8ASR2d

8ASR2d

Shimasaki; Siofele v.


PAPU JOSEPH SIOFELE, Plaintiff

v.

FEALOFANI SHIMASAKI, Executive Director,
Election Office and AMERICAN SAMOA
GOVERNMENT, Defendants

High Court of American Samoa
Trial Division

CA No. 79-88

August 29, 1988

__________

Where statute provided for appeal to board of registration from a denial of voter registration by election officer, and for judicial review of an adverse decision of the board of registration, court would not issue writ of mandamus to election officer ordering him to register prospective voter who had not yet appealed to board of registration. A.S.C.A. §§ 6.0224, 6.0230.

Under statute providing that blank forms for petitions required of candidates for elective office should be distributed by election officer, and also providing that eligibility of candidates should be determined after they had filed the required petitions, election officer had no authority to withhold blank forms from a prospective candidate whom he did not did not believe to be eligible for election. A.S.C.A. §§ 6.0301(b), (d). [8ASR2d82]

Before REES, Chief Justice.

Counsel: Plaintiff Papu Siofele pro se
For Defendants, Caroline B. Crenna, Assistant Attorney General

On "Petition for Writ of Mandate":

Plaintiff asks that the Court order defendants to show cause why they should not (1) permit him to vote in the upcoming gubernatorial election and (2) "provide him with all necessary nominating papers according to law. " He also asks (3) that the Court "extend time required [by statute] for filing of nomination papers by ten (10) working days subsequent to September 01, 1988"; and (4) that he be awarded damages in the amount of $50.

Nowhere in his petition or the accompanying affidavit and memorandum does petitioner specifically allege that he has attempted to register as a voter in accordance with the procedure prescribed by statute, or that he has asked for nominating petitions and that his request has been refused, or that he has paid a filing fee of $50 and then unsuccessfully sought a refund. From what petitioner does allege and from his requests for relief, however, we gather that some or all of these things may have happened.

A person whose application for registration as a voter has been denied by an election officer has the right to appeal to the board of registration. A.S.C.A. § 6.0224. The board is required by statute to sit on election day; the statute does not seem to prohibit the board from also sitting prior to election day. A.S.C.A. § 6.0224(b). In the meantime the person appealing the denial of registration is allowed to cast his ballot, but the ballot is set aside in a sealed envelope to be counted or not counted later depending upon the outcome of the appeal. A.S.C.A. § 6.0223(c). If the board of registration denies his appeal, the prospective voter has the right of appeal to the High Court, which shall hear the case as soon as possible after the election. A.S.C.A. § 6.0230. In the meantime the applicant's rights are preserved by the retention of his ballot in a sealed envelope, to be counted along with other such ballots in the event the Court overturns the rulings of the board of registration. A.S.C.A. § 6.0223. [8ASR2d83]

In seeking a writ of mandamus ordering his immediate registration as a voter, petitioner essentially asks the High Court to skip the intermediate steps in the appellate procedure and proceed immediately to the final appeal. This we cannot do. The statutory procedure provides petitioner with an adequate remedy at law, absolutely ensuring that his right to vote will not be denied without judicial review. A writ of mandamus at this time is therefore inappropriate.

With regard to the alleged denial of petitioner's right to run for Governor or Lieutenant Governor the situation is more complicated. Petitioner has apparently not presented the Election Office with a petition signed by 300 registered voters in support of his nomination for Governor or Lieutenant Governor. Until he does this and the Election Office refuses to put him on the ballot, he is not in a position to allege that his right to run for office has been denied. See A.S.C.A. § 4.0103, 6.0301. Petitioner implies, although he does not specifically state, that he has asked the Election Office for blank petition forms and that they have denied his request.

The only statutory reference to blank petition forms is a requirement that they be "distributed in each district by the chief election officer." A.S.C.A. § 6.0301(b). This statute does not say that these forms should only be given to people who have previously been certified as eligible to run for office. On the contrary, the statute goes on to specify that the chief election officer "shall determine whether the nominated candidates [that is, those who have filed their petitions] are eligible for election." A.S.C.A. § 6.0301(d). Thus the determination of a candidate's eligibility is to be made after he has filed his petitions, not at the time he requests blank petition forms. Petitioner does have the legal right to receive such forms.

Petitioner's request for an extension of the statutory deadline for filing his petitions is highly problematic. It is not inconceivable that someone who was legally eligible to run for office and who was wrongfully denied blank petition forms until shortly before the statutory deadline might be entitled to such relief. The legislature that [8ASR2d84] enacted the statutory deadline also commanded election officials to distribute blank petition forms. In an appropriate case the Court might have to decide whether the deadline and the requirement for distribution of forms are so closely related that the former should be regarded as conditional upon the latter. Before the Court could reach this question, however, it would be necessary for the petitioner to prove that he was in fact denied the petitions and that he was damaged by this denial ---that he was in fact eligible to run for office and that he could have collected the necessary signatures on or before the deadline if he had been given the petitions when he first asked for them.

If the present petitioner has been denied blank petition forms, and if he immediately obtains such forms and collects 300 signatures but misses the September 1 deadline by a few days, we will be presented with the question whether he is entitled to have his petitions accepted. If he submits his nominating petitions and the chief election officer rules that he is ineligible to run on the ground of nonresidence, we will be presented with this question as well. Until petitioner submits such nominating petitions and the chief election officer makes his ruling, any opinion the Court might express would be purely advisory and therefore inappropriate.

With respect to the alleged fifty dollars in damages the Court is confused. Did the election office accept fifty dollars from the petitioner? If so, did petitioner request a refund? If so, does he intend to withdraw his candidacy? Without knowing the answers to these questions we cannot award damages.

If petitioner should request blank nominating petitions from the chief election officer, or if he has already requested them, they should be provided immediately. All other requested relief is denied.

It is so ordered.

**********

Sesepasara; Roberts v.


MILANETA ROBERTS, Plaintiff

v.

HENRY SESEPASARA, NANCY FERRA, and ESTATE OF
MOLITUI SEPETAIO, Defendants

High Court of American Samoa
Trial Division

CA No. 44-87

October 11, 1988

__________

Appraisal by court of the value of real estate is not a conclusion of law requiring support from findings of fact, but is itself a finding of fact.

Where rule by which good faith possessor of land is entitled upon eviction to compensation for the full amount by which his improvements enhanced the value of the land, and alternate rule by which possessor [8ASR2d125] is entitled to no more than the actual cost of his improvements, would dictate the same result in the case at hand, court deciding case of first impression need not choose between the two rules.

Justification for using the cost of improvements made by good faith possessor of land as a ceiling on the amount of compensation to which possessor is entitled upon eviction is that, once the possessor has been made whole, he can no longer complain that any enrichment of the true landowner is unjust.

Rule by which evicted good faith possessor can recover no more than the actual cost of his improvements must be applied so as to prevent unjust enrichment by making possessor whole; actual cost must therefore be calculated according to the present value of money spent on improvements years ago.

Where good faith possessor of land had paid for improvements made by previous occupant who was not a good faith possessor, and had spent additional funds on further improvements, and where true owner of land had neither built nor paid for any of the improvements, possessor was entitled to compensation both for the improvements she had purchased and for those she had made herself.

Good faith possessor of land, who had rented the land with its improvements to a third party, is entitled upon eviction to retain any rents she received, less the rental value of the land without any improvements.

Where landowner, in action for eviction of good faith possessor and accounting for rents received by the possessor, presented no evidence of what the fair rental value of the land would have been without any improvements, court in its discretion could deny landowner any credit for such rental value.

Where (1) possessor of property had continued to receive rental payments for property after notice of claim by true landowner; (2) during this time possessor had taken care of the property, made repairs and improvements, and paid for insurance; (3) true landowner during a comparable period of possession had collected rents without insuring, improving, or caring for the property; and (4) some undetermined part of the rental value of the[8ASR2d126] property was due to improvements made by the possessor prior to notice of the cl~im by the true landowner, it was within court's equitable discretion to treat possessor as a good faith possessor throughout the period in question and to allocate half of the net rents (receipts minus expenditures) to each party.

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

Counsel: For Plaintiff, Charles Ala'ilima
For Defendants, John Ward

On Motions for Reconsideration, Amendment of Judgment, or New Trial:

This case arose from a dispute among close relatives over the ownership of a small parcel of land in Pago Pago. We held that the defendant Estate of Molitui Sepetaio owns the land, but that plaintiff Roberts is entitled to compensation for improvements for which she paid under the reasonable belief that she was the owner. Both sides take issue with our judgment.

I. Plaintiff's Motion

Plaintiff Roberts argues that we erred in finding that Molitui Sepetaio did not sign a separation agreement giving Roberts' father the right to build his house on the land. She observes that the purported signature was made during a time when Molitui was very ill, and that the memories of witnesses might have been hazy with regard to Molitui's whereabouts at the time. We did take these circumstances into account before making our original decision, however, and upon reconsideration we reiterate our finding that the signature was not that of Molitui.

Plaintiff also contests our valuation of the house, apart from the value of the land on which it sits, at $15,000. In particular, plaintiff alleges that "the Court erroneously attributed at least half of the value of the house to its location. There were no findings by the Court to justify the conclusion." [8ASR2d127]

A court's appraisal of the value of real estate is not, however, a "conclusion of law" requiring support from "'findings of fact." Rather, the appraisal is itself such a "finding." (Anyone to whom this was not intuitively obvious might have gleaned it from the inclusion of our appraisal as the ninth in a numbered list of findings of fact.) As was stated in the earlier opinion, our finding that at least half the total market value of the house and land was attributable to the land and its prime business location was fully consistent with the record evidence. This evidence consisted primarily of the testimony of plaintiff's own appraiser.

Plaintiff also urges that she is entitled to the fair value attributable to her improvements without regard to whether defendants wish to acquire it. For reasons having more to do with arguments raised by defendants than with those raised by plaintiff, this part of plaintiff's motion is granted. See note 2, infra.

Finally, plaintiff wishes us to modify our judgment "to allow plaintiff and those in concert with her to remove their furniture and other properties from the stated building. It was not our intention to adjudicate the ownership of furniture or personal property, which up until now has not been mentioned by anyone. Counsel are strongly encouraged to reach an agreement by which plaintiff "and those in concert with her" can remove any of their personal property that happens to be in the house. (We presume that by " furniture and other properties "plaintiff does not refer to built-in shelves, commercial display cases, and other fixtures whose installation would reasonably have been regarded as part of the renovations for which plaintiff has already been given credit.) If counsel somehow fail to agree, someone can make a motion alleging with specificity which things are in dispute and we can have yet another hearing.

II. Defendants' Motion

The defendants also raise numerous objections to the relative value we placed on the land and its improvements. Their principal contention is that plaintiff Roberts is entitled only to the lower of two amounts: (1) the enhanced value of the land [8ASR2d128] attributable to improvements made by her while believing in good faith that she was the owner of the land; or (2) the actual cost to her of these improvements.

The proper measure of compensation for a good faith improver ---someone who builds a house or some other permanent improvement on real property in the honest but erroneous belief that he is the owner ---seems never to have been considered by a court of American Samoa, We therefore address the question at some length.

At common law all permanent improvements to land became the property of the landowner on the theory that by being "attached" to the land they "became a part of it." Betz v. Sioux City, 30 N.W.2d 778, 780 (Iowa 1948); ~ National Bank of Republic of Chicago v. Wells-Jackson Corp., 193 N.E. 215, 218 (Ill. 1934) ("[W]hen personal property became a fixture by annexation to the real estate by some permanent method, the personal property lost its identity as such and became real estate."). This rule, like many of its kind, began as a useful metaphor for what people usually understand themselves to be doing when they engage in a certain sort of transaction, Medieval Englishmen did not really believe that houses, barns, and fences merge with land and become indistinguishable from it. Rather, the difficulty and consequent economic waste involved in removing such things made it most unlikely that anyone would build them in the expectation of retaining a right to remove them.

Unfortunately, metaphors in the hands of judges tend to subsume and replace the facts and ideas they once symbolized. When a legal precept grounded in observation of human behavior is stated as though it were an inexorable law of nature--- and is then restated so often that the metaphysical axiom rather than the underlying concept comes to be regarded as binding precedent it often transcends the limits of its logic. A rule that one who builds a house on a tract of land intends it to become the property of the landowner, for instance, suggests an exception when the builder was confused about the landowner's identity, whereas a rule that a house "becomes part of " the land does hot. Human relations within the ambit of such a rule come to be governed not by contract but by status; people lose whatever power they once had [8ASR2d129] to order their affairs in ways to which the judicial metaphor is inhospitable.

For a later court to look behind an oft- repeated axiom in order to limit it to cases consistent with its obvious justification, however, lends itself to the accusation that precedent is being disrespected. A more promising approach is to leave the axiom intact and unexamined but to trump it with a counter-axiom. Thus nobody in America today, at least no judge, would deny that houses continue to merge with land and to lose their identities; but the juridical havoc once wreaked by such natural disasters has been mitigated by the maxim that "one who seeks equity must do equity" and by a device called the equitable lien.

The right of a good faith possessor to reimbursement for his improvements, recognized in the civil law at least since the time of Justinian, was at first available in the United States only when the true landowner himself invoked some equitable remedy, or where the common law had been modified by statute. See, e.g., Searl v. School- District No.2, 133 U.S. 553 (1890); Wakefield v. Van Tassell, 75 N.E. 1058 (Ill. 1905); Rzeppa v. Seymour, 203 N.W. 62 (Mich. 1925); Restatement of Restitution § 42. Since a landowner whose pleading requested only the common law remedy of ejectment did not "seek equity," courts did not generally regard themselves as having the power to "do equity" by imposing a condition of fair compensation for improvements.

Later, possibly as a consequence of the unification of equity and common law pleading and procedure, many courts recognized the existence of an "equitable lien" in favor of the good faith improver, enforceable even when the landowner sought no equitable relief and even when the action had been brought by the improver himself. See, e.g., Hardy v. Burroughs, 232 N.W. 200 (Mich. 1930); Jensen v. Probert, 148 P.2d 248 (Ore. 1944), and authorities cited therein. Many of the equitable lien cases relied on Justice Story's opinion in Bright v. Boyd, 4 Fed. Cas. 127 (1829), to the effect that

the denial of all compensation to such a bona fide purchaser...,
where he has manifestly added to the permanent value [8ASR2d130]
of an estate by his meliorations and improvements, without the
slightest suspicion of an infirmity in his own title, is contrary to
the first principles of equity. To me it seems manifestly unjust
and inequitable, thus to appropriate to one man the property and
money of another, who is in no default[.] The argument, I am aware,
is, that the moment the house is built, it belongs to the owner of
the land by mere operation of law; and that he may certainly
possess and enjoy his own. But this is merely stating the technical
rule of law, by which the true owner seeks to hold, what, in a just
sense, he never had the slightest title to, that is, the house. It is not
answering the objection; but merely and dryly stating, that the law
so holds. But, then, admitting this to be so, does it not furnish a
strong ground why equity should interpose, and grant relief?

Id., quoted in Jensen v. Probert, 148 P.2d at 252.

Justice Story's view, asserting as it did the landowner's utter lack of moral or "common sense" entitlement to improvements built by a good faith possessor, would have justified compensation in the full amount by which the value of the land had been enhanced. In fact, the cases relying on the lien theory are virtually unanimous in using the enhanced value of the land, not the costs incurred by the improver, as the measure of compensation. See, e.g., Hardy v. Burroughs, supra; Greer v. Stanolind Oil & Gas Co., 200 F.2d 920, 923 (l0th Cir. 1952) ("[B]enefit to the rightful owner--- not cost to the trespasser is the test of improvement."); Sutton v. Anderson, 31 S.W.2d 1026 (Mo. 1930); Reimann v. Baum, 203 P.2d 387, 392 (Utah 1949) and authorities cited therein. (1) [8ASR2d131]

The overwhelming majority of the cases in which enhanced value has been held to be the measure of recovery, however, concerned attempts by an improver to recover costs that were greater than the enhanced value of the land. The courts have observed that the unjust enrichment of the landowner, not the impoverishment of the improver, gives rise to the duty to compensate. It is one thing to require the repossessing landowner to forego an unearned benefit, and quite another to impose a penalty in excess of any such benefit. See, e.g., Greer v. Stanolind Oil, supra. [8ASR2d132]

Relatively few cases have addressed the situation in which the costs of the improvement are substantially less than enhanced value. Several cases do support the proposition that the improver's costs operate as a ceiling on his recovery. The idea is that a good faith possessor should be compensated for his improvements to the extent necessary to deprive the true landowner not of any enrichment whatever, but only of unjust enrichment. The landowner's enrichment is measured by the full value of the improvements, but the enrichment ceases to be unjust when the improver has been reimbursed for what he actually spent. See, e.g, Madrid v. Spears, 250 F.2d 51 (l0th Cir. 1957); Tashnek v. Hefner, 282 S.W.2d 298 (Tex. App. 1955). Other courts, however, have required reimbursement of the good faith possessor for the enhanced value of the land even where this amount exceeds the cost of the improvements. See, e.g., Sutton v. Anderson, 31 S.W.2d 1026 (Mo. 1930); 41 Am Jur. 2d, Improvements, § 28-30; Annot., 24 A.L.R.2d 11, § 15-16, and cases cited therein.

It is not necessary to decide which of these rules should apply in American Samoa, since a careful application of the rule advanced by defendants would produce the same result in the present case as the rule originally applied by the Court.

The $15,000 figure designated by the Court as "the [market] value of the house, apart from the land" was arrived at by estimating the market value of the land with the house on it and then subtracting the estimated value of land in this location with no house on it. This figure is therefore identical to "enhanced value, " the first element in the formula advanced by defendants. The second element in the formula, the amount plaintiff actually spent on the improvements in 1974, was $8700. If we were to accept defendants' contention that the cost of the improvements must always operate as a ceiling on a good faith possessor's recovery for improvements, then plaintiff would be entitled to the smaller of two amounts: the $15,000 enhanced value, or the amount necessary to reimburse her for the $8700 she spent in 1974.

It would be unrealistic and inequitable, however, to assume that somebody who spent $8700 in 1974 can be made whole by the receipt of $8700 in 1988. According to figures supplied by the Office [8ASR2d133] of Development Planning of the American Samoa Government, the cost of living (and hence the value of money) in the territory has risen at a rate that makes $8700 in 1974 dollars equivalent to $20,413 in 1988 dollars. (Appendix A.) Had plaintiff placed $8700 in a savings account in 1974 rather than investing it in the property she believed to be hers, the 5% interest rate would have turned it into $17,225. (Interest rates on savings accounts tend to reflect but lag behind real changes in the value of money.) Thus the amount necessary to reimburse plaintiff for the cost of her improvements would be greater, not less, than the $15,000 by which these improvements enhanced the value of defendants' land.

The purpose of calculating reimbursement in terms of the present value of the expenditures is not to allow anyone to speculate by building on someone else's property. Rather, it is necessary if the enhanced value/cost of improvements formula is not to be divorced from its purpose: to allow the landowner such enrichment, and only such enrichment, as cannot fairly be attributed to the impoverishment of the good faith possessor. The entire justification for using the cost of improvements as a ceiling on the good faith possessor's recovery is that once the possessor has been made whole he can no longer complain that the enrichment of the landowner is unjust. See Madrid v. Spears, supra, 250 F.2d at 54. Accordingly, the rule must be applied in such a way that the possessor is actually made whole.

In a case where improvements have enhanced the value of land by so much that either the possessor or the landowner must inevitably derive a genuine profit without injury to the other, perhaps the windfall should go to the landowner. But to create such a windfall by means of a formula that only pretends to reimburse the possessor, by returning to him something far less valuable than what he gave, would cause rather than avoid unjust enrichment. We therefore hold that the proper measure of compensation to plaintiff for her improvements is the $15,000 by which they enhanced the value of defendants' land. (2) [8ASR2d134]

Defendants raise several other arguments, all boiling down to characterization of benefits derived by plaintiff from the house and land as profit, windfall, reward, double recovery, etc.; and to the defendants as having suffered corresponding losses, penalties, and so forth, that should be deducted from the compensation due plaintiff. The general answer to these arguments is that they would make sense if the Court had not held plaintiff to be a good faith possessor with an equitable interest akin to part ownership of the property. We have reexamined the various transactions in which both parties engaged to be sure that each receipt and expenditure was counted once and only once. With one exception, we are convinced that the offsets and adjustments sought by defendants would effectively count some of these figures twice and others not at all, to the benefit of defendants and the injury of plaintiff.

In particular, defendants remind us that plaintiff borrowed her $8700 investment from the Development Bank and that she has fallen behind in her repayment schedule. This matter is between plaintiff and the Development Bank, which has charged plaintiff several thousands of dollars in [8ASR2d135] additional interest on account of her late payments.

The order which both parties now urge us to modify did, however, refer to the loan balance and to plaintiff's loan payments in two ways. It gave defendants the option to repay the current loan balance in lieu of acquiring and paying for the house, and it gave plaintiff a credit against rent receipts for the payments she made on the loan between 1979 and 1988. We agree with defendants that both of these references were inappropriate. The proper measure of plaintiff's reliance is not the current balance on the loan but the present value of her investment. She should be reimbursed for this investment up to the full value by which it enhanced the value of the property, regardless of the desires of defendants. See note 2, supra. By the same token, this reimbursement effectively compensates her for the payments she made on the Development Bank loan while the house was rented, and we should not have allowed these payments as an additional offset against rent receipts. This part of the judgment will also be modified. (3)

Defendants also point out that about $1200 of plaintiff's 1974 investment was to payoff a preexisting loan made by her father rather than to finance improvements on the house. This is immaterial, since the preexisting loan was for the construction of the house which her father had purported to transfer to her. With respect to $7500 of her investment plaintiff was a good faith improver; with respect to the other $1200 she was equivalent to a good faith purchaser for value. This $1200 purchased something that defendants themselves neither built nor bought, and with respect to which they can therefore assert no equitable claim prior to that of a good faith purchaser ---as they could, for instance, in the land itself if plaintiff or some other person had purchased it from one who was not the owner. [8ASR2d136] Although the construction was performed by someone who did not believe himself in good faith to be the owner of the property, it was paid for (to the extent of $1200) by one who did have such a belief. Plaintiff's equitable standing with regard to this $1200 is therefore identical to her standing with regard to the $7500 that paid for improvements after she took possession.

Defendants also contend that since plaintiff did not build the house but only improved it, and since we found that at least half the value of the property is attributable to the land itself, plaintiff should not be entitled to a full fifty per cent of the rents derived between 1979 and 1986. With regard to rents, however, the possessor is entitled to retain whatever she collected less whatever the rental value of the land would have been without her improvements. See Williams v. Beckmark, 33 N.W.2d 352, 357 (Neb, 1948). Since the defendants put on no evidence of what this rental value might have been, it would have been within our discretion to allow them no credit at all for rental value. See Madrid v. Spears, supra, 250 F.2d at 55. In any case it hardly seems unreasonable to estimate the rent on an unimproved 1966 hurricane house at $175 per month.

The rental issue is complicated by the actions of both parties during the period between 1979 and 1986. Each knew of the other's claim but was ignorant of the most basic facts and arguments underlying the opposing claim. Plaintiff clearly believed herself to be the owner of the property at least until the time of our judgment in this case. Either side could have secured a judicial resolution of the controversy in 1980 or so; instead each side resorted at least once to self- help and otherwise let the controversy simmer. During the times when rentals were being received by plaintiff, she cared for the house, made repairs and improvements, and paid for insurance. When defendants were collecting the rent they did none of these things. Under the circumstances we believe it was within our equitable discretion to treat plaintiff as a good faith possessor throughout the period in question and to allocate half of the net rental (receipts minus expenditures) to each party. See Leeds v, Penrose, 15 A. 261, 264 (N.J. Ch. 1888) ("If complainants were slow in bringing their suit, the defendant was too aggressive in making his alleged improvements, [8ASR2d137] after notice... I conclude that negligence may safely be imputed to both. I also conclude that each is entitled to relief..." ).

Plaintiff's receipts, including a $3000 insurance award, were $14,000. During this time plaintiff spent $6000 for repairs and renovations and $600 for the insurance premium, so that her net receipts were $7400. During the time defendants received the rents they received $10,500 and spent nothing. A payment of $1550 from defendants to plaintiff will cause each side to have received $8950, or one half of the net receipts.

Order

The judgment will be modified to read as follows:

Judgment will enter in behalf of plaintiff Milaneta Roberts and against the defendants in the amount of $1550.

Judgment will enter against defendant Estate of Molitui Sepetaio in the additional amount of $15,000. The Estate shall discharge $7098.97 of this judgment within sixty days by paying Mrs. Roberts' loan at the Development Bank or by arranging for the assumption of the obligation and for the release of Mrs. Roberts from all further liability.

Judgment will enter in behalf of defendant Estate of Molitui Sepetaio, enjoining plaintiff Milaneta Roberts and those in concert with her from going on the land Lugavai.

In all other respects the motions are denied. [8ASR2d138]

APPENDIX A

Cost of Living Increases in American Samoa, 1974-87. (Source: Development Planning Office, American Samoa Government. )

  Inflation rates     inflated deflated
1974 .............. .............. ............. 8700 8700
1975 19.1 0.191 1.191 10362 7038
1976 0.6 0.006 1.006 10424 6996
1977 4.8 0.048 1.048 10924 6660
1978 5.7 0.057 1.057 11547 6281
1979 17.6 0.176 1.176 13579 5175
1980 16.9 0.169 1.169 15874 4301
1981 8.3 0.083 1.083 17192 3944
1982 6.0 0.060 1.060 18223 3707
1983 1.7 0.017 1.017 18533 3644
1984 1.9 0.019 1.019 18885 3575
1985 1.2 0.012 1.012 19112 3532
1986 3.1 0.031 1.031 19704 3422
1987 3.6 0.036 1.036 20413 3299



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1. Compensation was generally allowed only where removal of the improvements from the land would have been impractical.
In cases involving things that had been affixed to real estate but that could be removed without too much damage, the courts had developed a "law of fixtures" where under the improvements might not be regarded as part of the land at all if the improver had neither intended them to belong to the landowner nor misled the landowner with respect to this intention. In such cases the improver was sometimes entitled to remove the fixtures even though the method of their attachment would otherwise have been characterized as "permanent." See National Bank v. Wells-Jackson Corp., supra, 193 N.E. at 218. Although this doctrine evolved more or less independently of the equitable doctrines mentioned in the text, it was regarded as "in derogation of the original rule of common law, which subjected everything affixed to the freehold to the law governing the freehold..." 2 Kent's Com. 243, quoted in National Bank v. Wells-Jackson Corp., 193 N.E. at 218. The "law of fixtures" was supposed to apply only to movables affixed to immovable property, but some courts have allowed the removal of houses where it can be done without substantial damage to the house or the land. See. e.g., Jensen v. Probert, supra. This remedy is obviously to be preferred, since it neither forces the landowner to buy something he does not want nor requires the court to estimate a "fair market value" in a situation where there can be no market. It is, however, rarely practical.
Another remedy, applied in cases where the improvement is of equal or greater value than the land, is to give the landowner a choice between paying for the improvement or selling the land to the improver at a price determined by the court. See. e.g., Hardy v. Burroughs, supra.

2. In our original opinion we gave defendants a choice between paying $15,000 for the building in the event they wished to keep it, or merely paying the remaining balance on plaintiff's loan at the Development Bank if they wished the building removed or destroyed. Our decision to give defendants this option was premised on the view that defendants should pay for the building if and only if they wish to possess and use it, but that plaintiff should in any case be reimbursed for expenditures made in reliance on her good faith belief that she owned the land. For the reasons explained in the text, we now believe these measures of recovery to be one and the same. Plaintiff's reliance interest is properly measured not by the $7100 she now owes the Development Bank, but by the present value of the $8700 she spent in 1974. Her recovery of this amount is, however, limited by the enhanced value of the land attributable to her improvements. Accordingly, the measure of plaintiff's compensation for her improvements should be $15,000 regardless of what defendants wish to do with the house.

3. The Court's order as modified still protects defendants' title to the property by requiring that the loan be paid in full. Since this payment will be made from funds to which plaintiff would be entitled whether or not she owed the Bank any money, the fact that she has made late payments to the Bank will in no way profit her or injure the defendants.

Sesepasara; Roberts v.


MILANETA ROBERTS, Plaintiff

v.

HENRY SESEPASARA, NANCY FERRA, and ESTATE OF
MOLITUI SEPETAIO, Defendants

High Court of American Samoa
Trial Division

CA No. 44-87

July 18, 1988

__________

Occupant of land who, believing that conveyance to her by prior occupant was valid, borrowed money and [8ASR2d44] used it to build improvements on the land, was entitled to compensation upon eviction by true landowner.

Where true landowner and good-faith improver were each in possession of the land and the improvements for several years with knowledge of competing claim; value of the improvements was about equal to value of the land itself; and each party collected rents for several years while doing nothing to resolve the dispute, neither party was entitled to compensation from the other for rents collected during this period.

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

Counsel: For Plaintiff, Charles Ala'ilima
For Defendants, John Ward

This case concerns land called Lugavai in Pago Pago. The facts are set forth in our opinion granting a partial summary judgment. We reaffirm those findings of fact, with the following additions and modifications:

1) Molitui Sepetaio, defendants' ancestor in title, moved to California in 1955 or shortly thereafter.

2) In or around 1965 T.S. Muasau, plaintiffs' ancestor in title, requested permission from Molitui Sepetaio to build a house on her property in Pago Pago. She not only gave permission but borrowed $2500 which she sent as a contribution toward the construction of the house.

3) Shortly after it was built this house was destroyed by the 1966 hurricane. It was replaced wi th a "hurricane house" which cost about $3500 to build. The construction was primarily paid for by the federal government, but T.S. Muasau took out a loan from the Development Bank (or from its predecessor institution, the Bank of American Samoa) to finance the remainder.

4) The purported signature of Molitui Sepetaio on the 1967 separation agreement seems dissimilar in almost every particular from her signature on two documents signed in 1951 and 1958 respectively. [8ASR2d45] Recognizing that her terminal illness began only a few days after she is supposed to have signed the document, we have examined the purported 1967 signature carefully to see if this might explain the discrepancies, There are, however, several flourishes, and other distinctive features on the signature that are not so well explained by Molitui's age and weakness as by the hypothesis that someone else signed the paper, Moreover. the signature purports to be that of "Molitui Sepetaio Muasau," The unrefuted testimony of defendant Ferra that Molitui never went by the name "Muasau" is bolstered by the evidence of family history: her brother (T,S. Muasau) held the title Muasau but her father was Sepetaio, The weight of the circumstantial evidence is also against the theory that Molitui signed the document: it was registered with the Territorial Registrar in March of 1967, whereas the meeting with relatives in Los Angeles at which Molitui might conceivably have signed such a document did not take place until April, Her daughter, defendant Ferra, testified that Molitui had steadfastly resisted requests from T. S. Muasau to "put his name on the land." We conclude that the evidence preponderates against the genuineness of the signature.

5) On May 15, 1974, plaintiff Milaneta Roberts took out a loan for improvements on the house. The loan was in the principal amount of $8700 and was at 7 per cent interest, Payments of about $2700 were made prior to May 1979; these did not fully cover the interest, so that there was a balance in May 1979 of $9008, Since then payments of $8082 have been made. The remaining balance is $7098.97.

6) Defendant Ferra testified that when she returned to the island in 1978 or 1979 the house was already being rented to Island Beverage Company. Plaintiff Roberts testified that it was not rented at all until 1981, The former President of the Island Beverage Company has submitted an affidavit that the company did not rent the building until 1981, and we find that the evidence preponderates in favor of this conclusion,

7) Between 1981 and 1988 plaintiff Roberts received $11,000 in rents on the house and a $3000 insurance award for damages to it. She spent $6000 on renovations and $600 on an insurance premium, [8ASR2d46]

8) During the same period (specifically between 1983 and 1986 when Island Beverage was paying rent to the defendants) the defendants received $10,500. They reported no expenses.

9) Plaintiff's witness on real estate values seemed consistently to err on the high side. From his testimony about discounted future rentals, however, it is possible to arrive at an estimate of the fair value of the house. On the assumption that the house would rent for $650 per month, the value of the house and the land would be about $50,000. It was clear from his testimony that at least half this value is attributable to the prime business location of the land; in his opinion the house is in terrible condition and still needs $7000 worth of work before it can be rented. Moreover, the $650 figure is based on what plaintiff says an unnamed Korean is willing to pay her for the house. A few months ago it rented for $350 per month. We therefore estimate the value of the house, apart from the land, at $15,000.

We conclude that there is some eq12ity and some iniquity on both sides. On the one hand, T.S. Muasau or someone in concert with him seems to have forged his sister's signature. This goes a long way toward weakening the force of plaintiff's argument that public policy requires "the stability of separation agreements" to be sedulously fostered.

There is in any case not much force in this argument, as we observed in granting partial summary judgment. A separation agreement does not of itself entail the landowner's commitment to let the beneficiary remain on the land forever, or even for "the useful life of the building. " For this very reason, a separation agreement rarely stands alone. Most often it is accompanied by the traditional obligation to let family members reside on communal land. The usual way to arrange for non-owners to build structures on individual land is by lease. (1) [8ASR2d47]

The presence or absence of a separation agreement, or even the existence of a forged one, does not automatically tell the Court what to do about a house owned by one person on land owned by another. Our conclusion that Molitui did not sign the agreement is not as devastating to plaintiff's case as it might be. However she felt about signing papers, Molitui was more than willing to let her brother live on the land and even to build a house there. Moreover, plaintiff Roberts appears to have believed in good faith that her father had a legal right to keep the house on the land and that he had validly conveyed that right to her. She believed this when she borrowed $8700 for improvements on the house.

In 1979 the two sides to this litigation were about even, except for the Development Bank loan. Molitui had paid $2500 for a house for her brother to live in; Muasau had put up a thousand or two; his daughter Mrs. Roberts had made payments of about $2700 in interest during her father's lifetime; the federal government had also been persuaded to contribute. Muasau had been provided with a place to live out his life as Molitui had wished. Defendant Ferra owned the land; plaintiff Roberts was the equitable owner of the house at least to the extent of her investment in it. Had Mrs. Ferra wished to reoccupy the land she might have done so upon assuming the remaining balance on the Development Bank loan. Mrs. Roberts would have been entitled to this compensation even if Mrs. Ferra had no use for the house itself, since she had obligated herself in reliance on the erroneous but innocent impression that the house would remain on the land after her father's death. If Mrs. Ferra had wished not only to occupy the land but also to acquire the house, then the measure of her compensation to Mrs. Roberts should have been the fair value of the house. [8ASR2d48]

Since 1979 the arithmetic has been complicated by various transactions in which both sides have engaged. Since each side was willing to let the controversy simmer for several years while occupying the building and collecting rents, we need not allocate blame for the delay. We will assume, consistent with the testimony of plaintiff's witness on real estate values, that the rental value of the house was about equally attributable to the house itself and to the prime business location of the land. On this assumption, plaintiff and defendant should share equally in the net proceeds.

Since 1979 the plaintiff has collected $14,000 and has spent $14,682. Defendants have collected $10,500. If defendant Ferra wishes to repossess her land but not to acquire plaintiff's house, she should pay plaintiff Roberts $5591 (so that the two parties will have benefitted equally from the house and land between 1979 and 1988) and pay the remaining balance of $7098.97 on the Development Bank loan.

If Mrs. Ferra wishes to acquire the house as well as the land, she should pay its fair value. This we have estimated at $15,000. Of this amount $7098.97 should be paid to the Development Bank and $7901.03 (plus $5591 for interim rents) to Mrs. Roberts.

Order

Judgment will enter in behalf of defendant Estate of Molitui Sepetaio, enjoining plaintiff Milaneta Roberts and those in concert with her from going on the land Lugavai.

Judgment will enter in behalf of plaintiff Milaneta Roberts and against the defendants in the amount of $5591.

Judgment will enter against defendant Estate of Molitui Sepetaio in the additional amount of $7098.97. The Estate should discharge this part of the judgment within 60 days by paying Mrs. Roberts' loan at the Development Bank or by arranging with the Bank for the assumption of the obligation and for the release of Mrs. Roberts from all further liability. [8ASR2d49]

Finally, defendants should inform the Court within 60 days whether they wish to acquire plaintiffs' house or to seek its removal. If they wish to acquire it, judgment will enter in the additional amount of $7901.03 against defendant Estate of Molitui Sepetaio. If the defendants do not wish to acquire the house, plaintiffs will be given the opportunity to remove it. If defendants do not wish to acquire it and plaintiffs do not wish to remove it, defendants will be ordered to destroy it.

It is so ordered.

**********

1. We remain unpersuaded that Lugavai was "really" the communal land of the Muasau family, or even of the Sepetaio family. Notwithstanding the testimony of plaintiff that Muasau allowed the land to be registered in his sister's name because of his great love for her, the evidence shows that he knew how to look after his own interests and often did so. We were unsuccessful in our efforts to adduce much information at trial about how and when Molitui acquired the land, but we believe it was hers.

