9ASR2d

9ASR2d

Parisi v. Parisi


DEBORAH PARISI, Petitioner

v.

JOSEPH PARISI, III, Respondent

JOHN H. THOMAS, Petitioner for
Registration of Foreign Judgment

High Court of American Samoa
Trial Division

FJ No. 4-88

December 12, 1988

__________

Under statute providing for the registration and enforcement of a foreign judgment, court would not register a divorce judgment on behalf of one who was not a party to the divorce but who claims to be the "owner" of the judgment by virtue of the assignment, without information concerning the [9ASR2d117] circumstances of the acquisition of the judgment. A.S.C.A. § 43.1703.

Before REES, Associate Justice.

Counsel: Petitioner John H. Thomas pro se

Petitioner Thomas, an attorney in California, has entered an appearance on his own behalf as the "owner of the enclosed Judgment." The judgment is a divorce decree between Mr. and Mrs. Parisi. The decree includes an award of support payments, court costs, and attorneys' fees to Mrs. Parisi. Petitioner has also filed an "Acknowledgment of Assignment of Judgment" executed by Mrs. Parisi in favor of petitioner. In affidavits filed with the Court petitioner Thomas now identifies himself as the judgment creditor.

The High Court of American Samoa will enforce a foreign judgment on the same terms as a judgment of the High Court itself. A.S.C.A. § 43.1703. An exhaustive search, however, has failed to yield an instance in which the High Court has executed a judgment (of its own or of any other court) on behalf of one who had purchased or otherwise acquired it from the original judgment debtor. Courts of other jurisdictions differ on the enforceability of a purchased judgment; whether and to what extent such a judgment is enforceable may depend on the circumstances of its acquisition.

Unfortunately, we know nothing of the circumstances under which Mr. Thomas acquired this judgment. Ordinarily we would hold an evidentiary hearing to find the facts, but Mr. Thomas is at a distance of five thousand miles from the Territory. Accordingly, Mr. Thomas is directed to supply the Court with the following information:

1) The consideration, if any, given by Mr. Thomas in exchange for the assignment;

2) Whether Mr. Thomas had represented Mrs. Parisi in the divorce or in any other matter, or performed other legal services for her; if so, the details of any such representation or services;

3) The connection, if any, between the assignment and any representation or other services provided by Mr. Thomas; [9ASR2d118]
4) Whether Mr. Thomas advised Mrs. Parisi that she should seek the advice of separate counsel before entering into the assignment, and whether to the best of his knowledge she did seek such advice.

Mr. Thomas is directed to supply this information within thirty days.

It is so ordered.

*********

Reid; Moea'i v.


KUINISE MOEA'I, Plaintiff

v.

FONOTI (PATRICK) REID dba PACIFIC
EQUIPMENT & EARTHMOVING Co., Defendant

High Court of American Samoa Trial Division

CA No. 59-88

November 21, 1988

__________

Territorial minimum wage statute, including provision for punitive damages for wilful failure to pay territorial minimum wage, does not apply to employees covered by provisions of federal minimum wage law. A.S.C.A. §§ 32.0320, 32.0340.

Punitive damages provision of territorial minimum wage statute, for wilful failure to pay the minimum wage, is limited to a claim based on the difference between the employee's hourly wage and the minimum wage; this provision does not apply to an action for breach of contract where, although the employee has not been paid, his contractual wage was higher than the statutory minimum. A.S.C.A. §§ 32.0320, 32.0340.

Statutory provision for punitive damages for wilful failure to pay overtime wage rates is applicable whether or not the ordinary wage rate is determined by contract. A.S.C.A. §§ 32.0323, 32.0340.

Employer's failure to pay overtime wage rate was not wilful where employer (1) admitted liability for overtime payments; (2) disputed, not without merit, the number of overtime hours claimed by employee; and (3) offered uncontradicted testimony that nonpayment of other amounts was due to inability to pay. A.S.C.A. §§ 32.0320, 32.0340.

Before KRUSE, Associate Justice, TAUANU'U, Chief Associate Judge, and TUIAFONO, Associate Judge. [9ASR2d49]

Counsel: For Plaintiff, Togiola T.A. Tulafono
For Defendant, Frank Swett

Defendant acquired a government road construction contract in Manu'a and hired plaintiff as a truck driver at the wage of $5.00 per hour.

Plaintiff now sues the defendant for unpaid wages, claiming that he never received a pay check throughout his period of employment, In addition, plaintiff contends that defendant's failure to pay was "wilful " and therefore also seeks "liquidated damages" in an amount equal to his claim for unpaid wages pursuant to A.S.C.A. section 32,0340, Defendant does not dispute owing plaintiff back wages. He does contest the amount of plaintiff's claim to actual hours worked as being inflated. He further denies wilfulness in non-payment of wages, claiming that an ongoing dispute on the road contract with the government has caused his venture to lose money and not fulfill expectations. He expects to satisfy his obligations to plaintiff after the government releases to him some $28,000 in retentions. Defendant also claims to have made plaintiff cash advances at various times totaling some $590.00.

Plaintiff calculates his wages due as being in the amount of $5,765, of which the sum of $1,650 is said to be overtime compensation. Defendant's figures, however, show plaintiff as being owed $1,876.50, which figure has taken into account the alleged cash advances,

Plaintiff testified that he was hired by defendant to commence work on May 11, 1987 and was immediately put to work hauling material. He testified that a few days afterward, on May 15, 1987, he was relocated to Manu'a with defendant's equipment. He largely remained in Manu'a until October 2, 1987 when employment ceased.

Evidence of work hours submitted by plaintiff was in the form of a 1987 calendar upon which plaintiff made notations for each day of the week, In these notations he has set down hours, which he claims were time at work, as well as a short log of his activities and location for that day. Plaintiff claims that he has kept a calendar of his work activities as he has always done when [9ASR2d50] employed by local contractors. From experience he does not trust them.

Upon close review of this diary however, we are unable to avoid agreeing to some extent with defendant that plaintiff has inflated his actual work hours with certain entries in his calendar.

The bulk of the entries in plaintiff's calendar attempt to give a time of commencement and a time for cessation of work each day, Additionally plaintiff has also briefly noted the activityand job site of the particular day. But then there are also a number of entries which have been obviously revised with a different colored pen as an afterthought. There are also a number of entries which appear to lack any contemporaneity with work activity. They simply appear as a day's total of hours without the usual information on starting time, activity, and quitting time. For instance, in the month of July plaintiff has credited himself with the simple notation "8 HRS" all down the Sunday column without further explanation. These entries were all made with the same pen at the same moment, while the notations for the ensuing usual work weeks of the month are in another kind ink and include work detail. There are days when the regular entry appears as "no work" made with one pen and then with a different pen, plaintiff would credit himself "8 HRS". There are times when plaintiff has noted that he is on Tutuila and has assigned himself regular and overtime hours of "work in the office." What a truck driver, who is being paid by the hour, does in the office is unclear to us, although defendant testified that plaintiff was in the habit of disappearing from Manu'a without anyone knowing about it until he again returned.

On the other hand, the credibility of defendant's proofs left us even more uncertain. Defendant submitted a summary of plaintiff's time sheets purportedly extracted from the regular time keeper's records. A perusal of the timekeeper's records revealed immediately that defendant's summary ignored the timekeeper's records for the month of May, while the timekeeper's records themselves for the first week of work proved mathematically startling, A resulting equation: 8 daily hours x 5 days = 16 work hours. [9ASR2d]

Furthermore, and mindful of plaintiff's exaggerated record of his hours, the difference between the timekeeper's log of hours and that of plaintiff's was simply too great to permit us to conclude favorably on the reliability of the timekeeper's records, When defendant attempted to explain the discrepancy, he defensivelyoffered that it was the particular employee's duty to reconcile hours with the timekeeper if the employee felt there was indeed a discrepancy. Defendant put this down to "normal business practice."

After nearly five months of employment with nothing but a recurring promise of compensation, the need to reconcile hours will not have arisen as the employee would not know what hours are being paid by the employer. This is the kind of information employees are regularly given on their payroll checks or wage statements, Further, plaintiff testified that there was no established daily practice whereby they reported to a timekeeper or punch clock, and thus we assume that the possibility of reconciling hours was not at all encouraged in practice.

In our judgment, the evidence preponderates in favor of those regularly kept entries of plaintiff which are free of the criticism we noted above. We find plaintiff was employed by defendant from May 11, 1987 to October 2, 1987. During that period of employment plaintiff had accumulated the following unpaid number of work hours:

Regular Hours: 625 x $5.00 = $3125,00
Overtime Hours: 115 x $7.50 = $862.50
Total Wages   = $3987.50.

We next reach the question of "liquidated damages. " Plaintiff seeks to recover double the amount of unpaid wages, basing his cause of action on the provisions of A.S,C.A. section 32,0340. This enactment provides, inter alia, for punitive damages against an employer who "wilfully" violates the provisions of sections 32.0320 and 32.0323. Such damages shall be for an additional equal amount of unpaid compensation due the employee in accordance with the said sections 32,0320 and 32.0323. The former section provides for payment of minimum wages at the rate of 70 cents an hour; however, the enactment by its terms does not apply to employees covered by the Merit System Law and Federal Minimum Wage Schedule established by the [9ASR2d52] United States Department of Labor. (1) The latter section provides for overtime rates being payable to an employee after having worked 40 hours in a given week.

There appear to be two aspects of a claim under section 32.0340. These are: damages for wilful failure to pay minimum rates of 70 cents an hour; and damages for wilful failure to pay overtime rates.

On the first aspect, a claim for liquidated damages sought by plaintiff based on his contractual rate of $5.00 per hour is not available under section 32.0340. The enactment addresses a claim for damages based on the difference between the hourly rate paid by the employer and 70 cents an hour; it does not address a breach of contract situation, Furthermore, the language of section 32.0320 makes it doubtful that the punitive measure provided under section 32.0340 is available for wilful failure to pay minimum wages in circumstances where the federal minimum wage schedule is applicable. (2)

On the evidence before us, there was no attempt by plaintiff to show that his employment [9ASR2d] circumstances were other than those covered by the federal wage schedule. 29 C.F.R. section 697.1 (e) establishes a "Construction industry" which is defined to include all "construction , reconstruction, structural renovation and demolition, on public or private account, of buildings, housing, highways and streets, catchments, dams, and any other structure." 29 C.F.R. § 697.1(e)(2) (1988). Without any showing to the contrary, this classification would seem to cover the factual circumstances of employment before the Court, and accordingly plaintiff's claim is outside the ambit of section 32.0320.

The second aspect of the claim is damages for wilful failure to pay overtime rates which are set by section 32.0323 at one and one-half times the employee's ordinary rate of pay ---whether that rate is contractually determined or not. However, relief hereunder does not merely arise with non payment of overtime rates. The employer's failure to pay must be "wilful." In this regard, defendant testified that he has been unable to pay his employees because of early disputes arising with the government on the roading contract. This involved money consuming work changes from which defendant claims he never recovered and eventually resulted in a mutual agreement to terminate the contract. The defendant's pleadings admit liability for the payment of overtime rates, although he has contested the number of hours claimed by plaintiff. In the light of our conclusions above, that objection by defendant has not proven to be without merit. Moreover, plaintiff has not produced evidence to contradict defendant's asserted inability to pay.

We conclude against wilfulness on the part of defendant.

With regard to the alleged advances by defendant to plaintiff, we find that defendant has made an insufficient showing. When asked by the Court if defendant kept documentary recordings of such advances, defendant mentioned a certain book kept by his partner in the venture. This reported record was ordered to be produced by defendant and our review of the same failed to sustain defendant's testimony. We disallow the claimed offset. [9ASR2d]

Finally, this matter was originally set for trial on October 24, 1988 but continued at that time over the objection of counsel for plaintiff. The matter was continued as defendant was off island; however, defendant has stipulated in open court to pay for plaintiff's costs and attorney's fees incurred as a result of the continuance. Such costs and attorney's fees are allowed. Plaintiff's attorney shall submit a statement to that effect for the Court' s approval.

On the foregoing, judgment will enter in favor of plaintiff in the amount of $3987.50, plus all costs of suit, attorney's fees only as above allowed, and all lawful interest.

It is so Ordered.

*********

1. The Fair Labor Standards Act, 29 U.S.C. §§ 201-19, commonly known as the Wage and Hour Law, contains particular provisions applicable to American Samoa, 29 U.S.C. § 206(a)(3) requires the Wage and Hour Administrator to appoint a special industry committee to recommend to the Secretary of Labor the minimum wages to be paid in American Samoa. As a result, wage rates have been established for numerous industries in the territory. 29 C.F.R. § 697.1 (1984).

2. Save for those specific exemptions provided in the Fair Labor Standards Act, 29 U.S,C. § 213, the circumstances of employment. to which the federal wage schedule appears intended for application are right across the board. See 29 C.F.R. § 697.1(n) (1984). This regulation establishes an industry classification in the territory known as "Miscellaneous activities industry" and which is defined as including "every activity not included in any other industry defined herein."

Star-Kist Samoa, Inc.; Palelei v.


SIO PALELEI, Appellant

v.

STAR-KIST SAMOA, Inc. , Appellee

High Court of American Samoa
Appellate Division

AP No. 1-88

November 14, 1988

__________

Trial court improperly awarded summary judgment in defendant employer's favor as material facts remained in dispute where, of the two grounds on which employer might legally have terminated plaintiff's employment, defendant denied one and plaintiff denied the other.

Statements of counsel at oral argument on a motion for summary judgment are not a substitute for affidavits based on personal knowledge and should not be used by the court as a basis for factual determination.

Before KING*, Acting Associate Justice, KAY**, [9ASR2d36] Acting Associate Justice, TOGAFAU***, Acting Associate Justice, AFUOLA, Associate Judge, and VAIVAO, Associate Judge.

Counsel: For Appellant, Charles Alatilima
For Appellee, John Ward

Per Curiam:

This is a dispute over the termination of Sio Palelei from his employment as a fish hauler for Star-Kist Samoa, Inc. Palelei's responsibility was to supply baskets of fish to employees at the fish cleaning tables. As the fish were cleaned, Palelei was to "punch" cards held by each fish cleaner, each punch representing a certain quantity of fish.

On October 9, 1986, Palelei's immediate supervisor issued an Employee Warning Notice to Palelei which now reads:

This is to warn you for giving free punches for the cleaners
without dumping fish. Suspended pending for further
investigation. (Over Punches). Terminate

Palelei refused to sign the notice. A Payroll-Notification form effective October 21, 1986, noted that Palelei was terminated involuntarily, the action having been approved by the Personnel Manager on October 21, 1986, by the Administrator on October 22, 1986, and by the General Manager on November 3, 1986. The reason given was "Giving free punches for the cleaners without dumping fish...." [9ASR2d37]

In firing Palelei, Star-Kist did not follow the system of progressive discipline which is set out in the employee handbook distributed to all employees. This system consists of counseling by the employee's supervisor and a verbal warning, written warning with the possibility of a one-day suspension, and finally a "last chance," with the determination to suspend or terminate made in conjunction with the personnel manager. The handbook also lists eighteen different offenses which may lead to termination for a first offense, without the benefit of the successive discipline procedure. This list includes insubordination or willful disobedience to an order, assignment, or instruction, and giving or receiving free punches or wrong punches for fish being cleaned. Palelei was not given an opportunity to contest the accuracy of the basis for the warning.

Palelei sued for wrongful termination on the ground that Star-Kist violated his contractual right to the successive discipline procedure outlined in the manual.

The sequence of events alleged in the verified complaint is as follows:

9/ On October 9th, 1986, there was a problem in the process
which created a backlog of fish at the cleaning tables.

10/ Plaintiff was expected by his supervisor to increase his table's
production by placing more baskets of fish on the table than could
be reasonably handled by the cleaners.

11/ Plaintiff maintained the normal routine to avoid overloading the
cleaners.

12/ A complaint was made that day against plaintiff and he was
summarily suspended from his employment by his supervisor,
Henry Bernard.

Defendant's answer denies these allegations and "specifically denies Plaintiff was summarily suspended from employment." Defendant answers further as follows: [9ASR2d38]

13.... Plaintiff was given an immediate written warning when
discovered to have been falsifying the fish cleaners' production
punch cards ..... which Plaintiff refused to acknowledge by signature.
Plaintiff was therefore suspended and subsequently his employment
terminated for falsification of records of Defendant.

Defendant moved for summary judgment and filed an affidavit of its Industrial Relations Manager which stated that he was "familiar with the facts surrounding the termination of Plaintiff's employment." He repeats the allegation about "over-punching." He also states that Plaintiff "admitted" to him that Plaintiff "had been wrong in 'over-punching' the cleaners' production cards." Plaintiff relied on his verified complaint, The court received a copy of Defendant's employee handbook, the Employee Warning Notice, and the Payroll-Notification form.

The court issued summary judgment in favor of Star-Kist. The court determined that, while the handbook does create rights on behalf of the employees, Star-Kist was entitled to summarily dismiss Palelei without following the successive discipline procedures.

The trial court found that there was no dispute that Palelei's supervisor had ordered him to increase the speed of production and that Palelei did not comply. The trial court said, in part: Palelei does not contend here, nor does he appear to have argued below, that his failure to comply was not willful or that compliance would have been impossible or unreasonably difficult. Pursuant to the employee handbook, which the 1rial court held created contractual rights to the review process under certain circumstance, insubordination or willful disobedience allows the employer to terminate the employee without resort to those procedures. The trial court ruled that even if the "wrong punching" charge is factually disputed , Star-Kist was entitled to summary judgment on the basis of the insubordination charge.

The sole issue on this appeal is whether Summary judgment was proper on the record before the trial court. We conclude that there are material facts in dispute and therefore reverse. [9ASR2d39]

Preliminarily, defendant's motion for summary judgment is defective in not being supported by affidavits based on personal knowledge. The statement by the industrial relations manager that plaintiff had "admitted" wrongdoing is at best ambiguous. The trial court concluded that plaintiff was properly terminated because he was either guilty of insubordination or of falsifying records. But defendant denies in its answer that plaintiff was terminated for insubordination and plaintiff denies "over-punching. " Much of the factual material in the trial court's decision was based on statements of counsel at the argument on the summary judgment. Such statements are not a substitute for affidavits based on personal knowledge.

The granting of defendant's Motion for Summary Judgment is reversed and the case is remanded for further proceedings consistent herewith.

*********

* 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, ,1udge, District Court of American Samoa, serving by designation of the Secretary of the Interior.

Shimasaki; Siofele v.


PAPU JOSEPH SIOFELE, Jr. , and
SEIGAFOLAVA ROBERT PENE, Petitioners

v.

FRANCIS F.J. SHIMASAKI, Chief Election
Officer and BOARD OF REGISTRATION,
Election Office of the American Samoa
Government, Respondents

High Court of American Samoa
Trial Division

CA No. 105-88

November 3, 1988

__________

Territorial election statutes provide no right of appeal to board of registration from chief election officer's determination that a person is ineligible to run for elective office. A.S.C.A. §§ 4.0101 et seq., 6.0101 et seq.

Court could grant election officer's was ineligible to review by mandamus of chief determination that petitioner run for elective office, where [9ASR2d4] statutory scheme was silent as to appeals procedure and circumstances appeared to render any alternative review procedures inadequate. T.C.R.C.P. Rules 87, 88.

Court will grant mandamus to compel performance of a ministerial act or mandatory duty where the petitioner has a specific, well-defined legal right, respondent has a corresponding specific, well-defined duty, and there is no other adequate remedy.

Standard of review in a mandamus proceeding, where respondent has apparently performed the duty that petitioner seeks to enforce, is whether that duty was performed in accordance with law.

Chief election officer did not act arbitrarily or capriciously in denying petitioner's eligibility for election where, although petitioner supplied all the information requested on candidacy forms, he refused reasonable requests by the chief election officer for further information relevant to his eligibility.

Court would not compel chief election officer to find the petitioner a bona fide resident where petitioner was not on the current voter registration lists, was not present in the territory during the period at issue, refused to supply additional information requested by the chief election officer, and was identified as a registered voter in another jurisdiction during the period at issue.

Although laches is technically an equitable defense and action for mandamus a proceeding at law, laches is available as a defense to a petition for writ of mandamus.

Elements of laches are unreasonable delay by one party in asserting his rights and resulting undue prejudice to the other party.

One month delay in seeking judicial review of denial of the right to run for elective office was unreasonable where (1) the election was to be held two weeks after petitioners first sought judicial relief and (2) one of the petitioners. although absent from the territory, could have secured counselor instructed his co-petitioner to assert their rights. [9ASR2d5]

Court may exercise its discretion to deny an extraordinary writ where petitioners have unduly delayed in asserting their rights,

Before KRUSE, Chief Justice, LUALEMAGA, Associate Judge, and VAIVAO, Associate Judge.

Counsel: Petitioner Papu J, Siofele pro se
Petitioner Seigafolava R, Pene pro se
For Respondents, Caroline B. Crenna, Assistant Attorney General

Petitioners, Papu J. Siofele and Seigafolava R. Pene, seek to run in the upcoming general election for the offices of Governor and Lieutenant Governor respectively,

Respondent Chief Election Officer has found petitioner Siofele ineligible to run for the office of Governor on the determination that petitioner did not satisfy the statutory five year residency requirement. A.S.C.A. § 4.0102(a)(2). Petitioner Pene has joined in the petition before the Court on the ground that his bid for the office of Lieutenant Governor is dependent on Siofele's eligibility to run for office. A.S.C.A. § 4.0104 requires that the Governor and Lieutenant Governor "shall be elected jointly."

The petition asks for a "Writ of Mandate": 1) directing the Board of Registration to hear petitioner Siofele's appeal from the decision of the Chief Election Officer (the petition seems also to allege that the Chief Election Officer interfered with petitioner's access to the Board of Registration); 2) commanding respondents "to allow petitioners to run for the office of Governor and Lieutenant Governor of American Samoa"; and 3) ordering that the absentee ballot papers reflect petitioners' candidacy, Petitioners further pray for a refund of the their court filing fees and such other relief as the Court deems just and proper. (1) [9ASR2d6]

Appeal to the Board of Registration

We deny the petition to compel the Board of Registration to take up petitioners' desired appeal. We see nothing in either the Omnibus Local Governor Act of 1977, A.S.C.A. §§ 4.0101 et seq., or in the American Samoa Election Reform Act of 1977, A.S.C.A. §§ 6.0101 et seq., which gives petitioners a right to appeal to the Board of Registration from the Election Officer's determination of ineligibility. Petitioners in their pleadings claim A.S.C.A. § 6.0224 (a) gives them a right to appeal to the Board. Their reliance on this statute is misplaced. This provision provides for appeals to the Board of Registration from decisions of the Chief Election Officer adverse to applications for voter registration or refusing to rectify the register of voters for misspelled names and accidental registration in the wrong voting district pursuant to A.S.C.A. § 6.0220. The section further provides recourse to the Board from the decisions of the Chief Election Officer or district officials ruling on challenges against the registration of any person as a qualified voter. The enactment addresses the .'general register and district list[s]'. of "qualified elector[s]." A.S.C.A. § 6.0210. It deals only in questions of "elector" qualification and not questions touching on the eligibility of "candidates " for elective office . The succeeding paragraph (b) of section 6.0224 provides that the Board of Registration shall sit on election day, while paragraph (c) thereof provides, inter alia, that if an appeal is sustained, the Board shall so certify to the Election Officer who shall thereupon alter the register accordingly. On the other hand, where the Board disallows an appeal, the affected person may appeal within ten days, directly to the Appellate Division of the High Court. A.S.C.A. § 6.0230. However pending a decision from the Appellate Division, the appellant's name shall remain or be placed on the register and he or she shall be allowed to vote. That vote shall be sealed and set [9ASR2d7] aside and then counted or discounted in accordance with the appellate court's decision. A.S.C.A. § 6.0223. (2)

It is obvious from a consideration of the above provisions that the administrative appellate role of the Board of Registration as envisaged by the legislative scheme is not only inconsistent with, but makes no practical sense in, the context of candidacy eligibility appeals. The legislation would be quite meaningless in the practical sense if, for example, we admitted the construction of the enactment to include the possibility of such appeals on election day. (3) [9ASR2d8]

The only manner of appeal available to the Board of Registration by petitioner Siofele would be in the context of a decision by the Chief Election Officer to deny his being placed on the general register and district lists of qualified electors. We agree on the evidence with the respondent that petitioner Siofele has not even bothered to register as an elector. The Election Officer testified that a search by his office revealed no application by Siofele to register as a voter, Such applications are made on pre-printed forms which assign a voting number and require the applicant to furnish a number of personal details. These forms are filled out in the election office before an election official and are signed by the applicant before a notary public.

Petitioner Siofele however "believes " that he has so applied. Although he could not positively recall that he had filled out a registration form, he would have the court sustain his belief because an official of the election office requested that he provide his social security number, his birthdate, and other proofs which are the sort of details required by the voter registration form. We are not prepared to draw such an inference in light of the Election Officer's evidence and also in light of the fact that a person's social security number and other proofs of identity are also the sort of detail required in the questionnaires to be filled out by candidates. Such questionnaires were filled out and supplied by petitioner. Further, this petitioner had earlier this year sought mandamus to compel the respondent Election Officer to register petitioner's name on the register. The court in denying mandamus folnd that petitioner had indeed failed to register to vote. Siofele v. Shimasaki, CA No, 79-88, Opinion and Order on "Peti tion for Wri t of Mandate, " (August 29, 1988) [8 A.S,R. 81 (1988)]. Thus petitioner was clearly counseled on registrat,ion proceedings and appeals therefrom. Given the short intervening span of time between that decision and petitioner's testimony in this court, petitioner's inability to recall whether or not he had applied to vote simply lacks reliability. [9ASR2d9]

Appeals from Adverse Determination on Eligibility

We turn to appeals from the Chief Election Officer's adverse determination of petitioner's eligibility to run for office. The authority for the Chief Election Officer to make this determination is found in A.S.C.A § 6.0301(d). Siofele v. Shimasaki, supra. The election related enactments are silent on any specific procedure to appeal a determination of a candidate's ineligibility to run, although direct appeal to the Appellate Division is provided for in election contest cases. A.S.C.A. § 6.0903. We grant review in the nature of mandamus given the urgent nature of the circumstances and hence the questionable adequacy of any alternative review procedures which might otherwise be available. T.C.R.C.P. Rules 87 & 88.

Petitioners seek an order compelling the respondents to permit their running for office and to prepare the ballots accordingly for distribution. If appropriate, mandamus would lie only against the Chief Election Officer since he alone is charged by statute with determining whether a nominated candidate is eligible to run for office and with preparing the ballot papers accordingly. A.S.C.A. § 6.0301(d). We therefore deny relief as against the other respondents.

Since underlying questions of fact were raised, the Court conducted an evidentiary hearing, T.C.R.C.P. Rule 94 provides for an alternative writ in the manner of a show cause order directed to the appropriate respondent. See also T.C.R.C.P. Rule 96.

As we noted at the outset, the Chief Election Officer had determined petitioner Siofele ineligible for election to the office of Governor because of the statutory five year residency requirement. The evidence disclosed that on or about September 15, 1988, the petitioner had presented to the election office a completed questionnaire detailing among other things his residency in the territory during the years 1983 to 1988. His noted occupation during these times is "Wri ter/Student" and peti tioner holds himself out as being a resident of Tualauta County. The Chief Election Officer testified that Siofele was not on the current voter registration lists (Siofele [9ASR2d10] admitted on the stand that he was last on the territorial register in 1977), and, that in connection with Siofele's nomination filings, he had requested Siofele to supply routine proofs of residency in the territory over the past five years. The sort of things asked for were local utility bills and evidence of being a local taxpayer. These were not supplied by petitioner. Petitioner was not in fact in the territory during those years. Knowing that, the Election Officer also requested petitioner to supply the address he had lived at while in the United States. According to the respondent Election Officer, petitioner refused to supply both that address and any evidence that petitioner was still attending school while absent from the territory. The respondent further testified that he obtained some information that petitioner lived in Riverside, California and he thus contacted that county's Registrar of Voters. Respondent received a certified copy of an affidavit of registration which named Joe Siofele as being a registered voter of that county. The affidavit bears the date 10/18/85. By letter dated September 23, 1988, the respondent advised petitioner of his receipt of the said affidavit of registration and his conclusion that at least as of October, 1985, petitioner was a resident of California and therefore unqualified to run for the governorship.

By this time, petitioner Siofele had departed for the United States, On September 25, 1988 a letter signed on petitioner's behalf by Seigafolava Pene was sent to the Chief Election Officer requesting a copy of the affidavit of registration. The request was complied with under cover letter of September 27, 1988. The following day, September 28, 1988, Mr. Pene sent another letter, ''as running mate of Mr. Papu Joseph Siofele Jr. ," to the Chief Election Officer seeking the latter's reconsideration of his decision of September 23, 1988, It appears that in the mutual spirit of expediting things the Election Officer by return letter of September 29, 1988, promptly notified Mr. Pene that the decision about Mr. Siofele's eligibility was final and that further action should be taken up in the High Court.

The next encounter on record between the parties is a letter dated October 25, 1988 from petitioner Siofele, who had by then returned on island, to the Chief Election Officer responding to [9ASR2d11] the latter's denial of petitioner's request for reconsideration and advising respondent that petitioner's absence was owing to a tragic death in his family. Additionally, petitioner tendered "documents to clear my name." On the testimony, these documents were identified as: a certified copy of the same affidavit of registration from Riverside County but with an added notation that it had been "Cancelled" " [b]y request" as of September, 1988; and an illegible copy of what Mr. Siofele testified was his Riverside registration affidavit of 1981. In addition, petitioners submitted a sealed letter dated September 30, 1988, from the Riverside County Registrar of Voters stating that "Papu Joseph Siofele was registered in Riverside County May 28, 1981, and was cancelled November of 1983 because he did not vote, He registered again in October of 1985, and never voted." This letter was not, according to the Chief Election Officer, shown 'him until he was on the witness stand.

Notwithstanding this additional information, the Chief Election Officer was unmoved, While he could not exactly remember the day, he had by now printed the ballots.

On October 28, 1988, only ten business days prior to the scheduled election day, petitioners filed for a writ of mandate.

The authorities are replete with statements that "mandamus " lies to compel the performance of a ministerial act or mandatory duty where petitioner has a specific, well defined legal right; respondent has a corresponding specific, well defined duty; and there is a want of any other appropriate and adequate remedy, Given this statement of the law and looking to the pertinent enactments upon which the claimed right, and thus reciprocal duty, is based, petitioner Siofele's claims of right to run for elective office are dependent on his satisfying a number of conditions, including being a bona fide resident of the territory for the past five years. At the continuing risk of overstating the obvious, the only specific and well defined requirement in the enactments is the duty imposed on the Chief Election Officer to determine the eligibility of a candidate for elective office, A.S.C.A. § 6.0301(d). The Chief Election Officer has apparently done this, The question which therefore follows [9ASR2d12] is whether he accordance with has made this determination in law.

We find on the evidence that the Chief Election Officer has shown sufficient cause to find and therefore act as he did. At the outset he had doubts about petitioner Siofele's residency as the latter had sought nomination forms but was absent from the general register of qualified electors. He had sought proofs of residency from the petitioner who inexplicably proved to be uncooperative even to the point of refusing to reveal his United States address. We assume that there is a burden on any candidate for elective office to supply such meaningful proofs as to permit the Chief Election Officer to discharge his duties beyond the perfunctory level if there is to be any proper implementation of the Omnibus Local Governor Act and the American Samoa Electoral Reform Act. In this regard we find ourselves far from impressed with petitioner Siofele's rather feeble entreaty to the effect that his furnishing of information sought by the various forms supplied by the election office suffices to satisfy eligibility requirements. To the contrary, we find a heavier burden embodied in the territory's pertinent election statutes than that mere measure of formality that petitioner would have us believe suffices to establish eligibility to be a gubernatorial candidate. In connection herewith, we find no basis to sustain petitioner's allusions on the stand to arbitrary treatment and caprice on the part of the election office.

