a species of cruelty addressed to the mind, sensibilities, self-respect, or personal honor of the person, rather than to the body." Id. At 2, 3.

Whenever the definition of cruelty has been expanded by statute or construction to include conduct without palpable physical consequences, courts have been faced with the necessity of distinguishing such conduct from mere "incompatibility" or "irreconcilable differences." Without such a distinction, an elaborate legislative scheme including several specific grounds for divorce is effectively repealed and replaced by a simple rule that anyone can get a divorce who wants one. Powerful arguments can be made on behalf of such a provision, but they should be addressed to legislatures rather than courts. In construing habitual cruelty and related provisions, therefore, courts have repeatedly emphasized that they include only such conduct as seems calculated to render the marriage utterly intolerable. Sarafin v. Sarafin, 28 Conn. Sup. 24, 247 A. 2d 500 (1968); Gallaspy bv. Gallaspy, 459 So. 2d 283 (Miss. 1984); Williams v. Williams, 351 Mich. 210, 88 N.W. 2d 483 (1958).

Although each case must be evaluated in light of all its facts and circumstances, a few rules and limitations have emerged. Although courts differ on whether it is necessary that the defendant have engaged in the offensive conduct with the specific intention of hurting the plaintiff, they agree that the mere fact that plaintiff has taken offense is not enough. Rather, there must be some objective wrongdoing on the part of the defendant. See, e.g., Sarafin, supra; Gallaspy, supra; Williams, supra;Fitts v. Fitts, 217 So. 2d 81 (Ala. 1968); Winslow v. WinslowU, 251 A.2d 419 (Vt. 1969); Frantzen v. Frantzen, 349 S.W. 2d 765 (Tex. App. 1961); Reed v. Reed, 340 Mass. 321, 163 N.E. 2d 919 (1960); McClenahan v. McClenahan, 80 A. 677 (Del. 1911). "The charge of cruel and inhuman treatment [3ASR2d54] against one spouse means something more than unkindness or rudeness or mere incompatibility or want of affection." Gallaspy, supra. At 285.

On the other hand, courts agree that whether certain conduct constitutes cruelty depends in part on what effects the defendant knew or should have known the conduct would have on the plaintiff. Thus one who wilfully torments an unusually sensitive spouse in relatively trivial ways may be guilty of cruelty, whereas conduct that would severely hurt an ordinary person will not be a ground for divorce if it does not actually have such an effect on the plaintiff. Sarafin, supra; In re Marriage of Semmler, 413 N.E. 2d 502 (Ill. App. 1980); Gazzillo v. Gazzillo, 153 N.J. Super, 158, 379 A. 2d 288 (1977).

Finally, if the complaining spouse's own conduct was not much better than that of the defendant the latter's conduct will be "considered excused if not wholly excusable, so long as it is not disproportionate to the provocation." H. Clark, supra, at 344; see also Sarafin, supra; Evans v. Evans, 176 Or. 403, 157 P.2d 495 (1945). A similar rule is specifically set out in the Territory in A.S.C.A § 42.0206(a)(5), which requires that a petition for divorce be denied if the plaintiff himself is shown guilty of one of the grounds for divorce.

In addition to violence and threats of violence, forms of conduct that have frequently been construed to constitute cruelty include improper sexual relations with other persons (even in the absence of proof of adultery), false accusations against the spouse, and acts apparently committed with the specific intention of hurting the spouse or making the marriage intolerable. Other conduct, such as neglect of family, drunkenness or drug addition, refusal to engage in sexual relations, and extravagant or unreasonable demand on the other spouse, may or may not be grounds for divorce depending on the circumstances -- particularly the state of mind and other conduct of both spouses. See e.g., Gassillo, supra; Semmler, supra; Garrison v. Garrison, 179 N.W. 2d 466 (Iowa 1970); Hayes v. Hayes, 117 Ill. App. 2d 211, 254 N.E. 2d 288 (1969). In other words, a divorce for habitual cruelty or ill usage will be granted only when the record reflects a pattern of conduct that is not just irritating but so shameful or bizarre as to be unbearable, and in [3ASR2d55] which it is reasonably clear who is the wrongdoer and who is the victim.

In this case the victim, if any, seems to be the defendant. After the first round of plaintiff's testimony, in which he had made only a few general and conclusory allegations, the court suggested to his counsel that he either adduce some specific and convincing evidence of cruelty or amend the complaint to allege some other ground such as desertion. The only important information conveyed in the next round of plaintiff's testimony was that he sometimes hit his wife. Although counsel has been allowed to amend his complaint to allege desertion, the record suggests that the wife's departure was justified and therefore does not constitute desertion. In any case, plaintiff's physical abuse of his wife requires the court to deny his petition for divorce. A.S.C.A § 42.0206(a)(5).

If both parties to this case desire an immediate divorce, it would seem best for the wife to bring the action. Otherwise either party can obtain a divorce after the parties have been living apart for five years.

The complaint is dismissed.

**********

Lea`e v. Lea`e ,


KOLIO LEA'E, Petitioner,

v.

SIVE M. LEA'E, Respondent

High Court of American Samoa
Trial Division

DR. No. 13-86

September 2, 1986

__________

If counsel is dissatisfied with the interpreter's English translation of a witness's Samoan testimony, his remedy is to object immediately so that any error can be corrected or to ask the witness any questions that may be necessary to eliminate ambiguities in the official record, which is kept in English.

Associate Judges of the High Court of American Samoa, who speak both Samoan and English, may correct any inaccuracies they detect in the translation of Samoan testimony into English as soon as such inaccuracies occur.

The post-trial and appellate stages of a proceeding, which with a few extraordinary exceptions must be based upon the record made at trial, are not the appropriate forum for counsel to request corrections of English translation of Samoan testimony.

Before REES, Chief Justice, and OLO, Associate Judge.

Counsel: For the Petitioner, Albert Mailo

At the hearing on petitioner's "Motion for New Trial and Reconsideration" counsel for petitioner repeatedly urged the Court to construe or enlarge the record by reference to counsel's own written notes of his client's testimony. Counsel argued that although the English translation of his client's testimony might seem to preclude the court from granting his client had not engaged in habitual cruelty against his wife, or had been provoked into any mild cruelty in which he did engage. In [3ASR2d57] particular, counsel said his client had used the word "fasi" to describe what he had done to his wife. Although the interpreter translated this word as "hit," counsel insists that the word might denote a mere "slap on the wrist."

Quite aside from the dubious legal relevance of this datum--we decided not only that plaintiff's action was barred by his own habitual cruelty, but also that he had established no habitual cruelty on the part of his wife -- we feel compelled to write in order to stress the impermissibility of post hoc attempts to alter or enlarge the record of a trial.

If counsel is dissatisfied with the interpreter's translation of any part of a witness's testimony, his remedy is to say so immediately so that the error, if any, can be corrected. Counsel is also free to ask the witness any questions that he feels are necessary to eliminate ambiguities in the record. (The word "hit" in English can also be used to designate a slap on the wrist, and if counsel thought his client had merely slapped his wife on the wrist he could have asked him to enlarge upon this part of his testimony.)

The Samoan Associate Judges are also available to correct any inaccuracies they detect in the translation as soon as such inaccuracies should occur.

The post-trial and appellate stages of a proceeding, which with a few extraordinary exceptions must be based upon the record made at trial, are not the appropriate forum for such corrections.

**********

Lea`e v. Lea`e,


KOLIO LEA'E, Petitioner

v.

SIVE M. LEA'E, Respondent

High Court of American Samoa
Trial Division

DR No. 13-86

August 4, 1986

_________

"Habitual cruelty or ill usage" in divorce statute does not encompass mere disagreement between the spouses, not even disagreement on matters about which the spouses have strong feelings and beliefs. A.S.C.A § 42.0202.

A divorce for habitual cruelty or ill usage may be granted in the absence of physical violence, but only when the record reflects a pattern of conduct that is so shameful or bizarre as to be unbearable, and in which it is reasonably clear who is the wrongdoer and who is the victim. A.S.C.A § 42.0202.

Husband admission that he sometimes beat his wife required the court to dismiss his action for divorce where territorial statute requires dismissal if the plaintiff is shown guilty of one of the grounds for divorce. A.S.C.A 42.0206(a)(5).

Before REES, Chief Justice, OLO, Associate Judge, and VAIVAO, Associate Judge.

Counsel: For the Plaintiff, Albert Mailo

Plaintiff seeks to divorce his wife on the ground of her habitual cruelty and ill usage. The wife signed a "waiver of appearance and consent" from prepared by the plaintiff's attorney, and plaintiff moved for judgment be default. At the default hearing the plaintiff testified that his wife's cruelty and ill usage consisted of not doing things he told her to do, driving around in her car while he was at work, and showing insufficient respect for him. Pressed by the court and by his attorney to describe a few of the more serious instances of the behavior to which he objected, he added only that his wife did not respect his [3ASR32d52] sisters as she should have done according to Samoan custom. He then testified that her behavior had sometimes caused him to hit her.

The law of American Samoa requires that every divorce case be heard in open court, whether or not the defendant appears, and that the court inquire not only into the facts alleged in the petition but also into possible defenses and countercharges. A.S.C.A § 42.0205. The obvious purpose of this provision is to give effect to the decision of the Fono not to provide for divorce on the ground of "incompatibility" or irreconcilable differences." Instead, the statute prescribes four "fault-based" grounds for divorce: adultery, habitual cruelty or ill usage, ,desertion, and long term imprisonment. A.S.C.A § 42.0202. Parties who wish a "no-fault" divorce may secure one by voluntarily living apart for five years. Id. The imposition on the court of an affirmative duty to examine all issues that might have been raised by the parties is apparently designed to prevent parties from circumventing the five year requirement by mutual agreement.

We recently emphasized that "habitual cruelty or ill usage" does not encompass mere disagreement between the spouses, not even disagreement on matters about which the spouses have strong feelings and beliefs. Chun v. Chun, 3 A.S.R. 2d 23 (1986). The allegations and arguments made in this case suggest the need for some elaboration on this holding.

Habitual cruelty as a ground for divorce was imported to the United States from the English ecclesiastical law, which allowed a wife to obtain a legal separation when her husband's cruelty had caused her bodily harm or a reasonable apprehension of bodily harm. In Evans v. Evans, 1 Hagg. Con. 35, 161 Eng. Rep. 466 (1790) Lord Stowell announced the rule that "what merely wounds the mental feelings is in few cases to be admitted, where not accompanied with bodily injury, either actual or menaced." Id., quoted in x v. x, 47 A. 2d 470, 473 (Del. 1946). More recently, American courts have tended to construe having no physical impact on the plaintiff, provided either that it produces an impairment of health or other bodily symptoms." H. Clark, The law of Domestic Relations in the United States 343 (1968).

As recently as 1968, however, a leading commentator observed that many courts had refused [3ASR2d53] to broaden the definitions to include serious psychological injury without physical symptoms. H. Clark, supra, at 343; see, e.g., Fryman v. Fryman, 5 Ill. App. 2d 479, 125 N.E. 2d 853 (1955); Cannon v. Cannon, 46 Del. 237, 82 A.2d 737 (Super.Ct. 1951). This seems to have been the reason for the enactment in some jurisdictions of provisions for divorce on the basis of "indignities" or, as in American Samoa, "ill usage." See Clark at 342. Thus in Swett v. Swett, C.A. No. 2683-74, this Court observed that cruelty "comprehends conduct addressed to the body," whereas ill usage "is a species of cruelty addressed to the mind, sensibilities, self-respect, or personal honor of the person, rather than to the body." Id. At 2, 3.

Whenever the definition of cruelty has been expanded by statute or construction to include conduct without palpable physical consequences, courts have been faced with the necessity of distinguishing such conduct from mere "incompatibility" or "irreconcilable differences." Without such a distinction, an elaborate legislative scheme including several specific grounds for divorce is effectively repealed and replaced by a simple rule that anyone can get a divorce who wants one. Powerful arguments can be made on behalf of such a provision, but they should be addressed to legislatures rather than courts. In construing habitual cruelty and related provisions, therefore, courts have repeatedly emphasized that they include only such conduct as seems calculated to render the marriage utterly intolerable. Sarafin v. Sarafin, 28 Conn. Sup. 24, 247 A. 2d 500 (1968); Gallaspy bv. Gallaspy, 459 So. 2d 283 (Miss. 1984); Williams v. Williams, 351 Mich. 210, 88 N.W. 2d 483 (1958).

Although each case must be evaluated in light of all its facts and circumstances, a few rules and limitations have emerged. Although courts differ on whether it is necessary that the defendant have engaged in the offensive conduct with the specific intention of hurting the plaintiff, they agree that the mere fact that plaintiff has taken offense is not enough. Rather, there must be some objective wrongdoing on the part of the defendant. See, e.g., Sarafin, supra; Gallaspy, supra; Williams, supra;Fitts v. Fitts, 217 So. 2d 81 (Ala. 1968); Winslow v. WinslowU, 251 A.2d 419 (Vt. 1969); Frantzen v. Frantzen, 349 S.W. 2d 765 (Tex. App. 1961); Reed v. Reed, 340 Mass. 321, 163 N.E. 2d 919 (1960); McClenahan v. McClenahan, 80 A. 677 (Del. 1911). "The charge of cruel and inhuman treatment [3ASR2d54] against one spouse means something more than unkindness or rudeness or mere incompatibility or want of affection." Gallaspy, supra. At 285.

On the other hand, courts agree that whether certain conduct constitutes cruelty depends in part on what effects the defendant knew or should have known the conduct would have on the plaintiff. Thus one who wilfully torments an unusually sensitive spouse in relatively trivial ways may be guilty of cruelty, whereas conduct that would severely hurt an ordinary person will not be a ground for divorce if it does not actually have such an effect on the plaintiff. Sarafin, supra; In re Marriage of Semmler, 413 N.E. 2d 502 (Ill. App. 1980); Gazzillo v. Gazzillo, 153 N.J. Super, 158, 379 A. 2d 288 (1977).

Finally, if the complaining spouse's own conduct was not much better than that of the defendant the latter's conduct will be "considered excused if not wholly excusable, so long as it is not disproportionate to the provocation." H. Clark, supra, at 344; see also Sarafin, supra; Evans v. Evans, 176 Or. 403, 157 P.2d 495 (1945). A similar rule is specifically set out in the Territory in A.S.C.A § 42.0206(a)(5), which requires that a petition for divorce be denied if the plaintiff himself is shown guilty of one of the grounds for divorce.

In addition to violence and threats of violence, forms of conduct that have frequently been construed to constitute cruelty include improper sexual relations with other persons (even in the absence of proof of adultery), false accusations against the spouse, and acts apparently committed with the specific intention of hurting the spouse or making the marriage intolerable. Other conduct, such as neglect of family, drunkenness or drug addition, refusal to engage in sexual relations, and extravagant or unreasonable demand on the other spouse, may or may not be grounds for divorce depending on the circumstances -- particularly the state of mind and other conduct of both spouses. See e.g., Gassillo, supra; Semmler, supra; Garrison v. Garrison, 179 N.W. 2d 466 (Iowa 1970); Hayes v. Hayes, 117 Ill. App. 2d 211, 254 N.E. 2d 288 (1969). In other words, a divorce for habitual cruelty or ill usage will be granted only when the record reflects a pattern of conduct that is not just irritating but so shameful or bizarre as to be unbearable, and in [3ASR2d55] which it is reasonably clear who is the wrongdoer and who is the victim.

In this case the victim, if any, seems to be the defendant. After the first round of plaintiff's testimony, in which he had made only a few general and conclusory allegations, the court suggested to his counsel that he either adduce some specific and convincing evidence of cruelty or amend the complaint to allege some other ground such as desertion. The only important information conveyed in the next round of plaintiff's testimony was that he sometimes hit his wife. Although counsel has been allowed to amend his complaint to allege desertion, the record suggests that the wife's departure was justified and therefore does not constitute desertion. In any case, plaintiff's physical abuse of his wife requires the court to deny his petition for divorce. A.S.C.A § 42.0206(a)(5).

If both parties to this case desire an immediate divorce, it would seem best for the wife to bring the action. Otherwise either party can obtain a divorce after the parties have been living apart for five years.

The complaint is dismissed.

**********

In re Three Minor Children (Juv. Nos. 120-85, 125-85, 14-86),


In the interest of THREE MINOR CHILDREN

High Court of American Samoa
Trial Division

JUV. No. 120-85
JUV. No. 125-85
JUV. No. 014-86

May 15, 1986

__________

In actions for the termination of parental rights, strict attention must be paid to compliance with statutes and also to ensuring that the natural parent has actual notice of the proceeding a fair opportunity to be heard, and an understanding of the legal consequences.

When natural parents desire to relinquish their own rights in order that some other person can adopt their child the statutory procedure is a voluntary relinquishment of parental rights. A.S.C.A. § 45.0402.

The statutory procedure for involuntary termination of parental rights should not be used in place of a voluntary relinquishment merely to avoid bringing the natural parents to court.

The territorial statute dealing with voluntary relinquishment of parental rights requires that the natural parents be present in Court. A.S.C.A. § 45.0402.

Although the territorial statute dealing with involuntary termination of parental rights does not require the presence of the natural parents in court, it is quite difficult for the court to determine best interest of the child unless the natural parents testify.

The court should not grant a termination or re1inquishrnent of parental rights unless it is proven by clear and convincing evidence to be in the best interest of the child.

Before REES, Chief Justice.

These three cases were heard in April by a juvenile justice referee designated by the former Acting Chief Justice of the High Court. The [3ASR2d5]recommendations of the referee have come to the Chief Justice for his approval or disapproval on behalf of the Court.

Jurisdiction over juvenile cases including termination of parental rights, is vested in the High Court (ASCA § 3.0208(a}(4} and 45.0115) while adoption decisions are left to the District Court (A.S.C.A. § 3.302 ( a)). Because these matters are so intimately related the former District Court judge was appointed referee, pursuant to statute (A.S.C.A. § 45.0140), to hear and make recommendations in termination cases. As the workload of the District Court increased the judge asked that he be relieved of the responsibility to hear these cases. At that time Acting Chief Justice Murphy was alone on the High Court bench and was faced with the impending departure of the District Court judge and the need to assume his duties as well. To relieve this burden Justice Murphy appointed a new referee.

The High Court is now back at full strength and a new District Court judge pro tempore has been appointed. The burden on the courts has eased and the need for a referee to hear termination cases has, for the time being, been eliminated.

Termination of the parent-child relationship is one of the most serious and important matters in the lives of both the parents and child involved yet these cases have sometimes been handled without some of the legal safeguards that protect people's rights even in tar less important cases. There is rarely a very extensive record and the true motives and desires of the natural parents are often very difficult to discern. The problem is compounded by the fact that in most termination cases the natural parents are not even heard by the court or referee. The only rules presently applicable to such cases are District Court Rules rather than High Court rules and they do not require or even encourage the presence of the parents in termination cases. See District Court Rule 22. The only real information about them comes from a brief report by the Child Protection Services which interviews the parents, if they make themselves available, to establish that they know what they are doing in allowing their child to be taken from them and that they do so freely. Unfortunately, such reports are not often very revealing and the worker who interviewed the parents has not customarily testified in court. [3ASR2d6]

Based on this scant record -- and often only on the testimony of the prospective adopting parents -- the High Court referee must recommend that the termination be granted or denied. And on this record a Justice of the High Court must decide whether or not to follow that recommendation.

The United States Supreme Court has held that "state intervention to terminate the relationship between [a parent] and [the] child must be accomplished by procedures meeting the requisites of the Due Process Clause." Santosky v. Kramer, 55 US 745, 753 (1982) (brackets in original), quoting the first dissenting opinion in Lassiter v. Department of Social Services, 452 U.S. l8, 37 ( 1981). The Court also held that the process due in termination proceedings turns on a balancing of the three distinct factors specified in Matthews v. Eldridge, 424 US 319, 335 (1976). These factors are "the private interests affected by the proceeding; the risk of error created by the States chosen procedure; and the countervailing governmental interest supporting use of the challenged procedure." Santosky, supra, at 754. In Santosky, the Court went on to hold that "before a State may sever completely and irrevocably the rights of parents in their natural child, due process requires that the State support its allegations by at least clear and convincing evidence." Id. at 747-48.

Our termination process involves the most important of human relationships, the relation of parent to child. The risk of error under the casual procedures that have sometimes been followed -- the risk that a parent's rights will be terminated without a fair opportunity to be heard or without the parent's understanding the legal consequences of a termination -- seems very high. And there is no important government interest in procedures under which the court the court remains of information that is essential for the fulfillment of its duties to the parents and to the child.

The Court need not decide, however, whether the procedures that have sometimes been followed in the past for terminating parental rights violate the United States Constitution, or even whether the relevant provisions of the Constitution apply in Samoa precisely as they apply in the fifty states. For it is also extremely doubtful whether these casual procedures are consistent with the statutes enacted by the Legislature of American Samoa to [3ASR2d7] govern the relinquishment and termination of parental rights.

By its own terms the purpose of the territory's Juvenile Justice Code is to "secure for each child such care and guidance preferably with his own family, as will best serve his welfare and the interests of Samoan society" and to "remove a child from the custody of his parents only when his welfare and safety or the protection of the public would otherwise be endangered." A.S.C.A. § 45.0102(a). The Code is also quite specific in requiring that when a relinquishment is sought -- when the natural parents desire to give up their child so that a relative or some other person can adopt him -- the parents themselves shall join in the petition, that they shall be counseled and fully advised about the consequences, and that the Court find the relinquishment to be in the best interest of all parties concerned. A.S.C.A. § 45.0402. Effectively this section also requires that the parents actually be present in court for the trial. See DCR 23.

The alternative proceeding, a legal termination of parental rights, may legally be used only when the child has been neglected by his parents or is homeless. A.S.C.A. §§ 45.0103(19), 45.0401(1). In this case it is not strictly necessary that the parents be in court and sometimes it is impossible. But in many cases it will be quite difficult for the Court to determine what is in the best interest of the child unless the parents testify.

Attorneys in termination cases should therefore make every effort to secure the presence of both parents in court -- bearing in mind the existence of the subpoena power and other procedures to compel the attendance of recalcitrant witnesses -- rather than securing waivers of appearance from them. When the attorney is genuinely unable to contact one or both natural parents, or when their attendance would occasion extreme hardship, they need not be present at a termination proceeding. But this should be the exception rather than the rule.

Similarly, the social worker who interviews the parents for the Child Protective Services is an important witness who should be expected to testify except in extraordinary cases. [3ASR2d8]

The Court is cognizant of the fact that under Samoan custom adoption is far more common than it has been in the fifty states. It is therefore extremely important that the fa'a Samoa, and particularly the expertise of the five Associate Judges of the High Court in the customs and traditions of the Samoan people, inform the Court's judgment of what is in the best interest of the child and the other parties to a termination or a relinquishment proceeding. By assuring strict compliance with the statutes enacted by the Legislature of American Samoa, and with procedures designed to ascertain the true desires and circumstances of all parties, the Court car hope to preserve and reinforce the special concern for children that is such an important and impressive aspect of fa'a Samoa.

In these three cases counsel should schedule hearings before the Court and should be prepared to adduce the relevant information from all appropriate persons.

**********

In re Moea'i,


In the matter of the guardianship of the estate of
LAGITAFA MOEA'I aka LAGI IGAFO, a minor

High Court of American Samoa
Probate Division

PR. No. 006-77

May 15, 1986

__________

Trustee of minor's estate is charged with preserving funds in the estate until the minor reaches adulthood, and should give careful scrutiny to all proposed expenditures.