Tulisua v. Olo,


TAULAFOGA TULISUA, Appellant

v.

OLO LAVEA'I, FUA'AU OLO, and
SE'IGAFOLAVA R. PENE, Appellees

High Court of American Samoa
Appellate Division

AP No. 22-87

October 21, 1988

__________

Possessor of land who obtained possession by recent ouster of long-time possessor did not thereby [8ASR2d170] acquire the benefit of a presumption of ownership, but can be evicted by the prior possessor even though prior possessor cannot prove a title good against the world.

Possessor of land who obtained possession by recent ouster of long-time possessor had the status of a mere trespasser or intruder, and such status was not affected by long residence on neighboring land called by same name as land presently in dispute.

Knowledge of an adverse claim ordinarily prevents a possessor from being in good faith for the purpose of receiving compensation for improvements upon eviction.

Possessor of land may sometimes be considered a good faith possessor even though he has knowledge of an adverse claim, when the true owner has "slept on his rights" or otherwise contributed to a situation in which it would be inequitable to deny compensation for value of improvements.

Possessor of land who built house after notice of claim by party later held to be true landowner, over repeated objections by landowner, after suit had been filed and only a few months before trial, and who built house quickly in apparent attempt to affect the outcome of the pending litigation, acted at his own risk, and trial court was within its discretion in denying him compensation for the value of the house.

Before REES, Chief Justice, KING*, Acting Associate Justice, KAY**, Acting Associate Justice, OLO, Associate Judge, and AFUOLA, Associate Judge.

Counsel: For Appellant, Asaua Fuimaono
For Appellee, Togiola T.A. Tulafono [8ASR2d171]

REES, C.J. :

Tulisua appeals from a judgment evicting him from a house si te or "tulaga fale" on which, during the pendency of this litigation, he has built a house.

His principal quarrel is with the facts found by the trial court. The tulaga fale is on a tract of land called Auali which each side claims as the communal property of its family. Although the action began as a dispute over ownership of all of Auali, just before trial the parties stipulated to limit the case to the tulaga fale. The trial court found that neither side had proved its ownership of the tulaga fale, but that the Olo family had proved a superior right to possession. This conclusion was based on the court's finding that the Olo family had long been in possession and had only recently been ousted by Tulisua. The finding is supported by substantial evidence in the record: it is clear that this tulaga fale was the historic site of several Olo family residences.

Appellant Tulisua contends that since he managed to obtain possession by the time of trial, he has acquired the benefit of a "presumption of ownership" and cannot be evicted by the prior possessor. For reasons well stated in the trial court's opinion denying motion for new trial, this is clearly not the law. Indeed, counsel for appellant seems to concede that one who has long been in possession can sometimes recover possession without proving a title good against the world. Counsel argues, however, that "the doctrine of recovery of prior possession is generally limited to actions against mere trespassers or intruders." This misses the point that a trespasser or intruder is just what the trial court found Tulisua to be.

Tulisua contends on appeal that he "was born on the land and had lived there and is still living there." If he means he has always lived on this particular tulaga fale, he is simply reiterating his unhappiness with the trial court's finding of fact. If, as we suspect, he means he has always lived elsewhere on Auali, this is irrelevant to whether his recent occupation of the small portion now in dispute is an intrusion or trespass. [8ASR2d172]

Finally, appellant complains of being faced with the harsh choice between moving his house from its present location or losing his investment in it. He claims he should have been given the benefit of some equitable remedy such as compensation for the value of the house. Such remedies, however, are available only to "good faith possessors." See, e.g., Fonoti v. Fagaima, 5 A.S.R.2d 158 (1987); Roberts v. Sesepasara, 8 A.S.R.2d 124 (1988). A good faith possessor is one who makes improvements on land in the honest belief that he is the owner.

Knowledge of an adverse claim ordinarily prevents a possessor from being in good faith for the purpose of receiving compensation for improvements upon eviction. A possessor may sometimes be considered a good faith possessor when the true owner has "slept on his rights" or otherwise contributed to a situation in which it would be inequitable to deny compensation. Roberts, supra, slip opinion at 14-15; Leeds v. Penrose, 15 A. 261, 264 (N.J. Ch. 1888). In this case, however, the appellant began construction after he had been fully apprised of the adverse claim; indeed, he had already been served with a complaint seeking his eviction.

The house was built over the repeated verbal objections of appellees, well after suit had been filed and only a few months before the case was tried, The construction of a substantial European-style house in two months would be regarded almost anywhere as exceptionally speedy; by local standards it was dizzying. The project has all the earmarks of a deliberate attempt to affect the outcome of the litigation, undertaken on the usually correct assumption that courts will do almost anything before they will force the removal of a house. Even if appellant Tulisua was merely ignoring the pending lawsuit when he built the house, he did so at his peril. The trial court was well within its di5cretion in denying him equitable relief.

The parties remain free, of course, to negotiate an agreement for the sale of the house. In order to promote ,such an agreement, we will extend the deadline set by the trial court for removal of the house to sixty days from the date of this opinion. [8ASR2d173]

In all other respects the judgment of the trial court is affirmed.

It is so ordered.

*********

* Honorable Samuel P. King, Senior Judge, United States District Court for the District of Hawaii, serving by designation of the Secretary of the Interior.

** Honorable Alan C. Kay, Judge, United States District Court for the District of Hawaii, serving by designation of the Secretary of the Interior.

Te'o; Moea'i v.


MOEA'I UILIATA, Plaintiff

v.

UIVA TE'O and SI'UFANUA AITU, Defendants

ALAI'ASA FILIFILI, Plaintiff

v.

UIVA TE'O, Defendant

MOEA'I UILIATA, Plaintiff

v.

ALAI'A FILIFILI, CHIEFS OF FALENIU,
SI'UFANUA AITU, and TUIA'ANA MOl, Defendants

LT No.13-85
LT No.42-85
LT No.7-86

High Court of American Samoa
Land & Titles Division

September 6, 1988

__________

Evidence of very recent assertions of ownership to disputed land, after the occurrence of events which had enhanced the value of the land and given rise to the action being tried, was of little use to court attempting to determine true owner of the land.

Although testimony and exhibits in earlier cases can be presumed to be as self-serving as those in the case being decided, they are sometimes helpful in providing historical context, prior consistent or inconsistent statements, and evidence offered by a party who had no reason to lie about the point the evidence tends to establish in the later case.

Court must choose among sharply conflicting statements of witnesses by reference to factors [8ASR2d86] such as internal coherence and consistency, strength or weakness of motives to lie, conflict or consistency with other relatively objective sources of evidence, and court's own estimate of witnesses' demeanor and of inherent plausibility of testimony.

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

Counsel: For Plaintiff, Togiola T.A. Tulafono
For Defendant Si'ufanua, Tau'ese P. Sunia
For Defendant Alai'a, Charles Ala'ilima
For Defendant Tuia'ana, Albert Mailo

This case concerns a large tract of land called Mapusaga or Mesepa, in or adjacent to the village of Faleniu. Parts of the land have also been known as Niuolosega, Alalaga, Aumalagamai, Mauga o le Sea, Vaivai, Avalua, Mulivai, Toa, Vanu, and Luale'a.

In 1903 a number of chiefs of Faleniu executed a lease of Mapusaga in favor of the Corporation of the Presiding Bishop, Church of Jesus Christ of Latter Day Saints. In 1944 a somewhat larger number of chiefs including the then holders of the Alai'a, Moea'i, Si'ufanua, and Tuia'ana titles conveyed the same land outright to the same corporation (hereinafter "the Church"). This conveyance was subject to a right of reversion in the event the land should ever cease to be used for school and church purposes.

In 1984 the Church stipulated that Mapusaga should revert to its former owners except that the Church would retain three designated parcels used for church and school purposes. This stipulation resulted in the settlement of a lawsuit brought against the Church by four chiefs of Faleniu. (Three of the plaintiffs in that case are also parties to this one; the fourth is a talking chief for the remaining party to this case. )

A few months later Moea'i, one of the chiefs whose family was entitled according to the stipulation to part of Mapusaga, surveyed virtually the whole tract and attempted to register it as Moea'i communal land. That survey and related incidents gave rise to the present litigation.[8ASR2d87]

At the outset we must observe that this is perhaps the most difficult land case to confront the Court in recent years. For parties to rely almost exclusively on radically conflicting family histories, as did the parties to this case, is the rule rather than the exception in the Land and Titles Division. In the overwhelming majority of cases, however, one party can support its claim by proof of long occupation or by convincing evidence of how and when it was deprived of occupation.

Although some members of the four families involved in the present dispute apparently did live on Mapusaga at various times between 1903 and 1984, it is not at all clear that they were continuing to live on their families' former lands despite the lease and subsequent conveyance to the Church. Many members of these four families are or have been Church members, and many Church members have resided on Mapusaga whether or not they belonged to a family of Faleniu. For instance, in 1983 the Church identified 36 households on Mapusaga whose members were in some way affiliated with the Church; one such household was headed by a member of the Moea'i family who was a witness in the present case. If the evidence had established so much as a distinct pattern of residence during the Church occupation Moea'is in one part of Mapusaga, Alai'as in another, Si'ufanuas and Tuia'anas someplace else we might infer a similar pattern prior to 1903. Since no such pattern emerged, evidence that family members were among the people who lived on Mapusaga during Church times is of little probative value. Even less useful is the evidence presented by some of the parties to the effect that they asserted ownership of parts of Mapusaga during the 1980s when the rush to share in the pending reversion was underway.

We are left with several kinds of evidence on which to sort out the parties' claims as best we can:

---First, we are bound by the result in one High Court case, Siufanua v. Uele, 2 A.S.R. 462 (1949), which resolved conflicting claims of ownership to a small part of the land now in dispute.

---Second, at trial we noted without objection our intention to take judicial notice of

[8ASR2d88] the proceedings in the 1949 case cited above and in other cases involving Mapusaga or adjacent lands. These include Alai'a v. Talanoa, LT No.93-1948; Moea'i v. Corporation of the Presiding Bishop, 4 A.S.R. 36 (1971) (LT No. 1151-70, formerly CA No. 91-66); and Tuia'ana v. Corporation of the Presiding Bishop, CA No.108-83. Although testimony and exhibits in former cases can be presumed to have been as self-serving as those in the present case, they are sometimes helpful in providing historical context, prior consistent or inconsistent statements by a current party or his predecessor in title, and occasional bits of evidence that are highly credible because offered by a party who had no reason to lie about the point they tend to establish.

---Finally, however, we must choose among the sharply conflicting testimonies offered at trial by reference wherever possible to relatively objective factors such as the internal coherence and consistency of a witness's testimony, the strength or weakness of his apparent motives to tell anything but the whole truth, and conflict or absence of conflict of a witness's testimony with the relatively objective sources of evidence recounted above. When these factors are not present we must hazard our own estimates of the witnesses' demeanor and of the inherent plausibility or implausibility of their testimonies.

Of the several versions of the history of Mapusaga the least plausible is that offered by Moea'i. His family history holds that all nine tracts named as parts of Mapusaga in the 1903 lease were Moea'i lands, and that other chiefs were mentioned in the deed and in the 1944 conveyance only because the Church wanted an endorsement or guaranty from the whole village. There is some tension, if not absolute contradiction, between this version of the documents in question and the words of the documents themselves. Although the 1903 lease does speak of the "parties of the first part" as "Chiefs and Rulers of the town of Faleniu," it goes on to refer to them as "the said lessors" and to provide that at the end of the term of the lease they may "have again, retain, re- possess and enjoy, as in their former estate." This strongly implies that more than one of "the said lessors " was more than just a guarantor, possessed of an estate in Mapusaga. The 1944 deed [8ASR2d89] again names a number of chiefs as parties of the first part and provides that if the land ceases being used for church and school purposes it will immediately revert "to the first parties, their heirs or assigns." If the contracting parties in 1903 or 1944 regarded Moea'i as the sole owner of all Mapusaga they chose singularly misleading ways to say it.

The testimony of Moea'i that the $1000 given by the Church to "the parties of the first part" was in fact given to and retained by the then Moea'i was contradicted by other witnesses, including Tuia'ana whose testimony on this point did not seem designed to help his own case. Moreover, Moea'i's current claim to own all of Mapusaga is considerably more ambitious than his and his predecessors' position in prior lawsuits dealing with the same issue. In the 1949 case the then Moea'i testified that Si'ufanua and Tuia'ana owned certain tracts; in this case the current Moea'i has surveyed parts of these tracts and claims them as his own. In 1966 Moea'i brought an action against the Church attempting to enforce the reversionary clause; in the course of that action he asserted his claim to ownership of "approximately ten acres" of the land included in the deed to the Church, and filed a survey of his claim. The survey includes land called Vanu, Avalua, and part or all of Niuolosega and Vaivai; it makes no mention of the other five tracts and excludes large areas of Mapusaga that Moea'i now claims to own. Again in the 1983 case, Moea'i joined with other parties to this case in asserting that until 1944 " [p]laintiffs ' predecessors in matai title were lawfully seized and in possession of various contiguous parcels of communal land, collectively described as'' the tract called Mapusaga set forth in the deed.

Moea'i's insistence that he owns all of Mapusaga leaves the court with scant evidence on which to determine what part his family actually does own. In addition to the family history recounted above, Moea'i proved that he had objected to some building permits during the 1980s, that a few members of his family are among the people living on various parts of Mapusaga, and that a member of his family is buried in the Church cemetery along with other Church members. The only parts of Mapusaga to which he made a more convincing claim of ownership than any other party [8ASR2d90] were the parts not claimed by any other party. These are the areas designated on Moea'i Exhibit 8 as "Vanu" and "Avalua, " and the area in the northeast corner of the Moea'i survey that is beyond the boundaries of the Tuia'ana survey. The latter area is on a mountainside and corresponds roughly to the tract designated "Mauga o le Sea" in Moea'i Exhibits 12 and 14. Although it is outside of the area claimed by Moea'i in the 1966 case, no one else now claims it and other parties acknowledged at trial that Moea'i has plantations there. Moea'i therefore has the right to register these tracts insofar as they are within his survey.

The claim of Tuia'ana is also problematic. Tuia'ana was not one of the chiefs named in the 1903 lease. He calls his land Luale'a and insists that it has never been called byany other name, yet no land Luale'a is mentioned in the lease or in the subsequent deed. It is of course possible that the present Tuia'ana was mistaken about Luale'a never being called by another name. It is also possible that some other chief or talking chief represented Tuia'ana in 1903, just as Seigafo and Alai'a seem to have represented each other from time to time. Without more, however, Tuia'ana's family history and personal recollections would be insufficient to rebut the implication that Tuia'ana and Luale'a had nothing to do with Mapusaga before 1903.

Tuia'ana is, however, a signatory to the 1944 deed and is named therein as a co-owner of Mapusaga. His case is further strengthened by the 1949 proceedings, in which everyone present including Si'ufanua and Moea'i acknowledged Tuia'ana to be the owner of a tract called Luale'a to the east of Aumalaga and Toa. At the conclusion of the case the Court held Luale'a to include at least part of the land now in dispute. (This is clear from a comparison of Exhibits 21 and 23, depicting the tract disputed in 1949, with the western portion of Exhibits 9 and 20, depicting the Tuia'ana survey. The southern portion of the 1949 survey is clearly within the northern boundary of the Moea'i survey as depicted in Exhibit 8. ) We are bound by the rule of res judicata to observe and enforce that holding.

The Court and all the witnesses in the 1949 case were clearly of the opinion, moreover, that the tract surveyed in that case comprised only a [8ASR2d91] part of Luale'a, which extended some distance to the east of the surveyed portion. This comports closely with Tuia'ana's survey, whose southern and western boundary is the stream that was also the southern and western boundary of the tract surveyed in 1949, and which extends to the east about 1100 feet further than the tract surveyed in 1949.

Alai'a acknowledges that Tuia'ana owns the land on the northeast side of this stream. Si'ufanua, who began by claiming this land as his own, at the time of trial withdrew his claim to the land on the northeast side of the stream and acknowledged Tuia'ana as the owner. Only Moea'i opposes Tuia'ana's claim; yet Moea'i in 1966 drew his own northeastern boundary at the stream and claimed none of the land now claimed by Tuia'ana. Accordingly, Tuia'ana has the right to register the land contained in his survey and also in the Moea'i survey, with the exception of lands designated in Exhibit 8 as retained by the Church. (1)

Proceeding to the claim of the Alai'a or Alai'asa family, we accept for the purposes of this opinion the unrebutted testimony of Alai'a that Seigafo is a talking chief of the Alai'a family and that the terms °'Alai'a land'o and °'Seigafo land" can be used interchangeably. We express no opinion on the details of the relationship or on the relative rights of Alai'a and Seigafo to communal land held to belong to one or the other.

It seems clear beyond peradventure that Mapusaga included part of an Alai'a or Seigafo tract called Toa. The 1903 lease includes on its face °'part of Toa." Seigafo is one of the 1903[8ASR2d92] signatories; both Seigafo and Alai'a signed the 1944 deed. In the 1949 case all parties acknowledged that Toa was Seigafo land. Si'ufanua identified this land as "to the west of the creek toward Leone" from the land then in dispute. This corresponds exactly to its location in the present surveyof Alai'a. It is also consistent with the objection by Alai'a in 1948 to an attempted registration of land called Maugasa which apparently overlapped the northwestern corner of the land now in dispute. Alai'a complained that the Maugasa survey was "not right and it is overbounded," encroaching on land called Toa which is "the land of Alai'a and Seigafo." (Exhibit 16; See LT 93-1948. )

Although Si'ufanua now claims to own Toa, the earliest evidence of such a claim is the 1979 conveyance of a tract outside the boundaries of the land presently in dispute purporting to be part of Toa. In 1949, however, the then Si'ufanua was certain that Toa was Seigafo land and that his own land in the vicinity was on the opposite side of the stream and was called Aumalaga (also referred to as Aumalagasa, Aumalagava, and possibly Aumalagamai) and Matavai.

Similarly, Moea'i more or less agrees with Alai'a and with the late Si'ufanua about the location of Toa (see Exhibits 12 and 14) but seems never to have claimed land called Toa until he commissioned his present survey in 1985. In 1966 he did assert ownership of much of what Alai'a now claims, apparently under the names Niuolosega and Vaivai. To the northwest of the 1966 Moea'i survey, in an area apparently within the boundaries of the land now in dispute and also within the boundaries of what other parties have regarded as Toa, is the notation "claimed by Seigafo. "

The Alai'a claim to a tract called Toa bounded on the northeast by the aforementioned stream seems also to have been recognized at one time by Tuia'ana. Asked at trial by counsel for Alai'a whether he had given Alai'a to understand that he recognized the stream as a boundary between their respective properties, Tuia'ana responded, "I would like to say that no matter how many conversations do people have they are not formal and recorded conversations.'. The inescapable conclusion is that he did make such a statement but wished to avoid taking sides at trial. [8ASR2d93]

It is clear that the northwestern boundary of Toa extended somewhat beyond the boundary of the area conveyed to the Church. (See Exhibits 1, 12, and 16; see also the testimony of Situfanua in the 1949 case to the effect that the homes in Toa just across the creek from his land were occupied by "school people, " but that Seigafo people have plantations on Toa "underneath the mountain.") The southern and eastern boundaries are far less clear. Alaita testified to the effect that his family history establishes the southern/southwestern boundary at a second stream, about 500 feet toward Leone from the first stream, and that the southeastern boundary extended at least as far as the government road. Another witness testified that these boundaries had been pointed out to him by the then Alaita during the Second World War as boundaries of the portion of Toa that had been leased to the Church. A third witness testified that even during the term of the Church lease his immediate family had served Alaita and lived on what they regarded as Alaita communal land within Mapusaga; the locations in which members of this witness's family resided lend some support to the southern and eastern boundaries claimed by Alaita. It was also observed by counsel that people in Samoa and elsewhere often establish their boundaries along streams and thoroughfares.

This evidence, although plausible, is rather thin. Yet it is thicker than the evidence put on by either of the other two claimants to this area, Moeati and Si'ufanua. Moeati concentrated on his claim to own all Mapusaga and therefore put on no convincing evidence in what is essentially a boundary dispute between the strong claim of Alai'a in the north and west and Moeati's own claim (comprising at least Avalua} in the south. Situfanua initially claimed almost as much as Moeati and apparently decided on or shortly before the day of trial to concede about half of his claim to Tuiatana. He inexplicably devoted much of his own testimony to a discussion of the chiefly ranks of the various parties, and never got very specific about boundaries. (He seemed confused even about the location of the area he had won in 1949.) The evidence, such as it is, preponderates in favor of the boundaries asserted by Alaita. Alaita therefore has the right to register that portion of his survey which is also within the Moea'i survey, with the exception of the tracts retained by the [8ASR2d94] Church and without prejudice to whatever rights Seigafo may have.

Two portions of the land in dispute belong, according to the preponderance of the evidence, to Si'ufanua. One of these parcels is part of the larger tract held to be Si'ufanua property in 1949. It is bounded on the south and west by a stream (of the two streams discussed above, the one toward the northeast or Fagatogo); on the east by a line bearing S 6° 20' E (the western boundary of the Tuia'ana survey); and on the north, for the purposes of the present case, by the northern boundaryof the Moea'i survey. Si'ufanua may of course register this tract if he has not done so already.

The other Si'ufanua tract is on the Leone side of the other stream, the one toward the southwest or Leone. This land was claimed only by Si'ufanua and Moea'i. Moea'i did not claim it in 1966 but designated it on his survey that year as "claimed by Si'ufanua"; witnesses for other parties testified that Si'ufanua has a house and plantations in this area. Therefore Si'ufanua may register the area within the Moea'i survey on the southern side of the stream that marks the southern boundary of the Alai'a survey.

We note that the parties or their representatives have stipulated that the head of any household residing on Mapusaga as of November 12, 1984, may choose either to render tautua to the matai on whose land the residence is located or to enter into a leasehold agreement, the householders in either case to retain title to their improvements to the real property. Tuia'ana, the owner of the land on which the Church cemetery is located, also stipulated that the cemetery would be maintained as such in perpetuity. Interim Stipulation and Stipulation for Dismissal, CA 108-83.

ORDER

Each party may register the portions of Mapusaga described in the opinion as his family's communal land.

It is so ordered.

**********

1. At one of the pre-trial conferences the parties stipulated that all of Tuia'ana's survey would be tried in this case. Assuming that Tuia'ana's survey has been offered for registration and that no one who is not a party to this case has objected to it, Tuia'ana may register it except insofar as it encroaches on land retained by the Church. If, however, it has not been offered for registration, or if anyone not a party to this case has objected, then Tuia'ana may not register any portion outside the Moea'i survey and the portion already registered pursuant to the 1949 decision. At one of the pre-trial conferences the parties stipulated that all of Tuia'ana's survey would be tried in this case. Assuming that Tuia'ana's survey has been offered for registration and that no one who is not a party to this case has objected to it, Tuia'ana may register it except insofar as it encroaches on land retained by the Church. If, however, it has not been offered for registration, or if anyone not a party to this case has objected, then Tuia'ana may not register any portion outside the Moea'i survey and the portion already registered pursuant to the 1949 decision.

Te'o; Estate of Sotoa v.


ESTATE OF SALOFI SOTOA, Appellant

v.

UIVA TE'O, Appellee

High Court of American Samoa
Appellate Division

AP No. 21-87

October 21, 1988

__________

Trial court did not commit error in using the transcript from a prior preliminary injunction [8ASR2d166] hearing to make factual determinations, despite appellant's claim that he introduced the transcript for impeachment purposes.

Trial court decision adjudicating land ownership that was not appealed became res judicata and bound the court in a latter dispute between the same parties over the same tract of land.

Final judgment awarding land to a party vests title in that party and his subsequent withdrawal of an offer to register the same land does not divest him of that title.

Proposed settlement of previously litigated land claim which purports to adjust the boundaries set by the court's judgment should ordinarily be submitted to court for its approval.

Before KING*, Acting Associate Justice, KAY**, Acting Associate Justice, LUALEMAGA, Associate Judge, and TUIAFONO, Associate Judge.

Counsel: For Appellant, Charles Alatilima
For Appellee, Togiola T.A. Tulafono

Per Curiam:

Appellant Sotoa appealed from the decision of the Land & Titles Division in LT No. 40-82 which enjoined appellant from going onto land awarded appellee in Te'o v. Fanene, et al., LT No.73-77 (decision and judgment in consolidated cases rendered December 13, 1977) and affirmed in Teto v. Fanene, AP No.13-78 (decision rendered February 21, 1980). We find there is substantial evidence to support the lower court's holding that the [8ASR2d167] decision in LT No.73-77 operated as res judicata against appellant Sotoa, that appellee Te'o did not abandon his claim to the subject land by his withdrawal of application to register this land, and that no subsequent settlement was agreed to between appellant and appellee. Accordingly, we affirm.

In 1982, appellee Te'o filed an action, claiming appellant Sotoa and his family were trespassing on appellee's land. Sotoa, a legal practitioner, claimed he owned the land. Prior to the resolution of the action, Sotoa died and his estate was substituted.

In 1987, the trial court issued an order enjoining Sotoa's estate and its agents and representatives from going onto the land. The court based its order on a 1977 decision in LT No. 73-77 which awarded the land in dispute, except for a strip of land approximately fifty feet wide, to Te'o.

The 1977 case was a consolidation of thirteen separate claims to an area of land which included the land now in dispute. In that 1977 case, Sotoa did not contest Te'o's claim to the land currently in dispute.

The 1977 decision was appealed. The portion of the trial court's judgment awarding the presently disputed land to Te'o was not appealed by any party.

On January 12, 1979, after that appeal had been docketed in the Appellate Division, the trial court issued an order stating that it, sua sponte, had reopened the case to view once again the land which is the subject matter of the dispute.

The judgment in the consolidated cases was affirmed on appeal in Te'o v. Fanene, AP No.13-78 (decision rendered February 21, 1980).

After the appellate court's decision, the trial court held a conference to carry out the judgment, more particularly, the filing of amended maps and descriptions with the court and the Territorial Registrar. At this conference, Sotoa told the court that he and Te'o had agreed on a change in their mutual boundaries. The court ordered the parties to file an amended map and [8ASR2d168] description of the lands awarded them in the decision.

Two months later, the court held another conference. After the conference, the court found that the lands in the southwest corner which have been determined to be the property of Uiva Te'o had been included in the map presented by Sotoa. This was described as a matter in contention. The court ordered that a hearing be scheduled to resolve this and other disputes. There is no evidence any hearing was held.

Sotoa than ordered a survey of the disputed tract, intending to offer it for registration. Te'o obtained a copy of this survey and offered it for registration in his own name early in 1981. Sotoa filed an objection.

In accordance with the statutory procedure for objections to the registration of land, the dispute was referred to the Office of Samoan Affairs. At the conclusion of a meeting held at the Office of Samoan Affairs on or about October 20, 1981, Te'o signed a statement saying that he withdrew his registration.

Appellant submitted the transcript of the 1982 preliminary injunction hearing into evidence. Appellant claims he submitted this transcript only in anticipation of using it for impeachment purposes. He now claims the court erred in using this transcript to make its factual determinations. Appellant cites no authority to support this assertion.

Appellee points out that the transcript was part of the evidence. Appellee claims that appellant did not introduce the transcript for impeachment purposes, but rather introduced it in response to the court's request for information that would aid the court in determining the claim made by appellant that appellee had waived his claim to the land.

Appellant does not challenge appellee's authorities nor does he cite any authorities to support his claim. When these failures are considered in conjunction with the fact that appellant himself introduced the transcript into evidence, his claim must fail. [8ASR2d169]

We further concur with the lower court's rulings that:

(1) The award of this land to Te'o in LT No. 73-77 was not appealed, and therefore the judgment became res judicata against the Sotoas.

(2) The trial court had no jurisdiction to reopen the award of the land to Te'o, nor did it purport to do so. The original judgment, which was ambiguous in some respects, was unambiguous wi th regard to this land. In April 1980 this tract was added to the list of matters that might be readjusted solely because Sotoa represented to the Court that he and Te'o had entered a property settlement agreement where under Sotoa would be given this land. The record reflects the trial court felt no agreement was reached.

(3) The document Te'o signed did not withdraw his claim of ownership of the land , but merely withdrew the offer of registration. The decision in LT No. 73-77 had already vested title in him.

(4) Finally, a settlement of a claim that had already been litigated, purporting to adjust the boundaries set by the court's judgment, would ordinarily have been submitted to the court for its approval, and the court in 1980 seems to have ordered just that .

*********

* Honorable Samuel P. King, Senior Judge, United States District Court for the District of Hawaii, serving by designation of the Secretary of the Interior.

** Honorable Alan C. Kay, Judge, United States District Court for the District of Hawaii, serving by designation of the Secretary of the Interior.

Uiagalelei; Satele v.


SATELE MOMOSEA UOKA, Plaintiff

v.

UIAGALELEI IONA, UIAGALELEI LEALOFI,
TUIASOSOPO MARIOTA, and FALE FAI'AI, Defendants

High Court of American Samoa
Land & Titles Division

LT No. 17-86

September 20, 1988

__________

Statute imposing ten day time limit on motions for new trial is jurisdictional and leaves court no discretion to extend or disregard the time limit. A.S.C.A. § 43.0802(a).

In cases where a party seeks relief from a default judgment, all but the most egregious neglect will usually be excused in deference to the principle that cases should ordinarily be tried on their merits. T.C.R.C.P. Rule 60(b).

Motions for relief from judgment after trial should not be granted as freelyas those seeking relief from default judgments, so as to encourage diligent preparation before trial and so as not to relegate the many hours spent at trial by opposing parties and the court to the status of pre-trial discovery. T.C.R.C.P. Rule 60(b).

Even where party seeking relief from judgment on the ground of newly discovered evidence shows that [8ASR2d98] the evidence could not have been discovered with due diligence before trial, the judgment should not be vacated unless the new evidence seems likely to produce a different outcome upon retrial. T.C.R.C.P. Rule 60(b) .

Since a matai title ordinarily has many successive holders, evidence concerning a person known by a particular matai name in 1912 should not be assumed to apply to a person who was called by the same name by a witness testifying in 1987.

A reference to one person as the "sister" of another is not contradicted by evidence that they did not have identical ancestors, since in Samoan custom the terms "brother" and "sister" frequently refer to relatives of the same generation whether or not they are born of the same mother and father.

Before REES, Chief Justice.

Counsel: For Plaintiff, Asaua Fuimaono
For Defendant Fai'ai, Charles Ala'ilima
For Defendant Tuiasosopo, Togiola T.A. Tulafono
For Defendants Uiagalelei, Aitofele Sunia

On Motion for New Trial or Relief From Judgment:

This case was filed in 1986 and tried in December 1987. Judgment was rendered on December 18, 1987, in favor of defendant Fale Fai'ai and in favor of defendants Uiagalelei and Tuiasosopo with respect to some but not all of the land claimed by them. The Court's findings of fact, conclusions of law, and order are set forth at 6 A.S.R.2d 143. Satele, Uiagalelei, and Tuiasosopo have appealed; briefs have been filed by all parties and the appeals are scheduled to be heard next month.

Uiagalelei now brings a motion in the trial court. It is styled a "motion for new trial or relief from judgment" and is grounded in counsel's discovery of new evidence.

The motion comes about seven months too late to be considered as a motion for new trial. A.S.C.A. § 43.0802(a). The statute is jurisdictional and leaves the Court no discretion to extend or disregard the ten day time limit it [8ASR2d99] provides. See Judicial Memorandum No. 2-87, 4 A.S.R.2d 172 (1987), and authorities cited therein. We therefore consider the motion as one for relief from judgment under Territorial Court Rule of Civil Procedure 60(b).

Rule 60(b) provides in pertinent part that a party may be relieved from judgment on the ground of "newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial." The new evidence proffered by counsel for Uiagalelei consists of certain statements made at the hearing of Fauolo v. Tauvaelua, 1 A.S.R. 260 (1912), and in the pleadings of Teo v. Siatafu, 1 A.S.R. 327 (1921).

Counsel states that the records of these cases establish facts "which neither affiant nor defendant could have discovered in the exercise of due diligence before trial for the reason that neither affiant nor defendant had any way of knowing of the existence of such facts until their discovery by affiant."

The Court should grant relief from judgment only if it is satisfied both that the evidence in question really could not have been discovered by due diligence before trial or within ten days after trial, and only then if the evidence would seem likely to produce a different outcome upon retrial.

I. Due Diligence

Counsel stated at oral argument on this motion that in preparation for trial he checked the American Samoa Reports for all cases involving land called "Fasamea," but that these cases were essentially undiscoverable because their captions did not refer to Fasamea. While preparing for the appeal he somehow came across these cases. Fauolo v. Tauvaelua does not concern Fasamea but may shed some light on the identity of the man called Fau'olo who first registered it. Teo v. Siatafu does appear to involve the land called Fasamea by some of the parties to this case, but it was filed by neighbors who alleged encroachment on their own land called Laumaala.

The Court is not satisfied that checking the index for cases whose captions advertise their connection to the land presently in dispute [8ASR2d100] constitutes due diligence. The answer filed eighteen months before trial by defendant Fale Fai'ai indicates that her claim was based on a grant by Satele to the Fauolo family. A subsequent memorandum, filed on the eve of trial, gives a much fuller account of the Fauolo family history. Although there was much in this memorandum and in the evidence produced at trial that was new, (1) all of it was discoverable before trial. For at least two years now the Court has been imploring attorneys to take discovery prior to the trial of important cases. No discovery appears to have been taken in this case. It was entirely within the power of opposing counsel to learn from Fale Fai'ai prior to trial everything she presented at trial, including whatever it was that later caused him to research the records in the Fauolo and Teo cases. Instead, as happens all too often, everyone was satisfied to proceed to trial knowing only the barest outlines of what the other parties would have to say.

In cases where a party seeks relief from a default judgment, courts tend to characterize all but the most egregious neglect as "excusable" in [8ASR2d101] deference to the principle that cases should ordinarily be tried on their merits. In this case, however, there has already been a trial. Three judges and several other court officials, as well as the various parties and their attorneys, each spent twenty-five hours in court time alone. Many more hours have been devoted to writing the opinion and the appellate briefs. To grant the principle that a party who did not take discovery can wait until after the trial and the issuance of an opinion and then track down whatever promising leads have emerged would be to relegate the first trial and opinion in every case to the status of pre-trial discovery.

II. The Likelihood of a Different Result upon Retrial

Even if we were to conclude that this evidence could not have been discovered with due diligence before trial ---or, to be precise, before the statutory deadline for filing a motion for new trial ---it would be an insufficient basis on which to vacate the judgment. The evidence consists almost exclusively of various statements about the identity and background of the Fau'olo who held the title circa 1912 (when ten acres called Fasamea were registered in the name of Fau'olo) and 1914 (when Fau'olo apparently offered for registration an expanded survey of Fasamea, this one comprising about 35 acres. ) The statements on which counsel relies, however, are not substantially inconsistent with the findings and conclusions the Court has made in the present case. (2) [8ASR2d102]

Accepting for the moment the truth of all the statements in question, we would draw the following conclusions about the status of the Fau'olo title in 1912:

1) It was within the power of three people to confer the Fau'olo title. They were Siatafu, Sineavea, and Tauanu'u. They were the "true descendants of the Fau'olo title." They had conferred the title upon several persons and then removed it from them.

2) Shortly before 1912 the title had been conferred upon Fau'olo Sila. He was said by one of his opponents to have come originally from Upolu. If he did come from Upolu, we have no way of knowing when he arrived in Tutuila or where he lived prior to assuming the Fau'olo title, except that his opponent places him in Upolu at the time of a certain event that probably happened circa 1882. It also appears that he did not reside in Poloa for very long, if at all, prior to taking the Fau'olo title.

3) Since Sila is not mentioned as among the "true descendants" of the Fau'olo title who have the power to bestow the title, he probably was not a full blood brother of Siatafu.

4) Although Fau'olo is a title of the village of Poloa we glean this not only from the transcript in the Fau'olo case but also from [8ASR2d103] judicial notice of the matai register for Poloa--- the family was perceived, at least by its opponents, as residing primarily in Se'etaga. The opponents frequently refer to members of the Fau'olo family, and on one occasion to the whole family, as being from Se'etaga or of having been in Se'etaga at the time of various important events. Tauanu'u, a name whose incumbent titleholder in 1912 was one of the "true descendants " of the Fau'olo title, is a matai name of Se'etaga. A person named Paepae is also prominently mentioned in the Fau'olo transcript as an influential member of the Fau'olo family; Paepae is a matai name of Se'etaga. (We take judicial notice of the matai register of Se'etaga.)

5) As counsel observes, the person called Paepae in the Fau'olo transcript is not the same person as Fau'olo Sila.

5) [sic] Siatafu grew up at least partly in Taputimu, probably because her father, a former holder of the Fau'olo title, had gone there to live with his wife's family.