Additionally, petitioner's explanation of the 1985 registration form to the Election Officer was not necessarily sufficient to compel the officer to conclude in petitioner's favor. Id. seeking to dismiss the significance of the 1985 Riverside registration form, petitioner related on the stand his explanation to the respondent Election Officer. Petitioner denied any knowledge of the 1985 registration, which he suspected was filled out and signed on his behalf by his overly exuberant son who was very active with him in the 1982 Riverside election campaigns. Petitioner directed attention to an actual error with his birthdate on the affidavit of registration, stating this was hardly a matter that he should lie about. He also pointed to the letter of September 30, 1988 from the Riverside County Registrar of Voters to corroborate his testimony that the last time he voted in [9ASR2d13] Riverside was in 1982 as his registration was cancelled the following year because of his nonvoting.

We cannot say on this showing that an official charged with the responsibilities of the Chief Election Officer when confronted with the total evidentiary picture above must necessarily conclude in favor of petitioner. Firstly, the corroborative letter of September 30, 1988 from Riverside, which was not originally made available to the respondent, corroborates petitioner's claim only in part. The letter also certifies petitioner's disavowed registration of 1985. The Chief Election Officer seems to have considered the claimed forgery of the 1985 registration and to have been justified in refusing to believe petitioner. Secondly, on the lack of information provided by the petitioner as to the status of his schooling which would avail him a statutory exception to physical residence in the normal course, see A.S.C.A. § 4.0102(b)(4), petitioner quite candidly admitted on the witness stand that he had completed his bachelor of laws in 1980, and that he was currently writing a book. These are not the sort of circumstances which compels a conclusion of "bona fide" residency as required of candidates for governor let alone a basis to issue a mandate to the Chief Election Officer that he has a "specific and well defined duty" to conclude in favor of petitioner's eligibility and to amend the ballot papers accordingly. (4) [9ASR2d14]

Undue Delay

Under the facts presented, petitioners failed on substantive grounds to show their eligibility for relief. However, even were they otherwise entitled to a writ of mandate, this court would not issue the writ because of petitioners' unreasonable delay in bringing this proceeding.

Although laches is technically an equitable defense, and a writ technically a proceeding at law, it has been held that laches applies in petitions for mandamus. State ex rel. Fisher v. Brown, 289 N.E.2d 349, 351 (Ohio 1972). See also State ex rel. Krupa v. Green, 177 N.E.2d 418 (Ohio App. 1961) (writ of prohibition). (5) Respondents have shown the classic elements of laches ---an unreasonable delay in the assertion of their rights by one party and undue prejudice to the other party. Gardner v. Panama Railroad Go., 342 U.S. 29, 31 (1951).

From September 29 to October 25 petitioners did nothing in the courts or in the election office to advance their rights. A one month delay in asserting one's rights is not necessarily unreasonable. But, such a delay becomes unreasonable when we consider that the election was to be held only two weeks after petitioners first sought to invoke the court's aid in their attempts to be placed on the ballot and that although petitioner Siofele was understandably absent from the territory, he could have secured counselor instructed petitioner Pene to press their rights, [9ASR2d15] as, indeed, Pene had done earlier. One cannot wait until the last minute to assert rights when to do so causes prejudice to another. We take judicial notice of the undue prejudice which petitioners' inaction would cause the government. With the election but one week away, reprinting the ballots in time to send them out to the districts and absentee voters, if possible at all, would constitute a significant expense that would not have been incurred had petitioners acted promptly upon receiving the Election Officer's letter of September 29.

We deny extraordinary relief and petitioners' claim for costs.

It is so Ordered.

*********

1. The petitioners also filed a complaint which sought declaratory and injunctive relief. Although phrased in different terms, the issues raised in that complaint are identical to those raised in the writ proceeding. Thus, our disposition of the writ proceeding serves to dispose of the complaint as well.

2. Petitioner Siofele explained on the stand that he desired to go before the Board of Registration because this was a condition precedent to his access to the Appellate Division and that if the Board should rule adversely, a pending appeal to the Appellate Division, according to his reading of the statute, would permit his being placed on the ballot. We have been unsuccessful in locating on the books the statutory authority for this proposition and therefore surmise that it stems from a misreading of A.S.C.A. § 6.0223.

3. Additionally; even assuming for the sake of argument that petitioner had a right to appeal to the Board of Registration, we are unable to find anywhere on the evidence that petitioner had indeed filed an appeal to the Board itself. Petitioner argues that a letter from the respondent Chief Election Officer, denying petitioner's request for reconsideration and advising the petitioner that he has a right to file a complaint with the High Court, was somehow tantamount to a denial from the Board to entertain any appeal. This is assuming too much for our liking. The Election Officer and the Board are two distinct statutory entities and there is nothing in the applicable statute to suggest that the Officer is a sort of gatekeeper to the Board. It would be the height of discretionary abuse for this court to issue its writ to an executive agency to compel that agency to do something it was never asked to do by a complaining party in the first place.

4. We note two additional points. First of all, although the parties' discussion of the residency issue turned on whether the 1985 registration was authentic, petitioner would not necessarily have been entitled to relief even if the registration were forged, Residence is a matter of where one has fixed his habitation and intends to return upon being away from that habitation. A.S.C.A. § 6.0212(a), Without an affirmative showing by petitioner of those additional factors which would explain his lengthy physical absence from the territory, we could not have issued the writ. Secondly, the petitioner sought a writ of mandate without demonstrating that besides the residency question he was otherwise eligible according to the statutory criteria to be a candidate for Governor. It was unclear on the evidence before us that these other criteria had been satisfied by petitioner. The extent of our record does not permit this court to issue its mandate to the Election Officer.

5. Even if there were no authority for the proposition that laches may attach in a writ proceeding we would reach the same result. An extraordinary writ issues at the discretion of the court. In the exercise of that discretion, we find that the undue delay of the petitioners is sufficient reason to deny them the extraordinary relief they seek.

Scanlan v. Reed,


FOUULUVALU M. EPATI SCANLAN, Appellant

v.

LIKI REED, CHIEF ELECTION OFFICER, and
AMERICAN SAMOA GOVERNMENT, Appellees

High Court of American Samoa
Appellate Division

AP No. 32-88

November 23, 1988

__________

Under statute providing that a person "does not gain residency in a district without the present intention of establishing his permanent dwelling place within that district," voter who had moved from one district to another eight years earlier upon inheriting a house, but (1) whose family, church, and business were in the district of his former residence; (2) who had continued to serve matai title and participate actively in aumaga within district of former residence; (3) who had always voted in the former district and never in the district wherein his house was located; and (4) who in the two most recent elections had been a successful candidate for the legislature from the district of his former residence, had not [9ASR2d55] established residency in the new district by mere physical presence. A.S.C.A. § 6.0212.

A voter who is physically present in a new place of residence, but fails to gain legal residence in that district because he lacks the intention of establishing his permanent dwelling place there, retains his previous legal residence and may vote there. A.S.C.A. § 6.0212.

Before REES, Associate Justice, TOGAFAU, Acting Associate Justice, LUALEMAGA, Associate Judge, and AFUOLA, Associate Judge.

Counsel: For Appellant, Charles Ala'ilima
For Appellees, Caroline B. Crenna, Assistant Attorney General

REES, J. :

This is an appeal from the decision of the Board of Registration that appellee Liki Reed is a qualified elector in House of Representatives District #8, comprising the village of Fagatogo. On November 8, 1988, Reed was re-elected Representative for District 8. Appellant was the only losing candidate. Although the appeal seeks only a declaration that Reed was ineligible to vote in the district and his removal from the list of voters, we assume the intended effect of the appeal is to secure the certification of appellant as the winner of the election.

The facts are undisputed. Reed grew up in Fagatogo and lived there until he went away to college in the United States. Upon his return he lived in Fagatogo for two years and then moved into a house in Gataivai, which is outside District 8. Reed had acquired the house, or a share in it, through inheritance in 1962. His family, his church, and his business are in Fagatogo. He serves the Lutu title, which is appurtenant to Fagatogo although it also has lands in Utulei. He is an officer and active member of the Fagatogo Aumaga. He has voted in Fagatogo since 1974 and has never voted in Gataivai. He was elected Representative from District 8 in 1986 and re- elected this year. [9ASR2d56]

We hold that the Board of Registration was correct in its determination that Reed is a resident of Fagatogo and therefore a qualified elector in District 8. A.S.C.A. § 6.0212(b) provides that "[a] person does not gain residency in any district into which he comes without the present intention of establishing his permanent dwelling place within that district." The point is underscored by A.S.C.A. § 6.0212(d): "The mere intention to acquire a new residence without physical presence at that place does not establish residency, neither does mere physical presence without the concurrent present intention to establish that place as his residence."

Eight years is a long time to live in a place without intending to make it one's permanent residence. The existence of such an intention remains, however, a question of fact to be decided in light of all the circumstances; the statute makes it clear that physical presence alone is not dispositive of intent. In Dole v. Attorney General, AP No. 23-78, this Court held that a man who had resided in Futiga for ten years was still a resident of Fagatogo, since he "resides in Futiga only for convenience, having never intended to give up his residence in Fagatogo." Id., slip opinion at 3, decided December 5, 1978. In , as counsel for appellant points out, the Court noted that the voter owned a house in Fagatogo although he physically resided in Futiga. In this case the objective indicia of intent ---participation in church and aumaga in Fagatogo, voting in Fagatogo, serving the Lutu title in Fagatogo, (1) and running for office in Fagatogo ---are even stronger than those in . Since Reed never intended to make Gataivai his permanent residence, he retains his original voting residence in Fagatogo.

The decision of the Board of Registration is affirmed.

*********

1. A.S.C.A. § 6.0212(f) provides in pertinent part that "[t]he situs of a person's primary matai obligations are a factor in determining district residency."

Scanlan v. Reed,


FOUULUVALU M. EPATI SCANLAN, Appellant

v.

LIKI REED, CHIEF ELECTION OFFICER, and
AMERICAN SAMOA GOVERNMENT, Appellees

AP No. 30-88

High Court of American Samoa
Appellate Division

November 7, 1988

__________

Action seeking removal of a candidate from the list of those eligible to run in an election, filed less than two business days prior to the election, would not be set for hearing prior to the election.

Before REES, Associate Justice.

Counsel: For Appellant, Charles Ala'ilima

Memorandum:

This is a request for review of an order of the Chief Election Officer. It seeks the removal [9ASR2d16] of a candidate from the list of those eligible to run in the election to be held tomorrow, November 8. The petition was filed about an hour before the close of business Friday, November 4, the last business day but one before the election.

Appellate Court Rule 15 allows the respondents twenty days in which to file a response. The petition does not request an expedited hearing or a stay of the Election Officer's order pending judicial review. Even if such a request had been made, there would appear to be insufficient time in which to allow respondents a fair opportunity to respond to the allegations in the petition.

Accordingly, the matter will not be set for hearing prior to the election. It is unnecessary at this time to express an opinion about whether and under what circumstances the controversy may be ripe for adjudication after the election.

*********

Te'o; Moea'i v.


MOEA'I UILIATA, Plaintiff

v.

UIVA TE'O and Sl'UFANUA AITU, Defendants

ALAI'ASA FILIFILI, Plaintiff

v.

UIVA TE'O, Defendant

MOEA'l UILIATA, Plaintiff

v.

ALAI'A FILIFILI, CHIEFS OF FALENIU,
Sl'UFANUA AITU, and TUIA'ANA MOI, Defendants

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

High Court of American Samoa
Land & Titles Division

December 12, 1988

__________

Party in land case who claimed to be the owner of all nine tracts identified in an early lease as belonging to the chiefs of the village, and who at trial had clearly attempted to mislead the court on a number of matters, was not entitled to a new trial on the ground that no other party had presented a history of the land that accounted for all nine tracts, since under the circumstances his credibility was weakened rather than strengthened by his attempt to claim all nine tracts as his own.

In some villages, the bearer of ava cup for the village council is recognized as a matai. [9ASR2d108]

Where a matai title has been registered as such for over eighty years, its holder is listed as a matai of the village in a forty-year-old document signed by various other matai of the village, and the leading matai of the village testifies that the holder of the title in question is regarded as a matai within the village and sits in the village council, court will conclude that the title is a matai title whose holder can own communal land.

Attorney in land case has a duty to know exactly what land is being claimed by each party and to explain this to his client well before trial; court would therefore deny motion for new trial by a party who did not claim certain land during the trial because neither he nor his attorney knew that it was part of the land being claimed by another party.

Party who wishes to seek relief from judgment in land case on the ground that his attorney did not explain to him before trial what land was involved in the case should consult another attorney, since pursuit of such relief will give rise to a conflict between the party and his present attorney.

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

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

On Motions for Reconsideration and Relief From Judgment:

Moea'i moves for reconsideration of our decision rejecting most of his claim to the land called Mapusaga. [8 A.S.R. 85 (1988).] Tuia'ana also moves for reconsideration, although our decision awarded him all of the land he claimed within the Moea'i survey. Moea'i also makes a motion for relief from the judgment on the ground of new evidence.

We deal first with the two Moea'i motions, then with the Tuia'ana motion. [9ASR2d109]

I. The Moea'i Motion for New Trial

Moea'i first asserts that the Court erred "in its judgment that Moea'i failed to prove his family's claim." This is an objection to the trial court's findings of fact. In this case our finding was based on our judgment of the credibility of the claimant's witnesses. Although Moea'i witness Valoaga Moananu provided a helpful summary of the general history of the area, the remainder of the testamentary evidence offered by Moea'i was either irrelevant or unbelievable or both.

The heart of Moea'i's claim was that all nine of the tracts leased to the Church in 1902 or 1903, (1) which the lease identified as belonging to [9ASR2d110] the chiefs of Faleniu, were in fact the property of Moea'i. This claim would require us not only to adopt a strained interpretation of the language of the lease itself, but also to disbelieve the testimony of every other witness on matters such as the circumstances of the signing of the lease and who received the money when the land was sold in 1944. As we pointed out in our original opinion, this position is also inconsistent with the testimony of a former Moea'i titleholder in a 1949 High Court case and with the claims made by the present Moea'i himself in 1966.

To cite just one other example of what seemed like a deliberate attempt to mislead the Court, Moea'i put on an elderly witness to testify that his mother and another female relative were buried on the land. Samoans have traditionally been buried on their family's communal land, and the importance of discussing family gravesites in a Samoan land case is to establish long occupancy and a tradition that the land belongs to the family whose members are buried there. On cross-examination, however, it was revealed that the two people in question were buried in the Mormon cemetery along with scores of other people with no claim to ownership of the land.

Moea'i also observes that the Court's opinion, in contrast to Moea'i's testimony, does not account for each and everyone of the nine names of land listed in the 1903 lease ---or, as it now appears, in the 1903 copy of the 1902 lease.

This was a matter that disturbed the Court, and on which the judges themselves asked some questions to witnesses at trial. We believe the disparity between the names by which the various parts of land were called in 1902 and the names used by most parties to the present litigation is due partly to competing traditions within different branches of family groupings. For instance, the grouping containing the Alai'a and Seigafo families was represented in 1902 by Seigafo, in 1944 by Alai'a and Seigafo, and in this litigation by Alai'a. Similarly, the family grouping including Tuia'ana and Magalei was represented in 1902 only [9ASR2d111] by Magalei, in 1944 by Tuia'ana and Magalei, and in this lawsuit by Tuia'ana alone. At the hearing on this motion Magalei testified that he and other chiefs of his family who might have had claims to parts of Mapusaga chose instead to defer to Tuia'ana. And yet he also testified that part of the land known to Tuia'ana as "Luale'a" was known within his branch of the family as "Mauga o le Sea." Other similar divergences of opinion within the family groupings that include the four parties to this case could well account for the remaining 1902 names. (We note that, in response to an objection from neighboring landowners, the lessors agreed in 1902 to delete the name of one tract of land from the list of those wholly or partly included in Mapusaga. And yet they did not delete any land area or change the metes and bounds of the area to be leased. See note 1, supra. This suggests that there must have been some difference of opinion even then about the names of the tracts composing Mapusaga.)

It is also possible that other families with historic claims to parts of Mapusaga chose not to press those claims in the present litigation, and that their lands (along with the names thereof) were subsumed within the lands awarded to the four parties herein. Such a result is certainly possible under our land registration statutes, which require land claimants to object within sixty days to the filing of a rival registration or forever hold their peace. If this did happen, it almost certainly had the effect of enlarging rather than reducing the amount of land awarded to Moea'i.

The Court was bound to weigh the evidence and arguments that were actually presented to it by the four parties before the Court. Nobody's case was free from doubt, but Moea'i's was the weakest of the four. In our judgment, the way in which he used all nine of the 1903 names weakened rather than strengthened his credibility.

Finally, Moea'i urge.s that Tuia'ana "is not capable of owning land under Samoan customs" and that Alai'a "failed to prove by a preponderance of evidence... a capacity to own land under Samoan customs." These issues were not raised in the pleadings, although Moea'i knew at the time he filed his pleading that Tuia'ana and Alai'a were among the objectors to his survey. Nor are they mentioned in Moea'i's pre-trial memorandum, despite [9ASR2d112] the Court's clear admonition to counsel to include any disputed issues of law or fact in their pre-trial memoranda. As far as the Court can recall, Alai'a's capacity to own land was not even raised at trial.

Tuia'ana is the bearer of the ava cup for the village council. In some villages the bearer of the ava cup is regarded as a matai, in some not. Tuia'ana was among the matai of Faleniu listed when the matai register was established in 1906; he is listed in the 1944 deed as a chief of Faleniu; and Magalei, the leading matai of Faleniu, testified that he is regarded as a matai and sits as such in the village council. We do not believe the merits of this issue are properly before the Court, but if they were we would hold that Tuia'ana is a matai and can therefore own communal land.

II. The Motion for Relief from Judgment

Moea'i has also filed a motion for relief from the judgment under Rule 60(b) of the Territorial Court Rules of Civil Procedure. The motion is grounded in the discovery after trial of a Samoan language version of the 1902 lease. See note 1, supra. Whereas the English version of the lease refers to Mapusaga as including "parts of" Toa and certain other lands, the Samoan version speaks of "vaega itiiti" or "small parts" of these lands. Since the Court's decision appears to include as part of Mapusaga a rather large tract designated Toa, Moea'i argues that it is inconsistent with the Samoan version of the lease.

We assume for the purpose of this motion that the evidence could not have been discovered with due diligence prior to trial. Nevertheless, we deny the motion.

First, it is not clear that "vaega itiiti" necessarily means a small part in an absolute rather than a comparative sense. The Samoan language contains no comparative adjectives. Although the gradual influence of the structure of the English language has resulted in the adoption of phrases roughly equivalent to comparatives, it is probable that the signers of the 1902 lease would have said "Mount Everest is larger than the Matterhorn" by saying: "Mount Everest is large, the Matterhorn is small." (E tele le Mauga Everest, e [9ASR2d113] la'itiiti le Matterhorn.) The term "vaega itiiti" may well have meant not "small parts" but "smaller parts". (2) It is beyond dispute that the 1902 lease describes Mapusaga as including all of five tracts of land and smaller parts ---that is, less than all ---of five other tracts. This is fully consistent with the Court's holding in the present case.

Moreover, the exact wording of the Samoan version is of dubious importance in light of the fact that the original version of the lease was almost certainly the English version. The English [9ASR2d114] document abounds with standard Anglo-American legal terminology and does not bear the earmarks of a translation from the Samoan; the Samoan version contains what seem to be awkward and sometimes incorrect attempts to convey English legal terms. The original English version says "parts of Toa," not "small parts" or even "smaller parts."

Moea'i's point in bringing this motion seems to be that "vaega itiiti" was mistranslated in the English version as "parts." It seems more likely, however, that "parts" was just the word the drafter had in mind and that the newly discovered evidence is itself the mistranslation. Although even an incorrect Samoan translation might be relevant to determining the intentions of the parties, in this case the primary definition of the land is by reference to its exterior boundaries. The lessors would have known what land they were leasing by virtue of having seen and probably walked these boundaries rather than by reference to the description of certain parts of it as "small" or "large" in a legal document. See note 1, supra, Moreover, the revised (1903) English version contains a certificate by Secretary Gurr that he had explained it in Samoan to the lessors, who understood and agreed to it. This version, like the 1902 English version, speaks of "parts" of Toa and other lands with no reference to whether the parts are small or large.

Even more important, the Court never made a finding with reference to how much of Toa was inside the 1902 lease and how much was outside. It seems beyond dispute that Toa extended for some distance beyond the lease boundaries on the mountain side. Alaita testified that the land had also traditionally extended further toward the sea than was reflected in his survey. Nothing in the Court's opinion is inconsistent with the proposition that the Alaita/Seigafo family in 1902 regarded the land they were leasing to the Church as but a small part of their rightful holdings.

Finally, even if Alai'a's version of Toa were too large to be described under any circumstances as a "vaega itiiti" it would not follow that Moea'i should receive more of Mapusaga than he already has. As we noted in our discussion of Moea'i's motion for reconsideration, it is pos.sible that parts of the land Alai'a now calls Toa were once called other things by various branches of the [9ASR2d115] Alai'a/Seigafo family group. It is also possible that parts of the Court's award to Alai'a belonged before 1902 to chiefs whose successors in title did not choose to appear in this litigation. We observed in our original opinion that some of the evidence submitted by Alai'a with reference to the southern boundary of Toa,

although plausible, is rather thin. Yet it is thicker than
the evidence put on by.... Moea'i.... Moea'i 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 Moea'i's own claim (comprising at least
Avalua) in the south.

Slip Opinion at 12, 8 A.S.R.2d at 93.

The injection of the vaega itiiti issue does not cause us to change our opinion on this point. (3)

III. The Tuia'ana Motion

Curiously, Tuia'ana also moves for reconsideration. He objects to the award to Moea'i of a small piece of land on the mountainside behind the tract awarded to Tuia'ana. Moea'i was the only claimant to this piece of land. Counsel for Tuia'ana informs us that neither he nor his client knew that the Moea'i survey extended to the mountainside and that this is why Tuia'ana did not submit his own claim in that area.

This is shocking. It was the lawyer's job--- the most basic and obvious part of the lawyer's job ---to know what land was being litigated in the case and to explain this to his client well before trial. Nothing in the evidence or arguments adduced by counsel for Tuia'ana suggested that he had any quarrel with the claim of Moea'i to the tract of land in question. [9ASR2d116]

If Tuia'ana has a remedy, it does not consist of a motion for new trial, since such a motion for new trial must be based on the evidence that was before the Court. Under certain circumstances a party may move for relief from a judgment, as Moea'i has already done in this case. It seems quite possible, however, that the pursuit of such relief by Tuia'ana will give rise to a conflict between his interests and those of his present attorney.

We strongly urge Tuia'ana to consult another attorney about his rights in this matter.

Conclusion

The motions to reconsider and the motion for relief from judgment are denied.

It is so ordered.

*********

1. The copy of the lease introduced at trial is an unsigned typewritten version in English that appears to have been prepared by the Church, the Territorial Registrar, or the Secretary of Native Affairs not too long after the lease was made. It is certified as a true copy by the Registrar of Titles, and also contains a certificate by E.M. Gurr, then Secretary of Native Affairs, to the effect that he "faithfully interpreted and explained the terms, conditions and covenants therein contained to the lessors therein named, who stated that they thoroughly understand the same. It names nine tracts of land as included within Mapusaga and is dated March 17, 1903. Two signed handwritten versions, one in English and one in Samoan, were admitted into evidence after trial without objection. These name ten (not nine) tracts of land and are dated March 6, 1902.
After the lease was signed it was presented to the commandant of the Naval Station for his approval. Certain neighboring chiefs objected, and on April 17, 1902 the chiefs of Faleniu agreed to delete the name of the land called "Sinasina." The typewritten and unsigned 1903 version deletes Sinasina from the list of lands composing Mapusaga. The metes and bounds and the total acreage of Mapusaga (22 acres), however, are identical in both 1902 versions and in the 1903 version. The land the chiefs of Faleniu eventually leased to the Church, in other words, was the same land they originally agreed to lease in 1902.

2. See Pratt's Grammar and Dictionary of the Samoan Language at 68 (4th ed. 1911):

The language has in recent years, owing to the influence
of foreign languages, undergone some modification in
regard to the comparison of adjectives.

Compare id. at 50:

More usually, and more in accordance with pure Samoan
idiom is the use of two adjectives pointing a contrast,
which however is only implied; as E lelei lenei, a e leaga
lena. This is good but that is bad, not in itself, but in
comparison with the other; E 'umi lenei. a e pu'upu'u lena.
This is longer than that. [This is long, but that is short.]

See also C.C. Marsack, Samoan, at 66 (1962):

The comparative and superlative forms of adjective do not
exist in Samoan; there are no forms equivalent to "longer",
"longest" , or "fatter", "fattest". The effect of adjectival
comparison has to be obtained in a roundabout way. Even
in the case of giant vessels like the Queen Mary and the
Aquitania.... a Samoan of the old school would say: Ua tele
le Queen Mary, ua la'itiiti le Aquitania. Literally the Queen
Mary is big, the Aquitania is small.

3. Moea'i has also introduced as newly discovered evidence a map, not to scale, of Mapusaga showing certain landmarks including church buildings. This map is in no way inconsistent with our original opinion.

Utu v. National Pacific Ins. Co.,


FALESOA (ROSA) UTU, Guardian ad Litem for
UIGAESE UTU, a minor; and FAATASIGA UTU,
Plaintiffs

v.

NATIONAL PACIFIC INSURANCE Co., TUA FALEMANU,
AMERICAN SAMOA GOVERNMENT, and IORAMO
TAGALOA, Defendants

High Court of American Samoa
Trial Division

CA No. 99-85

December 9, 1988

___________

Amended complaint supersedes rather than supplements the original complaint.

Where amended complaint inadvertently omitted the name of one plaintiff, court would entertain a motion for second amended complaint to reinstate her as a party provided that original complaint had given defendants timely notice of her claim.

Under statute barring action against territorial government unless begun within two years after the claim accrues, a party's action against the government was barred when she had discovered her claim against the government no later than 1984, filed a complaint against several defendants in 1985, and named the government as a defendant by amended complaint in 1987.

Under statute providing that minors shall have one year after the termination of their disability to commerce any action, a claim by a minor against the government is not barred so long as action is begun within one year after attainment of majority or appointment of a guardian ad litem, notwithstanding the two-year statute of limitations otherwise applicable to actions against the government. A.SC.A. §§ 43.0126, 43.1204.

Under statute requiring plaintiff to file an administrative claim before bringing action against the government, administrative claim by mother that [9ASR2d89] she and her family had suffered damages adequately notified the government of the claims of her minor children, so that suit by minors should not be dismissed for failure to exhaust administrative remedies. A.S.C.A. § 43.1205(a).

Where bus driver's supervisor submitted affidavit that any use of bus other than transporting children to school was outside the scope of driver's employment, but there is evidence that passengers on school bus may have been government employees who had been working on the bus, whether driver was within scope of employment is a disputed material fact precluding summary judgment.

When one party has moved for summary judgment based on affidavits, depositions, or answers to interrogatories, the other party may not rest on the allegations in his pleadings but must set forth by affidavit, deposition, or answers to interrogatories specific facts showing that there is a genuine issue for trial. T.C.R.C.P. Rule 56(e) .

Affidavits setting forth facts to support opposition to motion for summary judgment must be by one who has personal knowledge of the facts, not by attorney with no such personal knowledge. T.C.R.C.P. 56(e) .

Since issue of negligence depends on the reasonableness of a party's conduct, it cannot ordinarily be disposed of by summary judgment.

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

Counsel: For Plaintiffs, Togiola T.A. Tulafono
For Defendants National Pacific Insurance and Falemanu,
Roy J.D. Hall, Jr.
For Defendant Tagaloa, Charles Alatilima
For Defendant American Samoa Government, Martin R.
Yerick, Assistant Attorney General and Robert A. Dennison,
Assistant Attorney General

On Motion for Summary Judgment:

Fatu Utu, plaintiffs' decedent, was a passenger on an "aiga" bus owned by defendant Tua [9ASR2d90] Falemanu and insured by defendant National Pacific Insuranc'e Co. On August 26, 1983, that bus was involved in a collision with a school bus driven by defendant, Ioramo Tagaloa and owned by defendant American Samoa Government [A.S.G.]. Plaintiffs allege that an altercation between the drivers and passengers on the two buses led to their decedent's death. They further allege that defendants' negligent or intentional conduct caused Utu's death and seek to hold the defendants liable for loss of his comfort and support.

Each of the defendants has moved for summary judgment under T.C.R.C.P. Rule 56. (1) Under the rigorous standards of that rule, we are to grant judgment only if the pleadings and supporting papers demonstrate that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."

Defendant A.S.G. has moved for summary judgment against all three plaintiffs. For the reasons set out below, this motion will be granted [9ASR2d91] as to decedent's wife, Fogaolo Utu, (2) but denied as to his children, Faatasiga Utu and Uigaese Utu.

The government contends that Fogaolo Utu's claim is time barred. We agree. The applicable statute of limitations provides that a "tort claim against the government shall be forever barred unless an action on it is begun within 2 years after the claim accrues." A.S.C.A. § 43.1204. The time at which a claim "accrues" would generally be a question of fact related to when a party discovered or should have discovered the harm sought to be redressed. Here there can be no question that plaintiff Fogaolo discovered her claim against the A.S.G. at least by August 14, 1984, because that is the date on which an administrative claim against the government was filed. The plaintiff did not name the A.S.G. as a party defendant until she filed an amended complaint on April 30, 1987. Nor has plaintiff demonstrated that the amended complaint ought to relate back to the filing of the original complaint. Thus, the two year limitations period had run and summary judgment will be granted against Fogaolo's claim. [9ASR2d92]

However, the statute of limitations has not run on either of the two children. Because different issues are raised, each child will be discussed separately.

Uigaese Utu is presently a minor. Our statutes provide that minors shall have one year "after the termination of [their] disability within which to commence any action regardless of any otherwise applicable limitation period." A.S.C.A. § 43.1126. We have recently held that when a minor sues the government the period set out in this statute prevails over the general period of limitations set out in A.S.C.A. § 43.1204 for tort claims against the government. Lutu v. American Samoa Government, 7 A.S.R.2d 61 (1988). In Lutu we reserved the question whether the limitation period begins to run upon the appointment of a guardian ad litem. In this case Uigaese has not yet reached his eighteenth birthday and the amended complaint was filed the day after the appointment of a guardjan ad litem to sue in his name. Thus, whichever event commences the running of the statutory period, Uigaese has timely filed his suit.

Faatasiga Utu turned 18 on September 19, 1986. Because no guardian had been appointed during her minority, the limitations period commenced on that day. The amended complaint having been filed on April 30, 1987, her suit clearly falls within the one year period set forth in § 43.0126.