In deciding whether to approve expenditures recommended by trustee of minor's estate, court considered the amount remaining in the trust, whether the amount requested was a substantial percentage of the amount remaining, the length of time remaining before the minor reaches adulthood, other expenditures likely to be requested, and whether the trustee had carefully scrutinized the proposed expenditure.

Before REES, Chief Justice.

After some reflection I have reluctantly come to the conclusion that I cannot sign the requested order.

The money is to be held in trust for the child until she reaches the age of majority. The only exception is that the trustee is authorized to make such expenditures as are "necessary" for the care and maintenance of the child .

It is doubtful whether the requested items could be considered necessities under even the most expansive definition of the word. I am also influenced by the fact that the trust has been steadily dwindling; that the amount requested is a substantial percentage of the amount remaining in the trust, that during the last two years about $400 has already been disbursed for clothing for important occasions; and that the child, who seems to be at most a sophomore, will apparently have at least two more Senior Proms for which to buy clothing .

Finally and most importantly, I have the impression that the trustee has not afforded this and other similar matters the careful scrutiny [3ASR2d13] expected of a trustee. A court should be very reluctant to question the judgment of a disinterested fiduciary who, after carefully considering all factors including the particular needs and family circumstances of the child, recommends a certain item as necessary for the care and maintenance of the child. In this case there is no evidence that such consideration was given.

**********

In re Matai Title “Togiola”,


TE'O MAPU TOGIOLA, Appellant

vs.

UFAGAFA TALALELEI TULAFONO, Appellee

[In the Matter of the Matai Title "TOGIOLA"
in the village of Sa'ilele]

High Court of American Samoa
Appellate Division

AP. No. 28-85

December 18, 1986

__________

Appellate court will not reverse trial court's finding with regard to hereditary right of candidates for matai title where judgment is supported by substantial evidence.

Before REES, Chief Justice, GARDNER*, Acting Associate Justice, KENNEDY **, Acting Associate Justice, AFUOLA, Associate Judge, and A'AU, Associate Judge.

Counsel: For the Appellant, Albert Mailo
For the Appellee, Malaetasi Togafau

PER KENNEDY, J:

This action was brought to determine the matai title to "Togiola" of the village of Sa'ilele. At the time of filing, there were four candidates for the Title. However, only two candidates, Ufagafa Talaele (Ufagafa) and Te'o Mapu Togiola (Te'o), presented any evidence. After considering the evidence the trial division awarded the title to Ufagafa. Te'o appeals arguing that the trial division's conclusion was clearly erroneous and not supported by substantial evidence. We conclude that substantial evidence supported the judgement, and we affirm.

Section 1.0409 of the American Samoa Code Annotated sets the standards for determining which candidate prevails in a claim to matai title. Section 1.0409 provides that four factors, in descending order of priority, control the result. [3ASR2d128] First, the candidate with the best hereditary title has the stronger claim. Second, the candidate with the support of more clans had the stronger claim. Third, the candidate with more forcefulness, character, personality, and knowledge of Samoan customs has the stronger claim. Fourth, the candidate who will be more valuable to the family, village, and country has the stronger claim.

The trial court concluded that each of the factors was either inconclusive or pointed to Ufagafa. The parties presented conflicting evidence as to the hereditary right to the title. Ufagafa presented a coherent scheme of lineage that showed that he and Te'o both had a 1/16 claim. This is consistent with the court's determination in the 1983 dispute over the Togiola title that Te'o's father, the prevailing claimant in that case, had a 1/8 claim, and that Ufagafa had a 1/16 claim. Te'o argues vigorously that he had a 1/16 claim and that Ufagafa has a 1/32 claim. At best this creates a conflict in the evidence. Also, Te'o's testimony on this point was internally inconsistent. Therefore, the trial division's conclusion that the parties had equal hereditary rights was supported by substantial evidence.

The trial court determined that the family support was divided. The record is replete with testimony that indicates that many of the family segments did not have an opportunity to fully consider all the candidates. The two withdrawn candidates also drew some support. Furher, it appears that since the original titleholder had only one son, there is only one true clan in the family. This, the trial division did not err in concluding that neither candidate had the support of a majority or plurality of the clans.

The trial division determined that Ufagafa had stronger personal characteristics and greater value to the community. Notably, Ufagafa has a distinguishable career in public service, including service as a Senator and as the first district court judge in American Samoa. Ufagafa grew up in Sa'ilele, graduated from Washburn University School of Law, and has great value to the family. Te'o has had a fine career as a police officer. Te'o concedes that Ufagafa has a greater earning capacity. The trial division's conclusion that the third and fourth factors point to Ufagafa was not clearly erroneous. Therefore, the trial division's conclusion that Ufagafa prevails under § 1.0409 must be AFFIRMED.


*Honorable Robert Gardner, Chief Justice Emertius, High Court of American Samoa, serving by designation of the Secretary of the Interior. **Honorable Anthony M. Kennedy, Judge, United States Court of Appeals for the Ninth Circuit, serving by designation of the Secretary of the Interior.

In re Matai Title “Le'iato”,


AUMOEUALOGO S. SOLI, and VAILA'U SILIGA, Appellants

v.

ETEUATI LE'IATO, Appellee

[In the Matter of Matai Title "LE'IATO"
in the village of Faga'itua]

High Court of American Samoa
Appellate Division

AP. No. 007-86
AP. No. 008-86

December 22, 1986

__________

Trial court holding that no candidate prevailed on issue of best hereditary right was not substantial error justifying reversal by appellate court, where (1) trial court found that there were "minute distinctions" among candidates' blood relationship to original titleholder, and (2) candidate who prevailed at trial would clearly have had the best hereditary right under traditional rule that hereditary right to title depends on blood relationship to any holder of the title.

Before REES, Chief Justice, MURPHY, Associate Justice, KENNEDY*, Acting Associate Justice, TAGO, Associate Judge, and A'AU, Associate Judge.

Counsel: Appellant Aumoeualogo pro se
For Appellant Siliga, Edwin Gurr
For the Appellee, Tau'ese SuniaPER CURIAM:

Appellants Aumoeualogo Soli and Vailaau Siliga challenge the decision of the Land and Titles Division of the High Court awarding the matai title "Le'iato" to appellee Eteuati Le'iato.

The court rendered its decision after consideration of each of the four criteria set out in A.S.C.A § 1.0409. Although both appellants have put forward strong evidence of their qualifications for this title, we affirm the decision of the High Court.

A court confronted with the necessity of deciding which candidate should succeed to a matai [3ASR2d134] title is required by § 1.0409 to consider: (1) which candidate has the "best hereditary right"; (2) "the wish of a majority or plurality of the clans of the family"; (3) " the forcefulness, character and personality of the candidate and his knowledge of Samoan customs"; and (4) "the value of the holder of the title to the family, village, and country." In this case, the court determined that no one candidate prevailed on the first, second, or third factors. It then determined that appellee Eteuati prevailed on the fourth factor.

On the issue of which candidate had the best hereditary right, the court found that the title at issue is an ancient one and that a claim of a blood relationship ten to twelve generations removed from the original titleholder is therefore plausible. It then ruled that at this level, minute distinctions between candidates would be deemed irrelevant.

This question -- whether "minute distinctions" in blood relationship to an original titleholder ten or twelve generations ago are legally significant -- is an apparently unintended consequence of the Court's decision of the Trial Division, holding that blood relationship was to be calculated only to the original titleholder and not to any subsequent titleholder, was a derogation from the previously settled law. See, e.g., in re Matai Title Alalamua, 4 A.S.R. 93 (1972); Suega v. Sunia, 4 A.S.R. 263 (1962);Sueuga v. Laisene, 2 A.S.R. 82 (1939). Prior to the Court's holding in Sotoa, claimants invariably traced their ancestry to recent titleholders as well as to more ancient ones, so that the distinctions tended to be among children and grandchildren of former titleholders (blood relationships of ½ and 1/4 respectively) or at least among descendants who could claim blood relationships of 1/8, 1/16, or 1/32. Under these circumstances the Court would hold that claimants were tied only if their blood relationships were precisely equal. Whether this rule should reconsider that part of the Trial Division'sSotoa holding that counts blood relationship only to the original titleholder, are questions we need not reach in this case. After appellants Aumoeualogo and Siliga had each moved for a new trial, the Court affirmatively found that no candidate had established his superior claim by the preponderance[3ASR2d135] of the evidence. Since there was a dispute over how many generation had occurred since the establishment of the title, (1) there is evidence in the record to support the trial court's finding and we are therefore prohibited from disturbing it.

On the issue of the support of a majority or plurality of the clans the court found that each candidate had some clan support but no candidate could be said to have the support of a majority or plurality. The court determined that of the seventeen clans listed on the questionnaires, no candidate could claim the support of more than four. Although appellant Siliga may have claimed the support of one more clan than appellee Eteuati, he only listed the support of three clans. The court was justified in concluding that Siliga's support was not sufficient to lift him ahead of the other candidates on this factor.

The court found that no candidate prevailed on the issue of forcefulness, character, personality, and knowledge of Samoan customs. Both appellants claim that the court erred in that conclusion. Because we have not had the opportunity to observe the candidates that the trial court has had, we must of necessity defer to the findings of the trial court if they are at all supported by the record. Given the outstanding backgrounds of the appellants and the appellee, we think the court had ample basis to conclude that "each is a man of honor and of integrity... an honest, God-[3ASR2d136]fearing and responsible member of society...(with) and acceptable knowledge of Samoan customs and traditions and of the customs, traditions and history of this family."

The court found that appellee Eteuati prevailed on the issue of the value of the candidate to family, village, and country. Each appellant contest this finding, and each has presented a cogent showing that he is of extraordinary value to his community. Appellant Siliga is an accomplished physician, who has also served his country well in various positions in the field of public health. Appellant Soli is a recognized attorney, and has served in various high government positions. We have no doubt that either of these appellants would have served will as Le'iato. Nevertheless, appellee Eteuati is also of exceptional value to his village, family, and country. He has served for twenty-nine years as a physician, for four years in the House of Representatives, and for two years in the prestigious position of Speaker of the House. He has also been very active community service. The court, forced to decide among an array of fine candidates, was not clearly erroneous in choosing appellee Eteuati for the title. Having had a chance to observe the candidates, the court no doubt included the age and health of all the candidates in its calculus, and we are not in a position to second-guess that determination on the record before us.

One further issue that we must address concerns appellee Eteuati's place of birth. The Fono has determined that a candidate to succeed to a matai title must either have been born on American soil or have been born to parents who were inhabitants of American Samoa but who were, at the time of his birth, residing abroad temporarily. (Such a candidate must also renounce allegiance to the country of his birth at age eighteen or reside in American Samoa for ten years prior to his candidacy.) A.S.C.A § 1.103. Doubt has been cast over appellee Eteuati's birthplace as a result of the production of a birth certificate showing that a child was born to his mother in Western Samoa on the date of his birth. On the other hand, he has sworn under oath that he was born in American Samoa, and that his parents have always so advised him.

If we were required to resolve the question of appellee Eteuati's actual place of birth, or to[3ASR2d137] review such a resolution by the trial court, we would be hard pressed to draw a conclusion based on these two pieces of hearsay evidence. We are not, however, required to decide this question. The trial court found that regardless of his actual place of birth, appellee Eteuati meets the statutory prerequisite for candidacy because his parents were inhabitants of American Samoa temporarily living outside American Samoa, and he has resided in American Samoa for over ten years. We have been presented with no evidence from which we can say that this conclusion is clearly erroneous.

The decision of the Land & Titles Division of the High Court is AFFIRMED.

Justice Murphy dissenting:

I am unable to join with the majority in this case. The question of whether or not matai titles should be litigated in the High Court in the first place has been questioned in a variety of forums on various occasions. I do not propose to rehash that issue. I do say that so long as these cases are being decided in Court the Court should comply with the procedure set forth by the Fono. I refer, of course, to the requirement that findings of fact and conclusions of law be made. A.S.C.A § 1.0409(d). Granted, Conclusions of law are difficult to come by, since we are not dealing with legal issues at all, but customs and traditions. (The majority nevertheless makes an effort in its decision to announce a legal principle regarding the determination of "clans".) As anyone who has heard very many of these cases knows every family and village has its own customs and traditions and methods of arriving at a consensus in the decision making process. The family leaders themselves often disagree as to precisely what these customs and traditions are. I believe that the Court should announce as its "conclusions of law" just what customs, traditions or if you will, rules it is using to reach its decision. One family may count its faletama from the first descendants of the original titleholder. A different family may count them from the point of view that each succeeding titleholder creates a new "clan" or faletama. It doesn't matter which custom is followed, but the Court should announce what formula it is using. Likewise, the findings of fact should be specific. They may be wrong, but they should be specific. In other words, a [3ASR2d138] candidate should know why he lost and why the other fellow won.

In this case, the Court held that all candidates were about equal as to hereditary right, support of the clans (without deciding how many clans the family has ) and forcefulness, character etc. The sole determining factor announced was the fourth statutory consideration ie: value of the holder of the title to the family, village and country. In my opinion, this is not what the Fono had in mind.

The majority has examined the trial transcript and finds that the Court had before it sufficient evidence to reach the conclusion it arrived at. I don't doubt that nor do I argue that the candidate selected is not the best choice. I am simply stating that the Court did not tell us how it reached its decision. It is required under the statute to do so.

As pointed out by Counsel Gurr in his brief, Chief Justice Jochimsen expressly rejected this method in 1975.

The family members look to the Court to make these findings, not only for purposes of the case at bar, but for future guidance of the family when the next vacancy occurs. If the Court does not make clear where it is coming from, it can choose whom so ever it pleases without any real explanation. This case was handled a bit too causally for me. The appellee didn't even bother to file a brief until compelled to do so, long after the time provided in the rules had passed. I'm sure the trial Judges took this case seriously, but that doesn't come across in the decision rendered. I would remand the case back to the trial Court to either expand or clarify their decision or to grant a new trial.


* Honorable Anthony M. Kennedy, Judge, United States Courts of Appeals for the Ninth Circuit, serving by designation of the Secretary of the Interior.

1. Appellant Aumoeualogo Soli, for instance, testified that he hd 1/64 blood relationship to the original titleholder, Le'iato Togiola. This would mean that he was only six generations removed from this ancestor. Appellee Eteuati, on the other hand, testified that he bore only a 1/2048 relationship to Togiola, which would lead to the conclusion that Togiola lived several hundred years earlier than according to Aumoeualogo's version. It is clear that the trial court did not accept Aumoeualogo's version. See Trial Court Opinion at page 2. Similarly, candidate Siliga vacillated in his estimate of his own relationship and the court was apparently not inclined to accept his testimony. We note, incidentally, that under the pre-Sotoa rule the appellee would apparently prevail over either of the two appellants. The appellee claims a 1/16 relationship to the nearest titleholder, appellant Aumoeualogo claims 1/32, and appellant Siliga a more distant relationship.

Fonoti; Fagaima v.


FAGAIMA AFATIA and MAC MANUMA, Appellants

v.

FONOTI AUFATA, Appellee

High Court of American Samoa
Appellate Division

AP. No. 12-86

November 24, 1986

___________

That appellant disagrees with trial court's judgment of the credibility of the witnesses does not raise an appealable issue.

Before REES, Chief Justice, MURPHY, Associate Justice, KENNEDY*, Acting Associate Justice, TAUANU'U, Chief Associate Judge, and A'AU, Associate Judge.

Counsel: For the Appellant, Aviata Fa'alevao
For the Appellee, Michael Kruse

Per MURPHY, J:

This case concerned a land dispute between the Fonoti family and the Fagaima family. The trial division of the High Court held for the Fonoti family. We affirm.

Appellant raises no legal issues but argues that the trial court decision was clearly erroneous in that it "just totally ignored testimonies of Chief Fagaima himself..." the Fagaima claim was also supported by testimony of Mac Manuma who has occupied a portion of the property with the permission of Fagaima.

The trial division is free to disbelieve the testimony of witnesses. In this case there was substantial reason to disbelieve both Fagaima Afatia and Mac Manuma. Their self interest is obvious. Manuma, said the trial court, is selling off the land. Unless Fagaima wins this case he could be faced with considerable litigation or worse.

On the other hand, the trial court found the testimony in support of Fonoti both credible and logical. The conclusions drawn from the facts were clearly explained by the trial court. That [3ASR2d113] appellant simply disagrees with the trial court does not raise an appealable issue or entitle an appellate tribunal to substitute its findings (even if we were disposed to do so) for trial court findings amply supported by credible evidence.

The standards of appellate review were mentioned at the last session of the Appellate Division in Leomiti v. Pagofie (Mar. 12, 1986) Appellate No. 42-84. Counsel for appellant would be well advised to read that decision.

Judgment AFFIRMED.


*Honorable Anthony M. Kennedy, Judge, United States Court of Appeals for the Ninth Circuit, serving by designation of the Secretary of the Interior.

Filoiali'i v. Adams,


FIAPAIPAI FILOIALI'I, Appellee

v.

WILLIAM ADAMS, QUALITY FURNITURE, INC., 
and DOES 1-5 Appellants,

v.

DEVELOPMENT BANK OF AMERICAN SAMOA, Intervenor

High Court of American Samoa
Appellate Division

AP. No. 11-86

November 4, 1986

__________

Party who took possession of property, took over payments on debt owed by property owner and secured by a mortgage on the property, and executed a new document purporting to be a mortgage on the property, did not thereby acquire ownership of property.

Trial court did not err in holding party personally liable for rental payments when that party had personally engaged in negotiations for the rental and had not formed a corporation until about the time he took possession of the property, and where all transactions were so informal that it was not clear property owner intended to deal with a corporation rather than an individual.

Before REES, Chief Justice, MURPHY, Associate Justice, KENNEDY*, Acting Associate Justice, LUALEMAGA, Associate Judge, and AFUOLA, Associate Judge.

Counsel : For the Appellants, Asaua Fuimaono 
For the Appellee, John Ward

Per KENNEDY, J:

Plaintiff Fiapaipai Filoiali'i is the administratrix of the estate of her late father, Fili M. Liufau. In 1980 Liufau obtained a loan from the Development Bank for construction of an industrial building in the American Samoa Government-owned Industrial Park at Tafuna. Liufau's loan of $100,000 was at a seven percent interest rate, and required payments of $776 per month. Liufau executed a promissory note secured [3ASR2d106] by a mortgage on both the realty and personalty on the property. Liufau also entered into a lease agreement with the government, however, granted a "rent moratorium" for three years.

In 1981 Liufau was killed, and his daughter, the plaintiff here, took over operation of Liufau's business. The business fell on hard times, and the loan payments to the Development Bank fell into arrears.

In late 1982, William Adams began negotiations with the Development Bank. In 1983 Adams executed a "mortgage" and moved on to the premises under an agreement to pay the Bank $1,400 per month, provide insurance, and pay the $226 per month monthly rental to the government. Adams executed a "mortgage" to secure these amounts. At approximately the same time, Adams incorporated Quality Furniture. Plaintiff was not a part of these negotiations and did not execute any agreements to approve the transaction, though apparently she had some knowledge of it. She moved out when Adams moved in.

The agreement between Adams and the bank called for $776 of the $1,400 payment to be committed to the interest and principal of the original loan, the balance to be committed to arrearages, and, it seems, any further balance to be returned by the bank. Adams did not pay the full $1,400 per month. His total payments of $30,263.65 were enough to satisfy the original loan and its arrearages, but were $20,136.35 short of the $50,400 (36 months at $1,400 per month) that Adams promised to pay. In addition, Adams failed to make approximately $7,000 in payments on lease payments to the government, and $2,086.25 in insurance payments.

The trial division, in the exercise of its equitable powers, gave judgment as follows: first, the court declared that Adams and Quality Furniture had acquired no interest in the property through its purported mortgage in 1983, and that the plaintiff still owned the property subject to the original loan; second, the court determined that Adams and Quality Furniture had entered the property under an implied lease with the plaintiff as administratix for rental payments of $1,400 per month plus the amounts owed to the government for insurance; third, the court determined that Adams and Quality Furniture were in breach of the lease [3ASR2d107] with the Plaintiff, and had joint liability to the plaintiff for over $29,000.

On appeal Adams and Quality Furniture make two main arguments. First, they argue that Adams cannot be personally liable because he did business only as president of Quality Furniture. Second, Adams and Quality Furniture argue that the trial division erred in the exercise of its equitable powers. We reject both contentions and affirms.

There were sufficient facts to support the court's determination that Adams had joint liability with the corporation. Adams did not incorporate until approximately the time that he took over the premises. Further, the whole transaction was conducted in an exceedingly informal manner. Under these circumstances, we are unable to say as a matter of law that Adams is entitled to hide behind his corporate shell.

We also think that the court was correct in the exercise of its equitable powers. Adams and Development Bank, acting by themselves, could not possibly terminate the plaintiff's interest. The court's finding of an implied lease on the terms of the "mortgage" worked out between Adams and Development Bank was perfectly reasonable given that possession, but not title, had passed. We think that the trial division's judgment was supported factually and was eminently fair. The judgment of the trial division is AFFIRMED.


*Honorable Anthony M. Kennedy, Judge, United States Court of Appeals for the Ninth Circuit, serving by designation of the Secretary of the Interior. 

Dole; American Samoa Gov’t v.


AMERICAN SAMOA GOVERNMENT

v.

RAYMOND DOLE, Defendant

High Court of American Samoa
Trial Division

CR. No. 48-86

October 10, 1986

__________

Powers of pardon and parole granted to executive by statutes and constitution do not give the executive carte blanche to ignore court orders and sentences.

Release of prisoner within two weeks after court had sentenced him to a year of detention as condition of probation, whether called a furlough, work release, reward for good behavior, compassionate leave, or by another label, violated statutes and court order.

Before MURPHY, Associate Justice.

Counsel: For the Government, William Wallace, Assistant Attorney General
For the Defendant, Michael Bennett, Assistant Public Defender

On June 2, 1986 this Court sentenced the above named defendant for burglary of the United States Post Office in this Territory. The court ordered probation of sentence on the condition that Defendant conduct himself as a law abiding citizen. The Court further ordered Defendant to jail for a period of one year.

Defendant now appears before us convicted of a burglary of the Burns Philip Store on June 14, 1986.

One might ask "How can this happen? How can a person sent to jail for one year commit a burglary less than two weeks later?"

The answer is simply that the Department of Public Safety ignored the Court's order and for reasons known only to itself, released the Defendant. [3ASR2d64]

To make matters worse the following scenario has occurred. The defendant once again appeared before this Court for sentencing on the Burns Philip crime. The Court sentenced the Defendant to five years imprisonment. We also revoked his probation on the Post Office crime and imposed a five year sentence. Defendant has now been sentenced to a total of ten years imprisonment. He now at least is in jail; right? Wrong.

According to papers filed by the Attorney General's office, the Defendant was seen at liberty on the very afternoon of his last sentencing. (1) Defendant perhaps has friends (or relatives) in high places.

Our system of government is supposed to operate something like this: The Legislature passes laws making certain acts criminal. When those laws are violated the Executive prosecutes. If convicted the Judiciary sentences. Since neither the Legislatures nor the Judiciary have jails, the Defendant is remanded to the Executive for execution of the sentence. When the Executive refuses to follow the sentence, the system collapses. True, the Legislature has granted the Executive powers of pardon and parole. These powers are closely defined in Chapter 27 Title 46, A.S.C.A. They do not give the Executive carte blanche to ignore court orders and sentences or to ignore statutes duly enacted by the Legislature.