6) Fau'olo Sila acted together with Siatafu to register Fasamea and to claim or reclaim Fau'olo family land in Poloa.

Counsel wishes us to infer from these data that the Fau'olo who registered ten acres called Fasamea in 1912 could not possibly be the same person as the Fau'olo who conveyed thirty-five acres called Fasamea to his daughter (the grandmother of defendant Fale Fai'ai) in 1939. The latter was identified by his great-granddaughter in 1987 as Fau'olo Paepae of Se'etaga, brother of Siatafu; the former is identified in the "newly discovered" transcript as Fau'olo Sila of Upolu and Poloa, probably not a blood brother of Siatafu. Counsel further infers that the 1939 grantor must have been the Paepae mentioned in the 1912 transcript, who pretty clearly was not the same person as Fau'olo Sila.

We decline, however, to draw these inferences. The evidence proffered by counsel is to the effect that a man named Sila came from Upolu at some time between 1882 and 1912 and lived somewhere other than Poloa until shortly before 1912 when the Fau'olo title was bestowed upon him. It also appears from the transcript that Fau'olo Sila may [8ASR2d104] not have resided primarily in Poloa even after taking the title. In any case, another affidavit submitted by counsel for Uiagalelei tells us that by the mid-1930s Fau'olo had left Poloa for good. On this evidence it would seem quite possible, indeed likely, that one of the places he resided was in Se'etaga where most members of the Fau'olo family (including two of the three people with power to bestow the title) seem to have had their principal residence. Nothing in the newly discovered evidence, therefore, supports counsel's suggested conclusion that this Fau'olo was not the same person who refers to himself as "Fau'olo of Se'etaga" in the 1939 deed. We note from the matai register of Poloa that Fau'olo Sila registered the title in 1911 and that the next registration of the title was not until 1941.

As for counsel's inference that the Fau'olo of 1939 must have been the Paepae mentioned in the 1912 transcript and must therefore not have been Fau'olo Sila, it rests on the assumption that there was only one Paepae. This assumption is obviously unwarranted,

If Paepae had been the 1939 grantor's taule'ale'a name, the existence in 1912 of a Paepae who was important in the Fau'olo family but who was not " the " Fau'olo in 1912 might be important to our case. The only evidence that the Fau'olo who signed the 1939 deed ever was called by the name Paepae, however, is the testimony of his great- granddaughter Fale Fai'ai to the effect that he acquired the name Paepae at some time after his acquisition of the Fau'olo title. This clearly implies that Paepae is a matai name. A person remembered as Fau'olo Paepae in 1987 by his great-granddaughter need not, of course, have been the holder of the Paepae title in 1912.

The matai register reflects that Paepae is a matai title of Se'etaga. Any number of people registered the title during the probable lifetime of Fau'olo; during one four-year period two different people seem to have registered it; and others may have shared the title without registering it, as is customary in some families. A person signing his name simply "Paepae" was one of the three witnesses to the 1939 conveyance by Fau'olo; this implies, although it does not prove, that as of 1939 Fau'olo himself had not come to be called Paepae. Perhaps he acquired the name after [8ASR2d105] he conveyed Fasamea to his daughter. Whether or not Fau'olo was ever called Paepae was in no way important to any of the Court's findings or conclusions.

Nor does it matter whether Fau'olo was a full blood brother of Siatafu. He could have been her first cousin or even her half-brother without sharing her direct descent from the Fau'olo title. As counsel knows, Samoans frequently refer to their relatives of the same generation as brothers and sisters although they are not born of the same mother and father. The records of the Fau'olo and Teo cases neither establish nor negate a blood relationship between Siatafu and Fau'olo. They do make clear that Siatafu vigorously supported Fau'olo's registration efforts, not only the earlier ten acre registration but also the later attempt to register the whole 35 acres.

The records are in no way inconsistent with Fale Fai'ai's use of the words "brother" and °'sister" to describe Siatafu and Fau'olo; if introduced at trial their primary effect would have been to provide documentary support for the more pertinent aspects of the case presented by Fale Fai'ai. Fau'olo came to Fasamea with the support of Siatafu, the wife of Satele and a member of the Fau'olo family; he promptly registered ten acres and later attempted to register 35 acres, not as Satele land but in his own name and that of Siatafu.

Finally, however, suppose the Court were to conclude ---against the weight of the evidence, even as supplemented by the °'newly discovered" transcripts ---that the 1912 Fau'olo and the 1939 Fau'olo were two different people. Whose case would be strengthened? It would not help Uiagalelei, whose disagreement with Fale Fai'ai and her relatives is in the nature of a boundary dispute and whose activities on the land described in the 1939 deed were found to date only from the 1970s. Nor would it help Satele, whose claim rests on the presumption that one who occupies and cultivates land does so for the benefit of his extended family; these records strongly support the Court's original conclusion that Fau'olo (whoever he was) and Siatafu intended this land to become their own property and not that of the Satele family. It is perhaps even more difficult to see how a conclusion that Fau'olo the 1939 grantor had [8ASR2d106] nothing to grant would help Tuiasosopo, whose ancestor came to the land through his half-sister Fa'ailoilo (the daughter of this very Fau'olo) and whose own survey in 1974 listed the land as belonging to Fa'ailoilo.

The only possible beneficiaries of a conclusion that the Fau'olo who signed the deed in 1939 was a usurper would be the heirs (if any) of the Fau'olo who registered the land in 1911, and perhaps the heirs (if any) of Siatafu. No such people appeared in this case, nor does the voluminous evidence suggest any trace of them on Fasamea at any time between 1911 and the present. Even if the hypothetical heirs of the hypothetical first Fau'olo had appeared, they would have had to overcome what would then be a strong adverse possession claim by the descendants of the "other" Fau'olo.

Since the descendants of this Fau'olo presented not only the best evidence of possession but also the best evidence of title, the Court did not reach the question of adverse possession. Nor is it necessary to reach that issue at this time, since the evidence even as supplemented by the proffered exhibits strongly supports the title conveyed by Fau'olo to Fa'ailoilo in 1939 and claimed since then by Fa'ailoilo and her descendants. Fale Fai'ai testified that her great- grandfather Fau'olo ---indisputably the person who executed the 1939 deed ---was also the person who offered Fasamea for registration in 1912 and 1914. This testimony was unrebutted at trial although two of the three opposing parties are connected to the Fau'olo family by marriage and would presumably have had access to any contrary tradition. Nothing in the newly discovered evidence suggests that the testimony of Fale Fai'ai on this point was anything but the truth.

The motion is denied.

*********

1. The memorandum and the evidence not only elaborated on the factual allegations in the original answer, but also reflected a change in the legal theory on which defendant Fale Fai'ai claimed the land. The original answer asserted that Fasamea was Satele family land committed according to Samoan custom to the perpetual possession and use of the Fau'olo family. The memorandum and the evidence produced at trial ---to the effect that Fau'olo had registered part of the land in 1911 as his own land, that by 1939 he had attempted to register and to convey the rest of it, and that his descendants had asserted ownership of it in various ways down to the present day established to the Court.'s satisfaction that Fau'olo had been occupying the land on his own account and that any authority Satele may have had over the land was not in a proprietary capacity but in his political capacity as the highest chief in the county. This evidence was introduced without objection by any party; its variance with the pleadings therefore does not affect the result at trial. T.C.R.C.P. Rule 15(b).

2. The statements in question are almost exclusively from the transcript of the hearing in the Fau'olo case, held January 12, 1912.
The pleading in the Teo case consists of boilerplate to the effect that Fau'olo and Siatafu are trying to encroach on plaintiffs' land, that Fau'olo and Siatafu have never used the land and plaintiffs have long occupied and cultivated the land, etc. The claims of encroachment were not made by ancestors in title of Uiagalelei, Satele, or Tuiasosopo, and they appear to concern a different part of Fasamea than the boundary issues raised by Uiagalelei in the present case. The dispute was found by the Court to have been amicably settled. The only light the pleading sheds on the present controversy is that it (1) bolsters the testimony of defendant Fai'ai that the 1939 conveyance from Fau'olo to Fa'ailoilo of 35.5 acres, which incorporated a map and survey dated 1914, actually did reflect the boundaries of Fasamea as her family had claimed them since 1914 rather than being a later contrivance; (2) affords a plausible explanation for the failure of the Territorial Registrar to register the 35.5 acre parcel surveyed by Fau'olo in 1914; and (3) reinforces the Fau'olo family history to the effect that Fau'olo acted together with Siatafu. If this evidence had been available at trial it would have helped defendant Fai'ai, who prevailed even without it.

Leti v. Immigration Bd.,


LEVELI LETI, Petitioner

v.

IMMIGRATION BOARD OF AMERICAN SAMOA, 
Respondent

High Court of American Samoa 
Appellate Division

AP No. 24-88

September 23, 1988

___________

Filing of a petition for review of an immigration board decision does not automatically stay a final order of deportation made by the board. A.S.C.A. § 41.0646.

Court should grant an interlocutory stay of an administrative board decision only if there is a substantial likelihood that the petitioner will prevail on the merits and the petitioner will be greatly or irreparably injured if the stay is not granted.

Under territorial immigration statute, the immigration board determines only whether an alien is deportable; the decision actually to deport a deportable alien is within the discretion of the attorney general. A.S.C.A. § 41.0616.

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

Counsel: For Petitioner, Asaua Fuimaono 
For Respondent, Enere H. Levi, Assistant Attorney General

Per Curiam:

On August 12, 1988 the respondent, Immigration Board of American Samoa, entered a deportation order against the petitioner, Leveli Leti, a nationalof Western Samoa. The board found that the petitioner had unlawfully acquired employment [8ASR2d108] in the territory in violation of A.S.C.A. § 41.0409 and concluded that this violation warranted deportation under A.S.C.A. § 41.0616 (16). A motion for reconsideration was denied by the board, as more fully appears in its decision filed September 2, 1988.

Petitioner seeks judicial review of the deportation order and moves to stay the deportation order pending final disposition hereof. A petition for review does not automatically stay a final order of deportation by the board. A.S.C.A. § 41.0646. We therefore granted an expedited hearing on the interlocutory matter.

After careful consideration of the submissions of counsel and of the matters on file we conclude that a stay should be granted.

As noted above, the board relied on A.S.C.A. § 41.0616 (16) as authority for its deportation order. We note that the enactment reads as follows:

Any aliens [sic] in American Samoa, 
including an alien crewman, shall, upon 
the order of the attorney general, be 
deported, who:

. . . .

(16) has [sic] violated any provision of 
this title or regulation of the board, in 
addition to any other penalty which may 
be imposed under any provision of the 
law.

(Emphasis ours.)

This section, unlike some other sections of the immigration law, clearly requires the involvement of the attorney general himself. While the board acted within its power in determining whether the petitioner had committed any of the acts under which the statute defines him as "deportable," the statute does not require that every "deportable" alien actually be deported. (1) [8ASR2d109]

The petitioner in this case appears to have been found deportable because he committed a minor technical violation of the immigration law. He had obtained the requisite written permission from the immigration board to be employed by his sponsor as a bus driver. It appears that his sponsor's bus broke and petitioner began working as a driver for one of his sponsor's relatives who also owned a bus, without having obtained a second written permission from the board. Counsel for petitioner argues that the case would never have been prosecuted by the immigration department had it not been for the fact that a brother of an immigration department employee had a score to settle with petitioner.

None of these arguments may avail the petitioner in his appeal to the High Court, which is limited almost exclusively to the correction of errors of law by the board. They are the very sorts of factors, however, that might inform the discretion of an executive official who must decide whether to deport someone who has been found to be deportable.

An interlocutory stay should be granted only if there is a substantial likelihood that the petitioner will prevail on the merits and the petitioner will be greatly or irreparably injured if the stay is not granted. In this case deportation will mean the loss of petitioner's livelihood; in the absence of an order by the attorney general the petitioner's chances of prevailing on the merits would appear to be one hundred per cent.

Accordingly, a stay is granted pending consideration by the attorney general of whether the petitioner should be deported.

*********

1. We note that a 1988 amendment to A.S.C.A. § 41.0409, which prescribes a schedule of fines to be levied by the board for offenses involving unlawful employment, added a new paragraph (g) which may permit deportation by the board in addition to fines. The amendment is not available to the board in these proceedings as it would be retrospective in effect.

Lepule; Pu`u v.


NU'UELUA S. PU'U, Plaintiff

v.

SILIPA LEUPULE and CONTINENTAL
INSURANCE Co, , Defendants

High Court of American Samoa
Trial Division

CA No. 137-87

July 28, 1988

__________

Licensing of a vehicle requires proof of liability insurance, and only licensed vehicles may be driven on public highways, so that use of public highways is effectively conditioned on maintenance of insurance, A.S.C.A. §§ 22.1001, 22.1002.

Legislature designed the compulsory insurance statute to facilitate compensation of, and afford a realistic remedy for, victims of negligence. A.S.C.A. §§ 22.2001 et seq,

"Cancellation " of an insurance policy generally refers to conclusion of a policy prior to the expiration of the policy period, while "termination" refers to expiration of the policy by lapse of the policy period. A.S.C.A. § 22.2013.

As adequate safeguards exist to inform the Director of Administrative Services of the natural "termination " of insurance policies by expiration of the policy period, the legislature did not intend the statute requiring an insurer to notify the Director at least ten days prior to "cancellation" of a policy to apply to "terminations." A.S.C.A, § 22.2013.

Before KRUSE, Associate Justice, TAUANU'U, Chief Associate Judge, and TUIAFONO, Associate Judge.

Counsel: For Plaintiff, Charles Ala'ilima
For Defendants, Roy J.D. Hall, Jr. [8ASR2d69]

Defendant, Continental Insurance Company, (hereinafter "Continental" ) moves for summary judgment in the above entitled matter under the following circumstances: Plaintiff has filed suit against Continental as the insurer of defendant Silipa Leupule pursuant to the provisions of the compulsory third party liability automobile insurance statute, A.S.C.A. §§ 22.2001 et seq. , alleging property damages sustained as the result of the latter's negligent operation of his vehicle. Continental denies any insurance coverage issued in behalf of the said Leupule and by way of affidavit, expands on its denial with additional factual declarations which we treat, for purposes of this motion, as being as established.

Continental declares that on March 3, 1987, the alleged date of the automobile collision, it had no record of any third party liability policy for Silipa Leupule and the vehicle allegedly involved. That while it had issued such coverage for the said defendant and his vehicle for the period of 3/4/86 to 9/30/86, that particular policy had lapsed or expired on the latter date and the same was never renewed.

In response to the motion, plaintiff argues that the policy claimed by Continental as having expired was still in full force and effect, as a matter of law, by virtue of the provisions of A.S.C.A. § 22.2013. Plaintiff interprets this enactment as requiring an insurer to give 10 days prior notice of a policy's expiration date to the Director of Administrative Services before such a policy can be said to have ceased and be of no effect. Section 22.2013 provides:

(a) The director of administrative services shall be notified
by the insurance carrier of the cancellation of any motor
vehicle liability policy of insurance at least 10 days before
the effective date of such cancellation.

(b) In the absence of such notice of cancellation, the policy
of insurance shall remain in full force and effect, except
that any policy subsequently procured and certified shall
on the effective date of its certification terminate the
insurance previously [8ASR2d70] certified with respect
to any vehicle designated in both certificates.

(c) Upon receipt of the notice of cancellation, the license and
all of the registration certificates of the person whose
insurance has been canceled shall be suspended by the
director of administrative services and shall remain so
suspended until that person files a certificate of insurance.

Continental argues that the word "cancellation" as used in the enactment should not be confused with terms such as "expiration" or "lapse." The former is said to connote the situation where a policy is terminated prior to its stated term or period provided, whereas the notion of a policy lapsing or expiring means that the policy has arrived at the end of the term for which it was written. "Cancellation" is something that happens prior in time to an "expiration " and hence the terms are not synonymous. Continental submits that the enactment is confined only to terminations prior to the policy's stated term and accordingly that A.S.C.A. § 22.2013 has no application in the circumstances herein.

To the contrary, plaintiff argues that the enactment's use of the word "cancellation" means termination of the policy however effectuated, whether it be prior to the term stated in the policy or at the end of such term stated. In essence the argument is that an automobile insurance policy governed by the enactment has a term or duration which ends or terminates only upon the giving of 10 days advance notice to the Director of Administrative Services of a policy's termination whether such occurs before or after the stated term has run. In justification, plaintiff points to underlying public policy which gave rise to the enactment.

DISCUSSION

The Court was referred to a number of cases from different jurisdictions concerning the use of the word .'cancellation" in a number of other comparable enactments. Our conclusion after review is that there is very little in the way of general principles that may be derived from these cases. [8ASR2d71] What we did note as apparent is that different jurisdictions, while having a common objective, utilized varying statutory controls for purposes of enforcement and thus a varying employment of language. For example, some enactments expressly distinguished situations requiring notice in advance of cancellation and situations requiring notice in advance of the need to renew. Some required notice to a public official only while others required notice to the insured as well. Whatever the particular notice requirements, the cases were generally of the consensus that statutory notices required strict compliance. In the final analysis the exercise significantly appears to be one of statutory construction and accordingly we look to A.S.C.A. §§ 22.2001 et seq.

The licensing of motor vehicles within the territory is an annual requirement (section 22.1004) and before any vehicle may be licensed the vehicle owner is required, among other things, to furnish "certification of insurance coverage as required by 22.2001 et seq. [the compulsory insurance statute]." A.S.C.A. § 22.1002(3). As no vehicle may be operated on the highways of American Samoa without valid licensing (section 22.1001), the cumulative effect of the above provisions is that permission to use the highways is made conditional to the maintenance of compulsory insurance.

A review of section 22.2003 reveals the obvious design of the compulsory insurance statute. That is facilitating compensation to the hapless highway victim who is injured or has sustained damage because of the negligent operation of a motor vehicle. The Act ensures some measure of economic solvency or financial responsibility of operators upon the highways to whom such innocent victims may look to for compensation. The public is thus afforded a realistic remedy against the inevitable tortious use of automobiles.

To secure these public ends the legislature has provided a number of built in controls and policing measures. The possibility of private dealing between the insured and insurer to defeat or avoid the statutory scheme will be of no effect. Section 22.2007 mandates a number of provisions deemed as incorporated in every policy governed by the Act. Among these implied provisions is a condition that a policy may not be "canceled or [8ASR2d72] annulled by any agreement between the insurance carrier and the insured." Section 22.2007(b). Further, "no violation of a policy may defeat or void the policy." Section 22.2007(c). Additionally, the terms and conditions of the insurance contract may not be in conflict with the provisions of the statute. Section 22.2007(f). Therefore, notwithstanding any agreements that an insurer and insured may otherwise reach, the statute preempts with regard to third party benefits intended by the Fono.

Similarly, section 22.2019 is another control measure to enhance the achievement of statutory objectives. This enactment makes any violation of the statute's provisions a criminal offense punishable accordingly upon conviction.

Finally section 22.2013 (the text of which is above quoted verbatim) provides a manner of cancellation which if not complied with, will render the policy as continuing in full force and effect. The dispute here centers on the scope of this enactment and the operative effect of the word "cancellation."

We agree with Continental that the term "cancellation" as used in insurance law usually refers to termination of a policy prior to the expiration of the policy period by act or one or all of the parties; "termination" refers to the expirations of the policy by lapse of the policy period. See e.g., Waynesville Security Bank v. Stuyvesant Ins. Co., 499 S.W.2d 218, 220 (Mo. 1973).

On the other hand, plaintiff contends that in the context of the territorial compulsory insurance statute the restrictive interpretation of "cancellation" as advanced by Continental "would seriously undermine the enforcement of American Samoa's mandatory insurance law." (Plaintiff's Memorandum at P.3). In this regard we find that while plaintiff has correctly focused on the controlling factor at issue the statute's enforcement and thus proper implementation -we do not agree that his conclusions are a necessary consequence of the statute. Plaintiff's primary contention is that the burden of reporting the failure of coverage as envisioned by the Act is placed upon insurance companies. That unless insurance companies are required to give advance [8ASR2d73] notice of non-renewal (as well as cancellations) of policies, the supervising agency would not be able to enforce the statutory sanctions of suspending vehicle registration and licensing when the insurance requirements of the Act are thus not met. The assumption is that vehicle owners will not do the reporting, or are less reliable at reporting, and that some incentive is therefore available for vehicle owners to be tardy with renewal because of the difficulties presented the Director of Administrative Services in finding out when sanctions should be made to attach.

In reviewing the compulsory insurance statute, the enforcement shortfalls suggested by plaintiff, as necessitating a reading of section 22.2013 to include the reinstatement of a policy that has expired because the insurer has not given prior notice of non-renewal, are not evident. The statute has provided a number of ways for the Director of Administrative Services to become aware of policy expirations and hence occasion to apply sanctions. Firstly, we note that the annual licensing requirement for automobiles may not be met unless the vehicle owner provides certification of insurance. See section 22.1002(3). This enactment further contains the proviso "that such coverage will be effective for the period of the vehicle's license." (emphasis added). As may be seen the statute provides a common commencement and expiration date for both license and insurance and therefore the usual policing of vehicle licenses by traffic officers will also coincide as an enforcement measure with regard to insurance. The intertwining nature of the statute's enforcement features are evident in section 22.1002 which provides that upon compliance with the requirements of licensing, the Commissioner of Public Safety shall issue the license applicant with two decals to be placed on the vehicle's license tags, and which decals shall nominate the period of registration. Also section 22.1003 provides that such license tags shall be at all times visibly displayed on the front and rear of the vehicle. Thus, in the case of lapsed policies, legislative design has taken into account adequate public noticing measures to promote the attainment of social goals embodied in the compulsory insurance statute.

In addition to insurance certification requirements with the Commissioner of Public Safety [8ASR2d74] for licensing purposes, section 22.2002 requires that certification consistent with the requirements of sections 22.1001 et seq., must also be made to the Director of Administrative Services as a condition of continuing registration. The combined effect of these provisions is also the placing of registration on an annual review basis by reason of section 22.1002(3). With all these control features the enforcement problems attributed by plaintiff to the statute are not at all apparent. If the Fono had attempted an additional enforcement control measure by also placing a reporting burden of the insurance industry with regard to anticipated policy lapses, it could have easily articulated this requirement more clearly as opposed to creating an ambiguity with a term otherwise clear in matters of insurance.

On the other hand enforcement measures would surely be frustrated had the Fono not addressed "cancellation" options normally available to contracting parties. The tripartite ends of the compulsory insurance statute clearly necessitate the need for legislative restrictions on the ability of an insurer and an insured to privately cut short a policy term which is publicly held out as terminating on a date determinable from an automobile's license tags. Hence the legislature's use of the term "cancellation'. was purposeful and the intent is clearly to limit a reporting burden on one of the contracting parties in these normally private occasions.

For the foregoing reasons we hold that plaintiff is not entitled to relief under subsection (b) of section 22.2013 by reason of Continental's failure to give advance notice of nonrenewal to the Director of Administrative Services. Motion granted.

It is so Ordered.

*********

Kneubuhl Maritime Services Corp. v. Adams,


KNEUBUHL MARITIME SERVICES CORP., Plaintiff

v.

WILLIAM ADAMS and QUALITY FURNITURE 
MANUFACTURING, Inc., Defendants

High Court of American Samoa 
Trial Division

CA No. 134-87

July 14, 1988

__________

Corporation may not use dissolution as a method to avoid creditors.

Where a corporation with outstanding debts and claims against it dissolves and reincorporates, equity will hold all assets traceable to the original corporation liable to discharge the debts and claims.

Minority shareholder became personally liable for a corporate debt where he made a written promise to pay a past due balance owed by the corporation and the writing did not indicate that the obligation was other than personal. [8ASR2d21]

Before KRUSE, Associate Justice, AFUOLA, Associate Judge, and VAIVAO, Associate Judge.

Counsel: For Plaintiff, Charles Ala'ilima 
For Defendants, Frank Swett

This is an action on account for unpaid freight and plaintiff seeks judgment against defendants in the sum of $7,000 together with such allowable interest and costs of collection.

The freight account is not disputed, however, defendant William Adams does dispute personal liability on the theory that the indebtedness is one which accrued against the corporate entity "Quality Furniture Manufacturing, Inc." Adams admits only to the extent that he was a minor shareholder in the said defendant corporation with the limited role of technical advisor, and he cites in his defense A.S.C.A. §§ 30.0114 and 30.0130 which exempt the private property of shareholders from such corporate liability.

Plaintiff on the other hand claims that in its past and extended dealings with Adams the impression gained was that the business "Quality Furniture" was not only owned but controlled by Adams. Plaintiff's operations supervisor, Eugene Anderson, testified that he had had five years of personally dealing with Adams regarding shipments on behalf of the business Quality Furniture. As far as he was made aware Adams owned Quality Furniture and he had dealt with him (and no one else) without any understanding that Adams was a corporate agent as he now claims. In the course of these dealings and at the request of Adams, Anderson agreed on behalf of his company to allow shipments for Quality Furniture to be shipped to the territory on a freight collect basis. The resultant working arrangement was that Adams would usually satisfy each freight bill within 30 to 60 days of release of consignment.

For some time the relationship was mutually beneficial. On the freight in question, which was the subject of three separate bills of lading, Anderson testified that when payment had not been made in accordance with past practice he contacted Adams. The latter advised him that he would take [8ASR2d22] care of the matter and indeed Adams subsequently tendered Anderson a check in partial payment of $3502.37, although leaving a balance remaining of $7000. After some discussion on the matter, Adams left with Anderson a signed writing containing the following:

July 8th, 1986

Gene:

Here is USD3502.37 on our account of $10,502.37. The 
balance I'll pay as follows:

On or about 7/21/86 $3500.00 
On or about 8/10/86 3500.00

This will balance up this shipment and leave me owing -0-

Thanks for your help

/s/Bill Adams.

The accompanying check tendered, although signed by Adams, contains the printed drawer identification as "Quality Furniture Manufacturing Inc."

As events turned out the promised payments were never made and somewhere in the ensuing dialogue between the parties leading up to this litigation, defendants advised plaintiff that Quality Furniture Manufacturing is a corporation since defunct and gone out of business. (See paragraph Second of defendant's answer.)

DISCUSSION

As we stated at the outset, the indebtedness itself was not contested. At least insofar as Quality Furniture is in fact a corporate entity, its liability was not disputed and judgment may therefore enter against it. We also note that in as much as the business was in fact a corporate entity, we were not impressed with the testimony which sought in its effect to avoid liability by waving the banner "dissolution. " As we understand the corporations statute, A.S.C.A. §§ 30.0101 et seq., dissolution is not a vehicle for avoiding creditors and on the evidence before us, we were left with grave reservations regarding the "bona [8ASR2d23] fides" of the defendants. Firstly, it is apparent that contemporaneous with the claimed dissolution exercise, negotiations were undertaken by Adams as an individual and on behalf of a "Quality Furniture Manufacturing Inc.," to secure a long term leasehold on property located in Nu'uuli. See Adams v. Lafaele, LT No.21-86 (1986). This case indeed resulted in a stipulated judgment acknowledging a leasehold estate in Adams and Quality Furniture Manufacturing Inc. Incidentally, another furniture business was then set up in this location. Notwithstanding, Adams testified that the defendant corporation was dissolved at the conclusion of 1986 after liquidating assets to satisfy a judgment debt outstanding against it at the time. Additionally, the Court is told that the new venture is a separate entity and Adams disclaims any interest therein, although the same is owned by his wife, and that he merely helps her out periodically.

In the light of pending claims against the original corporate entity the dissolution exercise and reincorporation is tantamount to a sham on creditors. A change in clothes does not render one a new person and in the eyes of equity liability will attach to all that is properly traceable to the original corporation. The leasehold estate above mentioned is, for example, available to this end.

We further find on the facts that defendant Adams is liable on the indebtedness. This liability is primary and contractually based as we construe his written undertaking of July 8th, 1986 given to Anderson. The language is unequivocally clear that the undertaking is a personal one as there is no suggestion whatsoever of a corporate commitment. Indeed the suggestion of such a corporate commitment would be nonsense from the point of view of Anderson and his employer since the underlying obligation, consistent with Mr. Adams' defense, is already the corporation's and thus any additional assurances by the corporation would be without consideration and meaningless to plaintiff. Rather, we construe the undertaking as being a separate and- additional assurance or guarantee given by Adams in consideration of plaintiff's forbearance from suing the corporation at the time. In turn, there was obviously reliance by plaintiff on this mentioned writing. [8ASR2d24]

We accordingly conclude that defendants are severally liable to plaintiff in amount of $7000 and therefore plaintiff will have judgment against Quality Furniture Manufacturing Inc., and William Adams in the sum of $7,000.00 with interest to accrue on judgment as provided by law plus court costs.

It is so ORDERED.

*********

King; Tuiteleapaga v.


THELMA K. TUITELELEAPAGA and
NICHOLAS KING, Jr. , Plaintiffs

v.

MELESELEISA KING, Defendant

High Court of American Samoa
Trial Division

CA No. 21-88

July 21, 1988

__________

Under Samoan custom a widow who has no children by her deceased husband has no right to remain on the communal land of husband's family unless the family invites her to remain.

Widow who was entitled to one-third of deceased husband's interest in individually owned property could not be evicted by husband's relatives from possession of a small part of such property. A.S.C.A. § 40.0103.

Communal land of Samoan family automatically passes from one generation to another without the necessity of probate.

Land registered by its owner as her individual [8ASR2d50] property was subject to laws of inheritance and passed to the individual heirs of the owner.

If one co-owner of individually owned land were occupying an unduly large part of the property, court could issue a temporary order apportioning the use of the property pending an action for partition.

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

Counsel: For Plaintiffs, Napoleone Tuiteleleapaga
For Defendant, Togiola T.A. Tulafono

Defendant is the widow of the plaintiffs' uncle, Joseph King. Before Joseph died in 1987 he had lived with the defendant (hereinafter "Mele") in part of a large house built by his parents during the early part of this century. The other part of the house was rented, with the rents being collected by plaintiff Thelma King Tuiteleleapaga and used for repairs and other family purposes.

About a year after Joseph died Thelma suggested to Mele that she leave the King family residence and go to live with her own family in accordance with Samoan custom. Mele refused, and this litigation ensued.

Counsel for plaintiffs lays great stress on the Samoan custom that when a man dies his widow should return to live with her own family unless she has children by the deceased or unless she has been invited to remain. Counsel for Mele concedes that a widow has no absolute right to remain on the communal land of her deceased husband's family. It is Mele's position, however, that the house was individual rather than communal property and that it belonged partly to her husband. Since the laws of American Samoa give a widow the right to 1/3 of her husband's real and personal property (A.S.C.A. § 40.0103), she claims to be part owner of the house.

The question whether this house is individual or communal property has already been litigated before the High Court. In Samia v. Tapuitea, 1 A.S.R. 552 (1937), Tapuitea offered the land on which the house is located (Tuasavai'i) for [8ASR2d51] registration as "her own true and personal land." The holder of the Samia title objected, claiming Tuasavai'i to be the communal land of the Samia family. The Court ruled in favor of Tapuitea and the registration was allowed.

Tapuitea was the mother of Joseph King and the grandmother of the plaintiffs. As far as could be determined at trial, her estate was never admitted to probate. According to the succession laws of American Samoa, her property passed upon her death to her seven children. A.S.C.A. § 40.0202. Since Mele inherited one/third of Joseph's property, she would appear to be the owner of an undivided 1/21 interest in Tuasavai'i and its fixtures and appurtenances, including the house she now lives in. Since every co-owner of a property that has not been partitioned has an equal right with every other co-owner to use the property, the Court must deny the plaintiffs' request for eviction.

It does appear that most of the co-owners of Tuasavai'i are blood descendants of Tapuitea King and that most of these descendants wish Mele to leave. They might attain this objective by means of an action for the partition of the property, in the course of which the Court could assess its value and determine a procedure by which sole possession could be given to the blood descendants in exchange for compensation to other heirs. Before bringing any such action, however, it would seem desirable that someone move to admit the estate of Tapuitea King to probate so that the interests of the various heirs can be formally determined.

These procedures will no doubt seem cumbersome to those members of the King family who have treated Tuasavai'i over the years as though it were the communal land of a Samoan family, which automatically passes from one generation to another without the necessity of probate and without interference from widows and other outsiders. It is not, however, within the power of the present plaintiffs or of the Court to decide whether Tuasavai'i should be regarded as individual or communal property. That decision was made many years ago by Tapuitea King when she registered the land as her individual property.

Tapuitea appears to have taken her decision deliberately. Only if her land and the [8ASR2d52] fa'apapalagi houses she and her husband had built on it were "her own true and personal property" would her children be afforded the protection of the fa'apapalagi land registration and inheritance laws against competing claims of the various Samoan families of which Tapuitea was a member. The advantages of such protection are suggested by the argument of Samia in the 1937 case:

Furthermore, the childrens of Tapuitea are half-casts, why should they be given a piece of Samoan land such as this land Tuasavaii. I am a Samoan Matai, and my father was also a matai before me .

Samia v. Tapuitea, supra (No.1-1937), claim of Samia F.

By arranging to have their land and houses classified according to the fa'a papalagi rather than the fa'a Samoa, Charles and Tapuitea King protected their children from anyone who might have regarded papalagi blood as just cause for dispossession. In so doing they unavoidably subjected the property to rules of law derived from the Anglo-American tradition, including the rule that a widow has an interest in her husband's property.

If the evidence showed that Mele was occupying an unduly large part of the property belonging to the King estate, the Court might issue a temporary order apportioning the use of the property among the various heirs until a partition could be effected. It appears, however, that her quarters contain only two bedrooms; that another part of the same house containing at least two bedrooms is currently being rented out by Thelma; that Thelma and her husband live in a six-bedroom house on Tuasavai'i; and that the only other King heir now residing permanently in Samoa, plaintiff Nicholas King Jr. , resides in his own house on the same land.

The complaint charged that Mele had not only brought her children from a former marriage to live with her but was also renting part of the house to a paying tenant. At trial it appeared that the tenant had left. Subject to the right of any heir to seek a partition of the property, the current arrangement seems fair to all parties so long as [8ASR2d53] Mele uses her quarters only as a personal residence for herself and her children.

have taken her decision if her land and the

The complaint is dismissed.

*********

Kim v. Star-Kist Samoa, Inc.,


CHEON SO KIM, Appellant

v.

STAR-KIST SAMOA, Inc. , Appellee

High Court of American Samoa
Appellate Division

AP No. 9-88

October 20, 1988

__________

Where record reflected only that fisherman was engaged in conversation while standing on dock, started to walk away, and was struck by forklift, evidence was insufficient to support trial court finding that fisherman was negligent.

In the absence of evidence of specific negligent conduct by person who was struck by forklift, attribution of negligence on the ground that victim was a seasoned fisherman and ranking deck hand who should have been familiar with dangers attendant to unloading fish on a wharf was not a finding of fact or an inference from the facts, but amounted to the imposition of strict liability.

Motion for new trial is a statutory prerequisite to appeal, and no issue can be raised on appeal that was not raised in motion for new trial. A.S.C.A. § 43.0802.

Requirement that motion must state with particularity the grounds on which it is based is especially important to motion for new trial, one of whose purposes is to avoid unnecessary appeals by alerting the trial court to possible errors or omissions in its opinion. T.C.R.C.P. Rule 7.

Disparity from place to place in amounts generally awarded for pain and suffering is accounted for by many factors, including variations in the value of money and in social attitudes toward pain, and that [8ASR2d147] awards tend to be lower in American Samoa than in some other jurisdictions does not make such an award clearly erroneous. A.S.C.A. § 43.0801.

Appellate court has no authority to increase the amount of damages awarded by trial court unless the amount was clearly erroneous. A.S.C.A. § 43.0801.

Before REES, Chief Justice, KING*, Acting Associate Justice, KAY**, Acting Associate Justice, LUALEMAGA, Associate Judge, and OLO, Associate Judge.

Counsel: For Appellant, William Reardon
For Appellee, Togiola T.A. Tulafono

REES, C.J. :

Appellant Cheon Su Kim, a Korean fisherman, was struck by a forklift being driven by an employee of appellee Star-Kist. The accident occurred on a dock adjacent to the Star-Kist cannery. The boat on which Kim was employed was at the dock to unload its catch. Kim was returning from the restroom facilities provided by Star-Kist for the use of the fishermen, and he stopped on the dock to talk with someone on board a vessel tied up alongside the dock. While thus engaged he was run over by the forklift. He suffered injuries including facial lacerations and contusions, a crushed rib cage, and fractures of the cheek bone, eye socket, femur, and pelvis.

The trial court found the accident to have been caused by the joint negligence of the forklift driver and of appellant Kim. The forklift was carrying a scow overloaded with garbage, obstructing the driver's vision. The dock was cluttered with stacks of such scows, further obstructing vision and leaving only narrow [8ASR2d148] corridors to be shared by forklift and pedestrian traffic. The court found that proper attention by the driver could have avoided the accident.