The government also argues that the plaintiff children have failed to exhaust their administrative remedies. The Government Tort Liability Act [G.T.L.A.] requires a plaintiff to file an administrative claim with the Attorney General's office prior to suing the government in court. A.S.C.A. § 43.1205(a). However, the claim filed on August 14, 1984 adequately notified the government of the nature of the children's claims. While it is true that the initial paragraph of that letter refers only to the widow Fogaolo Utu, the letter does go on to speak of the fact that decedent's "family suffered damages" (emphasis added) .Given the informal nature of the proceedings described in § 43.1205, we think this notice adequate to exhaust administrative remedies. [9ASR2d93]

The A.S.G. has set out additional grounds for summary judgment that we need not consider at great length. Liability under the G.T.L.A. , depends upon a finding that the employee acted within the scope of his employment. The defendant bus driver's supervisor has submitted an affidavit stating that any use of the bus aside from transporting children to and from school was unauthorized and thus outside the scope of his employment. Affidavit of Luteru Fiso, Utu v. National Pacific Insurance Co., CA No. 99-85, at 2 (April 29, 1988). Leaving aside the question whether all unauthorized acts are necessarily outside the scope of one's employment, (3) we hold that plaintiff's assertion that the passengers on the school bus were government employees who had been working on the bus creates a factual issue on the scope of employment and precludes summary judgment on this issue. Response to Defendants' Summary Judgment or Dismissal, Utu v. National Pacific Insurance Co., CA No. 99-85, at 4 (May 27, 1988). (4) [9ASR2d94]

The government further maintains that it is entitled to summary judgment because the G.T.L.A. has not waived sovereign immunity for "any claim arising out of assault [or] battery." A.S.C.A. § 43.1203 (b) (5). But the gravamen of plaintiffs' complaint is not that defendant Ioramo Tagaloa committed an assault or battery on decedent, but that as a result of the government employee's negligence Utu was killed. We do not read the "arising out of"' language of the section so broadly as to preclude government liability for its employee's alleged negligence, merely because a consequence of that negligence was the intentional act of another person.

Finally, the government argues that as a matter of law plaintiffs cannot establish that an act or omission of Tagaloa was the proximate cause of decedent's demise. We initially note that, even where there are undisputed facts, because negligence actions revolve around the reasonableness of a party's conduct, they "'cannot ordinarily be disposed of by summary judgment."' King v. Avtech Aviation, Inc., 655 F.2d 77 (5th Cir. 1981) quoting Gross v. Southern R.R., 414 F.2d 292, 296 (5th Cir. 1969). The A.S.G. bases its argument on the following assertions: that the school bus driver did not participate in the fight which followed the accident and left the scene immediately in order to call the police, and that Utu was slain while the bus driver was gone. Affidavit of Ioramo Tagaloa, Utu v. National Pacific Insurance Co., CA No. 99-85, at 1-2 (April 22, 1988). However, plaintiff counters with the assertion that Tagaloa knew or should have known of the belligerent nature of his passengers, which had apparently been fueled by alcohol, and should never have left the scene but should have stayed nearby in order to ensure the safety of the passengers on the aiga bus. Response to Defendants' Summary Judgment or Dismissal, supra, at 4. We agree with plaintiffs that the facts are susceptible of such an interpretation of what would constitute reasonable behavior.

Because defendant Tagaloa's own motion for summary judgment is grounded on the very same [9ASR2d95] affidavit and analysis rejected in the immediately preceding paragraph, it too must be denied.

Finally, defendant Tua Falemanu moves for summary judgment on the ground that any injury to Utu did not occur as a result of any breach of duty for which he ought be held responsible. (5) He contends that Utu's injuries were caused solely by the criminal acts of others. However, we find that a genuine issue of material fact exists about the actions of Falemanu's employee, the driver of the aiga bus. First, we find merit with plaintiff's contention that a factual issue exists as to whether the bus driver attempted to flee the scene and abandon his passengers, thus breaching a potential duty of protection owed them. See Partial Transcript of Trial Proceedings, Testimony of Enesi Ioramo, American Samoa Government v. Mulifai, CR No. 72-83, at 10 (January 6, 1984). Moreover, there is some evidence to suggest that Falemanu's employee contributed to the fracas by goading the passengers of the school bus on. According to the testimony of one of the assailants, the aiga bus driver said after exiting his vehicle: "Hey pretty soon somebody is going to get hurt." Id. at 9. Even if this is not viewed as instigation, it bespeaks a consciousness of the potential danger in the situation--knowledge which defendant now disclaims by stating he had no reason to foresee criminal acts by the passengers of the school bus.

For the reasons set out above, we grant in part the motion of the A.S.G. and deny the motions of the three other defendants.

It is so ordered.

*********

1. The motions were taken under advisement after a hearing on May 11, 1988. Unfortunately, the file in this action was not then sent to the judge' s office for consideration of the motions, but was instead retained by the Clerk's office where it remained until late November when an attorney inquired concerning the status of the case. The Court apologizes to the parties and counsel for this delay.

2. The government has questioned whether Fogaolo Utu remained a party to the suit after an amended complaint omitted her name from the case caption and failed to mention her in its body. Memorandum in Support of Motion for Summary Judgment, or for Dismissal, Utu v. National Pacific Insurance Co., CA No. 99-85, at 3 (April 29, 1988). Plaintiffs counter that the amended complaint did not supersede the original complaint and thus Fogaolo Utu remains a party. This contention is simply incorrect. An amended complaint does not merely supplement its predecessor. Rather, it replaces it, However, because the original complaint gave notice to defendants that the claims of Fogaolo Utu would be at issue in this proceeding, we would entertain a second motion to amend the complaint in order to include her or her representative as a party. (We note that the record of a related proceeding indicates that Fogaolo Utu has died. Petition for Appointment of Guardian Ad Litem, In re Uigaese Utu, PR No.7-87 (April 27, 1987). Substitution of her estate in her place would thus seem to be in order.)

3. After all, no employee would be "authorized" to act negligently, yet clearly an act of negligence may be "within the scope" of one's employment.

4. We note that plaintiff's attorney set forth this assertion in the "Response to Defendants' Summary Judgment or Dismissal." T.C.R.C.P. 56(e) provides specifically that once a party has moved for summary judgment based on affidavits, depositions, or answers to interrogatories, the non-movant may not merely rest on the allegations in his pleadings but must in turn set forth by affidavit, deposition, or answers to interrogatories specific facts based on personal knowledge that show that there is a genuine issue for trial. This rule has not always been enforced in the past. In this case we need not decide whether to enforce it, since we take judicial notice of the record in American Samoa Government v. Mulifai, CR No. 72-83, which contains some evidence for the assertions made by plaintiff's counsel. However, the Bar of American Samoa is advised that henceforth a party opposing another's motion for summary judgment will not be allowed to rest upon his pleadings or the assertions of lawyers who have no personal knowledge of the facts.

5. Because defendant National Pacific Insurance Co. has not advanced any grounds for relieving it of liability other than those advanced by Falemanu, the disposition of Falemanu's motion for summary judgment will necessarily apply to the Insurance Company as well.

Lualemaga v. Sosene,


LUALEMAGA E. FAOA, Plaintiff

v.

SOSENE ASIFOA and LEFOTU TUILESU, Defendants

LUALEMAGA E. FAOA for LUALEMAGA FAMILY and
VILLAGE OF AASU, and TUITELE K.A. LE'OSO for
VILLAGE OF LEONE, Plaintiffs/Objectors

v.

AOLOAU VILLAGE COUNCIL, Defendant/Claimant

A.U. FUlMAONO and the VILLAGE OF AOLOAU, Plaintiffs

v.

TOLUAO FETALAIGA, Defendant

TUILEFANO VAELAA, TUIAGAMOA, TUIOLEMOTU, and
TUITASI for "AlGA AITULAGI," Intervenors

LT No. 29-86
LT No. 41-86
LT No. 12-87

High Court of American Samoa
Land & Titles Division

December 7, 1988

__________

Whether a lapse of time between the making of a land survey, with the attendant notice required by statute, and offer of survey for registration was so great as to prevent rival claimants from receiving fair notice is a question of fact to be resolved on a case-by-case basis. A.S.C.A. § 37.0102(c).

Before REES, Associate Justice.

Counsel: For Plaintiffs, Albert Mailo [9ASR2d86]
For Defendants Sosene and Lefotu, Togiola T.A. Tulafono
For Defendants Fuimaono and Aoloau, Edwin Gurr
For Intervenors, Aviata Fa'alevao

On Motion for Summary Judgment :

Intervenors "Aiga Aitulagi" move f or summary judgment in LT No. 12-87, the registration of land called Aoloaufou. They point out that the survey of Aoloaufou appears to have been made in 1972 but that the land was not offered for registration until 1986.

In Muagututia v. Savea, 4 A.S.R. 483 (1964), the Court construed the land registration statutes to be inconsistent with the filing of a survey for registration 17 years after the required notice that a survey would be undertaken. The basis for the Court's construction was presumably that the requirement of notice prior to a survey is intended to let competing claimants know that the survey will soon be offered for registration. A delay of seventeen years may therefore defeat the purpose of the notice requirement.

In this case the pulenu'u of the village of Aoloau has certified that in December of 1985 he gave public oral notice in a village meeting "of the time and place of intended survey in order other interested land owners might have an opportunity to be present thereat." The most straightforward reading of this statement is that at some time in December 1985 or shortly thereafter the survey originally done in 1972 was retraced so that interested land owners could see whether it encroached on their claims. If so, the case before us is quite different from Muagututia. If not --- if the survey was made in 1972 and was not retraced in the field pursuant to the announcement in December 1985 ---then the survey would appear inconsistent with the land registration statutes unless plaintiffs can prove that the required notice was given prior to the survey in 1972. A.S.C.A. § 37.0102(c).

Assuming that the survey was made in 1972 and not retraced in 1985, and that the required notice was given in 1972, we are faced with a situation similar to that presented in the Muagututia case. [9ASR2d87] We believe the question whether a lapse of time between the required notice and the offer of registration prevented a party from receiving fair notice is a question of fact to be resolved on a case-by-case basis. The land registration statute itself contains no time limit. In Muagututia the Court appears to have gone on to consider the merits of the case (i.e., who really owned the land) despite its preliminary statement that seventeen years was too long to wait before offering the survey for registration. In the case now before us, the intervenors have in fact received notice of the registration. The real danger is that at some future time a claimant who did not receive notice will argue that the result in this case does not bind him. Since the registration of Aoloaufou has already been challenged by the principal chiefs or village councils of every surrounding village, all acting on behalf of their respective villages, this appears unlikely. (1)

The motion for summary judgment is therefore denied.

*********

1. Defendant also objects to the standing of the intervenors on the ground that ..the rights of Aitulagi and A.U. Fuimaono and the Village Council of Aoloau over the land in question have already been decided in Tuilefano v. Government of American Samoa, 4 A.S.R. 594 [(1964)]." This appears to be an objection to the merits of intervenors' claim rather than to the issue presented by this motion. If defendant wishes to raise this issue before trial it should be raised by a separate motion for summary judgment.

Leota; Sese v .


LOLANI SESE, MEAFOU SESE, SU'A SCHUSTER,
STARR SCHUSTER, and the ESTATE OF ALEKI NOA,
Plaintiffs

v.

MISIPELE LEOTA and TAGIILIMA LEOTA, Defendants

High Court of American Samoa
Land & Titles Division

LT No. 5-88

December 30, 1988

__________

Statutory requirement that parties submit a land dispute to the Office of Samoan Affairs before applying to the court for relief applies only to communal lands, and therefore did not deprive the court of jurisdiction over a dispute concerning individually owned lands. A.S.C.A. § 43.0302.

For purpose of finding an implied easement of necessity, contiguous parcels of land originally claimed by a single grantor qualify as having been under common ownership even though part of the land was surveyed and registered and part was not.

Title to individual land arises from initial occupation of virgin bush land and its continued use, and not from the registration of land; registration does not confer title, but does preclude further contest of the registrant's title provided he has complied with all statutory requirements.

Actual intent of parties to land conveyances did not conflict with their presumed intent not to render a parcel of land useless by denying any access to a road, where the evidence showed only that the original grantor had acted inconsistently by first showing the plaintiff a right of way over his reserved land and then selling that land to defendant with the representation that plaintiff would gain access elsewhere.

Court would burden defendant's land with an implied easement of necessity, rather than imposing the [9ASR2d137] easement on another party's adjacent land which was an apparent servient parcel as well, where defendant was the latest grantee of a common grantor; the grantor had earlier identified to the owner of the dominant parcel an accessway across what was now defendant's land; the implied easement was a logical extension of an established accessway; and defendant was aware that access to the dominant parcel might be affected by the conveyance of land to him.

Before KRUSE, Chief Justice.

Counsel: For Plaintiffs, Asaua Fuimaono
For Defendants, Togiola T.A. Tulafono

On Motion for New Trial:

Defendants move for a new trial on what we perceive to be the following grounds: 1) that there was no unity of title in the lands concerned and a severance thereof as would support the relationship of "dominant" and "servient" tenements; 2) that the presumed intention which is the basis of the implied easement of necessity found by the Court cannot be reconciled with the actual intentions of the parties to the conveyances; 3) that the Court was without jurisdiction because the Office of Samoan Affairs did not certify (presumably pursuant to A.S.C,A. section 43.0302) an irreconcilable dispute with regard to access.

Jurisdiction

We take up first the argument on jurisdiction. As a defense, this matter does not appear to have been raised on the pleadings nor at trial. In point of fact, plaintiffs did file with complaint, and attached as Exhibit "D", a letter from the Office of Samoan Affairs certifying an irreconcilable dispute among the parties. Irrespective, the defense is inapplicable as the pertinent enactment which defendants appear to be relying on (A.S.C.A. § 43,0302) and which requires certain administrative settlement. attempts before the Office of Samoan Affairs, applies only to disputes concerning "communal" lands. This whole matter arose on the basis that parties herein were either grantor or grantees to "individually" owned lands. We see no basis for relief on this ground. [9ASR2d138]

Unity of Title

We entirely agree with defendants that a "dominant tenement" and "servient tenement" relationship, as would sustain the possibility of an implied easement at law, requires that title to the lots in question have been at one time in a singular title holder who then severs title to a portion or portions thereof, If the separate conveyance of those portions should result in a landlocked parcel, a dominant/servient relationship arises. We meant no more than that in our reference to a "common grantor."

Somehow defendants feel that the so called nine acre tract and the lots sold to defendants may not qualify as having once been under the same title and then severed to permit an implied easement. Defendants appear to be overly preoccupied with the fact of survey and registration of nine acres of the land claimed by grantor. The survey and registration of one part of land does not in any way detract from the ability of a claimant to claim title to "contiguous" land (yet to be surveyed) by reason of his initial occupation and use. Indeed, it appears quite clear from the various deeds delivered by the grantor that as far as he was concerned he was selling off pieces of the same land claim. The deeds commonly refer to the transfer of a portion of land "known as Leuluasi."

In as much as we can gather on the cases dealing with individually owned lands, it is initial occupation of virgin bush land and continued and effective use thereof which gives rise to title as a matter of law, NOT registration. The registration enactments, A.S.C.A. §§ 37.0101 et seq., do not confer title, they merely estop the rest of the world from contesting a registrant's title claims, provided that the registrant has complied with the requirements of the enactments. Title is title irrespective of whether registration has been accomplished or not.

The fact remains that the parties hereto, who are grantees of the late Aleki Noa, claim their respective titles to their respective and contiguous parcels from the same title source. It so happens that one of them has become landlocked. At the same time there was no evidence that the [9ASR2d139] grantor's claims to title to the nine acre tract and to the parcels sold piecemeal to defendants, arose through any other person or persons but through his own original claims. While there was evidence suggesting the possibility of a competing claim by a Fao to the portions sold by Noa to the defendants, this is not to say that Noa's claims to title stemmed through Fao. This is where the defendants' theory suffered at trial.

Actual Intentions of Parties

Firstly, defendants' contentions in connection herewith essentially go to matters of fact. The evidence was conflicting with regard to the grantor's intentions which were not made very clear. In our view, all that is clear from the evidence was that the grantor acted inconsistently and then pathetically attempted to undo the results of his inconsistent actions. That is he points out to Schuster their right of way and then wittingly or unwittingly attempts to subsequently sell that right of way area to the defendants several years after. Certainly this was one of the reasons for the Court's plea to the Fono for regulating land sub divisions.

We disagree with defendants' view of the evidence.

Defendants' final entreaty with their motion is simply -- why us? Why not the other and apparent servient tenement (the Seses) as well?

We necessarily found on the evidence that the Schusters were shown a right of way outside the nine acre tract. As they did not frequent their land, the Schusters' right of way never became apparent through usage. Those that did frequent their lands, the defendants and the Seses, did ostensibly establish that right of way as being contained outside the nine acre tract. The logical extension towards the Schusters' of that right of way as developed through usage is approximately that area which the Court has declared to be the access to the Schuster land. Further, the purchase by the defendants of that area which included the access as shown to the Schusters by the grantor, was the latest conveyance. The defendants were in the best position to check the wrong, or even perhaps the fraud, committed by the grantor in his [9ASR2d140]selling the accessway to them. Defendant Misipele Leota's testimony was clear that he was aware of the possibility that the Schusters access may be affected. He raised this contingency with the grantor who Leota claims repeatedly pestered him for a sale. As it turned out, and it was apparent from his testimony, Leota was in effect talked into the sale by the grantor who told him that he would allow the Schusters an access traversing over land which turns out to be property already sold to the Seses. In these circumstances, the Leotas as the later purchaser must take their land subject to the encumbrance of an easement prior indicated to the Schusters.

The defendants also suggested that perhaps the Seses could have shared in the burden of the implied easement. Indeed, this was a possibility considered by the Court, however, the practicality of that possibility has been effectively rendered moot by the large rock wall erected by defendants on the boundary with the Seses. It was clear on the evidence that the defendants had expended much time and money on the wall. This was also taken into account by the Court. Accordingly in fashioning a remedy, the Court did not wish to entertain the removal of the whole wall but only so much of the inland portion thereof as would reasonably permit the Schusters to enter their land.

Motion for a new trial is denied. It is so Ordered.

*********

Leota; Sese v.


LOLANI SESE, MEAFOU SESE, SU'A SCHUSTER,
STARR SCHUSTER, and the ESTATE OF ALEKI NOA, Plaintiffs

v.

MISIPELE LEOTA and TAGIILIMA LEOTA, Defendants

High Court of American Samoa
Land & Titles Division

LT No. 5-88

November 10, 1988

__________

Where a tract of land, which was once part of a larger tract whose owner subdivided and sold parts of it, is found to be without access to a road, an easement arises by implication over the other part or parts of the land subdivided, if such easement is strictly necessary for the beneficial use of the tract sold.

An implied easement of necessity in favor of a parcel subdivided and sold from larger tract, in order to provide access to a road, will exist (1) only against adjoining lands retained or subsequently sold by the grantor, (2) only where the easement is strictly necessary for the beneficial use of the tract sold, and (3) only for so long as the necessity continues; mere inconvenience will not give rise to an implied easement of necessity.

Implied easement of necessity is based upon a public policy that favors full utilization of land, so that the grantor is presumed to convey whatever is necessary for the beneficial use of the land; the easement will therefore be implied regardless of the actual intentions of the parties.

In action for an implied easement of necessity, that the grantor had registered the proposed dominant parcel, but had never registered the proposed servient parcel or the larger tract from which both had been subdivided, did not preclude finding that a single grantor once held unity of title over those parcels, since ownership of [9ASR2d26] individual land does not arise from registration, but from initial use and occupancy.

In action for an implied easement of necessity, the court would neither examine whether defendant's servient parcel was subject to a title dispute with a third party nor determine the merits of that dispute prior to granting relief against defendant, where (1) the alleged third party claim had not been zealously made; (2) defendant had bulldozed, improved, and used the alleged area of dispute since its conveyance to him; and (3) evidence of the claim amounted to no more than an allegation made as a defense to plaintiff's action.

Implied easement of necessity will arise over defendant's land despite his grantor's representation that plaintiff's would gain access elsewhere, where the grantor once held unity of title over both defendant's and plaintiff's land, plaintiff's parcel has been deprived of access to a road by defendant's erection of a wall over what the grantor originally pointed out as their accessway; and the easement is strictly necessary for the use of plaintiff's land.

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

Counsel: For Plaintiffs, Asaua Fuimaono
For Defendants, Togiola T.A. Tllafono

A case could not have been better presented, than the facts giving rise to this dispute, highlighting the urgency in need for regulatory intervention by the legislature to control the orderly sale of lands in the territory.

A growing number of individuals have managed to procure registration to large tracts of land, in individual ownership, through proceedings before the Territorial Registrar. Invariably, these tracts are then immediately offered for sale, in a piecemeal fashion, in lots of different shapes and sizes. More often than not, such sales are undertaken without any regard whatsoever for subdivision planning. There are on file with the Clerk's office, disputes between competing buyers [9ASR2d27] of overlapping pieces of land (1) as well as disputes concerning the very same piece of land being sold twice. (2) Additionally, as may be gathered from the facts here, land subdivisions have resulted without any thought given to the orderly reservation of rights of way, not only for the access of people, but also for the convenient development of such public services to homesites as utility, telephone, water, and sewer lines, It is inevitable with this sort of individualized land development that the buying public frequently suffers while the courts (as well as utility supplying and development planning agencies) are left to work out, also in a piecemeal fashion, practical solutions to what is generally an impractical mess. The emerging picture is usually the kind of hodge-podge land development that gives a town planner nightmares. In terms of undeveloped lands, therefore, it is perhaps very apt for the Fono to take a hand in the matter of overall land development, by regulating subdivisions and coordinating individual development efforts against some territorial planning standards. It goes without saying that the territory's real property resources are limited and are in need of more meticulous use management.

Facts

The parties hereto, save for the plaintiff estate, were, at different times, purchasers of land from the late Aleki Noa (hereinafter referred to as the "grantor") .In 1985, two of the plaintiffs, the Schusters, had purchased a third of an acre from grantor as an " investment, ..The Schusters have since become landlocked as the result of a subsequent sale to defendants, Misipele and Tagi'ilima Leota. With the subsequent and strategic placement of certain structures by their fellow grantees located nearer to the main road, coupled with an equivocal stance taken by the grantor, the Schusters now find, in terms of ready access, that their investment could just as well be in the midst of the Florida Everglades. [9ASR2d28]

The law is very clear, a landlocked grantee in the Schusters' circumstances is guaranteed access to and from his property one way or the other. (More will be said on this below). The facts before us, however, typify the unusual possibilities with individualized land development.

Grantor had for sometime prior to 1983 secured registration to some nine acres of land in the county of Tualauta. The land at one extreme is binding on the Iliili/Airport Highway while at the other it is binding on the Fogagogo Road. On the Iliili/Airport side, the road frontage is relatively narrow compared to the Fogagogo frontage. Although a similar access mess arose with the Fogagogo frontage, the same has been resolved with the aid of the Survey Office and some cooperative grantees. Not so with the opposing and the narrower road frontage.

Shortly after acquiring registration, grantor first sold, on the Iliili/Airport side, a large parcel which encompassed much of the road frontage, to one Ruby Grisard. The remaining lands on towards the Iliili direction were subsequently sold by grantor in three separate lots. The roadside lot was sold to one Denny Spencer and, immediately inland to him, another lot was parcelled out and sold to the Seses in 1986. To the rear of the Sese lot, is the Schusters' land which they had acquired from the grantor in the previous year, 1985. At the time the Schusters had acquired their piece, they shared a partial common boundary with the defendants who are located to the Iliili side of the Schusters. Beyond this common boundary line and extending to the main highway, there was open space retained by the grantor. The parcel held by the defendants at this time had been conveyed to them by the grantor in the year 1983.

While this state of affairs remained, the Schusters regarded this open land between them and the defendants as forming part of the right of way, traversing towards the highway following the Iliili boundary line of the subdivision. Mr. Schuster testified that grantor at the time of sale, physically pointed out to them their access accordingly.

The defendants also used the same access for ingress and egress onto and off the main highway up [9ASR2d29] to a point when their right of way forked towards their property and away from the Seses' and the Schusters' boundary direction. Defendants similarly testified that their right of way was physically pointed out to them by the grantor after they had first moved into the area.

The testimony according to the defendants went on to state that the grantor in 1987 found himself in need of money, and after persistent offers to defendants, another land sale was struck between them. This conveyance not only extended defendants' holding towards the direction of the main road but included the open area of land referred to above. Thus the inland part of the right of way as the other grantees knew it had been sold by the grantor, apparently without their knowledge. For a brief while thereafter, the Seses got to their lands without complaints while the Schusters rarely visited theirs.

With the matter of "pule" over the land remaining confused, the inevitable land dispute occurred. The evidence did not disclose what first fused the dispute but defendants asserted unequivocally their "pule'. by erecting a rather imposing cement block wall extending all along what has now become their common boundary line with the Schusters and the Seses. Defendants have however allowed the Seses some ten feet along the boundary as a turning area into their land.

When defendants began to restrict access, plaintiffs complained to the grantor who is said to have attempted to undo the conveyance to defendants. The testimony was conflicting here. The grantor's widow thought that her husband wanted to undo a wrong committed upon the Schu.sters because the conveyance purported to dispose of their right of way. On the other hand, defendants testified that grantor was well aware of what he was offering to sell. He had advised defendants before the purchase that the Schusters would be provided an alternative access over the Sese property which, grantor had claimed at the time, remained unsold.

In fact, at this point in time the grantor had already sold the Seses their property as evidenced by their sales agreement. Subsequently, the grantor died and the matter finally found its way to court. The Seses testify that they are greatly [9ASR2d30] inconvenienced with a restricted turning area, while Schuster complains of no access at all.

Discussion

Where a subdivided piece of land sold is found to be without access to a road, an easement arises by implication over the other part or parts of the land subdivided, if the existence of the easement is strictly necessary for the beneficial use of the piece sold. Hansen v. Smikahl. 113 N.W.2d 210 (Neb. 1962). In other words the easement arises when the only practical means of ingress and egress to and from the landlocked parcel (the dominant tenement) is over those other parcels, (3) sold or retained by the same grantor, which are nearer to the main road (the subservient tenement). The easement arising is one of "necessity" and is based upon the presumed intention of the parties to the conveyance. Daywalt v. Walker, 31 Gal. Rptr. 899 (Gal. App. 1963). It has been said the that "[t]he doctrine is based upon public policy, which is favorable to full utilization of land and the presumption that parties do not intend to render land unfit for occupancy." Condry v. Laurie, 41 A.2d 66, 68 (Md. App. 1945). This public policy against useless landlocked lands may thus be seen as a minimal measure of land development imposed on the parties to a land transaction by operation of law, and thus the implication of the easement is not dependent upon the intent, or lack of intent, of the parties. Whenever a party conveys land he is presumed to convey whatever is necessary for the beneficial use of that land and at the same time to reserve whatever is necessary for the beneficial use of the land which he retains.

An easement of necessity as it name suggests will exist only as long as the necessity continues. Condry v. Laurie, supra; Martinelli v. Luis, 1 P.2d 980 (Gal. 1931); Waubun Beach Association v. Wilson, 265 N.W. 474 (Mich. 1936). [9ASR2d31]

On the facts, the application of the law should be straightforward. But there is a further aspect to this land development that must be considered.

Firstly, the government's chief surveyor testified that he had drawn up some three or four years ago a composite map for the grantor to ascertain the extent of his sales and to aid in resolving some rights of way problems also existing with landlocked grantees to the Fogagogo road. The composite reveals the nine acre tract as an untidy jigsaw puzzle with a missing piece in the middle (an insignificant part of the land unsold and landlocked). The map also shows property lying outside the tract itself. Both plaintiffs are inside the nine acre tract while outside the nine acre tract and adjacent to its Iliili boundary, lie the access way as well as the Leota lots which have merged with what was the inland part of the access. These relevant portions outside the nine acre tract are said to be also claimed by a third party who contests grantor's claim to title.

Defendant therefore argues as follows: In order to claim an easement by necessity there must have been "unity" in title at some time over the dominant and servient parcels followed by a severance thereof; that since title to the portions sold to defendant is contingent and subject to attack by a third party, it may not be said that there has been this unity and a severance in title in order to give rise to a dominant/servient relationship.

Additionally, defendants claim that an implied easement can onlyarise within the limits of the nine acre tract since this is the only parcel claimed by the grantor which has been registered. (4) [9ASR2d32] (One of our difficulties in pursuing this possibility is lack of jurisdiction over Spencer although he could have been the subject of proper joinder by any of the litigants had they so desired).



Defendants are correct with their submission on the requirement of unity of title and a severance. We do not agree however with their analysis of the facts and conclusions of law thereby reached.

In our opinion, a conclusion that there was unity in title concerning defendants' lots and plaintiffs' lots is not precluded at this time for the limited purpose of framing the relief sought herein. The facts reveal a common grantor who attempted to convey "his" title to the lands sold whatever that might be. The fact that the nine acre tract was registered in the grantor whereas the Leota tracts are not as yet so registered does not as a matter of law mean that grantor had no title in the Leota lots. Registration of lands in American Samoa does not guarantee indefeasible title to land. The "Torrens" system of recording does not exist in the territory, While registration however, may be better "evidence" of title as a consequence of A.S.C.A. § 37.0103 -- which requires any adverse claimants to any proposed registration of lands to file objections within a 60 day period, or in effect be barred from further consideration - this is not to say that one cannot have title to land unless one first procures registration. As we understand the law, title to individually owned lands arises from circumstances of independent clearing of previously unoccupied virgin bush land by a Samoan claimant. See Leuma v. Willis, 1 A.S.R.2d 48 (1980). It is first use and occupancy that gives rise to title to individually owned land as a matter of law; and it is an assumption based on a faulty premise to say that until a claimant has successfully registered his claim to title that such title is any less as a matter of law. That is, title to individually owned land does not as a matter of law arise by reason of registration, but rather arises through initial use and occupation. [9ASR2d33]

On the other side of the coin, we have noted that an easement by implication may not arise over the lands of a stranger. See n. 3, supra. At the risk of overstating the obvious, this legal limitation only arises where the stranger holds absolute title to those affected lands. It would be needless extension of the noted legal limitation {and an unwarranted dilution of the public policy behind the common law) to preclude an implied easement of necessity because of the possibility of claims by a stranger. In a sense, such an attempt would indeed be tantamount to giving sanction to the assumption that title is in the stranger. Merely because there is a contingency that a stranger may contest the grantor's title to part of the subdivided lands it does not follow as a matter of law that the stranger has better title to the subservient tenement so as to defeat the implication of an easement.

We hold that there is neither need nor room for the Court in this instance to be concerned with whether there is a title dispute with a stranger and the determination of that dispute before the relief sought here may be considered. This holding takes into account the following circumstances: the alleged claims by the third party have not been zealously made; the Leotas moved into the area with a bulldozer shortly after acquiring their first lot from grantor in 1983; the right of way was early moved to outside the registered nine acre tract onto the allegedly disputed land; the Leotas have built houses on the area claimed as disputed; and the evidence of a dispute by the third party did not amount to too much more than the allegation by Leota of a dispute, which allegation was offered more in the sentiment of a defense. (5)

On the facts before us, we find there was unity of title and a severance of land giving rise to an easement by implication at common law. We further conclude that the common law doctrine is applicable in the territory by virtue of A.S.C.A. § 1.0201(4). The public policy behind the doctrine, the beneficial use of lands, must undeniably apply [9ASR2d34] to the territory with its limited lands requiring the fullest and most effective use of resources.

Conclusion

From the discussion above, an implied easement of necessity arises only where it is strictly necessary for the beneficial use of the dominant tenement. Hansen v. Smikahl, supra. Such an easement will only exist as long as the necessity continues. Condry v. Laurie, supra, Martinelli v. Luis, supra, Waubun Beach Association v. Wilson, supra.

On the facts before us, we conclude that plaintiffs Lolani and Meafou Sese and their family have failed to show that they are in fact. landlocked. They have been provided a ten foot entrance on the boundary line which in our view provides sufficient access for residential use. Their primary complaint with the defendants' wall was that it restricted the convenience of the dump trucks bringing fill onto their land and impeded those vehicles from backing out of their land so as to be positioned head first towards the main highway. This inconvenience is hardly the stuff that gave rise to the doctrine at common law which talks of "strict necessity" and the possibility of a limited duration for that necessity. The Seses have acquired for themselves a large tract of land which is quite capable of accommodating the turning of vehicles so that they may exit the land directly forward without additionally burdening defendants' land.