The people of this Territory are entitled to governmental protection from convicted criminals. What can be done when the Department of Public Safety simply decides to turn loose a convict contrary to his sentence or statutory eligibility for parole? There seems to be very little judicial precedent for this situation. Prisoner's rights cases usually get before the Courts when the Executive is allegedly mistreating a convict. When the Executive decides to refrain from carrying out an order of imprisonment, naturally the Defendant will not complain. Both the Office of the Attorney General and Department of Public Safety are creatures of the Executive. It seems anomalous that the Attorney General prosecutes and asks for a [3ASR2d65] sentence, and when the Court imposes the sentence the Department of Public Safety decides to ignore it. It doesn't help to call the release a furlough, a work release (this Defendant has no job), reward for good behavior, Compassionate leave, etc. The point is, the Executive is mandated to carry out the directions of the Legislature and the Judiciary. When it refuses to do so our form of government becomes a mockery.

The scenario above described is not without humor. But when a victim of a rape, robbery or burglary or the relatives of a homicide victim see the criminal enjoying his freedom a short time after sentencing it really is not funny at all.

Admittedly, as anyone who lives here knows, many facets of our government are quaint, colorful and don't work very well. To reduce the criminal justice system of American Samoa to the level of make-believe must be very discouraging to the police and prosecutor. It certainly is to the author of this opinion.

**********

1. A newspaper account of this incident gave as explanation a statement by the Warden that he "had not received a written sentence." In fact a written sentence was entered last June and has been steadfastly ignored!

Chun; Chun v.


GERTRUDE IULI CHUN, Petitioner

v.

JEFFEREY FOOK HING CHUN, Respondent

High Court of American Samoa
Trial Division

DR. No. 28-86

June 6, 1986

__________

A statute specifying "habitual cruelty or ill usage" as a ground for divorce is not satisfied by proof of irreconcilable differences between husband and wife. A.S.C.A. § 42.0202.

"Habitual cruelty or ill usage" in divorce statute includes such things as physical violence, threats, and gratuitous harassment. A.S.C.A § 42.0204.

The agreement by a spouse against whom divorce is sought not to contest the diborce does not relieve a court of its statutory duty to examine all witnesses and to dismiss the action if the petitioner has failed to prove the charge. A.S.C.A. § 42.0205-06.

Before REES, Chief Justice, AFUOLA, Associate Judge, and VAIVAO, Associate Judge.

Counsel: For the Plaintiff, Michael Lash

Plaintiff seeks a divorce on the ground of "habitual cruelty or ill usage." The cruelty or ill usage she alleges is that her husband refuses to participate fully in the activities of her aiga.

The plaintiff, a native of American Samoa, and the defendant, a native of Hawaii, were married in Honolulu in 1970 and subsequently moved to American Samoa. Plaintiff testified that her husband is a loving father and a good provider, and that he does not object to spending her earnings or his on gifts to her mother and other immediate relatives. He refuses, however, to spend money on gifts to members of the aiga who are not close relatives or on contributions to events that do not involve close relatives. Her repeated efforts to convince him that such gifts and contributions are a [3ASR2d24]customary family obligations, and that his refusal constitutes a continuing source of embarrassment to her, have been unavailing. She is willing to allow him to have custody of the four children and ownership of the family house, and he has waived his right to contest her petition for divorce.

If the laws of American Samoa provided for divorce on the ground of "irreconcilable differences," this would seem to be a case for it. A.S.C.A. § 42.0202, however, provides no such ground for divorce. The disagreement between the parties over the extent to which they should participate in their Samoan family activities, although it has emerged recently in what has otherwise been and remains a happy marriage, is a very real one. But it does not constitute cruelty or ill usage--terms usually reserved for such things as physical violence, threats, and gratuitous harassment--on the part of the husband or the wife.

The husband's agreement not to contest the divorce cannot relieve the court of its obligation to "examine all parties and witnesses, and ... take all evidence, " and to dismiss the petition if the petitioner has failed to prove the charge alleged in the petition. A.S.C.A. § 42.0205-06.

Finally, A.S.C.A. 42.0207 provides that "condonation may be presumed in all matrimonial actions and proceedings by the voluntary cohabitation of the parties with the knowledge of the offense charged." Plaintiff testified that she continue to live the defendant, and that they live together as man and wife. The law presumes that if someone has forgiven his or her spouse sufficiently to resume intimate relations, the forgiveness is also sufficient to obviate the need for a divorce. The presumption can be rebutted, but was not rebutted in this case.

The evidence shows that the Chuns are a happily married couple with a significant disagreement between them. If they cannot work this disagreement out they are free to separate, and eventually to divorce on the ground of having lived apart for five years. A.S.C.A. § 42.0202(5). But the laws of American Samoa--apparently in the hope that disagreements can be worked out and marriage preserved wherever possible--do not provide for divorce in a case such as this.

Petition dismissed.

**********

American Samoa Gov’t; American Int’l Underwriters, Ltd. v.


AMERICAN INTERNATIONAL UNDERWRITERS
(SOUTH PACIFIC), LTD., Plaintiff

v.

AMERICAN SAMOA GOVERNMENT, FA'AFETAI (RUPI) 
HANIPALE, an incompetent, and LE'ALA R. HANIPALE 
his mother and guardian, Defendants

High Court of American Samoa
Trial Division

CA. No. 114-85

December 4, 1986

__________

Territorial government which was required by law to pay for an accident victim's medical expenses, and which had these expenses, was an "injured person" within the meaning of a statute allowing injured person to bring direct action against the insurer of a person alleged to have caused the accident. A.S.C.A § 22.2018.

A person who is legally obliged to pay a debt of another person and who actually does pay that debt acquires the legal rights of the creditor under the equitable principle of subrogation.

Territorial statute which required the government to provide free medical services to all citizens, and which did not require citizens who had be ability to pay their won medical expenses to reimburse the government, implicitly required that government's claim for reimbursement from tortfeasor's insurer should be subordinate to victim's claim for pain and suffering. A.S.C.A § 13.0601.

Before REES, Chief Justice, TAUANU'U, Chief Associate Judge, and VAIVAO, Associate Judge.

Counsel: For the Plaintiff, Roy J.D. Hall, Jr.
For Defendant ASG, Donald Griesmann, Assistant Attorney General
For Defendants Hanipale, Micheal Kruse

This is an action in interpleader. Rupi Hanipale was seriously injured while riding in a car insured by American International Underwriters (A.I.U.). The American Samoa Government (A.S.G.) Provided Hanipale with medical care and paid for his transportation to Hawaii for services there [3ASR2d116] that could not be provided locally, all in accordance with A.S.C.A. § 13.0601. Hanipale demanded payment from A.I.U on account of his injuries, and A.S.G. also demanded reimbursement from A.I.U. For Hanipale's medical expenses. A.I.U. Has deposited into the registry of the High Court the sum of $10,000, the amount of bodily injury insurance provided by the policy, and asks that the Court declare whether A.S.G. or Hanipale is entitled to the money.

Counsel for Hanipale argues that A.S.G. may not recover under the policy because the territorial statute providing for direct actions against insurance companies, A.S.C.A § 22.2018, purports to create such actions only for "an inured person or his heirs representatives." Counsel contends that where the policy provision sued upon covers bodily injuries, the term "injured person" in the statute should be construed to refer only to the person who has sustained bodily injuries, not to a party such as A.S.G. who sustains economic injuries on account of another person's bodily injuries.

In support of this contention, counsel for Hanipale cites Sciaraffa v. Debler, 23 N.E. 2d 111 (Mass. 1939), and Franklin Casualty Insurance Company v. Jones, 362 P.2D 964 (Okla. 1961). Each of these cases denied the right of a doctor to maintain a direct action against an insurance company to collect his fees for treating a person whose injuries were covered by the company's policy. The reference to physicians in Sciaraffa is dictum and is unsupported by analysis. The case seems to hold that the "voluntary payment" by a son of his own medical expenses, which his father was legally obliged to pay, did not entitled the son to maintain an action against the insurance company for reimbursement of these expenses. The Franklin case, on the other hand, was not particularly concerned with the "voluntary" nature of the doctor's services, holding instead that the doctor was "too far removed" from the injuries clause. 362 P.2d at 966. He was, in other words, an "incidental" rather than an "intended" beneficiary of the policy, and therefore could not sue upon it. See id. Counsel for A.S.G., however, cites cases in which federal hospitals providing services under a statutory obligation are distinguished from mere "volunteer" doctors and thus allowed to maintain direct actions. See, e.g., United States v.[3ASR2d117] Government Employees Insurance Co., 461 F.2d 58, 60 (1972):

[T]he United States was not a volunteer; it, in rendering the service, 
was discharging a statutory obligation, little different from the 
common-law obligation of a parent, it is entitled to recover for its
expenses incurred by reason of its statutory obligation to the insured.

See also United States v. United Services Automobile Association, 431 F2d 735 (1970), cert. Den., 400 U.S. 992 (1971); United States v. State Farm Mutual Automobile Insurance Co., 455 F.2d 789.

We are persuaded by the analogy between A.S.G. and a parent who pays medical expenses in fulfilment of a legal obligation. Indeed, the general pattern of the decisions cited by both sides is that a person can maintain a direct action against an insurance company if and only if he could have maintained an action against the insured tortfeasor. This seems fully consistent with the central purposes of direct action statutes: to simplify litigation and to allow an injured person to recover under a policy even if the insured tortfeasor has become insolvent or unavailable. See 12A Couch on Insurance 2d (Rev'd Ed. 1981) § 45:798.

Other cases cited by the plaintiff, to the effect that "bodily injury" does not include loss of consortium by the injured person's spouse or emotional distress at having one's constitutional rights violated, do not contradict this conclusion. (1) In this case it is not questioned [3ASR2d118] that Hanipale suffered injuries. If he had been legally responsible for his own medical bills, he clearly could have recovered for them under the policy. With regard to the medical bills A.S.G. stands in Hanipale's place as the real party in interest. If A.S.G. were the only claimant in this case we would be strongly inclined to allow recovery -- if not on the ground that A.S.G. is an "injured person" within the meaning of the statute then on the equitable principle of subrogation, whereby a person who is legally obliged to pay a debt of another person and who actually does pay that debt acquires the legal rights of the creditor. (2)

The case actually before us, however, is somewhat more complicated. The question is not whether a government agency which is required to pay an injured person's medical bills can recover against the tortfeasor's insurer, but whether the [3ASR2d119] agency is entitled to funds which would otherwise become the property of the injured person himself. Although there has been no evidentiary hearing in this case, it is uncontroverted that Hanipale suffered serious brain damage requiring extended hospitalization and rendering him incompetent to manage his own affairs. A.I.U., in whose interest it would be understate rather than to exaggerate the extent of the losses suffered by Hanipale, conceded that he is entitled to recovery the entire amount at stake in this case, unless A.S.G. is held to have a claim superior to that of Hanipale.

This question has more to do with A.S.C.A § 13.0601, the law providing free medical services for American Samoans, than with the direct action statute. The Fono, in providing such services, was obviously free to attach the condition that under certain circumstances the patient would be required to reimburse the government. Although the language of the statute contains no explicit conditions, it is arguable that the legislature that enacted the statue, had it anticipated the present circumstances, would have regarded them as an implicit exception to the general rule that no American Samoan should be required to reimburse the government for medical care.

Even though the Fono chose to impose no other "means test" -- even though the very wealthiest citizens are not required to pay for their treatment -- it can be argued, and defendant A.S.G. does argue, that there is a logical distinction between (a) having money and (b) having received moneyon account of the injuries for which medical care is needed. We can find no basis, however, for imputing to the Fono the desire to make such a distinction. If Hanipale had been receiving compensation for his injury from an employer or a government agency, or if he had been given a large sum of money by a wealthy benefactor who sympathized with his plight, A.S.G. apparently concedes that it would not be entitled to reimbursement. See A.S.G. Answers to Interrogatories, #8. This would be true even though if Hanipale had not been an American Samoa and had been responsible for his own medical bills, he would have had to pay them out of the funds thus acquired.

In this case Hanipale is entitled to receive compensation from the tortfeasor's insurer to compensate him for the pain and suffering he has endured. The law regards such injuries as[3ASR2d120] compensable not on the ground that injured persons should receive windfalls, but on the ground that they have suffered real injuries that they had a legal right not to be make to suffer. (This is not to say that juries and judges do not sometimes give awards that might look more like windfalls than like compensation. But the facts of this case do not suggest that the insurance company has contrived to bestow such a windfall on Hanipale.) An award for pain suffering is, in other words, not inferior in rank or dignity to any other entitlement a person might have. We see no reason to make of such an award a unique exception to the rule that no American Samoan is required to reimburse the government for medical care, no matter what the amount or source of his wealth.

Nor should it make any difference that in this case A.S.G. made a demand on A.I.U before A.I.U. had actually disbursed the funds to Hanipale. If a policy contains a medical payment provision, or a bodily injury provision whose limit will not be exhausted by just compensation to the injured person himself, (3) then we believe A.S.G. has the right to reimbursement from the insurer for its expenses in connection with a covered injury. Where, however, the effect of a claim by A.S.G. would be to deprive the injured person of funds to which he is otherwise entitled, we believe such a claim to be contrary to the clear purpose of A.S.C.A § 13.1601, and therefore barred. Judgment will be entered for defendant Hanipale.


1. Indeed one of the cases seems to support the contention that a husband can sue an insurance company for his losses suffered as a result of a covered injury to his wife. New Hampshire Insurance Company v. Bisson, 449 A.2d 1226 (N.H. 1982), affirmed a trial court judgment that an action for loss of consortium "arises from the bodily injury to" the spouse, but was not a separate bodily injury. Thus under a policy limit of $20,000 per person and $40,000 per incident, "the policy limit has been exhausted by the payment" of $20,000 to the wife, and the husband could not recover an additional $9,000 on the theory that his was a separate bodily injury triggering the $40,000 limit. Id at 1227. The strong implication is that the husband could have recovered under the policy if the $20,000 limit had not been exhausted.

2. See generally Dobbs on Remedies 251 (1973) (citations omitted): [S]ubrogation is ...a remedy invoked by courts -- originally equity courts -- to prevent unjust enrichment, and for this purpose it is appropriate in any case where restitution is warranted and the remedy can be given without working an injustice.... Subrogation simply means substitution of one person for another; that is, one person is allowed to stand in the shoes of another and assert his rights... [T]he pattern almost always looks something like this: A debtor owes money to a creditor. For some reason ... the plaintiff pays the debtor's debt, thus satisfying the creditor's claim against the debtor. If there is no legitimate reason for the plaintiff's intervention ... the plaintiff will be described in derogatory terms as a volunteer and cast into legal outer darkness. On the other hand, if the plaintiff paid [t]he debt for some good reason...[the debtor] is unjustly enriched...[I]t seems entirely just to give the plaintiff the same rights held by the creditor whose claim he discharged.

3. The amount of such compensation will in many cases require a trial. On the state of the pleadings and the record, and especially in light of A.I.U's apparent willingness to settle with Hanipale before A.S.G. had made its claim, we do not believe this to be such a case.

Vaioli; Sagatu v.


SAGATU TEVASEU, Appellant

v.

VAIOLI PAULO, Appellee.

High Court of American Samoa
Appellate Division

AP. No. 01-86

October 31, 1986

__________

Statute prohibiting anyone but senior matai of Samoan family from bringing action to enjoin activities on communal land did not prohibit another member of family from objecting to registration of land by another family. A.S.C.A. §§ 37.0103, 43.1309.

Before REES, Chief Justice, GARDNER*, Acting Associate Justice, KENNEDY**, Acting Associate Justice, AFUOLA, Associate Judge, and A'AU, Associate Judge.

Counsel: For the Appellant, Asaua Fuimaono
For the Appellee, Malaetasi Togafau

Per GARDNER, J:

Appellee Vaioli sought to register 6 acres as communal land of the Vaioli family. Appellant Sagatu objected. He is a lesser matai of the Seigafolava family. He testified the land was the communal land of the Seigafolava family.

Seigafolava Pele is the senior matai or Sa'o of the Seigafolava family. He testified that this land does not belong to the Seigafolava family but to the Vaioli family. Therefore, he had no objection to this registration. The court held that Sagatu has no standing to object to this registration since the sa'o of the family had no objection.

That holding was error.

Under a section of the American Samoa Code Annotated labeled § 41.1309 but found in Title 43 (should be A.S.C.A § 43.1309) only the sa'o is authorized to bring an injunction action. This is not such an action. This is a land registration [3ASR2d98] proceeding. Under A.S.C.A § 37.0103anyone claiming an interest adverse to that of the applicant may file an adverse claim. Under that section this appellant had standing.

Thus the matter is remanded to the trial court for a decision on the merits.


*Honorable Robert Gardner, Chief Justice Emeritus, High Court of American Samoa, serving by designation of the Secretary of the Interior. ** Honorable Anthony M. Kennedy, Judge, United States Court of Appeals for the Ninth Circuit, serving by designation of the Secretary or the Interior.




American Samoa Gov’t; Aga v.


PAMATA AGA, Plaintiff

v.

U.S. SECRETARY OF INTERIOR, AMERICAN SAMOA 
GOVERNMENT, LBJ TROPICAL MEDICAL CENTER, DR. CLAUDE 
DALTON-JAGH, DOES I THRU XX, Defendants

High Court of American Samoa
Trial Division

CA. No. 109-86

December 19, 1986

__________

In order for a government subdivision to be a separate entity capable of suing or being sued in its own name, such status must bestowed by statute or constitution.

Plaintiff alleging injury by employee of territorial government had the option, in accordance with territorial statute, to bring an action against the employee or to waive this action and follow statutory procedures for making a claim against the government. Government Tort Liability Act, A.S.C.A 43.1201 et seq.

Before MURPHY, Associate Justice.

Counsel: For Plaintiff, Charles Ala'ilima
For Defendants ASG et al, Martin Yerick, Assistant Attorney General
For Defendant Secretary of the Interior, Michael Kruse

On October 21, 1986 Plaintiff brought this action under and pursuant to the Government Tort Liability Act. Chapter 12, Title 43, A.S.C.A Plaintiff pled compliance with the requisite jurisdictional requirements as provided in the Act. Plaintiff's claim is based upon a theory of medical malpractice. She has named as defendants, in addition to the Government of American Samoa, the L.B.J. Tropical Medical Center, Dr. Claude Dalton Jagh, the United States Secretary of the Interior and Does 1 through XX. The Attorney General has moved for an order striking defendants L.B.J. Tropical Medical Center and Dr. Claude Dalton-Jagh from the complaint.

The Attorney General argues that the remedy provided under the Act is exclusive and the Plaintiff can only proceed against A.S.G as the sole defendant. [3ASR2d130]

The Court notes that there is an additional ground for dismissal as to L.B.J. It is common knowledge that the Medical Center is operated and administered by A.S.G.

Title 13 of the American Samoa Code Annotated provides for the establishment within the executive branch of A.S.G. Territorial Medical Facilities, but there is no provision that any facility so established can sue or be sued. Keifer & Keifer v. R.F.C., 306 U.S. 381 (1939), presaged the idea of governmental tort liability and the issue of what agencies can be sued. See for example: Kozikowski v. Delaware River Port Authority, 397 F. Supp. 1115 (D.N.J. 1975), Edelman v. F.H.A., 382 f.2d 594 (2d Cir. 1967) (opinion at 251 F. Supp. 715). In order for a governmental subdivision to be a party defendant (or plaintiff) that power must be created by statute or constitution. Simply designating a facility by name does not create a separate entity.

Ordinarily various departments and sub-divisions of the government are the responsibility of the executive, ie; A.S.G. Can you sue a police sub-station? A bus stop? Can "Montoya Corner" be a defendant? We think not, ergo L.B.J. Tropical Medical Center should be stricken as a party defendant.

We now turn to the issue of whether or not the government employee can be sued. The answer is he can, except when the plaintiff elects to proceed under the Government Tort Liability Act. (SeeMoana et al. v. A.S.G., CA No. 133-85, December 18, 1986, High Court Trial Division.)

The determinative provisions of the statute are 43.1211 (a): "The remedy by suit against the government as provided by this chapter for damage ... or personal injury ... caused by the negligent or wrongful act or omission of any employee of the government acting within the scope of his ... employment shall hereafter be exclusive of any other civil action of proceeding by reason of the same subject matter against the employee whose act or omission gave rise to the claim..."

Paragraph (b) of the same section provides in pertinent part that the Attorney General is to defend any such action brought against an employee of the government. [3ASR2d132]

This is pretty straightforward language and the reasoning behind it is readily apparent. The Act is essentially a waiver of sovereign immunity. Richards v. United States 369 U.S. 1 (1962). The government being the "deep pocket" wants to retain control of the litigation.

A judgment taken under this chapter constitutes a complete bar to any action against the employee. A.S.C.A § 43.1207. In the event a judgment is not taken, as for example, if the employee was found not to be acting within the scope of his employment as suggested by Plaintiff's counsel in his memorandum, then of course an action can be maintained against the employee. However, until that occurs, so long as Plaintiff is proceeding under the Act, she can only sue A.S.G. Accordingly the motion to strike L.B.J. Tropical Medical Center should be granted on both grounds above stated and Dr. Claude Dalton-Jagh should also be stricken as a party defendant. The Secretary of Interior has not joined in the motion to strike. The Court does not have the temerity to strike him absent a motion since perhaps he is planning on coming to Samoa to personally defend.

Motion to strike granted this 19th day of December, 1986.

**********

Vaimaona v. Paleafei,


VAIMAONA FOLOI and FAMILY, Appellants

v.

PALEAFEI TAVESI and FAMILY, Appellees

High Court of American Samoa
Appellate Division

AP No. 09-85

October 31, 1986

__________

Visit by one member of court to land that was the subject of litigation, and subsequent report of that judge to other judges, did not constitute impermissible "testimony" by the judge when both counsel had been present at the viewing of the land and no objection had been made.

Before REES, Chief Justice, GARDNER*, Acting Associate Justice, KENNEDY**, Acting Associate Justice, OLO, Associate Judge, and AFUOLA, Associate Judge.

Counsel: For the Appellants, Aviata Fa'alevao
For the Appellees, Albert Mailo

Per KENNEDY, J.:

Appellant Vaimaona Foloi challenges the decision of the Land & Titles Division of the High Court of American Samoa determining that appellee Paleafei Tavesi ahd his family had a stronger claim to the land known as Ululoloa, and restraining members of Vaimaona's family from going onto this land without permission of the matais of the Paleafei family. We affirm.

Visits by judges to land over which title is disputed are not uncommon. See, e.g., Nua Kone v. Leomiti, 4 A.S.R. 404, 406 (Trial Div. 1963); Sa v. Fia, 4 A.S.R. 437, 438 (Trial Div. 1963). In this case only one member of the court attended at the time and place set for the view, and Vaimaona asserts this taints the proceedings, noting further that the trial judge who did take view reported his findings in detail to the rest of the court.

We reject Vaimaona's contention that the proceedings were tainted. Counsel for both parties were present and participated in the view with the judge. No objection was made by either counsel.[3ASE2d93] The parties thus waived any irregularity in having a formal view by less than all, or less than a majority, of the panel.