On the other hand, the trial court found itself "unable [to] understand why the accident happened with plaintiff caught unaware, unless of course he was to that degree so rapt in conversation with others so as to render him completely unmindful of his locale, and the attendant risks. The court concluded that the accident was 60% attributable to the negligence of the driver and 40% to the negligence of Kim.

I. Negligence of Appellant

Kim appeals from the finding that he was negligent. His counsel takes issue principally wi th an observation by the trial court that " a wharf servicing vessels. .is not the place for social discourse and casualness." Counsel points out that the record does not reflect whether the conversation was of a social or business nature. This was not, however, the sole basis on which the trial court found Kim to have been negligent. The court also observed that Kim was a seasoned fisherman and a ranking deck hand who was or should have been familiar with the dangers that attend unloading fish on a wharf, where "forklifts and like machinery on a dock are apt to move willy nilly." Moreover, whether the conversation was of a business or social nature does not appear to have been crucial to the trial court's determination that Kim was paying too much attention to his conversation and not enough to the passing forklifts.

Even so, and even making allowances for the trial judge's ability to judge the demeanor of the witnesses and the nuances of live testimony, we do not believe there was sufficient evidence in the record to justify a finding that Kim was negligent. He was in a place ---en route from the restroom to the boat where he had a right to be. The undisputed evidence is that he was facing away from the forklift until a moment before the collision, when he "attempted to start walking and at the same time looked and he got struck." Tr. 171. If there were anything in the record to support an inference that the forklift would not have run Kim over if he had been walking rather than talking, we would not [8ASR2d149] overrule such an inference on the part of the trial court. On the contrary, however, the record supports the trial court's conclusion that the forklift driver would have run over a person in the spot where Kim was standing regardless of what that person was doing.

Although counsel for Star-Kist theorizes that Kim may have stepped backward into the path of the forklift, the trial court did not so conclude and it is doubtful whether the evidence would support such a conclusion. The trial court's finding that the driver was negligent is supported by testimony that the scow was overloaded so as to block his vision, and by an exhibit consisting of an internal Star-Kist report recounting the testimony of the same witness to the same effect. Once Kim had proved the negligence of the driver, the burden was on Star-Kist to present evidence on the basis of which the court could conclude that Kim's own negligence contributed to the accident. In the absence of such evidence, the attribution of negligence to Kim amounts not to a finding of fact or an inference from the facts but to a legal conclusion equivalent to the imposition of strict liability on experienced fishermen who venture onto wharves. Accordingly, we reverse this part of the trial court's opinion.

II. Independent Negligence of Star-Kist

Appellant also argues that the trial court failed to rule on whether Star-Kist itself was negligent in failing to provide a traffic control system on the wharf. If the Court had found such negligence on the part of Star-Kist in addition to the negligence of the forklift driver, it might have affected the calculation of the extent to which Kim's negligence caused the accident.

We note, however, that appellant did not raise this issue in his motion for a new trial. He did allude in a memorandum to the absence of traffic controls or safety precautions, but this was solely in support of a contention that the trial court erred in finding Kim negligent at all. We are therefore without jurisdiction to reverse the trial court on the ground that it did not find Star-Kist independently negligent. [8ASR2d150]

A motion for new trial is a statutory prerequisite to an appeal. A.S.C.A. § 43.0802. All motions must "state with particularity the grounds therefor." T.C.R.C.P. Rule 7. This is particularly important in the case of a motion for new trial, one of whose purposes is to avoid unnecessary appeals by alerting the trial court to possible errors or omissions in its opinion.

This case illustrates the wisdom of providing such a procedure. If the appellant in this case had pointed out to the trial court that its opinion did not address the question of Star-Kist's independent negligence, the trial court would presumably have proceeded to address the question. The trial court might have found Star-Kist independently negligent and reduced the comparative negligence of Kim accordingly; it might have found independent negligence and yet, upon reassessment of all the facts, not reduced Kim's comparative negligence; or it might have found no independent negligence. In any case the trial court would have had the opportunity to explain its position, and the reviewing court would not be left to speculate about why the question was not addressed.

Our finding that appellant was not negligent, however, effectively relieves him of the consequences of his failure to allege independent negligence as a ground for new trial. He will now be at least as well compensated for his injuries as he would have been if the trial court had found Star-Kist independently negligent.

III. Damages

Appellant also urges that the damages awarded for pain and suffering ($80,000) and for diminished earning capacity ($15,000) were too low.

The court found that Kim's eye socket injury would prevent him from working as a fisherman, since the consistent exposure to wind and water presented the risk of further injury to the eye. He is, however, able to engage in any occupation not presenting such risks. Kim is 48 years old. There was evidence that fishermen at this level generally make about $14,000 per year; the evidence concerning the terms of his own employment would have supported an even lower figure. It was also unclear whether Kim would have continued to be [8ASR2d151] employed as a fisherman at the conclusion of his current contract if the accident had not occurred. The trial court's estimate of $15,000 in diminution of future earnings was not clearly erroneous.

With regard to damages for pain and suffering, appellant contends that $80,000 is lower than courts in most American jurisdictions would award in the circumstances of the present case. This may be true; it is also probably true that $80,000 is higher than most other Pacific jurisdictions would award. None of these attempts to put a dollar value on human suffering is objectively right or wrong. The disparity from place to place is accounted for by many factors, including variations in the amount of goods and services that money can buy and in social attitudes toward pain. That trial judges in American Samoa tend to award lesser sums than those in Texas or California no more suggests that awards in Samoa should be higher than that those in Texas should be lower.

The award we are reviewing, as it happens, is one of the largest awards for pain and suffering in the history of American Samoa. It is beyond our authority to increase the award unless it was clearly erroneous. A.S.C.A. § 43.0801. It was not.

Conclusion

The decision of the trial court is reversed insofar as it found the damages to have been partly attributable to the negligence of the appellant. In all other respects the decision is affirmed.

It is so ordered.

*********

* Honorable Samuel P. King, Senior Judge, United States District Court for the District of Hawaii, serving by designation of the Secretary of the Interior.

** Honorable Alan C. Kay, Judge, United States District Court for the District of Hawaii, serving by designation of the Secretary of the Interior.

In re Two Minor Children (Juv. Nos. 56-87, 57-87),


In re TWO MINOR CHILDREN

High Court of American Samoa
Trial Division

JUV No.56-87
JUV No.57-87

August 24, 1988

__________

Proceedings to terminate parental rights upon ground that the children are neglected and dependent are adversarial in nature, in contrast to relinquishment proceedings which are voluntary. A.S.C.A. §§ 45.0115, 45.0103, 45.0401.

Court would not terminate parental rights on ground that the children are neglected and dependent where, although the parents had not provided for the children, they left the children in the care of grandparents due to economic necessity and have shown no deliberate disregard for their parental duties.

Court will not order relinquishment of parental rights until it is satisfied that the relinquishing parent has been counseled and fully advised of the consequences of relinquishment. A.S.C.A. § 45.0402(d).

Court could not make the required finding that an order to relinquish only the mother's parental rights was in the best interests of all parties concerned where, although the mother appeared and testified that she appreciated the consequences of relinquishment, the father did not appear and the petition did not anticipate a piecemeal approach to the termination of parental rights.

Before KRUSE, Associate Justice, TAUANU'U, Chief Associate Judge, and TUIAFONO, Associate Judge.

Counsel: For Petitioners, Isa-Lei F. Iuli [8ASR2d76]

The maternal grandparents of the two minor children petition the Court to terminate the natural parents' rights to the children. At the time of the filing of the petition, the natural parents were residing in the State of Hawaii and they had jointly executed a document acknowledging service of the petition and purporting to surrender their parental rights to the children in favor of eventual adoption by the grandparents. The document further asserts waiver of their right to further notice and to be heard. At the hearing of the petition the mother was however present along with her parents and the subject children.

The background facts are that the parents and the grandparents were all at one time residing in Hawaii where the children were born. Upon the birth of each child the grandparents assumed their care and upbringing. The mother testified that, at the time, she and her husband were working and were preoccupied with employment and other activities whereby the children were left to the care of the grandparents.

Presently, the children, the grandparents and the mother are residing in Samoa, while the father is attempting to secure (yet unsuccessfully) employment in the State of Washington. It is the mother's intention to rejoin the father upon his gaining employment and being settled. In the meantime the parents are not in a position to provide the appropriate care and time for the children which continues to be provided by the grandparents. Accordingly, the parents are willing to permit the adoption of their children principally, as we find it, on the sentiment that the grandparents have taken charge of the children since birth.

DISCUSSION

The petition seeks the "termination " of parental rights under A.S.C.A. § 45.0115 (a)(3)&(5) upon the grounds that the children, vis a vis the parents, are "neglected and dependent. " Al though the parents have not provided for the children, we cannot conclude on this fact alone that the children are necessarily "neglected and dependent" within the meaning of the statute. A.S.C.A. § 45.0103 (19) defines the concept of "neglected and dependent" in a number of contexts which as [8ASR2d77] outlined by the Fono typify those classical instances whereby normal parental consent may be dispensed with or whereby parental rights may be properly considered as forfeited because of deliberate failure on the part of the parents in their responsibilities toward their child. The proceedings envisioned are adversary in nature as distinct from "relinquishment" proceedings provided under A.S.C.A. § 45.0401 (a)(2), which are voluntary in nature.

Although the evidence showed that the natural parents had not provided for the children, the circumstances were not those of forfeiture nor such as rendered the minors "neglected and dependent" within the meaning of the statute. As we view the testimony of the mother, the ostensible inaction with respect to the children was plainly in reliance on the fact that the grandparents were at all relevant times ready, willing, and able to provide substitute parental care to the minors. The mother acknowledged her agreement to these proceedings only because it is her parents who were petitioning, and stated that if some unfortunate malady were to befall her parents, then the most natural thing to do would be for her and the husband to take over the children's care and needs.

These are not the sort of circumstances addressed by the "termination" statute. There is no conduct on the part of the parents which evinces their deliberate disregard for parental duty nor points us to any settled intention on their part to forgo and forsake the children. Indeed, given the temporary economic difficulties facing the natural parents, the surrender of their children to the better care provided by the grandparents points us to the opposite conclusion. To thus allow this petition for termination on the bare ground that the parents have not provided for the children, would be to do mischief with the statute.

On the other hand, the Court is unable to provide relief by treating the petition as one of voluntary "relinquishment" of parental rights . The evidence received does not sustain such relief. Among other things, A.S.C.A. § 45.0402 (d) requires the court to be "satisfied that the relinquishing parent has been counseled and fully advised of the consequences of [seeking relinquishment]", before such an order may be made. As may be gathered, the father of the minors did not appear at the hearing [8ASR2d78] and accordingly there was no opportunity for the Court to make the assessment required by the mentioned enactment. While the mother did appear and testified to the effect that she appreciated the consequences of termination, we are hesitant to conclude that terminating the mother's parental rights alone would be consistent with a finding that such an order would be in the "best interests of all parties concerned" as required by section 45.0402 (f). Insofar as can be ascertained from the testimony and the written consent filed by the parents, a piecemeal approach to terminating parental rights is, we feel, not anticipated in the petition. The petition is denied.

It is so ordered.

*********

In re Matai Title “Sotoa”,


LEIFITELE S. SOTOA and Members of
the Sotoa Family, Plaintiffs

v.

SOTOA S. SAVALI and Members of the
Sotoa Family, Defendants

[In the Matter of the Matai Title "SOTOA"
in the Village of Ta'u]

High Court of American Samoa
Land & Titles Division

MT No. 3-86

July 7, 1988

__________

Court deciding matai title disputes is not required to consider the views of the village, county or district councils except to the extent that they are evidence of facts that are relevant to issues properly before the court. A.S.C.A. § 1.0401 et seq.

In matai title dispute, recognition or non- recognition of matai by village, district, and county councils were properly before the court only insofar as might be relevant to whether the matai had wilfully failed to comply with customary [8ASR2d11] requirements and formalities for acceptance and recognition by the village.

Village, county, and district councils have no power to veto a court decision, rendered after trial in accordance with statutory procedure, that a particular person is entitled to hold a matai title. A.S.C.A. § 1.0401 et seq.

Court could not find that family members had wilfully disobeyed its prior order enjoining them to cooperate with matai where that order had not been clearly explained to them.

Before KRUSE, Associate Justice, TAUANUtU, Chief Associate Judge, AFUOLA, Associate Judge, TUIAFONO, Associate Judge, and VAIVAO, Associate Judge.

Counsel: For Plaintiffs, Charles Alatilima
For Defendants, Tautese P. Sunia

This matter came on for further hearing before the Lands & Titles Division upon remand from the Appellate Division in Sotoa v. Sotoa, 6 A.S.R.2d 91 (1987). A clear summary of the background to this case is outlined in the Appellate Division's decision entered November 11, 1987 and we do not propose to restate that background here. It is sufficient for our purposes to note that while the trial court's decision denying a petition to remove Sotoa Savali from his title was upheld, the Appellate Division did modify so much of that decision as follows:

1. The petition will be denied insofar as it seeks the removal of the Sotoa title from Sotoa Savali.

2. Insofar as some petitioners may be genuinely concerned that Sotoa Savali has not yet complied with the traditional requisites for assumption of the Sotoa title, however, the petition has merit.

3. Sotoa Savali must therefore act with all deliberate speed to organize the familyand to assume the Sotoa title in accordance with custom.

4. Sotoa is further directed to use his best efforts to effect a genuine [8ASR2d12] reconciliation among all members of the family, including Sinapati and those who have supported him.

5. All parties to this action and all those acting in concert with them are enjoined from interfering in any way with the exercise by Sotoa Savali of the rights and functions appurtenant to the Sotoa title, and are further enjoined to co-operate with him insofar as their co-operation is a traditional prerequisite to the exercise of such rights and functions. This injunction includes but is not limited to an absolute prohibition of the use of the Sotoa title or of the exercise of any of its functions or perquisites by any other person.

Id., 6 A.S.R.2d at 96.

The Appellate Division further Ordered that:

6. The case is remanded to the trial court with instructions to hold a hearing in about six months to determine whether the parties have complied with this judgment and to take such further action as is appropriate at that time.

Id. Consistent with our mandate, a hearing was held on June 8, 1988.

DISCUSSION

Defendant/Appellee, Sotoa Savali, related a diary of his actions since the date of the appellate court's decision and we find that he had done as follows:

That shortly after his personal receipt of the appellate court's decision, he had gathered at his residence in Tafuna those members of the Sotoa family in his support to review and discuss the said decision and its requirements. This meeting concluded with the consensus that Sotoa Savali should first seek conciliation with plaintiff/appellant Sinapati Sotoa.

Immediately, Sotoa Savali made several attempts to contact Sinapati Sotoa who proved to be[8ASR2d13] elusive and difficult to contact even to the appearance of engaging in the nursery game of "hide and seek." When the latter's household in Manu'a would advise his absence there and presence on Tutuila, his Tutuila household members would at the same time advise that Sinapati was in Manu'a. The same sort of response was received from a fellow employee of Sinapati's in Manu'a when his office was called. On another occasion when calling at 6:00 a.m. Sotoa Savali testified that he finally reached Sinapati by telephone at his home. After Savali had been asked who was calling and had identified himself, the answering voice he knew to be Sinapati's stated that Sinapati had travelled to Tutuila.

It was not until the first week of December, 1987 that Sotoa Savali was finally able to physically confront Sinapati because both had responded to a district meeting called by Senators Tufele and Lefiti concerning hurricane relief demands sought by the people of Manu'a. Venue for this meeting was the Fono guest house on Tutuila. At the conclusion of this meeting Sotoa Savali requested of Sinapati the opportunity to meet and discuss the family's situation. The meeting was cordial but Sinapati advised that they would get together at a more suitable time and to contact him another day.

Sotoa Savali at this period of time was operating under a timetable suggested by the family members in his support for a meeting of the family in Manu'a for the month of January 1988. Subsequent to the brief discussion with Sinapati, Sotoa Savali travelled to Manu'a on or about December 17, 1987. Sinapati was not available, being at work. However, Sotoa managed to get hold of Talking Chief Togotogo, the senior orator of the Sotoa family. He took up with Togotogo the wording of an appropriate public notice for the family meeting, seeking his suggestions as to time and venue. On venue of the meeting Sotoa inquired of Togotogo's guest house, this being the only structure within the family that would reasonably accommodate a family gathering. Togotogo advised that it would be made available; however, on the timing of the meeting and wording of the notice, Togotogo suggested that Sotoa Savali work out the wording himself and that Togotogo as the signatory to the notice would review the draft at another day. Sotoa Savali departed that day for Tutuila [8ASR2d14] and left word that he would attempt to contact Sinapati the following. The attempt to contact Sinapati the next day was the 6:00 a.m. call we mentioned above.

Sotoa Savali visited and talked to various family members and elders regarding the proposed meeting. He was cordially received even by Sinapati's immediate relatives. He was counseled by some of the elders however that reconciliation can only be achieved if there is first a reconciliation with those family members living in Manu'a Sinapati and those in his support. (1) This of course was difficult to approach given the lack of enthusiasm exhibited by Sinapati and his faction.

Sotoa Savali's next meeting with Talking Chief Togotogo regarding the notice revealed a change of heart in the orator. He declined to be the signatory to the announcement and although he attempted to dissuade Sotoa Savali from the use of his house as venue for the meeting, he nonetheless was open to the use of his house. Sotoa then sought the counsel of Talking Chief Atiu, a ranking orator in the district, who advised him that a family meeting would be more appropriate in the month of February, 1988. The month of January not only involved the events of the New Year but a memorial service on the anniversary of the hurricane Tusi had been scheduled by the district council for January 17, 1988. The advice was heeded.

For the two weeks prior to the appointed day for the family gathering, a notice under the name of Sotoa Savali was regularly broadcast over the radio station. Sotoa testified that in the[8ASR2d15] meanwhile he was assured by certain orators that Sinapati would attend the meeting and he made no further attempts to contact Sinapati.

Those members of the family who had traveled to Manu'a for the meeting found the hospitality uncharacteristic. The expected venue for the family meeting was temporarily secured from entrance with roofing iron and Talking Chief Togotogo was conspicuously absent. The meeting was in fact conducted in a makeshift tent shelter, and while some of the family members resident in Manu'a attended the meeting, Sinapati and his resolute supporters stayed away. It was learned (and confirmed on the witness stand by Togotogo) that the absentees had their own prior family meeting which ended with the consensus to absent themselves.

Two matters of significance arose with the family gathering. One was the presentation of the ava cup to Sotoa Savali; and secondly the family was resolved before the programming of any further family affairs that a family guest house be first erected to avoid the further indignity of having to meet under a tent.

The testimony further revealed that the paperwork with plans and building permits had been secured and that a guest house was the first order of business before attempting a traditional installation of the title. This was the explanation (or as viewed by the other side, the excuse) given for postponement of a traditional installation.

The opposing testimony was not to the contrary save the rebuttal by Chief Lefiti to the extent that he had not previously discussed affairs of the family with Sotoa Savali as the latter had claimed. Chief Lefiti recalled several discussions with Sotoa but on matters unrelated to the family.

The evidence for plaintiff/appellants focused not on Sotoa's actions and attempts to organize the family and assume the title Sotoa, but rather upon the results of those actions as they viewed them.

The merit of their argument is beyond our mandate. Even so, there is absolutely no rational appeal to the argument which in essence states: that defendant is unqualified as the matai because[8ASR2d16] he has not achieved harmony within the family, the proponents of the argument themselves being antithetical to such harmony. The evidence was patently clear to this effect and outstandingly disastrous to plaintiffs/appellants' cause was witness Malila Tunupopo's display of obstinacy with gross exaggeration on the witness stand as well as Talking Chief Togotogo's open inclination to defy court orders. (2)

These witnesses made clear that any attempts at harmony would be meaningless at the outset with this faction. Certainly in terms of Sotoa Savali's efforts, this hearing has affirmed what the Appellate Division alluded to as "obstructionist" tactics on the part of plaintiffs/appellants.

Connected to this argument of qualification is the claim that Sotoa Savali would not achieve formal recognition by the village and district (the "faletolu") whereas his opponent Sinapati has. In Chief Galea'i's testimony, he likened the current situation of the family's title within the village, county, and district to that of a baseball being parlayed back and forth among a number of players.

While the allegorical reference impresses the point that family dignity has suffered greatly, yet the Court finds itself without any evidence of any ameliorative action towards a restoration of that dignity from the side of plaintiff/appellants except for the naked alternative that: it is us or no one at all.

This family had failed in its primary duty to appoint a matai in accordance with custom. With the convenient availability of the judicial framework, the matter was taken to Court. Judicial proceedings involving matai title disputes have been statutorily circumscribed by the Fono. A.S.C.A. §§ 1.0401 et seq. The statute not only governs disputed claims to succession, (1) but also provides for removal of an incumbent from title for [8ASR2d17]

cause. (2) In our review of the various criteria exacted by the Fono for the Court's consideration we find no legislative attempt whatsoever to include within those criteria the consideration of the views of the village council, the county council, nor indeed the district council, except possibly insofar as those views may be evidence of facts relevant to issues properly before the Court. To the extent that those views may be factually relevant, they were given full consideration by the trial court as well as by the Appellate Division in review. Indeed the claim by Sinapati and his followers that they had gained traditional recognition was found by the appeal court as not sustained by the record.

Under our mandate, the views of the various traditional councils are issues of fact properly before us to the extent that any matai appointee, whether by the family itself or as the result of court decision, is required to undergo certain customary requirements and formalities before there is acceptance and recognition by the village to which that title pertains. Certainly if the evidence here revealed a wilful or purposeful refusal by Sotoa Savali to comply with such customary requirements then there is a basis for relief in favor of plaintiff/appellants pursuant to the Appellate Division's mandate. (See Paragraph three (3) of the Appellate Division's Order. ) Beyond that, however, we reject any possible suggestion to the effect that there is some sort of absolute veto power reposed with the traditional council which may nullify the trial court's conclusion in favor of another appointment in accordance with the wish of the council. We find no basis for such a contention within the pertinent enactments.

On the evidence before us we are unable to find any wilfulor purposeful failure on the part of Sotoa Savali with regard to the requirements of custom. The testimony tendered by Sinapati and his followers with regard to custom was too obviously biased. It varied from conclusionary statements that custom was not followed to inconsistent statements of what was in fact custom. For example, the main point of contention given by plaintiff/appellant was that Sotoa Savali is not [8ASR2d18] recognized according to custom because he has yet to be admitted to the "faleula. " While we accept this as a requirement of custom in Manu'a we are unpersuaded that custom dictates the immediacy of this as prerequisite to recognition. The testimony was clear on a number of other instances regarding past and current matai appointees who have been given customary recognition pending admission to the faleula.

What in essence was being suggested to the Court was the selective enforcement of custom, and highlights the all too recurring tactic by disaffected litigants of canvassing their sl~bjecti ve views on custom as i t sui ts their convenience. As noted by the Appellate Division:

This Court has become all too familiar with the contention that a law enacted by the Fono can be violated or ignored whenever the person who does not like it claims that the law is contrary to custom or tradition.

Sotoa, supra, 6 A.S.R.2d at 94. This sorry attitude is viewed as even more wretched given the number of leading legislators who have come from the Sotoa family.

While we necessarily hold in the converse that Sotoa Savali's actions and attempts have sufficiently assured this Court of his definite plans to fully comply with the requirements necessary for customary recognition, and while we have not been persuaded on the immediacy of a traditional timetable for compliance, we are also mindful that such plans are not obviously free of the subjective. However, should Sinapati Sotoa and his followers continue to focus effort and energy to negate Sotoa Savali's plans for customary compliance and to impede the possibility of harmony within the family as a whole, then they cannot continue to be heard to complain. In these circumstances there is much wanting in the way of sincerity, if not honesty, with the continuing claim that there is no tranquility or dignity in the family and therefore the matai should be removed. Harmony involves more than the matai's efforts and on the facts before us the asserted lack in harmony among the family is not a fact which is attributable to the matai. [8ASR2d19]

Finally, our record substantiates the finding that the injunctive provisions of the Appellate Division's Order were not followed by certain of the complainants and those in active concert with them. We are not able to find however at this point that there has been wilful disobedience as the testimony led us to the conclusion that the decision was not clearly explained to those family members comprising the plaintiffs/appellants. The misconception was readily apparent that the appellate remand was solely towards policing the matai and his attaining harmony within the family as well as his completing the customary requirements for title recognition within a six (6) month period. In a group setting where passion was evident, it takes merely one with erroneous impressions to influence the group with the wrong, albeit popular, interpretation. Energy was accordingly misplaced to hamper the matai from doing what he was ordered to do.

Certainly in this light plaintiff/appellants cannot be heard to complain. After their noncompliance with the Order to cooperate and not to interfere with the matai's attempts, the argument that the matai is afoul of the Order sounds rather empty in substance.

CONCLUSION

In response to our mandate, we find on the facts that:

(a) Sotoa Savali has undertaken with deliberate speed to organize the family and to assume the title Sotoa in accordance with custom.

(b) Sotoa Savali has used his best efforts to effect a genuine reconciliation among all members of the family including Sinapati and those who have supported him.

(c) There has been a definite failure on the part of Sinapati Sotoa and some of his supporters to observe the enjoined cooperation required of them under paragraph five (5) of the Appellate Division's Order.

(d) Plaintiff/appellants or some of them did not have the benefit of a full explanation of the extent of the decision of the Appellate Division. [8ASR2d20]

The following Order is entered accordingly:

1. Counsel for plaintiffs/appellants shall cause to be properly and fully explained to each and everyone of his clients including those in their active support and concert, the entire Opinion and Order of the Appellate Division entered November 10, 1987 in Leifitele Sinapati Sotoa and Members of the Sotoa Family v. Sotoa S. Savali et al. AP. No. 20-86.

2. Counsel shall within 60 days of date hereof certify in writing to the Court the names and addresses of those individuals given an explanation as above ordered.

*********

1. Evidently since the appellate proceedings, Sinapati Sotoa has established Ta'u as his primary place of residence and employment. This fact was not apparent on the record before the Appellate Division. Among the arguments advanced against Sotoa Savali was that he had not moved to Ta'u which is the historic seat of the Sotoa title. In response Sotoa Savali pointed out that indeed most of the family including the leaders of the litigation all resided in Tutuila and would only return to Ta'u for ceremonial occasions.

2. The orator was quick to point out that the Appellate Division's decision was not fully explained to him, significantly the injunctive provisions.

1. A.S.C.A. § 1.0409.

2. A.S.C.A. §§ 1.0411, 1.0412.

In re Estate of Salanoa,


In re ESTATE OF AOFAGA SALANOA

FUAILELA AOFAGA SALANOA, Petitioner

High Court of American Samoa
Trial Division

PR No. 26-86

July 18, 1988

__________

Surviving spouse who received funds belonging to deceased husband, under statute providing for the simplified administration of small estates, was required to pay his debts and funeral expenses and to distribute the remainder of the funds to his legal heirs. A.S.C.A. §§ 40.0334 et seq. [8ASR2d27]

Surviving spouse who received funds belonging to deceased husband under statute providing for the simplified administration of small estates, and who used the funds to purchase a pickup truck rather than distributing them to legal heirs, would be required to restore the funds. A.S.C.A. §§ 40.0334 et seq.

Adult heirs were competent to decide whether to seek recovery of their share of decedent's estate from surviving spouse who had spent. the funds in the estate, but minor heirs could not waive their share of the estate; accordingly, surviving spouse would be required to restore funds to minors' trust accounts. A.S.C.A. §§ 40.0334 et seq.

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

Counsel: For Petitioner, Asaua Fuimaono

In 1986 the Court granted petitioner's request for authority to receive funds belonging to her deceased husband, to pay debts and funeral expenses, and to "distribute the balance if any, to the person or persons entitled thereto pursuant to law." Such a transfer is authorized by territorial law when a decedent left property in an amount less than $10,000. A.S.C.A. §§ 40.0334 et seq. The Court granted the petition on two conditions: that the share of the estate to which each minor child was entitled be put in to a trust account for that child, and that the Court be notified of petitioner's compliance with its order. When over a year had gone by and the Court had received no notice of petitioner's compliance, it ordered the petitioner to report on the disposition of the estate.

In her response and her testimony at a subsequent hearing, petitioner testified as follows:

1) She received $9,583 from the government in compensation for certain claims the decedent had made.

2) Two of the decedent's six children were minors. [8ASR2d28]

3) Petitioner did not comply with the Court's order to open trust accounts for the two minor children.

4) She paid $2800 to South Pacific Airways "to payoff air fair loans to SPIA of my children and me to bring my deceased husband to the states." She spent approximately $4,583 on a pickup truck. She paid her attorney $500. She paid about $2000 for funeral expenses. She also paid $500 to each of the four adult children and $200 to each of the two minor children.

5) The Court notes that these numbers add up to $12,283. This is $2700 more than petitioner admits receiving and $2,283 more than she is permitted to receive under A.S.C.A. §§ 40.0334 et seq. without a formal administration of the estate. The discrepancy may have been resolved by petitioner's testimony at the hearing, which gives the impression that she may have been wrong in her earlier report to the Court that she distributed $2400 to the six children. This $2400 appears to have been part of the $4500 or so that was spent on the pickup truck.

6) No mention was made of the funds in decedent's savings account, Bank of Hawaii account # 6034-716623, which petitioner had sought and been given authority to receive and transfer to the heirs.

In order to remedy her failure to comply with the Court's original order, petitioner must transfer an amount equal to the total amount in the estate, minus legitimate expenses, to those entitled to it by law. We find these expenses to include the $2000 for funeral expenses and the $500 attorney fee. On the present record it appears that the $2800 paid to SPIA may have included more than just the charges for transportation of decedent's body from California to Samoa; only $1000 of this amount will be allowed unless petitioner submits to the Court within 30 days an itemized receipt or other documentation showing a larger expenditure on this item.

This leaves $6083 (that is, $9583 minus $3500) as the amount that should have been distributed to the heirs, Petitioner herself as the surviving spouse is entitled to 1/3 of that amount, or [8ASR2d29] $2027.67. See A.S.C.A. § 40.0103. The remaining $4055.33 should have been distributed equally among the six children. Each child should have received $675.88. If this amount had been placed in a trust account by January of 1987, each child's share would now be worth $727.42 including accrued interest at five per cent.

The Court need not concern itself at this time with petitioner's obligation to the adult children, who are legally competent to decide whether and how to seek payment of this obligation. This Court must insist, however, that petitioner comply with the original order that a trust account be established for each minor child.

Petitioner is therefore ordered to do as follows:

1) Submit to the Court no later than thirty days from the date of this order any documentation of expenses for the transportation of the decedent's body, unless she accepts the Court's estimate of $1000;

2) Submit to the Court a report on the status of the decedent's savings account and of any funds that have been withdrawn from the account;

3) Pay to the Clerk of the High Court the amount of $100 on or before August 31, 1988, and on or before the last day of each month thereafter. The Clerk will deposit these funds into trust accounts for each of the two minor children. Petitioner's obligation to make monthly payments will cease when she has paid the amount she was originally ordered to hold in trust for the two children, plus accrued interest at five per cent. Depending on the information petitioner provides the Court in connection with items (1) and (2) of this order, her payments should continue for a year or slightly longer. The Clerk will provide petitioner with a report on the status of the accounts every six months.

It is so ordered.

*********

Ieremia; Bank of Hawaii v.


BANK OF HAWAII, Plaintiff

v.

MEKELI IEREMIA, Defendant

High Court of American Samoa 
Trial Division

CA No. 47-88

October 24, 1988

__________

Court would not sign consent judgment where one party was represented by counsel, other party was unrepresented, consent judgment required unrepresented party to pay attorney fee that would not have been awarded if the case had been litigated, and court could not be sure that the principal amount had been correctly calculated.

Evidence of amount of debt, presented in support of motion for default judgment or similar summary proceeding, should consist not of conclusory affidavit by attorney, but of bank ledgers and[8ASR2d178] other direct evidence from which court can conclude for itself whether the amount has been correctly calculated.

Signature by person unrepresented by counsel on document designated as settlement or consent judgment does not automatically entitle the document to judicial enforcement without prior judicial scrutiny.

Signature of judge on a court order certifies that the judge has in fact exercised his judgment, that the premises of the order are true, that the order itself is lawful, and that it is appropriate under all the circumstances that the order be given the force of law.

Risk of abuse inherent in consent judgments ordinarily outweighs their usefulness as a means of saving time, at least in a jurisdiction where trial court routinely resolves uncontested matters by means of brief evidentiary hearings a few days after suit is filed.

Before REES, Chief Justice.

Counsel: For Plaintiff, Roy J.D. Hall, Jr.

On Request for "Consent Judgment" :

Counsel for plaintiff submitted to the Court a proposed "consent judgment" to which the defendant, who was unrepresented by counsel, had stipulated. The judgment would have been for $5,341, said to be the amount still owing on a loan from plaintiff to defendant, plus attorney's fees in the amount of $55, and post-judgment interest at the rate of 14.55%.

At least since 1986 the Court has been most reluctant to sign "consent judgments." This reluctance stems partly from out experience with "clerk's default judgments." Prior to its 1987 amendment Rule 55 of the Territorial Court Rules of Civil Procedure allowed the clerk to enter judgment although no judge had so much as looked at the complaint, provided that the amount sought in the complaint was fully liquidated. It was discovered, however, that some creditors were routinely filing affidavits that overstated the "principal amounts" [8ASR2d179] due on contracts, often by including as part of the "principal amount" attorney's fees for which there was no contractual or other legal basis. In other words, the summary process provided by clerk's default judgments was being used not just to save time and expense where the facts were not subject to dispute, but to recover amounts that would not have been recovered if a judge had looked at the case.

Another problem with consent judgments, at least where one party is unrepresented by counsel, is that some people will sign anything. This is especially true in Samoa. As the Court observed in Development Bank v. Ilalio, 5 A.S.R.2d 110 (1987):

Courts and commentators in the United States have long remarked the ease with which people can be induced to sign adhesion contracts containing the most draconian kinds of provisions, including waivers of important substantive and procedural rights in the event of litigation. This phenomenon is particularly pronounced among people in the lower economic strata; indeed, it is the phenomenon that gave rise to the doctrine of unconscionability and other mitigating devices. It is particularly strong in this Territory.

In the Samoan culture it is considered somewhat impolite to refuse almost any request, including a request to give away large amounts of money or other property. Avoidance of immediate conflict, with the possibility that real agreement can be reached at some time in the future, is greatly preferred to a direct refusal. This is especially true when a request is made by someone with a claim to superior social status or to official authority.

A related phenomenon is an unusually strong desire to avoid courts, which are authoritative and powerful yet mysterious, untraditional, and somewhat foreign. A threatened lawsuit therefore has a far more vivid ad terrorem effect on a person of limited means and sophistication in Samoa than it would [8ASR2d180] have on the reasonable person in New York. It is inconceivable that an institution doing business in the Territory could remain unaware of this for very long, and the High Court cannot ignore it either.

Id. at 127-28 n.10.

Ilalio concerned a "settlement" that had been signed by a debtor who later testified that while he had borrowed some money from the plaintiff, he had not borrowed nearly as much as he agreed to pay in the settlement. The Court gave judgment for defendant, noting that courts will not ordinarily enforce such an agreement when

(1) the party that drafted and pressed for the "settlement" is a business entity experienced in and familiar with such transactions; (2) the other party is an individual who has no such experience or familiarity and who generally signs the document without benefit of legal counsel; (3) the transaction was a whirlwind settlement in which there was no evidence that the weaker party negotiated, deliberated, or fully understood what he was giving up, and in which the stronger party employed threats or promises (usually threats or promises to do things that the stronger party had a legal right to do) to encourage a quick decision; and (4) the exchange was lopsided, consisting of the surrender of potentially valuable legal rights by the weaker party in exchange for a small sum or other trivial consideration from the stronger party.

l.d. at 124-25 n.8.

Although the Court knows very little about the circumstances of the present case, it appears from the documents with which we have been presented that if the "consent judgment" now presented to us had instead been sued upon as a settlement, it would have been at least partly unenforceable. The defendant agrees to pay a $500 attorney's fee, although the documentation submitted by the Bank upon the Court's request contains no contractual provision for attorney's fees. [8ASR2d181]

It also appears that the defendant made partial payment on the loan before suit was filed. We have no evidence of how much he paid, however, other than the bare assertion of the amount presently due. This assertion is contained in an affidavit not by an officer or employee of the plaintiff bank but by its attorney. At least in cases where there is any possibility at all that the amount due has been miscalculated, the Court should see the evidence itself (rather than the attorney's conclusion from the evidence) before rendering judgment. The usual way in which this is done is by submission of a bank ledger as an exhibit. The Court examines such ledgers in default hearings on the average of once or twice a week; it takes five or ten minutes.

That a defendant unrepresented by counsel signed something called a "consent judgment" rather than a " settlement " hardly suggests that the document should escape judicial scrutiny. When a judge signs his name to a court order he certifies that he has in fact exercised his judgment. He affirms not only that the premises of the order are true and that the order itself is lawful, but also that it is appropriate under all the circumstances that whatever the order requires should be given the force of law. Such an event should be worth a few minutes of the judge's and the attorney's time in open court.