In the case of the Schusters, theirs is exactly the sort of circumstance for which the law mandates easements by implication. They have been effectively landlocked by the erection of the stone wall over what was pointed out to them by the grantor as their accessway to the main road. Notwithstanding what the grantor may have said to the Leotas to persuade them to purchase their second lot, given the existence of the necessity, the title conveyed by the grantor to them was subject to the easement by operation of law. Accordingly, the following order will enter and the Court sincerely hopes that the parties will exercise the proper degree of discretion in exacting compliance. The entire wall need not be completely removed and discretion and common sense [9ASR2d35]should address the reasonable convenience of both parties.

It is Ordered that the defendants Misipele and Tagiilima Leota, and all those taking by, through, and under them, are hereby enjoined and restrained from maintaining so much of that stone and concrete wall located on or near their common boundary with the plaintiffs, Su'a and Starr Schuster, which is preventing the plaintiffs from reasonable access to their adjacent property.

The parties shall have judgment accordingly.

*********

1. Moon v. Falemalama, 4 A.S.R. 836 (1975).

2. Manuma v. Bartley, LT No.15-86 (1986).

3. The element of necessity is unaffected by the fact that a shorter and more convenient manner of access to the main highway could be provided over the adjoining land of a stranger. Galhoun v. Ozburn, 198 S.E. 706 (Ga 1938).

4. The evidence revealed that at one time the defendants first went upon their land by way of access through Spencer's land within the nine acres' Ili'ili boundary line. The Seses also utilized this way of passage for a short time until Spencer's land was barred by the defendants supposedly on behalf of Spencer. Defendants' testimony was that they are related to Spencer and were initially using his land for access at his sufferance. It was when access was closed through Spencer's that the grantor moved the access turn-in outside, although contiguous to, the nine acre tract's Ili'ili boundary line.

5. We imagine that the sentiment would quite obviously be otherwise in the context of an actual case with the third party.

Leatumauga; Avegalio v.


FAILAUTUSI AVEGALIO on behalf of himself and 
his brothers and sisters, Plaintiff

v.

LEATUMAUGA and members of the LEATUMAUGA 
FAMILY, Defendants

High Court of American Samoa 
Land & Titles Division

LT No. 28-87

December 12, 1988

__________

Where landmarks and registered survey maps showed that the land in dispute had been registered as property of plaintiff's family for forty years, and the principal evidence for defendants was the recollection of their counsel that as a boy he had used to purchase pancakes from a woman who lived on the land but who was not related to the plaintiff, the defendants would be enjoined from going on the land.

Before REES, Associate Justice and AFUOLA, Associate Judge.

Counsel: For Plaintiff, Charles Ala'ilima 
For Defendants, Tuanatitau Tuia

We find the facts to be as follows:

(1) In 1946 the children of Sekio Avegalio (Rita, Fa'asau, Failautusi, Fuapopo, Su'e, Fiapito, and Veta) registered land called Vaosa near the village of Pava'iati.

(2) The land had been purchased from a person named Pouli sometime after 1930. A survey and a map had been prepared in 1930 by B.F. Kneubuhl. The description of the land defines its point of beginning as a point on the boundary of land belonging to Uo. This Uo land is depicted on the southern boundary of Vaosa. The accompanying map identifies other boundaries as a stone wall to the [9ASR2d97] southwest, property of Tua to the north, and property of Leatumauga to the southeast.

(3) Members of the Avegalio family nowoccupy a piece of land which they call Vaosa, and which they claim to be the same land they registered in 1946.

(4) For at least thirteen years Leatumauga and members of his family have also been using part of the tract which the Avegalios call Vaosa. They claim this is part of their land called Talifia'ai.

(5) In 1975 Leatumauga attempted to register a survey of Talifia'ai. Failautusi Avegalio objected on the ground that the survey encroached on Vaosa. The Court initially ruled for Leatumauga on the ground that a resurvey of Vaosa commissioned by Avegalio had failed to close and therefore could not be considered as evidence.

(6) On rehearing, however, the Court reversed itself, stating that "[a]rguments at the hearing indicate that: (1) if the plaintiff is allowed to register land 'Talifia'ai,' then 'Talifia'ai' will encroach upon the adjacent registered land known as 'Vaosa'; (2) the old survey of 'Vaosa' does close. .Further, it appears that matters involving retracing and closing of survey are readily explainable by competent evidence Leatumauga v. Avealio, LT No.1514-75, Decision on Motion for New Trial at 2. The Court appears to have been referring to counsel's argument in his motion for reconsideration that a sight was missing in the 1930 map and that the 1975 surveyor had merely added this sight so that the map would close. The 1930 map does appear to be missing a sight that is contained in the 1930 description of the land.

(7) The 1975 case was set for retrial but was dismissed without prejudice when Leatumauga and his counsel failed to appear for the scheduled trial.

(8) A subsequent resurvey commissioned by Avegalio in 1978 does close and does conform to the written description of the registered land, with adjustments from magnetic to true north. The 1978 map shows an overlap between the land Vaosa registered by Failautusi Avegalio and his brothers and sisters, and the land called Talifia'ai which Leatumauga had attempted to register in 1975. [9ASR2d98]

(9) Failautusi Avegalio then brought an action to quiet title against Leatumauga. That case, LT No.35-78, was dismissed after plaintiffs and their counsel failed to appear at a scheduled hearing on a motion to set a trial date.

(10) Both the 1930 map and the 1978 map show a 203 foot course along a stone wall on the southwest boundary of Vaosa.

(11) The 1978 map also shows a stone wall on the northwest boundary at a right angle to the other stone wall. This stone wall is depicted as the boundary between Vaosa and land occupied by Tuanatitau, who is sometimes called Tua. This land corresponds to the area designated "Tua" on the 1930 map.

(12) The tract presently occupied by the Avegalios which they call Vaosa is bounded on the southwest and the northwest by stone walls at right angles to each other. The land on the other side of the northwest stone wall is occupied by Tuanatitau.

(13) The 1978 survey also shows land designated "Pele" slightly to the northeast of Vaosa. There is a small tract occupied by a Mr. and Mrs. Pele, relatives of Avegalio, slightly to the northeast of the tract now occupied by the Avegalios as Vaosa.

(14) To the south and southwest of the tract claimed by the Avegalios as Vaosa is land also occupied by the Avegalios which they call Ulutolu. Much of the land in the neighborhood is known as Ulutolu. The land called Ulutolu and occupied by Failautusi Avegalio was once claimed by Uo. Kuki v. Heirs of Avealio, LT No.190-1963. This land is in roughly the same place relative to the tract claimed by the Avegalios to be Vaosa as the land designated "Uo" is relative to Vaosa on the 1930 map.

(15) There also appears to be a house within the tract claimed by Avegalio which is occupied by a man named Nelesoni.

The only issue in the case is whether the land now claimed by Avegalio is the same land he and his brothers and sisters registered in 1946. [9ASR2d99] Defendants admit that Avegalio and his brothers and sisters did register some land called Vaosa in the vicinity, but say it must be elsewhere, probably further back from the road.

Aside from the testimony of Mrs. Leatumauga that her husband's family has long occupied this land, the only evidence adduced by defendants is the testimony of Tuana'itau (who was both counsel and a witness for Leatumauga) that as a young man he used to buy pancakes from a Mrs. Ava who lived in a house on this land. Tuana'itau testified that Mrs. Ava was not related to Avegalio but was related to Nelesoni. He argues that the Avegalio tract must therefore be further back from the road than the Nelesoni house, which would also put it further back than the Leatumauga claim.

If the Court were to hold, however, that Vaosa must be further back from the road than Avegalio says it is, it would be necessary to find some place further back from the road bounded by (1) land once owned or claimed by Uo on the south; (2) a stone wall on the southwest; (3) another stone wall, at a right angle to the first, on the northwest, with land occupied by Tuanatitau on the other side; (4) land occupied by Pele slightly to the east; and (5) land occupied by Leatumauga on the southeast. It seems highly unlikely that there could be two such places; Tuanatitau, who is quite familiar with the neighborhood, was unable to suggest any.

We must conclude either that Tuanatitau was mistaken about the exact location of the house from which he once bought pancakes, or that there is some explanation for these purchases other than this not being the same land registered by the Avegalios in 1946.

Accordingly, Leatumauga and members of his family are enjoined from going on any part of the land called Vaosa as depicted in the 1978 survey commissioned by Avegalio (Drawing No.6-040, act. 6, 1978) and from disturbing the peaceful possession thereof by Rita, Fatasau, Failautusi, Fuapopo, Sute, Fiapito, and Veta Avegalio, their heirs, successors, and assigns.

It is so ordered.

**********

Lealaimatafao v. Lautele,


LEALAIMATAFAO MASE, Plaintiff

v.

LAUTELE NOA, Defendant

FAIGAME LAUTELE IUTA for Lautele Iuta and 
Overland Olotoa, Plaintiffs

v.

LEALAIMATAFAO MASE for the 
Lealaimatafao Family, Defendants

LT No. 29-82 
LT No. 35-87

High Court of American Samoa 
Land & Titles Division

November 17, 1988

__________

Where land claimant, an untitled man, contended that the opposing party, a ranking matai of the village, had come to him looking for a place to plant crops and that he had given the matai [9ASR2d40]permission to plant in a "taloloa" area under his control, this contention was inconsistent with cultural norms; the evidence therefore preponderated in favor of opposing party's contention that he had cleared and cultivated the land in order to acquire additional lands for his family.

In order to establish a claim to individually owned land, a party must show that the land was (1) cleared in its entirety or substantially so from the virgin bush by an individual through his own initiative and not by, for, or under the direction of his aiga or its senior matai; (2) cultivated entirely or substantially so by him; and (3) occupied by him or his family or his agents continuously from the time of the clearing of the bush.

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

Counsel: For Lealaimatafao Family, Charles Ala'ilima 
For Iuta and Olotoa, Asaua Fuimaono

This matter originated with an attempt by claimant Lautele Noa or Faigame Lautele Iuta (hereinafter "Lautele" ) to procure the registration in individual ownership of certain lands located in Tafuna, Tualauta County and delineated in yellow in a composite prepared by the government's chief surveyor and marked Exhibit "1". Such claim is more particularly described in the Private Drawing No, 61-14-81 certified by the government survey office and is a part of the registration record kept by the Territorial Registrar and filed eventually with the Court under docket No. LT. 29-82.

Chief Lealaimatafao Mase (hereinafter "Fao") objected to this attempted registration as encompassing communal lands of the Lealaimatafao family. The extent of Fao's claim is delineated in red in Exhibit "1" and more particularly described in Drawing No, 431-8-87, also certified by the government survey office and is a part of the registration record kept by the Territorial Registrar and filed with the Court under docket No. LT. 35-87. In essence, our record reflects a dispute over virtually the same piece of real [9ASR2d41] property and hence these matters have been consolidated for trial on the merits.

Mrs. Overland Olotoa's interest in this matter arises through Lautele who is said to have sold her the southern half of the land as claimed by Lautele, hence the yellow bisection of Lautele's claim as seen in Exhibit "1" .

The land is bounded at its northern extreme by the Iliili/Airport highway, extending in the southeast and sami direction to the government airport boundary fence. On its western border are lands which have been registered in individual ownership by one Aleki Noa. Its eastern or airport side abuts some 12.5 acres which have been registered by Lautele in individual ownership. Much of this registered land has been sold by Lautele to Mrs. Olotoa.

The testimony as expected was conflicting as the parties are claiming essentially the same land area.

Fao is the senior matai of the Lealaimatafao family of Iliili and a ranking matai of the Tualauta County. He is eighty years old and has held his family's title since 1957. He testified that his family has many lands scattered throughout the county occupied by various family members. He testified that he first went on the disputed land and commenced clearing it in the year 1961. The reason he went into the area was that it was virgin bush at the time and that other members of his family had also come into the vicinity for the same reasons. He further testified that his clearing and occupation extended from the highway all the way to the government's airport fence. From the fruits of his labor, he also claimed that he had obtained a government contract to supply the hospital with taro and vegetables in the year 1963. Fao also claimed to have had a home built on the land together with a water tank. In those days before water development reached the area, his tank was a source of water for other people working nearby. The home was said to have been leveled by the hurricane of 1966 and never rebuilt. Fao testified that since the hurricane he had ceased further major projects on the land although he continues using the crops thereon. [9ASR2d42]

He was unaware of Lautele's surveying the area; however, he found out about the proposed registration posting and accordingly filed an objection. He discovered at one time Olotoa planting in the rear portion of his land and he instructed his then counsel to put a stop to this. He seems to recall an order to that effect but had no idea what happened to the case. He recalled participating in meetings at the Office of Samoan Affairs which determined that the matter should be sent to the Court for determination. Since 1981, nothing has happened in the case, although the coconuts which he claimed to have planted in the rear of his land have since been removed.

Other members of the Lealaimatafao family corroborated their senior matai's testimony by also bearing witness to family work on the land.

Lautele is 63 years of age and is also from the village of Iliili. He claims to have been involved with implementing an early decision by the youth (aumaga) of Iliili to cultivate bush land (taloloa) in order to serve the village. He commenced clearing land in 1938 and worked his way towards the area which comprises his registered claim. He left the island after the war with a contingent of the armed forces and returned in the year 1948 resuming work on the land. It was quite obvious, however, that claimant was somewhat confused with his dates. He, like Fao, talked of his clearings as extending to the government's airport fence whereas the airport condemnation proceedings involving the villagers of Iliili occurred in 1957. See Condemnation Proceedings In re Tafuna Airport, No.16-1957 (Nov. 20, 1957), reported in part in 3 A.S.R. 302. Presumably, Lautele's development efforts were therefore still ongoing at a time subsequent to the establishment of the airport boundaries in the latter part of 1957.

Lautele acknowledges that Fao had worked on the land but explains Fao's presence as coming about through his permission given in the year 1960. Prior to that, it was only he and one Aleki Noa of his family that worked the area. Permission given to Fao, however, was said to extend only to the northern half of the land. He denied Fao's claims to having encountered virgin bush when the latter had gone on the land, testifying to the contrary that when Fao came upon the land, the bush [9ASR2d43] had been leveled and the land was covered with undergrowth. With regard to the home claimed by Fao as having been built on the land without permission from Lautele, the latter responded that the said building was erected at a time when he was again off island. In Lautele's assessment, the home built by Fao was nothing more than the sort of typical makeshift plantation structure which families would build for rest periods during a work day. (1)

As Lautele found buyers for land, he would have an area surveyed and then seek to procure registration in individual ownership. He successfully registered some 12 acres of land without objections until Fao got notice of the particular registration attempt now before us, The registration here was sought after claimant Lautele had agreed to sell some 2 acres to Mrs. Olotoa. By way of explaining background to the sale, Mrs. Olotoa testified that she had previously acquired some other parcels from Lautele. She stated that over the years, Lautele had been a good business customer of hers. She helped Lautele with his own business by supplying him credit. As he offered her land for sale, she would give him the purchase price and he, in turn, would attend to securing registration and finally deliver a deed. In this same fashion she recalls giving claimant $18,000 or $19,000 for another 2 acres of land in 1980. With Fao's objection, she is still awaiting a deed on this last purchase. When Mrs. Olotoa was asked by the court whether she obtained legal advice for her land transactions, she responded that she trusted claimant and essentially took a "gamble" each time that he would deliver. Claimant had proved reliable on prior sales. [9ASR2d44]

When she moved onto the land and attempted to plant, Fao complained of her encroachment. A court case was filed in 1980 and in Mrs. Olotoa's recollection the outcome of the case favored her side. Counsel referred us to Lealaimatafao v. Manuma, LT. No.56-80 (1980) which is a matter that never went to judgment. The file reflects an application by Fao for provisional injunctive relief which was denied on Fao's failure to sustain his burden of likelihood of prevailing at trial. No further action was taken on this file although in the following year Lautele attempted to register the land and met with Fao's objection.

Discussion

On the preponderance of the evidence, we find that the original clearing of the land was undertaken by Fao and his family. The Court finds itself with too many reservations to accept the claim by Lautele that Fao entered the area through his permission. That a ranking matai of- a village would require permission of a non-titled person to enter a "taloloa" area does not set well wi th the cultural norm. If, as suggested by Lautele, Fao was merely looking for a place to plant crops, as opposed to settlement, the question which naturally arises is why would a leading matai be dependent for crop lands on the clearings of an untitled member of the village while overlooking the remainder of the family's communal holdings. According to the dictates of custom, these communal holdings are in the service of the matai. Testimony to the effect that a matai in Fao's standing would need to be in search for borrowed lands to plant crops just seems unlikely and in our opinion less credible than that testimony by Fao to the effect that his purpose in the area was the acquisition of additional family lands. The permission asserted is viewed as even less probable given the undisputed evidence that other Fao family members, Falefia and his family, were also in the vicinity clearing and cultivating the opposite side of the road as original claimants. Mrs. Folole Falefia, 65 years of age, testified that while she and her husband were so establishing their claim to the bush they did also at times participate as Lealaimatafao family members in assisting their senior matai with his development. She corroborated Fao's testimony that when the latter came into the [9ASR2d45] area and commenced clearing, the land was still virgin bush.

Additionally, the nature of the home built on the disputed land is simply inconsistent with permissive use. The attempt by claimant Lautele, as well as his witness Sipili Atualevao, to play down the significance of this inconsistency, by referring to the home built as being only a provisional plantation rest structure, did nothing more than taint their credibility. All agreed that the house was a two story structure. The house was built by a Rev. lese Aasa, also of lliili at the time, and his son Avemaia Aasa. The latter described the building as a two story "L" shaped structure, 16' x 24' + 16' x 16' in dimension. The upper story was constructed of wood which sat on concrete columns while the ground floor area was left unwalled or open.

The building of this large family home, coupled with the construction of a water tank in a then undeveloped area and the establishment of a commercial farm, are all real evidence of settled occupation by Fao in the area and quite the antithesis of borrowed surroundings.

Against this, counsel for claimant argues that because there are extensive registered individual holdings to the airport side of the disputed land in the name of claimant and similar extensive holdings to its lliili side, the inference arises that the disputed area is the individually owned land of claimant Lautele.

The inference does not follow and the argl-\ment completelyoverlooks the law on the matter, The cases had early established, to the extent that it is trite law in the territory, that Samoan families acquire title to bush land through first occupancy and use, coupled with claim to ownership. However, a mere claim to ownership of bush land does not establish title to it. Soliai v. Laf1:afua. 2 A.S,R. 436 (1949). In the matter before us, there is just no room for the inference contended when there is actual evidence that the objectors (Fao and his family) cleared, occupied, planted, and asserted ownership by the sort of development outlined above. Thus the argument by counsel in the circumstances is at best no more than a mere claim to ownership. [9ASR2d46]

Further, in the case of "individual ownership" claims, the law demands more exacting proofs. As we understand the cases, such a claim involves more than the felling of trees and the planting of some crops at one time or another. In Fonoti v. Malufau. LT. No.1406-74 (1975), the Court spoke of proofs for individually owned claims as follows:

The Court has said on a number of occasions that there is a single 
question in a Registration case where the request is for individually 
owned land, and that is, has the applicant actually cleared, cultivated 
and used all of the property offered as a plantation. [I]f it is established 
that all of the land has not been so used, it shall be denied in Toto. 
The fact that a portion of the land may have been used as a plantation 
by the applicant is of no importance.

To qualify as a plantation, there must be, evidence of planting of trees 
and/or plants. The occasional coconut, mango, banana or other tree 
is not considered a plantation and no credit will be given for such.

In this case...a portion of the land offered for registration is not and 
has not been a part of a plantation, and in view of the rule that to 
qualify for registration as individually owned land, all of the land must 
be so used, this offer for registration is denied.

After a review of the cases, the Court in Fanene v. Maalei, LT. No.64-77 (1977), described individually owned land as that land: 1) cleared in its entirety or substantially so from the virgin bush by an individual through his own initiative and not by, for, or under the direction of his aiga or its senior matai; 2) cultivated entirely or substantially so by him; and 3) occupied by him or his family or his agents continuously from the time of the clearing of the bush.

It will thus be seen that in order to sustain a claim in individual ownership, it must be minimally shown not only that the clearing of virgin bush (independent of aiga ties) was substantial, but that cultivation and continued[9ASR2d47] occupation of the cleared land has also been substantial. In the Court's view, Lautele had failed to prove on the preponderance of the evidence that he had in fact substantially cleared the area in dispute from bush land. He also failed in his evidence to show actual and substantial cultivation although he alluded to planting certain rows of coconuts as boundary markers, and certainly he made a very poor showing of continuous occupation and use by attempting to explain the adverse fact of Fao's presence as being through his permission. His general claims to have been the first to clear lands in the area coupled with his success in having obtained registration to a large part of the lands in the area, do not establish a claim in individual ownership. Lautele's offer for registration must therefore be denied in toto.

We do find that the evidence preponderates in favor of Fao's claim to communal ownership. We are mindful of the adverse effect our conclusions have on Mrs. Olotoa, however she must look, in terms of relief, to Lautele from whom her rights derive. She candidly admitted risk taking in her land dealings with claimant. She gave purchase money up front without the least concern for a title search and consequently her last transaction has proven to be the "gamble" which has not paid off.

On the foregoing, it is the judgment of the Court that the lands delineated in red in Exhibit "1", and more particularly described in Drawing No. 431-8-87, are the communal family land of the Lealaimatafao family of Iliili. The Territorial Registrar may register accordingly. The application by Lautele for registration is denied.

It is So Ordered.

*********

1. What is implied by claimant Lautele is that a permanent structure placed on a tract of land is an unequivocal assertion of "pule" or ownership. The construction of a plantation rest place which is not permanent in nature and easily dismantled is an equivocal act. He argued that the provisional nature of Fao's structure was evidenced by its destruction in the 1966 hurricane whereas a Samoan type fale which he had built in the vicinity had withstood that storm. It was his structure that was more permanent in nature.

Lautele; Lealaimatafao v


LEALAIMATAFAO MASE, Plaintiff

v.

LAUTELE NOA, Defendant

FAIGAME LAUTELE IUTA for Lautele Iuta and
Overland Olotoa, Plaintiffs

v.

LEALAIMATAFAO MASE for the
Lealaimatafao Family, Defendants

LT No. 29-82
LT No. 35-87

High Court of American Samoa
Land & Titles Division

November 17, 1988

__________

Where land claimant, an untitled man, contended that the opposing party, a ranking matai of the village, had come to him looking for a place to plant crops and that he had given the matai [9ASR2d40] permission to plant in a "taloloa" area under his control, this contention was inconsistent with cultural norms; the evidence therefore preponderated in favor of opposing party's contention that he had cleared and cultivated the land in order to acquire additional lands for his family.

In order to establish a claim to individually owned land, a party must show that the land was (1) cleared in its entirety or substantially so from the virgin bush by an individual through his own initiative and not by, for, or under the direction of his aiga or its senior matai; (2) cultivated entirely or substantially so by him; and (3) occupied by him or his family or his agents continuously from the time of the clearing of the bush.

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

Counsel: For Lealaimatafao Family, Charles Ala'ilima
For Iuta and Olotoa, Asaua Fuimaono

This matter originated with an attempt by claimant Lautele Noa or Faigame Lautele Iuta (hereinafter "Lautele" ) to procure the registration in individual ownership of certain lands located in Tafuna, Tualauta County and delineated in yellow in a composite prepared by the government's chief surveyor and marked Exhibit "1". Such claim is more particularly described in the Private Drawing No, 61-14-81 certified by the government survey office and is a part of the registration record kept by the Territorial Registrar and filed eventually with the Court under docket No. LT. 29-82.

Chief Lealaimatafao Mase (hereinafter "Fao") objected to this attempted registration as encompassing communal lands of the Lealaimatafao family. The extent of Fao's claim is delineated in red in Exhibit "1" and more particularly described in Drawing No, 431-8-87, also certified by the government survey office and is a part of the registration record kept by the Territorial Registrar and filed with the Court under docket No. LT. 35-87. In essence, our record reflects a dispute over virtually the same piece of real [9ASR2d41] property and hence these matters have been consolidated for trial on the merits.

Mrs. Overland Olotoa's interest in this matter arises through Lautele who is said to have sold her the southern half of the land as claimed by Lautele, hence the yellow bisection of Lautele's claim as seen in Exhibit "1" .

The land is bounded at its northern extreme by the Iliili/Airport highway, extending in the southeast and sami direction to the government airport boundary fence. On its western border are lands which have been registered in individual ownership by one Aleki Noa. Its eastern or airport side abuts some 12.5 acres which have been registered by Lautele in individual ownership. Much of this registered land has been sold by Lautele to Mrs. Olotoa.

The testimony as expected was conflicting as the parties are claiming essentially the same land area.

Fao is the senior matai of the Lealaimatafao family of Iliili and a ranking matai of the Tualauta County. He is eighty years old and has held his family's title since 1957. He testified that his family has many lands scattered throughout the county occupied by various family members. He testified that he first went on the disputed land and commenced clearing it in the year 1961. The reason he went into the area was that it was virgin bush at the time and that other members of his family had also come into the vicinity for the same reasons. He further testified that his clearing and occupation extended from the highway all the way to the government's airport fence. From the fruits of his labor, he also claimed that he had obtained a government contract to supply the hospital with taro and vegetables in the year 1963. Fao also claimed to have had a home built on the land together with a water tank. In those days before water development reached the area, his tank was a source of water for other people working nearby. The home was said to have been leveled by the hurricane of 1966 and never rebuilt. Fao testified that since the hurricane he had ceased further major projects on the land although he continues using the crops thereon. [9ASR2d42]

He was unaware of Lautele's surveying the area; however, he found out about the proposed registration posting and accordingly filed an objection. He discovered at one time Olotoa planting in the rear portion of his land and he instructed his then counsel to put a stop to this. He seems to recall an order to that effect but had no idea what happened to the case. He recalled participating in meetings at the Office of Samoan Affairs which determined that the matter should be sent to the Court for determination. Since 1981, nothing has happened in the case, although the coconuts which he claimed to have planted in the rear of his land have since been removed.

Other members of the Lealaimatafao family corroborated their senior matai's testimony by also bearing witness to family work on the land.

Lautele is 63 years of age and is also from the village of Iliili. He claims to have been involved with implementing an early decision by the youth (aumaga) of Iliili to cultivate bush land (taloloa) in order to serve the village. He commenced clearing land in 1938 and worked his way towards the area which comprises his registered claim. He left the island after the war with a contingent of the armed forces and returned in the year 1948 resuming work on the land. It was quite obvious, however, that claimant was somewhat confused with his dates. He, like Fao, talked of his clearings as extending to the government's airport fence whereas the airport condemnation proceedings involving the villagers of Iliili occurred in 1957. See Condemnation Proceedings In re Tafuna Airport, No.16-1957 (Nov. 20, 1957), reported in part in 3 A.S.R. 302. Presumably, Lautele's development efforts were therefore still ongoing at a time subsequent to the establishment of the airport boundaries in the latter part of 1957.

Lautele acknowledges that Fao had worked on the land but explains Fao's presence as coming about through his permission given in the year 1960. Prior to that, it was only he and one Aleki Noa of his family that worked the area. Permission given to Fao, however, was said to extend only to the northern half of the land. He denied Fao's claims to having encountered virgin bush when the latter had gone on the land, testifying to the contrary that when Fao came upon the land, the bush [9ASR2d43] had been leveled and the land was covered with undergrowth. With regard to the home claimed by Fao as having been built on the land without permission from Lautele, the latter responded that the said building was erected at a time when he was again off island. In Lautele's assessment, the home built by Fao was nothing more than the sort of typical makeshift plantation structure which families would build for rest periods during a work day. (1)

As Lautele found buyers for land, he would have an area surveyed and then seek to procure registration in individual ownership. He successfully registered some 12 acres of land without objections until Fao got notice of the particular registration attempt now before us, The registration here was sought after claimant Lautele had agreed to sell some 2 acres to Mrs. Olotoa. By way of explaining background to the sale, Mrs. Olotoa testified that she had previously acquired some other parcels from Lautele. She stated that over the years, Lautele had been a good business customer of hers. She helped Lautele with his own business by supplying him credit. As he offered her land for sale, she would give him the purchase price and he, in turn, would attend to securing registration and finally deliver a deed. In this same fashion she recalls giving claimant $18,000 or $19,000 for another 2 acres of land in 1980. With Fao's objection, she is still awaiting a deed on this last purchase. When Mrs. Olotoa was asked by the court whether she obtained legal advice for her land transactions, she responded that she trusted claimant and essentially took a "gamble" each time that he would deliver. Claimant had proved reliable on prior sales. [9ASR2d44]

When she moved onto the land and attempted to plant, Fao complained of her encroachment. A court case was filed in 1980 and in Mrs. Olotoa's recollection the outcome of the case favored her side. Counsel referred us to Lealaimatafao v. Manuma, LT. No.56-80 (1980) which is a matter that never went to judgment. The file reflects an application by Fao for provisional injunctive relief which was denied on Fao's failure to sustain his burden of likelihood of prevailing at trial. No further action was taken on this file although in the following year Lautele attempted to register the land and met with Fao's objection.

Discussion

On the preponderance of the evidence, we find that the original clearing of the land was undertaken by Fao and his family. The Court finds itself with too many reservations to accept the claim by Lautele that Fao entered the area through his permission. That a ranking matai of- a village would require permission of a non-titled person to enter a "taloloa" area does not set well wi th the cultural norm. If, as suggested by Lautele, Fao was merely looking for a place to plant crops, as opposed to settlement, the question which naturally arises is why would a leading matai be dependent for crop lands on the clearings of an untitled member of the village while overlooking the remainder of the family's communal holdings. According to the dictates of custom, these communal holdings are in the service of the matai. Testimony to the effect that a matai in Fao's standing would need to be in search for borrowed lands to plant crops just seems unlikely and in our opinion less credible than that testimony by Fao to the effect that his purpose in the area was the acquisition of additional family lands. The permission asserted is viewed as even less probable given the undisputed evidence that other Fao family members, Falefia and his family, were also in the vicinity clearing and cultivating the opposite side of the road as original claimants. Mrs. Folole Falefia, 65 years of age, testified that while she and her husband were so establishing their claim to the bush they did also at times participate as Lealaimatafao family members in assisting their senior matai with his development. She corroborated Fao's testimony that when the latter came into the [9ASR2d45] area and commenced clearing, the land was still virgin bush.

Additionally, the nature of the home built on the disputed land is simply inconsistent with permissive use. The attempt by claimant Lautele, as well as his witness Sipili Atualevao, to play down the significance of this inconsistency, by referring to the home built as being only a provisional plantation rest structure, did nothing more than taint their credibility. All agreed that the house was a two story structure. The house was built by a Rev. lese Aasa, also of lliili at the time, and his son Avemaia Aasa. The latter described the building as a two story "L" shaped structure, 16' x 24' + 16' x 16' in dimension. The upper story was constructed of wood which sat on concrete columns while the ground floor area was left unwalled or open.

The building of this large family home, coupled with the construction of a water tank in a then undeveloped area and the establishment of a commercial farm, are all real evidence of settled occupation by Fao in the area and quite the antithesis of borrowed surroundings.

Against this, counsel for claimant argues that because there are extensive registered individual holdings to the airport side of the disputed land in the name of claimant and similar extensive holdings to its lliili side, the inference arises that the disputed area is the individually owned land of claimant Lautele.