The court's finding that "no one actually lives on the land in question" is not clearly erroneous, based as it is on the testimony of witnesses whose reliability the court had the chance to evaluate, as well as the judge's own view of the property.

The decision of the Land and Titles Division of the High Court of American Samoa is AFFIRMED.


* Honorable Robert Gardner, Chief Justice Emeritus, High Court of American Samoa, serving by designation of the Secretary of the Interior. ** Honorable Anthony M. Kennedy, Judge, United States Court of Appeals for the Ninth Circuit, serving by designation of the Secretary of the Interior.


Horning; Senate Select Investigating Committee v.


SENATE SELECT INVESTIGATING COMMITTEE, Petitioner

v.

LARRY HORNING, Respondent

High Court of American Samoa
Trial Division

CA. No. 59-86

May 22, 1986

__________

In deciding whether questions asked a witness by members of a legislative committee were relevant to the committee's charter, a court should impose no stricter standard than it would impose on itself in a similar case.

Questions about the disposal of government property were relevant to an inquiry into the causes of a government budget deficit.

Committee created by one house of the legislature is a committee "of the legislature" within the meaning of territorial statute authorizing committees to subpoena witnesses. A.S.C.A. §§ 2.1003 et seq.

Territorial statute requiring legislative committees to adopt rules to govern their procedures, and requiring that person served with subpoenas also be served with a copy of the rules was not satisfied by a committee's decision to adopt as "rules" the provisions of the statute itself. A.S.C.A. §§ 2.1003 et seq.

Committee's failure to comply with a statute requiring it to adopt rules and to serve a copy of these rules on person served with subpoena justified the refusal of a person served with subpoena to testify. A.S.C.A. §§ 2.1006. 2.1011, 2.1018.

Befoe REES, Chief Justice, LUALEMAGA, Associate Judge, and OLO, Associate Judge.

Counsel: For the Petitioner, Michael Lash
For the Respondent, Roy J.D. Hall, Jr.

The Senate Select Investigating Committee was established by a resolution of the territorial [3ASR2d15] Senate in order to enable the Senate "to fully explore the cause of the overspending of the 1985 annual budget, and determine what procedures need to be implemented to prevent future deficits." One of the witnesses subpoenaed to testify was Larry Horning, general manager of Southwest Marine of Samoa, Inc. Horning was commanded by the subpoena to testify and to bring documents relating to certain financial transactions between the American Samoa Government (hereafter A.S.G.) and Southwest Marine. On April 30, 1986, Horning appeared before the committee with his legal counsel and refused testify on the matters covered in the subpoena on the ground that they were irrelevant to the committee's investigation. On May 8 the Committee applied to the High Court for a citation of contempt against Mr. Horning, in accordance with A.S.C.A. § 2.1016(b).

Counsel for respondent Horning argues that the subpoena is invalid for a number of reasons: that the matters referred to in the subpoena were irrelevant to the question of the 1985 budget deficit; that the committee failed to accord Horning due process of law as required by the United States and American Samoa Constitutions; and that the committee failed in various respects to comply with the requirements imposed by A.S.C.A. §§ 2.1003-1018 for an investigative committee to compel the testimony of witnesses.

I. RELEVANCE

The transactions on which Mr. Horning was called to testify were Southwest Marine's lease of the Marine Railway from A.S.G.; an agreement by which A.S. G. paid for the towing of a crane from the Phillipines to American Samoa in exchange for the completion of certain construction by Southwest Marine that A.S. G. had previously undertaken to complete; and the alleged transfer of certain tools and equipment by A.S.G. to Southwest Marine. Counsel for Horning argues that these transactions are not legally relevant to the committees inquiry into the1985 budget deficit since they did not involve the expenditure of A.S.G. funds attributable to the1985 budget. The towing of the crane was the only transaction in which the A.S.G. actually spent money, and it seems to be undisputed that this money was from old accounts receivable of the Marine Railway (including some accounts receivable from departments of the A.S.G.) rather than from the general revenue of the A.S.G. during 1985. [3ASR2d16]

The standard of relevance which counsel for Horning urges the Court to impose on the committee seems far narrower than the standard the Court would impose on itself in a similar case. See Rules of Evidence of the Judiciary of American Samoa, Rule 401: "'Relevant' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." (Emphasis added.) If money was spent by A.S.G. during fiscal year 1985 that might otherwise have been available to spend on other things in order to reduce the deficit, or if valuable rights and property belonging to A.S.G. were surrendered that might conceivably have been surrendered to someone else for a different price, then those transactions would seem prima facia to be relevant to an inquiry into the "cause" of the deficit. This is true regardless of whether any money from general revenues actually changed hands, provided only that the resources expended might legally have been used for purposes for which general revenues were spent. This is not to suggest or imply that Horning, Southwest Marine, or A.S.G. were guilty of any impropriety in any of these transactions, or even that they did in fact result in a higher deficit. Nor does the Court sit in judgment on the wisdom or desirability of the inquiry. Rather, the Court merely declines to rule that inquiry into transactions involving the use or disposal of government resources is outside the competency of a committee charged with investigating a deficit.

This does not mean that anyone doing business with the government automatically subjects himself to the opening of all his books and the revelation of all his secrets to any government official who cares to ask. Counsel for Horning cites a number of federal cases for the proposition that questions must indeed be relevant to the inquiry for which a committee is legally constituted. In a few cases involving constitutionally protected rights such as speech or political association, the United States Supreme Court has even imposed quite stringent standards of relevancy on legislative committees. See, e.g., Barenblatt v. United States, 360 U.S. 109 (1959); Watkins v. United States 354 U.S. 178 (1957). Moreover, A.S.C.A. §2.1016 provides that a witness can be cited for contempt only for refusing to answer "relevant" questions or to provide "relevant" documents. If the committee were to inquire into Horning's political or [3ASR2d17] religious beliefs, or even into business matters whose connection to A.S.G. resources was so attenuated as to make it implausible to inquire whether the deficit might have been higher or lower if they had not happened, then it would violate these strictures. The subpoena actually served on Mr. Horning does not, however, suggest any such inquiry.

II. DUE PROCESS

Counsel for the respondent urges that his client's constitutional right to due process of law is violated by this proceeding in several respects:

First, if this proceeding were one in which the respondent might be found guilty of criminal contempt and punished by a jail sentence, counsel urges that his client would be entitled to a trial by jury, the right not to be a witness against himself, and other constitutional rights accorded criminal defendants. At the May 20 hearing, however, the Court ruled that this proceeding will be construed simply as one to show cause why the respondent should not be ordered to testify before the committee and to suffer civil penalties, including possible future contempt citations, in the event he were to refuse. These issues are therefore not raised at this time.

Second, counsel urges that the proceeding violates his client's due process rights insofar as it requires him to answer irrelevant questions. This contention has already been dealt with.

Third, counsel argues that the proceeding violates his client's rights to notice, a fair hearing, and the effective assistance of counsel. Counsel's argument on these points closely parallels his argument that the committee did not comply with the statutory provisions of A.S.C.A. § 2.1003-18. In light of out holding on that question, it is unnecessary to reach the constitutional question.

III. COMPLIANCE WITH THE "CODE OF FAIR PRACTICES."

The statute governing legislative investigatory committee in American Samoa in codified as A.S.C.A. § 2.1003-18, the "Code of Fair Practices." Counsel for respondent argues that the committee failed in several important respects to comply with the legal requirements imposed by this Code. [3ASR2d18]

First, it is argued that the failure of S.R.51 to state specifically that the Select Investigating Committee shall have power to subpoena witnesses and documents means that it does not have such powers -- and indeed is not a legislative investigative committee at all, since A.S.C.A. §§ 2.1004(a) defines such a committee as one having the power to compel the testimony of witnesses and the production of papers. This argument is without merit, since S.R. 51 explicitly provides that the committee "shall have all powers of an investigating committee authorized by Title 2, Chapter 10." Moreover, the resolution states that the committee's "duty" shall be to "gather evidence, testimony, and relevant documents."

It is also contended that the committee is not an "interim committee" within the meaning of A.S.C.A. § 2.1016, and is therefore not authorized to apply to the High Court for a citation of contempt since it may remain in existence until the next regular session of the legislature. In the absence any contrary legislative history offered by either party, the most obvious meaning of the word "interim" is to designate precisely a committee such as this one, which sits between legislative sessions. It would seem that the statutory authorization to apply to the High Court for a contempt citation is designed to allow such a committee to proceed with its business without waiting for the next regular legislative session.

Counsel also urges that the powers of an investigative committee can be conferred only on a committee composed of members of both houses of the legislature, and that a committee must be vested by the whole legislature with the power to compel testimony. This is not an implausible construction of the statute, since the title of A.S.C.A. § 2.1005 is "Establishment of investigating committees by the Legislature." The text of that section, however, provides for establishment of committees not "by the legislature," but merely by "resolution or statute," without specifying a one-house or two-house resolution. Moreover, the statute also refers; to "a standing or select committee of the Legislature" (A.S.C.A. § 21004(a)) , although standing committees are customarily of only one house of the legislature. This strongly suggests that a select committee of one house is also a committee "of the Legislature" within the statute. Insofar as each house has traditionally established its own committees, a resolution of either house establishing a committee [3ASR2d19] therefore constitutes creation of a committee "by the Legislature" within the meaning of the title of § 2.1005.

Finally it is urged that the committee failed to comply with the statutory requirements that "each investigative committee shall adopt rules to govern its procedures, including the conduct of hearings" (A.S.C.A. § 2.1006) and that any person who is served with a subpoena also shall be served with a copy of the rules under which the committee functions (A.S.C.A. § 2.1011(b)). Counsel for the committee maintains that the committee fulfilled these requirements by voting to adopt as rules the procedural provisions of Title 2, chapter 10." The problem with this argument is that one of the provisions of chapter 10 is that "each committee shall adopt rules, not inconsistent with law . . . " to govern its procedures A.S.C.A. § 2.1006 (emphasis added). The legislature must have intended that each committee adopt rules for the conduct of its hearings beyond the general provisions of the statute itself since otherwise § 2.1006 would be entirely superfluous. The provisions of chapter 10 are automatically binding on every investigative committee. In providing that each committee "shall" (not "may") adopt rules, the section requires that the committee do more than vote to impose on itself no rules at all other than those already imposed by law. In any case, there is no evidence in the record that the committee complied with the explicit requirement of § 2.1011(b) that it provide Mr. Horning with a copy of its rules.

The final section of the Code of Fair Practices provides that "if any investigating committee failed in any material respect to comply with the requirements of this chapter, any person subject to a subpoena who is prejudiced by such failure shall be relieved of such compliance." A.S.C.A. § 1018(b). It is difficult to be absolutely certain whether the failure of the committee to adopt rules was material and prejudicial to Mr Horning. The Court can neither dictate to the committee thee substance of the rules it may adopt nor hypothesize which rules it would have adopted if it had adopted rules. It is therefore impossible to say whether Mr. Horning would have been excused from testifying on the matters to which he objected, or allowed to read his counsel's statement into the record, if the committee had been operating under written rules of evidence adopted in advance rather than deciding [3ASR2d20] each question as it arose. Similarly, it is impossible to say that Mr. Horning would have refused to testify if he had had the confidence that his rights would be protected in accordance with written rules supplied to him in advance. Since A.S.C.A. § 2.1006 and 2.1011(b) seem designed to obviate precisely the kind of confrontation that occurred in this case, this Court is not prepared to hold that the committee's failure to comply with the law was immaterial or that Mr. Horning was not prejudiced thereby.

CONCLUSION

The committee is not prohibited by law from compelling Mr. Horning to supply the evidence it seeks, but most comply with all the provisions of the Code of Fair Practices enacted by the legislature in order to do so. Specifically, the committee must adopt specific rules to govern its procedures, including the conduct of hearings. A copy of these rules must accompany any subpoena.

In accordance with A.S.C.A. § 2.1018(b), the application for a citation of contempt is denied.

**********

Gibbens; Samoa v.


OTI SAMOA, Plaintiff

v.

SAM GIBBENS & PRISCILLA GIBBENS, Defendants

High Court of American Samoa
Trial Division

CA. No. 89-86

December 5, 1986

__________

That part of a witness's testimony is false may show that other parts of his testimony are also false.

When the court concludes by a preponderance of the evidence that defendants were the innocent victims of a lawsuit brought to recover money that the plaintiff knew they did not owe, the court may award the defendants their attorney's fees.

Before REES, Chief Justice, VAIVAO, Associate Judge.

Counsel: For the Plaintiff, Charles Alailima
For the Defendant, Aviata Fa'alevao

This case concerns a failed relationship between landlord and tenants. Its outcome depends on which of two starkly different versions of the events surrounding the termination of what relationship the Court believes. According to plaintiff Oti Samoa, in July of 1983 his house in Aua was a dream cottage needing only a little tender loving care. Although he could have rented it to a palagi family for $350 per month, he chose instead to let the Gibbens family have it for $150. In return they were to do some work on the house and the yard. Instead they failed to pay rent, destroyed furniture, dumped rubbish in the yard, clogged the stream behind the yard so that it flooded and destroyed the foundation of the house, and even took the front door from its hinges and left if outside. Samoa's complaint asks for $4800 for his loss of "fair market rental return as a result of his discounted rent agreement," and also for damages to the property in the amount of $3,285. (At trial he [3ASR2d122] estimated that the damages were actually much higher.)

Sam and Priscilla Gibbens testified that the place was a mess when they moved in. Although they deny entering into a "discounted rent agreement," they testified that they did a lot of work on the house and yard in order to make them livable. The front door, Mrs. Gibbens said, had no doorknob, so they replaced it with one that did. They destroyed no furniture, and paid rent regularly in accordance with Mr. Samoa's complex and whimsical instructions as to times, places, and manners. Mrs. Gibbens says they dumped no rubbish in the yard, although Mr. Gibbens says he dug a deep hole in a far corner of the lot for this purpose. They were forced to move not because of any problems with their tenancy but because Mr. Samoa and his son returned to the territory so that his son could take a government job. When they moved out Mr. Samoa inspected the house and found no problems with it. They suggest that any damage to the house and furniture was done later by Mr. Samoa's son, about whom he once called the police after an alleged drunken rampage resulting in destruction of property. (Mr. Samoa says his son only destroyed a couple of things, not the things he is blaming the defendants for.)

In cases like this it is helpful to have "objective" sources of evidence. If there had been a written contract, or if either side had brought in any of the several eyewitnesses to whom they alluded in their testimony, our task would be easier. The only outside witness, however, was a neighbor called by Mr. Samoa whose testimony was slightly favorable to the Gibbenses but whose apparent primary concern was to say nothing bad about either side.

On balance, we believe Mr. and Mrs. Gibbens. Although there were contradictions and gaps in each side's story, the demeanor of the defendants and the general consistency and plausibility of their story were more impressive than those of the plaintiff. In particular, we note that Mr. Samoa initially testified that he hd taken the pictures of the house and yard which were his principal evidence, and that he had taken them the day after the defendants moved out. When defendant's counsel thought he noticed Mr. Samoa in one of the pictures, Mr. Samoa said the photographer was actually his daughter. Later a niece testified that she took the pictures after Mr. Samoa and his son had been living in the house for some time. [3ASR2d 123] The defendants' unrebutted account of the disposition of their rent receipts -- that Mr. Samoa had asked for them on the pretext of bringing a lawsuit against his former attorney, and had subsequently been unwilling to return them -- also had the ring of truth, as did Mrs. Gibbens' account of her efforts to turn the house into a decent home for her family.

Judgment will therefore be entered for the defendants on the principal complaint. Defendants did not, however, present any evidence in support of their counterclaim, and even testified that they had vacated the premises voluntarily and allowed Mr. Samoa to keep their security deposit as a sort of good will gesture. Plaintiff therefore prevails of the counterclaim.

This is one of those rare cases in which manifest injustice will result from the usual rule that each party is required to bear the burden of his own attorney's fees. The Court has found, if only a preponderance of the evidence, that Mr. and Mrs. Gibbens were the innocent victims of a lawsuit that was not a good-faith effort to recover money that was arguably owed. They will therefore be awarded reasonable attorney's fees in an amount not to exceed the amount they actually contracted to pay their attorney, and excluding any fees for the preparation of the counterclaim. The requested fee award should be submitted to the court by written motion.

Court costs are assessed against the plaintiff.

**********

Ape v. Puagele,


APE POUTOA, Appellant

v.

SIAGATONU PUAGELE on behalf of PUAGELE HEIRS, and
TUPUA LOE on behalf of the TUPUA FAMILY, Appellee

High Court of American Samoa
Appellate Division

AP. No. 27-85

November 23, 1986

__________

Territorial statute giving court power to suspend procedural rules that would lead to inequitable result does not give court power to suspend rules of substantive law. A.S.C.A. § 3.0242.

Court had no power to create a new kind of land tenure inconsistent with Samoan customary law.

Before REES, Chief Justice, MURPHY, Associate Justice, KENNEDY, Acting Associate Justice, LUALEMAGA, Associate Judge, and OLO, Associate Judge.

Counsel: For the Appellant, Michael Kruse
For Appellee Tupua, Malaetasi Togafau
For Appellee Puagele, Monike Failauga

Before REES, C.J.:

This case rose when Appellee Siagatonu Puagele attempted to register the land Talisau in Olosega as the individual property of himself and certain of his relatives. Appellant Ape objected, claiming that Talisau was communal land of the Ape family. During the course of the proceedings Ape conducted a survey at which Appellee Tupua took offense on the ground that it encroached on Tupua family land. Tupua's complaint was then consolidated with the case between Puagele and Ape.

The trial court found that Talisau was Ape family land but that the Puageles had long been permitted to live on it. The court held "under its powers in equity" that Ape and the Puagele should henceforth both have the right to live on the land. The court added that its decision would "have no precedential value." [3ASR2d109]

The trial court also found that Ape's survey encroached on the land of Tupua.

Ape has appealed the first holding on the ground that the trial court misconstrued its power to achieve an "equitable" solution where strict application of rules imposed by law would be harsh. Counsel correctly points out that A.S.C.A. § 3.0242 gives the court such flexibility with regard only to rules of procedure, not to substantive law. Counsel for appellant further observes that the trial court's decision appears to give the Puageles "an unconditional right to occupation," and that "this appears to be an incident or right in excess of what family members have."

Counsel for appellee Siagatonu Puagele, meanwhile, asserts in his brief that the Puageles are blood members of the Ape family. Although neither side was interested in proving this at trial and it is unclear whether the record supports it, counsel's judicial admission does suggest a solution. The record shows that ancestors of the Puageles were originally permitted to live on Talisau by members of the Ape family, and there is evidence that during at least some of the intervening years the Puagele family (which the trial court found not to be a traditional Samoan aiga with its own matais) rendered service to Ape. We therefore modify the trial court judgment to provide that the Puageles will have the right to reside on Talisau so long as they serve Ape. Their rights will be neither greater nor less than those of any blood members of the Ape family. This solution should be more acceptable to Ape than the trial court decision; it is consistent with the Puagele's claim that they are blood members of the Ape family; and it avoids the judicial imposition of a new kind of land tenure inconsistent with Samoan customary law. It has the added advantage of being the surest way to fulfill the trial court's wish that its decision should "have no precedential value."

We affirm the trial court's holding with respect to the boundary between Talisau and the land of the Tupua family. There was ample evidence in the record to support the trial court's finding that the original boundary was a line of coconut trees, on which Ape's house encroaches by fifteen feet and his survey by fifty feet, and that the house had been built with permission of the Tupua family. We do not believe that Tupua was barred by A.S.C.A. § 43.0302 from defending his property [3ASR2d111] rights against possible encroachment in a lawsuit that was already proceeding without his participation. While the device of filing a complaint and then seeking consolidation with the ongoing suit might not have been particularly elegant, it amounted in substance to a motion to intervene, which would not have been barred by the statute.


*Honorable Anthony M. Kennedy, Judge, United States Court of Appeals for the Ninth Circuit, serving by designation of the Secretary of the Interior.

American Samoa Gov’t; Uiliata v.


FILITAI UILIATA, Appellant

v.

AMERICAN SAMOA GOVERNMENT, Appellee

High Court of American Samoa
Appellate Division

AP. No. 13-86

October 31, 1986

__________

When criminal defendant has agreed to plead guilty in exchange for agreement by prosecutor's recommendation is not binding on the court and that he will have no right to withdraw hid guilty plea if the court imposes a harsher sentence. Rule 11(e)(2), Trial Court Rules of Criminal Procedure.

Before REES, Chief Justice, GARDNER*, Acting Associate Justice, KENNEDY**, Acting Associate Justice, LUALEMAGA, Associate Judge, and AFUOLA, Associate Judge.

Counsel: For the Appellant, Malaetasi Togafau
For the Appellee, William Wallace

Per GARDNER J.:

Filitai Uiliata appeals the trial division's denial of a motion to withdraw a plea of guilty to first degree assault. We reverse.

Filitai originally pled not guilty to first degree murder. Before trial, however, he entered into an agreement with the government. Under the agreement, Filitai pled guilty to first degree assault in return for the government's recommendation of a ten-year sentence, suspended, the first three years to be spent outside the Territory. Both sides fulfilled their parts of the bargain, and the trial division took the matter under consideration.

Ultimately the trial division imposed a harsher sentence: ten years, the first three to be spent in prison, the remaining seven outside the Territory. Filitai filed a motion to withdraw his plea, claiming that Rule 11 of the High Court Rules of Criminal Procedure entitled him to do so because he had not received the sentence for which he [3ASR2d103] bargained. The trial division denied the motion, and Filitai now appeals the ruling.

Rule 11, which resembles the corresponding Federal Rule of Criminal Procedure, provides guidelines for the plea bargaining process. Under § 11(e)(i), the government may do any of the following:

(a) move for dismissal of other charges; or
(b) make a recommendation, or agree not to oppose the defendant's request,
for a particular sentence, with the understanding that such recommendation
or request shall not be binding upon the court; or
(c) agree that a specific sentence is the appropriate disposition of the case.

Under § 11(e)(2), if the agreement is of the type specified in subdivision (b), the court must advise the defendant that if it does not accept the recommendation or request, the defendant nevertheless has no right to withdraw his plea.

In this case, the trial division warned Filitai that he was pleading guilty to a serious charge, that the government's recommendation would receive consideration, but that it would not necessarily be followed. It did not advise Filitai, however, that he would have no right to withdraw his plea if the government's recommendation was not followed. We must conclude, then, that the trial division failed to comply with notice requirements of § 11(e)(2).

The rationale for the notice requirements, which were added to the Federal Rules in 1979, is explained in the Advisory Committee Notes as follows:

Because a type (b) agreement is distinguishable from the others in that it
involves only a recommendation or request not binding upon the Court,
it is important that the defendant be aware that this is the nature of the
agreement into which he has entered. The (notice requirement) will
establish for the record that there is such awareness.

The remedy for violation of the notice requirements is clear: withdrawal of the guilty plea and opportunity to plead anew. United States v. Missouri Valley Construction Co., 704 F.2d 1026, [3ASR2d104] 1029-30 (8th Cir. 1983). Thus, even though there is evidence that Filitai understood the nature of his agreement with the government, the mandate of § 11(e)(2) compel us to reverse his conviction and remand with instructions that he be given an opportunity to plead anew.

REVERSED.


*Honorable Robert Gardner, Chief Justice Emeritus, High Court of American Samoa, serving by designation of the Secretary of the Interior. ** Honorable Anthony M. Kennedy, Judge, United States Court of Appeals for the Ninth Circuit, serving by designation of the Secretary of the Interior.