This is not to suggest any impropriety on the part of the plaintiff. The Bank of Hawaii is a reputable institution and its attorney is a reputable attorney. Indeed, the writer of this opinion regards it as overwhelmingly likely (although he lacks the personal knowledge that would be necessary to certify) that the facts of this case are exactly as represented by counsel in his affidavit. If anything is forbidden to judges, however, it is to apply one set of rules to people we know and respect and another set to other people. Except in extraordinary circumstances not presented here, the risk that the "consent judgment" device will be abused outweighs its usefulness as a means of saving time.

If defendant is honoring the agreement that was the basis for the requested consent judgment, then perhaps plaintiff does not need a court order. If an order is needed because defendant has not

[8ASR2d182] honored the agreement or for some other reason not reflected in the present record, plaintiff can move for a default judgment which can be had in ten days.

The request for a consent judgment is denied.

*********

Leti v. Immigration Bd.


Filing of a petition for review of an immigration board decision does not automatically stay a final order of deportation made by the board. A.S.C.A. § 41.0646.

Court should grant an interlocutory stay of an administrative board decision only if there is a substantial likelihood that the petitioner will prevail on the merits and the petitioner will be greatly or irreparably injured if the stay is not granted.

Under territorial immigration statute, the immigration board determines only whether an alien is deportable; the decision actually to deport a deportable alien is within the discretion of the attorney general. A.S.C.A. § 41.0616.

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

Counsel: For Petitioner, Asaua Fuimaono
For Respondent, Enere H. Levi, Assistant Attorney General

Per Curiam:

On August 12, 1988 the respondent, Immigration Board of American Samoa, entered a deportation order against the petitioner, Leveli Leti, a nationalof Western Samoa. The board found that the petitioner had unlawfully acquired employment [8ASR2d108] in the territory in violation of A.S.C.A. § 41.0409 and concluded that this violation warranted deportation under A.S.C.A. § 41.0616 (16). A motion for reconsideration was denied by the board, as more fully appears in its decision filed September 2, 1988.

Petitioner seeks judicial review of the deportation order and moves to stay the deportation order pending final disposition hereof. A petition for review does not automatically stay a final order of deportation by the board. A.S.C.A. § 41.0646. We therefore granted an expedited hearing on the interlocutory matter.

After careful consideration of the submissions of counsel and of the matters on file we conclude that a stay should be granted.

As noted above, the board relied on A.S.C.A. § 41.0616 (16) as authority for its deportation order. We note that the enactment reads as follows:

Any aliens [sic] in American Samoa,
including an alien crewman, shall, upon
the order of the attorney general, be
deported, who:

. . . .

(16) has [sic] violated any provision of
this title or regulation of the board, in
addition to any other penalty which may
be imposed under any provision of the
law.

(Emphasis ours.)

This section, unlike some other sections of the immigration law, clearly requires the involvement of the attorney general himself. While the board acted within its power in determining whether the petitioner had committed any of the acts under which the statute defines him as "deportable," the statute does not require that every "deportable" alien actually be deported. (1) [8ASR2d109]

The petitioner in this case appears to have been found deportable because he committed a minor technical violation of the immigration law. He had obtained the requisite written permission from the immigration board to be employed by his sponsor as a bus driver. It appears that his sponsor's bus broke and petitioner began working as a driver for one of his sponsor's relatives who also owned a bus, without having obtained a second written permission from the board. Counsel for petitioner argues that the case would never have been prosecuted by the immigration department had it not been for the fact that a brother of an immigration department employee had a score to settle with petitioner.

None of these arguments may avail the petitioner in his appeal to the High Court, which is limited almost exclusively to the correction of errors of law by the board. They are the very sorts of factors, however, that might inform the discretion of an executive official who must decide whether to deport someone who has been found to be deportable.

An interlocutory stay should be granted only if there is a substantial likelihood that the petitioner will prevail on the merits and the petitioner will be greatly or irreparably injured if the stay is not granted. In this case deportation will mean the loss of petitioner's livelihood; in the absence of an order by the attorney general the petitioner's chances of prevailing on the merits would appear to be one hundred per cent.

Accordingly, a stay is granted pending consideration by the attorney general of whether the petitioner should be deported.

*********

1. We note that a 1988 amendment to A.S.C.A. § 41.0409, which prescribes a schedule of fines to be levied by the board for offenses involving unlawful employment, added a new paragraph (g) which may permit deportation by the board in addition to fines. The amendment is not available to the board in these proceedings as it would be retrospective in effect.

Am. Samoa Gov’t v. Macomber


Territorial constitution contains no equal protection clause. Rev'd Const. Am. Samoa art. I.

In territories not intended for incorporation into the United States, the federal constitution applies only insofar as its tenets restate fundamental limitations that are the basis of all free government.

Where territorial application of equal protection clause of federal constitution was not argued by either party, but both parties assumed that challenged territorial statute was unconstitutional if and only if it established a classification for which there was no rational basis, court would assume that the equal protection clause was applicable at least insofar as it required a rational basis for statutory classifications. U.S. Const. amend. 14.

Statutory scheme under which the same act may be punished under either of two statutes, with prosecutor having discretion to choose under which statute to prosecute, does not violate equal [8ASR2d183] protection clause of federal constitution. U.S. Const. amend. 14.

Statutory scheme under which two statutes define two different crimes, but proof of extra element is required by statute prescribing higher penalty, does not violate equal protection clause of federal constitution. U.S. Const. amend. 14.

Statute drawing a distinction between people whose licenses were suspended for driving under the influence and people whose licenses were suspended for other reasons had a rational basis, since classification was based on conduct rather than status and legislature believed there was a special need to deter and punish drunken driving. A.S.C.A. § 22.0223.

Where promulgators of territorial constitution omitted equal protection' clause, it would be inappropriate for judicial branch to construe some other constitutional provision to include an unwritten equal protection clause more demanding than the equal protection clause of the federal constitution. Rev'd Const. Am. Samoa art. I.

Even under equal protection analysis more stringent than the rational basis test, statute punishing those who drove after their licenses had been suspended for driving under the influence did not create unconstitutional classification, since (1) statutory distinction was not incoherent or unclear; (2) court should not substitute its opinion for that of the legislature on relative culpability, need for deterrence, and other factors necessary to determine range of appropriate sentences for various offenses; (3) drunken driving does appear to present special problems that might suggest the need for special statutory treatment. U.S. Const. amend. 14; A.S.C.A. § 22.0223.

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

Counsel: For Plaintiff, Barry I. Rose For Defendant, Charles Ala'ilima

On Motion to Vacate Sentence: [8ASR2d184]

Defendant was convicted of "felony driving while license is suspended." He was sentenced to serve ninety days in prison, the statutory minimum. A.S.C.A. § 22.0223. Defendant now moves that his sentence be vacated on the ground that the statutory minimum sentence denies him the equal protection of the laws.

The Revised Constitution of American Samoa contains no equal protection clause. Nor is it clear to what extent the equal protection clause of the Fourteenth Amendment to the United States Constitution applies in American Samoa. The United States has held that in territories not intended for incorporation into the United States Supreme Court, the Constitution applies only insofar as its tenets restate "those fundamental limitations in favor of personal rights" that are "the basis of all free government." Dorr v. United States, 195 U.S. 138, 146, 147 (1904); see also Balzac v. Porto Rico, 258 U.S. 298 (1922); Commonwealth of the Northern Mariana Islands v. Atalig, 723 F.2d 682 (9th Cir. 1984); Banks v. American Samoa Government, 4 A.S.R.2d 113 (1987). In the case now before us, however, both the government and the defendant argue that the statute in question should be held unconstitutional unless there is some rational basis for the distinction it makes. We therefore assume for the purposes of this case that the equal protection clause is applicable in the Territory at least insofar as it requires a rational basis for statutory classifications.

The "felony driving while license is suspended statute," A.S.C.A. § 22.0223, applies only to those whose licenses were suspended pursuant to A.S.C.A. § 22.0211, which requires suspension or revocation upon conviction for driving under the influence of alcohol or drugs. Those who drive while their licenses are suspended for some other reason are guilty only of a misdemeanor punishable by a minimum of fifteen days in the correctional facility. A.S.C.A. §§ 22.0219, 22.0222(9). Moreover, the general sentencing provisions (under which those convicted of misdemeanor driving while under suspension would be sentenced) allow the judge to suspend the sentence and impose a period of probation; A.S.C.A. §22.0223, on the other hand, specifically requires ninety days "in custody." Defendant argues that this statutory scheme impermissibly discriminates between drivers whose licenses were suspended for driving under the [8ASR2d185] influence and those whose licenses were suspended for some other reason.

This argument is, however, foreclosed by a long line of United States Supreme Court decisions. United States v. Batchelder, 442 U.S. 114, 123- 25 (1979), and authorities cited therein. In Batchelder the Court was faced with two statutes prescribing different penalties for the same crime. The Court held that this was not unconstitutional and that the government was free to seek a conviction under the statute prescribing the higher penalty. "Just as a defendant has no constitutional right to elect which of two applicable federal statutes shall be the basis of his indictment and prosecution neither is he entitled to choose the penalty scheme under which he will be sentenced." Id at 125. The Batchelder Court held the case before it to be constitutionally indistinguishable from earlier cases in which two statutes defined different penalties for slightly different crimes. In these cases the Court had held that "when an act violates more than one criminal statute, the Government may prosecute under either so long as it does not discriminate against any class of defendants." Id at 123-24. See e.g., Berra v. United States, 351 U.S. 131 (1956); United States v. Beacon Brass Co., 344 U.S. 43 (1952).

Defendant attempts to distinguish Batchelder on the ground that in this case the defendant "violat[ed] only one statute, and in accordance the government is allowed under the present legislative scheme to prosecute Mr. Macomber under only that statute." This seems wrong. By driving while his license was suspended, Mr. Macomber would appear to have violated the general statutory prohibition against doing "any act forbidden...by this chapter." A.S.C.A. § 22.0222. Since there was an additional element in Mr. Macomber's offense the fact that his suspension resulted from a conviction for driving under the influence ---he was also guilty of a violation of A.S.C.A. § 22.0223. The government has discretion to prosecute for a lesser included offense even when the defendant has committed all the elements of a greater offense; indeed, the government has discretion not to prosecute at all. In the present case the range of prosecutorial discretion would seem to have included (1) [8ASR2d186] prosecution under the felony statute, (2) prosecution under the misdemeanor statute, or (3) no prosecution at all. If so, the constitutionality of prosecuting this defendant under the felony statute follows a fortiori from Batchelder: in that case the two statutes defined identical crimes but one imposed a heavier penalty, whereas in this case the statute prescribing the heavier penalty requires proof of an extra element.

Suppose, however, that the Attorney General had no discretion to prosecute the present defendant under the misdemeanor statute. This would mean only that the legislature had exercised the same sort of discretion the Supreme Court upheld when exercised by prosecutors in Batchelder: the discretion to draw lines between different species of generically similar conduct. It would seem even more clear that a court should not interfere with such line-drawing when it is done by a legislature than when the legislature has delegated it to executive officials. Cf. Batchelder, 442 U.S. at 125-26. This does not mean that no legislative distinction will ever fail the rational basis test: if the Fono had prescribed a harsher penalty for Koreans or Methodists who drive with their licenses suspended than for others, the distinction would "discriminate against [a] class" and would therefore be impermissible. Id. at 124. In this case, however, the law discriminates on the basis of conduct rather than status. It draws a distinction between (1) people who drive under the influence and then drive with a suspended license; and (2) those who commit other sorts of conduct punishable by suspension and then drive with a suspended license. The legislature was not trying to hurt a particular class of people; rather, it believed there was a special need to deter and punish drunken driving. The means chosen ---a mandatory suspension of the right to drive, followed by a mandatory jail term if the defendant flouts the suspension may not have been perfect, may not even have been the best means available, but they were not irrational. (1) Cf. [8ASR2d187] American Samoa Government v. To'oto'o, 2 A.S.R.2d 61 (1985).

Defendant relies heavily on a somewhat different test articulated in People v. Marcv, 628 P.2d 69 (Colo. 1981). Marcy was based on a provision of the Colorado state constitution rather than on the equal protection clause of the United States Constitution. Id. at 71 & n.1. Although Colorado does not have an equal protection clause in its state constitution, the state courts have construed the state due process clause to include an equal protection component. See id. This makes it possible for the state supreme court to strike down state laws by applying a more stringent equal protection doctrine than that articulated by the United States Supreme Court. Such a doctrine may borrow heavily from federal equal protection jurisprudence perhaps rejecting the reasoning of the majority opinions and following the dissents instead ---but so long as it is formally based on the state rather than the federal constitution it is most unlikely to be overruled by the Supreme Court. See Brennan, State Constitutions and the Protection of Individual Rights, 90 Harv. L. Rev. 489 (1977). Accordingly, Marcy explicitly rejects the Batchelder test in favor of a requirement that "statutory classifications of crimes be based on [8ASR2d188] differences that are real in fact and reasonably related to the general purposes of criminal legislation." 628 P.2d at 74.

Like Colorado, this Territory has no equal protection clause in its constitution. For reasons related to those articulated in Banks v. American Samoa Government, supra, it seems most unlikely that the federal officials who promulgated our constitution or the local leaders whose deliberations led up to its promulgation intended to include an unwritten equal protection clause more demanding than the explicit one contained in the federal constitution. lt would be most inappropriate for the judicial branch to supply one. If any equal protection clause applies to this case it is the one construed definitively in Batchelder. Cf. American Samoa Government v. To'oto'o, supra, at 62-63.

Even under the contrary rule articulated in Marcy, however, the classification before us would seem valid. In Marcy the court found that it was impossible to distinguish between the conduct necessary to commit a certain kind of first degree murder and that necessary to commit a certain kind of second degree murder. 628 P.2d at 75-80. The Court held that no one could be punished under the stricter statute since it was not "sufficiently coherent and discrete that a person of average intelligence can reasonably distinguish it from conduct proscribed by other offenses." Id. at 80- 81. In this case defendant does not argue that the distinction between the two types of conduct is unclear, but only that it is not right.

Counsel for defendant asks whether people who drive under the influence are any more in need of deterrence and punishment, or any more likely to be deterred or punished by a mandatory jail term, than people who commit reckless driving or homicide by vehicle. The answer, of course, is that the Court does not know. The Court also does not know whether embezzlement is more in need of deterrence or punishment than sexual abuse in the second degree, or whether there might not be some people who are technically guilty only of manslaughter but whose actions were more culpable than those of some felony murderers.

Defendant seems to suggest that unless the Court does know the answer and unless the answer is [8ASR2d189] a clear "Yes, " the statutory classification must fall. But this is not the rational basis test; it is not even the rule of Marcv. In order to apply such a test the Court would have to devise a comprehensive scheme assessing the comparable worth of various offenses. The scheme would have to take in moral culpability, the need for deterrence, the likelihood that prison sentences would deter the proscribed conduct, and other factors in order to arrive at a range of sentences that would survive judicial scrutiny. And then most criminal statutes would turn out to be unconstitutional. Practically any criminal defendant can point to some other person who has been more culpable and troublesome and yet has been punished less severely.

We need not decide whether the legislature was right to select drunken driving as a special problem meriting special treatment. There does seem to be more of it than of homicide by vehicle, or even of non-alcoholic reckless driving. Deterring people from driving under the influence also presents special problems, since by the time the person gets behind the wheel he may not be in a frame of mind to be deterred. An effective deterrent must persuade people to rearrange their lives in whatever ways are necessary to ensure that they make the final decision about whether to drink and drive while sober, not while drunk. Perhaps the penalty must carry with it an unusual degree of severity and of certainty in order to accomplish this. But this sort of balancing and line-drawing is the essence of the legislative function. We cannot say the judgment of the Fono was clearly right; neither can we say it was clearly wrong, much less irrational. We are therefore bound to uphold the statute. See American Samoa Government v. To'oto'o, supra.

The motion to vacate the sentence is denied. The stay of imposition of the sentence will extend for an additional fifteen days to allow defendant to seek appellate relief if he so desires.

It is so ordered.

*********

1. If the rational basis test seems extremely deferential to legislative and executive discretion in prescribing sentences, this is because it is. In Batchelder, for instance, the Court upheld the classification before it against an equal protection challenge without finding it necessary to articulate exactly what the "rational basis" for the classification was. In essence, the Court acknowledged the possibilitY that the statutory scheme would allow prosecutors and judges to distinguish irrationally between different defendants, but refused to assume that they would do so. See 442 U.S. at 125- 26. Rather, it is up to an individual defendant to prove that such discretion has been exercised irrationally in his case--- that is, that the decision to prosecute him under the harsher statute was "based upon an unjustifiable standard such as race, religion, or other arbitrary classification." Id. at 125 n.9, quoting Oyler v. Boles, 368 U.S. 448, 456 (1962). In other words, the basis for a distinction made by the legislature or executive is presumed to be rational until it is shown to have been affirmatively impermissible. Cf. Williamson v. Lee Optical Co., 348 U.S. 483 (1955).

Ava v. Moe;


AVA VILI, Plaintiff

v.

MOE TALALOTU and KILEPOA TUITAMA, Defendants

High Court of American Samoa
Trial Division

LT No. 71-83

September 9, 1988

__________

Defendant's motion for a new trial, made on the ground that he had received no actual notice of the trial date, was denied where it was shown that such notice was given in accord with statutory procedure by delivery to the defendant's home and receipt by his son two months prior to trial.

Statutory standard of "natural justice and convenience" requires that in land matters a party eventually be accorded his day in court and therefore, although the court prefers that all parties be present at a hearing, it will proceed without the defendants where they have continually postponed the trial date and failed to appear after proper notice of the trial date. A.S.C.A. § 3.0242.

Defendant's motion for a new trial, made on the ground that the judgment awarding plaintiff communal land was inconsistent with plaintiff's original claim of individual land, was denied where plaintiff's complaint prayed for an adjudication of communal ownership, the evidence showed the land was communal, and defendants were not prejudiced by the court's conforming of its findings to the evidence.

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

Counsel: For Plaintiff, Albert Mailo
For Defendants, Togiola T.A. Tulafono

On Motion for New Trial and Reconsideration: [8ASR2d96]

Defendants, Moe Talalotu and Kilepoa Tuitama, move for a new trial (and reconsideration) in the above-entitled matter.

This matter came up regularly for trial on July 25, 1988. Plaintiffs appeared prepared for trial. Neither defendant appeared and no attempt was made by or on behalf of defendants to otherwise notify the Court of defendants' absences. After hearing from plaintiff's counsel and after reviewing the matters on file, the Court found that neither defendant had demonstrated much interest in pursuing their claims. The file reflects numerous attempts by plaintiff to get this matter to trial along with corresponding continuances. Defendant Moe Talalotu's present claim of no "actual" notice of trial date attracts little, if any, sympathy in the circumstances. We found that this defendant was duly noticed in accordance with applicable rules of procedure when notice of trial date was delivered at his home some two months prior to trial. The person who received the actual notice was his son Finesi Moe. This same son received a copy of the judgment delivered also to defendant's home and notice of which certainly attracted immediate reaction.

We similarly found due service upon the co-defendant Kilepoa Tuitama .

While the court has in the past shown a decided preference for a hearing with all parties present (especially in land matters) there comes a time when the standard of "natural justice and convenience," as provided in A.S.C.A. § 3.0242, requires that a party be accorded his day in court. That time was upon us when this matter was heard.

Defendants' second ground advanced for a new trial, viz., prior adjudication concerning the disputed land, has been withdrawn.

The third ground advanced was that judgment awarding plaintiff "communal" land was inconsistent wi th plaintiff's advertised claim of "individually" owned lands. Defendants feel that the logical result of the case should have been "denial or rejection" of the registration application by plaintiff to individualownership. This argument is a non sequitur. The evidence received by the Court was inconsistent with a claim to "individual" ownership but was found to be consistent with [8ASR2d97] "communal" entitlement .Indeed the complaint prays for an adjudication of "communal" ownership. We can see no conceivable prejudice to defendants by the conforming of our findings in accordance with the evidence, notwithstanding the content of plaintiff's advertised claim.

Accordingly the motion for new trial is denied.

*********

Atuatasi v. Moaali'itele,


OKETOPA ATUATASI, Petitioner

v.

MOAALltITELE TU'UFULI in his capacity as
Commissioner of Public Safety, WILLIAM M.
SELLERS in his capacity as Prison Warden,
and AMERICAN SAMOA GOVERNMENT, Respondents

High Court of American Samoa
Division

CA No. 55-88

July 25, 1988

__________

Where prisoner had not served one-third of his sentence of imprisonment, parole board had no jurisdiction to entertain his application for parole, and parole board order was of no legal effect. A.S.C.A. §§ 46.2304, 46.2702.

Where one section of parole statute provided that parole should not be given unless institutional confinement is deemed unnecessary, and later amendment to another section of the statute was clearly designed to allow court to impose probation and conditional detention in certain cases where confinement is deemed necessary, the general rule stated in the earlier provision does not operate as a limitation on the power granted by the later provision. A.S.C.A. §§ 46.2203, 46.2206.

In cases of otherwise irreconcilable conflict between statutes the later statute governs the earlier, since the new law is deemed to have implicitly amended conflicting prior laws. [8ASR2d54] Apparent conflicts between statutes can often be reconciled by application of the rule that the more specific statute prevails over the more general.

Amendment to probation statute, allowing court to impose detention as a condition of probation for up to one-third of the maximum term of imprisonment, was intended to give court the power to prevent the early release of dangerous criminals. A.S.C.A. § 46.2206.

Parole and conditional probation statutes provide two alternative modes of sentencing, with the mandatory period of detention limited to one-third of the sentence in both cases but conditional probation statute allowing the court to exercise greater control over the conditions of detention. A.S.C.A. §§ 46.2206, 46.2304, 46.2701 etseq.

Statute providing for parole of prisoner who has served one-third of his sentence of imprisonment has no application to probationer whose sentence of imprisonment has been suspended and who is serving a term of detention, for a period no greater than one-third of the suspended sentence of imprisonment, as a condition of his probation. A.S.C.A. §§ 46.2203, 46.2206(3), 46.2209.

Prisoner whose sentence of imprisonment was suspended but who was required to serve a term of detention as a condition of probation, under a statute providing that such term could be no greater than one-third of the suspended sentence of imprisonment, was not unfairly deprived of the opportunity to apply for parole, since he would be released from detention on the same day that he would otherwise have been eligible to apply for parole. A.S.C.A. §§ 46.2206, 46.2304, 46.2701 et seq.

Statute allowing court to impose detention as a condition of probation did not violate the constitutional provision allowing governor to grant pardons, since any prisoner pardoned by the governor could no longer be incarcerated. Rev'd Const. Am. Samoa art. IV §§ 9.

Warden who released prisoner in violation of court order, on the authority of invalid order of parole board, was in continuing violation of court order for as long as the prisoner remained at large. [8ASR2d55]

Court order for confinement of prisoner, after his trial and conviction for attempted rape, was issued pursuant to due process of law and could be enforced without further judicial proceedings.

Due process of law was not denied to a convict who had been released from detention in violation of court order and who was subsequently re-arrested, where (1) convict's lawyer was notified immediately of his re-arrest and did not request a hearing, (2) a hearing was held as soon as the convict's new lawyer requested one; (3) the scope and period of confinement after re-arrest did not exceed that imposed by the original court order, which had itself been issued pursuant to due process of law.

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

Counsel: For Petitioner, Aviata Fa'alevao
For Respondents, James Doherty, Assistant Attorney General

On Motion for Reconsideration:

On July 22, 1987, petitioner Oketopa Atuatasi was convicted of attempted rape. He was sentenced to a term of seven years in prison.

The Court then invoked the provision of a recent amendment to the territorial statute dealing with probation. This amendment allows the Court to exercise a degree of control over the circumstances of a prisoner's incarceration by imposing a lengthy term of detention as a condition of probation. The execution of the seven-year sentence was suspended and Mr. Atuatasi was placed on probation for five years, on the condition that he actually serve two years and 121 days in the Territorial Correctional Facility.

It was an explicit condition of the sentence that "[d]uring said period of incarceration defendant is not eligible for any release from the confines of the correctional facility for reasons other than emergency medical care, without prior written permission of this Court." American Samoa Government v. Atuatasi, CR No.12-87, Judgment and Sentence, page 2. [8ASR2d56]

On March 15, 1988 ---less than nine months after the imposition of his seven year sentence and of the two years and 121 days during which he was not to leave the correctional facility without written permission of the Court ---Mr. Atuatasi petitioned the Parole Board for release on parole. On March 22 his petition was granted. The Parole Board's decision stated that Mr. Atuatasi had been "sentenced to. two (2) years and 121 days imprisonment" and that he "has served one-third of his prison term, and is therefore eligible to apply for parole." He was then released .

Several weeks later the High Court probation officer charged with supervising Mr. Atuatasi's probation happened to see Mr. Atuatasi at large in the village of Lauli'i. He filed an affidavit to this effect with the Chief Justice, who forwarded it to the Warden with a request for a response to the allegation that Mr. Atuatasi was at large. (1)

The Warden, after examining the Court's judgment and. sentence in the case and consulting with the Office of the Attorney General, ordered Mr. Atuatasi reconfined to the Correctional Facility. An Assistant Attorney General then called the Chief Justice to notify him that Mr. Atuatasi was back in custody. The Chief Justice ordered that Mr. Atuatasi's attorney of record, the [8ASR2d57] Public Defender, be notified immediately so that he could consult with his client and make such motions as he might deem appropriate. The Assistant Attorney General notified the Public Defender.

On May 18, 1988, exactly one month after Mr. Atuatasi was reconfined, he commenced the present action by requesting a writ of habeas corpus. The writ was requested at 3:30 p.m. on May 18 and issued immediately; it required the Warden and the other named defendants to "have the body of Oketopa Atuatasi to the High Court at 9:00 a.m. on May 20, ... then and there to state why said Petitioner was being restrained..."

The defendants accordingly delivered Mr. Atuatasi and explained his detention by reference to the facts recolJ.nted above. The Court ruled that the detention was lawful, a ruling we are now asked to reconsider.

Petitioner advances two arguments: that his detention is unlawful because it violates the Parole Board's order that he be released, and that the procedure by which he was reconfined violated his right to due process of law.

I. The Relationship Between Parole and Probation

Turning first to the substantive argument, we conclude that the continued detention of Mr. Atuatasi is not unlawful. The Parole Board order was clearly outside the statutory jurisdiction of the Board and therefore does not bind the Warden or anyone else. Moreover, it conflicts directly with a Court order that does bind the Warden and the other respondents.

The Parole Board has authority to order a prisoner's release only after he has served one- third of his sentence of imprisonment. A.S.C.A. § 46.2304. If a prisoner has not served this minimum term of imprisonment, the Parole Board lacks jurisdiction even to entertain his application. A.S.C.A. § 46.2702. The sentence of imprisonment in this case was seven years. Assuming that the Parole Board can ever acquire jurisdiction in this case, it will not acquire such jurisdiction until late 1989 when one-third of the seven year sentence will have elapsed. [8ASR2d58]

As the Assistant Attorney General explained at the hearing held pursuant to the writ of habeas corpus, there is no reason to believe that the Parole Board wilfully acted outside its jurisdiction; rather, the clerical employee who prepared the application and the order simply made a mistake. The confusion arose from the Court's decision to suspend execution of the seven-year sentence and impose a number of conditions. One of these conditions was actual detention of two years and 121 days one-third of the seven year sentence ---during which the Court would have sole authority to order any release. The Parole Board employee mistook this condition of probation for the sentence of imprisonment. Nobody caught the mistake until the Probation Officer saw the petitioner at large in Lauli'i.

Counsel for the petitioner suggests, however, that the Parole Board was not mistaken in its calculation of when one-third of the "sentence of imprisonment" had elapsed. Although the Court sentenced petitioner to a term of seven years, it suspended execution of this sentence. The suspension was on several conditions, but the only condition requiring actual confinement was for two years and 121 days (i.e., one-third of seven years). Counsel therefore argues that petitioner was eligible for parole after he had served one-third of this conditional confinement ---i.e. , one-third of one-third of seven years.

The History of the Conditional Detention Statute

This argument ignores the unique history and function of the American Samoa statute dealing with detention as a condition of probation, A.S.C.A. § 46.2206. This statute was originally derived from similar provisions in the United States which typically allowed the Court to impose a very short period of detention in a jailor "halfway house" as an alternative to imprisonment. The judge would presumably impose such detention only in cases involving youthful offenders and others for whom lengthy confinement in an actual prison would be inappropriate or even counterproductive. See Masaniai v. American Samoa Government, 6 A.S.R.2d [8ASR2d59] 114, 120-22 (1987), and authorities cited therein. (2) By 1987, however, detention as a condition of probation had come to be used for almost exactly [8ASR2d60] the opposite purpose: to prevent prisoners deemed especially dangerous by the sentencing judge from being released almost immediately on furloughs, work releases, unsupervised and open-ended "work details," and other euphemistic devices by which convictions and sentences could be effectively cancelled.

Aside from the tendency of these devices to diminish the value of imprisonment as a way to deter and punish crimes, they had a corrosive effect on the whole criminal justice process by giving rise to a general impression in the community that it was unsafe to testify against a violent criminal or otherwise to assist in his prosecution. A convict's access to various forms of early release depended more on having a personal relationship with some government official inside or outside the prison ---for a time it seemed that almost any official would do, and that almost every prisoner had some such relationship ---than with any formal criteria. These abuses tended to usurp not only the sentencing power of the Court but also the legitimate authority of identified, accountable executive officials to grant pardons and paroles in specified circumstances; they threatened "[t]o reduce the criminal justice system of American Samoa to the level of make-believe." American Samoa Government v. Dole, 3 A.S.R.2d 63, 65 (1986).

The Dole case and several other well-publicized instances in which violent or repeat offenders were released into the community soon after sentencing were the background of the 1987 amendment to A.S.C.A. § 46.2206. By then the Justices of the High Court were routinely using detention as a condition of probation in order to prevent the immediate release of dangerous offenders. By allowing certain prisoners to be classified as probationers subject to the supervision of the Court (rather than ordinary prisoners subject only to the supervision of the executive branch) the probation statute afforded a way for the Court to prohibit early release without Court approval. The maximum time allowable for such conditional detention was then one year. When the conviction was for burglary, assault with a deadly weapon, or even manslaughter, a sentence of one year actually served seemed a more effective punishment and deterrent than a five-year sentence that would be ignored. In such cases as rape and murder, however ---precisely the cases in which [8ASR2d61] society needed the most protection ---one year of detention was simply not enough. In such cases the judge would generally give a "straight sentence" of fifteen years and hope the sentence would be enforced.

The 1987 Amendment

The 1987 amendment was an effort to cure this anomaly. (3) It abolished the flat one-year limit on the period of detention that could be imposed as a condition of probation in felony cases, substituting a formula related to the maximum sentences for particular felonies. When the maximum sentence is for a term of years the sentencing judge may elect to suspend the sentence, put the prisoner on probation, and impose conditional detention for up to one-third of the maximum allowable sentence. When the crime is punishable by life in prison the maximum conditional detention is fifteen years.

The Current Statutory Scheme

The effect of the amendment is to allow a judge to prohibit the early release of a felon without giving him an unduly short sentence. This [8ASR2d62] is done by providing two alternative modes of sentencing, under each of which the prisoner can be expected to serve the same amount of time as if he had been sentenced under the other:

1) The judge can impose a "straight sentence." The
prisoner will then be eligible for parole after he
has served one third of his sentence, or fifteen years
in the case of a life sentence. According to established
practice he will almost certainly be released at that time.

2) Or the judge can impose probation and conditional
detention with the limit on detention figured according
to the same formula as would otherwise determine
eligibility for parole. The prisoner will still be released
after he has served one-third of the statutory sentence,
or fifteen years for a life sentence.

The only difference between the two modes of sentencing is in the degree of control exercised by the Court over the conditions of detention. If a prisoner is not deemed dangerous to the community and there is no other reason to fear his premature release, a "straight sentence" can be used. If it is especially important to ensure that the prisoner will actually remain in prison, probation and conditional detention are appropriate.

Parole and Probation as Alternative Remedies

The interpretation advanced by counsel for the petitioner would destroy the symmetry of this scheme. It ignores the obvious point of defining the formula for detention in probation cases almost identically with the formula for parole in "straight sentencing" cases. When Mr. Atuatasi was given probation and conditional detention, he effectively received the benefit of parole in advance by means of a two-thirds discount on his sentence. If at the time of sentencing the Court had been faced with the possibility that under the conditional detention option Mr. Atuatasi would serve only one-ninth of his sentence, we would have felt constrained to forego this option. Nine months would have been far too short a sentence for this crime. The suggested interpretation would [8ASR2d63] thereby restore the pre-1987 situation in which conditional detention was useful for dealing with petty crimes but ineffective as a means of protecting society from really dangerous criminals. This is the very situation the current law was designed to cure.

In order to give the 1987 conditional detention law under which Mr. Atuatasi was sentenced the effect for which it was intended--- indeed, in order to give it any effect at all--- it is necessary to recognize that probation and parole are alternative rather than cumulative remedies. This is clearly implicit in the parole statute itself, which gives jurisdiction to the Parole Board only after the prisoner "has served " a specified portion of "the sentence of imprisonment." A.S.C.A. §§ 46.2703, 46.2304. A probationer, on the other hand, never begins to "serve" his "sentence of imprisonment "; the Court places him on probation only upon suspending either the imposition or the execution of his term. The probation statute clearly contemplate the "sentence of imprisonment" as something that will be served only in the event probation is revoked, and as something quite distinct from the "period of detention" that may be imposed as a condition of probation. See A.S.C.A. §§§§ 46.2203, 46.2206(3), 46.2209.

The judgment and sentence in Mr. Atuatasi's case explicitly preserves this distinction: his "sentence" is seven years, whereas the "period of incarceration" of two years and 121 days is one of the "condi tions " on which the sentence is suspended and probation imposed. American Samoa Government v. Atuatasi, CR No.12-87, Judgment and Sentence, page 2.

The very earliest point at which Mr. Atuatasi can be said to have "served" one-third of his seven year "sentence of imprisonment" will be two years and 121 days after his imprisonment began. It seems more technically precise, however, to recognize that he has never begun serving the sentence at all and will not do so unless his probation is revoked. Parole is simply not available to a person whose sentence has been suspended on the condition that he serve a special term of detention equal to no more than one-third of that sentence. [8ASR2d64]

The parole and probation remedies could be made cumulative rather than alternative by construing the term "sentence of imprisonment" in the parole statute as a generic reference to any detention imposed for any reason at all rather than as a specific reference to the " sentence of imprisonment" defined in the Code chapter on Imprisonment. We would adopt such a construction if it were suggested by the general statutory scheme, or if it seemed necessary to mitigate any unintended harshness in the 1987 amendment.

On the contrary, however, the statutory scheme demands that "sentence of imprisonment" be given a precise rather than a generic interpretation. The section of the parole statute dealing with eligibility for parole specifically incorporates the definition of "the sentence of imprisonment" contained in the imprisonment statute. A.S.C.A. §§ 46.2702, 46.2402. The probation statutes, even while they contemplate conditional " detention, " clearly exclude the argument that a probationer is serving "the sentence of imprisonment. " A.S.C.A. §§ 46.2203, 46.2206(3), 46.2209. And the 1987 amendment to the conditional detention section does not add to this scheme any sharp edges that need to be rounded out by broad judicial interpretation of the parole statute: as we have discussed, the amendment itself fully compensates incarcerated probationers for the unavailability of parole by limiting the period of their detention to the parole term itself. As a probationer serving a term of detention under the supervision of the Court, Mr. Atuatasi will be released on the very day he would have been eligible to apply for parole if he were an ordinary prisoner serving his seven- year sentence subject to the jurisdiction of the Parole Board. (4)

[8ASR2d65]

II. Procedural Due Process

Mr. Atuatasi argues that he should not have been reconfined without an arrest warrant and/or a hearing.

The purpose of requiring an arrest warrant is to ensure that no one will be arrested unless there is probable cause to believe he has committed a crime. The warrant constitutes the assent of a judicial officer to the proposition that probable cause exists. In this case there is no reason at all to believe that Mr. Atuatasi committed a crime subsequent to his improper release from prison. Rather, his confinement was pursuant to the unambiguous mandate of a valid Court order requiring that he remain in confinement for two years and 121 days and that he not be released without prior Court approval. This order was issued after a showing that there was not just probable cause to believe he had committed a crime, but proof beyond a reasonable doubt that he had done so.

Mr. Atuatasi's release clearly violated the Court order, and the Warden was in continuing violation of the order for as long as Mr. Atuatasi remained at large. Up until the time the Warden noticed the discrepancy between the Parole Board order and the Court order, his noncompliance with the latter was of course entirely understandable. As soon as the violation of the Court order was called to his attention he consulted with counsel and moved to conform his conduct to the order by taking Mr. Atuatasi back into custody. The order itself was issued pursuant to due process of law, and it could be enforced without further judicial assent to the proposition that Mr. Atuatasi had committed a crime.