The inference does not follow and the argl-\ment completelyoverlooks the law on the matter, The cases had early established, to the extent that it is trite law in the territory, that Samoan families acquire title to bush land through first occupancy and use, coupled with claim to ownership. However, a mere claim to ownership of bush land does not establish title to it. Soliai v. Laf1:afua. 2 A.S,R. 436 (1949). In the matter before us, there is just no room for the inference contended when there is actual evidence that the objectors (Fao and his family) cleared, occupied, planted, and asserted ownership by the sort of development outlined above. Thus the argument by counsel in the circumstances is at best no more than a mere claim to ownership. [9ASR2d46]

Further, in the case of "individual ownership" claims, the law demands more exacting proofs. As we understand the cases, such a claim involves more than the felling of trees and the planting of some crops at one time or another. In Fonoti v. Malufau. LT. No.1406-74 (1975), the Court spoke of proofs for individually owned claims as follows:

The Court has said on a number of occasions that there is a single
question in a Registration case where the request is for individually
owned land, and that is, has the applicant actually cleared, cultivated
and used all of the property offered as a plantation. [I]f it is established
that all of the land has not been so used, it shall be denied in Toto.
The fact that a portion of the land may have been used as a plantation
by the applicant is of no importance.

To qualify as a plantation, there must be, evidence of planting of trees
and/or plants. The occasional coconut, mango, banana or other tree
is not considered a plantation and no credit will be given for such.

In this case...a portion of the land offered for registration is not and
has not been a part of a plantation, and in view of the rule that to
qualify for registration as individually owned land, all of the land must
be so used, this offer for registration is denied.

After a review of the cases, the Court in Fanene v. Maalei, LT. No.64-77 (1977), described individually owned land as that land: 1) cleared in its entirety or substantially so from the virgin bush by an individual through his own initiative and not by, for, or under the direction of his aiga or its senior matai; 2) cultivated entirely or substantially so by him; and 3) occupied by him or his family or his agents continuously from the time of the clearing of the bush.

It will thus be seen that in order to sustain a claim in individual ownership, it must be minimally shown not only that the clearing of virgin bush (independent of aiga ties) was substantial, but that cultivation and continued [9ASR2d47] occupation of the cleared land has also been substantial. In the Court's view, Lautele had failed to prove on the preponderance of the evidence that he had in fact substantially cleared the area in dispute from bush land. He also failed in his evidence to show actual and substantial cultivation although he alluded to planting certain rows of coconuts as boundary markers, and certainly he made a very poor showing of continuous occupation and use by attempting to explain the adverse fact of Fao's presence as being through his permission. His general claims to have been the first to clear lands in the area coupled with his success in having obtained registration to a large part of the lands in the area, do not establish a claim in individual ownership. Lautele's offer for registration must therefore be denied in toto.

We do find that the evidence preponderates in favor of Fao's claim to communal ownership. We are mindful of the adverse effect our conclusions have on Mrs. Olotoa, however she must look, in terms of relief, to Lautele from whom her rights derive. She candidly admitted risk taking in her land dealings with claimant. She gave purchase money up front without the least concern for a title search and consequently her last transaction has proven to be the "gamble" which has not paid off.

On the foregoing, it is the judgment of the Court that the lands delineated in red in Exhibit "1", and more particularly described in Drawing No. 431-8-87, are the communal family land of the Lealaimatafao family of Iliili. The Territorial Registrar may register accordingly. The application by Lautele for registration is denied.

It is So Ordered.

*********

1. What is implied by claimant Lautele is that a permanent structure placed on a tract of land is an unequivocal assertion of "pule" or ownership. The construction of a plantation rest place which is not permanent in nature and easily dismantled is an equivocal act. He argued that the provisional nature of Fao's structure was evidenced by its destruction in the 1966 hurricane whereas a Samoan type fale which he had built in the vicinity had withstood that storm. It was his structure that was more permanent in nature.

K.M.S.T. Wholesales, Inc.; Shantilal Brothers Ltd. v.


SHANTILAL BROTHERS Ltd. (A Fiji Corporation),
Plaintiff,

v.

K.M.S.T. WHOLESALES, Inc., Defendant

SHANTILAL BROTHERS Ltd. (An Australian
Corporation), Plaintiff

v.

K.M.S.T. WHOLESALES, Inc.,
Defendant

CA No. 87-88
CA No. 88-88

High Court of American Samoa
Trial Division

December 2, 1988

__________

Under territorial statute, one who makes a contract within the territory to extend credit at the rate of 20 per cent commits the crime of usury and is liable to imprisonment and to forfeiture of the entire amount of the debt. A.S.C.A. § 28.1510.

Where debtor did not plead usury as a defense to action on debt, court need not decide whether statutory penalty of forfeiture can be invoked in a civil action. A.S.C.A. § 28.1510.

Under statute providing that interest on business loans may not exceed 18 per cent annually, creditor whose contract specified 20 per cent interest would have judgment for only 18 per cent. A.S.C.A. § 28.1503. [9ASR2d63]

Where contract specified payment in United States dollars, judgment would be in the amount of United States dollars originally agreed to by the parties, plus interest and collection charges, notwithstanding the decline of the United States dollar with respect to the Australian dollar during the time between contract and judgment.

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

Counsel: For Plaintiffs, Frank Swett
For Defendant, Asaua Fuimaono

We find the facts to be as follows:

1) The manager of the defendant corporation, Jung Jun Yong, was employed until late 1986 or early 1987 by another local company, Nam's Wholesale. He had done business with the plaintiff corporations on behalf of Nam's.

2) A representative of the plaintiff companies, Mike Gohil, makes frequent trips to American Samoa. During such a trip in October of 1986 he met with Jung Jun Yong. In contemplation of the formation of the defendant corporation (KMST) and of his impending association with it, Mr. Jung signed a statement written out by Mr. Gohil. Although the statement is not easy to decipher, we read it as follows: "I agree to pay all bank charges and interest on after 30 days 20% per month."

3) During 1987 the defendant corporation received various shipments of merchandise from the plaintiff companies. Those proved at trial to have been sent to plaintiff were billed on the following dates at the following amounts:

Shantilal Fiji:

Jan. 10, 1987 US$ 6000
Mar. 25, 1987 US$ 6000
May 25, 1987 US$ 6000
July 7, 1987 US$ 960
Aug. 25, 1987 US$ 6000
Sept. 24, 1987 US$ 6000
     
June 3, 1987 F$ 1440

[9ASR2d64]

   
July 21, 1987 F$ 2520

 

Shantilal Australia:

June 29, 1987 US$ 33,439.37
April 15, 1987 US$ 37,793.34
June 2, 1987 US$ 6,837.94
July 21, 1987 US$ 7,284.16

4) Two other invoices for which plaintiff Shantilal Fiji seeks judgment against defendant KMST, dated February 20 and March 27, appear to be for shipments to Nam's Wholesale. The four invoices from Shantilal Australia are also made to Nam's Wholesale, but Mr. Jung admits that he received these goods on behalf of KMST.

5) The documents indicating the terms of payment on the April 15 and June 2 shipments from Shantilal Australia indicate that interest is to be charged at 81/2 per cent if payment is not made within 30 days after the arrival of the shipment. Documents associated with the other shipments either indicate a 20 per cent interest rate or do not specify an interest rate.

6) We have no evidence of the dates on which the shipments arrived. All or almost all of them seem to have been sent from China or Australia within a day or two of the billing dates. We therefore assume that each shipment arrived ten days after it was billed. Interest on each shipment would therefore begin accruing forty days after the billing date.

7) Defendant corporation has made no payments. At one point Mr. Jung did write some post-dated checks, but the first of these was dishonored by the bank for insufficient funds. Mr. Gohil says he has presented the rest of them and that the bank will not honor them; Mr. Jung points out that they have not been stamped by the bank, but admits there is not enough money in the KMST account to honor more than one or two of the checks.

From these facts we draw the following conclusions:

1) First, we conclude that when the parties agreed in October of 1986 to an interest rate of 20 per cent "per month" they meant "per year." (This is what Mr. Gohil testified the parties agreed to, [9ASR2d65] and it is the rate specified on most of the invoices.)

2) We note further that by making a contract in American Samoa to extend credit at the rate of 20 per cent per year Mr. Gohil and the plaintiff companies would appear to hve committed the crime of usury. A.S.C.A. § 28.1510 specifies that usury is a Class A misdemeanor punishable by up to a year in prison and, in addition, by forfeiture to the debtor of the entire amount of the debt. Since the defendant in the cases before us did not plead usury as a defense, we need not decide whether the penalty of forfeiture applies only after a criminal conviction or whether it can be invoked by the defendant in a civil action.

3) The 20 per cent rate also violates the provision of A.S.C.A. §§ 28.1503 that interest on business loans shall not exceed 18 per cent annually. Plaintiff will therefore have judgment for pre-judgment interest at the rate of 18 per cent on all shipments except the two that specified 81/2 per cent interest.

4) Plaintiff Shantilal Australia argues that in addition to principal, interest, and bank charges, defendant should be liable to compensate it for the shift in the exchange rate since 1987 between Australian and United States dollars. Plaintiff could have protected itself against a disadvantageous shift in the exchange rate by specifying that payment was to be made in Australian dollars; instead it specified payment in American dollars. Two of the Shantilal Fiji contracts did specify payment in Fiji dollars, and judgment on these contracts will be in the current United States equivalent of the specified amount in Fiji dollars. Judgment on all other contracts will be in the amount of United States dollars originally agreed to by the parties. Plaintiff seems to have provided more than adequate protection for itself by charging defendant 20 per cent interest (enforceable to the extent of 18 per cent) when the Australia bank through whom payment was to be made is charging plaintiff only 8112 per cent on these uncollected amounts.

5) Other than interest, the only bank charges proven to have been incurred by plaintiffs on account of defendant's non-payment are collection fees in the amount of $400 in Australian dollars. [9ASR2d66]

6) Accordingly, plaintiff Shantilal Fiji shall have judgment in the total of the following amounts:

$6000 plus 18% interest from forty days after January 10, 1987 until today, December 1, 1988;

$6000 plus 18% interest from forty days after March 25, 1987 until today;

$6000 plus 18% interest from forty days after May 25, 1987 until today;

$960 plus 18% interest from forty days after July 7, 1987 until today;

$6000 plus 18% interest from forty days after August 25, 1987, until today;

$6000 plus 18% interest from forty days after September 24, 1987, until today;

The current value in United States dollars of $1440 in Fiji dollars, plus 18% interest from forty days after June 3, 1987, until today; and

The current value in United States dollars of $2520 in Fiji dollars, plus 18% interest from forty days after September 21, 1987, until today.

7) Shantilal Australia shall have judgment in the total of the following amounts:

$37,793.34 plus 81/2 % interest from forty days after April 15, 1987, until today;

$6,837.94 plus 81/2 % interest from forty days after June 2, 1987, until today;

$33,439.37 plus 18% interest from forty days after June 29, 1987, until today;

$7,284.16, plus 18% interest from forty days after July 21, 1987, until today; and

The current equivalent in United States dollars of $400 in Australian dollars.

8) Post-judgment interest on both judgments will accrue from today, December 1, 1988, at the rate of 12 per cent. [9ASR2d67]

Counsel for plaintiffs shall submit to the Court no later than December 8, 1988, proposed judgments on behalf of Shantilal Australia and Shantilal Fiji in the respective totals of the amounts listed above.

It is so ordered.

*********

Julio; American Samoa Gov’t v.


AMERICAN SAMOA GOVERNMENT, Plaintiff

v.

HAYWARD JULIO, Defendant

High Court of American Samoa 
Trial Division

CR No. 90-88

December 29, 1988

__________

There is no constitutional right to be tried as a juvenile in criminal matters; legislature may therefore vest in attorney general the discretion whether to institute ordinary criminal proceedings or juvenile proceedings against a minor fourteen years of age or older, who has allegedly committed a violent crime.

In the absence of statute creating right to certification hearing to determine whether to prosecute minor as a juvenile or an adult, the minor has no due process right to such a hearing.

Territorial statute vesting discretion in attorney general to proceed against certain minors as adults was not constitutionally defective due to alleged inconsistency with general purpose of juvenile justice statute to accord special treatment to minors, since both the general rules of statutory construction and the specific language of another statutory provision indicated that the exception was deliberate and purposeful. A.S.C.A. §§ 45.0103(9)(B)(1), 45.0115(c)(2)(a).

Court will not interfere with the exercise of prosecutorial discretion unless it is shown that such discretion was unconstitutionally vested in the prosecutor or that it has been abused or [9ASR2d129] exercised in an arbitrary, capricious, or discriminatory manner.

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

Counsel: For Plaintiff, Barry I. Rose, Assistant Attorney General 
For Defendant, Herbert Evans, Assistant Public Defender

The government has laid an information before the Court accusing the defendant of having committed the crime of assault in the first degree, a Class A felony, in violation of A.S.C.A. § 46.3520(a)(1). The defendant moves to quash the information and dismiss the criminal proceeding against him on the grounds that: he is a minor; and, that he has not been certified by the court to stand trial as an adult in violation of his rights to due process.

Government on the other hand, citing the Juvenile Justice Act of 1980, A.S.C.A. § 45.0115(c)(2)(A), asserts its statutory discretion to prosecute children over the age of fourteen years, who are accused of committing a "crime of violence."

DISCUSSION

We first look to applicable statute. Section 45.0115(c)(1) provides:

When a petition filed in court alleges a child 14 years of age 
or older to be a delinquent child by virtue of having committed 
an act which would constitute a felony if committed by an adult 
and if, after investigation and a hearing, the court finds it would 
be contrary to the best interests of the child or of the public to 
prosecute the child as a juvenile, it may enter an order certifying 
the child to be held for criminal proceedings as an adult.

(Emphasis added). [9ASR2d130]

This enactment plainly leaves it to the "court" to make, in the first instance, the decision whether or not a child should be proceeded against as a juvenile or as an adult. The succeeding subparagraph further requires the court to conduct a hearing.

The statute, however, also provides a number of exceptions to this general requirement. See A.S.C.A. § 45.0115(c)(2). Subparagraph (2)(A) of the enactment provides in pertinent part:

A child may be charged with the commission of a felony.... 
when the child is: A) alleged to have committed a crime of
violence and is 14 years of age or older.

Thus the statute also attempts unequivocally to permit prosecutorial discretion ---to charge a child 14 years of age or older ---in certain contexts, including the situation where a crime of a violent nature is alleged.

Defendant's Due Process Argument

The defense concedes that there is no underlying substantive constitutional or federal right to be tried as a juvenile in criminal matters. (1) Rather, we find on the cases that where a right arises to be treated as a minor (and hence to a certification hearing), it invariably arises through statute. In terms of the territorial statute, we find an exception to the general requirement for certification proceedings in the context of criminal actions alleging the commission of "violent crimes and in connection therewith, [9ASR2d131] the Fono has clearly given to the Attorney General the appropriate discretion whether to proceed under the criminal code or the Juvenile Act.

The separation of powers doctrine prevents the courts, in the normal course, from interference with such delegated discretion unless of course the discretion is abused or indeed the delegation is constitutionally improper. Having reviewed the provisions of the local statute and evaluated the weight of authority, this Court is persuaded not to depart from what it perceives as the normal course. See United States v. Bland, 472 F.2d 1329 (D.C. Cir. 1972), cert. denied 412 U.S. 909 (1973); Cox v. United States, 473 F.2nd 334 (4th Cir. ), cert. denied 414 U.S. 869 (1973); United States v. Quinones, 516 F.2d 1309 (1st Cir.), cert. denied 423 U.S. 852 (1975).

The defense referred us to a number of cases, including the Supreme Court's decision in Kent v. United States, 383 U.S. 541 (1966). We find nothing in these cases to suggest that a person, by reason of his or her minority, has an independent or absolute right to certification proceedings in all criminally related matters. Nor do we find any suggestion requiring the court's involvement in all cases. Rather, these cases were concerned with "statutorily" created juvenile rights and benefits necessitating judicial supervision in one manner or another. (2) Kent, for example, dealt with a District [9ASR2d132] of Columbia statute which conferred in the District' s Juvenile Court, "exclusive" jurisdiction over minors. The enactment further provided that where the minor is accused of committing a felony the Juvenile Court may waive its "exclusive" jurisdiction and authorize the prosecution of such minor before the District Court. The Court there viewed the statutory scheme of things as entitling the minor "to certain procedures and benefits as a consequence of his.... right to the 'exclusive' jurisdiction of the Juvenile Court." 383 U.S. at 557. In that a decision to waive jurisdiction by the Juvenile Court, in favor of prosecution before the District Court, could potentially mean to the minor the difference between five years confinement and the death sentence, the Court held that as a condition of valid waiver order, the minor was entitled to a hearing and access by his counsel to those social reports which a Juvenile Court might consider. Id. The Court concluded that "this result is required by the statute read in the context of constitutional principles relating to due process and the assistance of counsel." Id.

It may thus be seen that Kent was involved with specific juvenile rights statutorily created and which attracted the requirements of procedural due process as evident from the legislative scheme of the District's juvenile code, However, there are no comparable rights contained in the enactment before us as would attract procedural due process. There are no certification statutory hearing rights when violent crimes are alleged and in those cases the Attorney General, and not the courts, has the sole say.

Prosecutorial Discretion and Due Process

The difference between Kent and the matter before us seems to be the difference between the Fono's vesting in the Attorney General, as opposed to the courts, the discretion whether a minor should be held to juvenile or criminal proceedings. The case of Russell v. Parratt, 543 F.2d 1214 (8th Cir. 1976), illustrates.

This case involved the consideration of a Nebraska statute which apparently gave the County [9ASR2d133] Attorney "unbridled" discretion to proceed against a minor as a juvenile or an adult. The defendant claimed he was denied due process because the County Attorney was permitted to make this decision alone without any standards and without a hearing. The 8th Circuit followed Cox, Bland, and Quinones, and held that the exercise of prosecutorial discretion did not require a due process hearing. Id. at 1216. The court also distinguished Kent noting that Kent involved the decision of the juvenile court to waive its jurisdiction, and therefore, the juvenile was entitled to a hearing on the waiver, whereas, the case at issue did not involve judicial proceedings, but rather, the "traditional exercise of discretion within the executive branch." Id.

Similarly in Woodard v. Wainwright, 556 F.2d 781 (5th Cir, 1977), cert. denied 434 U.S. 1088 (1978), petitioners challenged the validity of a Florida statute which provided "'[a] child of any age charged with a violation of Florida law punishable by death or life imprisonment' shall be tried as an adult '[if] an indictment on such charge is returned by the grand jury. ' " Id. at 783. It was within the prosecutor's discretion to seek such an indictment.

The petitioners, relying on Kent, argued that they were entitled to a due process hearing before jurisdiction of the juvenile court could be waived.

The 5th Circuit, like the courts of the other circuits, distinguished Kent. "Kent concerned a statutory duty by a juvenile court judge to investigate and hear matters relevant to the waiver of juvenile discretion, whereas this case concerns the prosecutor's discretionary act to present his case to a grand jury." Id. at 784.

Further, the court upheld the statute. It reasoned that "treatment as a juvenile is not an inherent right but one granted by the state legislature, therefore the legislature may restrict or qualify that right as it sees fit, as long as no arbitrary or discriminatory classification is involved." Id. at 785. The court, quoting Bland, supra, noted that the legislative classification created by the statute was "'entitled to a strong presumption of validity [which] may be "set aside only if no ground can be conceived to justify [it]."'" Id. It then rejected petitioner's [9ASR2d134] argument that once the right to juvenile treatment is given by the legislature it cannot be taken away without due process. The court stated that petitioners had never really been given the right to juvenile treatment as the statute contained express limitations on the jurisdiction of the juvenile court. (3) Finally, the court also rejected the petitioner's argument that the statute was an "invalid and overbroad delegation of legislative authority to the prosecutor." Id. at 786. It said "[i]n light of our previous holding that juvenile treatment is a creation of state legislatures, we find no federal constitutional infirmity in permitting state prosecutors to employ their discretion to seek indictments against those juveniles who have allegedly committed serious crimes." Id.

Conclusion

As noted above, the enactment in question is a deliberate exception to the general requirement that before a minor may be prosecuted as an adult a certification decision must be made by the courts. This exception clearly permits prosecutorial discretion with the executive in cases alleging violent crimes. As the cases point out, the fact that this discretion is considerable does not result in the denial of due process. One case spoke of this prosecutorial discretion as involving [9ASR2d135]
"no more than that which is inherent in our system of criminal justice. Its origin is found in the common law of England." Johnson v. State, 314 So.2d 573, 577 (Fla. 1975).

Further, at common law a child over the age of 14 years was presumptively capable of committing a crime and the prosecution of such a person, as in every other case, was the subject of prosecutorial discretion. The amenability of minors to the criminal process has now been changed by the various juvenile codes legislatively adopted. What is in the power of the legislature to grant is also in the power of the legislature to withhold or limit as long as no arbitrary or discriminatory classification is involved. Woodard v. Wainwright, supra. Accordingly the reservation of prosecutorial discretion in whether or not to indict a minor accused of committing a certain range of offenses is historically well founded in our legal system.

Finally, the defense went to great lengths to attempt to show the desirability of eliminating prosecutorial discretion in favor of judicial certification proceedings. We simply dismiss these contentions as normative argument. The policy reasons behind certification proceedings versus prosecutorial discretion are matters within the legislative realm. The cite to Government v. Fuaalii. 4 A.S.R. 828 (1975) is misplaced reliance. The reasoning in Fuaalii, concerned legislative policy decisions which have been repealed by the statute before us and accordingly the case inapposite.

We conclude on the foregoing that the criminal information laid before the Court was the exercise of prosecutorial discretion vested in the Attorney General by the provisions of A.S.C.A. § 45.0115(c)(2)(A). There has been no showing whatsoever of abuse or that the exercise of this discretion has been arbitrary, capricious, or discriminatory.

Denied. It is so ordered.

*********

1. The Florida Supreme Court in Johnson v. State, 314 So. 2d 573 (Fla. 1975), rejected an argument to the effect that due process is denied by a statute which created an exception to the jurisdiction of the juvenile court over a minor charged with the commission of a crime punishable by death or life imprisonment. The court explained that a child who is accordingly being prosecuted as an adult is not deprived of due process because he has in effect the same substantive and procedural rights as any other person charged with a criminal offense. Id. at 577.

2. The territorial Juvenile Justice Act of 1980 does not create a new juvenile court. The reference to "Court" in the enactment means Trial Division of the High Court. See § 45.0103(8). This same division which has jurisdiction over the prosecution of "violent crimes" also undertakes the certification hearings required by section 45.0115(c)(1). The Act's provision for judicial involvement in certification proceedings is somewhat different than the statutory schemes adopted by many of the states. These create separate juvenile courts with "exclusive" jurisdiction over minors. Such schemes authorize the juvenile court to waive its jurisdiction over minors accused of certain crimes in favor of the criminal courts. However, such waiver proceedings must afford procedural due process to the minor affected. See discussion of Kent, infra.

3. The defense raised a similar argument at hearing contending that A.S.C.A. section 45.0115(c)(2)(A) was constitutionally defective in that it was inconsistent with the overall purposes of the Juvenile Justice Act, namely, to accord the special treatment of minors. The innuendo is that the inclusion of this provision by the legislature was oversight. 
Quite apart from the Court's difficulties in accepting such an interpretation because of the familiar rules pertaining to statutory construction, it is clear from the Act that the Fono's inclusion of the enactment was, to the contrary, quite deliberate and purposive. Section 45.0103(9)(B)(I) excludes from the definition of "delinquent child," "children 14 years of age or older who allegedly commit crimes of violence." The exception is recurring and not mistaken.

Hardy v. Anderson,


DON HARDY dba HARDY CONSTRUCTION COMPANY, 
Plaintiff

v.

MARTIN ANDERSON dba PAGO PLAZA, Defendant

High Court of American Samoa 
Trial Division

CA No. 8-88

December 6, 1988

__________

Where party to construction contract uses nonconforming materials, court is ordinarily faced with the question whether the lack of conformity was so serious as to bar not only recovery on the[9ASR2d80] contract but also quantum meruit recovery for the benefi t conferred on the other party.

Equitable remedy such as quantum meruit is not available to a party with unclean hands.

For the purpose of determining whether a party that is a business entity has clean hands and may have the benefit of equitable remedies. the entity is chargeable with the acts and intentions of the agents who conducted the transaction on which it bases its claim.

A contracting party who materially and fraudulently alters a writing which is either sufficient or necessary evidence of the contract thereby loses any rights under that contract, even if he has conferred a benefit on the other party.

Where contracting party materially and fraudulently altered documents to create the false impression that he had complied with his obligations under the contract, and presented the altered documents as evidence in court, court would not grant quantum meruit recovery for benefit conferred on the other party.

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

Counsel For Plaintiff, John Ward 
For Defendant, William Reardon

Opinion and Order:

Plaintiff contracted to build a roof for a small structure housing a generator belonging to defendant. The contract price was $5495.00, about half the amount of the next lowest bid received by defend.

The contract specified that all lumber should be "pressure treated. " It is clear that both parties understood this term to be a material element in the contract: the evidence establishes a universal practice in the local construction industry to use only lumber that is pressure treated, since no other lumber lasts very long when exposed to weather conditions in American Samoa. It was also proved at trial (1) that there is a [9ASR2d81]well recognized industry standard defining pressure treatment; (2) that plaintiff knew of this standard; (3) that plaintiff used wood that did not meet the industry standard; and (4) that plaintiff used this wood knowing it did not meet the industry standard.

Exactly what lumber the plaintiff did use is less clear. The preponderance of the evidence, however, is to the effect that plaintiff purchased some untreated wood that had become available after being fraudulently or mistakenly imported by another contractor. Although this lumber was thinly coated with a substance similar to that used for pressure treatment, it fell far short of the industry standard and was rejected by its intended recipient. The untreated lumber was then consigned to Lumana'i Development Corporation, which advertised it for sale at a discount. It was specifically advertised as untreated lumber. The manager of Lumana'i testified that plaintiff purchased a quantity of this untreated lumber at about the time he was beginning work on defendant's roof.

The roof was more or less completed by March of 1987. Defendant's architect inspected it and reported to defendant on April 1, 1987, a list of nineteen ways in which the architect believed the work did not comply with the specifications. One item on the list was that "[i ]t appears that untreated lumber was used rather than pressure treated as specified." (We infer that this was because the lumber, which had not then been thoroughly painted, did not bear the surface markings that indicate it had been pressure treated. Tests later performed on the wood confirmed that it had not been pressure treated to the industry standard. The results were more consistent with surface brushing or spraying of a chemical formula, such as had been done to the lumber plaintiff purchased from Lumana'i.)

Plaintiff attempted to correct most of his errors, and on July 1, 1987, the architect reported that no further corrections should be required if (1) the welds affixing certain plates to steel columns were cleaned, primed, and repainted, and (2) "the receipts for the treated lumber [were] received." [9ASR2d82]

Later in July plaintiff sent defendant a bill for lie contract price. He also sent copies of invoices evidencing his earlier purchase from a company in the United States of pressure treated lumber in an amount sufficient to have built the roof. One of these invoices was shown at trial to have been altered after plaintiff received it and before it was sent to defendant. The effect of the alteration (changing an invoice date from "8/25/86" to "ll/25/86") was to make it seem more likely that the lumber had been used on defendant's roof rather than on some other job. When confronted at trial with proof of this alteration, plaintiff at first testified that he did not know who had done it. Later he testified that his wife (who keeps the books for the construction company) had done it, probably in order to get defendant to pay for the roof.

Defendant did not respond to plaintiff's demand. In September plaintiff's attorney wrote to demand payment of the contract price. The attorney then called defendant's manager, who alluded to a need for proof that the lumber used on the roof was pressure treated. Defendant's manager promised to send a letter detailing this concern. After receiving another letter from the attorney, defendant's manager wrote on October 22, 1987, that "[a]s far as we are concerned, Don Hardy of Hardy Construction has still not supplied us with proof that the lumber used on the generator shed roof was pressure treated." He also alluded to some items that had been stolen from the premises during the time plaintiff had been doing the work.

On December 17, 1987, plaintiff's attorney sent defendant's manager a copy of letters from the company from which plaintiff had purchased pressure treated lumber during 1986 and 1987. The letters confirmed that the lumber purchased by plaintiff on those occasions had indeed been pressure treated. It did not, of course, establish that the pressure treated lumber in question had been used on defendant's roof.

Sometime during the latter part of 1987 plaintiff also approached the manager of Lumana' i Development Corporation to ask whether the lumber he had bought from Lumana'i had been pressure treated and whether he could get a certificate indicating that it was treated. The manager told [9ASR2d83]him it had not been pressure treated and that he could not provide a certificate saying it was.

At trial plaintiff continued to maintain that he had used only the pressure treated lumber purchased from the United States, not the untreated lumber from Lumana'i, on defendant's roof. This assertion is inconsistent with the inspecting architect's report that the lumber did not look like pressure treated lumber; with the test results showing that five randomly bored samples of the wood were not pressure treated; with the alteration by plaintiff or his wife/bookkeeper of the date on one of the invoices for the pressure treated wood plaintiff did purchase; with plaintiff's presentation of the altered invoice to defendant (and later to the Court) as evidence that he had used pressure treated wood on the roof; and with plaintiff's unsuccessful attempt to procure a certificate of pressure treatment for the untreated Lumana'i wood.

Had plaintiff simply admitted that he had used nonconforming materials, the Court would have been faced with the question whether the lack of conformity was so serious as to bar not only recovery on the contract but also a quantum meruit recovery for the benefit conferred on plaintiff. The roof appears to be suitable for its intended purpose except that it will not last nearly as long as a roof built with pressure treated wood. Especially in light of the far higher bids by other contractors (who probably calculated their bids based on the cost of doing the job right) the evidence would point to the conclusion that defendant has received at least a $3000 roof.

An equitable remedy such as quantum meruit, however, cannot be claimed by a plaintiff with unclean hands. The circumstances of this case would certainly sustain an indictment for forgery. A business entity is chargeable with the acts and intentions of the agents ---in this case either plaintiff himself or his wife ---who conducted the transaction on which it bases its claim. Development Bank v. Ilalio, 5 A.S.R.2d 110, 124 (1987).

A contracting party who materially and fraudulently alters a writing which the law prescribes either as sufficient or as necessary evidence of the contract ---that is, a writing [9ASR2d84]
which would either constitute an "integrated agreement" for the purpose of the parol evidence rule or which would satisfy the Statute of Frauds with relation to the contract ---automatically loses whatever rights he had under the contract. See Restatement (Second) of Contracts § 286 (1981). This is true even if he has conferred a benefit on the other party. See id., Comment a. In this case the alteration was not of the contract document itself but of a collateral document that was crucial to plaintiff's attempt to recover under the contract. The principle ---that a party who has not fulfilled his obligations under a contract, and who might be tempted to tamper with the evidence so as to prevent a court from discerning this, should be afforded a powerful disincentive ---is the same. (1)

The forgery in this case, and plaintiff's proffer of the forged document as evidence to support his claim, seem to fall just outside the rule under which any recovery would be absolutely barred; but they surely must inform the Court's discretion to grant or withhold an equitable remedy.

Defendant seeks not only the denial of any recovery to plaintiff but also an award of exemplary and punitive damages, attorney fees, and costs. The contract does authorize an award of attorney fees. The benefit already conferred on defendant, however, a free roof not conforming to the specifications of the contract but serviceable for the foreseeable future, more than compensates it for the expenses of this proceeding. The complaint and the counterclaim are therefore dismissed.

It is so ordered.

*********

1. Cf .Deuteronomy 27:14, 17 ("And the Levites shall declare to all the men of Israel in a loud voice:.... 'Cursed be he who removes his neighbor's landmark.' I And all the people shall say, 'Amen.'")

Congregational Christian Church; Bank of Hawaii v.


BANK OF HAWAII, Plaintiff

v.