American Samoa Gov’t v. Tauasosi,


AMERICAN SAMOA GOVERNMENT

v.

PIO TAUASOSI, Defendant

High Court of American Samoa
Trial Division

CR. No. 25-86

October 20, 1986

__________

Cases in other jurisdictions taking an extremely narrow view of the power of courts to construe indictments, motivated by a vestigial regard for the technical rules of common law pleading or by concern for the separation of powers between grand juries and prosecutors, are not helpful in determining the validity of a criminal information in a territory that does not have grand juries and in which pleadings are to be construed in order to do justice. Rule 7, Trial Court Rules of Criminal Procedure.

The sufficiency of a criminal information is to be judged by whether it states the essential facts of the alleged crime in a way that gives the defendant fair notice of what he is being charged with. Rule 7, Trial Court Rules of Criminal Procedure.

Language in an information alleging that defendant "fired a shotgun toward certain people" implicitly charged that defendant intended the probable results of such an act. Rule 7, Trial Court Rules of Criminal Procedure.

Where a criminal information was otherwise sufficient to charge intentional second degree murder, and where throughout the proceedings the prosecution had obviously been attempting to prove that defendant had acted intentionally and there had been no objection from defense counsel, the inclusion of the word "recklessly" in a part of the information separate from the description of the alleged conduct was mere surplusage rather than an essential limiting term in the information.

Where prosecution explicitly and unequivocally argued that the defendant should be found guilty of intentional second-degree murder, and defense [3ASR2d67] counsel responded by contesting the charge on the merits rather than by asserting its inconsistency with the information, defense counsel had waived any variance between the information and a conviction of intentional second degree murder or any lesser included offense.

Before REES, Chief Justice, and VAIVAO, Associate Judge.

Counsel: For the Government, Tauivi Tuinei, Assistant Attorney General
For the Defendant, Michael Bennett, Assistant Public Defender

Defendant was charged with one count of murder in the second degree and two counts of assault in the first degree. The government alleged that during a dispute between defendant's family and a neighboring family in the village of Amaluia, the defendant had fired a shotgun at a group of boys, killing Taesale Nelson and injuring two others.

At trial there were two issues: whether defendant actually fired the fatal shot and whether he did so under the influence of an extreme mental or emotional disturbances such as would reduce the crime to manslaughter.

Defendant had confessed to firing a shotgun at some person or persons whom he believed to have set a fire in an unoccupied house owned by his father. The part of his statement admitted into evidence did not indicate, however, whether his shot actually hit anyone. The person or persons at whom he fired were standing by a mango tree near the house, which is where the two surviving boys testified they had been standing. One of the people at whom the defendant shot had thrown something at the house; one of the injured boys admitted having thrown rocks at the house, ostensibly in an attempt to put out the fire.

No witness, however, definitely identified the defendant as having fired the fatal shot. There was some testimony (albeit vague and of uncertain reliability) concerning another gun and perhaps other shots at Amaluia that night. Nor was there any ballistics evidence establishing whether defendant's shotgun was the murder weapon; unlike a rifle bullet, a pellet fired from a shotgun does not yield its source upon expert examination, and it is not clear whether other tests would have been helpful.[3ASR2d68]

At the conclusion of the evidence, both judges were strongly of the opinion that the shot fired by the defendant was the same one that killed Sale Nelson and injured the two other boys. We did not, however, believe that the evidence established this beyond a reasonable doubt. We were therefore bound to acquit the defendant of murder.

The Court did find, however, that the defendant fired at someone. We rejected defense counsel's contention that a defendant's belief that someone has set fire to a vacant building constitutes an "extreme mental or emotional disturbance for which there is a reasonable explanation or excuse" sufficient to convert murder into manslaughter. Noting the well-established presumption that one who fires a gun at someone intends to kill him, the Court therefore found defendant guilty of assault in the first degree. The Court based this verdict on A.S.C.A § 46.3520(a)(2) (A person commits assault in the 1st degree if ... he attempts to kill or to cause serious physical injury to another person.")

Since the evidence did not establish beyond a reasonable doubt either that the defendant had intended to shoot more than one person or that he actually did shoot more than one person, he was acquitted of the two second-degree assault counts.

Several days after the verdict had been rendered, defense counsel moved for arrest of the judgment. The basis for this motion was that the Court had convicted the defendant of a crime with which he was never charged.

It is true that the information on which the defendant's conviction was based charged only second degree murder. The defense concedes, however, as it clearly must, that if first degree assault is an offense included within the crime charged in the information, the conviction is valid. A.S.C.A § 46.3108. The defendant was convicted of first degree assault on the ground that he attempted to kill someone, and an attempt to commit a crime is always an offense included within the crime. A.S.C.A § 46.3108(3). The defense argues, however, that defendant was charged only with a particular kind of second degree murder, and that the offense of first degree assault is not included within this kind of murder. [3ASR2d69]

The operative language in the information is as follows:

The above named defendant is charged with the crime of Murder in the Second Degree in that on or about April 12, 1986, at or around 11:00 p.m., at or near Amaluia, American Samoa, he recklessly engaged in conduct which create (sic) a grave risk of death and thereby causes the death of another person, to wit: defendant fired a shotgun toward certain people at night causing the death of Taesale Nelson in violation of A.S.C.A 46.3503; Murder in the Second Degree; A Class A felony; Maximum penalty - Life Imprisonment.

The defendant's contention is based on the inclusion of the word "recklessly" in the information: Since he was charged not with intentional murder but with mere recklessness, an attempt cannot be included within the charge. There is no such thing as attempted recklessness, since an attempt requires intent whereas recklessness implies something less than intent.

Before addressing defendant's argument it is necessary to clarify the standards against which the information must be judged. There are many thousands of reported cases from other jurisdictions concerning the sufficiency of indictments and information. Many of these cases take an extremely narrow view of the power of courts to construe such documents. These decisions seem to have been motivated by three principal concerns:

 

    • The need for a defendant to have adequate notice of the nature of the charge against him in order to prepare his defense;

 

    • Regard for the separation of powers between grand juries, which have the sole power to indict, and courts, which must take indictments as they find them;

 

    • A vestigial English common law attitude toward documents used to commence legal proceedings. Prior to the reforms instituted in most United States jurisdictions within the last hundred years, failure to plead properly was fatal to a civil or criminal action even when the failure was purely technical and everyone knew the intended [3ASR2d70] meaning of the pleadings. Even after the attempted legislative repeal of this situation, some courts have continued to apply hypertechnical rules of pleading to criminal indictments.

 

We in American Samoa need be concerned only with the first principle. (1) Indictment by a grand jury is not required by law; rather, A.S.C.A § 46.1220 provides that felonies shall be initiated by criminal information. Moreover, the Territorial Court Rules of Criminal Procedure make it clear that the information need not comply with traditional common law standards so ling as it includes a "plain, concise and definite written statement of the essential facts constituting the offense charged." TCRCrP Rule 7. Cf. Hagner v. United States, 285 U.S. 427, 431 (1932) ("The rigor of old common law rules of criminal pleading had yielded, in modern practice, to the general principle that formal defects, not prejudicial, will be disregarded.") This standard is essentially the same as that imposed by the Sixth Amendment to the United States Constitution, which guarantees the accused the right "to be informed of the nature and cause of the accusation."

We believe that the test imposed by the Constitution and by Rule 7 -- that the information state the essential facts in a way that gives the defendant fair notice of what he is being charged with -- was met in this case.

The information stated that defendant "fired a shotgun toward certain people at night causing the death of Taesale Nelson." Standing alone, this language would have been enough to support a conviction for intentional second degree murder. It is well established that a trier of fact is justified in finding, from the fact that the defendant has fired a gun at someone, that he [3ASR2d71] intended to kill that person. See, e.g., Morgan v. State, 242 A.2d 831 (Md. App. 1968); Young v. State, 384 S.W.2d 710 (Tex. App. 1964); State v. Buchanan, 252 P.2d 524 (Idaho 1953). The absence of the word "intentionally" in the description of the defendant's act, therefore, does not affect its validity or its meaning. An indictment or information "must be read to include facts which are necessarily implied by the specific allegations made." United States v. Silverman, 430 F. 2d 106, 111 (2d Cir. 1970), cert. Denied, 402 U.S. 953 (1971). Thus, for instance, the failure of an indictment to charge that an act was done "willfully" is no bar to conviction of a crime of which willfulness is one of the elements, provided that willfulness is implicit in the allegations set forth. Phelps v. State, 439 So. 2d 733 (Ala. App. 1983), and cases cited therein. Similarly, an indictment charging the defendant with seizing and abducting someone is not invalid for omitting the word "knowingly," since the act of seizing and abduction implies knowledge. United States v. Martell, 335 F.2d 764 (4th Circ. 1964). See also Hagner v. United States, supra (since the law presumes that a letter posted in a mailbox is delivered to its destination, an allegation in an indictment that a letter was posted is deemed to allege actual delivery.).

The information concluded that the defendant had killed Taesale Nelson "in violation of A.S.C.A. 46.3503," without specifying any particular subsection of that statute. Thus both the statement of facts and the statutory reference gave defendant fair notice to be prepared to defend himself against second degree murder -- not only against "reckless" second degree murder, as defined in A.S.C.A § 46.0503(3), but also against "intentional" second degree murder (A.S.C.A § 46.3503(1)), and "knowing" second degree murder (A.S.C.A § 46.3503(2)). The inclusion in another clause of the information, outside the statement of facts, of a conclusion of law -- that the stated conduct had been reckless - was mere surplusage which the Court would have ordered stricken from the information had this been requested at any time before or during trial. See TCRCrp Rule 7(d).

Our holding might be different if we believed that the defendant had actually been misled by the inclusion of the word "recklessly" in the[3ASR2d72] information. The whole course of the proceeding from the arrest of the defendant through the closing arguments of counsel, however, is rife with indications that defendant was on notice to defend (and seems actually to have defended) against intentional second degree murder:

-- The primary evidentiary basis for the information was defendant's own statement that, upon seeing some people throwing things at a vacant house occupied by his father, he had taken his gun, aimed it at them, and fired. Defendant and is counsel were at all times aware of this statement and of the prosecution's heavy reliance on it.

-- The information itself, in two other counts charging defendant with assault upon the two victims who did not die, stated that defendant "causes or attempts to cause physical injury." (Emphasis added.) This phrase, another bit of boilerplate which was unnecessary to the indictment, was used in reference to the very same shotgun blast that was the basis for the count on which defendant was convicted. To the exact extent that defense counsel was paying any attention to the irrelevant legal conclusions peppered throughout the indictment, he should have been prepared to defend against a charge that the gun was fired at the victims intentionally rather than recklessly. (While these counts refer to an attempt to injure rather than to kill, they negate any inference that the government was limiting itself to a theory that the shot was fired randomly rather than directly at the people. In the absence of such an inference, the intent to kill may be inferred from the firing of a deadly weapon at the victims. See, e.g. Morgan v. State, supra; Young v. State, supra; State v. Leedom, supra; State v. Buchanan,supra.)

-- The references to the defendant's act in the brief opening statements of counsel suggest that one of the points at issue was whether defendant intended to hit the people he shot at. The prosecutor referred to the defendant's confession "that he was the one that shot these three boys, " whereas defense counsel stated that defendant had "kept control of his anger until he saw a fire burning in his father's home on the same property, and that's when he became extremely disturbed by what happened and that's when in his anger he took the shotgun and came to the place where his father's home was burning and observed [3ASR2d73] some figures ... and that's when he fired a shot in that general direction."

-- When the police officer who had taken the defendant's statement was reading it into evidence, the defense counsel objected to the translation of the Samoan word "ta'i" as "aim" suggesting that instead the word should be translated as "point." The principal effect and apparent purpose of this objection, which the Court and both counsel took seriously enough to discuss for several minutes, was to suggest that the defendant may have fired his gun without intending to hit anyone. (Although whether the defendant was trying to hit anyone is indirectly relevant to whether he succeeded, this dispute was far more directly relevant to the question of intent.)

-- In the prosecutor's closing statement he read all three subsections of A.S.C.A § 46.3503 and attempted to show that the defendant was guilty of second degree murder under each subsection--intentional, knowing, and reckless. (2) Defense counsel did not object at that time to this unmistakable attempt to persuade the court to convict the defendant of a crime with which it now contends he was never charged. Nor did defense counsel even refer in his closing statement to the prosecution's attempt to effect what he now contends was an impermissible expansion of the indictment. Instead, he took issue on the merits with the prosecutor's contention that his client had aimed the gun at Taesale Nelson rather than merely firing in a general direction. (3) [3ASR2d74]

-- In his rebuttal statement the prosecutor found it necessary to respond to these statements be defense counsel, citing two cases to the effect that a person who fires a gun at someone is presumed to intend the natural consequences of his act. Once again defense counsel failed to object.

The conclusion we draw from this sequence of events is that the defense, like the prosecution and both judges, was proceeding on the assumption that the defendant had been charged with intending the foreseeable consequences of his actions. Since defense counsel's principal preoccupation was understandably with defending against a murder charge, and since either a finding of reckless or of intentional killing would have sustained such a charge, the distinction was obviously not one which the defense emphasized. But counsel made the point, and made it repeatedly.

The alternative conclusion -- that the defense always regarded the word "recklessly" as an essential limiting term in the indictment, but withheld its objection to the prosecutor's contrary statements until after trial, and even drew the Court into a controversy over the deliberateness of the defendant's action -- would justify a holding that the right to object to any variance between the information and the conviction had been waived. See, e.g., Odom v. State, 375 So. 2d 1079 (1979 Fla. App.), in which the defense waived a variance between the indictment and the conviction by not objecting to jury instructions on a crime not included within the offense charged in the indictment. If this had been a jury trial, the Court would have instructed the jury on first degree assault as a lesser included offense of second degree murder, and a failure to object would have been a waiver. In this case the equivalent stage of the proceedings was the closing argument, in which each counsel had a chance to argue the law to the judges before they conferred on a verdict. (4) [3ASR2d76]The prosecution explicitly and unequivocally argued that the defendant should be found guilty of intentional murder, and the defense responded by contesting the charge on the merits rather than by asserting its on consistency with the information.

Our observations are in no way inconsistent with the public defender's post-judgment affidavit to the effect that "if this case had been tried under the Assault in the First Degree section ... my advice would have been to the defendant that he testify on his own behalf in order to have confronted the mental element." (5) For under no imaginable circumstances could the government have been bound to try the defendant only on the assault charge. If the information had used the word "intentional" to describe the alleged murder, the crime of assault in the first degree would quite clearly have been a lesser included offense. Yet defense counsel would then have faced the very dilemma he did face at the trial: in the words of counsel's own affidavit, the government would still have "needed to prove that defendant did indeed cause the death, "and counsel would presumably have been reluctant to risk the possibility that defendant's testimony would resolve the Court's doubts on this question.

In conclusion, we deny this motion because we believe the wording of the information did not prevent defendant from receiving a fair trial. (A trial, it will be recalled, in which he was acquitted of murder despite the belief of both judges that he had been proven guilty by a strong preponderance of the evidence although not beyond a reasonable doubt.) To decide that a defendant charged and proven to have fired a shotgun at people can be convicted of no felony at all unless he is found beyond a reasonable doubt to have hit his target, would be to attribute either to the [3ASR2d77] Fono or to the United States Constitution an absurd intention. We choose instead to "follow the admonition of Sir Matthew Hale and Lord Ellenborough...when they say that, 'if the sense be clear, nice exceptions ought not to be regarded, '...nor 'an overeasy ear be given to exceptions whereby more offenders escape than by their own innocence, to the shame of the government, to the encouragement of villany, and to the dishonor of God.'" United States v. Howard, 132 F. 325, 333 (W.D. Tenn. 1904).

The motion in arrest of judgment is denied.

______________________

1. Another reason often cited by courts for requiring precision in indictments is to ensure that both the government and the defendant know for which other crimes the defendant might be prosecuted without exposing him to double jeopardy. Although this h as not been in issue in the present case, we do note that in the case principally relied on by the defendant, the court overturned a felony murder conviction based on a first-degree murder indictment, but allowed the defendant to be re-tried on the felony murder. Watson v. Jago,558 F. 2d 330 (1977).

2. The Prosecutor's argument included the following statement with reference to intentional murder:

Murder in the second degree reads as follows: A person commits
the crime of murder in the second degree if one, he intentionally causes
death of another person. The defendant here intentionally caused the
death of that other person, Nelson. He knew these people were standing
there. It was lighted. He came out there and he shot them intentionally.

3. The public defender emphasized this point both in his discussion of causation and in his discussion of the defendant's state of mind. In [3ASR2d74] discussing state of mind, counsel reiterated his earlier assertion that the defendant "didn't shoot the gun at Nelson."

4. Defense counsel's citation of Watson v. Jago, 558 F.2d 330 (6th Cir. 1977), is inapposite. That case, although it held that a constructive amendment of the indictment from intentional murder to felony murder prejudiced the defendant and [3ASR2d75] therefore denied him due process of law, rested squarely on a point of Ohio State law. The Ohio Supreme Court had held that intentional murder and felony murder, although described in the same statute, were two different crimes. Thus Watson was distinguished in its own circuit in Blake v. Morford, 563 F.2d 248 (6th Cir. 1977), on the ground that the Tennessee state courts continued to follow the common law tradition in which "there was but one kind of murder." Id. at 251.

It is instructive to note that the indictment upheld by the Sixth Circuit in Blake was a good deal less informative than the information in this case. It made no mention at all of the charge that the murder had been committed in the course of another felony, yet the court held that the "common law form"indictment for murder -- alleging that the defendant "did unlawfully, feloniously, wilfully, deliberately, premeditatively, and of malice aforethought kill and murder" the victims--was sufficient to charge felony murder.

In contrast to the Ohio statute at issue in Watson, A.S.C.A § 46.3503 does not describe three different crimes, but one crime for which proof of any of several states of mind greater than mere negligence but less than "with deliberation" will suffice. Indeed, the inclusion of "reckless disregard for human life" as a mental element sufficient to prove second degree murder seems to have incorporated the reasoning of cases holding that proof of reckless disregard for human life was conclusive evidence of an intention to kill. See, e.g., People v. Carter, supra. These cases, in turn, were attempts to deal with the problem that defendants rarely admit to having intended to kill their victims. The circumstantial evidence surrounding any killing which was neither merely negligent nor apparently committed "with deliberation" will invariably leave some doubt about whether the defendant actively desired the death of his victim. The decision of the Fono to prescribe an identical penalty for second degree murder regardless of what state of mind is proven suggests that it was attempting to deal with this evidentiary problem rather than to define three different crimes. In any case, however, we stress that the defendant here, unlike the defendant in Watson, was put on notice by the information that he could be convicted of intentional second degree [3ASR2d76] murder.

5. We do note, however, that in light of the many reasons a defense counsel may have to keep his client off the stand, and in light of the impossibility of hypothesizing the reactions of the prosecution and the Court itself to such testimony by the defendant had it occurred, the Court must attach little weight to such after-the-fact statement. This is particularly true where, as here, the difficulty might have been avoided or mitigated by a timely motion or objection.

**********

Fonoti v. Nam,


FONOTI JESSOP, Plaintiff

v.

NAM DBA NAM GROCERY STORE, Defendant

High Court of American Samoa
Trial Division

CA No. 112-85

September 11, 1986

__________

Duties of care toward other people include the duty to take precautions against natural phenomena which, although unusual and inconvenient, happen often enough to be reasonably foreseeable.

Twenty-eight mile per hour winds in American Samoa, which experienced winds of similar magnitude on 30 different days during the year in which the accident occurred, were not an "act of God" sufficient to excuse a person who would otherwise be liable for damages caused by his porch falling on plaintiff's car.

A storekeeper who requested and paid for the construction of a porch over his parking lot was responsible for damage caused when the defectively built porch fell on a customer's car.

Defendant who gave evasive and dilatory answers when asked to repair or replace plaintiff's car, and who was ultimately held liable for the damage to the car, was also held liable for plaintiff's loss of the use of a car during the period between the accident and the time defendant finally admitted he did not plan to pay for the damages.

Before REES, Chief Justice, TAUANU'U, Chief Associate Judge, OLO, Associate Judge.

Counsel: For the Plaintiff, John Ward
For the Defendant, Aviata Fa'alevao

On the night of May 21, 1985, defendant's porch fell onto plaintiff's car. Plaintiff's employee had parked the car in defendant's lot while shopping in defendant's store. He emerged to find the second-story porch resting on the car as well as on several other vehicles. The car was substantially destroyed. [3ASR2d59]

The employee testified that the defendant, Mr. Nam, came out from the store and promised everyone that his insurance company would pay for all damages. Mr. Nam testified that he did no such thing but that the owner of the store building, who for some reason is not a party to this action, was present and may have made such a promise.

Plaintiff Jessop attempted several times to discuss the matter with Mr. Nam and received no definite response until September 13. On that day Nam's attorney wrote Jessop's attorney that the damages, if any, were "generated by an act of God"; therefore Mr. Nam was not the party from whom to seek payment. The act in question was a windstorm that buffeted Tutuila on the night of May 21. The Pago Pago office of the National Weather Service recorded wind speeds of up to 28 miles per hour that night, and defendant's witnesses testified that some gusts were even stronger.

For this Court to suggest that the wind that blew Mr. Nam's porch down was not an act of God would be impudent. Nevertheless, courts have long held that divine intervention does not always excuse a defendant's negligence. On the contrary, duties of care toward other people include the duty to take precautions against those natural phenomena which, although unusual and inconvenient, happen often enough to be deemed reasonably foreseeable.

This is particularly true of the wind. In Cachick v. United States, 161 F. Supp. 15 (S.D. Ill. 1958), for instance, the federal government was held liable when a gust of wind that may have been as strong as 70 miles per hour overturned a reviewing stand at a military exercise:

The mere fact that a high wind was blowing at and before the ladies's stand blew over did not make the blowing over of the stand an act of God so as to exempt the defendant from liability. A loss or injury is due to an act of God when it is occasioned exclusively by natural causes such as could not be prevented by human care, skill and foresight. The collapse of the ladies's stand was the result of the previous negligence in its construction which permitted it to be overthrown by a wind that was not unprecedented....[3ASR2d60]

Id. at 19. See also the Mariner, 17 F. 2d 253 (5th Cir. 1927); A.M. Holter Hardware v. Western Mortgage & Warranty Title Co., 149 P. 489 (Mont. 1915).

Weather Service records suggest that 28 mile per hour winds are neither unprecedented nor even particularly unusual in Samoa. In the ten months of 1985 for which records are available, for instance, winds as strong or stronger were recorded on about 30 different days, and the strongest recorded wind was 46 miles per hour. Since the Weather Service records wind speeds hourly rather than continuously it is of course possible that an unusually strong gust on May 21 may have escaped detection; but it is no more likely that this happened on May 21 than on any other day. On the evidence before us we must conclude that the windstorm that blew Mr. Nam's porch down was from taking reasonable precautions to protect his customers against it.

The circumstances of this case bolster our conclusion. The plaintiff's employee was a business invitee," that is, a person whom the defendant had invited to park in his lot in the hope of consequent financial gain. Business owners must protect their business invitee not only against hazards they caused and hazards they might have discovered by reasonable inquiry. This special duty has sometimes been justified on the ground that the economic benefit to the owner makes it easier or more just for him to bear the burden of liability, but more often simply because the owner makes an implied representation "when he encourages others to enter to further a purpose of his own, that reasonable care has been exercised to make the place safe for those who come for that purpose," W. Prosser et al., The Law of Torts 422 (5th ed. 1984).