Similarly, Mr. Atuatasi was not accused of violating the terms of his parole or probation, so he was not eligible for the hearings provided by [8ASR2d66] statute for persons against whom such accusations were made. Rather, his situation was analogous to that of a convict who has been mistakenly released from prison by guard, an assistant warden, or some other official with no authority to order such release. Upon finding that such a person is at large the Warden first places him back in custody and then worries about a hearing. (The Assistant Attorney General, who advised the Warden to rearrest Mr. Atuatasi immediately upon learning of his release, testified at the hearing of this case that he regarded Mr. Atuatasi as dangerous to the community. This judgment is fully consistent with the nature of his crime and with the Court's earlier order forbidding his release.)

Within a few hours after Mr. Atuatasi had been rearrested, the government did move to provide him with a hearing. The Assistant Attorney General notified the Chief Justice that Mr. Atuatasi was back in custody and asked whether there should be an immediate hearing. The Chief Justice responded that there was already a Court order requiring Mr. Atuatasi's confinement, but that Mr. Atuatasi's lawyer should be notified immediately so that he could request a hearing if Mr. Atuatasi so desired. The record reflects that this was done.

It is not clear why Mr. Atuatasi's counsel of record, the Public Defender, did not request an immediate hearing. A hearing was in fact held as soon as Mr. Atuatasi requested one. Although Mr. Atuatasi's new counsel did not request an expedited hearing, the Court expedited the hearing on its own motion. At the hearing the government was required to show everything it might conceivably have been required to show if a hearing had been held immediately before or after Mr. Atuatasi was taken back into custody. The petitioner himself was likewise given an opportunity to present such arguments and evidence as he might wish. The record is devoid of any suggestion of the slightest possibility that the outcome of the hearing would have been different if it had been held earlier.

If the procedure by which Mr. Atuatasi was taken back into custody fell short of due process, the provision of immediate notice to his counsel of record and of a plenary hearing immediately upon his request would seem to have cured this deficiency or at least rendered it moot. It is hard to imagine any curative measure that has not [8ASR2d67] yet been taken. If the manner of Mr. Atuatasi's rearrest was unlawful it would presumably result in the exclusion of any evidence obtained as a result of the rearrest, but that is not an issue in this proceeding. The Court could order Mr. Atuatasi rereleased so that a further hearing could be held prior to any rearrest, but the evidence and arguments at such a hearing would presumably be identical to those adduced at the previous hearing. Or the Court could announce a rule that any inadvertently released prisoner the manner of whose reconfinement is procedurally deficient will be released from the remainder of his term; but this seems harsh on the people the criminal laws are designed to protect.

Conclusion

Mr. Atuatasi's continuing confinement pursuant to the Court's judgment and sentence is lawful. Notice to his counsel of record upon his being taken back into custody, and the provision of an immediate hearing upon his request, fulfilled the procedural requirements of due process or at least rendered moot any procedural deficiencies in the manner of his reconfinement.

The motion to reconsider our dismissal of the action is denied. It is so ordered.

*********

1. When this action came before the High Court for a hearing, the Chief Justice stated for the record the facts concerning his administrative involvement with the case and offered to disqualify himself from further involvement if either party so requested. He pointed out, however, that if he were to disqualify himself it would be necessary for the Associate Justice to hear the case. This would leave no qualified member of the Appellate Division in the Territory until the next regular sitting of an appellate panel consisting of judges from the United States. In view of the desirability of having a Justice of the Appellate Division present in the Territory to hear motions for interlocutory relief pending appeal in the event the trial court should deny such relief, both parties waived any objection to the participation of the Chief Justice as trial judge.

2. Our analysis of the function of A.S.C.A. § 46.2206 as amended in 1987 differs sharply from the analysis in Masaniai of the same statute prior to the 1987 amendment. The Appellate Division in that case construed the pre-1987 statute by reference to another pre- 1987 statute (A.S.C.A. §§ 46.2203) providing that probation should generally be imposed only in cases where the Court has determined that institutional confinement is not necessary, and by reference to opinions from United States courts relying on the intent of legislatures in the United States in enacting similar provisions. The Appellate Division was neither called upon to construe the post- 1987 statute now before us, nor presented with the argument that the text and history of that statute suggest legislative intentions somewhat different from those underlying similar provisions in other jurisdictions. Our holding therefore does not conflict with the Appellate Division's holding in Masaniai.
Our analysis of the function of A.S.C.A. § 46.2206 as amended also suggests a conflict with A.S.C.A. § 46.2203, the section providing that probation should not be given unless institutional confinement is deemed unnecessary. If we are correct in our view that the 1987 enactment was clearly designed to allow the Court to use probation in certain cases where institutional confinement is necessary ---and it is hard to imagine any other legislative purpose behind an enactment which explicitly provides for up to fifteen years' detention as a condition of probation- --then the general rule stated in § 2203 cannot operate as a limitation on the Court's power to imposes conditional detention under § 2206. It is axiomatic that in cases of otherwise irreconcilable conflict between statutes the later statute governs the earlier, the new law having implicitly amended all conflicting prior laws pro tanto. In any case, apparent conflicts are often reconciled by application of the rule that the more specific statute (in this case § 2206 as amended) governs the more general.

3. American Samoa does not keep verbatim records of legislative debates. That the amendment was a response to the concern of the Justices and others that conditional detention should be available as a means of preventing early release of dangerous criminals is, however, suggested by the text and structure of the statute itself: why else increase the maximum allowable detention so dramatically, from one year to fifteen? The amendment is linked to this concern by other evidence that is a matter of public record: Justice Murphy's plea for reform in the Dole opinion in October of 1986 is one such record. Another is the written proposal by which the Governor suggested to the Fono what eventually became the text of the 1987 amendment, commenting that it had been suggested to him by the Chief Justice. In any case, the facts stated in the text are so widely known among those familiar with criminal justice in the Territory that they are a proper subject of judicial notice.

4. Counsel for Mr. Atuatasi also argues that the sentence in this case was unconstitutional in that it violates the Governor's pardon power. This seems clearly wrong, precisely because the pardon power is constitutional and takes precedence over statutes including the probation statute. If the Governor were to pardon Mr. Atuatasi for his crime he could no longer be incarcerated. The parole power, in contrast, is statutory and can therefore be limited by statute. For the reasons stated in the text, the parole power could not be exercised in this case because its exercise violated not only the probation and conditional detention laws but also the jurisdictional provision of the parole statute itself.

Anderson v. Sinagege R.M. Utu Enterprises,


MARTIN ANDERSON dba PAGO PLAZA, Plaintiff

v.

SINAGEGE R.M. UTU ENTERPRISES and PAT REID
dba PACIFIC EQUIPMENT LEASING AND
EARTH MOVING, Defendants

High Court of American Samoa
Trial Division

CA No. 7-88

October 12, 1988

__________

Where equipment lease provided that rent was payable when lessees were paid on their construction contract, and where lessees had received only partial payment on their contract and had made a substantial part payment of the equipment rent, evidence preponderated against the conclusion that lessees were in default on the equipment lease.

Where lease was ambiguous as to time on which rental payments were due, lessees made part payment, and lessor's manager then wrote a letter thanking lessees for the payment, reiterating lessor's intention to extend the lease after the expiration of its original term, and stating that lessor was looking forward to doing further business with lessees, but seven days later lessor seized the leased equipment on the ground that lessees were in default, court would find that lessees were not in default.

Where equipment lease specified that lessees would pay rent for a specified minimum number of hours, but lessees were unable to use the equipment for the minimum number of hours due to lessor's failure to perform its obligations, lessees would be required to pay rent only for the number of hours they actually used the equipment.

Where inability of lessees to use leased equipment for the minimum number of hours specified in the lease was due to factors outside the control of [8ASR2d140] either lessor or lessees, lessees would be required to pay rent for the hours in question.

Where lessor wrongfully repossessed leased equipment shortly before the expiration of the term of the lease, but lessees did not prove any damages on account of the premature repossession, lessees would be required to pay rent for the period prior to repossession as well as incidental expenses allocated to the lessees by the lease agreement.

Where lessees were not in default when lessor repossessed the leased equipment, lessor could not recover its expenses incident to the repossession.

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

Counsel: For Plaintiff, Roy J.D. Hall, Jr.
For Defendant Reid, Frank Swett
For Defendant Utu, Edwin Gurr

We find the facts to be as follows:

1) On June 19, 1987, plaintiff entered into an agreement with defendants for the lease of a crane belonging to plaintiff. The crane was to be used by defendants on a construction project on the island of Ta'u.

2) The lease provided that defendants would pay plaintiff $65 per hour for a minimum of 50 hours per week for 8 weeks, or a total of $26,000, "payable at time Lessee is paid on A.S.G. Contract No. 554120."

3) The lease also provided that plaintiff would supply an operator for the crane.

4) The lease further provided, inter alia, that defendants were to provide fuel for the crane; marine insurance during its transportation to Ta'u; a mechanic "to perform daily routine and minor mechanical repairs" (emphasis in the original); and accommodation for a mechanic to be provided by plaintiff in the event of a major breakdown. Defendants were also to pay for return transportation of the crane to Tutuila. [8ASR2d141]

5) Defendants chartered the Talimana'o to take the crane to Ta'u. It did not arrive until June 30, eleven days after the beginning of the lease period. (Defendant Reid testified that the delay was in order for plaintiffs to repair the crane. Defendants presented no evidence, however, that they had arranged for earlier transportation to Ta'u or that such arrangements were frustrated by plaintiff's repairs. The parties seem to have contemplated a brief delay in the arrival of the crane, since the lease term is specified as June 19 to August 19 "or a minimum of 50 hours per week for 8 weeks." Eight weeks is 56 days; the lease term is 62 days. We assume that the parties expected the period during which the crane would actually be operated to begin on or about June 25 and to end on or about August 19.)

6) From the beginning the crane had some mechanical problems, principally having to do with a hydraulic fluid leak. This resulted in some "down time" and in plaintiff having to send a mechanic on several occasions.

7) Plaintiff supplied an operator for the crane as required by the lease, but he was unable or unwilling to work for the fifty hours per week contemplated by the contract. Some weeks he worked thirty or forty hours, some weeks hardly at all. By mutual agreement, defendants eventually began using one of their own employees as an operator.

8) On or about August 5 the crane became inoperative and remained so for about five days (Thursday through Monday). Defendants say this was because it completely broke down due to the hydraulic fluid problem; plaintiff says it was because defendants were unable to obtain fuel during this period. We find that the evidence on this point preponderates in favor of plaintiff's version. It does appear, however, that one day of this inactivity was due to necessary repairs on a faulty switch.

9) As a combined result the crane's late of arrival, the mechanical problems, the unavailability of the operator, and the fuel shortage, the crane was used for only 255.5 hours between June 30 and August 18.

10) On August 18, 1987, plaintiff's manager James McGuire met with the defendants and agreed [8ASR2d142] that the lease would be continued "on a month to month basis beginning August 19th, 1987."

11) Between August 19 and September 17 defendants used the crane for 191.5 hours. (Defendants' recapitulation of the hours contains an apparent error, listing the period "8/24-8-29" twice. We have used the larger of the two figures listed for this period. )

12) At the August 18 meeting defendants also verbally agreed to rent a backhoe from plaintiff for $3800 per month, retroactive to August 1, 1987.

13) On August 31, 1987, defendants made a partial payment of $9000. It was the only payment they ever made.

14) On September 10, 1987, plaintiff's manager McGuire wrote a letter to the defendants memorializing the August 18 agreements, thanking defendants for the August 31 payment, and adding that plaintiff "look[ed] forward to assisting [defendants] on your present and future joint ventures in the Manu'a Islands."

15) On September 17, 1987, McGuire went to defendants' work site in Ta'u and seized the equipment. McGuire later wrote a letter saying that the repossession was for non-payment of rent.

16) The crane was then used by plaintiff on some other construction projects in Ta'u.

17) On or about October 18, 1987, plaintiff's mechanic traveled to Ta'u to do $650 worth of work on the crane. Much of this work involved rust damage.

18) On or about December 11, 1987, plaintiff's mechanic again traveled to Ta'u and estimated that it would cost $5000 to put the crane back in working condition. He assessed the cause of the damage as rust due to neglect in the care and storage of the crane.

19) As of the date of trial defendants had been paid $74,254.95 of the total contract amount of $164,160 on Contract No.554120. $56,907.55 of this amount was paid prior to December 22, 1987. We have no evidence of how much, if any, had been [8ASR2d143] paid prior to the seizure of the crane on September 18, 1988.

From these facts we draw the following conclusions:

1) The evidence preponderates against the conclusion that the defendants were in default on September 17 when plaintiff seized the crane.

The rent was "payable at time Lessee is paid on A.S.G. Contract No. 554120." The most obvious reading of this provision is that the rent was due when defendants were paid in full. This had clearly not happened by September 17. Even if we read the provision as requiring periodic payments corresponding to the payments received by defendants from the government, the partial payment of $9000 on August 31 would satisfy this requirement. We have no evidence of how much defendants had been paid by the government at this time, but we estimate (from the evidence concerning delays in completion of the work, and from the fact that only $56,907 had been paid by December) that if any payments had been received they must not have amounted to more than about $30,000. In the absence of any explicit understanding between the parties, and in light of the other expenses defendants would have been expected to meet as they received payments on the contract, we cannot conclude that the payment of $9000 toward equipment rental was unreasonably low.

It appears, moreover, that plaintiff's manager was perfectly happy with defendants' performance as of September 10. He thanked them for their August 31 payment. He reiterated plaintiff's intention to keep the arrangement going on a month to month basis. He added that plaintiff was looking forward to doing even more business with defendants. This is hardly the sort of letter one writes seven days before repossession.

On the contrary, it seems quite clear that something happened between September 10 and September 17 to change plaintiff's mind about the attractiveness of doing business with the defendants. The evidence yields no clue to what this might have been, except possibly the fact that plaintiff soon put the equipment to use on another project in Ta'u. Whatever plaintiff's motives in terminating the contract, however, it did not [8ASR2d144] sustain its burden of proving default by defendants.

2) With regard to most of the items in controversy, however, it does not matter whether defendant was in default on September 17. The monthly extension of the contract was to expire on September 19, and plaintiff was under no obligation to renew it for another month. Plaintiff had the right to repossess the equipment about 24 hours later than it actually did, and defendants have not shown that they could have completed their contract if they had had the crane for one more day.

3) If plaintiff had supplied defendants with a working crane and an operator for at least 50 hours per week between June 19 and August 19, defendants would owe $26,000 for this period regardless of whether other problems prevented them from using the crane for that many hours. Defendants cannot, however, be required to pay for 400 hours insofar as they were prevented from using the crane for that many hours due to plaintiff's failure to perform its obligations under the contract.

To the extent that the shortfall was due to the mechanical failure of the crane or to the unavailability of plaintiff's operator, the loss should fall on plaintiff; to the extent it was caused by defendants' inability to procure fuel or to charter the Talimana'o prior to June 30, the loss should fall on defendants. Based on the number of hours the crane was actually used between June 30 and August 19, we conclude that defendants could have used it for an additional 24 hours if it had arrived by June 25, and for another 16 hours if they had not been without fuel for two working days. (These estimates are partly a function of plaintiff's operator's unwillingness or inability to work long hours or on weekends.) Accordingly, defendants are accountable for 295.5 hours during this period, for a total rental of $19,207.50.

3) For the rental of the crane between August 19 and September 17, defendants are accountable for 191.5 hours for a total rental of $12,447.50. (They might have used it for the contemplated 200 hours had it not been for plaintiff's decision to terminate the lease.)

4) Defendants owe $5700 for rental of the backhoe from August 1 to September 17.[8ASR2d145]

5) Defendants also agreed to be responsible for the return transportation of the crane to Tutuila. Defendants might be absolved of this obligation if they had proven at trial that they were substantially damaged by plaintiff's decision to terminate the lease a day early, or that plaintiff's subsequent use of the crane in Ta'u was more than an attempt to mitigate its perceived damages. Since the evidence before us is insufficient to sustain either of these conclusions, we hold that defendants owe $1400 for the return of the crane to Tutuila.

6) Plaintiff also requests reimbursement for various repairs to the equipment. The evidence, however, is to the effect that defendants complied with their obligation to provide a mechanic to deal with minor repairs. All other repairs were the explicit responsibility of plaintiff.

Nor has the plaintiff sustained its burden of proving that the rust damage was due to the negligence of plaintiff. The first evidence of such damage was on October 28, a month after the crane had been repossessed by plaintiff. Substantial further damage seems to have occurred between October and December.

7) Plaintiff also seeks reimbursement for expenses incident to the repossession and for subsequent air fares to Ta'u. Since defendants have not been proven to have been in default, these expenses are not recoverable.

8) Defendants also seek a number of deductions from the amount they owe. The only such deduction sustained by the evidence is $1068 for 178 hours of wages to defendants' crane operator. This payment was made necessary by the unavailability of the operator plaintiff was obliged to provide.

9) Defendants are entitled to credit for the $9000 they paid on August 31, 1987.

ORDER

Judgment will enter in favor of plaintiff and against defendants, jointly and severally, in the amount of $28,687. [8ASR2d146]

It is so ordered.

*********

Amituana'i; Tuileata v.


TTJILEATA FAMILY, Appellant

v.

AMITTJANA' I NANAI IOSEFA,
TUIOLEMOTU FA'AOPEGA, MISILAGI TI'A,
and TAUMO FE'AII, Appellees

High Court of American Samoa
Appellate Division

AP No. 16-87

October 21, 1988

__________

Appellate division of territorial court reviews findings of fact by land and titles division for clear error. A.S.C.A. § 43.0801(b).

There is no clear error requiring appellate division to reverse a decision denying registration of land where (1) prior cases relied on by the appellant to show his presence in the area concerned another tract of land and (2) witnesses testified that appellant neither had houses or plantations in the area nor, owing to his long absence from the territory, had knowledge of the true extent of his family lands. A.S.C.A. § 43.0801(b).

Before KING*, Acting Associate Justice, KAY**, [8ASR2d174] Acting Associate Justice, TOGAFAU***, Associate Justice, LUALEMAGA, Associate Judge, and VAIVAO, Associate Judge.

Counsel: For Appellant, Albert Mailo
For Appellee Amituana'i, Aviata Fa'alevao
For Appellee Tuiolemotu, Aitofele Sunia

Per Curiam:

Olovalu is a tract of land in Malaeloa. For the past eighty years or more the title has been unresolved, although several families have lived together more or less peacefully. In 1907 the ancestors of most of the parties to the present action joined in an action to assert the claims of their families to Olovalu against defendant Uo Sopo'aga, who had registered Olovalu at the territorial registrar's office. Those families were Tuileata, Amituana'i, Tuiolemotu, Galoia, Toilolo, and Tuia'ana. The case resulted in a judgment for plaintiffs, pursuant to which the plaintiff families were held to be rightful owners of the tract and were told "to distribute the land amongst themselves." If they did divide it, it was never registered. Since then, there have been a handful of court cases between the families concerning use of the land.

In the early 1980's plaintiff Tuileata returned from a long period overseas, claimed the Tuileata title which had been vacant for about thirty years, surveyed a great deal of Olovalu along with parts of adjoining tracts, and registered all the surveyed land as Tuileata land. This resulted in numerous boundary claims by almost every family in the neighborhood, evolving into the instant appeal. Chief Amituana'i Iosefa ("Amituana'i") and Tuiolemotu Fa'aopega ("Tuiolemotu") made their own surveys, placing [8ASR2d175] their own family lands within the 36 acres claimed by Tuileata's survey. Fe'a made a survey after trial.

The High Court of American Samoa, Land and Titles Division, found that the Tuileata survey was vastly overinclusive, encroaching on land long held by other families, and found that competing surveys by the Amituana'i and Tuiolemotu families were largely accurate and with some slight changes should be registered. The only part of Olovalu established by a preponderance of the evidence to belong to the Tuileata family was, the Court found, about three acres occupied with the Tuileata's permission by one Fe'a, whose father was married to a daughter of the Tuileata family. Because this plantation land had long been assigned to the use of Fe'a and his immediate family, the court added that Fe' a could not be deprived of it "without the extensive consultation and just compensation that are an essential part of the relationship between a sa'o and the members of his family." Opinion and Order at 3-4 [Tuileata v. Amituana'i, 4 A.S.R.2d 168, 171 (1987)]. The Opinion and Order left a large part of Olovalu still unregistered.

The findings of the land and titles division of the High Court are reviewed for clear error. A.S.C.A. § 6.0801(b).

Tuileata's argument is based primarily on the existence of four earlier cases, including the 1907 case, which it is contended show that the Tuileata family has occupied and used the land in question and therefore that it is communal land of the Tuileata. According to Appellee Tuiolemotu's reply brief, the case of Tuileata v. Taliva'a, 2-1956 ("the 1956 case"), cited by appellant and by the trial court for its statement that Fe'a and his father occupied Tuileata family land, Opinion at 4, concerned a piece of property situated approximate- ly three miles from the area where the 36 acres in question lies. It therefore has no bearing on the instant appeal.

In Filo and Taliva'a v. Fe'a Tuileata Tauamo, LT No.1518-75, the court addressed the same issue as in the 1956 case, which therefore and for the same reason has no bearing on the instant appeal.

Appellant also relies on Amituana'i v. Fe'a & Tuileata, 12-1946 ("the 1946 case") because the [8ASR2d176] court there ordered Amituana'i to survey his claim through the U.S. Navy and that survey included only 10 acres. The current Amituana'i survey encompasses over 36 acres. Tuiolemotu points out that that hearing for injunctive relief did not address title to the land concerned therein, an area of approximately three acres in size. The discrepancy in acreage between the surveys was available to the trial court to consider in making its determination.

Finally, Tuiolemotu notes that the 1907 case, Amituana'i v. Uo, was prosecuted by Amituana'i on behalf of all of the families; Tuileata's argument that Tuiolemotu's absence from that case implies a lack of land interest is therefore not persuasive.

Tuileata also argues that occupation by Taliva'a and Fe'a, evidenced by earlier lawsuits and cases, should be imputed to the Tuileata family. That this use is continuous is shown by surveys made by Fe'a and Taliva'a. Again, this occupation concerns land that is distant from the land in question, and therefore is not relevant to the appeal.

Without much in the way of a factual basis, Tuileata contends that the Tuiolemotu family (whose survey the court below ordered registered) does not actually own the portion of Olovalu claimed in its survey, and that that land rather belongs to Tuileata.

Amituana'i cites evidence from the record below that the Tuileata family had no houses and plantations in the land covered in Amituana'i's survey, including testimony of Fe'a Tauamo, one of the parties in the case and a member of the Tuileata family. The senior matais of both the Amituana'i and Tuiolemotu families testified that Tuileata does not own property in this part of Olovalu.

In contrast to the long residence in Malaeloa, of the other claimants the Tuileata matai who laid claim to the 36 acre parcel came first to Malaeloa village in 1942 at the age of 34, left for the United States in 1952, and returned in 1975. He became a matai in 1982 and conducted the survey two years later. Fe'a testified that Tuileata did not understand the lands of the family. One of Tuileata's own witnesses, Chief Talia, testified [8ASR2d177] that Tuileata gave wrong testimony regarding the member of previous holders of the Tuileata title.

There was clearly considerable evidence given from which the court below could have determined that the Tuileata family was not entitled to the 36 acre parcel of Olovalu in question (other than the roughly 3-acre plot now occupied by Fe'a), and that the Amituana'i and Tuiolemotu families were. The decision below leaves open the question of what land the Tuileata family is entitled to in Olovalu, but there is apparently quite a bit of unregistered land remaining. While there is some dispute over the total acreage of Olovalu, the figures given range from 97 to 300 acres. On the record presented, the trial court did not commit clear error.

Accordingly, the judgment of the trial court is AFFIRMED.

*********

* Honorable Samuel P. King, Senior Judge, United States District Court for the District of Hawaii, serving by designation of the Secretary of the Interior.

** Honorable Alan C. Kay, Judge, United States District Court for the District of Hawaii, serving by designation of the Secretary of the Interior.

*** Honorable Malaetasi M. Togafau, Judge, District Court of American Samoa, serving by designation of the Secretary of the Interior.

Amerika Samoa Bank; Pritchard v.


JETTE PRITCHARD, Appellant

v.

AMERIKA SAMOA BANK and DEVELOPMENT
BANK OF AMERICAN SAMOA, Appellees

RON PRITCHARD, Appellant

v.

AMERIKA SAMOA BANK and DEVELOPMENT
BANK OF AMERICAN SAMOA, Appellees

High Court of American Samoa
Appellate Division

AP No. 2-88
AP No. 3-88

October 21, 1988

__________

Trial court's conclusion that a loan guaranty from which the name of the principal debtor had been omitted was intended to secure particular loans was supported by substantial evidence where circumstances surrounding the execution of the guaranty demonstrated the intent of the parties.

Argument that a written guaranty contract which omitted the name of the principal debtor was missing an essential term and thus was unenforceable as a matter of law was without merit, where the intention of the parties with regard to the missing term appeared from other evidence.

Contract was not ambiguous, and thus rules governing the resolution of ambiguous terms did not apply, where court found that the intent of the parties was clear but there was a clerical error in reducing the contract terms to writing.

Where plaintiffs were two banks, one of which had lent money and the other of which had guaranteed the loan, at least one plaintiff clearly had standing to sue and the addition of another plaintiff who mayor may not have had standing did not necessitate reversal of the trial court's [8ASR2d158] decision that defendants were liable to one or the other of the plaintiffs.

Since in the absence of a written agreement specifying the rate of interest applicable to a promissory note the statutory rate of 6% will apply, where a note specified an interest rate of 12.5% "until maturity" the rate after maturity was 6%. A.S.C.A. § 28.1501.

Before KING*, Acting Associate Justice, KAY**, Acting Associate Justice, LUALEMAGA, Associate Judge, and VAIVAO, Associate Judge.

Counsel: For Appellant Ron Pritchard, Togiola T.A. Tulafono
For Appellant Jette Pritchard, Roy J.D. Hall, Jr.
For Appellee Amerika Samoa Bank, William Reardon
For Appellee Development Bank of American Samoa, Steven H. Watson

These cases come before the Appellate Division on the appeals of Ron Pritchard ("Ron") in No. 03-88 and Jette Pritchard ("Jette" ) in No. 02-88 who were found by the trial court in CA No.118-87 to be liable to the Amerika Samoa Bank ("ASB") and the Development Bank of American Samoa ("DBAS") on a guaranty which they executed to secure loans made to business enterprises which they controlled.

On August 1, 1984, ASB loaned $275,000 to Samoa Air, Inc. ("Samoa Air") , a Hawaii corporation. The loan was secured by the individual continuing guarantees of Ron and Jette, respectively the President and Secretary of the corporation. The loan was also secured by a loan guaranty from DBAS dated June 20, 1984, which guaranty was backed up by a certificate of deposit [8ASR2d159] ("CD") with ASB in the amount of $300,000. It should be noted that Ron Pritchard was a director of ASB and had several businesses and several loans with ASB. The basic note was renewed more than once, the last renewal being on September 10, 1985, for 27 days, making the note due on October 7, 1985.

On February 25, 1985, Ron and Jette together signed a continuing guaranty in favor of ASB in the amount of $475,000. The form used by the bank had a blank space in which was to be inserted the name (or names) of the party (or parties) for whose indebtedness they agreed to be liable. This blank was never filled. On February 26, 1985, ASB loaned $200,000 to Ron Pritchard Ground Services, Inc. ("Ground Services") of which Ron and Jette were, respectively, the President and Secretary. This loan was secured by a continuing guaranty executed by Ron and Jette and a guaranty from DBAS, each in the amount of $200,000.

On July 15, 1985, Samoa Air filed for bankruptcy in Honolulu. Thereafter, and at a time when the Samoa Air loan and other obligations of Ron or his businesses were in default, ASB appropriated the CD for $300,000 and applied the proceeds to the $275,000 loan (with interest) and some other obligations of Ron or his many businesses. However, ASB has never formally assigned the underlying note of Samoa Air to DBAS.

ASB also sued Ron and Jette and Ground Services on the note and guarantees relating separately to the $200,000 loan. Default judgments were obtained against all parties, but the default against Jette was set aside. Collection of the judgments in that case is proceeding.

In this action ASB and DBAS are jointly suing Ron and Jette on the continuing guarantee of February 25, 1985 (in the amount of $475,000), but only in connection with the non-payment of the $275,000 loan. Why ASB did not seek to recover under the original guarantees for $275,000 does not appear in the record. Certain collateral which Ron had given to DBAS in connection with DBAS's guarantees on his behalf was liquidated by DBAS and the proceeds applied in part to reduce the amount due on the $275,000 loan. [8ASR2d160]

The trial court found that Ron and Jette were jointly and severally liable in the amount of$292,783.01 under the February 25, 1985 guaranty, without specifying the amounts due to each of the two banks.

Ron and Jette argue on appeal that the $475,000 guaranty contract was unenforceable because the space on the form contract for the name of the principal debtor whose debt was to be secured had not been filled in.. The trial court found that:

[i]t is clear from all the evidence that the parties intended
the February 25 guaranty in the amount of $475,000 to
secure the preexisting $275,000 debt to Samoa Air and
the $200,000 that was lent to Pritchard Ground Services
the next day.

Ron contends that this conclusion is clearly erroneous and not supported by the evidence because none of the banks' witnesses testified that the guaranty was prepared and exercised in conjunction with the Samoa Air note. The circumstances surrounding the transaction, however, themselves lend credence to the court's conclusion. That the ASB would require certain collateral before making the loan to Ground Services is supported by the requirement of the DBAS guaranty and certificate of deposit to secure the initial loan to the other Pritchard-controlled company, Samoa Air. The second loan of $200,000 was made on the day following the execution of the guaranty in question. The sum of the two loans together equals the amount of the guaranty. Finally, no alternative explanation appears to have been given as to why Ron and Jette signed the guaranty to ASB.

Given that the trial court was in a position to judge the credibility of the witnesses and the circumstances under which the guaranty was executed, we conclude that the court's determination of the parties' intent was supported by substantial evidence and was not clearly erroneous. [8ASR2d161]

Jette attacks the decision below on the basis that a guaranty contract which is missing an essential term is unenforceable as a matter of law. She does not cite any authority which specifically holds that the name of the principal debtor is an essential term which may not be implied or inferred from evidence beyond the four corners of the contract. For example, in Citizens Fidelity Bank & Trust Co. v. Lamar, 561 S.W.2d 326 (Ky. App. 1977), the court refused to enforce a contract, not because the one term was omitted from the written agreement, but because the "guarantors" had been persuaded by a tax-shelter peddler to sign completely blank guaranty agreement forms with no date, no principal name, and no amount, On that record the court found no meeting of the minds.

Jette also relied on Nevada State Bank v. Snowden, 449 P.2d 254 (Nev. 1969), in which the trial court found that a guaranty agreement which was missing the name of the principal debtor and a date was "substantially incomplete." However , because the court rested its resolution of the case on a different issue, it did not address whether parol evidence was available to fill in the gaps. And again in Azoulay v. Cassin, 512 N.Y.S.2d 900 (App. Div. 1987) the court looked at the circum- stances and determined that there was insufficient evidence of the parties' intent to fill in terms of an oral partnership agreement. Nu-Lite Electrical Wholesalers. Inc. v. Deckard & Treadaway Electric Air Conditioning & Refrigeration, 498 So. 2d 120 (La. App. 1986), relied on a Louisiana statute requiring contracts of guaranty to be in writing to find a guaranty contract which was missing the name of the principal obligor unenforceable. American Samoa does not have an equivalent statute.

Lastly, both Ron and Jette argue that at best the contract was ambiguous, and any ambiguity in such a form contract should be resolved against the drafter and in favor of the guarantors. See Inter-Sport. Inc. v. Wilson, 281 Ark. 56, 661 S.W.2d 367, 368 (1983). However, the court did not find that the contract was ambiguous: rather, it found that the intentions of the parties were clear but that there had apparently been a clerical error in reducing the terms to paper. Therefore, the rules which govern resolution of ambiguous terms do not apply here. [8ASR2d162]

Ron next makes what appears to be a standing argument. This issue may be improperly raised on appeal, as there is no indication that it was ever raised below. However, since neither of the appellee banks raises this objection, we will assume for present purposes that the issue is rightfully before this court.

The trial court held that "defendants are liable to one of the plaintiffs for all amounts still due on the loan, "apparently because it was not clear which of the banks was entitled to the money. ASB wrote off the loan on their books and seems to have done so without any formal transfer of the documents to DBAS, whose $300,000 certificate of deposit ASB cashed upon the default. The trial court held that, if ASB had rightfully appropriated the certificate of deposit then DBAS was subrogated to ASB's rights against Ron and Jette. If not, then ASB owes DBAS the $300,000 and therefore had not been made whole with respect to the Samoa Air indebtedness.

Ron argues that because the $275,000 obligation had been satisfied, presumably by the certificate of deposit, ASB had no claim and therefore was an improper party. He also claims that DBAS could not sue because American Samoa precludes the assignment of a "chose in action." As at least one of the plaintiffs to this suit clearly had standing, the addition of another plaintiff of more questionable status should not necessitate reversal. The two appellees can contest between themselves who is entitled to how much of the judgment award.

Ron Pritchard appeals from the court's award of 12.5% post-judgment interest. Although A.S.C.A. § 28.1503 authorizes a rate of 18% for commercial or business lending, Ron contends that 12.5% is usurious as charged against an individual such as himself. However, this was clearly a business transaction. Even if it were a non-business loan, the statutory maximum rate of interest for such loans is 15%. However, the last renewal of the $275,000 note calls for interest of 12.5% only "until maturi ty ." The statutory rate where no interest is specified is 6% per A.S.C.A. § 28.1501. Thus, the rate of interest on the note after maturity cannot exceed 6%. Appellee acknowledges this proposition, citing Turner Coleman. Inc. v. Ohio Construction and Engineering. Inc. , 251 S.E.2d [8ASR2d163] 738 (S.C. 1979), for the proposition that the statutory rate of interest on money judgment or decrees is applicable only in the absence of a written agreement between the parties fixing a different rate of interest. Here there was no written agreement between the parties fixing any rate of interest after maturity. Also, the last renewal of this note on September 10, 1985, is in the exact amount of $275,000. Presumably, all previous interest had been paid in full. Thus no interest is due under the renewal note for periods prior to September 10, 1985.

The matter is remanded to the trial court for recalculation of interest due consistent with this opinion.

In all other respects, the judgment of the trial court is AFFIRMED.

*********

* Honorable Samuel P. King, Senior Judge, United States District Court for the District of Hawaii, serving by designation of the Secretary of the Interior.

** Honorable Alan C. Kay, Judge, United States District Court for the District of Hawaii, serving by designation of the Secretary of the Interior.

American Samoa Power Auth.; Pene v.


SEIGAFOLAVA R. PENE and CARMENCITA PENE, Plaintiffs

v.

AMERICAN SAMOA POWER AUTHORITY and ABE MALAE, Executive Director, Defendants

High Court of American Samoa
Trial Division

CA No. 67-88

August 29, 1988

__________

Clerk's entry of default may, in court's discretion, be set aside for good cause. T.C.R.C.P. Rule 55(c).

Court would exercise its discretion to set aside an entry of default where defendant's failure to timely answer was due to administrative oversight, prior to the expiration of time to answer defendant had appeared in opposition to a motion for injunctive relief, plaintiffs' claim involved a substantial sum of money, there was doubt about whether the complaint and summons were properly [8ASR2d79] served, and plaintiffs were not prejudiced by defendant's delay, T.C.R.C.P. Rule 55(c).

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

Counsel: Plaintiffs S.R. Pene and Carmencita Pene pro se
For Defendants, James Doherty, Enere H. Levi, Martin R. Yerick, and
Arthur Ripley, Jr., Assistant Attorneys General

Defendants seek to set aside default entered by the clerk upon the application of plaintiffs. Defendants appear to have been 5 days late in filing their answer and accordingly move the Court pursuant to Trial Court Rules of Civil Procedure (T.C.R.C.P.) Rule 55(c).

It should be noted that plaintiffs, upon securing the entry of default, filed contemporaneously a motion for default judgment which was duly set by the clerk for hearing on August 24, 1988. One day prior to that hearing, defendants filed their motion to set aside default and also sought to have the motion placed on the Court's calendar of August 24, 1988. This setting was administratively permitted. However, at the hearing the Court explained to plaintiffs (who appeared pro se) their entitlement to at least 10 days notice of defendants' motion and offered them a continuance. This option was declined and the motion to set aside default taken up.

T.C.R.C,P, 55(c) tracks the federal rule. It speaks of relief in terms of "good cause" shown and the granting or denial of relief has been repeatedly held to come within the sound discretion of the trial court.