CONGREGATIONAL CHRISTIAN CHURCH OF TUTUILA, 
CONGREGATIONAL CHRISTIAN CHURCH OF TUTUILA AND 
MANU'A, CONGREGATIONAL CHRISTIAN CHURCH IN AMERICAN 
SAMOA, CONGREGATIONAL CHRISTIAN CHURCH IN SAMOA,
CONGREGATIONAL CHRISTIAN CHURCH AUTAUMAFAI, 
CONGREGATIONAL CHRISTIAN CHURCH IN FALEFANO, 
THE BOOK STORE, FAAGAU TULAFONO, GALEA'I POUMELE, 
REV. FITI A. SUNIA, REV. PANAMA, REV. PANAPA, 
REV. TIMA TIMA, REV AASI, LE'IATO T., REV. ENOKA, 
and DOES I-X, Defendants

High Court of American Samoa 
Trial Division

CA No. 32-80

December 12, 1988

__________

Where court order required disputed funds to be kept in bank pending outcome of the litigation, but an officer of one party to the litigation secretly withdrew and spent the funds in violation of the order, an opposing party which agreed to a settlement under which it would receive "the funds in the bank " did not thereby waive its right to receive the funds which had been wrongfully withdrawn, since it was entitled to rely on compliance by other parties with the court order.

Court order discharging plaintiff in interpleader, a bank, from further liability in connection with the interpleaded funds did not discharge the bank from continuing compliance with previous order prohibiting the disbursal of other funds pending the outcome of the litigation.

Where one party to litigation, in violation of a court order, had released money to another party which had then spent it, both parties were jointly and severally liable to a third party who was held entitled to the money; as between the two parties who violated the order, the party who received and spent the money would be required to indemnify the party who merely released it. [9ASR2d101]

An institutional party to litigation is chargeable with the knowledge, and responsible for the actions, of its agents who conduct the transactions that are the subject of the litigation.

Party was not entitled to relief from stipulated judgment on the ground of mutual or unilateral mistake, where: (1) the party was an institution which had agreed to the stipulated judgment after negotiations during which it was advised by counsel; (2) the basis for the alleged mistake was that, at the time of the stipulation, it was wrongly assumed that certain funds were being kept in a bank in accordance with a court order; (3) in fact, the funds had been withdrawn and spent in violation of the court order by an officer of the party seeking relief from the judgment; (4) the officer was the party's chief agent for the safekeeping and disposition of the funds, and a participant in the negotiations leading up to the stipulation; (5) the funds had been spent on expenses of the party seeking relief; and (6) in support of its motion for relief, the party submitted an affidavit from a current officer stating that his predecessor had misunderstood the stipulation, but submitted neither an affidavit from the previous officer nor an explanation of why it could not present one. T.C.R.C.P. Rule 60(b).

Before REES, Associate Justice.

Counsel: For Plaintiff, Roy J.D. Hall, Jr. 
For Defendant Congregational Christian Church in American Samoa, John Ward 
For Defendant Congregational Christian Church in Samoa, Aviata Fa'alevao

On Order to Show Cause, Motion to Dismiss or in the Alternative for Joint Liability, and Motion for Relief From Judgment:

I. Facts and Procedural History

In 1980 the Bank of Hawaii filed this action in interpleader. As a result of a disagreement between the two principal parties, Congregational Christian Church in Samoa (CCCS) and Congregational Christian Church in American Samoa (CCCAS), the [9ASR2d102] Bank claimed that it did not know the true owner of certain funds it held on deposit.

The Bank deposited certain funds with the Court and sought an order compelling the defendants to interplead and discharging the Bank from further liability, On June 16, 1980, the Court ordered that certain other funds in the amount of $29,607, held by the Bank of Hawaii at its Waikiki branch "be held as part of the money entity ." On June 26 this order was put in writing. The funds in Waikiki were ordered "to be included in the sums of moneys herein litigated between the Church in American Samoa and the Church in Western Samoa, The said amount of $29,607,09 plus any interest earned therefrom shall not be dispursed [sic] by anyone in any manner or form unless ordered by the Court."

At the June 16 hearing the Court also granted a motion to dismiss Rev, Faagau Tulafono, then the assistant treasurer of CCCS and the named holder of the Waikiki bank account, as a defendant in his individual capacity, since he "disclaims and has no personal interests " in any of the funds.

On June 27, 1980, the Court signed an order discharging the Bank of Hawaii from further liability. The Court noted that it retained jurisdiction for the purpose of determining the rights of the respective defendants "in and to the funds on deposit in the registry of this Court."

Four years later, on June 27, 1984, counsel for CCCAS moved that the Court order Rev, Tulafono and CCCS to withdraw the $29,607 on deposit in Waikiki, plus accumulated interest, and to deposit the money in the registry of the Court. On July 9 the motion was denied. Although a transcript of that hearing is unavailable, the notes of counsel for CCCS reflect that the motion was denied on the ground that the money would earn a higher rate of interest in Waikiki than in American Samoa. No other party disputes this,

On November 27, 1987, CCCS and CCCAS agreed to a stipulated judgment. The stipulation provided in pertinent part that "[a]ll funds remaining with the Court registry in this matter, to wit, $19,579.72 and the $29,607.90 deposited with the Waikiki Branch of the Bank of Hawaii.... by Elder Rev. Tulafono Fa'agau plus interest accumulated since [9ASR2d103] deposit shall be paid over to the CCCAS." On November 30 the Court signed this judgment.

Shortly thereafter CCCAS presented the Bank of Hawaii with a copy of the judgment and requested the $29,607 plus interest. The Bank responded that the money was not in the Bank and had not been there for some time. The Court later learned that Rev. Tulafono had moved the money from the Waikiki Branch to the American Samoa branch of the Bank of Hawaii, and had subsequently withdrawn and spent it, No party disputes Rev. Tulafono's contention that he spent the money for church (CCCS) purposes.

II. The Order to Show Cause

Counsel for CCCAS then moved for an order to show cause why the Bank of Hawaii should not be held in contempt of the Court's orders of June 27, 1980, and November 27, 1987. The first of these orders provided that the funds in Waikiki were to be included in the funds litigated and were not to be disbursed by anyone. The second order provided that the funds should be disbursed to CCCAS in accordance with the stipulated judgment.

III. The Bank's Motion "to Dismiss or for Joint Liability"

The Bank has moved to dismiss the order to show cause on several grounds. The Bank's primary contention is that the Court's June 26, 1980, order was a clumsily drafted attempt to order the Waikiki money deposited in the registry of the Court. This contention is contrary to the clear language of the order and to the most obvious inference from the circumstances surrounding it. It is clear that the Court wished the Waikiki money to be "included" in the interpleaded funds only in the sense that it was to be left right where it was pending the ultimate outcome of the case. Indeed, in 1984 the Court denied a motion by CCCAS to deposit the funds in the registry of the Court. The denial of such an order makes no sense if it was, as counsel for the Bank now contends, exactly what the Court had already ordered back in 1980. The Court minutes reflect that counsel for the Bank, as well as for CCCAS and CCCS, were present at the 1984 hearing. It is obvious that all counsel agreed with the obvious premise of the CCCAS motion: that the money was still safely in the Waikiki branch of the Bank of Hawaii.[9ASR2d104]

The Bank also maintains that the Court's 1987 judgment implicitly incorporated a July 1987 stipulation between the CCCS and the CCCAS according to which CCCAS would receive "the funds in the Bank of Hawaii" as of that date. Since the Waikiki funds had already been withdrawn by then, the Bank argues that CCCAS lost any right to them when it agreed to this stipulation. This argument. ignores the fact that CCCAS had a right. to rely on compliance by all parties with the Court's 1980 order that the Waikiki funds not be disbursed.

The record reflects that these funds were a continuing source of interest and concern to CCCAS from 1980 through 1987. It is unrealistic to assume that CCCAS meant to waive its claim to these funds merely because it agreed to accept "the funds in the Bank of Hawaii" instead of "the funds that are in the Bank of Hawaii assuming the Bank has not wrongfully disbursed them." Moreover, the November 1987 stipulated agreement on which the judgment is explicitly based does specifically refer to the $29,607 that had been on deposit in Waikiki.

Finally, although the Bank does not raise this as a ground for its motion, we note that the Bank's discharge from further liability in connection with the interpleaded funds (signed by the Court on June 27, 1980) was obviously not intended to discharge the Bank from continuing compliance with the order the Court had signed the day before (June 26) prohibiting the disbursal of the Waikiki funds until further notice.

In the alternative the Bank argues that it is jointly liable with CCCS, and should be indemnified by CCCS for any money it is required to pay to CCCAS. This seems obviously correct. The Court order prohibiting the Bank from disbursing the funds also prohibited CCCS or Rev. Tulafono from withdrawing them. It is undisputed that the funds were received by Rev. Tulafono and used for CCCS expenses. Both parties who violated the order thereby obligated themselves to compensate the party for whose protection the order was made--- that is, the party ultimately held entitled to the funds. As between the two parties who violated the order, the party who received and spent the money must indemnify the party who merely released it. [9ASR2d105]

IV. The CCCS Motion for Relief from Judgment

CCCS has moved for relief from the judgment awarding the Waikiki funds to CCCAS, on the ground that when the parties stipulated to this judgment they did so under a mutual mistake. But there was no mutual mistake. It is true that CCCAS and some representatives of CCCS seem to have assumed that Rev. Tulafono had not violated the Court's order. Rev. Tulafono was an officer of CCCS, its chief agent in connection with the safekeeping and disposition of the Waikiki funds, and a participant in the negotiations leading up to the stipulation. An institutional party is chargeable with the knowledge (and responsible for the actions) of the agents who conduct the transactions that become the subject of litigation. See Development Bank v. Ilalio, 5 A.S.R.2d 110, 124 (1987). CCCAS is the only party who can claim the benefit of a mistake with regard to facts within the sole knowledge of CCCS and its officers, and CCCAS does not wish to disturb the judgment.

CCCS also argues that it agreed to the November 1987 stipulation under a unilateral mistake, not understanding that the stipulation would entitle CCCAS to the Waikiki funds. The only evidence for this is (1) an affidavit from Rev. Tulafono, saying that he had always regarded the Waikiki funds (contrary to the clear language of the 1980 order) as outside the scope of this litigation; and (2) an affidavit from the current General Secretary of CCCS stating that "my predecessor reviewed [the November 1987 stipulation] together with members of the Committee that agreement and approved its execution by then counsel Aitofele Sunia," but that "my predecessor was not fully aware of all previous agreements between CCCS and CCCAS when the stipulated agreement was approved."

CCCS submits neither an affidavit from the General Secretary who actually conducted the negotiations, and whose awareness CCCS wishes to put at issue, nor an explanation of why it is unable to present such an affidavit. Counsel for CCCAS, on the other hand, submits an affidavit that he specifically apprised the then General Secretary that the Waikiki funds were subject to the stipulation. Moreover, the language of the stipulation itself clearly and prominently refers to the Waikiki money. [9ASR2d106]

If the wrongful removal of the funds had been discovered prior to the entry of judgment and CCCAS had moved to require CCCS to replace them, it would have been difficult to construct an argument for the denial of the motion. The position of CCCS at present, after agreeing to a stipulated judgment with the advice of counsel, would appear to be weaker rather than stronger than before. Relief from a judgment is an equitable remedy, and it would be grossly inequitable to allow CCCS such relief (to the corresponding detriment of an innocent opposing party) on the sole ground of its own violation of an unequivocal court order.

Conclusion

The Court finds the failure of the Bank of Hawaii to comply with the Court's orders owing to confusion rather than wilfulness, and therefore declines to find the Bank in contempt. The Bank is, however, obliged by the Court's 1980 and 198/ orders to surrender to CCCAS an amount equal to $29,607.90 plus the interest that would have accrued on a certificate of the type in which the funds were held, and further denial of this obligation would constitute contempt.

The primary obligor, however, is CCCS, which received the benefit of the funds in question. CCCS and the Bank are jointly and severally liable to CCCAS, and CCCS must indemnify the Bank for any amounts it is required to pay CCCAS.

CCCS has not raised the issue of its rights, if any, against Rev. Tulafono, and we express no opinion on this question.

The order to show cause is dismissed. The motion for relief from judgment is denied.

It is so ordered.

*********

Atuatasi v. American Samoa Gov’t,


OKETOPA ATUATASI, Appellant

v.

MOAALI'ITELE TU'UFULI, WILLIAM SELLERS, and 
AMERICAN SAMOA GOVERNMENT, Appellees

High Court of American Samoa 
Appellate Division

AP No. 17-88

December 5, 1988

__________

That some people may misconstrue an otherwise clear judgment and sentence, and even that a clerical employee of the parole board did misconstrue it, does not render the judgment and sentence so vague and ambiguous as to deprive the person convicted of due process of law.

There is no inconsistency in suspending a "sentence of imprisonment" while simultaneously imposing "detention" as a condition of probation, where statutes use these terms to denote two alternative modes of sentencing. A.S.C.A. §§ 46.2206, 46.2301 et seq.

Reincarceration of an inadvertently released prisoner denies due process of law only where, under all the circumstances of the case, reincarceration would contravene fundamental principles of liberty and justice.

Reincarceration of an inadvertently released prisoner did not deny due process of law where the release was due to a ministerial mistake and where, having been released for only twenty-eight days [9ASR2d68] having been released for only twenty-eight days prior to his rearrest, the prisoner had not been so thoroughly reintegrated into society that his rearrest would contravene fundamental principles of liberty and justice.

Doctrine of estoppel depends on four conditions: (1) the party to be estopped must know the facts; (2) he must intend that his conduct shall be acted on or must so act that the party asserting the estoppel has a right to believe it is so intended; (3) the latter must be ignorant of the facts; and (4) he must rely on the former's conduct to his injury.

When it acts in a sovereign capacity , the government is generally not subject to estoppel.

Estoppel may be applied against the government if, in addition to other factors necessary to give rise to an estoppel, the government's wrongful conduct threatens to work a serious injustice, and the public interest would not be unduly damaged by the estoppel.

Territorial government was not estopped from rearresting a prisoner where: (1) the prisoner, although ineligible for parole, had been paroled because of a clerical error; (2) prisoner had been released for only twenty-eight days before his rearrest, so that he had not been reintegrated into the community and could show no substantial injury resulting from his release and rearrest; (3) since there had been no significant reintegration into the community, no serious injustice was worked by the rearrest; and (4) since the prisoner had been recently convicted of a violent crime, it was not clear that the public interest would not be unduly damaged by the estoppel.

Prisoner who was sentenced to detention as a condition of probation, under statute limiting such conditional detention to one-third of the maximum prescribed term of imprisonment for the crime of which he was convicted, was not arbitrarily denied access to parole where under parole statute he would have been required to serve one-third of his sentence before becoming eligible for parole. A.S.C.A. §§ 46.2206, 46.2304(a)(1).

In cases of apparent conflict between two statutes, specific and later statute prevails over more [9ASR2d69] general and earlier statute. A.S.C.A. §§ 46.2203, 46.2206.

Where probation statute originally provided that probation could be imposed only in cases where incarceration was not necessary for the protection of the public, and also provided that a brief period of detention could be imposed as a condition of probation, but statute was later amended to provide that such detention could be imposed for up to fifteen years, the later enactment implicitly amended the earlier; court could therefore impose detention as a condition of probation not only for the purpose of rehabilitation, but also where incarceration was deemed necessary for the protection of the public. A.S.C.A. §§ 46.2203, 46.2206.

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

Counsel: For Appellant, Aviata Fa'alevao 
For Appellees, James Doherty, Assistant Attorney General

Per Curiam:

Appellant, Oketopa Atuatasi, was convicted on July 22, 1987, of attempted rape and was sentenced to seven years imprisonment. Execution of sentence was suspended and the sentencing court pursuant to A.S.C.A. § 46.2206 placed the appellant on probation for a period of five years ---on condition that he actually serve two years and 121 days in the Territorial Correctional Facility. It was an explicit condition of the sentence that[9ASR2d70] "[d]uring said period of incarceration defendant is not eligible for 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, at 2.

On March 15, 1988, appellant petitioned the Parole Board for release on parole. A clerical employee of the Parole Board who prepared the application mistook the condition of probation --- that applicant serve two years and 121 days in prison --for the sentence of imprisonment. The Board did not catch the mistake and appellant's petition was granted on March 22, 1988. In its decision, the Board stated that appellant 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."

Several weeks after appellant's release, his probation officer happened to see him at large in the village of Lauli'i. The officer filed an affidavit with the Chief Justice who forwarded it to the Warden. The Warden examined the sentencing court's judgment and sentence and after consultation with the Office of the Attorney General ordered the appellant reconfined to the Correctional Facility. An Assistant Attorney General then notified the Chief Justice who ordered that appellant's attorney of record be also apprised so that appellant could have legal counsel.

Exactly one month after reconfinement, appellant requested a writ of habeas corpus. The application was filed at 3:30 p.m. on May 18, 1988, and a writ issued immediately requiring the Warden and other named defendants to bring the appellant to Court on May 20 at 9:00 a.m. and to explain then and there the basis of appellant's confinement. At the hearing of appellant's application, the trial court concluded that detention was lawful.

Appellant moved for reconsideration claiming that his detention was unlawful because it violated the Parole Board's order releasing him and that the procedure by which he was reconfined violated due process. The motion was denied. In its Opinion and Order on Motion for Reconsideration entered [9ASR2d71] July 25, 1988, the trial court in reaffirming its conclusions found: that the Parole Board had no jurisdiction to order appellant's release and that the proceedings before the Board were had on the basis of a clerical error; that given the unique history and function of A.S.C.A. § 46.2206, the sentencing court had correctly applied the enactment; and that the procedure by which appellant was reconfined did not violate due process.

Appellant states the following for appellate consideration:

Issues on Appeal

A. Whether the judgment and sentence of the criminal court is "vague, conflicting and therefore unconstitutional for violation of due process of law." Appellant's Brief, at 3.

B. Whether appellant's arrest and reconfinement for one month without any judicial determination violated due process.

C. Whether the court's "reliance" upon A.S.C.A. § 46.2206 was "erroneous and therefore illegal." Appellant's Brief, at 3.

Constitutionality of the Judgment Below

Appellant claims that the "vagueness and ambiguity of the Judgment and Sentence....drew off not only the Appellant himself and the prison authorities to a different construction and understanding, it likewise construed [sic] by the Parole Board and their legal advisor from the Office of the Attorney General." Appellant's Brief, at 5. Appellant then quotes from a number of different cases dealing with ambiguous sentences to support his argument.

We need not belabor appellant's first point of contention. It seems to suggest that just because handful of individuals may misconstrue an otherwise clear judgment and sentence, it necessarily follows that the judgment and sentence is vague and ambiguous without further ado. The logical consequence of this argument would be to raise the perpetuation of a careless misconstruction to constitutional proportions. Indeed the error, or misreading, was attributable below to a [9ASR2d72] clerk who was charged with organizing parole hearings ---not the prison authorities, the Parole Board, nor the board's legal advisor. The ambiguity argument is simply without foundation.

Our review of the judgment and sentence complained of reveals no more than very careful compliance by the sentencing court with the provisions of A.S.C.A. §§ 46.1902(4) and 46.2206(2), which respectively deal with sentencing options and detention as a condition of probation.

Finally, appellant attempts to paint a picture of befuddlement by contending that there is an inconsistency in suspending a "sentence of imprisonment" while imposing in the same breath "detention'. as a condition of probation. To coin an old phrase, this is mixing apples and oranges. While incarceration is the end result, the language quoted above, as used by the legislature, purposefully denotes entirely different and available sentencing concepts. That difference was comprehensively discussed by the court below and we see no reason to repeat it here.

Due Process and Estoppel

Appellant next contends that upon his arrest and reconfinement, the probation officer and the court were required under A.S.C.A. § 44.2214 to initiate a hearing without delay. He claims that notification of his attorney of record was not sufficient.

The enactment here relied on by appellant deals with procedural due process requirements in the context of a probation revocation proceeding. As noted by the court below, however, appellant was not in actuality arrested pursuant to an accusation of probation violation, which would trigger the requirements of section 44.2214. Rather, appellant was in custody pursuant to an order of the sentencing court which had issued pursuant to proce5s of law in the first place. Appellant was then released in violation of that court order but wa5 reconfined upon the realization that there was a violation of that order. The trial division viewed the appellant's situation as analogous to th,3t of a convict who is mistakenly released by a pl-\5on guard without authority to order such release. Upon the discovery that such a person is at large the Warden first places him back in [9ASR2d]custody and then worries about a hearing. According to testimony below, appellant was still regarded as a danger to the community by the Assistant Attorney General who advised the Warden to reinstate custody.

Arguably, and notwithstanding the actual course of events, it could be said that with detention being a condition of probation, appellant's mistaken release resulted in a breach of that probationary condition. Therefore the section 46.2214 hearing, as now contended by appellant, should have been appropriate.

Two observations may be made about this possibility. Firstly, probation revocation hearings provided by section 46.2214 are concerned with whether the probationer himself has violated the conditions of probation. The consequences of such violations include punitive measures such as enlarging the term and conditions of probation or even requiring that any sentence previously given be executed. A.S.C.A. § 46.2209. Obviously, such punitive measures would be hopelessly improper in a case such as this where a violation of a probationary condition was not due to any fault of the probationer himself but arose through administrative oversight. Therefore it is very doubtful that the application of section 46.2214 is intended by the enactment in these circumstances. Secondly, even if the procedure whereby appellant was taken into custody fell short of due process, we are in complete agreement with the trial division that immediate notice to his counsel of record as well as a plenary hearing immediately upon his request would seem to be curative of any defect or at least render such defect moot.

While not argued in his brief, appellant at oral argument further contended that the government having once released him may not now reincarcerate him. He advances two somewhat related theories to justify this assertion. First, appellant argues that to return him to the Correctional Facility would violate his substantive rights of due process. Second, he maintains that the government is equitably estopped from arguing that he was ineligible for parole. With both these arguments we disagree.

The trial court had determined, with the agreement of the government, that appellant was [9ASR2d] entitled to credit towards his term of detention for the 28 days during which he was mistakenly free. We affirm since a criminal sentence " 'means a continuous sentence....and he [defendant] cannot be required to serve it in installments.'" Green v. Christiansen, 732 F.2d 1397, 1400 (9th Cir. 1984) (quoting White v. Pearlman, 42 F.2d 788, 789 (10th Cir. 1930). So long as appellant was release(j due to "the inadvertence of agents of the government" and through no fault of his own," id., he must be granted full credit for the time he was "paroled "

However appellant argues that due process requires not only that the government give him credit for the 28 days but that the government also be barred from reimprisoning him. Such due process claims have been recognized by several of the federal circuits in cases of rearrest following an inadvertent release. However, appellant's claim will succeed only if his reincarceration would not accord with fundamental principles of liberty and justice." Shields v. Beto, 370 F.2d 1003, 1004 ( 5th Cir. 1967). Not every "ministerial mistake " will reach he level of due process violation. Green, supra, 732 F.2d at 1399. Rather, there must be "'action so affirmatively wrong or inaction so grossly negligent that it would be unequivocally inconsistent with "fundamental principles of liberty and justice" to require a legal sentence to be served in the aftermath of such action or inaction.'" Johnson v. Williford, 682 F.2d 868, 873 (9th Cir. 1982) (citing Piper v. Estelle, 485 F.2d 245, 246 (5th Cir. 1973).

On the facts below, the government's conduct would be more properly characterized as a ministerial mistake rather than as affirmatively wrong action or grossly negligent inaction. As the trial court noted, "the clerical employee who prepared the [appellant's parole] application and the [Parole Board's] order simply made a mistake, " and mistook the two and one-third year period of detention as a condition of probation for the sentence of imprisonment. Atuatasi v. Moaali'itele, CA No. 55-88, Opinion and Order on Motion for Reconsideration at 5, 8 A.S.R. 53, 58 ( 1988). Comparison with the facts of Johnson and Green is instructive. In Johnson, defendant was sentenced under a statute which allowed no parole. The government nevertheless reviewed the defendant's eligibility for parole on eight [9ASR2d75] separate occasions at various levels of the parole bureaucracy, each time setting a presumptive parole date. Johnson, supra, 682 F.2d at 870. Thus the government's action in releasing him truly reached the level of gross negligence. By contrast, in Green, the prisoner was serving concurrent federal and state prison terms in a state prison. When he became eligible for parole on the state charge, a state official inquired of the United States Marshal's office whether a "hold" should be placed on him, Green, supra, 732 F.2d at 1398. Because of "inadvertence of a marshal.... [which] amounts to mere negligence at worst" the detainer was never placed and Green was paroled. Id. at 1399. Clearly, the facts of this case before us seem more similar to those of Green than the facts in Johnson.

The courts have also looked to the degree of a former prisoner's reintegration into society and how much reimprisonment would disrupt that reintegration in determining whether fundamental principles of liberty and justice would be violated by reincarceration. United States v. Merritt, 478 F.Supp. 804, 808 (D.D.C. 1979). See also Johnson, supra, 682 F.2d at 873 n.3. In Merritt, a parolee from a state prison had been released for almost three years before being arrested on a federal charge whose term was supposed to have run following the state term. During those three years, he had married, had one child and adopted another, become part owner of construction company, and been an active member of both his local church and a prison ministry. Merritt, supra 478 F.Supp. at 806, 808. By contrast appellant here had been released for but twenty eight days before being arrested. (1) True, he had apparently returned to his family and was staying with them. But nothing in the record indicates that he had made such a readjustment to society that removing him from it [9ASR2d76] now would contravene fundamental principles of liberty and justice.

The second aspect of appellant's argument is that, having once released him, the government is now estopped from denying his initial eligibility for parole. This contention requires appellant to first demonstrate that his case comes within the traditional elements of estoppel and then surmount the additional burdens placed upon one who seeks estoppel against the government.

The Ninth Circuit has articulated a four part test for estoppel:

1) The party to be estopped must know the facts; 
2) he must intend that his conduct shall be acted on or must so 
act that the party asserting the estoppel has a right to believe it 
is so intended; 
3) the latter must be ignorant of the facts; and 
4) he must rely on the former's conduct to his injury.

Johnson, supra, 682 F.2d at 872 (quoting United States v. Georgia-Pacific Co., 421 F.2d 92, 96 (9th Cir. 1970)).

Here, assuming appellant could satisfy the first three conditions of estoppel, his action would fail on the fourth. Atuatasi can demonstrate no injury sufficient to raise an estoppel. The parolee in Johnson had, in the fifteen months of his inadvertent release, begun a business, hired several employees, and returned fully to life with his wife and two children. Johnson, supra. Having been released for a period of less than one month, appellant has not shown any injury of the degree demonstrated in Johnson.

Even if Atuatasi had been able to make out a case for equitable estoppel generally, his task would not be complete. He would still have to show that this is an appropriate case for estopping the government.

When it acts in a sovereign capacity, the government is generally not subject to being estopped. Johnson, supra, 682 F.2d at 871. However estoppel may be applied against the [9ASR2d77] government if two conditions are met. "[T]he government's wrongful conduct must threaten 'to work a serious injustice' and the public's interest must not 'be unduly damaged by the imposition of estoppel.'" Id. (quoting United States v. Lazy FC Ranch, 481 F.2d 985,989 (9th Cir. 1973)). As we explained above, there is no evidence that a "serious injustice" will be occasioned by re incarcerating appellant. Moreover, we cannot say that the public's interest would remain unharmed if Atuatasi were set free. After all, he was sentenced to detention as a condition of probation precisely because the trial court determined that he posed too great a danger to the community if he were eligible for work release or similar early release programs. On the other hand, the Parole Board's decision to release appellant after nine months cannot be taken as an indication that that danger had dissipated. Not only was it had without jurisdiction, it reflected a certain degree of carelessness which prompted other agencies of the executive branch to affirmatively seek appellant's reconfinement. Moreover, although the time that Atuatasi spent outside the Correctional Facility was concededly without any incidents of violence, it was too brief to allow us to say that the public interest would not be "'unduly damaged'" by his release.

Applicability of the Parole Statute

In arguing that the sentencing court's "reliance" upon A.S.C.A. § 46.2206 was "erroneous and therefore illegal," appellant first contends that the trial court should have sentenced him to a "straight sentence" rather than suspending his sentence and putting him on probation on the condition that he serve two years and 121 days in prison. Appellant feels that the court by invoking the probation alternative, as opposed to straight sentencing, had achieved the effect of "cutting-off the early release [of appellant] on parole." Appellant's Brief, at 11.

This claim is clearly erroneous. Section 44.2206 provides that when probation is granted, the court may designate "detention in an appropriate institution." For felonies, the period of detention may not exceed "one third of the maximum prescribed term of imprisonment for the crime of which the defendant has been convicted." A.S.C.A. §§ 46.2206(2). Since appellant would have [9ASR2d78] had to serve one-third of his seven-year sentence before becoming eligible for parole, A.S.C.A, § 46. 2304(a) (1) , he would have had to serve that two years and 121 days under a straight sentence anyway.

Secondly, appellant argues that the sentencing court had resorted improperly to the use of section 44.2206 and imposition thereby of detention. Appellant points to the provisions of section 46.2203 dealing with probation eligibility requirements. The argument appears to be that this enactment regards probation as a "rehabilitative" measure to be imposed only in those cases where the court, has determined that institutional confinement is unnecessary and the defendant is not a danger to society. Appellant reasons that as the court had found him a suitable probation candidate, the imposition of an extended term of detention was "retributive" punishment and therefore inconsistent with rehabilitative treatment.

It is to be noted that the validity of section 44.2206 is not challenged by appellant. It is also noted that appellant's submission is made without citing any authority; it entirely ignores the hi5tory of this enactment as detailed by the court below. Additionally, the submission is premised on the faulty assumption of fact that appellant is no longer considered a. danger to society nor an appropriate case for institutional confinement. The evidence below clearly indicated the contrary. That the appellant was a danger to society was precisely the sentiment of the sentencing court. Hence the reason for that court's imposition of probation pursuant to section 46.2206(2) with the maximum allowable period of detention imposed without any possibility for earlier release unless the court approved.

Notwithstanding the apparent textual ambiguity, or conflict, between the provisions of section 46.2203 and the 1987 amended section 462206(2), it seems clear from the latter enactment's history that the Fono has deliberately extended the probationary detention sentencing option beyond the traditional "shock value" function of detention. The amendment of 1987 now permits significantly more extensive supervision by the court regarding the conditions of detention of prisoners. Whereas pre-amendment times limited conditional probation detention to a period not [9ASR2d79] exceeding 1 year, the court in appropriate cases may now impose, as a condition of probation, a detention period of up to 15 years. The change, as noted by the court below, is dramatic and we agree that it has therefore given the probation statute an entirely different purpose. The conflict between the provisions referred to above was correctly addressed below. That is, the 1987 amendment ---section 46.2206(2) ---is a specific and later enactment to that embodying section 46.2203. The cardinal rules of construction are that the general gives way to the specific and that the earlier is implicitly amended pro tanto by the latter where an obvious conflict is apparent. This is not to say that in the appropriate case the sentencing court may no longer utilize the probation option in the manner originally envisaged with the section 46.2203 recitals. On the contrary, the recitals are no longer deemed as factual assumptions of general application in every probation matter. There will be occasions where a defendant is not considered a danger to society nor appropriate for imprisonment except for shock value detention. There is now, in addition, a probationary purpose available for exactly the opposite reasons.

For the reasons given above, we affirm.

*********

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

1. We have serious doubts whether a release of such short duration could lead to a successful due process challenge to reincarceration. However, we need not decide that question today. "[E]ach case in this area of the law must be decided on its own facts," Merritt, supra, 478 F.Supp. at 808 n.14, and on these facts appellant has shown no basis for relief.

Avegalio v. Leatumauga,


FAILAUTUSI AVEGALIO on behalf of himself and
his brothers and sisters, Plaintiff

v.