In this case, moreover, the defective porch had been added to the building for Mr. Nam's own purposes. Although arrangements with the builder were made by the owner of the building, the construction was requested and paid for by Mr. Nam. The court expresses no opinion on who, as between Mr. Nam and his landlord, was ultimately responsible for the damage resulting from the collapse of the porch. As against an innocent third party whose presence he had invited by[3ASR2d61] keeping his store open on the night of May 21, however, Mr. Nam must be held liable.

Plaintiff seeks to recover the value of the car and also some compensation for the time during which he was deprived of the use of the car. Each of these amounts is difficult to calculate.

Plaintiff purchased the car about five months before the accident for $5,750. By the time of the accident it was presumably worth somewhat less. After the accident the estimates of its value range from nothing at all (one repair ship declared it "beyond repair" and another estimated the repairs would cost $6,000, more than the purchase price) to as much as $2,465, the amount for which Mr. Jessop ultimately traded it in when he purchased a new car. The Court takes judicial notice, however, of the fact that even irreparable cars are worth something as scrap, and also of the fact that trade-in prices are extremely unreliable indicators of value, depending as much on the purchase price of the replacement vehicle and other factors as on the intrinsic worth of the car being traded. (in this case $2,465 seems to have been settled upon because when subtracted from the purchase price of $9,465 it resulted in the round number of $7,000 to be paid in cash.) Faced with the necessity of reaching some decision based on the evidence at hand, however, the court will figure the value of the care after the accident at halfway between the lowest and the highest estimates, or $1,232. Thus the plaintiff should be entitled to a sum equal to ($5,750 - five months' depreciation - $1,232) for the value of the car.

We are spared the necessity of figuring the value of five months' depreciation by the serendipitous circumstance that plaintiff is also entitled to compensation for the five months after the accident during which he was unjustifiably deprived of the use of a car. Until September 13 plaintiff's requests that defendant either repair or replace his vehicle met with evasive responses. Within a reasonable time after that--and several weeks seems reasonable for a transaction of this magnitude--plaintiff should have mitigated his damages by deciding for himself whether to repair or replace the car. Between May 21 and sometime in October, however, plaintiff was deprived of a car through defendant's negligence and subsequent evasiveness rather through any fault of his own. He asks for $35 per day, the price of a rental car, as compensation. We know, however, [3ASR2d62]that having a car during this period must have been worth somewhat less that $35 per day to the plaintiff, since he did not in fact rent a car. Yet it was obviously worth more than zero; we are at a loss to say exactly how much more. The best estimate available to us of the value of a car to Mr. Jessop during the five months after the accident is that it was probably about the same as what Mr. Jessop actually did pay for his car--that is, its depreciation--during the five months before the accident.

Thus the two unknown figured cancel each other out: Mr. Jessop is entitled to a sum equal to $5,750-five months' depreciation - $1,232 + five months' depreciation), or $4,518.

Judgment is entered in favor of plaintiff and against defendant in the amount of $4,518.00.

**********

Fanene v. Seva'aetasi,


FANENE F. TAOFI KAVA, Plaintiff

v.

TAGO SEVA'AETASI, ASUEGA FA'AMAMATA SALANOA,
and LOTOA GI TAVAI, Defendants

High Court of American Samoa
Land & Titles Division

LT. No. 33-86

November 5, 1986

__________

Legal Practitioner who has served as arbitrator in a land dispute in his capacity as an employee of the Office of Samoan Affairs may not serve as counsel to one of the parties in a case resulting from the same dispute.

Before REES, Chief Justice, TAUANU'U, Chief Associate Judge, and AFUOLA, Associate Judge.

Counsel: For the Plaintiff, Aviata Fa'alevao
For the Defendants, Charles Ala'ilima and Asaua Fuimaono
For the prospective Intervenor, Puleleite Tufele

We took under advisement the motion of Uiva Te'o to intervene. At the time we believed that this motion had been served on all but one of the parties. We have since discovered that the returns of service in the record were for another document, and that there is no return of service of this motion on any party.

It also appears from the record that the legal practitioner representing the prospective intervenor was also the arbitrator in the Office of Samoan Affairs proceedings in this case. This is a violation of the Code of Professional Responsibility of the American Samoa Bar Association. See Ethical Consideration 5-20: "After a lawyer has undertaken to act as an impartial arbitrator or mediator, he should not thereafter represent in the dispute any of the parties involved."

The motion to intervene is denied, without prejudice to the right of the party to bring another motion through other counsel and with proper notice to all parties.

**********

Fagaima v. Fonoti,


FAGAIMA AFATIA and MAC MANUMA, Appellants

v.

FONOTI AUFATA, Appellee

High Court of American Samoa
Appellate Division

AP. No. 12-86

November 24, 1986

___________

That appellant disagrees with trial court's judgment of the credibility of the witnesses does not raise an appealable issue.

Before REES, Chief Justice, MURPHY, Associate Justice, KENNEDY*, Acting Associate Justice, TAUANU'U, Chief Associate Judge, and A'AU, Associate Judge.

Counsel: For the Appellant, Aviata Fa'alevao
For the Appellee, Michael Kruse

Per MURPHY, J:

This case concerned a land dispute between the Fonoti family and the Fagaima family. The trial division of the High Court held for the Fonoti family. We affirm.

Appellant raises no legal issues but argues that the trial court decision was clearly erroneous in that it "just totally ignored testimonies of Chief Fagaima himself..." the Fagaima claim was also supported by testimony of Mac Manuma who has occupied a portion of the property with the permission of Fagaima.

The trial division is free to disbelieve the testimony of witnesses. In this case there was substantial reason to disbelieve both Fagaima Afatia and Mac Manuma. Their self interest is obvious. Manuma, said the trial court, is selling off the land. Unless Fagaima wins this case he could be faced with considerable litigation or worse.

On the other hand, the trial court found the testimony in support of Fonoti both credible and logical. The conclusions drawn from the facts were clearly explained by the trial court. That [3ASR2d113] appellant simply disagrees with the trial court does not raise an appealable issue or entitle an appellate tribunal to substitute its findings (even if we were disposed to do so) for trial court findings amply supported by credible evidence.

The standards of appellate review were mentioned at the last session of the Appellate Division in Leomiti v. Pagofie (Mar. 12, 1986) Appellate No. 42-84. Counsel for appellant would be well advised to read that decision.

Judgment AFFIRMED.


*Honorable Anthony M. Kennedy, Judge, United States Court of Appeals for the Ninth Circuit, serving by designation of the Secretary of the Interior.

Fa'atiliga v. Lutali ,


FA'ATILIGA TAPUVAE, MAFA TUIKA, TU'UTAU P. FANENE,
TIA PENITUSI, ERIC HOWLAND, LOUISULU LE'I,
POPOALI'I UOTI, FAIVALE GA'OPO'A, ROBERT KEY,
PASELIO LEATISUA, and NOFO VAILAAU, for
themselves, for the AMERICAN SAMOA DEVELOPMENT
CORPORATION (ASDC), and for the shareholders of ASDC
similarly situated, Plaintiffs,

v.

A.P. LUTALI as individual, as former Director and
President of ASDC, and as Governor of American
Samoa, ENI HUNKIN as individual and as Lieutenant
Governor of American Samoa, STEVE WATSON as
individual and as Executive Assistant to the
Governor, J.R. SCANLAN as individual, as Assistant
to the Governor
and as Director of ASDC,
LEULUMOEGA S. LUTU as individual and as Attorney
General of American Samoa, JOHN SAMIA as
individual and as Chairman of the Board of
Directors of ASDC, FAAUUGA ACHICA as individual
and as Secretary of ASDC, VERA ANNESLEY as
individual and as Director of ASDC, FAIIVAE
A. GALEA'I as individual and as Director of
ASDC, TUIAFONO MAUTIA as individual and as
Director of ASDC, SILI K. SATAUA as individual
and as Director of ASDC, AIGA TASI, Inc., LI'A
AFUVAI as an officer of Aiga Tasi Inc., and
DEVELOPMENT BANK OF AMERICAN SAMOA, Defendants

High Court of American Samoa
Trial Division

CA No. 103-86

December 24, 1986

__________

Court would not grant motion to dismiss territorial government as defendant in shareholders' derivative suit on the ground of sovereign immunity where government had created bank, made loans, executed mortgages, acquired stock in corporation, assumed management of the corporation, voted in corporate elections, and undertaken to sell the bank's majority interest in the corporation, since such actions might have given rise to an implicit agreement to be held responsible for breach of obligations thus undertaken. [3ASR2d140]

When an offer for bids to purchase stock shares owned by territorial government is extensively publicized, sale price was substantially higher than book value of shares, and evidence of poor financial performance of corporation suggests that shares might not be worth even their book value, the best evidence of the value of the shares is what they actually brought on the market.

In stockholders' derivative suit, where there was no evidence tending to prove diminution in value of minority stockholders' shares, minority stockholders could no to complain that majority stockholder accepted too low a price for its shares.

Court should not interfere with business judgment of the management of a corporation on matters such as giving directors one free weekend a month at hotel owned by corporation, employing officer of corporation that had purchased an option to become majority shareholder, and letting him examine corporate books.

Corporate management had a fiduciary duty to minority shareholders that precluded forgiveness of debts to corporation owned by associates of majority shareholder without some valid business purpose.

Before REES, Chief Justice, AFUOLA, Associate Judge, and VAIVAO, Associate Judge.

Counsel: For the Plaintiffs, Aviata Fa'alevao
For Defendants ASG et al., Phyllis Coven, Assistant Attorney General, and Moega Lutu, Attorney General
For Defendant Aiga Tasi, Steven Lee and Hartwell Blake, Honolulu, Hawaii, pro hac vice

This case arose out of an effort by the territorial government (A.S.G.) to "privatize" the ownership of the only hotel in American Samoa.

Early in 1985 A.S.G. made a public announcement that it would offer for sale 87,796 shares in the American Samoa Development Corporation (ASDC), the corporation that owns the Rainmaker Hotel. These shares comprise a large majority of the shares in ASDC. They are held in the name of the Development bank of American Samoa, an enterprise established by territorial statute and wholly owned by A.S.G. See A.S.C.A § 28.0101 et seq. Two bids were submitted, and in October [3ASR2d141] 1985 A.S.G. entered into a one-year option contract with Aiga Tasi, Inc., a Texas corporation. According to the option contract Aiga Tasi had the right to purchase the shares for $1 million provided that it also assumed $690,000 in ASDC debts and made a commitment to invest $38 million in improvements to the hotel and related facilities. The agreement was entered into by A.S.G., and the sale of the hotel was later endorsed by the Board of Directors of the Development Bank, whose members are appointed by the Governor with the advice and consent of the Senate.

In July 28, of 1986 eleven persons brought a shareholders' derivative action seeking an injunction against the sale of the shares, as well as other relief including a declaratory judgment that A.S.G. owns no shares in ASDC. Two of the shareholders were dismissed from the action on the ground that they had purchased their shares after most of the events of which they complained had already happened (apparently with the principal purpose of participating in the lawsuit) and therefore had no standing to claim that they had been damaged by these events. The parties then agreed that the suit be dismissed without prejudice, and the remaining nine plaintiffs brought this action. In addition to A.S.G., the Development Bank, the members of the Board of Directors of ASDC, and various government officials, the new action named Aiga Tasi, Inc., and Li'a Afuvai, an Aiga Tasi employee who had been serving without pay as general manager of the hotel, as defendants.

The lawsuit became even more complicated when on October 15, 1986, in the midst of extensive discovery and about a month before the scheduled trial date, the option contract expired without Aiga Tasi having purchased the shares. Plaintiffs then amended their complaint, shifting its primary focus from an attempt to enjoin the sale to requests for declaratory relief concerning the ownership of the shares and damages for alleged mismanagement of the hotel during the period surrounding the option contract and the employment of Li'a Afuvai. Various cross-claims and counterclaims ensued. The most noteworthy of these were claims by Aiga Tasi that A.S.G. had breached the option contract by refusing to consumate the sale of the shares and that the plaintiffs had tortiously interfered with the option contract. All claims involving Aiga Tasi were then severed [3ASR2d 142] from the action, and the remainder of the claims finally went to trial on December 9, 1986.

The presentation of the plaintiffs' case took two days, at the conclusion of which all defendants moved to dismiss the action. The Court granted the motion to dismiss, except with regard to certain claims involving an ultra vires personal loan made by ASDC and the forgiveness of debts alleged to be owned ASDC by ASG, an ASG official, and Aiga Tasi. The defendants involved in these transactions then agreed to the entry of a consent judgment against them on these claims. The parties have requested this written opinion.

Although the plaintiffs' amended complaint is a voluminous document alleging many improprieties over the years, the claims on which relief might conceivably have been granted and on which plaintiffs attempted to present some evidence can be summed up as follows:

(1) The plaintiffs claimed that the Development Bank owned no shares in ASDC, and that the four certificates representing 87,769 shares in the name of the Development Bank had been "illegally and/or improperly issued." (At trial the plaintiffs acknowledged that two of the certificates represented shares that were genuinely owned by the Development Bank, but contested the 60,072 shares evidenced by the other two certificates.)

(2) The plaintiffs claimed that the By-Laws of ASDC had not been lawfully enacted, thus calling into question the legality of many corporate acts including the election of the current Board of Directors.

(3) The plaintiffs asserted improprieties in the election at which most of the current Directors were elected.

(4) The plaintiffs asserted that the current directors had been "appointed" by the Governor rather than elected by the shareholders as provided by law and by the ASDC Articles of Incorporation.

(5) The plaintiffs claimed that the Option Agreement with Aiga Tasi was part of the deliberate attempt to sell the hotel for far less than it was worth to an enterprise composed of close associates and supporters of territorial government officials;[3ASR2d143] that the Option Agreement violated certain provisions of the ASDC Articles of Incorporation; and that ASDC had suffered a consequent diminution in value.

(6) Finally, plaintiffs alleged various acts of corporate mismanagement including the unjustified forgiveness of debts to ASDC, a personal loan made by ASDC in violation of its Articles of Incorporation, excessive compensation of directors, and access by defendant. Afuvai to corporate records during his employment by Aiga Tasi.

Defendants introduced other legal issues into the case by way of affirmative defenses. Motions for partial summary judgment and to strike parties were filed a few days before trial urging that plaintiffs were barred by the statute of limitations, estoppel, and laches from denying that the Development Bank owned the ASDC stock; that the individual defendants were not liable in their personal capacities because they had acted in good faith and within the discretionary duties of their offices; and that A.S.G. cannot be sued at all (except in tort in accordance with the provisions of the Government Tort Liability Act, A.S.C.A. § 43.1201 et seq.) because of the doctrine of sovereign immunity.

The statute of limitations, estoppel, laches, and good-faith immunity questions all depended on evidence that was not submitted to the Court prior to the trial, and were therefore deferred until the trial. Our decision on this motion makes it unnecessary to reach those questions. The broader claim by A.S.G. of absolute immunity from any non-tort suits amounts in this case to the assertion that the government created a bank, made loans, took mortgages, acquired stock in a corporation whose other shareholders were private persons, substantially assumed the management of the corporation with its attendant fiduciary duties to those persons, voted on behalf of the bank in corporate elections, and undertook to sell the bank's majority interest in the corporation, all without any implicit agreement to be held responsible for any breach it might commit of the obligations thus undertaken. Although any holding by this Court on the contours of sovereign immunity in the Territory should issue only after plenary briefing and argument in a case in which the issue is crucial, and our decision on the merits on this motion to dismiss makes sovereign immunity [3ASR2d144] irrelevant except as regards the relatively minor instances of mismanagement on which the plaintiffs presented a prima facie case, we hold for the purpose of this motion that the doctrine does not apply.

The crucial issue in this case is whether the Development Bank owns the shares it claims in ASDC. Although the transactions by which the stock was acquired happened only a decade or two ago, prior to the trial neither the Court nor any of the parties had a complete picture of how they occurred. Governor A.P. Lutali, who was one of the original Trustees of ASDC and who was called as a witness by the plaintiffs, testified that the formation of ASDC was the first experience American Samoans had ever had with forming and running a corporation, so that not all of the transactions were handled or documented precisely as would have been done in New York or Washington. As the minutes of some of the corporate meetings introduce into evidence reflect, there seems long to have been an undercurrent of resentment among some shareholders who never understood quite how the bank got its stock and suspected that somebody was pulling a fast one. The situation has been complicated further by a series of fires that destroyed many A.S.G. and Development Bank documents, and by the fact that some of the transactions were handled primarily by former officials of the corporation, the bank, or the government who have left Samoa and are not available as witnesses. Nevertheless, the testimony of Governor Lutali and the exhibits introduced during his testimony do afford a coherent and credible account of how the Development Bank acquired its stock.

The idea behind ASDC was to ensure that development in American Samoa would benefit American Samoans. Stock in the new corporation was therefore sold at $10 per share primarily to A.S.G. employees who paid for it by voluntary payroll deductions. About 1300 people purchased a total of between 20,000 and 30,000 shares. (1) The sum thus [3ASR2d145] raised, however, was not nearly enough to pay for the construction of a hotel. The corporation therefore borrowed $500,000 from the Bank of American Samoa, the predecessor institution of the Development Bank. Subsequently the corporation desired to borrow more money, primarily from federal government agencies which insisted that the obligation to the Bank be discharged before they would lend money to ASDC. On April 16, 1969, therefore, the ASDC Board of Directors voted to authorize the delivery to the Bank of 52,496 shares of ASDC stock and to receive in return the notes representing unpaid principal and interest on the $500,000 loan. It was through similar decisions by the ASDC Board of Directors to capitalize corporate debts that the Development Bank acquired its other three certificates. All of these transactions were proved at trial by documentary and testimonial evidence, and all were within the authority granted the Board of Directors by the ASDC Articles of Incorporation and by applicable statutes.

The plaintiffs put forward two pieces of evidence that might have tended to cast doubt on the validity of two of the stock certificates. First, they attempted to introduce a record of the release of a mortgage securing the $500,000 loan to ASDC. Since the mortgage was released in 1969 and left on the books of the Bank as unpaid until 1971 because of a bookkeeping error. The record of the mortgage release was excluded from evidence because plaintiff's counsel had omitted it from a list of trial exhibits required before trial as a result of a discovery request and subsequent court order. If it had been introduced, however, it would not have helped the plaintiffs' case. In the first place, a mortgage can be released for some other reason than the payment of the underlying debt. More importantly, the minutes of the April 16, 1969 meeting show precisely how the debt was to be paid: by the issuance of the stock certificate. That the certificate was not physically produced until 1971 (perhaps as a replacement for an earlier certificate in the name of the predecessor institution, or perhaps for some other unknown reason) does not contradict the clear documentary evidence of the 1969 transaction.

Similarly, the plaintiffs' argument that the minutes of a later meeting reflect a motion to capitalize $76,030 in debt by issuing the [3ASR2d146] Development Bank 7,603 shares, but not that the motion was ever voted on, would have been unavailing even if the minutes had been admitted into evidence. The certificate for 7,603 shares is prima facie evidence of its own validity; that it was issued and that there is no record of the debt having been paid in any other way strongly suggest that the omission of the words "motion passed" was a clerical oversight.

The overwhelming preponderance of the evidence at the close of plaintiffs' case also favored the defendants on the other issues.

-- There was documentary and testimonial evidence that the By-Laws had been promulgated by the original incorporators soon after the formation of ASDC, and no evidence at all that they had not.

-- With regards to the "appointment" of Directors by the Governor, it is clear from the evidence that what the Governor did was to instruct his assistant to cast the 87,796 votes held by the Development Bank in favor of certain candidates at the shareholders' meeting. This is in accordance with the ASDC By-Laws, which explicitly allow the Governor or his proxy to cast the votes of any agency of ASG. The plaintiffs admitted that the Development Bank was an agency of A.S.G. for the purpose of construing this provision of the By-Laws. The Directors of ASDC were elected by the shareholders; the candidates backed by the majority shareholder won the election.

-- No evidence was presented tending to cast doubt on the fairness of the bidding process for the Option Agreement. The offer for bids was extensively publicized. The sale price of $1,690,000 was substantially higher than the book value of the ASDC shares, which was $877,960. Moreover, it is not even clear that the shares would have brought their book value on the open market, since there was testimony from all sides on the poor financial performance and physical condition of the hotel. Plaintiffs did submit evidence that the hotel was insured for $11.5 million dollars, but this does not contradict the proposition that the value of ASDC's assets might be far less. A fire insurance policy should be for the amount it would cost to rebuild a building. Whoever buys the hotel will have to do a lot of rebuilding after paying the purchase price in order to get it into serviceable condition. In the absence of any evidence casting doubt on the [3ASR2d147] fairness of the bidding process, the best evidence of the value of the shares is what they actually brought on the market. In any case, since the Development Bank does own the shares it is not at all clear that any other shareholder has a legal right to complain about the price the bank chooses to take for them. No evidence was submitted tending to prove any diminution in value of the minority shareholders' stock as a result of the Option Agreement and surrounding events. Although the sale of the shares to Aiga Tasi would have violated certain provisions of the ASDC Articles of Incorporation and By-Laws, it is clear that the parties to the agreement understood that amendments to these provisions would be necessary prior to the sale. The Articles and By-Laws both provide for their own amendment by the Board of Directors of ASDC, so nothing in ASG's agreement to sell its shares in anticipation of such amendments violated any law or any right of minority shareholders.

-- Some of the allegations of corporate mismanagement amount to policy decisions with which it is not a court's business to interfere. The payment to Directors of $200 per meeting and a free weekend at the hotel once a month is an example of such a decision. Similarly, letting Li'a Afuvai work for a hotel without salary, and letting him look at the books of the corporation after his employer Aiga Tasi had already bought an option to buy the majority of the shares, are not decisions with which we would interfere even if we personally believed them to be bad decisions.

-- Three of the incidents about which plaintiffs presented evidence, however, are precisely the sorts of matters on which majority shareholders who control a corporation do have responsibilities to minority shareholders. The forgiveness of a debt to A.S.G., which owned 80% of the shares in the corporation, or to a high A.S.G. official, or to Aiga Tasi at a time when Aiga Tasi seemed about to become majority shareholder, can by seen as a way of paying dividends to the majority but not to the minority. Although the personal loan given by ASDC to a hotel employee did not contain this element of self-dealing, it was forbidden by the Articles of Incorporation.

The only defendants connected in any way with these transactions were A.S.G., Governor Lutali in his official capacity, the ASDC directors in their official capacities, and the President of ASDC (who personally authorized all three transactions) in [3ASR2d148] his official and personal capacities. All claims against all other defendants were dismissed except claims by or against Aiga Tasi, which will be considered at a future hearing. All claims against A.S.G., Lutali, Samia, and the ASDC Directors are dismissed except those connected with the three debt transactions. With regard to these three debt transactions. With regard to these three claims the remaining defendants were given their choice of presenting evidence and argument that the transactions were justified or consenting to declaratory and injunctive relief against these and similar transactions. The defendants chose to agree to the proposed consent judgment.

**********


1. There is conflicting evidence on the number or privately held shares outstanding. According to the testimony of the secretary of ASDC, the 87,796 shares owned by the Development Bank may be closer to 70% of the shares than to the 80% that has been widely assumed. It is not necessary to resolve this question in this case.