Exercising this court's oft-stated preference of a trial on the merits to summary proceedings, we grant defendants' motion to set aside default. Defendants did not intentionally ignore plaintiff's complaint. Nor did defendants act in bad faith. Instead we essentially find here a situation of inaction attributable to counsel's administrative slip-ups in attorney work management and the scheduling of off-island travel, Indeed, [8ASR2d80] prior to the expiration of time for answering the complaint, government counsel made an appearance to oppose plaintiffs' preliminary motion for injunctive relief; yet no one filed an answer. Although the Attorney General should take note of this uncharacteristic breakdown in coordination wi thin his office, these circumstances are not the sort of neglect that should be held against the client.

Against this, we have given due regard to potential prejudice to plaintiffs. While the 5 day delay may be seen as having caused unnecessary inconvenience to plaintiffs in first having to seek default measures and then finding themselves having to contest a defense motion to set that default aside, these are hardly sufficient grounds to tip the balance of equities against the defendants.

Additionally, plaintiffs' claim involves a substantial sum of money. This has been a recurring ground cited in the cases to favor a hearing on the merits over adjudication by default proceedings.

Finally, and although not addressed by either side, the record on file with the clerk raises some doubt whether service of the complaint and summons was sufficiently perfected in order to trigger the commencement of the twenty day period for answering the complaint. The defendant, American Samoa Power Authority, is a statutory corporation with capacity to sue and be sued. However, the very first provision of the incorporating statute, A.S.C.A. § 15.0101, talks of establishing "a governmental agency within the executive branch of the government," Given this description of the Authority, we look to T.C.R.C.P. 4(d)(6) which requires service upon the American Samoa Government "or other governmental organization in American Samoa subject to suit," to be made by delivering a copy of the complaint and summons to the Attorney General or to his designated representative. From what we gather by way of returns and the affidavits of counsel on file, it appears that service was not made by delivery to the Attorney General. In that we were not briefed on the issue raised, we do not rule on the matter at this time. It suffices for our purposes here to merely mention our reservations. [8ASR2d81]

As both parties have alternatively indicated to the Court not only their desire but also readiness to set this matter for immediate trial, an order will also enter directing the clerk to set this matter for hearing within 30 days hereof and to notice the parties accordingly.

It is so ordered.

**********

American Samoa Gov’t v. Samana,


AMERICAN SAMOA GOVERNMENT, Plaintiff

v.

PENI SAMANA, Defendant

High Court of American Samoa
Trial Division

CR No. 36-88
CR No. 54-86

July 6, 1988

__________

Evidence obtained from an illegal search and seizure is inadmissible, not only in criminal proceedings but also in probation revocation proceedings. Rev'd Const. Am. Samoa art. I § 5.

Whether a confidential informant's tip supplies sufficient probable cause to issue a search warrant is to be tested by the totality of circumstances set forth in the affidavit.

Under the totality of circumstances test for probable cause, the informant's basis of knowledge and credibility are important but not determinative factors, and, despite deficiencies in those factors, a finding of probable cause may be supported where other corroborative information or indicia of reliability are set forth in the affidavit.

Court reviewing a prior determination of probable cause to issue a warrant must ask whether the affidavit, viewed as a whole, provided a substantial basis for the finding of probable cause and may not make a post hoc, de novo determination.

Affidavit that was based on a confidential informant's tip, without direct information about how the informant obtained his knowledge, about the informant's credibility, or about independent corroborative efforts of the police, and which contained no other indicia of reliability or corroborative information, was conclusionary and did not support a finding of probable cause. [8ASR2d2]

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

Counsel: For Plaintiff, James Doherty, Assistant Attorney General For Defendant, Herbert Evans, Assistant Public Defender

On Motion to Suppress Evidence:

In case docketed CR No. 54-86 the defendant, Peni Samana, was convicted of possession of a controlled substance in violation of A.S.C.A. § 13.1022, a class D felony. He was sentenced thereunder to five years imprisonment execution of which was suspended and defendant was placed on probation for a period of five years subject to a number of conditions. One of those conditions was that defendant "not violate any law of the Territory."

Recently, and within the period of probation, defendant is charged in case docketed CR No. 36-88 with the unlawful production/cultivation of a controlled substance ---marijuana ---in violation of A.S.C.A. § 13.1020, an unclassified felony. As a result plaintiff American Samoa Government has moved to revoke defendant's probationary status in CR No.54-86.

The defense has moved to suppress evidence collected pursuant to a search warrant issued by the District Court. Defense counsel contends that the warrant was not based upon a legitimate finding of probable cause, because the affidavit submitted in support of the warrant contained information provided to the police by a confidential informant about whom no information is provided.

The government "concedes" that the evidence would not be admissible in an independent criminal prosecution. It contends, however, that the exclusionary rule does not operate to exclude illegally discovered evidence from proceedings to revoke probation. The government directs us to a number of state and federal court decisions to that effect, but in our examination of those decisions we do not find them to be of persuasive value to this jurisdiction. For example, the government cites State v. Foisy, 384 A.2d 42 (Me. 1978), as [8ASR2d3] possible authority that a similar constitutional provision has been treated as coextensive with the federal fourth amendment. As it turns out, however, Maine does not seem to have an exclusionary rule as part of its constitution; to the contrary, until it was obliged by Mapp v. Ohio, 367 U.S. 643 (1961) and Ker v. California, 374 U.S. 23 (1963) to apply the exclusionary rule as a requirement of the federal fourth amendment, Maine did not enforce an exclusionary rule at all. State v. Stone, 294 A.2d 683, 693 n. 15 (Me. 1972).

The Revised Constitution of American Samoa, Article 1 section 5, prohibiting unreasonable searches and seizures, tracks the language of the fourth amendment to the United States Constitution but then includes the following:

Evidence obtained in violation of this section shall not be admitted in any court.

This last sentence explicitly entrenches the exclusionary rule in the American Samoa Constitution whereas its federal (and Maine) counterpart exists only by case development and judicial policy. This provision is more narrowly defined than the fourth amendment and therefore it follows that, whatever the policy reasons for viewing the fourth amendment's exclusionary requirements as applicable only to initial criminal proceedings but not to probation revocation proceedings, those policy reasons have been rendered irrelevant by the framers of the territorial constitution. The language is clear and the purport of the provision comprehensive and therefore lacking the flexibility accorded the fourth amendment. In American Samoa, therefore; evidence which is obtained from an illegal search and seizure is inadmissible not only in an initial criminal proceeding but also in a pro~ion revocation proceeding. (1) [8ASR2d4] [8ASR2d5]

If it thus turns out that the evidence here seized was in violation of Article I section 5, then it is also inadmissible even in the probation hearing.

The question now arises whether the warrant was clearly defective as the government concedes. Article I section 5 provides in part:

no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and things to be seized.

The police officer's affidavit supporting the warrant contains the following: (a) that in Sogi District of Leone, on the land of Peni Samana, between the one house and sami, there are marijuana plants being cultivated in the midst of other dense vegetation. The plants are located approximately thirty yards from the house; some of the plants are growing directly in the soil and some of the plants are in pots on top of the ground. The plants range in height from three to five feet tall; (b) I have received this information about these plants from a confidential informant who lives in Leone. This informant reported to me on March 30, that Peni [8ASR2d6] Samana was also searching the neighborhood trying to find out who had stolen some of his marijuana plants; and (c) I have reviewed the criminal records and found that Peni Samana pled guilty in 1986 to a charge of cultivating marijuana. On November 26, 1986 he was placed on five years probation for that offense by Judge Thomas Murphy.

Since Illinois v. Gates, 462 U.S 213 (1983), (shortly followed by Massachusetts v. Upton, 466 U.S 727 (1984)) the technical and formulaic analysis of probable cause created in Aguilar v. Texas, 378 U.S 108 (1964), and Spinelli v. United States, 393 U.S 410 (1969), in connection with information gained from an undisclosed informant, has been displaced in favor of a "totality of the circumstances" test. The formerly rigid "two prong test" required the affiant to reveal (a) some underlying circumstances from which the informant concluded that contraband is where he claims it is (the "basis of knowledge prong" ) ; and (b) some underlying circumstances from which the affiant concludes that the informant is credible or his information reliable (the "veracity" prong). Aguilar, supra, at 114. If the informant's tip is found inadequate under this two pronged test, then other allegations in the affidavit corroborating the information could sustain probable cause. Spinelli, supra, at 415.

In Gates, the Court while acknowledging the continuing importance and relevancy of "veracity" and "basis of knowledge, " dismissed the prior understanding that these elements were entirely separate and independent requirements to be rigidly exacted in every case. Rather, they were to be understood simply as closely intertwined issues that may usefully illuminate common sense, practical question as to whether under the totality of the circumstances there is "probable cause" to believe that contraband is located at a particular place.

Thus under the totality of the circumstances analysis, "a deficiency in one (element] may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability." Gates, supra, at 233. The examples given by the Court of attendant indicia essentially illustrate that a warrant based on a tip which might not be sufficient by itself can nonetheless survive if the [8ASR2d7] information provided by the tip is combined with other corroborative information that in sum would justify a finding of probable cause.

As viewed by Gates, the magistrate's exercise is a factual one dealing in probabilities and appealing to practical considerations of every day life on which reasonable and prudent men act rather than to the technical world of legal technicians, On the other hand a reviewing court is subject to a deferential standard; that is, it may only address whether the evidence viewed as a whole provided a " substantial basis " for the magistrate's finding of probable cause as opposed to an after the fact de novo assessment of probable cause, Upton, supra, a 733.

We turn now to review the affidavit in question, The "basis of [the informant's] knowledge" that marijuana was being grown on defendant' property is far from clear on the affidavit. There is no direct information about how the j informant obtained his knowledge--- whether itl was from personal observation, or from a further undisclosed informant, or from inference drawn by the informant himself on the basis of information known only to him, or even perhaps through hunch or speculation.

Similarly in terms of "veracity" the affidavit is not clear. The usual recitals pointing to creditability or reliability of an undisclosed informant are not present here (2) ---that the informant has previously proved to be reliable as shown by information he has supplied in the past to be accurate, that the informant is known to affiant as a reliable person and has provided him information in the past, that the informant is an honest citizen stepping forward to report criminal activity. The affidavit contains no specific statement assuring the reliability of the source. [8ASR2d8]

On the other hand we would be remiss with regard to Gates' teachings if our analysis ended here as neither of the foregoing elements are independently indispensable. The "basis of knowledge"/"veracity" of the informant are merely two important factors to be assessed against all the circumstances set forth in the affidavit. With this in mind we look for other "corroborative" factors and other "indicia of reliability."

Arguably the informant's statement, that the defendant was searching the neighborhood trying to find out who had stolen his plants, could be a basis for crediting the informant with knowledge of growing plants (and therefore veracity) when coupled with the detail given regarding where the plants were said to be growing on defendant's property. This could be a plausible factor but in the circumstances the resulting inference is tenuous. The basis of the inference suffers from the same general deficiency noted above and that is the "basis of the informant's knowledge" that the defendant was searching the neighborhood. Was this information gathered on first hand observation, or third party reports, or plain old village rumour. Again the affidavit is unclear. Additionally there is no hint on how fresh the data was, at least with regard to when the marijuana was observed on defendant's property. The data given relates in time to when the defendant was looking for his stolen contraband.

Independent corroborative efforts were apparently nil. The value of corroborating details of an informant's tip by independent police work was clearly highlighted in such cases as Draper v. United States, 358 U.S. 307 (1959), and Jones v. United States, 362 U.S. 257 (1960). We also note on this affidavit the complete absence of reference to any independent corroboration attempts to check out the tip itself. In these circumstances the only assumption that can be reasonably drawn is that the police were content to rely on the informant's veracity.

One other matter set out in the affidavit was the affiant's awareness of the prior conviction of the defendant for the same offense charged hereunder as well as of the defendant's current probationary status. Does this information shed a different light on the other paragraphs asserting [8ASR2d9] knowledge of growing plants and a search for stolen plants undertaken by the defendant?

We cannot so conclude even cautious of our limitation on review to give "great deference" to the magistrate and mindful of the requirement that we should guard against " [a] grudging or negative attitude ..toward warrants. " United States v. Ventresca, 380 U.S. 102, 108 (1965). The informant's tip standing alone is intrinsically inadequate and uncorroborative. The separately independent information of the officer regarding the defendant's prior record really provides no nexus for probability. From a common sense view point the best that the officer's statement may add in the. circumstances is nothing more than "suspicion" and that suspicion in turn lacks both corroboration and other indicia of reliability. (3)

As stated above the information given the district court judge must provide a substantial basis for determining the existence of probable cause. A district court judge must himself make a detached judgment as to the reliability of the sources of the affiant's information. E.g., United States v. McCoy, 478 F.2d 176 (l0th Cir.), cert. denied 414 U.S 828 (1973). This possibility was not provided by the affidavit which we viewed above as permitting no more a conclusion than that the affiant himself was relying on the informant's reliability .The principal statement concerning criminal activity in the affidavit is left standing on its own unsupported by the remainder of the affidavit in terms of corroboration and other indicia of reliability. As such, the affidavit before the district court judge was in essence conclusionary and accordingly without any basis at [8ASR2d10] all to sustain a judgment of probable cause. Nathanson v. United States, 290 U.S. 41 (1933).

On the foregoing we conclude, in agreement with the government, that the warrant issued was in violation of Article 1, section 5 of the Revised Constitution of American Samoa and therefore any evidence thereby obtained is inadmissible in any court.

The motion to suppress is granted and it is so ORDERED.

*********

1. The state of Florida's experience is persuasive. Similar to Article 1 section 5 of the Revised Constitution of American Samoa, the Florida Constitution contains an explicit constitutional exclusionary rule. Article 1, section 12 thereof provides for the right against unreasonable searches and seizures and further contains the following language:

"Articles or information obtained in violation

amendment has prompted the state appellate courts in a number of cases to certify the question whether the 1983 constitutional amendment had affected ~. See. e.~., Tamer v. State, 463 So. 2d 1236 (Fla. App. 1985); Pina v. State, 473 So. 2d 736 (Fla. App. 1985). At this time we have not been able to ascertain whether the Florida Supreme Court has answered the question certified. The observation however to be made with the above is that while the judicially developed rule is readily subject to refinement by the courts, a constitutional rule change is better left to the appropriate policy makers for constitutional amendments.

2. Compare the affidavit given as the basis for the warrant issued in the earlier case CR No. 54-86. There the district court judge was provided a litany of reasons concerning the reliability of the undisclosed informant.

3. Indeed the officer's statement of prior conviction could have been the subject of a timely motion to strike under Franks v. Delaware, 438 U.S. 154 (1978), as having been made with reckless disregard for factual accuracy. The officer deposed to a prior conviction of cultivation/production of a controlled substance in CR No. 54-86 whereas the Court's written judgment and sentence thereunder pertains to a violation of the lesser offense of "possession" of a controlled substance.

American Samoa Gov’t v. Tile,


AMERICAN SAMOA GOVERNMENT, Plaintiff

v.

FUE JUNIOR TILE, Defendant

High Court of American Samoa
Trial Division

CR No. 27-85

October 4, 1988

__________

Motion for reduction of sentence must be made within 120 days of sentencing; this time limit cannot be extended. T.C.R.Cr.P. Rules 35, 45.

Unlike federal rules of criminal procedure promulgated under the authority of Congress and binding on federal courts to the same extent as statutes, territorial rules are made by the Court itself, so that a time limit provided by territorial rule is not as obviously jurisdictional as a similar limit provided by federal rule. Rev'd Const. Am. Samoa art. III § 2; A.S.C.A. § 3.1002(c).

Statute explicitly recognizing power of Chief ,Justice to make exceptions to rules is clearly not inconsistent with constitutional provision for judicial independence. Rev'd Const. Am. Samoa art. III § 2; A.S.C.A. § 46.0501.

Reasonable legislative regulation of judicial procedure does not necessarily conflict with judicial independence. Rev'd Const. Am. Samoa art. III § 2; A.S.C.A. § 46.0501. [8ASR2d121]

Even if court has authority to disregard or make exceptions to its own rules, it would be imprudent to make such exceptions on an ad hoc basis in order to reach the desired result in a particular case.

Before REES, Chief Justice.

Counsel: For Plaintiff, James Doherty, Assistant Attorney General
For Defendant, Albert Mailo

On Motion for Reduction of Sentence:

Fue Junior Tile moves for the reduction of a thirty-year sentence imposed on July 3, 1985, after he pleaded guilty to second degree murder. (1) The Court is urged to reduce the sentence because of Tile's "exemplary" conduct as an inmate and because of the rehabilitative effects the first years of his sentence have wrought.

The government has moved that the motion be dismissed, arguing that the Court is without jurisdiction to entertain a motion to have a sentence reduced when the motion was filed after the expiration of the time limit provided in the rules of criminal procedure.

Rule 35(b) of the Territorial Court Rules of Criminal Procedure states that a motion for reduction of sentence must be made within 120 days of sentencing. Rule 45(b), generally governing the [8ASR2d122] time limits set forth in the rules, states that the limit imposed in rule 35 cannot be extended.

Authorities construing Rule 35(b) of the Federal Rules of Criminal Procedure, which is worded identically to our Rule 35(b), support the government's position. The federal judiciary's power to reduce a sentence is entirely statutory. Prior to the approval of Rule 35 by Congress, a federal trial court had no authority to reduce a sentence once it had been imposed. See United States v. Murray, 275 U.S. 347, 358 (1928). The time limit in the federal rule was adopted to serve two purposes: to forestall the endless barrage of requests for clemency that the courts would otherwise face, and to ensure that the courts do not usurp the authority of parole officials by retaining jurisdiction indefinitely and deciding whether to reduce sentences in the light of the movant's conduct during an extended period of imprisonment. See United States v. Smith, 650 F.2d 206, 208 (9th Cir. 1981).

On the latter point Professor Moore has remarked that "[s]ome limitation on the court's power seems to be necessary, for after a lapse of time the peculiar ability of the court to determine sentence gives way to the presumably greater competence, and knowledge, of penal authorities." 8A J. Moore, Federal Practice par. 35.02[1] at 35-4 n. 5 (2d ed. 1974), quoted in United States v. United States District Court, 509 F.2d 1352, 1356 n.6 (9th Cir. ), cert. den. 421 U.S. 962 (1975). Some courts hold that it is not ever appropriate for a court to reduce a sentence on the basis of the prisoner's conduct in jail. Such holdings are based on the executive branch's power under the Constitution to grant reprieves and pardons (U.S. Const. art. II § 2) and on the congressional design to allocate the release function between the judiciary and the executive. See, e.g., United States v. Quinones, 508 F. Supp. 473, 476, 479 (D.N.J. 1980) .

A federal court operating under the federal rule would clearly have no jurisdiction to hear the present motion. It does not automatically follow, however, that an identically worded rule of the High Court of American Samoa also states a jurisdictional limitation (as opposed to a sort of guideline to which the Court might make exceptions in appropriate circumstances). This uncertainty [8ASR2d123] derives from important differences in the constitutional and statutory provisions granting and limiting the powers of the federal and territorial courts respectively.

The federal constitution gives Congress the power to "ordain and establish" the lower federal courts, and this power has long been held to include the power of regulation. U.S. Const. art. III § 1; Sheldon v. Sill, 49 U.S. (8 How. ) 441 (1850); Turner v. Bank of North America, 4 U.S. (4 Dall. ) 7, 10 n. 1 (remarks of Chase, J. ) (1799). The Federal Rules of Criminal Procedure are promulgated under the authority of Congress and are binding on the federal courts to the same extent that statutes would be binding. 18 U.S.C. § 3771; Davis v. United States, 411 U.S. 233 (1973); Singer v. United States, 380 U.S. 24, 37 (1965); United States v. Mitchell, 397 F. Supp. 166 (D.D.C. 1977), aff'd 559 F.2d 31 (D.C. Cir. 1976), cert. den. 431 U.S. 933 (1977). In American Samoa, on the other hand, the Court makes its own rules. See A.S.C.A. § 3.1002(c); Rev'd Const. Am. Samoa art. III §§ 2 ("The judicial branch of the Government of American Samoa shall be independent of the executive and legislative branches."). Although we happen to have imposed a time limit identical to that of federal rule 35, ours is not as obviously jurisdictional. (2)

Even if the Court does have authority to disregard or make exceptions to its own rules, however, it would be inconsistent with the prudent [8ASR2d124] exercise of judicial authority to do so on an ad hoc basis in order to reach the desired result in a particular case. Our rules were the product of long deliberation by lawyers and judges who had the opportunity to weigh the desirability of alternative rules in light of their collective experience in hundreds or thousands of cases. Evidently these lawyers and judges determined that circumstances in American Samoa were not sufficiently dissimilar from those in the United States to justify a different rule for the reduction of sentences. A similar committee chaired by Associate Justice Kruse is currently in the process of examining the rules in order to recommend possible changes. In the meantime, those whose efforts resulted in the current rules have clearly stated their intention that "the court may not extend the time for taking any action under [Rule] 35." T.C.R.Cr.P. 45. That intention should not be lightly disregarded.

The motion is denied.

*********

1. The motion was heard by the Court on February 17, 1988. At the conclusion of counsel's argument the Court noted that Rule 35 of the Territorial Court Rules of Criminal Procedure gives the Court authority to reduce a sentence only within 120 days after sentence is imposed. Since this motion was made about two and one half years after sentencing, the Court was under the impression that these remarks from the bench disposed of the matter. Counsel for the government recently pointed out to the Court, however, that the matter was formally taken under advisement. Hence the present opinion and order.

2. The Fono has provided by statute that criminal procedure in the High Court shall conform as nearly as is practicable to the Federal Rules of Criminal Procedure, "[e]xcept as otherwise provided in this Code, or by rules adopted by the Chief Justice." A.S.C.A. § 46.0501. Since this statute explicitly recognizes the power of the Chief Justice to make exceptions, it is not even arguably inconsistent with the requirement of the territorial constitution that the judiciary remain independent of the legislative and executive branches. Nor is it clear that reasonable legislative regulation of judicial procedure necessarily conflicts with judicial independence. See Vessel Fijian Swift v. Trial Division, 4 A.S.R. 983 (1975).

Estate of Lagafuaina; Puailoa v.


PUAILOA TAVETE, Plaintiff

v.

ESTATE OF LAGAFUAINA LAISENE, FA'AOPOOPO
LAGAFUAINA, Executrix, HUGO GEBAUER, MARCUS
LANGKILDE, LEFAGA BEAVER, SMITH HO CHING,
TELE'A PULETASI, FALENOFOA STEFFANY, ROBERT
C. PAYES, ROY J.D. HALL, Jr., TUI MARCUS, and
SOLA PENEI SEWELL, Defendants

High Court of American Samoa
Land & Titles Division

LT No. 18-87

July 18, 1988

__________

Limitation of actions and adverse possession, while facts giving rise to them are usually intertwined, are separate laws and may sometimes depend on different facts. A.S.C.A. §§ 37.0120, 43.0120(6).

Purchaser's possession of land as lessee prior to her purchase might count toward thirty year period for adverse possession, but did not prevent the purchase from giving rise to a new cause of action for the purpose of twenty year statute of limitations. A.S.C.A. §§ 37.0120, 43.0120(6).

If claimant of land was unaware of the identity of occupants of the land at the time suit was filed, naming the occupants as "Doe defendants" was sufficient to toll the statute of limitations. A.S.C.A. § 43.0120(6). [8ASR2d37]

Commencement of an action ordinarily suspends the running of the statute of limitations not only in favor of parties to the action but also in favor of those claiming under them, including lessees.

Where there is no evidence of circumstances surrounding delay in filing suit, except for plaintiff's assertion that he did not know defendants were occupying his land until shortly before suit was filed, court could not grant summary judgment for defendants on the ground of laches.

Court would allow executor of decedent's estate to be joined as defendant in action concerning title to land even though period for filing claims against estate in separate probate action had expired; judge in probate action, however, would have discretion to distribute decedent's property to heirs without regard to pendency of the land case, and heirs could then be substituted for executor as defendants in land case.

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

Counsel: For Plaintiff, Charles Ala'ilima
For Defendant Marcus Langkilde, William Reardon

On Motion to Dismiss or for Summary Judgment:

Since this motion and the accompanying memorandum and affidavit call our attention to facts not discernible from the face of the complaint and answer, we consider it as a motion for summary judgment. We assume the following facts:

In 1965 Marie Langkilde leased property from Lagafuaina Laisene. In May of 1966 Marie and her husband Marcus Langkilde entered into possession of the leased land. On October 29, 1968, Marie Langkilde purchased the land from Lagafuaina and the lease was cancelled.

In 1983 this action was filed by plaintiff Puailoa. The action was designated a civil action; it sought various sorts of relief including a declaratory judgment that 60 acres called Malaeimi [8ASR2d38] was communal land of the Puailoa family and an injunction putting Puailoa into possession of the land. The named defendants were the estate of Lagafuaina, the executrix of the estate, and "Does I thru X." Plaintiff Puailoa swore that these unnamed defendants were occupying parts of the land but that he did not know their correct identities. For the purpose of this motion we assume the truth of this assertion and of the other assertions in the verified petition to the effect that Malaeimi was communal land of the Puailoa family which was improperly conveyed to Lagafuaina by his sister, the widow of a former Puailoa titleholder.

In July of 1987 the Court granted plaintiff's motions to transfer this action to the Land and Titles Division and for an amendment of the complaint to substitute the names of ten persons, including Marcus Langkilde, for "Does I thru X."

On July 30, 1987, Marcus Langkilde was served with a copy of the amended complaint.

On August 4, 1987, Marie Langkilde died. Her estate has been admitted to probate; Marcus Langkilde is the executor. A notice to creditors to file claims against the estate within 60 days was published in a local newspaper on February 12, 1988, and no claims were filed. The Court has not yet approved a final order closing the estate and distributing Marie's property to her heirs or legatees.

Defendant Marcus Langkilde makes this motion for summary judgment on three grounds: that the action is barred by the twenty-year limitation on actions to recover possession of real property provided by A.S.C.A. § 43.0120(6); that the action is barred by laches; and that the complaint should be dismissed for failure to join an indispensable party, Marie Langkilde.

I. The Statute of Limitations

Counsel for defendant Langkilde argues that plaintiff's action against Langkilde, if any, accrued not with the sale in October of 1968 but with the lease in 1965 or when defendant and his late wife went into possession of the land in 1966. Counsel therefore contends that the twenty-year [8ASR2d39] limitation period had already expired when [t]his action was filed July 8, 1987."

This contention must be rejected for several reasons:

1) The sale in 1968 gave rise to a new relationship between the Langkildes and the land in question, a new set of claims and defenses between plaintiff and defendant, and therefore to the accrual of a new cause of action.

Prior to 1968 the Langkildes' right to occupy the land was incidental to whatever right Lagafuaina had. Any demand that the Langkildes leave the land would doubtless have been referred to Lagafuaina; and a successful lawsuit against him, while not technically binding on the Langkildes, would almost certainly have been dispositive of all issues in a subsequent action for their eviction.

After 1968 Marcus Langkilde claimed his right of occupancy through Marie and Marie claimed to possess the land in her own right. An action against Lagafuaina would no longer be dispositive of the result in an action against the Langkildes; indeed, Lagafuaina would not even be an indispensable party in such an action. Although the Langkildes' possession of the land prior to 1968 might well count toward the thirty years' adverse possession after which they would own the land as a matter of substantive law, this prior possession did not prevent the accrual of a new cause of action (a procedural question distinct [8ASR2d40] from the substantive question of ownership (1)) when Marie Langkilde purchased the land in 1968.

2) In any case, even where possession is under a title courts have generally held that it must be open and notorious in order to trigger the beginning of the statute of limitations. If open and notorious possession did not begin prior to July 1967, the statute of limitations has not run even by plaintiff's counsel's reckoning. We have on the present record no evidence of the nature of the Langkildes' possession in this period. We are told, for instance, that they built a home and resided on the land, but not when they began to do so.

3) Moreover, this action was filed not in 1987 but in 1983. Plaintiff and defendant disagree [8ASR2d41] about whether plaintiff knew the Langkildes' identity at that time. On a motion for summary judgment we are bound to view the facts in the most favorable light for the party against whom judgment is sought; assuming that plaintiff was unaware of the Langkildes' identity, his designation of them as "Doe defendants" was sufficient to toll the statute of limitations.

4) Assuming arguendo that the plaintiff's cause of action accrued in 1965 when Marie Langkilde leased the land from Lagafuaina, it would appear that the filing of suit against Lagafuaina in 1983 tolled the running of the statute against the Langkildes even if plaintiff knew their identities and did not serve them. Commencement of an action ordinarily suspends the running of the statute not only in favor of parties to the action but also in favor of those claiming under them. We recognize, of course, that since 1968 Marie Langkilde had a distinct claim of ownership in her own right. However, the only claim that existed twenty years before defendant Marcus Langkilde was named as a defendant in this action and therefore the only claim that could possibly serve as a basis for his reliance on the twenty year statute of limitations ---was the claim to possess the land as Lagafuaina's lessee. The statute of limitations against plaintiff's right to controvert that claim was suspended in 1983 when Lagafuaina was sued.

5) Finally, we note what appears to be the broad holding of the Appellate Division in Reid v. Puailoa, 1 A.S.R.2d 85 (1983), to the effect that communal land can never be acquired through adverse possession by an individual. Id. at 88-89 n.1. Although the Court cites only A.S.C.A. § 37.0120, the substantive thirty year adverse possession statute, the appellant in Redi had sought to overturn the trial court's holding on the ground that it also controverted A.S.C.A. § 43.0120(6), the twenty year statute of limitations at issue in the present case. See Reid v. Puailoa, AP No. 14- 82, Reply Brief of Appellant Reid at 19. Since the appellant in Reid had occupied the land under a deed for 26 years, the issue seems necessarily to have been decided. The Court's reasoning ---that the legislature's enactment of various provisions restricting the conversion of communal land to individual land is inconsistent with a desire to allow such conversion to occur by operation of the [8ASR2d42] adverse possession statute ---seems to apply with equal force to the statute of limitations.

Inasmuch as we have already decided the issue on far narrower grounds, however, we need not decide whether and how this holding of R§§ig applies to the present case.

II. Laches

The determination of whether an action is barred by laches entails a fact-intensive inquiry. At present we know almost none of the facts about this case. Since there is no evidence in the present record concerning the circumstances surrounding the delay in filing suit ---except plaintiff's assertion, which we are bound to accept for the purpose of the present motion, that he did not even know the Langkildes were on his land until sometime after 1983 we cannot grant summary judgment on the ground of laches.

III. Failure to Join an Indispensable Party

When plaintiff named the "Doe defendants" in 1987 he named Marcus Langkilde rather than Marie, the record owner of the tract on which the Langkildes lived. Plaintiff's counsel learned that the proper party defendant was not Marcus but the Estate of Marie Langkilde on or shortly after April 5, 1988, when defendant's counsel filed answers to plaintiff's interrogatories. Counsel for defendant Marcus Langkilde now maintains (1) that the Estate of Marie Langkilde is an indispensable party to this action and (2) that the Estate can no longer be joined as a party, since the 60 days in which creditors could have filed claims against the estate expired on or about April 12, 1988.

We agree that either the Estate or the heirs of Marie Langkilde should be joined in this action. The 60-day limit on claims by creditors of the Estate is not jurisdictional, and to allow a late claim under the present circumstances would appear reasonable. The property seems still to be registered in the name of the Estate rather than of the heirs or legatees. Plaintiff's counsel seems first to have learned that his client might have a claim against the Estate via answers to interrogatories that appear themselves to have been [8ASR2d43] filed about 90 days late. By then there was about one week left before the closing date for claims. Plaintiff's counsel may not have known of the deadline, since the notice appears to have been published in the newspaper but not sent directly to plaintiff or his counsel.

Whether to allow a claim to be filed against the Estate, however, is a question for the judge in the probate case. We will allow the joinder of Marcus Langkilde in his capacity of Executor of the Estate as a defendant in this action, but we cannot guarantee that it will have the juridical effect desired by plaintiff. It is within the discretion of the judge in the probate case to distribute the property to the heirs or legatees without regard to a claim now filed by plaintiff. In that case, the heirs or legatees would receive only whatever interest Marie actually owned. That, in turn, is a question partly for determination in the present case. If necessary, her successors in interest can be joined as parties to this litigation.

Conclusion

The motion for summary judgment is denied. Marcus Langkilde in his capacity as Executor of the Estate of Marie Langkilde is added as a party defendant.

It is so ordered.

*********

1. It is important to remember that the limitation of actions and the doctrine of adverse possession, while the facts giving rise to them are usually intertwined, are separate laws with somewhat different underlying principles. They may therefore sometimes depend on different facts. Adverse possession concerns itself primarily with the nature of defendant's possession of the land: someone who possesses for ten years under no title at all, then for twenty years under a deed from someone who does not own the land, may nevertheless acquire it so long as his possession is continuous, open, notorious, exclusive, and hostile for the whole thirty years. However, an important change in the nature of the possessor's claim to the land or of the record owner's relation to it may result in the accrual of a new cause of action and thus toll the statute of limitations. This means that an owner of record may, if various persons with some legal relationship to one another have been possessing the land for thirty years, have a procedural right to sue but nothing of substance to sue for, The case before us presents exactly the opposite circumstances: defendant Langkilde does not claim that he has acquired ownership of the land by thirty years' possession, but only that plaintiffs ---even if they do own the property ---can no longer sue him to recover it.

Development Bank v. Ron Pritchard Ground Services, Inc.;


DEVELOPMENT BANK OF AMERICAN SAMOA, Plaintiff

v.

RON PRITCHARD GROUND SERVICES, Inc., Defendant

High Court of American Samoa
Trial Division

CA No. 85-88

October 24, 1988

__________

Where lease provided that landlord could not arbitrarily and unreasonably deny tenants the right to sublease, prohibition by landlord of all subleasing on the ground that landlord rather than tenants should have the advantage of the higher rents available from sublessees was a breach of the lease.

Where lease provided that tenant would have a right to renew at the expiration of the term of the lease, letter from landlord saying that no leases would be renewed since landlord was trying to sell the building was a breach of the lease.

Where lease provided that tenant would have a right to renew at the expiration of the original five- year term, and where, after expiration and after various breaches of lease by both landlord and tenant, the parties negotiated for subdivision of the leased premises and landlord sent letter stating that tenant would retain a stated square footage as its leasehold interest, with a designated space at the bottom of the letter for acceptance by the tenant, such acceptance would give rise to a new five-year lease on the modified terms.

New default by tenant after agreement for renewal of lease gave landlord the right, after warning and continued default, to evict tenant.

Before REES, Chief Justice, TAUANU'U, Chief Associate Judge, and TUIAFONO, Associate Judge. [8ASR2d191]

Counsel: For Plaintiff, Steven H. Watson
For Defendant, Togiola T.A. Tulafono

In 1982 the plaintiff (hereinafter the Bank) and defendant (hereinafter Pritchard) entered into a lease agreement. The agreement provided in pertinent part as follows:

1) Pritchard was to rent office space in the Lumana'i Building for five years.

2) Pritchard was to have an option to renew. (Although most of the text of this provision is missing from the copy of the lease provided to the Court by the Bank, we take judicial notice of the business custom to the effect that options to renew generally belong to the tenant and are most often for a term equivalent to the principal term of the lease. )

3) Pritchard was not to sublease any portion of his space without permission of the Bank, but the Bank was bound not to withhold such permission unreasonably or arbitrarily.

4) In addition to paying the rent on a monthly basis, Pritchard was to pay the Bank for his share of the utility bills.

5) Payment on time was of the essence of the contract.

At least since 1986 Pritchard has been frequently late with his rent and utility payments. On September 8, 1986, August 19, 1987, January 6, 1988, January 26, 1988, February 3, 1988, March 21, 1988, and July 6, 1988, and perhaps on other occasions the Bank sent letters reminding Pritchard of amounts overdue, emphasizing that time was of the essence, and/or threatening eviction. On August 1, 1988, the Bank sent a notice to vacate by August 31. Pritchard ignored the notice. This led to the present suit for eviction.

The Bank was no angel either. During 1986 and early 1987 there were problems with the air conditioning of the Lumana'i Building, and Pritchard maintains that the Bank took a casual attitude toward repairs. Although we have insufficient evidence to conclude that this was a [8ASR2d192] breach of the lease agreement, the Bank clearly did breach the agreement in two other ways.

First the Bank management arbitrarily and unreasonably denied tenants, including Pritchard, the right to sublease. At the time they gave no reason at all; at trial counsel for the Bank said the reason was that some tenants were making a profit by subleasing, and the extra money might as well go to the Bank as to the tenants.

Then management wrote a letter to the tenants stating that since they were trying to sell the building, no leases would be renewed. Instead all tenants would continue on a monthly basis at the expiration of the current five-year lease. At least in Pritchard's case this was a violation of the provision giving the tenant an option to renew.