LEATUMAUGA and members of the LEATUMAUGA
FAMILY, Defendants

High Court of American Samoa
Land & Titles Division

LT No. 28-87

December 12, 1988

__________

Where landmarks and registered survey maps showed that the land in dispute had been registered as property of plaintiff's family for forty years, and the principal evidence for defendants was the recollection of their counsel that as a boy he had used to purchase pancakes from a woman who lived on the land but who was not related to the plaintiff, the defendants would be enjoined from going on the land.

Before REES, Associate Justice and AFUOLA, Associate Judge.

Counsel: For Plaintiff, Charles Ala'ilima
For Defendants, Tuanatitau Tuia

We find the facts to be as follows:

(1) In 1946 the children of Sekio Avegalio (Rita, Fa'asau, Failautusi, Fuapopo, Su'e, Fiapito, and Veta) registered land called Vaosa near the village of Pava'iati.

(2) The land had been purchased from a person named Pouli sometime after 1930. A survey and a map had been prepared in 1930 by B.F. Kneubuhl. The description of the land defines its point of beginning as a point on the boundary of land belonging to Uo. This Uo land is depicted on the southern boundary of Vaosa. The accompanying map identifies other boundaries as a stone wall to the [9ASR2d97] southwest, property of Tua to the north, and property of Leatumauga to the southeast.

(3) Members of the Avegalio family nowoccupy a piece of land which they call Vaosa, and which they claim to be the same land they registered in 1946.

(4) For at least thirteen years Leatumauga and members of his family have also been using part of the tract which the Avegalios call Vaosa. They claim this is part of their land called Talifia'ai.

(5) In 1975 Leatumauga attempted to register a survey of Talifia'ai. Failautusi Avegalio objected on the ground that the survey encroached on Vaosa. The Court initially ruled for Leatumauga on the ground that a resurvey of Vaosa commissioned by Avegalio had failed to close and therefore could not be considered as evidence.

(6) On rehearing, however, the Court reversed itself, stating that "[a]rguments at the hearing indicate that: (1) if the plaintiff is allowed to register land 'Talifia'ai,' then 'Talifia'ai' will encroach upon the adjacent registered land known as 'Vaosa'; (2) the old survey of 'Vaosa' does close. .Further, it appears that matters involving retracing and closing of survey are readily explainable by competent evidence Leatumauga v. Avealio, LT No.1514-75, Decision on Motion for New Trial at 2. The Court appears to have been referring to counsel's argument in his motion for reconsideration that a sight was missing in the 1930 map and that the 1975 surveyor had merely added this sight so that the map would close. The 1930 map does appear to be missing a sight that is contained in the 1930 description of the land.

(7) The 1975 case was set for retrial but was dismissed without prejudice when Leatumauga and his counsel failed to appear for the scheduled trial.

(8) A subsequent resurvey commissioned by Avegalio in 1978 does close and does conform to the written description of the registered land, with adjustments from magnetic to true north. The 1978 map shows an overlap between the land Vaosa registered by Failautusi Avegalio and his brothers and sisters, and the land called Talifia'ai which Leatumauga had attempted to register in 1975. [9ASR2d98]

(9) Failautusi Avegalio then brought an action to quiet title against Leatumauga. That case, LT No.35-78, was dismissed after plaintiffs and their counsel failed to appear at a scheduled hearing on a motion to set a trial date.

(10) Both the 1930 map and the 1978 map show a 203 foot course along a stone wall on the southwest boundary of Vaosa.

(11) The 1978 map also shows a stone wall on the northwest boundary at a right angle to the other stone wall. This stone wall is depicted as the boundary between Vaosa and land occupied by Tuanatitau, who is sometimes called Tua. This land corresponds to the area designated "Tua" on the 1930 map.

(12) The tract presently occupied by the Avegalios which they call Vaosa is bounded on the southwest and the northwest by stone walls at right angles to each other. The land on the other side of the northwest stone wall is occupied by Tuanatitau.

(13) The 1978 survey also shows land designated "Pele" slightly to the northeast of Vaosa. There is a small tract occupied by a Mr. and Mrs. Pele, relatives of Avegalio, slightly to the northeast of the tract now occupied by the Avegalios as Vaosa.

(14) To the south and southwest of the tract claimed by the Avegalios as Vaosa is land also occupied by the Avegalios which they call Ulutolu. Much of the land in the neighborhood is known as Ulutolu. The land called Ulutolu and occupied by Failautusi Avegalio was once claimed by Uo. Kuki v. Heirs of Avealio, LT No.190-1963. This land is in roughly the same place relative to the tract claimed by the Avegalios to be Vaosa as the land designated "Uo" is relative to Vaosa on the 1930 map.

(15) There also appears to be a house within the tract claimed by Avegalio which is occupied by a man named Nelesoni.

The only issue in the case is whether the land now claimed by Avegalio is the same land he and his brothers and sisters registered in 1946. [9ASR2d99] Defendants admit that Avegalio and his brothers and sisters did register some land called Vaosa in the vicinity, but say it must be elsewhere, probably further back from the road.

Aside from the testimony of Mrs. Leatumauga that her husband's family has long occupied this land, the only evidence adduced by defendants is the testimony of Tuana'itau (who was both counsel and a witness for Leatumauga) that as a young man he used to buy pancakes from a Mrs. Ava who lived in a house on this land. Tuana'itau testified that Mrs. Ava was not related to Avegalio but was related to Nelesoni. He argues that the Avegalio tract must therefore be further back from the road than the Nelesoni house, which would also put it further back than the Leatumauga claim.

If the Court were to hold, however, that Vaosa must be further back from the road than Avegalio says it is, it would be necessary to find some place further back from the road bounded by (1) land once owned or claimed by Uo on the south; (2) a stone wall on the southwest; (3) another stone wall, at a right angle to the first, on the northwest, with land occupied by Tuanatitau on the other side; (4) land occupied by Pele slightly to the east; and (5) land occupied by Leatumauga on the southeast. It seems highly unlikely that there could be two such places; Tuanatitau, who is quite familiar with the neighborhood, was unable to suggest any.

We must conclude either that Tuanatitau was mistaken about the exact location of the house from which he once bought pancakes, or that there is some explanation for these purchases other than this not being the same land registered by the Avegalios in 1946.

Accordingly, Leatumauga and members of his family are enjoined from going on any part of the land called Vaosa as depicted in the 1978 survey commissioned by Avegalio (Drawing No.6-040, act. 6, 1978) and from disturbing the peaceful possession thereof by Rita, Fatasau, Failautusi, Fuapopo, Sute, Fiapito, and Veta Avegalio, their heirs, successors, and assigns.

It is so ordered.

**********

Anderson; Hardy v.


DON HARDY dba HARDY CONSTRUCTION COMPANY,
Plaintiff

v.

MARTIN ANDERSON dba PAGO PLAZA, Defendant

High Court of American Samoa
Trial Division

CA No. 8-88

December 6, 1988

__________

Where party to construction contract uses nonconforming materials, court is ordinarily faced with the question whether the lack of conformity was so serious as to bar not only recovery on the[9ASR2d80] contract but also quantum meruit recovery for the benefi t conferred on the other party.

Equitable remedy such as quantum meruit is not available to a party with unclean hands.

For the purpose of determining whether a party that is a business entity has clean hands and may have the benefit of equitable remedies. the entity is chargeable with the acts and intentions of the agents who conducted the transaction on which it bases its claim.

A contracting party who materially and fraudulently alters a writing which is either sufficient or necessary evidence of the contract thereby loses any rights under that contract, even if he has conferred a benefit on the other party.

Where contracting party materially and fraudulently altered documents to create the false impression that he had complied with his obligations under the contract, and presented the altered documents as evidence in court, court would not grant quantum meruit recovery for benefit conferred on the other party.

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

Counsel For Plaintiff, John Ward
For Defendant, William Reardon

Opinion and Order:

Plaintiff contracted to build a roof for a small structure housing a generator belonging to defendant. The contract price was $5495.00, about half the amount of the next lowest bid received by defend.

The contract specified that all lumber should be "pressure treated. " It is clear that both parties understood this term to be a material element in the contract: the evidence establishes a universal practice in the local construction industry to use only lumber that is pressure treated, since no other lumber lasts very long when exposed to weather conditions in American Samoa. It was also proved at trial (1) that there is a [9ASR2d81] well recognized industry standard defining pressure treatment; (2) that plaintiff knew of this standard; (3) that plaintiff used wood that did not meet the industry standard; and (4) that plaintiff used this wood knowing it did not meet the industry standard.

Exactly what lumber the plaintiff did use is less clear. The preponderance of the evidence, however, is to the effect that plaintiff purchased some untreated wood that had become available after being fraudulently or mistakenly imported by another contractor. Although this lumber was thinly coated with a substance similar to that used for pressure treatment, it fell far short of the industry standard and was rejected by its intended recipient. The untreated lumber was then consigned to Lumana'i Development Corporation, which advertised it for sale at a discount. It was specifically advertised as untreated lumber. The manager of Lumana'i testified that plaintiff purchased a quantity of this untreated lumber at about the time he was beginning work on defendant's roof.

The roof was more or less completed by March of 1987. Defendant's architect inspected it and reported to defendant on April 1, 1987, a list of nineteen ways in which the architect believed the work did not comply with the specifications. One item on the list was that "[i ]t appears that untreated lumber was used rather than pressure treated as specified." (We infer that this was because the lumber, which had not then been thoroughly painted, did not bear the surface markings that indicate it had been pressure treated. Tests later performed on the wood confirmed that it had not been pressure treated to the industry standard. The results were more consistent with surface brushing or spraying of a chemical formula, such as had been done to the lumber plaintiff purchased from Lumana'i.)

Plaintiff attempted to correct most of his errors, and on July 1, 1987, the architect reported that no further corrections should be required if (1) the welds affixing certain plates to steel columns were cleaned, primed, and repainted, and (2) "the receipts for the treated lumber [were] received." [9ASR2d82]

Later in July plaintiff sent defendant a bill for lie contract price. He also sent copies of invoices evidencing his earlier purchase from a company in the United States of pressure treated lumber in an amount sufficient to have built the roof. One of these invoices was shown at trial to have been altered after plaintiff received it and before it was sent to defendant. The effect of the alteration (changing an invoice date from "8/25/86" to "ll/25/86") was to make it seem more likely that the lumber had been used on defendant's roof rather than on some other job. When confronted at trial with proof of this alteration, plaintiff at first testified that he did not know who had done it. Later he testified that his wife (who keeps the books for the construction company) had done it, probably in order to get defendant to pay for the roof.

Defendant did not respond to plaintiff's demand. In September plaintiff's attorney wrote to demand payment of the contract price. The attorney then called defendant's manager, who alluded to a need for proof that the lumber used on the roof was pressure treated. Defendant's manager promised to send a letter detailing this concern. After receiving another letter from the attorney, defendant's manager wrote on October 22, 1987, that "[a]s far as we are concerned, Don Hardy of Hardy Construction has still not supplied us with proof that the lumber used on the generator shed roof was pressure treated." He also alluded to some items that had been stolen from the premises during the time plaintiff had been doing the work.

On December 17, 1987, plaintiff's attorney sent defendant's manager a copy of letters from the company from which plaintiff had purchased pressure treated lumber during 1986 and 1987. The letters confirmed that the lumber purchased by plaintiff on those occasions had indeed been pressure treated. It did not, of course, establish that the pressure treated lumber in question had been used on defendant's roof.

Sometime during the latter part of 1987 plaintiff also approached the manager of Lumana' i Development Corporation to ask whether the lumber he had bought from Lumana'i had been pressure treated and whether he could get a certificate indicating that it was treated. The manager told [9ASR2d83]him it had not been pressure treated and that he could not provide a certificate saying it was.

At trial plaintiff continued to maintain that he had used only the pressure treated lumber purchased from the United States, not the untreated lumber from Lumana'i, on defendant's roof. This assertion is inconsistent with the inspecting architect's report that the lumber did not look like pressure treated lumber; with the test results showing that five randomly bored samples of the wood were not pressure treated; with the alteration by plaintiff or his wife/bookkeeper of the date on one of the invoices for the pressure treated wood plaintiff did purchase; with plaintiff's presentation of the altered invoice to defendant (and later to the Court) as evidence that he had used pressure treated wood on the roof; and with plaintiff's unsuccessful attempt to procure a certificate of pressure treatment for the untreated Lumana'i wood.

Had plaintiff simply admitted that he had used nonconforming materials, the Court would have been faced with the question whether the lack of conformity was so serious as to bar not only recovery on the contract but also a quantum meruit recovery for the benefit conferred on plaintiff. The roof appears to be suitable for its intended purpose except that it will not last nearly as long as a roof built with pressure treated wood. Especially in light of the far higher bids by other contractors (who probably calculated their bids based on the cost of doing the job right) the evidence would point to the conclusion that defendant has received at least a $3000 roof.

An equitable remedy such as quantum meruit, however, cannot be claimed by a plaintiff with unclean hands. The circumstances of this case would certainly sustain an indictment for forgery. A business entity is chargeable with the acts and intentions of the agents ---in this case either plaintiff himself or his wife ---who conducted the transaction on which it bases its claim. Development Bank v. Ilalio, 5 A.S.R.2d 110, 124 (1987).

A contracting party who materially and fraudulently alters a writing which the law prescribes either as sufficient or as necessary evidence of the contract ---that is, a writing [9ASR2d84]
which would either constitute an "integrated agreement" for the purpose of the parol evidence rule or which would satisfy the Statute of Frauds with relation to the contract ---automatically loses whatever rights he had under the contract. See Restatement (Second) of Contracts § 286 (1981). This is true even if he has conferred a benefit on the other party. See id., Comment a. In this case the alteration was not of the contract document itself but of a collateral document that was crucial to plaintiff's attempt to recover under the contract. The principle ---that a party who has not fulfilled his obligations under a contract, and who might be tempted to tamper with the evidence so as to prevent a court from discerning this, should be afforded a powerful disincentive ---is the same. (1)

The forgery in this case, and plaintiff's proffer of the forged document as evidence to support his claim, seem to fall just outside the rule under which any recovery would be absolutely barred; but they surely must inform the Court's discretion to grant or withhold an equitable remedy.

Defendant seeks not only the denial of any recovery to plaintiff but also an award of exemplary and punitive damages, attorney fees, and costs. The contract does authorize an award of attorney fees. The benefit already conferred on defendant, however, a free roof not conforming to the specifications of the contract but serviceable for the foreseeable future, more than compensates it for the expenses of this proceeding. The complaint and the counterclaim are therefore dismissed.

It is so ordered.

*********

1. Cf .Deuteronomy 27:14, 17 ("And the Levites shall declare to all the men of Israel in a loud voice:.... 'Cursed be he who removes his neighbor's landmark.' I And all the people shall say, 'Amen.'")

American Samoa Gov’t; Atuatasi v.


OKETOPA ATUATASI, Appellant

v.

MOAALI'ITELE TU'UFULI, WILLIAM SELLERS, and
AMERICAN SAMOA GOVERNMENT, Appellees

High Court of American Samoa
Appellate Division

AP No. 17-88

December 5, 1988

__________

That some people may misconstrue an otherwise clear judgment and sentence, and even that a clerical employee of the parole board did misconstrue it, does not render the judgment and sentence so vague and ambiguous as to deprive the person convicted of due process of law.

There is no inconsistency in suspending a "sentence of imprisonment" while simultaneously imposing "detention" as a condition of probation, where statutes use these terms to denote two alternative modes of sentencing. A.S.C.A. §§ 46.2206, 46.2301 et seq.

Reincarceration of an inadvertently released prisoner denies due process of law only where, under all the circumstances of the case, reincarceration would contravene fundamental principles of liberty and justice.

Reincarceration of an inadvertently released prisoner did not deny due process of law where the release was due to a ministerial mistake and where, having been released for only twenty-eight days [9ASR2d68] having been released for only twenty-eight days prior to his rearrest, the prisoner had not been so thoroughly reintegrated into society that his rearrest would contravene fundamental principles of liberty and justice.

Doctrine of estoppel depends on four conditions: (1) the party to be estopped must know the facts; (2) he must intend that his conduct shall be acted on or must so act that the party asserting the estoppel has a right to believe it is so intended; (3) the latter must be ignorant of the facts; and (4) he must rely on the former's conduct to his injury.

When it acts in a sovereign capacity , the government is generally not subject to estoppel.

Estoppel may be applied against the government if, in addition to other factors necessary to give rise to an estoppel, the government's wrongful conduct threatens to work a serious injustice, and the public interest would not be unduly damaged by the estoppel.

Territorial government was not estopped from rearresting a prisoner where: (1) the prisoner, although ineligible for parole, had been paroled because of a clerical error; (2) prisoner had been released for only twenty-eight days before his rearrest, so that he had not been reintegrated into the community and could show no substantial injury resulting from his release and rearrest; (3) since there had been no significant reintegration into the community, no serious injustice was worked by the rearrest; and (4) since the prisoner had been recently convicted of a violent crime, it was not clear that the public interest would not be unduly damaged by the estoppel.

Prisoner who was sentenced to detention as a condition of probation, under statute limiting such conditional detention to one-third of the maximum prescribed term of imprisonment for the crime of which he was convicted, was not arbitrarily denied access to parole where under parole statute he would have been required to serve one-third of his sentence before becoming eligible for parole. A.S.C.A. §§ 46.2206, 46.2304(a)(1).

In cases of apparent conflict between two statutes, specific and later statute prevails over more [9ASR2d69] general and earlier statute. A.S.C.A. §§ 46.2203, 46.2206.

Where probation statute originally provided that probation could be imposed only in cases where incarceration was not necessary for the protection of the public, and also provided that a brief period of detention could be imposed as a condition of probation, but statute was later amended to provide that such detention could be imposed for up to fifteen years, the later enactment implicitly amended the earlier; court could therefore impose detention as a condition of probation not only for the purpose of rehabilitation, but also where incarceration was deemed necessary for the protection of the public. A.S.C.A. §§ 46.2203, 46.2206.

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

Counsel: For Appellant, Aviata Fa'alevao
For Appellees, James Doherty, Assistant Attorney General

Per Curiam:

Appellant, Oketopa Atuatasi, was convicted on July 22, 1987, of attempted rape and was sentenced to seven years imprisonment. Execution of sentence was suspended and the sentencing court pursuant to A.S.C.A. § 46.2206 placed the appellant on probation for a period of five years ---on condition that he actually serve two years and 121 days in the Territorial Correctional Facility. It was an explicit condition of the sentence that [9ASR2d70] "[d]uring said period of incarceration defendant is not eligible for 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, at 2.

On March 15, 1988, appellant petitioned the Parole Board for release on parole. A clerical employee of the Parole Board who prepared the application mistook the condition of probation --- that applicant serve two years and 121 days in prison --for the sentence of imprisonment. The Board did not catch the mistake and appellant's petition was granted on March 22, 1988. In its decision, the Board stated that appellant 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."

Several weeks after appellant's release, his probation officer happened to see him at large in the village of Lauli'i. The officer filed an affidavit with the Chief Justice who forwarded it to the Warden. The Warden examined the sentencing court's judgment and sentence and after consultation with the Office of the Attorney General ordered the appellant reconfined to the Correctional Facility. An Assistant Attorney General then notified the Chief Justice who ordered that appellant's attorney of record be also apprised so that appellant could have legal counsel.

Exactly one month after reconfinement, appellant requested a writ of habeas corpus. The application was filed at 3:30 p.m. on May 18, 1988, and a writ issued immediately requiring the Warden and other named defendants to bring the appellant to Court on May 20 at 9:00 a.m. and to explain then and there the basis of appellant's confinement. At the hearing of appellant's application, the trial court concluded that detention was lawful.

Appellant moved for reconsideration claiming that his detention was unlawful because it violated the Parole Board's order releasing him and that the procedure by which he was reconfined violated due process. The motion was denied. In its Opinion and Order on Motion for Reconsideration entered [9ASR2d71] July 25, 1988, the trial court in reaffirming its conclusions found: that the Parole Board had no jurisdiction to order appellant's release and that the proceedings before the Board were had on the basis of a clerical error; that given the unique history and function of A.S.C.A. § 46.2206, the sentencing court had correctly applied the enactment; and that the procedure by which appellant was reconfined did not violate due process.

Appellant states the following for appellate consideration:

Issues on Appeal

A. Whether the judgment and sentence of the criminal court is "vague, conflicting and therefore unconstitutional for violation of due process of law." Appellant's Brief, at 3.

B. Whether appellant's arrest and reconfinement for one month without any judicial determination violated due process.

C. Whether the court's "reliance" upon A.S.C.A. § 46.2206 was "erroneous and therefore illegal." Appellant's Brief, at 3.

Constitutionality of the Judgment Below

Appellant claims that the "vagueness and ambiguity of the Judgment and Sentence....drew off not only the Appellant himself and the prison authorities to a different construction and understanding, it likewise construed [sic] by the Parole Board and their legal advisor from the Office of the Attorney General." Appellant's Brief, at 5. Appellant then quotes from a number of different cases dealing with ambiguous sentences to support his argument.

We need not belabor appellant's first point of contention. It seems to suggest that just because handful of individuals may misconstrue an otherwise clear judgment and sentence, it necessarily follows that the judgment and sentence is vague and ambiguous without further ado. The logical consequence of this argument would be to raise the perpetuation of a careless misconstruction to constitutional proportions. Indeed the error, or misreading, was attributable below to a [9ASR2d72] clerk who was charged with organizing parole hearings ---not the prison authorities, the Parole Board, nor the board's legal advisor. The ambiguity argument is simply without foundation.

Our review of the judgment and sentence complained of reveals no more than very careful compliance by the sentencing court with the provisions of A.S.C.A. §§ 46.1902(4) and 46.2206(2), which respectively deal with sentencing options and detention as a condition of probation.

Finally, appellant attempts to paint a picture of befuddlement by contending that there is an inconsistency in suspending a "sentence of imprisonment" while imposing in the same breath "detention'. as a condition of probation. To coin an old phrase, this is mixing apples and oranges. While incarceration is the end result, the language quoted above, as used by the legislature, purposefully denotes entirely different and available sentencing concepts. That difference was comprehensively discussed by the court below and we see no reason to repeat it here.

Due Process and Estoppel

Appellant next contends that upon his arrest and reconfinement, the probation officer and the court were required under A.S.C.A. § 44.2214 to initiate a hearing without delay. He claims that notification of his attorney of record was not sufficient.

The enactment here relied on by appellant deals with procedural due process requirements in the context of a probation revocation proceeding. As noted by the court below, however, appellant was not in actuality arrested pursuant to an accusation of probation violation, which would trigger the requirements of section 44.2214. Rather, appellant was in custody pursuant to an order of the sentencing court which had issued pursuant to proce5s of law in the first place. Appellant was then released in violation of that court order but wa5 reconfined upon the realization that there was a violation of that order. The trial division viewed the appellant's situation as analogous to th,3t of a convict who is mistakenly released by a pl-\5on guard without authority to order such release. Upon the discovery that such a person is at large the Warden first places him back in [9ASR2d] custody and then worries about a hearing. According to testimony below, appellant was still regarded as a danger to the community by the Assistant Attorney General who advised the Warden to reinstate custody.

Arguably, and notwithstanding the actual course of events, it could be said that with detention being a condition of probation, appellant's mistaken release resulted in a breach of that probationary condition. Therefore the section 46.2214 hearing, as now contended by appellant, should have been appropriate.

Two observations may be made about this possibility. Firstly, probation revocation hearings provided by section 46.2214 are concerned with whether the probationer himself has violated the conditions of probation. The consequences of such violations include punitive measures such as enlarging the term and conditions of probation or even requiring that any sentence previously given be executed. A.S.C.A. § 46.2209. Obviously, such punitive measures would be hopelessly improper in a case such as this where a violation of a probationary condition was not due to any fault of the probationer himself but arose through administrative oversight. Therefore it is very doubtful that the application of section 46.2214 is intended by the enactment in these circumstances. Secondly, even if the procedure whereby appellant was taken into custody fell short of due process, we are in complete agreement with the trial division that immediate notice to his counsel of record as well as a plenary hearing immediately upon his request would seem to be curative of any defect or at least render such defect moot.

While not argued in his brief, appellant at oral argument further contended that the government having once released him may not now reincarcerate him. He advances two somewhat related theories to justify this assertion. First, appellant argues that to return him to the Correctional Facility would violate his substantive rights of due process. Second, he maintains that the government is equitably estopped from arguing that he was ineligible for parole. With both these arguments we disagree.

The trial court had determined, with the agreement of the government, that appellant was [9ASR2d] entitled to credit towards his term of detention for the 28 days during which he was mistakenly free. We affirm since a criminal sentence " 'means a continuous sentence....and he [defendant] cannot be required to serve it in installments.'" Green v. Christiansen, 732 F.2d 1397, 1400 (9th Cir. 1984) (quoting White v. Pearlman, 42 F.2d 788, 789 (10th Cir. 1930). So long as appellant was release(j due to "the inadvertence of agents of the government" and through no fault of his own," id., he must be granted full credit for the time he was "paroled "

However appellant argues that due process requires not only that the government give him credit for the 28 days but that the government also be barred from reimprisoning him. Such due process claims have been recognized by several of the federal circuits in cases of rearrest following an inadvertent release. However, appellant's claim will succeed only if his reincarceration would not accord with fundamental principles of liberty and justice." Shields v. Beto, 370 F.2d 1003, 1004 ( 5th Cir. 1967). Not every "ministerial mistake " will reach he level of due process violation. Green, supra, 732 F.2d at 1399. Rather, there must be "'action so affirmatively wrong or inaction so grossly negligent that it would be unequivocally inconsistent with "fundamental principles of liberty and justice" to require a legal sentence to be served in the aftermath of such action or inaction.'" Johnson v. Williford, 682 F.2d 868, 873 (9th Cir. 1982) (citing Piper v. Estelle, 485 F.2d 245, 246 (5th Cir. 1973).

On the facts below, the government's conduct would be more properly characterized as a ministerial mistake rather than as affirmatively wrong action or grossly negligent inaction. As the trial court noted, "the clerical employee who prepared the [appellant's parole] application and the [Parole Board's] order simply made a mistake, " and mistook the two and one-third year period of detention as a condition of probation for the sentence of imprisonment. Atuatasi v. Moaali'itele, CA No. 55-88, Opinion and Order on Motion for Reconsideration at 5, 8 A.S.R. 53, 58 ( 1988). Comparison with the facts of Johnson and Green is instructive. In Johnson, defendant was sentenced under a statute which allowed no parole. The government nevertheless reviewed the defendant's eligibility for parole on eight [9ASR2d75] separate occasions at various levels of the parole bureaucracy, each time setting a presumptive parole date. Johnson, supra, 682 F.2d at 870. Thus the government's action in releasing him truly reached the level of gross negligence. By contrast, in Green, the prisoner was serving concurrent federal and state prison terms in a state prison. When he became eligible for parole on the state charge, a state official inquired of the United States Marshal's office whether a "hold" should be placed on him, Green, supra, 732 F.2d at 1398. Because of "inadvertence of a marshal.... [which] amounts to mere negligence at worst" the detainer was never placed and Green was paroled. Id. at 1399. Clearly, the facts of this case before us seem more similar to those of Green than the facts in Johnson.

The courts have also looked to the degree of a former prisoner's reintegration into society and how much reimprisonment would disrupt that reintegration in determining whether fundamental principles of liberty and justice would be violated by reincarceration. United States v. Merritt, 478 F.Supp. 804, 808 (D.D.C. 1979). See also Johnson, supra, 682 F.2d at 873 n.3. In Merritt, a parolee from a state prison had been released for almost three years before being arrested on a federal charge whose term was supposed to have run following the state term. During those three years, he had married, had one child and adopted another, become part owner of construction company, and been an active member of both his local church and a prison ministry. Merritt, supra 478 F.Supp. at 806, 808. By contrast appellant here had been released for but twenty eight days before being arrested. (1) True, he had apparently returned to his family and was staying with them. But nothing in the record indicates that he had made such a readjustment to society that removing him from it [9ASR2d76] now would contravene fundamental principles of liberty and justice.

The second aspect of appellant's argument is that, having once released him, the government is now estopped from denying his initial eligibility for parole. This contention requires appellant to first demonstrate that his case comes within the traditional elements of estoppel and then surmount the additional burdens placed upon one who seeks estoppel against the government.

The Ninth Circuit has articulated a four part test for estoppel:

1) The party to be estopped must know the facts;
2) he must intend that his conduct shall be acted on or must so
act that the party asserting the estoppel has a right to believe it
is so intended;
3) the latter must be ignorant of the facts; and
4) he must rely on the former's conduct to his injury.

Johnson, supra, 682 F.2d at 872 (quoting United States v. Georgia-Pacific Co., 421 F.2d 92, 96 (9th Cir. 1970)).

Here, assuming appellant could satisfy the first three conditions of estoppel, his action would fail on the fourth. Atuatasi can demonstrate no injury sufficient to raise an estoppel. The parolee in Johnson had, in the fifteen months of his inadvertent release, begun a business, hired several employees, and returned fully to life with his wife and two children. Johnson, supra. Having been released for a period of less than one month, appellant has not shown any injury of the degree demonstrated in Johnson.

Even if Atuatasi had been able to make out a case for equitable estoppel generally, his task would not be complete. He would still have to show that this is an appropriate case for estopping the government.

When it acts in a sovereign capacity, the government is generally not subject to being estopped. Johnson, supra, 682 F.2d at 871. However estoppel may be applied against the [9ASR2d77] government if two conditions are met. "[T]he government's wrongful conduct must threaten 'to work a serious injustice' and the public's interest must not 'be unduly damaged by the imposition of estoppel.'" Id. (quoting United States v. Lazy FC Ranch, 481 F.2d 985,989 (9th Cir. 1973)). As we explained above, there is no evidence that a "serious injustice" will be occasioned by re incarcerating appellant. Moreover, we cannot say that the public's interest would remain unharmed if Atuatasi were set free. After all, he was sentenced to detention as a condition of probation precisely because the trial court determined that he posed too great a danger to the community if he were eligible for work release or similar early release programs. On the other hand, the Parole Board's decision to release appellant after nine months cannot be taken as an indication that that danger had dissipated. Not only was it had without jurisdiction, it reflected a certain degree of carelessness which prompted other agencies of the executive branch to affirmatively seek appellant's reconfinement. Moreover, although the time that Atuatasi spent outside the Correctional Facility was concededly without any incidents of violence, it was too brief to allow us to say that the public interest would not be "'unduly damaged'" by his release.

Applicability of the Parole Statute

In arguing that the sentencing court's "reliance" upon A.S.C.A. § 46.2206 was "erroneous and therefore illegal," appellant first contends that the trial court should have sentenced him to a "straight sentence" rather than suspending his sentence and putting him on probation on the condition that he serve two years and 121 days in prison. Appellant feels that the court by invoking the probation alternative, as opposed to straight sentencing, had achieved the effect of "cutting-off the early release [of appellant] on parole." Appellant's Brief, at 11.

This claim is clearly erroneous. Section 44.2206 provides that when probation is granted, the court may designate "detention in an appropriate institution." For felonies, the period of detention may not exceed "one third of the maximum prescribed term of imprisonment for the crime of which the defendant has been convicted." A.S.C.A. §§ 46.2206(2). Since appellant would have [9ASR2d78] had to serve one-third of his seven-year sentence before becoming eligible for parole, A.S.C.A, § 46. 2304(a) (1) , he would have had to serve that two years and 121 days under a straight sentence anyway.

Secondly, appellant argues that the sentencing court had resorted improperly to the use of section 44.2206 and imposition thereby of detention. Appellant points to the provisions of section 46.2203 dealing with probation eligibility requirements. The argument appears to be that this enactment regards probation as a "rehabilitative" measure to be imposed only in those cases where the court, has determined that institutional confinement is unnecessary and the defendant is not a danger to society. Appellant reasons that as the court had found him a suitable probation candidate, the imposition of an extended term of detention was "retributive" punishment and therefore inconsistent with rehabilitative treatment.