Fa'atiliga v. Lutali,


FA'ATILIGA TAPUVAE, MAFA TUIKA, TU'UTAU P. FANENE,
TIA PENITUSI, ERIC HOWLAND, LOUISULU LE'I,
POPOALI'I UOTI, FAIVALE GA'OPO'A, ROBERT KEY,
PASELIO LEATISUA, and NOFO VAILAAU, for
themselves, for the AMERICAN SAMOA DEVELOPMENT
CORPORATION (ASDC), and for the shareholders of ASDC
similarly situated, Plaintiffs,

v.

A.P. LUTALI as individuals, as former Director and
President of ASDC, and as Governor of American
Samoa, ENI HUNKIN as individual and as Lieutenant
Governor of American Samoa, STEVE WATSON as
individual and as Executive Assistant to the
Governor, J.R. SCANLAN as individual, as Assistant
to the Governor
and as Director of ASDC,
LEULUMOEGA S. LUTU as individual and as Attorney
General of American Samoa, JOHN SAMIA as
individual and as Chairman of the Board of
Directors of ASDC, FAAUUGA ACHICA as individual
and as Secretary of ASDC, VERA ANNESLEY as
individual and as Director of ASDC, FAIIVAE
A. GALEA'I as individual and as Director of
ASDC, TUIAFONO MAUTIA as individual and as
Director of ASDC, SILI K. SATAUA as individual
and as Director of ASDC, AIGA TASI, Inc., LI'A
AFUVAI as an officer of Aiga Tasi Inc., and
DEVELOPMENT BANK OF AMERICAN SAMOA, Defendants

High Court of American Samoa
Trial Division

CA No. 103-86

December 5, 1986

__________

Only in extraordinary circumstances will a court compel the testimony of the chief executive of the jurisdiction in which the court sits.

Most information available from chief executive of state of territory can be just as easily obtained from lesser officials.

Party may compel testimony from chief executive of state or territory only if it seems absolutely necessary to make out his case and the party can convince the court that there is some chance the testimony will enable him to prevail. [3ASR2d125]

Before being allowed to compel testimony of territorial Governor regarding alleged scheme to dispose of government property for less than its actual value, party must produce other evidence of Governor's personal involvement in such scheme.

Where incumbent Governor was actively involved in affairs of a corporation before he became Governor and is the only available witness with detailed knowledge of events material to litigation involving the corporation, a party may compel his testimony.

Before REES, Chief Justice.

Counsel : For the Plaintiffs, Aviata Fa'alevao
For the Defendants, Phyllis Coven, Assistant Attorney General

Counsel for defendant Governor A.P. Lutali have moved to quash plaintiffs' subpoena of Governor Lutali to testify at the trial.

Only in extraordinary circumstances will a court compel the testimony of the chief executive of the jurisdiction in which the court sits. The cases cited by counsel for the Governor, holding that chief executives and other administrative officials may not be questioned with regard to their quasi-judicial review of administrative procedures, are one instance in which the executive immunity from such compulsion is virtually absolute. In other cases, more general concerns having to do with the respect due to the leader of a co-ordinate branch of government, the fact that in most instances the information available from the chief executive can be just as easily obtained from lesser officials, and the recognition that the chief executive is an extraordinarily busy person will make a court most reluctant to allow a party to compel his testimony. On these grounds this Court recently granted without a hearing a motion to quash a scheduled second deposition of Governor Lutali in this case. On the other hand, concern for the right of a litigant to his day in court prevents executive immunity from being absolute. Although the rule varies from jurisdiction to jurisdiction and from case to case, a fair summary is that a party may compel such testimony only if it seems absolutely necessary to make out his case and the party can convince the court that there is at least some chance that the testimony will enable him to prevail.[3ASR2d126]

In this case plaintiff has accused Governor Lutali of intimate personal involvement in a scheme to sell the Rainmaker Hotel for far less than its actual value and to turn over the management of the hotel to people who are alleged to have squandered the assets of the hotel in various ways including the forgiveness of debts owed by the Governor's campaign organization. Counsel for the government have characterized these charges as totally unfounded, and at present the Court has seen nothing to substantiate them. If Governor Lutali's actions since assuming office were the only area in which plaintiffs sought to compel his testimony, the Court would be strongly inclined to require that plaintiffs produce other evidence both of the improper activities and of the Governor's personal involvement in them before being allowed to compel his testimony.

In this case, however, a major area in which the Governor's testimony is sought concerns events that happened before he became Governor. It happens that Governor Lutali was one of five directors of the American Samoa Development Corporation during the time when many of the transactions leading up to the government's assertion of ownership of eighty per cent of the shares in the corporation took place. Morever, it appears that at least three of the other four former directors are unavailable to testify by reason of absence from the Territory, and that some of the documentary evidence surrounding the transactions may have been destroyed in a fire. Under these circumstances the denial to plaintiffs of the right to call Governor Lutali as a witness would be manifestly unjust. The Court must therefore reluctantly deny the motion to quash the subpoena.

The Governor will not, however, be required to be present in the courtroom throughout the trial waiting to testify. Counsel for plaintiffs should calculate the approximate time at which they plan to call the Governor to testify and should notify his counsel immediately. If that time is inconvenient the Court will attempt to work around the Governor's schedule. The Court also expects that counsel will observe the high standards of decorum and courtesy required by the Code of Professional Responsibility and by the traditions of the Samoan people.

**********

Enekosi v. Tu'ufuli,


SAVEA ENEKOSI, Plaintiff

v.

WORKMEN'S COMPENSATION COMMISSIONER

MOALIITELE L.K. TU'UFULI, Defendant

High Court of American Samoa
Trial Division

CA. No. 64-86

October 28, 1986

__________

Bus driver who was paid a certain percentage of his total fares minus certain expenses of operating the bus was paid a wage "fixed by output" within the meaning of workers' compensation statute. A.S.C.A. § 32.0621.

Whether a court will enforce illegal contract depends on many factors including whether non-enforcement would deter or punish wrongdoing, whether non-enforcement would reward the principal wrongdoer at the expense of less culpable parties, and whether the illegality involved "wicked intent."

A court may take cognizance of an illegal contract for some other purpose without "enforcing" it.

The central policy behind workers' compensation statutes is that compensation should replace what the employee would actually have earned had it not been for the accident, rather than take into account the "deserving"or "undeserving" status of the employee or employee.

That an employee's wage may have been less than required by the federal minimum wage laws did not make it improper for workmen's compensation commission to base his compensation award on his actual wage in accordance with territorial statute. A.S.C.A. § 32.0261.

Before REES, Chief Justice, and TAUANU'U, Chief Associate Judge.

Counsel: For the Plaintiff, John Ward
For the Defendant, Donald Griesmann, Assistant Attorney General

Plaintiff, a bus driver, was injured while changing a tire on his bus. In a Workmen's Compensation Commission proceeding brought by plaintiff against his employer, the Commission found that plaintiff was paid a specified percentage of the amount he collected from passengers. At the time of the injury he was paid 40 cents for each dollar he collected. The Commission concluded that his wages for Workmen's Compensation purposes should be calculated according to the provisions of A.S.C.A § 32.0621(d)(1), which deals with "wages ... fixed by the day or hour, or by the output of the employee." Although the Commission did not so specify, it is clear that it regarded the plaintiff as an employee whose wages were fixed by 'output' rather than by the day or hour.

Plaintiff seeks a reversal of the Commission's ruling on the ground that the amount awarded is less than the amount he would have been awarded if he had been paid the minimum hourly wage under the federal Fair Labor Standards Act for the hours that he worked.

Plaintiff asks that this Court revise the Commission's ruling so as to award him the amount he would have been awarded if his employer had been paying him on an hourly basis, at the minimum hourly wage under the Federal Fair Labor Standards Act. He advances two arguments for such a revision:

(1) Since his gasoline expenses were deducted from his gross receipts prior to the calculation of his forty per cent payment, his wages were not "fixed by output." He would make more money for trips on which he carried many passengers than for those on which he carried only a few.

(2) The wage plaintiff was actually being paid was below that set by the Fair Labor Standards Act. The Court should not countenance such a violation by upholding a Workmen's Compensation Award based on the illegal wage.

We are satisfied that plaintiff's wages were fixed by output within the meaning of the statute, notwithstanding the requirement that plaintiff pay his own gasoline expenses. Payment by the employee of some or all of the expenses necessary to generate income is so common in connection with output or piecework contracts as perhaps to be the rule rather than the exception. If the Fono had [3ASR32D83] wished to carve such a gaping hole in the "fixed by output" provision, we believe they would have done so explicitly.

This is particularly true in light of the fact that the general principle behind workers' compensation formulas is that the injured worker is paid a certain percentage of what he would have made if he had not been injured. Plaintiff seeks to escape from the coverage of a section of the statute that would do precisely that, and to seek refuge in a "fall back" provision apparently designed for cases in which it is implausible to attempt an estimate of what the worker would have earned. He therefore urges the Court to place undue emphasis on one possible construction of the word "fixed" and to ignore the purpose of the system of classification established by the statute. In the context of the statutory scheme, "fixed by output" seems equivalent to "figured according to output rather than periodically." It makes no more sense to exclude the plaintiff from this category because his gasoline expenses were deducted than to exclude an hourly employee from the "fixed by the hour" provision on the ground that non-hourly sums for union dues, health insurance, or work clothes may have been deducted from his paycheck.

The second issue is a much closer one. It is axiomatic that courts will not enforce illegal contracts. Like many axioms, however, this one is best known for its exceptions.

Except in those rare cases where the legislature has specifically defined the consequences of a particular kind of illegal contract, courts are left to "a delicate balancing of factors for and against enforcement of the particular agreement." E. Farnsworth, Contracts § 5.1 at 328. Illegal conduct should of course be deterred and punished, and judicial process should not be available to those who seek only to consolidate or recover ill-gotten gains. But unenforceability may not always deter or punish, and may sometimes even reward the principal wrongdoer. Then, too, "caution ... is ... especially necessary in these times when so much of commercial life is governed by regulations of one sort or another, which may easily be broken without wicked intent." St. Johns Shipping Corp. v. Joseph Rank Ltd. (1957)) Q.B 267 (Devlin, J). Finally, there is the question whether a court decision taking cognizance in one way or another of the fact [3ASR2d84] that a particular agreement has been made amounts to "enforcement" of that agreement.

As illegal agreements go, this was not a very wicked one. Indeed, we take it more or less on faith that this employment contract violated the Fair Labor Standards Act, since the otherwise copious and diligent brief of plaintiff's counsel directs us to no particular page among the two thousand or so in the United States Code Annotated devoted to that Act and interpretations thereof. We do note that a former explicit exemption for the "motor bus carrier" industry was repealed in 1974. See 29 U.S.C. § 213(A)(9) (1965); Pub. L. 93-259, § 10(a), enacted Apr. 8, 1974, codified at 88 Stat. 63. We note also, however, that it is a common practice among companies that own taxicabs in the United States and aiga buses in American Samoa to "rent" their vehicles to "independent contractors' who are not regarded as employees and who receive no wages and no benefits but only some portion of what they collect from passengers. In the present case the employer stipulated that the plaintiff was his "employee," and there may have been indicia of employment that set him apart from his non-employee brethren. If so, the contract in this case was illegal in that it skirted the elusive boundary between employees and independent contractors. But it is hard to regard the employer as any more malicious thank for instance, the thousands of newspapers that contract with independent twelve-year-olds to deliver papers for a fraction of the minimum wage.

Nor are we faced with a choice between "enforcement" and "non-enforcement" of the employment contract. A court that quiets a title to land in Manhattan may thereby be said to "enforce" the arguably unjust contract by which that island was purchased from its original inhabitants for twenty-three dollars; but it does so only incidentally, acting primarily on the basic of facts and values that have little to do with the original transaction. In this case, the relationship between the compensation award and the assumed violation of the Fair Labor Standards Act is an attenuated one; that there is any relationship at all is due only to the strong policy of the Workmen's Compensation Act that compensation shall be based on actual earnings rather than on the "deserving" or undeserving" status of the employee or on the employer's fault or lack thereof. [3ASR2d85]

In light of this collateral relationship, and of the substantial penalties for violation of the Fair Labor Standards Act in the Act itself, there is no evidence that "non-enforcement" in this case would have a substantial effect in deterring violations. Indeed, it is important to notice that plaintiff urges the Court not to wash its hands of the whole sordid business by enforcing no contract at all, but rather to assume an entirely different and hypothetical contract between the parties. Any slight reinforcement we might give to the policy behind the Fair Labor Standards Act by taking this course would be at the expense of far clearer and more substantial damage to the policy behind the Workmen's Compensation Act. (1) [3ASR2d86] The complaint is dismissed, and the judgment of the Commission is upheld.

___________________________

1. We note that most courts faced with the question we address today seem to have upheld calculation of compensation according to actual wages even where those wages were below the minimum wage. See McCrudden v. Venditto Bros., Inc., 235 A. 2d 878 (1967); Lovette v. Reliable Manufacturing Co., 136 S.E. 2d 685 (N.C. 1964); Miami-Copper Co. v. Schoonover, 178 P.2d 554 (Ariz. 1947); Bituminous Casualty Corp. v. Sapp, 26 S.E. 2d 724 (Ga. 1943). One leading commentator is highly critical of these opinions, but his criticism is based partly on language in some statutes that says the actual wage formula should be applied only when it can be done so "fairly." See 2 A. Larson, The Law of Workmen's Compensation § 60.11 (d) at 10-559 to 10-565 (1983). The American Samoa Code contains no such provision. Larson makes a more general argument that "earning capacity" should be deemed to include what the injured person would have earned in the future, and that the court should assume future wages would be at the minimum wage. Id. At 10-565. But this assumption may be contrary to fact, since enforcement of a minimum wage -- as is well known in American Samoa -- may well result in the termination of marginal employees, or perhaps in a restructuring of the economic relationship into a genuine "independent contract," rather than in continued employment at the statutory wage rate. Plaintiff urges us to reach a result similar to that urged by Larson on the basis that a compensation award based on a below-minimum wage rate would not be an award "in accordance with law" within the meaning of A.S.C.A § 32.0652. For the reasons stated in the text of this opinion, however, we hold that the award here is "in accordance with law": it is exactly in accordance with the territorial Workmen's Compensation Act, and does not constitute a violation of the Fair Labor Standards Act or of any other law.

Dullabhbhai K. Patel & Co., Ltd.; R.S.T.T.A.N. Hisatake, Inc. v.


R.S.T.T.A.N HISATAKE, INC., ANTHONY HISATAKE,
and SONJA HISATAKE, Appellants

v.

DULLABHBHAI K. PATEL, & CO., Ltd., Appellee

High Court of American Samoa
Appellate Division

AP. No. 4-86

October 31, 1986

__________

Territorial statute providing that judgment debtor may apply for an order setting payments on the judgment in accordance with his ability to pay is an important protection for debtors in the absence of a bankruptcy statute, and court should use the full reach of its equitable powers to effect the statutory protection. A.S.C.A § 43.1501.

Territorial statue providing that court should set payments on a judgment in accordance with debtor's ability to pay did not defeat creditor's right to foreclose a chattel mortgage. A.S.C.A §§ 37.1002, 37.1103, 43.1501.

Before REES, Chief Justice, GARDNER*, Acting Associate Justice, KENNEDY**, Acting Associate Justice, TAUANU'U, Chief Associate Judge, and OLO, Associate Judge.

Counsel: For the Appellants, Aviata Fa'alevao
For the Appellee, Roger Hazell

Per KENNEDY, J:

R.S.T.T.A.N. Hisatake, Inc., a defunct corporation, and its principals, Anthony and Sonja Hisatake, appeal the trial division's denial of a motion for an order in aid of judgment. We affirm.

The facts are not in dispute. Dullabhbhai Patel sold Hisatake goods worth approximately $36,000. As security for the purchase price, Hisatake executed a promissory note and a chattel mortgage. Hisatake failed to make the required payments, and Patel sued to enforce the security provisions. Hisatake failed to respond, and the trial division entered a default judgment for Patel. As Patel began foreclosure proceedings, [3ASR2d100] however, Hisatake moved for an order in aid of judgment, claiming dire financial circumstances. After a hearing the trial division denied the motion.

A.S.C.A § 43.1501 described the order in aid of judgment. In pertinent part, it provides that:

(a) At any time after they entry of judgment for the payment of money by one
party to another and before the judgment has been satisfied in full, either
party may apply to the court for an order in aid of judgment.

(b) Upon such application or upon its own motion, the court ... may hold
hearing on the question of the debtor's ability to pay and determine the
fastest manner in which the debtor can reasonably pay the judgment.

(c) In making this determination, the court shall allow the debtor to retain
such property and such portion of his income as may be necessary to
provide the reasonable living requirements of the debtor and his dependents. . . .

In the absence of a bankruptcy statute, § 1501 provides essential relief for debtors and their families, and the trial court should use the full reach of its equitable powers as necessary and appropriate to effect the statutory protection. The action here, however, was not to execute a money judgment but to foreclose a chattel mortgage, and the statute cannot be used to defeat a creditor's security interest in identified property. If such foreclosures were barred, the statute would defeat legitimate security interests recognized by the legislature in other statutory provisions. See A.S.C.A §§ 37.1002, 37.1103.

The mortgage here was on the chattel interest in a house and not on its land, and there is no prohibited alienation by allowing the foreclosure.

The judgment is AFFIRMED.


*Honorable Robert Gardner, Chief Justice Emeritus, High Court of American Samoa, serving by designation of the Secretary of the Interior. **Honorable Anthony M. Kennedy, Judge, United States Court of Appeals for the Ninth Circuit, serving by designation of the Secretary of the Interior.

Chun v. Chun,


GERTRUDE IULI CHUN, Petitioner

v.

JEFFEREY FOOK HING CHUN, Respondent

High Court of American Samoa
Trial Division

DR. No. 28-86

June 6, 1986

__________

A statute specifying "habitual cruelty or ill usage" as a ground for divorce is not satisfied by proof of irreconcilable differences between husband and wife. A.S.C.A. § 42.0202.

"Habitual cruelty or ill usage" in divorce statute includes such things as physical violence, threats, and gratuitous harassment. A.S.C.A § 42.0204.

The agreement by a spouse against whom divorce is sought not to contest the diborce does not relieve a court of its statutory duty to examine all witnesses and to dismiss the action if the petitioner has failed to prove the charge. A.S.C.A. § 42.0205-06.

Before REES, Chief Justice, AFUOLA, Associate Judge, and VAIVAO, Associate Judge.

Counsel: For the Plaintiff, Michael Lash

Plaintiff seeks a divorce on the ground of "habitual cruelty or ill usage." The cruelty or ill usage she alleges is that her husband refuses to participate fully in the activities of her aiga.

The plaintiff, a native of American Samoa, and the defendant, a native of Hawaii, were married in Honolulu in 1970 and subsequently moved to American Samoa. Plaintiff testified that her husband is a loving father and a good provider, and that he does not object to spending her earnings or his on gifts to her mother and other immediate relatives. He refuses, however, to spend money on gifts to members of the aiga who are not close relatives or on contributions to events that do not involve close relatives. Her repeated efforts to convince him that such gifts and contributions are a [3ASR2d24]customary family obligations, and that his refusal constitutes a continuing source of embarrassment to her, have been unavailing. She is willing to allow him to have custody of the four children and ownership of the family house, and he has waived his right to contest her petition for divorce.

If the laws of American Samoa provided for divorce on the ground of "irreconcilable differences," this would seem to be a case for it. A.S.C.A. § 42.0202, however, provides no such ground for divorce. The disagreement between the parties over the extent to which they should participate in their Samoan family activities, although it has emerged recently in what has otherwise been and remains a happy marriage, is a very real one. But it does not constitute cruelty or ill usage--terms usually reserved for such things as physical violence, threats, and gratuitous harassment--on the part of the husband or the wife.

The husband's agreement not to contest the divorce cannot relieve the court of its obligation to "examine all parties and witnesses, and ... take all evidence, " and to dismiss the petition if the petitioner has failed to prove the charge alleged in the petition. A.S.C.A. § 42.0205-06.

Finally, A.S.C.A. 42.0207 provides that "condonation may be presumed in all matrimonial actions and proceedings by the voluntary cohabitation of the parties with the knowledge of the offense charged." Plaintiff testified that she continue to live the defendant, and that they live together as man and wife. The law presumes that if someone has forgiven his or her spouse sufficiently to resume intimate relations, the forgiveness is also sufficient to obviate the need for a divorce. The presumption can be rebutted, but was not rebutted in this case.

The evidence shows that the Chuns are a happily married couple with a significant disagreement between them. If they cannot work this disagreement out they are free to separate, and eventually to divorce on the ground of having lived apart for five years. A.S.C.A. § 42.0202(5). But the laws of American Samoa--apparently in the hope that disagreements can be worked out and marriage preserved wherever possible--do not provide for divorce in a case such as this.

Petition dismissed.

**********

Bartley; Olotoa v.


OLOTOA OVERLAND MANUMA, Plaintiff

v.

ALEFOSIO BARTLEY and LAUTELE

LETULIGASENOA, Defendants

High Court of American Samoa
Land and Titles Division

LT. No. 15-86

May 17, 1986

__________

Court rules require a "motion to alter or amend" a judgment to be served on opposing parties within ten days of judgment. T.C.R.C.P. Rule 59.

Territorial statute requiring motions for new trial to be "filed" within ten days of judgment would not be construed to require service on opposing parties within the ten day period. A.S.C.A. § 43.0802.

Arguments that could have been made at trial may not be made for the first time on a motion for new trial or in an appeal.

Before REES, Chief Justice, TAUANU'U, Chief Associate Judge, and LUALEMAGA, Associate Judge.

Counsel: For the Plaintiff, Asaua Fuimaono
For the Defendants, Malaetasi Togafau and Talelei Tulafono

On May 5, 1986, counsel for defendants filed a motion for new trial or to amend judgment with the clerk of the High Court. The motion was served on counsel for the plaintiff on May 6. Thus the motion was filed on the tenth judicial day after judgment was issued on April 25, 1986, but was not served until the eleventh day. Since T.C.R.C.P. Rule 59 requires that a motion to alter or amend a judgment be served within ten days of judgment, the Court cannot entertain the motion as one to alter or amend the judgment.

Rule 59 curiosly provides no time limit for a motion for new trial except that it be "filed not later than ten days before the date of the hearing." A.S.C.A. § 43.0802 does provide that a [3ASR2d22] motion for new trial must be "filed" within ten days of judgment, but does not require service within the ten days. So the Court may consider this motion as one for a new trial.

Counsel raises an interesting and possibly important argument in his motion: that since the man who sold the land in question to the plaintiff and later tot he defendants had not registered the land as his individual property until after the first sale, the Court is obliged to presume that the land was his communal property at the time of the first sale. Thus the first sale would be void for failure to comply with the statutory requirements for sale of communal land.

The Court has, however, carefully scrutinized the transcript of counsel's argument at trial and can find no trace of this argument. Although counsel did argue that the vendor had not involvement in the survey registered by plaintiff, this point seems to have been raised solely to bolster the defendants unsuccessful argument that the vendor actually sold the plaintiff a different piece of land than the one in question. Since counsel had every opportunity at trial to argue that the land was communal land and failed to do so, the argument must be regarded as waived and cannot be raised at any future stage of the litigation. Morever, there was adequate evidence in the record from which the trial court could conclude that the presumption of communality had been rebutted and that the land was in fact the vendor's individual property at the time of the first sale. The motion for new trial is therefore denied.