Pritchard contends that his breaches of the lease were excused by the Bank's breaches. He also contends that in May 1988 the Bank agreed to a reformation and renewal of his five-year lease.

This agreement was the result of a request by Pritchard to subdivide his space with another tenant. Counsel for the Bank went to the Lumana'i Building with Pritchard and the prospective tenant. They made observations, took measurements, and reached a verbal agreement. On May 10, 1988, counsel for the Bank sent Pritchard a letter whose stated purpose was '.to summarize the agreement between you and the Development Bank. .with regard to the changes made in the subject leasehold agreement.

The Bank's letter stated that " [y]ou will retain as your leasehold interest approximately 328.2 square feet. " It stated a new rent figure and certain other terms of the agreement, and added that "[i]t is our intent to further memorialize this agreement. Until that time all other provisions of the leasehold agreement entered into on April 26, 1982 .shall remain in full force and effect. "

The letter concluded with a request that Pritchard sign and return the letter if the arrangement therein described was satisfactory. At the bottom of the letter was the legend "ACCEPTED: " followed by a blank line for the signature of Ron Pritchard, president of the defendant corporation. [8ASR2d193] The Bank, however, never received the signed acceptance and Mr. Pritchard does not remember whether he sent it. We conclude that he did not.

We are inclined to agree with Mr. Pritchard that as of May 10 there was an agreement for a new five-year lease on the modified terms, or at least that there would have been such an agreement if Mr. Pritchard had returned the "acceptance." Both parties had been in breach during the last year of the original five year term. Although Pritchard's position with regard to a renewal would have been stronger if an exercise of the option had been formally tendered in April of 1987, the Bank's advance notice that it would not honor such a tender probably excused Pritchard's failure to make one. In any case, the May 10 letter seems to indicate mutual forgiveness of past breaches and a willingness to enter into a new lease on the same terms as the old one except as specifically modified.

Even if there was a new agreement, however, Pritchard almost immediately dishonored it. Leaving aside the question whether the failure to return the "acceptance" amounted to a repudiation of any earlier verbal agreement, the evidence reflects that Pritchard was in default again by July 6 and was still in default on August 1.

On July 6 the Bank notified Pritchard that "[u]tility payments for February 1988, March 1988 and April 1988 are past due." (Emphasis in original. ) The letter threatened eviction if the money, along with July rent and a $60 amount still owing on the April rent, was not paid "this month. " At the conclusion of the month the Bank carried out its threat, again referring to "amounts past and currently due." These letters are strong evidence that the amounts in question really were past due. Since Pritchard offered no contrary evidence, we conclude that they were. (1) [8ASR2d194]

The default by Pritchard after May 10 gave the Bank a right to evict him. There is no evidence that plaintiff subsequently excused the default, either by accepting rental payments under circumstances amounting to a waiver or otherwise. Cf. Jose v. Iglesias, 462 F.2d 214 (9th Cir. 1972); Riverside Development Co. v. Ritchie, 650 P.2d 657 (Idaho 1982). Accordingly, judgment shall issue putting plaintiff in possession of the premises.

It is so ordered.

*********

Pritchard objected, however. The Bank made an offer of proof, and Pritchard stated no objection to the exhibit other than that the time for taking evidence was over. The Court reserved judgment on whether to admit the ledger.

It appears that it is within the Court's discretion to reopen the evidence in order to admit an exhibit such as this one, which was highly probative and readily available and whose authenticity was not in question. See e.g., Zenith Radio Corp. v. Hazeltine Research. Inc., 401 U.S. 321, 331 (1971) (motions to reopen the evidence are "addressed to [the trial judge's] sound discretion]; Students of California School for the Blind v. Honig, 736 F.2d 538 (9th Cir. 1984), vacated on other grounds, 471 U.S. ---, 88 L. Ed. 2d 114 (1985); Calage v. University of Tennessee, 544 F.2d 297 (6th Cir. 1976).

In this case, however, the ultimate fact proved by the ledger ---that Pritchard was in default at least throughout the month of July ---also clearly appears from the uncontroverted assertions in the Bank's July 6 and August 1 .letters. We therefore decline to admit the ledger and decide the case without reference to it.

1. At trial, after both sides had presented their evidence and oral argument had begun, the Court asked whether evidence had been introduced about whether Pritchard was in default during July and August of 1988. The Bank offered to produce its ledger, and the Court asked if Pritchard would consent to the reopening of evidence to admit this exhibit.

Continental Ins. Co. v. Workmen's Comp. Comm’n,


CONTINENTAL INSURANCE Co. , Appellant

v.

WORKMEN'S COMPENSATION COMMISSION OF
AMERICAN SAMOA and LISE TILO, Appellees

High Court of American Samoa
Appellate Division

AP No. 13-88

October 20, 1988

__________

Decision of workmen's compensation commission may be set aside only if the decision was not made in accordance with law. A.S.C.A. § 32.0652.

Finding by workmen's compensation commission that there was an "injury or death arising out of and in the course of employment" must be supported by substantial evidence.

Trial court correctly applied the substantial evidence standard where it upheld a workmen's compensation commission decision "as long as reasonable people could differ on the facts presented to the Commission."

Substantial evidence test in judicial review of administrative decision is limited to whether a reasoning mind could reasonably have reached the factual conclusion the agency reached, and reviewing court may neither find its own facts nor substitute its own judgment for that of the agency.

Appellant's claim that the trial court failed to apply certain evidentiary presumptions was without merit, as in administrative proceedings the agency rather than the court is to weigh the evidence and find facts; evidentiary presumptions used to facilitate fact-finding should be applied at the agency level and not at the level of judicial review.

Finding of fact based on no evidence is an error of law and thus a workmen's compensation commission award which is not supported by any evidence will be reversed, but where the commission has statutory [8ASR2d153] power to find the facts its findings must be affirmed even if the reviewing court believes the evidence points the other way.

Workmen's compensation commission order should be set aside only if it was based on "whimsy evidence"; order should be affirmed if reasonable people might differ as to the weight of the evidence.

Before KRUSE, Associate Justice, KING*, Acting Associate Justice, KAY**, Acting Associate Justice, and LUALEMAGA, Associate Judge.

Counsel: For Appellant, Roy J.D. Hall, Jr.
For Appellee Workmen's Compensation Commission, Caroline B. Crenna, Assistant Attorney General
For Appellee Tilo, Charles Ala'ilima

Per Curiam:

This matter originated with the territorial Workmen's Compensation Commission upon the filing of a claim for death benefits by the widow of a workman who had suffered a massive stroke at home. The primary contention before the Commission was whether or not the death of the workman was work related. After an evidentiary hearing, the Commission resolved the case in favor of the widow and awarded appropriate statutory benefits.

Appellant, the employer's insurer, sought judicial review before the Trial Division of the High Court to set aside the award for a number of reasons.

The A.S.C.A. Trial Division § 32.0652(a) correctly pointed to as circumscribing the [8ASR2d154] applicable standard of review which is that the Commission's decision may only be set aside "[i]f not in accordance with law." As the Workmen's Compensation Act limits compensation benefits as being payable only for "injury...or...death arising out of and in the course of employment," A.S.C.A. § 32.0520, the Trial Division also correctly defined the issue before it as "whether the Commission's finding is supported by substantial evidence." Slip Opinion at 1 [Continental Insurance Co. v. Workmen's Compensation Commissioner, 7 A.S.R.2d 105, 107 (1988)].

Upon its review of the record, the Trial Division found that there was ample evidence disclosed which justified the Commission's conclusion that the cause of death was triggered by the demands of the workman's employment. The Court below stated that "[a]s long as reasonable people could differ on the facts presented to the Commission, its decision will be upheld on appeal." Slip Opinion at 3 [7 A.S.R.2d at 107].

Appellant on the other hand excepts to these conclusions of the reviewing court. The thrust of appellant's argument apparently suggests that the reviewing court should independently weigh the evidence presented on the record and thereby determine whether the Commission's findings were justified by "substantial evidence." For instance, appellant cites the reviewing court with misapplying the "substantial evidence" standard by upholding the Commission merely because reasonable people may differ on the facts presented. In this regard, appellant attributes an alternative and incorrect "reasonable man" standard as having been fashioned and applied by the court below. Appellant states that had "the court correctly applied the substantial evidence test, it would have found that Tilo's heart attack was caused by the natural progression of a pre existing heart disease." Appellant's Brief at 6 (emphasis added). The suggestion made here is that the reviewing court may substitute its judgment for that of the Commission as to the weight of the evidence on questions of fact purely by resort to the record. If this is the case, what will have happened then to the primary function of the trier of fact to weigh the evidence, to determine credibility of witnesses with first hand observation, and indeed to resolve conflicting evidence? Obviously, [8ASR2d155] appellant's view of the scope of judicial review has taken the exercise a step beyond its proper limits.

The lower court's reference to factual conflicts upon which reasonable people may differ does not attempt to establish a new standard of review but rather explains the proper application of the "substantial evidence" standard. As stated in Dickenson-Tidewater. Inc. v. Supervisor of Assessments, the substantial evidence test of an administrative decision "is limited 'to whether a reasoning mind reasonably could have reached the factual conclusion the agency reached. This need not and must not be either judicial fact-finding or a substitution of judicial judgment for agency judgment.'" 329 A.2d 18, 25 (Md. App. 1974) (quoting Insurance Commissioner v. National Bureau of Casualty Underwriters, 248 Md. 292, 309-310, 236 A.2d 282, 292 (1967)).

Appellant further confuses matters by its repeated and mistaken references to the trial court's "findings of fact" regarding death of the workman as being work-related. The Court below did not make any findings of facts; it merely recited in summarized form the findings of the Commission as being sufficiently substantiated on the record. Therefore, appellant's further claims of error, that the Trial Division failed to apply certain evidentiary presumptions advanced by appellant, are accordingly misplaced. In the manner of weighing the evidence, the proper place for applying evidentiary presumptions to facilitate fact finding, was at the agency hearing, and not, as suggested by appellant, at the review level as well.

The proper scope of review of compensation awards is nicely capsulized by a leading treatise as follows:

A finding of fact based on no evidence is an error of law.
Accordingly, in compensation law, as in all administrative
law, an award may be reversed if not supported by any
evidence. Conversely, since the compensation board has
expressly been entrusted with the power to find the facts,
its fact findings must be affirmed if supported by any
evidence, even if the [8ASR2d156] reviewing court thinks
the evidence points the other way. This statement is, without
any close competition, the number one cliche of compensation
law and occurs in some form in the first paragraph of
compensation opinions almost as a matter of course.

3 A. Larson, The Law of Workmen's Compensation § 80.10 at 15-426.305 (1983) (footnotes omitted). A supplementing footnote adds, "[c]itations for this truism are omitted here; a complete list would run to hundreds of cases." Id. at n.1.

The author of the treatise goes on to discuss the cases' varying use of adjectives to describe the review standard quantitatively. The variations have included: any evidence; some evidence; any credible evidence; substantial evidence; supported by the evidence; and many others.

We gather from the cases that the courts no longer regard the presence of a "scintilla of evidence" as sufficient to affirm an administrative body's decision. While one extreme on the continuum might be requiring "no evidence" before reversing the Commission's decision, in our opinion the difference between the evidence sufficient to set aside or affirm a compensation order was given due regard below. Bearing in mind the Commission's specialized competence, (1) that difference is between "whimsy evidence" and "evidence upon which reasonable people may differ." Appeal Denied.

It is so Ordered.

*********

* Honorable Samuel P. King, Senior Judge, United States District Court for the District of Hawaii, serving by designation of the Secretary of the Interior.

** Honorable Alan C. Kay, Judge, United States District Court for the District of Hawaii, serving by designation of the Secretary of the Interior.

1. The territorial Workmen's Compensation Commission is purposely specialized in make up. The Commission comprises a Commissioner, a medical member, a law member, a fiscal member, and an employee member. A.S.C.A. § 32.0505(b).

Bank of Hawaii v. Pene,


BANK OF HAWAII, Plaintiff

v.

ROPATI S. PENE and CARMENCITA PENE,
Defendants

High Court of American Samoa
Trial Division

CA No. 28-88

July 18, 1988

__________

Affidavit by party moving for summary judgment, consisting of conclusory characterization of the moving party's own unidentified records, did not constitute evidence of the fact asserted therein; for the purpose of the motion for summary judgment, this question of fact must be resolved in favor of opposing party.

Where party opposed summary judgment on the ground that there had been a settlement of the dispute, but even when the facts were taken in the light most favorable to this party no reasonable person could have concluded that the other party had agreed to a settlement, summary judgment would be granted.

No reasonable person could have concluded that creditor had agreed to a settlement proposed by debtor, and therefore no question of material fact was raised with respect to such settlement, where the evidence, taken in the light most favorable to the debtor, was that (1) debtor had told creditor's representative he had no intention of paying the debt but that he was willing to surrender a car that had been taken as collateral security; (2) creditor never verbally agreed to this proposal; (3) creditor had the legal right to take the car and then collect the remainder of the debt; (4) debtor had the subjective impression that creditor's representative was happy to receive the car, since otherwise the creditor would receive nothing at all; (4) creditor never took the car. [8ASR2d31]

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

Counsel: For Plaintiff, John Ward Defendants Ropati S. Pene and Carmencita Pene pro se

On Motion for Summary Judgment:

This case comes to us on plaintiff's motion for summary judgment. We therefore view the facts in the light most favorable to the defendants:

1) On December 22, 1982, plaintiff Bank of Hawaii (hereinafter referred to as the Bank) lent defendants Ropati and Carmencita Pene $5000. The purpose of the loan, according to the application filled out by Mr. and Mrs. Pene, was to finance a "promotional trip." The entire principal amount, plus a finance charge of $270.41, was to have been repaid by March 26, 1983, approximately ninety days after the date of the loan.

2) A 1976 Ford Grenada Ghia 2-door sedan was listed on the loan document as security. The Bank attempted to register its security interest with the appropriate office of the City and County of Honolulu, but was informed that its interest could not be registered without a Hawaii Certificate of Safety Inspection, a certificate of registration, a certificate of ownership, and a notarized bill of sale from the previous owners to Mr. and Mrs. Pene. The City and County office also noted that in the document of sale submitted with the proffer of registration the seller's signature "does not appear similar to specimen on file."

3) The Bank has submitted an affidavit stating "Bank records clearly reveal" that Mr. Pene "did not assist in the Bank's efforts to protect it's [sic] security interest in the vehicle The Bank has not, however, provided the Court with copies of those records or even given us any details about what records they are or exactly what they say Mr. Pene did and did not do. We are unable to accept the Bank's conclusory characterization of its unidentified records as evidence, so we assume for the purpose of this motion that the failure to perfect the security interest was through no fault of Mr. or Mrs. Pene. (The Bank does produce evidence that Mr. and Mrs. Pene did [8ASR2d32] not secure comprehensive and collision damage insurance on the automobile, but produces no evidence that they were under any obligation to secure such insurance. )

4) Mr. and Mrs. Pene did not repay the loan when it came due on March 26, 1983.

5) When no payments had been made by December 21, 1983, the loan was transferred from the Pearl City branch of the Bank to the Loan Adjustment Department for collection.

6) At some time during 1983, or perhaps shortly thereafter, a man from the Loan Adjustment Department whose name Mr. Pene does not recall visited him at his home in Hawaii. Mr. Pene told the Loan Adjustment man he had no intention of paying the loan. Mr. Pene's presentation was quite forceful; among the topics discussed was Mr. Pene's belief that the Bank of Hawaii was to blame "for the ultimate decay/deterioration of his [Mr. Pene's] business associate and Employer, Reverend Lemuelu Utu." Mr. Pene did, however, offer to "surrender" the 1976 Ford to the Bank. The Bank representative never agreed to this proposal, at least not in so many words. However, at the end of the discussion Mr. Pene had the impression that the Bank representative was "quite happy" the Bank would be getting the car, since otherwise it would get nothing at all.

7) The Bank never took the car. On this point the Bank's statement about what its records show is buttressed by the undisputed evidence that the security interest, for whatever reason, was never perfected. Under these circumstances the Bank's statement that it did not take the car is highly credible. Mr. Pene, moreover, testified that he never checked to see whether the car had been removed from its place on the street.

8) The value of the car in 1983 was no more than $2400. For the purpose of this motion we accept as true Mr. Pene's statement that he also left $3500 worth of radio equipment in the car, on the street, for the Bank to take, and never checked to see whether the Bank had taken it.

9) Shortly thereafter Mr. and Mrs. Pene moved to Samoa. [8ASR2d33]

10) On February 25, 1985, Mrs. Pene responded to a Bank collection letter with a handwritten note acknowledging the debt but explaining that she and her husband were in difficult financial circumstances. She asked to be allowed to pay $100 monthly until she and her husband could find employment and increase the payments. For the purpose of this motion we accept as true Mr. Pene's statement that he knew nothing of his wife's letter.

11) Four payments in a total amount of $250 were made between March and August of 1985. We have been presented with no evidence about who made these payments.

Even on this version of the facts ---laden almost to the breaking point with assertions by Mr. Pene which we now accept as true but which would be most difficult to prove at trial ---the Court is bound to grant the motion for summary judgment.

The principal defense is that the conversation about the car between Mr. Pene and the Loan Adjustment representative was a settlement of the debt. If an officer of the Bank with real or apparent authority to make such a settlement had affirmatively agreed to Mr. Pene's proposal that the Bank would take the car from the street and thereby absolve the Penes from further liability, the defense would be valid. Even if such a representative had not affirmatively agreed to the proposal, he might have bound the Bank by speaking or acting in a way that would lead a reasonable person to believe he had agreed to it. In this case, however, the proposal itself was not one that a reasonable person would assume was accepted unless such acceptance was clear and explicit.

The Bank had the legal right to repossess the car, sell it (assuming it could have perfected its security interest), and still hold the Penes for any remaining balance on the debt. The car itself was worth far less than the amount of the loan, and although we assume the existence of $3500 worth of radio equipment we have been presented with no evidence that any representative of the Bank had ever appraised it or even seen it. Moreover, even if the "official" retail value of the car and its contents was $5900 (the most generous estimate we can make on the present record) the Bank would have been likely to realize somewhat less than $5500 [8ASR2d34] from their sale. Nor was this was a situation in which the creditor had sold the car to the debtor and in which repossession, if it had occurred, might conceivably have been construed as evidence of the seller's intention to rescind the sale. The car appears to have belonged to Mr. Pene before he applied for the loan and to have been unrelated to the loan except as collateral security. Under these circumstances it would have been irrational for the Bank to release the Penes from liability when it could have taken the car without any such release.

We can easily believe that the Bank representative was daunted and discouraged by his conversation with Mr. Pene. He might even have been convinced that the car was the most the Bank would ever recover. That is not a "settlement," however, and no reasonable person would regard it as such. We assume today, as we must, that Mr. Pene emerged with the subjective impression that he had been released from liability. When two parties to a transaction differ in their impressions of it, a court will not automatically enforce either party's subjective impression but must attempt to determine from all the circumstances of the transaction which impression was more reasonable. Even on Mr. Pene's own version of the facts, no reasonable person would have been justified in assuming that the Bank was surrendering any of its legal rights. (1) [8ASR2d35]

Mr. Pene also .suggests that the loan document is inadmissible as evidence because it contains his signature and that of his wife but no signature from a representative of the Bank. He suggests further that the loan application is inadmissible because it is only an application. We know of no basis for these contentions in the law of evidence. It is, in any case, undisputed that the Bank lent Mr. and Mrs. Pene $5000 and that Mr. and Mrs: Pene actually received the money.

The Bank notes that the annual interest rate of twenty-one per cent is legal in Hawaii where the loan was made but that only eighteen per cent interest is being sought in this action. In the loan application Mr. Pene designated himself as "self employed" and said the loan was for a "promotional tour." The loan was therefore "solely for the purpose of carrying on or acquiring a business or commercial investment" within the meaning of A.S.C.A. § 28.1503 and the eighteen per cent maximum rate applies.

Finally, at the hearing on this motion Mr. Pene also expressed his desire to go to trial in order to prove the Bank of Hawaii responsible for the death of Reverend Utu. This contention, if true, would seem to give the heirs of Reverend Utu a cause of action for his wrongful death. That action has not, however, been shown to be so closely related to this one that it could be raised as a defense or counterclaim, notwithstanding Mr. Pene's observation that the loan application designates Reverend Utu as the person who referred Mr, Pene to the Bank in the first place.

Since we hold for the Bank on the ground that Mr. and Mrs. Pene borrowed the money and never repaid it by settlement or otherwise, we need not reach the question whether Mrs. Pene's admission of liability would have revived her obligation if there had been a settlement.

Judgment will enter for the Bank against Mr. and Mrs. Pene for the remaining principal balance of $4750; accrued interest on the unpaid balance at [8ASR2d36] eighteen per cent from the date of the loan until the date of judgment; court costs; reasonable attorney fees and costs of collection as provided for in the loan agreement and to be proved by affidavit; and post-judgment interest at the rate of twelve per cent.

It is so ordered.

*********

1. During whatever time he remained in Hawaii, moreover, Mr. Pene might have sought to confirm or correct his impression that his "surrender" had been accepted by the simple expedient of occasional visits to the spot in which he had left his car and its valuable electronic accessories. A reasonable person, or even a moderately curious unreasonable person, would certainly have done this. Mr. Pene testified that he did not.
If we could conclude on the present record that there was the slightest possibility the Bank had actually taken possession of the car, we would deny this motion in order to determine at trial whether this had happened and if so whether the Bank had disposed of the car in a commercially reasonable manner and
how such disposition affected the amount the Penes owed the Bank. There is, however, no evidence to suggest such a possibility.

Bank of Hawaii v. Ieremia,


BANK OF HAWAII, Plaintiff

v.

MEKELI IEREMIA, Defendant

High Court of American Samoa
Trial Division

CA No. 47-88

October 24, 1988

__________

Court would not sign consent judgment where one party was represented by counsel, other party was unrepresented, consent judgment required unrepresented party to pay attorney fee that would not have been awarded if the case had been litigated, and court could not be sure that the principal amount had been correctly calculated.

Evidence of amount of debt, presented in support of motion for default judgment or similar summary proceeding, should consist not of conclusory affidavit by attorney, but of bank ledgers and [8ASR2d178] other direct evidence from which court can conclude for itself whether the amount has been correctly calculated.

Signature by person unrepresented by counsel on document designated as settlement or consent judgment does not automatically entitle the document to judicial enforcement without prior judicial scrutiny.

Signature of judge on a court order certifies that the judge has in fact exercised his judgment, that the premises of the order are true, that the order itself is lawful, and that it is appropriate under all the circumstances that the order be given the force of law.

Risk of abuse inherent in consent judgments ordinarily outweighs their usefulness as a means of saving time, at least in a jurisdiction where trial court routinely resolves uncontested matters by means of brief evidentiary hearings a few days after suit is filed.

Before REES, Chief Justice.

Counsel: For Plaintiff, Roy J.D. Hall, Jr.

On Request for "Consent Judgment" :

Counsel for plaintiff submitted to the Court a proposed "consent judgment" to which the defendant, who was unrepresented by counsel, had stipulated. The judgment would have been for $5,341, said to be the amount still owing on a loan from plaintiff to defendant, plus attorney's fees in the amount of $55, and post-judgment interest at the rate of 14.55%.

At least since 1986 the Court has been most reluctant to sign "consent judgments." This reluctance stems partly from out experience with "clerk's default judgments." Prior to its 1987 amendment Rule 55 of the Territorial Court Rules of Civil Procedure allowed the clerk to enter judgment although no judge had so much as looked at the complaint, provided that the amount sought in the complaint was fully liquidated. It was discovered, however, that some creditors were routinely filing affidavits that overstated the "principal amounts" [8ASR2d179] due on contracts, often by including as part of the "principal amount" attorney's fees for which there was no contractual or other legal basis. In other words, the summary process provided by clerk's default judgments was being used not just to save time and expense where the facts were not subject to dispute, but to recover amounts that would not have been recovered if a judge had looked at the case.

Another problem with consent judgments, at least where one party is unrepresented by counsel, is that some people will sign anything. This is especially true in Samoa. As the Court observed in Development Bank v. Ilalio, 5 A.S.R.2d 110 (1987):

Courts and commentators in the United States have long remarked the ease with which people can be induced to sign adhesion contracts containing the most draconian kinds of provisions, including waivers of important substantive and procedural rights in the event of litigation. This phenomenon is particularly pronounced among people in the lower economic strata; indeed, it is the phenomenon that gave rise to the doctrine of unconscionability and other mitigating devices. It is particularly strong in this Territory.

In the Samoan culture it is considered somewhat impolite to refuse almost any request, including a request to give away large amounts of money or other property. Avoidance of immediate conflict, with the possibility that real agreement can be reached at some time in the future, is greatly preferred to a direct refusal. This is especially true when a request is made by someone with a claim to superior social status or to official authority.

A related phenomenon is an unusually strong desire to avoid courts, which are authoritative and powerful yet mysterious, untraditional, and somewhat foreign. A threatened lawsuit therefore has a far more vivid ad terrorem effect on a person of limited means and sophistication in Samoa than it would [8ASR2d180] have on the reasonable person in New York. It is inconceivable that an institution doing business in the Territory could remain unaware of this for very long, and the High Court cannot ignore it either.

Id. at 127-28 n.10.

Ilalio concerned a "settlement" that had been signed by a debtor who later testified that while he had borrowed some money from the plaintiff, he had not borrowed nearly as much as he agreed to pay in the settlement. The Court gave judgment for defendant, noting that courts will not ordinarily enforce such an agreement when

(1) the party that drafted and pressed for the "settlement" is a business entity experienced in and familiar with such transactions; (2) the other party is an individual who has no such experience or familiarity and who generally signs the document without benefit of legal counsel; (3) the transaction was a whirlwind settlement in which there was no evidence that the weaker party negotiated, deliberated, or fully understood what he was giving up, and in which the stronger party employed threats or promises (usually threats or promises to do things that the stronger party had a legal right to do) to encourage a quick decision; and (4) the exchange was lopsided, consisting of the surrender of potentially valuable legal rights by the weaker party in exchange for a small sum or other trivial consideration from the stronger party.

l.d. at 124-25 n.8.

Although the Court knows very little about the circumstances of the present case, it appears from the documents with which we have been presented that if the "consent judgment" now presented to us had instead been sued upon as a settlement, it would have been at least partly unenforceable. The defendant agrees to pay a $500 attorney's fee, although the documentation submitted by the Bank upon the Court's request contains no contractual provision for attorney's fees. [8ASR2d181]

It also appears that the defendant made partial payment on the loan before suit was filed. We have no evidence of how much he paid, however, other than the bare assertion of the amount presently due. This assertion is contained in an affidavit not by an officer or employee of the plaintiff bank but by its attorney. At least in cases where there is any possibility at all that the amount due has been miscalculated, the Court should see the evidence itself (rather than the attorney's conclusion from the evidence) before rendering judgment. The usual way in which this is done is by submission of a bank ledger as an exhibit. The Court examines such ledgers in default hearings on the average of once or twice a week; it takes five or ten minutes.

That a defendant unrepresented by counsel signed something called a "consent judgment" rather than a " settlement " hardly suggests that the document should escape judicial scrutiny. When a judge signs his name to a court order he certifies that he has in fact exercised his judgment. He affirms not only that the premises of the order are true and that the order itself is lawful, but also that it is appropriate under all the circumstances that whatever the order requires should be given the force of law. Such an event should be worth a few minutes of the judge's and the attorney's time in open court.

This is not to suggest any impropriety on the part of the plaintiff. The Bank of Hawaii is a reputable institution and its attorney is a reputable attorney. Indeed, the writer of this opinion regards it as overwhelmingly likely (although he lacks the personal knowledge that would be necessary to certify) that the facts of this case are exactly as represented by counsel in his affidavit. If anything is forbidden to judges, however, it is to apply one set of rules to people we know and respect and another set to other people. Except in extraordinary circumstances not presented here, the risk that the "consent judgment" device will be abused outweighs its usefulness as a means of saving time.

If defendant is honoring the agreement that was the basis for the requested consent judgment, then perhaps plaintiff does not need a court order. If an order is needed because defendant has not

[8ASR2d182] honored the agreement or for some other reason not reflected in the present record, plaintiff can move for a default judgment which can be had in ten days.

The request for a consent judgment is denied.

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Ala'ilima; Tuika v.


TUIKA TUIKA, Jr. , Appellant

v.

CHARLES V. ALA'ILIMA, Appellee

High Court of American Samoa
Appellate Division

AP No. 4-88

October 21, 1988

__________

Trial court decision that attorney was entitled to fee from former client would be affirmed when the underlying case had been decided against the client on the merits and not due to inadequate representation by the attorney.

Attorney fees may be awarded to an appellee where the appellant has taken a frivolous appeal. [8ASR2d164]

Before KRUSE, Associate Justice, KING*, Acting Associate Justice, KAY**, Acting Associate Justice, AFUOLA, Associate Judge, and VAIVAO, Associate Judge.

Counsel: Appellant Tuika Tuika, Jr., pro se
Appellee Charles Ala'ilima pro se

Per Curiam:

This appeal originated as a small claims action filed by Ala'ilima against Tuika for attorney fees and costs associated with prior legal representation of Tuika in an election appeal. Judgment was entered by the small claims judge against Tuika in the amount of $731.95 plus $10.00 costs.

Tuika appealed to the High Court Trial Division for a trial de novo as there was no record in the Small Claims Court. Trial was held and judgment against Tuika was upheld. Appellant now appeals to this court for a review of the trial court's decision. We affirm.

Tuika retained Ala'ilima to handle an appeal of his loss of an election for the local House of Representatives. Appellant made many allegations of improprieties in the election procedure and in the activities of his opponent in the campaign. Because the ten day limit imposed by the statute for filing election appeals was expiring, appellee quickly drafted an appeal alleging the complaints made by Tuika and had Tuika verify it. It was filed in a timely manner. Tuika Tuika. Jr. v. Chief Election Officer, AP No. 21-86.

The court directed Ala'ilima to file an amended complaint. According to Tuika, Ala'ilima [8ASR2d165] was late in filing the amended complaint within the time limits prescribed in A.S.C.A. § 6.0903.

After the amended complaint was filed and a hearing scheduled, the government filed a motion to dismiss on the basis that the statutory period for holding new elections had expired. The court heard the motion on the date of the scheduled hearing and ruled in favor of the government on the merits of the election appeal. Review of the transcript shows that the court's decision was not based on the timeliness argument.

Tuika' s argument appears to be that he is not obligated to pay his attorney for the work on the election appeal because, due to lack of diligence, Ala'ilima did not file a timely brief and thereby caused the government to prevail. However, a review of the transcript resulting from the hearing disproves his contention that the action was dismissed because his attorney failed to file a timely amended complaint and request for hearing; the decision of the court is based clearly on the merits and not on the timeliness of the appeal.

In addition, Ala'ilima seeks to recover his fees and costs for defending this appeal, which he justifiably characterizes as frivolous. Ala'ilima is hereby awarded his costs and a fee of $100 in connection with this appeal.

*********

* Honorable Samuel P. King, Senior Judge, United States District Court for the District of Hawaii, serving by designation of the Secretary of the Interior.

** Honorable Alan C. Kay, Judge, United States District Court for the District of Hawaii, serving by designation of the Secretary of the Interior.

Adams; Kneubuhl Maritime Services Corp. v.


KNEUBUHL MARITIME SERVICES CORP., Plaintiff

v.

WILLIAM ADAMS and QUALITY FURNITURE
MANUFACTURING, Inc., Defendants

High Court of American Samoa
Trial Division

CA No. 134-87

July 14, 1988

__________

Corporation may not use dissolution as a method to avoid creditors.

Where a corporation with outstanding debts and claims against it dissolves and reincorporates, equity will hold all assets traceable to the original corporation liable to discharge the debts and claims.

Minority shareholder became personally liable for a corporate debt where he made a written promise to pay a past due balance owed by the corporation and the writing did not indicate that the obligation was other than personal. [8ASR2d21]

Before KRUSE, Associate Justice, AFUOLA, Associate Judge, and VAIVAO, Associate Judge.

Counsel: For Plaintiff, Charles Ala'ilima
For Defendants, Frank Swett

This is an action on account for unpaid freight and plaintiff seeks judgment against defendants in the sum of $7,000 together with such allowable interest and costs of collection.

The freight account is not disputed, however, defendant William Adams does dispute personal liability on the theory that the indebtedness is one which accrued against the corporate entity "Quality Furniture Manufacturing, Inc." Adams admits only to the extent that he was a minor shareholder in the said defendant corporation with the limited role of technical advisor, and he cites in his defense A.S.C.A. §§ 30.0114 and 30.0130 which exempt the private property of shareholders from such corporate liability.

Plaintiff on the other hand claims that in its past and extended dealings with Adams the impression gained was that the business "Quality Furniture" was not only owned but controlled by Adams. Plaintiff's operations supervisor, Eugene Anderson, testified that he had had five years of personally dealing with Adams regarding shipments on behalf of the business Quality Furniture. As far as he was made aware Adams owned Quality Furniture and he had dealt with him (and no one else) without any understanding that Adams was a corporate agent as he now claims. In the course of these dealings and at the request of Adams, Anderson agreed on behalf of his company to allow shipments for Quality Furniture to be shipped to the territory on a freight collect basis. The resultant working arrangement was that Adams would usually satisfy each freight bill within 30 to 60 days of release of consignment.

For some time the relationship was mutually beneficial. On the freight in question, which was the subject of three separate bills of lading, Anderson testified that when payment had not been made in accordance with past practice he contacted Adams. The latter advised him that he would take [8ASR2d22] care of the matter and indeed Adams subsequently tendered Anderson a check in partial payment of $3502.37, although leaving a balance remaining of $7000. After some discussion on the matter, Adams left with Anderson a signed writing containing the following:

July 8th, 1986

Gene:

Here is USD3502.37 on our account of $10,502.37. The
balance I'll pay as follows:

On or about 7/21/86 $3500.00
On or about 8/10/86 3500.00

This will balance up this shipment and leave me owing -0-

Thanks for your help

/s/Bill Adams.

The accompanying check tendered, although signed by Adams, contains the printed drawer identification as "Quality Furniture Manufacturing Inc."

As events turned out the promised payments were never made and somewhere in the ensuing dialogue between the parties leading up to this litigation, defendants advised plaintiff that Quality Furniture Manufacturing is a corporation since defunct and gone out of business. (See paragraph Second of defendant's answer.)

DISCUSSION

As we stated at the outset, the indebtedness itself was not contested. At least insofar as Quality Furniture is in fact a corporate entity, its liability was not disputed and judgment may therefore enter against it. We also note that in as much as the business was in fact a corporate entity, we were not impressed with the testimony which sought in its effect to avoid liability by waving the banner "dissolution. " As we understand the corporations statute, A.S.C.A. §§ 30.0101 et seq., dissolution is not a vehicle for avoiding creditors and on the evidence before us, we were left with grave reservations regarding the "bona [8ASR2d23] fides" of the defendants. Firstly, it is apparent that contemporaneous with the claimed dissolution exercise, negotiations were undertaken by Adams as an individual and on behalf of a "Quality Furniture Manufacturing Inc.," to secure a long term leasehold on property located in Nu'uuli. See Adams v. Lafaele, LT No.21-86 (1986). This case indeed resulted in a stipulated judgment acknowledging a leasehold estate in Adams and Quality Furniture Manufacturing Inc. Incidentally, another furniture business was then set up in this location. Notwithstanding, Adams testified that the defendant corporation was dissolved at the conclusion of 1986 after liquidating assets to satisfy a judgment debt outstanding against it at the time. Additionally, the Court is told that the new venture is a separate entity and Adams disclaims any interest therein, although the same is owned by his wife, and that he merely helps her out periodically.

In the light of pending claims against the original corporate entity the dissolution exercise and reincorporation is tantamount to a sham on creditors. A change in clothes does not render one a new person and in the eyes of equity liability will attach to all that is properly traceable to the original corporation. The leasehold estate above mentioned is, for example, available to this end.

We further find on the facts that defendant Adams is liable on the indebtedness. This liability is primary and contractually based as we construe his written undertaking of July 8th, 1986 given to Anderson. The language is unequivocally clear that the undertaking is a personal one as there is no suggestion whatsoever of a corporate commitment. Indeed the suggestion of such a corporate commitment would be nonsense from the point of view of Anderson and his employer since the underlying obligation, consistent with Mr. Adams' defense, is already the corporation's and thus any additional assurances by the corporation would be without consideration and meaningless to plaintiff. Rather, we construe the undertaking as being a separate and- additional assurance or guarantee given by Adams in consideration of plaintiff's forbearance from suing the corporation at the time. In turn, there was obviously reliance by plaintiff on this mentioned writing. [8ASR2d24]

We accordingly conclude that defendants are severally liable to plaintiff in amount of $7000 and therefore plaintiff will have judgment against Quality Furniture Manufacturing Inc., and William Adams in the sum of $7,000.00 with interest to accrue on judgment as provided by law plus court costs.

It is so ORDERED.

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