Counsel for defendant also moves that execution of the judgment be stayed pending appeal. Defendants have plantations on the land, whereas plaintiff opposes the stay in order to be free to sell the land and deliver it to the vendee. It would be quite difficult for defendants to rebuild destroyed plantations in the event an appellate court were to reverse the trial court's judgment. It will be far less difficult for plaintiff to wait until the appellate state of this proceeding is over to deliver what will be until then a cloudy title. The stay of execution is therefore granted.

 

**********


American Samoa Gov’t v. Dole,


AMERICAN SAMOA GOVERNMENT

v.

RAYMOND DOLE, Defendant

High Court of American Samoa
Trial Division

CR. No. 48-86

October 10, 1986

__________

Powers of pardon and parole granted to executive by statutes and constitution do not give the executive carte blanche to ignore court orders and sentences.

Release of prisoner within two weeks after court had sentenced him to a year of detention as condition of probation, whether called a furlough, work release, reward for good behavior, compassionate leave, or by another label, violated statutes and court order.

Before MURPHY, Associate Justice.

Counsel: For the Government, William Wallace, Assistant Attorney General
For the Defendant, Michael Bennett, Assistant Public Defender

On June 2, 1986 this Court sentenced the above named defendant for burglary of the United States Post Office in this Territory. The court ordered probation of sentence on the condition that Defendant conduct himself as a law abiding citizen. The Court further ordered Defendant to jail for a period of one year.

Defendant now appears before us convicted of a burglary of the Burns Philip Store on June 14, 1986.

One might ask "How can this happen? How can a person sent to jail for one year commit a burglary less than two weeks later?"

The answer is simply that the Department of Public Safety ignored the Court's order and for reasons known only to itself, released the Defendant. [3ASR2d64]

To make matters worse the following scenario has occurred. The defendant once again appeared before this Court for sentencing on the Burns Philip crime. The Court sentenced the Defendant to five years imprisonment. We also revoked his probation on the Post Office crime and imposed a five year sentence. Defendant has now been sentenced to a total of ten years imprisonment. He now at least is in jail; right? Wrong.

According to papers filed by the Attorney General's office, the Defendant was seen at liberty on the very afternoon of his last sentencing. (1) Defendant perhaps has friends (or relatives) in high places.

Our system of government is supposed to operate something like this: The Legislature passes laws making certain acts criminal. When those laws are violated the Executive prosecutes. If convicted the Judiciary sentences. Since neither the Legislatures nor the Judiciary have jails, the Defendant is remanded to the Executive for execution of the sentence. When the Executive refuses to follow the sentence, the system collapses. True, the Legislature has granted the Executive powers of pardon and parole. These powers are closely defined in Chapter 27 Title 46, A.S.C.A. They do not give the Executive carte blanche to ignore court orders and sentences or to ignore statutes duly enacted by the Legislature.

The people of this Territory are entitled to governmental protection from convicted criminals. What can be done when the Department of Public Safety simply decides to turn loose a convict contrary to his sentence or statutory eligibility for parole? There seems to be very little judicial precedent for this situation. Prisoner's rights cases usually get before the Courts when the Executive is allegedly mistreating a convict. When the Executive decides to refrain from carrying out an order of imprisonment, naturally the Defendant will not complain. Both the Office of the Attorney General and Department of Public Safety are creatures of the Executive. It seems anomalous that the Attorney General prosecutes and asks for a [3ASR2d65] sentence, and when the Court imposes the sentence the Department of Public Safety decides to ignore it. It doesn't help to call the release a furlough, a work release (this Defendant has no job), reward for good behavior, Compassionate leave, etc. The point is, the Executive is mandated to carry out the directions of the Legislature and the Judiciary. When it refuses to do so our form of government becomes a mockery.

The scenario above described is not without humor. But when a victim of a rape, robbery or burglary or the relatives of a homicide victim see the criminal enjoying his freedom a short time after sentencing it really is not funny at all.

Admittedly, as anyone who lives here knows, many facets of our government are quaint, colorful and don't work very well. To reduce the criminal justice system of American Samoa to the level of make-believe must be very discouraging to the police and prosecutor. It certainly is to the author of this opinion.

**********

1. A newspaper account of this incident gave as explanation a statement by the Warden that he "had not received a written sentence." In fact a written sentence was entered last June and has been steadfastly ignored!

American Int’l Underwriters, Ltd. v. American Samoa Gov’t,


AMERICAN INTERNATIONAL UNDERWRITERS
(SOUTH PACIFIC), LTD., Plaintiff

v.

AMERICAN SAMOA GOVERNMENT, FA'AFETAI (RUPI)
HANIPALE, an incompetent, and LE'ALA R. HANIPALE
his mother and guardian, Defendants

High Court of American Samoa
Trial Division

CA. No. 114-85

December 4, 1986

__________

Territorial government which was required by law to pay for an accident victim's medical expenses, and which had these expenses, was an "injured person" within the meaning of a statute allowing injured person to bring direct action against the insurer of a person alleged to have caused the accident. A.S.C.A § 22.2018.

A person who is legally obliged to pay a debt of another person and who actually does pay that debt acquires the legal rights of the creditor under the equitable principle of subrogation.

Territorial statute which required the government to provide free medical services to all citizens, and which did not require citizens who had be ability to pay their won medical expenses to reimburse the government, implicitly required that government's claim for reimbursement from tortfeasor's insurer should be subordinate to victim's claim for pain and suffering. A.S.C.A § 13.0601.

Before REES, Chief Justice, TAUANU'U, Chief Associate Judge, and VAIVAO, Associate Judge.

Counsel: For the Plaintiff, Roy J.D. Hall, Jr.
For Defendant ASG, Donald Griesmann, Assistant Attorney General
For Defendants Hanipale, Micheal Kruse

This is an action in interpleader. Rupi Hanipale was seriously injured while riding in a car insured by American International Underwriters (A.I.U.). The American Samoa Government (A.S.G.) Provided Hanipale with medical care and paid for his transportation to Hawaii for services there [3ASR2d116] that could not be provided locally, all in accordance with A.S.C.A. § 13.0601. Hanipale demanded payment from A.I.U on account of his injuries, and A.S.G. also demanded reimbursement from A.I.U. For Hanipale's medical expenses. A.I.U. Has deposited into the registry of the High Court the sum of $10,000, the amount of bodily injury insurance provided by the policy, and asks that the Court declare whether A.S.G. or Hanipale is entitled to the money.

Counsel for Hanipale argues that A.S.G. may not recover under the policy because the territorial statute providing for direct actions against insurance companies, A.S.C.A § 22.2018, purports to create such actions only for "an inured person or his heirs representatives." Counsel contends that where the policy provision sued upon covers bodily injuries, the term "injured person" in the statute should be construed to refer only to the person who has sustained bodily injuries, not to a party such as A.S.G. who sustains economic injuries on account of another person's bodily injuries.

In support of this contention, counsel for Hanipale cites Sciaraffa v. Debler, 23 N.E. 2d 111 (Mass. 1939), and Franklin Casualty Insurance Company v. Jones, 362 P.2D 964 (Okla. 1961). Each of these cases denied the right of a doctor to maintain a direct action against an insurance company to collect his fees for treating a person whose injuries were covered by the company's policy. The reference to physicians in Sciaraffa is dictum and is unsupported by analysis. The case seems to hold that the "voluntary payment" by a son of his own medical expenses, which his father was legally obliged to pay, did not entitled the son to maintain an action against the insurance company for reimbursement of these expenses. The Franklin case, on the other hand, was not particularly concerned with the "voluntary" nature of the doctor's services, holding instead that the doctor was "too far removed" from the injuries clause. 362 P.2d at 966. He was, in other words, an "incidental" rather than an "intended" beneficiary of the policy, and therefore could not sue upon it. See id. Counsel for A.S.G., however, cites cases in which federal hospitals providing services under a statutory obligation are distinguished from mere "volunteer" doctors and thus allowed to maintain direct actions. See, e.g., United States v. [3ASR2d117] Government Employees Insurance Co., 461 F.2d 58, 60 (1972):

[T]he United States was not a volunteer; it, in rendering the service,
was discharging a statutory obligation, little different from the
common-law obligation of a parent, it is entitled to recover for its
expenses incurred by reason of its statutory obligation to the insured.

See also United States v. United Services Automobile Association, 431 F2d 735 (1970), cert. Den., 400 U.S. 992 (1971); United States v. State Farm Mutual Automobile Insurance Co., 455 F.2d 789.

We are persuaded by the analogy between A.S.G. and a parent who pays medical expenses in fulfilment of a legal obligation. Indeed, the general pattern of the decisions cited by both sides is that a person can maintain a direct action against an insurance company if and only if he could have maintained an action against the insured tortfeasor. This seems fully consistent with the central purposes of direct action statutes: to simplify litigation and to allow an injured person to recover under a policy even if the insured tortfeasor has become insolvent or unavailable. See 12A Couch on Insurance 2d (Rev'd Ed. 1981) § 45:798.

Other cases cited by the plaintiff, to the effect that "bodily injury" does not include loss of consortium by the injured person's spouse or emotional distress at having one's constitutional rights violated, do not contradict this conclusion. (1) In this case it is not questioned [3ASR2d118] that Hanipale suffered injuries. If he had been legally responsible for his own medical bills, he clearly could have recovered for them under the policy. With regard to the medical bills A.S.G. stands in Hanipale's place as the real party in interest. If A.S.G. were the only claimant in this case we would be strongly inclined to allow recovery -- if not on the ground that A.S.G. is an "injured person" within the meaning of the statute then on the equitable principle of subrogation, whereby a person who is legally obliged to pay a debt of another person and who actually does pay that debt acquires the legal rights of the creditor. (2)

The case actually before us, however, is somewhat more complicated. The question is not whether a government agency which is required to pay an injured person's medical bills can recover against the tortfeasor's insurer, but whether the [3ASR2d119] agency is entitled to funds which would otherwise become the property of the injured person himself. Although there has been no evidentiary hearing in this case, it is uncontroverted that Hanipale suffered serious brain damage requiring extended hospitalization and rendering him incompetent to manage his own affairs. A.I.U., in whose interest it would be understate rather than to exaggerate the extent of the losses suffered by Hanipale, conceded that he is entitled to recovery the entire amount at stake in this case, unless A.S.G. is held to have a claim superior to that of Hanipale.

This question has more to do with A.S.C.A § 13.0601, the law providing free medical services for American Samoans, than with the direct action statute. The Fono, in providing such services, was obviously free to attach the condition that under certain circumstances the patient would be required to reimburse the government. Although the language of the statute contains no explicit conditions, it is arguable that the legislature that enacted the statue, had it anticipated the present circumstances, would have regarded them as an implicit exception to the general rule that no American Samoan should be required to reimburse the government for medical care.

Even though the Fono chose to impose no other "means test" -- even though the very wealthiest citizens are not required to pay for their treatment -- it can be argued, and defendant A.S.G. does argue, that there is a logical distinction between (a) having money and (b) having received moneyon account of the injuries for which medical care is needed. We can find no basis, however, for imputing to the Fono the desire to make such a distinction. If Hanipale had been receiving compensation for his injury from an employer or a government agency, or if he had been given a large sum of money by a wealthy benefactor who sympathized with his plight, A.S.G. apparently concedes that it would not be entitled to reimbursement. See A.S.G. Answers to Interrogatories, #8. This would be true even though if Hanipale had not been an American Samoa and had been responsible for his own medical bills, he would have had to pay them out of the funds thus acquired.

In this case Hanipale is entitled to receive compensation from the tortfeasor's insurer to compensate him for the pain and suffering he has endured. The law regards such injuries as[3ASR2d120] compensable not on the ground that injured persons should receive windfalls, but on the ground that they have suffered real injuries that they had a legal right not to be make to suffer. (This is not to say that juries and judges do not sometimes give awards that might look more like windfalls than like compensation. But the facts of this case do not suggest that the insurance company has contrived to bestow such a windfall on Hanipale.) An award for pain suffering is, in other words, not inferior in rank or dignity to any other entitlement a person might have. We see no reason to make of such an award a unique exception to the rule that no American Samoan is required to reimburse the government for medical care, no matter what the amount or source of his wealth.

Nor should it make any difference that in this case A.S.G. made a demand on A.I.U before A.I.U. had actually disbursed the funds to Hanipale. If a policy contains a medical payment provision, or a bodily injury provision whose limit will not be exhausted by just compensation to the injured person himself, (3) then we believe A.S.G. has the right to reimbursement from the insurer for its expenses in connection with a covered injury. Where, however, the effect of a claim by A.S.G. would be to deprive the injured person of funds to which he is otherwise entitled, we believe such a claim to be contrary to the clear purpose of A.S.C.A § 13.1601, and therefore barred. Judgment will be entered for defendant Hanipale.


1. Indeed one of the cases seems to support the contention that a husband can sue an insurance company for his losses suffered as a result of a covered injury to his wife. New Hampshire Insurance Company v. Bisson, 449 A.2d 1226 (N.H. 1982), affirmed a trial court judgment that an action for loss of consortium "arises from the bodily injury to" the spouse, but was not a separate bodily injury. Thus under a policy limit of $20,000 per person and $40,000 per incident, "the policy limit has been exhausted by the payment" of $20,000 to the wife, and the husband could not recover an additional $9,000 on the theory that his was a separate bodily injury triggering the $40,000 limit. Id at 1227. The strong implication is that the husband could have recovered under the policy if the $20,000 limit had not been exhausted.

2. See generally Dobbs on Remedies 251 (1973) (citations omitted): [S]ubrogation is ...a remedy invoked by courts -- originally equity courts -- to prevent unjust enrichment, and for this purpose it is appropriate in any case where restitution is warranted and the remedy can be given without working an injustice.... Subrogation simply means substitution of one person for another; that is, one person is allowed to stand in the shoes of another and assert his rights... [T]he pattern almost always looks something like this: A debtor owes money to a creditor. For some reason ... the plaintiff pays the debtor's debt, thus satisfying the creditor's claim against the debtor. If there is no legitimate reason for the plaintiff's intervention ... the plaintiff will be described in derogatory terms as a volunteer and cast into legal outer darkness. On the other hand, if the plaintiff paid [t]he debt for some good reason...[the debtor] is unjustly enriched...[I]t seems entirely just to give the plaintiff the same rights held by the creditor whose claim he discharged.

3. The amount of such compensation will in many cases require a trial. On the state of the pleadings and the record, and especially in light of A.I.U's apparent willingness to settle with Hanipale before A.S.G. had made its claim, we do not believe this to be such a case.

Aga v. American Samoa Gov’t,


PAMATA AGA, Plaintiff

v.

U.S. SECRETARY OF INTERIOR, AMERICAN SAMOA
GOVERNMENT, LBJ TROPICAL MEDICAL CENTER, DR. CLAUDE
DALTON-JAGH, DOES I THRU XX, Defendants

High Court of American Samoa
Trial Division

CA. No. 109-86

December 19, 1986

__________

In order for a government subdivision to be a separate entity capable of suing or being sued in its own name, such status must bestowed by statute or constitution.

Plaintiff alleging injury by employee of territorial government had the option, in accordance with territorial statute, to bring an action against the employee or to waive this action and follow statutory procedures for making a claim against the government. Government Tort Liability Act, A.S.C.A 43.1201 et seq.

Before MURPHY, Associate Justice.

Counsel: For Plaintiff, Charles Ala'ilima
For Defendants ASG et al, Martin Yerick, Assistant Attorney General
For Defendant Secretary of the Interior, Michael Kruse

On October 21, 1986 Plaintiff brought this action under and pursuant to the Government Tort Liability Act. Chapter 12, Title 43, A.S.C.A Plaintiff pled compliance with the requisite jurisdictional requirements as provided in the Act. Plaintiff's claim is based upon a theory of medical malpractice. She has named as defendants, in addition to the Government of American Samoa, the L.B.J. Tropical Medical Center, Dr. Claude Dalton Jagh, the United States Secretary of the Interior and Does 1 through XX. The Attorney General has moved for an order striking defendants L.B.J. Tropical Medical Center and Dr. Claude Dalton-Jagh from the complaint.

The Attorney General argues that the remedy provided under the Act is exclusive and the Plaintiff can only proceed against A.S.G as the sole defendant. [3ASR2d130]

The Court notes that there is an additional ground for dismissal as to L.B.J. It is common knowledge that the Medical Center is operated and administered by A.S.G.

Title 13 of the American Samoa Code Annotated provides for the establishment within the executive branch of A.S.G. Territorial Medical Facilities, but there is no provision that any facility so established can sue or be sued. Keifer & Keifer v. R.F.C., 306 U.S. 381 (1939), presaged the idea of governmental tort liability and the issue of what agencies can be sued. See for example: Kozikowski v. Delaware River Port Authority, 397 F. Supp. 1115 (D.N.J. 1975), Edelman v. F.H.A., 382 f.2d 594 (2d Cir. 1967) (opinion at 251 F. Supp. 715). In order for a governmental subdivision to be a party defendant (or plaintiff) that power must be created by statute or constitution. Simply designating a facility by name does not create a separate entity.

Ordinarily various departments and sub-divisions of the government are the responsibility of the executive, ie; A.S.G. Can you sue a police sub-station? A bus stop? Can "Montoya Corner" be a defendant? We think not, ergo L.B.J. Tropical Medical Center should be stricken as a party defendant.

We now turn to the issue of whether or not the government employee can be sued. The answer is he can, except when the plaintiff elects to proceed under the Government Tort Liability Act. (SeeMoana et al. v. A.S.G., CA No. 133-85, December 18, 1986, High Court Trial Division.)

The determinative provisions of the statute are 43.1211 (a): "The remedy by suit against the government as provided by this chapter for damage ... or personal injury ... caused by the negligent or wrongful act or omission of any employee of the government acting within the scope of his ... employment shall hereafter be exclusive of any other civil action of proceeding by reason of the same subject matter against the employee whose act or omission gave rise to the claim..."

Paragraph (b) of the same section provides in pertinent part that the Attorney General is to defend any such action brought against an employee of the government. [3ASR2d132]

This is pretty straightforward language and the reasoning behind it is readily apparent. The Act is essentially a waiver of sovereign immunity. Richards v. United States 369 U.S. 1 (1962). The government being the "deep pocket" wants to retain control of the litigation.

A judgment taken under this chapter constitutes a complete bar to any action against the employee. A.S.C.A § 43.1207. In the event a judgment is not taken, as for example, if the employee was found not to be acting within the scope of his employment as suggested by Plaintiff's counsel in his memorandum, then of course an action can be maintained against the employee. However, until that occurs, so long as Plaintiff is proceeding under the Act, she can only sue A.S.G. Accordingly the motion to strike L.B.J. Tropical Medical Center should be granted on both grounds above stated and Dr. Claude Dalton-Jagh should also be stricken as a party defendant. The Secretary of Interior has not joined in the motion to strike. The Court does not have the temerity to strike him absent a motion since perhaps he is planning on coming to Samoa to personally defend.

Motion to strike granted this 19th day of December, 1986.

**********

Adams; Filoiali'i v.


FIAPAIPAI FILOIALI'I, Appellee

v.

WILLIAM ADAMS, QUALITY FURNITURE, INC.,
and DOES 1-5 Appellants,

v.

DEVELOPMENT BANK OF AMERICAN SAMOA, Intervenor

High Court of American Samoa
Appellate Division

AP. No. 11-86

November 4, 1986

__________

Party who took possession of property, took over payments on debt owed by property owner and secured by a mortgage on the property, and executed a new document purporting to be a mortgage on the property, did not thereby acquire ownership of property.

Trial court did not err in holding party personally liable for rental payments when that party had personally engaged in negotiations for the rental and had not formed a corporation until about the time he took possession of the property, and where all transactions were so informal that it was not clear property owner intended to deal with a corporation rather than an individual.

Before REES, Chief Justice, MURPHY, Associate Justice, KENNEDY*, Acting Associate Justice, LUALEMAGA, Associate Judge, and AFUOLA, Associate Judge.

Counsel : For the Appellants, Asaua Fuimaono
For the Appellee, John Ward

Per KENNEDY, J:

Plaintiff Fiapaipai Filoiali'i is the administratrix of the estate of her late father, Fili M. Liufau. In 1980 Liufau obtained a loan from the Development Bank for construction of an industrial building in the American Samoa Government-owned Industrial Park at Tafuna. Liufau's loan of $100,000 was at a seven percent interest rate, and required payments of $776 per month. Liufau executed a promissory note secured [3ASR2d106] by a mortgage on both the realty and personalty on the property. Liufau also entered into a lease agreement with the government, however, granted a "rent moratorium" for three years.

In 1981 Liufau was killed, and his daughter, the plaintiff here, took over operation of Liufau's business. The business fell on hard times, and the loan payments to the Development Bank fell into arrears.

In late 1982, William Adams began negotiations with the Development Bank. In 1983 Adams executed a "mortgage" and moved on to the premises under an agreement to pay the Bank $1,400 per month, provide insurance, and pay the $226 per month monthly rental to the government. Adams executed a "mortgage" to secure these amounts. At approximately the same time, Adams incorporated Quality Furniture. Plaintiff was not a part of these negotiations and did not execute any agreements to approve the transaction, though apparently she had some knowledge of it. She moved out when Adams moved in.

The agreement between Adams and the bank called for $776 of the $1,400 payment to be committed to the interest and principal of the original loan, the balance to be committed to arrearages, and, it seems, any further balance to be returned by the bank. Adams did not pay the full $1,400 per month. His total payments of $30,263.65 were enough to satisfy the original loan and its arrearages, but were $20,136.35 short of the $50,400 (36 months at $1,400 per month) that Adams promised to pay. In addition, Adams failed to make approximately $7,000 in payments on lease payments to the government, and $2,086.25 in insurance payments.

The trial division, in the exercise of its equitable powers, gave judgment as follows: first, the court declared that Adams and Quality Furniture had acquired no interest in the property through its purported mortgage in 1983, and that the plaintiff still owned the property subject to the original loan; second, the court determined that Adams and Quality Furniture had entered the property under an implied lease with the plaintiff as administratix for rental payments of $1,400 per month plus the amounts owed to the government for insurance; third, the court determined that Adams and Quality Furniture were in breach of the lease [3ASR2d107] with the Plaintiff, and had joint liability to the plaintiff for over $29,000.

On appeal Adams and Quality Furniture make two main arguments. First, they argue that Adams cannot be personally liable because he did business only as president of Quality Furniture. Second, Adams and Quality Furniture argue that the trial division erred in the exercise of its equitable powers. We reject both contentions and affirms.

There were sufficient facts to support the court's determination that Adams had joint liability with the corporation. Adams did not incorporate until approximately the time that he took over the premises. Further, the whole transaction was conducted in an exceedingly informal manner. Under these circumstances, we are unable to say as a matter of law that Adams is entitled to hide behind his corporate shell.

We also think that the court was correct in the exercise of its equitable powers. Adams and Development Bank, acting by themselves, could not possibly terminate the plaintiff's interest. The court's finding of an implied lease on the terms of the "mortgage" worked out between Adams and Development Bank was perfectly reasonable given that possession, but not title, had passed. We think that the trial division's judgment was supported factually and was eminently fair. The judgment of the trial division is AFFIRMED.


*Honorable Anthony M. Kennedy, Judge, United States Court of Appeals for the Ninth Circuit, serving by designation of the Secretary of the Interior.