It is to be noted that the validity of section 44.2206 is not challenged by appellant. It is also noted that appellant's submission is made without citing any authority; it entirely ignores the hi5tory of this enactment as detailed by the court below. Additionally, the submission is premised on the faulty assumption of fact that appellant is no longer considered a. danger to society nor an appropriate case for institutional confinement. The evidence below clearly indicated the contrary. That the appellant was a danger to society was precisely the sentiment of the sentencing court. Hence the reason for that court's imposition of probation pursuant to section 46.2206(2) with the maximum allowable period of detention imposed without any possibility for earlier release unless the court approved.

Notwithstanding the apparent textual ambiguity, or conflict, between the provisions of section 46.2203 and the 1987 amended section 462206(2), it seems clear from the latter enactment's history that the Fono has deliberately extended the probationary detention sentencing option beyond the traditional "shock value" function of detention. The amendment of 1987 now permits significantly more extensive supervision by the court regarding the conditions of detention of prisoners. Whereas pre-amendment times limited conditional probation detention to a period not [9ASR2d79] exceeding 1 year, the court in appropriate cases may now impose, as a condition of probation, a detention period of up to 15 years. The change, as noted by the court below, is dramatic and we agree that it has therefore given the probation statute an entirely different purpose. The conflict between the provisions referred to above was correctly addressed below. That is, the 1987 amendment ---section 46.2206(2) ---is a specific and later enactment to that embodying section 46.2203. The cardinal rules of construction are that the general gives way to the specific and that the earlier is implicitly amended pro tanto by the latter where an obvious conflict is apparent. This is not to say that in the appropriate case the sentencing court may no longer utilize the probation option in the manner originally envisaged with the section 46.2203 recitals. On the contrary, the recitals are no longer deemed as factual assumptions of general application in every probation matter. There will be occasions where a defendant is not considered a danger to society nor appropriate for imprisonment except for shock value detention. There is now, in addition, a probationary purpose available for exactly the opposite reasons.

For the reasons given above, we affirm.

*********

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

1. We have serious doubts whether a release of such short duration could lead to a successful due process challenge to reincarceration. However, we need not decide that question today. "[E]ach case in this area of the law must be decided on its own facts," Merritt, supra, 478 F.Supp. at 808 n.14, and on these facts appellant has shown no basis for relief.

Fanene; Seva'aetasi v.


SEVA'AETASI FAMILY by TAGO
ROBERT SEVA'AETASI, Plaintiff

v.

FANENE TAUVEVE, MULIUFI FANENE, and
FETAIAIGA FANENE, Defendants

TAGO SEVA'AETASI, ASUEGA FA'AMAMATA L. SALANOA,
and LOTO GI TAVAI, Objectors/Plaintiffs

v.

FANENE F. TAOFI KAVA for FANENE FAMILY,
Defendants/Claimants

ROBERT S. TAGO SEVA'AETASI, Objector/Plaintiff

v.

UA TA'ITA'I and EPI TA'ITA'I, Defendants/Claimants

EPI UA TA'ITA'I, ASUEGA F. LAUVAI SALANOA,
FANENE FETAIAIGA TAOFI KAVA, and IVI K. PENEUTA,
Plaintiffs/Objectors

v.

ROBERT S. TAGO SEVA'AETASI for
SEVA'AETASI FAMILY, Defendant/Claimant

UIVA TE'O for TE'O FAMILY, Intervenor

[9ASR2d119]

LT No. 25-85
LT No. 33-86
LT No. 31-87
LT No. 32-87

High Court of American Samoa
Land & Titles Division

December 13, 1988

__________

In American Samoa any Samoan can acquire land in any village, not just the village in which his family or matai title resides, by gift, purchase, or original cultivation.

One who acquires land by gift or original cultivation may do so on his own individual account or on behalf of his family, so such land may become either individual or communal property.

Where almost all residents of disputed land were members of two related families, court deciding which of these two families owned the land would consider reputation in the community, the opinions of the residents themselves, and past assertions of ownership and failures to assert ownership by heads of the respective families.

In Samoan custom it is possible for a chief to be recognized as having authority over other chiefs and yet for the other chiefs to own their own land; some chiefs have political authority over a whole village or district but do not have a proprietary interest in the communal lands of other families.

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

Counsel: For Seva'aetasi Family, Asaua Fuimaono
For Asuega, Charles Ala'ilima
For Gi, Edwin Gurr
For Fanene, Aviata Fa'alevao
For Ta'itati, Togiola T.A. Tulafono
For Te'o Family, Lutu F. Fuimaono

This case concerns land called Ili'ili and Tuilemuia in the village of Pago Pago. [9ASR2d120]

I. The Seva'aetasi Claim

The case began as a dispute between Robert S. Tago Seva'aetasi and members of the Fanene family. Tago and/or the Seva'aetasi family are the undisputed owners of a 2.5 acre tract called Ili'ili, registered in 1907 by Alex Forsythe and conveyed to Tago as agent for the Seva'aetasi family in 1951. In an action by the government for condemnation of land in the area in order to bt~ild a road, the Seva'aetasi family was also held to be the owner of land extending to the west of this tract. Government of American Samoa v. Leota, No. 248-1964. Since at least 1974 Tago Seva'aetasi has been disputing with members of the Fanene family the ownership of land immediately adjacent to the tracts taken by the government. See Fanene v. Tago, LT No. 1417-74. In 1985 Tago brought an action to enjoin construction in an area near the Seva'aetasi part of the government road. Both Tago and Fanene then made surveys of the land they claim in the area. They offered these surveys for registration and various neighboring landowners objected, giving rise to two more court cases. Finally, Epi Ua Ta'ita'i offered for registration a small parcel of land also contained within the Seva'aetasi survey. Tago Seva'aetasi objected and this case, too, came to the Court. We consolidated the four actions.

The objectors to the Seva'aetasi survey lay great stress on the fact that Seva'aetasi is not a matai name recognized by the Pago Pago village council. Since Seva'aetasi is not a matai of Pago Pago, they argue, the Seva'aetasi family cannot own communal land in Pago Pago. Tago's response to this was to produce evidence that the then holder of the Seva'aetasi title registered himself as a matai in Pago Pago in 1912.

When asked why the title was not recognized by the village council, Tago responded that he had wished not to discuss this matter but that since the Court had brought it up he had no choice. This is a fairly frequent response to questions about the history of matai titles. Often, as in this case, it precedes a lengthy discussion of how the witness's ancestors came from Western Samoa to Tutuila and conquered or ruled the local people. [9ASR2d121]

Tago's version of Pago Pago history, severely condensed by the Court, is that a chief named Te'o Seva'aetasi came from Upolu perhaps 200 years ago. He was the progenitor of both the Te'o and Seva'aetasi titles in Tutuila. He sojourned for a while in the Western District, then came to Pago Pago where he divided up the land therein. The clear implication is that the exclusion of the Seva'aetasi title (which was registered by Tago's father but has been vacant for many years) from the Pago Pago village council is impudence of the first order.

Other families take strong issue with this testimony, particularly with Tago's statement that when Te'o Seva'aetasi came to Pago Pago there was no chief called Mauga.

Fortunately, the Court does not need to decide this historical question, for Tago's claim in this case does not stand or fall on whether he should be regarded as a matai in the village of Pago Pago. Before the coming of the United States government the structure of Samoan society was such that families of one village did not acquire land in other villages by original occupation. Even in those days, however, there are reported instances of acquisition of such land by gift. Today anyone with at least fifty per cent Samoan blood can acquire land in any village not just the village in which his family or matai title resides ---by gift or purchase. Moreover, since the coming of the government it has often happened that people of one village move to unoccupied land near another village and begin to cultivate it. In most cases these people later claim the land as their individual land, but there is no legal impediment to their claiming it on behalf of a communal family. A person who buys or is given a tract of land, or who acquires it by original occupation and cultivation, has the option of doing so on his own individual account or on behalf of his family.

It was proven at trial that Tago and other members of the Seva'aetasi family have occupied the 2.5 acre tract called Ili'ili even earlier than their formal acquisition of it from their cousin Mary Howden in 1951. During this period they were also cultivating land to the west of the 2.5 acre tract, of which we have no convincing evidence of prior occupation by anyone else. The weight of the testimony is to the effect that Tago's sister [9ASR2d122] Sifusi lived for many years in a house just downhill from a mango tree which was to the west of the 2.5 acre tract. Moreover, the Court's recognition of Tago's claim to the land taken for the government road for some distance to the west, while it does not have the effect of res judicata with regard to ownership of surrounding land, does bolster the trial testimony of Tago about his family's cultivations in the area, and of numerous witnesses about the presence of Sifusi.

We therefore hold that the Seva'aetasi family owns the land to the west of its 2.5 acre tract, south of the government road, north of the Epi Ua Ta'ita'i survey, and east of the Fanene survey. The Sevataetasi family also owns a small piece of the land included in the Fanene survey just south of the government road, more particularly described hereinafter.

II. The Epi and Ua Tatita'i Claim

In 1947 Epi, a niece of Tago Seva'aetasi who had been living with him on Ili'ili, married a man named Ua Ta'itati. They built a house on land to the west of the 2.5 acre Seva'aetasi tract and to the south of the Fanene survey. Tago testified that he gave Epi .and Ua permission to occupy this land and that they did so as members of the Seva'aetasi family. The weight of the evidence, however, is that they purchased it from a minister of religion named Feleti who was of the Fuga family and who had been occupying it before 1947.

Epi's sister Nu'ulau Vaesatu, who has lived on this land for many years, testified that she and Epi never rendered tautua to Tago on account of their occupation of the land. She testified that they participated in family affairs only in ways that were appropriate irrespective of whether they occupied family land. Epi also submitted credible documentary evidence of her contract with Feleti and of her payments to him. Reputation in the community also upholds the Tatita'i claim: when asked to name their neighbors the witnesses for other parties invariably identified this tract as that of Epi and Ua, whereas other members of the Seva'aetasi family were generally identified as relatives of Tago rather than as separate landholders. No one but Tago believed Epi and Ua were occupying their land on his behalf. [9ASR2d123]

III. The Fanene and Asuee:a Claims

Various members of the Fanene family have long cultivated land to the north of the Epi and Ua Ta'ita'i tract. (Fanene also appears to own land further up the mountain, as well as land to the east in the vicinity of the L.M.S. church. These lands, like other lands in the vicinity owned by Seva'aetasi and Asuega, are not at issue in this case. ) The Fanene family filed a claim to the land in question in 1964, and filed the aforementioned injunctive action in 1974.

In the present action the area claimed by Fanene is also claimed by Asuega. She points out that all the Fanene family members who have occupied the land over the years are also blood members of her own family. Moreover, in a post-trial affidavit Asuega identifies two people who she says once occupied the land and who she says were members of the Asuega family but not of the Fanene family.

The weight of the evidence, however, is that the land in question is Fanene land. Oti Fanene, whom most witnesses for other parties remember as the most visible member of either family on the land during the last thirty years or so, is descended from both Asuega and Fanene but thinks of himself as occupying the land as a Fanene. Witnesses for other parties invariably identified the people in this area as "Fanene people." Only Asuega herself identified the two non-Fanene family members as occupying the area in question; even these two could have been on the land because of their connection to others who did have Fanene blood.

The failure of the then Asuega title holder to file a claim to the land in question when the government condemned the land for the road in 1964 is hardly consistent with a long family tradition that this was Asuega land. Indeed, the present Asuega testified that she herself ---a member of both the Fanene and Asuega families who then held neither title had urged Fanene to file his claim but made no such suggestion to Asuega.

We conclude that the Fanene family may register the land within the Fanene survey, with [9ASR2d124] the exception of the part just south of the government road that extends to the east of the main part of the survey; and with the further exception of the area north and west of the bend in the government road, part of which Fanene has conceded to Gi. We further conclude that the Fanene family owns the following areas outside the Fanene survey: a strip to the south of their survey and north of the Epi and Ua Ta'ita'i survey; and a small area north of the government road, east of the Fanene survey, and west of the 2.5 acre Seva'aetasi tract.

We express no opinion about the relationship between the two Fanene titleholders in Pago Pago, particularly about whether Fanene Fetaiaiga has pule over this land to the exclusion of the other Fanene titleholder.

We conclude that land within the area at the Asuega family owns no issue in this case.

IV. The Gi Claim

Gi objected to the part of the Fanene survey that is north and west of the government road. At trial both Gi and Fanene told the Court that they intend to compromise their claims and do not wish the Court to make a judgment thereon. Accordingly, we state no opinion with respect to that part of the Fanene survey north of the northernmost line of the Seva'aetasi and Asuega claims and north and west of the government road.

V. The Te'o Claim

Uiva Te'o was granted leave to intervene on behalf of the Te'o family, although the Court noted that no objection was filed to anyof the surveys within the required sixty days. If Te'o had stated a meritorious claim, we would have been faced with the question whether the failure of any member of the Te'o family to object within the statutory period precluded the Court from recognizing this claim.

The gist of the Te'o claim is that all the chiefs in the area owe service to Te'o and all the lands occupied by them are Te'o lands. The witness who testified on behalf of the Te'o claim said the first Te'o had come to Pago Pago hundreds or [9ASR2d125] thousands of years ago and had helped to expel the Tongan invaders. He then told various chiefs where to put their houses and plant their crops within the liberated areas.

It is quite possible, however, for a chief to be recognized as having a certain authority over other chiefs and yet for these other chiefs to own their own land. In almost every village and county there is at least one chief who has "political" pule over the whole village or district without having "proprietary" pule over the communal lands of other families. An excerpt from the testimony of a Te'o titleholder almost sixty years ago is instructive:

[The Court]: Do you claim that Leota is now living on
land that you allowed him to live on?
[Te'o]: Yes.
Q: How long ago did Leota ask you if he might live there?
A: Many years ago.
Q: How old did you say that you were?
A: 51 years.
Q: Do you know how old Leota is?
A: Maybe 70 years.
Q: How old were you when you gave Leota permission
to occupy this land?
A: I do not mean it was myself but the other holder of
the name Teo.
.....
Q: Would you have any objections to allowing Leota to
register the land he lives on?
A: No.
Q. Did you yourself ever plant anything up there or reap
the harvest? [9ASR2d126]
A: No.
Q: And yet you have the pule of this land?
A: No.
Q: You said you gave Sevataetasi and Leota permission
to live there?
A: I mean this land originally was owned by Teo, and it
was given to Leota and Sevataetasi and Teo has no more
right to it.

Transcript of Hearing held May 27, 1930, in Leota v. Sevataetasi, No. 1-1929.

Assuming the accuracy of the historical account given by the Teto witness at trial, we believe the status of this land to be similar to that under consideration in the Leota case. Even if one chief originally told other chiefs in a certain area where to settle and even if they still owe him some service on that account, land in Samoa and elsewhere has a way of eventually being considered the property of those who settled on it and cultivated it.

Conclusion

The Sevataetasi family may register a tract bounded on the East by the 2.5 acre Sevataetasi tract already registered as Ili'ili (1); on the South by the Epi and Ua Tatita'i survey; on the West by a line beginning at the southeastern corner of the Fanene survey and extending to the point where the northern boundary of the Sevataetasi and Asuega [9ASR2d127] surveys meets the western edge of the land taken for the government road (at about the midpoint in the sharp bend in the road); and on the North by the southern edge of the land taken for the government road.



Epi Ta'ita'i and the Estate of Ua Ta'ita'i (or his heirs or successors, if the estate has been closed) may register the Epi and Ua Ta'ita'i survey.

The Fanene family may register two tracts, separated by a portion of the land taken for the government road. The first tract is defined on the South by the Epi and Ua Ta'ita'i survey; on the West by the stream defining the western edge of the Fanene survey; on the North by the northernmost line of the Seva'aetasi and Asuega surveys until it meets the land taken for the government road, at the midpoint of the sharp bend near the water tank; and on the East by a line extending from the point just defined (at the midpoint of the sharp bend) to the southeasternmost point of the Fanene survey, and beyond that point to the northern boundary of the Epi and Ua Ta'ita'i survey. The second tract is defined on the South by the northern edge of the land taken for the government road as it heads west toward the sharp bend near the water tank; on the Northwest by the southeastern edge of the land taken for the government road after it turns the bend and heads toward the water tank, as far as the northern boundary of the Fanene survey; and on the Northeast by the northern boundary of the Fanene survey from the southeastern edge of the land taken for the government road to the northeasternmost corner of the Fanene survey, and extending beyond that point to the intersection of the northern edge of the land taken for the government road with the western boundary of the 2.5 acre Seva'aetasi tract.

We express no opinion about the ownership of the land within the Fanene survey north of the northernmost boundary of the Seva'aetasi and Asuega surveys and west of the land taken for the government road.

We also express no opinion about the land within the Seva'aetasi survey north of the government road, except that the Fanene family proved its ownership of the small portion of this tract described above and that the Seva'aetasi family did not prove its ownership of any land [9ASR2d128] north of the government road except that part contained in the 2.5 acre survey previously registered.

It is so ordered.

*********

1. The Court was greatly assisted in its assessment of the location of the various parties' claims by a composite map prepared by Meko Aiumu and introduced into evidence as Tago Exhibit 10. The lines and points described in this section of our opinion are all depicted in Exhibit 10. The Court has also used Exhibit 10 as the starting point for a sketch depicting the land held in this opinion to be the property of the various parties. This sketch is available for inspection in the Clerk's Office.

Faleafine; Suapilimai v.


LEITUALA M. SUAPILIMAI, Appellant

v.

FALEAFINE MUSU and FELILI FALEAFINE, Appellees

High Court of American Samoa
Appellate Division

AP No. 14-88

November 8, 1988

__________

Where each party has presented evidence to the trial court which supports its own claim to land ownership, the trial court's findings will not be disturbed on appeal unless clearly erroneous. A.S.C.A. § 43.0801(b).

Trial court findings of fact for which there is substantial evidence in the record are not clearly erroneous, and will not be disturbed on appeal, even though there is also substantial evidence in the record that would have supported a contrary finding by the trial court. A.S.C.A. § 43.0801(b). [9ASR2d17]

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

Counsel: For Appellant. Aviata Fa'alevao
For Appellees, Charles Ala'ilima

Per Curiam:

This is a land dispute concerning a fifth of an acre of lawn which is overlapped by two surveys made by the Suapilimai and Faleafine families.

The Faleafine family and the Leituala/ Suapilimai family have been neighbors for at least forty years. Their homes are located upon bordering plots of land in Ili'ili village. The area now in dispute is located between their homes, and has been occupied or used at various times by both sides to this litigation.

For at least twenty years prior to 1973 there was a small guest house (fale) on the area occupied by various relatives of the appellant, and her family still maintains a cooking hut (umu) there. The tract has also been used by members of appellees' family for many years. At trial there was testimony that the two families had been very friendly for many years and both used and maintained the area amicably. There have. however, been two interruptions of these friendly relations, once in 1973 and once more recently, leading to the present litigation. [9ASR2d18]

There was testimony (though disputed) that in 1973 members of both families met with a local chief to have him walk the boundary line with them. The line he marked, according to several witnesses, was along a straight row of coconut trees which mark the east side of the Faleafine survey. Shortly thereafter, the Suapilimai family removed the guest house which was located on the disputed land, west of the line of coconuts. Suapilimai testified that this was due to a health department order; Faleafine witnesses testified that it was because the chief identified the disputed land as Faleafine's. Suapilimai continued and still continues to use the cooking house.

In 1981, while occupants of the Faleafine dwelling were temporarily in Hawaii for extended medical treatment, Suapilimai ordered and registered a survey of the land. The trial court found the survey to be null and void due to technical problems not essential to the present appeal. When the Faleafine members returned and found that Suapilimai was using the disputed portion they had their own survey done and the present action began.

The trial court determined that Faleafine had the superior right to the land based on use and occupation, but found that the Suapilimai family had a license to use the umu so long as they would not disturb Faleafine's use and enjoyment of the tract.

Suapilimai's argument on appeal appears to be that the trial court erred because there was a substantial body of evidence which supported her contention that her family had occupied and used the land longer and more extensively and therefore had the superior right thereto. She cites heavily from the transcript, particularly to evidence that her children had cut down coconut trees on the tract, that her family had for a long time built and kept a guesthouse and a cooking house on the land, that the previous generation of her family had planted coconut and breadfruit trees on it, and that her children presently maintain the lawn.

In turn, Faleafine supplied evidence that the family had long occupied the area directly west of the disputed plot, that the land occupied by the Suapilimai family actually belonged to the [9ASR2d19] Letuligasenoa family, that there was joint use and maintenance of the disputed land by both sides, and that the boundary settlement by Chief Letuligasenoa which allotted the tract to Faleafine had been recognized by both sides.

Where, as here, each side has presented evidence to the trial court which supports its own interpretation of the situation, the trial court's findings will not be disturbed unless clearly erroneous. A.S.C.A. § 43.0801(b). The trial court was persuaded by the evidence of Faleafine, and there is substantial evidence to Support that choice.

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, District 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.

Fai'ai; Satele v.


SATELE MOMOSEA UOKA, Appellant

v.

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

UIAGALELEI IONA, UIAGALELEI LEALOFI, and the
UIAGALELEI FAMILY, Appellants

v.

FALE FAI'AI and TUIASOSOPO MARIOTA, Appellees

TUIASOSOPO MARIOTA II, Appellant

v.

SATELE MOMOSEA, UIAGALELEI IONA, UIAGALELEI
LEALOFI, and FALE FAI'AI for herself and
the HEIRS OF FA'AILOILO, Appellees

High Court of American Samoa
Appellate Division

AP No. 5-88
AP No. 7-88
AP No. 8-88

[9ASR2d20]

November 8, 1988

__________

Where evidence showed that land had been cleared from virgin bush by one who shortly thereafter registered part of the land in his own name without any objection from senior matai of the communal family of which he was a member, and later surveyed the entire land and conveyed it by warranty deed to his daughter, evidence was sufficient to overcome the presumption that land in American Samoa is communally owned.

Parties who readvanced on appeal the evidence and factual contentions they presented to the trial court did not thereby establish that the contrary findings of the trial court were clearly erroneous.

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

Counsel: For Appellant Satele, Steven H. Watson
For Appellant Uiagalelei, Aitofele Sunia
For Appellant Tuiasosopo, Togiola T.A. Tulafono
For Appellee Fai'ai, Charles Ala'ilima

Per Curiam:

This case began when appellant Satele filed for a permanent injunction against appellant Uiagalelei to stop the construction of a structure. Satele claimed the structure was being built on his land.

When the complaint was filed, Satele did not have a survey of the area that he considered he owned and called Fasamea. He commissioned a survey which covered over sixty acres. When this survey [9ASR2d21] was offered for registration, appellants Uiagalelei and Tuiasosopo and appellee Faiai responded--- claiming Satele had encroached upon their land.

Because the American Samoan Government needed to expand its landfill and so needed to know with whom to negotiate for this expansion, the trial court decided to adjudicate only that portion of the land currently occupied by the landfill and that portion of the land currently contemplated for the landfill's expansion. Approximately 35.5 acres of the 60 acres were adjudicated by the court.

At trial, Satele and Uiagalelei presented surveys which had been commissioned specifically for trial. Appellee Faiai presented surveys that had been done in 1912 and 1914. The court found the 1912 survey covering ten acres had been registered with the Territorial Registrar. Appellant Tuiasosopo did not present any surveys.

The trial court made the following conclusions:

(1) Satele owns no part of the land involved in this case.
(2) Tuiasosopo owns one acre.
(3) Uiagalelei owns approximately 3.78 acres.
(4) Faiai owns approximately 30.72 acres.

Uiagalelei filed a motion for a new trial or relief from judgment, claiming counsel had discovered new evidence. The court denied this motion because it was untimely and without merit.

In the early 1900s, Fauolo ---a chief of Se'etaga ---cleared the virgin brush from Fasamea. Fauolo was Satele's brother-in-law and continued throughout his life to render Satele the service due the highest chief in the county.

The trial court found that Fasamea was not Satele family land when Fauolo arrived on it and that Fauolo did not intend to make it Satele land. In 1912, Fauolo registered about ten acres of Fasamea as his own individually owned land.

In 1914, Fasamea was resurveyed and then covered 35.5 acres. The trial court specifically reserved deciding whether Fauolo registered this [9ASR2d22] 1914 survey, reasoning its conclusion would be the same regardless of whether or not the survey was registered. In 1939, Fauolo conveyed these 35.5 acres to his daughter Fa'ailoilo by warranty deed. Appellee Faitai is the granddaughter and heir of Fatailoilo.

The court found that various relatives of Fauolo cultivated parts of Fasamea at various times. Some of these relatives were also members of the Satele family. Tuiasosopo Mariota, father of the appellant Tuiasosopo, also cultivated part of Fasamea and eventually established a large commercial plantation on Fasamea.

The court found the land north of Fasamea was Uiagalelei communal land occupied by Uiagalelei family members. The court also found that Uiagalelei sold approximately one acre of what is now the landfill area to Tuiasosopo as part of the stipulation approved by then Chief Justice Jochimsen in 1976.

Appellant Satele points out that the policy of the United States and American Samoa is to preserve the Samoan way of life, citing the Cession of Tutuila and Aunu'u and Cession of Manu'a Islands, and article I, section 3, of the Revised Constitution of American Samoa. Appellant argues that "[t]he twin cornerstones of the Samoan way of life are communal land tenure and the matai system." Individually owned land, appellant contends, is contrary to this way of life. Appellant relies upon the concise history of land ownership presented in Leuma v. Willis, 1 A.S.R.2d 48, 49-55 (1980), to argue that the concept of individually owned land was created by "judicial fiat" and violated this policy then and continues to violate this policy now.

The court in Leuma was critical of the judicial development of individually owned property. The Leuma court asserted that in Taatiatia v. Misi, 2 A.S.R. 346 (1948), "Justice Morrow misstated Samoan custom (that the virgin brush belonged to no one), and then applied the law of old England (Blackstone and Maine) to a land system and culture completely different." Leuma, 1 A.S.R.2d at 53.

However, the Leuma court did not conclude that individually owned land violated the cession [9ASR2d23] treaties or the Revised Constitution,. In fact, the court ended its historical discussion by citing the description of individually owned land in Fanene v. Talio, LT No. 64-77 (1977), and by noting the Samoan legislature's efforts to define individually owned land. Appellant overstates his argument in contending the Leuma court found a violation.

Appellant also argues that recent Samoan case law "has recognized the treaty and constitutional problems with individually-owned land." As a result, appellant claims, "[p]rior to this case the judicial creation of individually- owned land had all but ceased to occur." The only case that appellant cites as evidence of this claim deals with a parcel of land already found to be communal land; so this case's relevance to appellant's argument is unclear.

In responding to appellant's claim, appellee cites Reid v. Puailoa, 1 A.S.R.2d 85 (1983), where the court held that "since all land was once communal land, there is a presumption that all land still is." Id. at 87. The court found the provisions of the cession treaties and Article I, section 3, of the Revised Constitution of American Samoa preserved the rights of the native inhabitants and support the finding of such a presumption. Id. The court reasoned that these provisions "are not intended to force the retention of custom, culture, and tradition upon Samoans, but instead to assure that the Samoan way of life is allowed to follow its own path." Id. However, the court held that any party asserting that a parcel is not communal land must overcome the presumption that it is communal land.

While the court below did not explicitly refer to this presumption in its finding that the land was not Satele family land, Fauolo's registering ten acres of the land in his own name in 1912 without any objection from Satele, just a couple of years after entering upon and clearing it, and then surveying the entire 35 acres in 1914 and slbsequently conveying it by warranty deed to his daughter is sufficient to overcome this presumption.

Appellant Uiagalelei contends that the trial court erred in relying upon the Stipulated Judgment approved by Justice Jochimsen to find the Uiagalelei family sold one acre of land to [9ASR2d24] Tuiasosopo. The trial court specifically noted in its decision that there was a "strong presumption of validity attaching to an order of this Court signed by a Justice thereof." LT 17-86, slip opinion at 3, 5 A.S.R.2d 143, 145 (1987). The judgment itself presents substantial evidence from which the court could have concluded the sale did take place. Appellant fails to establish clear error.

Appellant Satele claims "[i]t is contrary to law and custom that this lesser matai [Uiagalelei] should contest the wishes of the paramount chief for whom he speaks." Appellant gives no support for this claim, so he fails to meet the clearly erroneous standard.

Appellant Tuiasosopo claims that the trial court clearly erred in not finding the Tuiasosopo family owned Fasamea by adverse possession. In support of this claim, appellant simply presents evidence contradictory to the court's finding that there was no continuous, exclusive, and hostile possession for 30 years. Appellant fails to establish clear error.

We conclude no clear error was established, and there was substantial evidence upon which the trial court based its findings. We therefore affirm.

*********

* 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.

Election Office v. Tuika,


ELECTION OFFICE OF AMERICAN
SAMOA GOVERNMENT, Plaintiff

v.

TUlKA TUIKA, Jr. , Defendant

High Court of American Samoa
Trial Division

CA No. 95-88

November 2, 1988

__________

One who challenges the right another person to of be registered or to vote as a qualified elector must exhaust administrative remedies before submitting the matter to court. A.S.C.A. § 6.0230 et seq.

Court would not exercise its power to render a declaratory judgment where the party seeking the judgment had not exhausted his administrative remedies.

Court would not exercise its power to render a declaratory judgment where the only relief it could grant would require the court to assume a supervisory role over administrative processes.

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

Counsel: For Plaintiff, Caroline B. Crenna, Assistant Attorney General and Enere Levi, Assistant Attorney General
Defendant Tuika Tuika, Jr., pro se

This matter came on regularly the 2nd day of November, 1988, for hearing defendant Tuika Tuika's counterclaim filed herein against the election office.

Counterclaimant's pleadings essentially reveal a complaint against the Election Office's maintenance of the general register of voters. The[9ASR2d2] quarrel concerns the manner of registering voters, alleging the Election Office's efforts as falling short of sufficient screening as to eligibility; the admission to the register of alleged ineligible voters who have supposedly voted outside American Samoa, or who have switched voting districts without regard to the requirements of residency.

These complaints concern elector qualifications for which remedial administrative measures have been carefully and deliberately provided in A.S.C.A. §§ 6.0101 et seq. With these enactments, the legislative design is to secure th orderly registration of those qualified to vote and to facilitate the conduct of the territory's election proceedings. As opposed to the relatively time consuming and oft cumbersome road to the courts, the Fono has here provided also for an effective and speedy method for administrative relief in case of disputes with registration.

Section 6.0223 details the manner in which a qualified elector may challenge before an election officer the correctness of the register or the district lists prior to election and during election day. Section 6.0224 provides for appeal to the Board of Registration from adverse decisions of the election officer. Paragraph (b) of this enactment requires the Board of Registration to also sit on election day and continue to sit until all appeals have been handled. It is only subsequent to exhausting administrative relief, §§ 6.0230 et seq., or after the elections themselves, § 6.0223 (d), that judicial review comes into the statutory scheme. It is significant to note in this context that pending the finality of a challenge proceeding, both the challenger's and the challengee's rights are secured. Sections 6.0233 and 6.0223 allow for the challengee to vote but that his vote shall be secured and dealt with in accordance with any final decision. This statutory flexibility preempts the need for any judicial inventiveness at first instance, while on the other hand guaranteeing judicial review of any challenge administratively denied.

We find that in the circumstances counterclaimant's resort to court is premature and that he should first exhaust all his administrative remedies. We invoke our discretion accordingly [9ASR2d3] pursuant to A.S.C.A. § 43.1102 and refuse to make a declaration.

One further aspect of the counterclaim that remains to be considered and that is the allegation that there is improper monitoring of absentee ballots and the lack of proper records kept by the Election Office. We are unable to frame relief without becoming involved in a continuing supervisory role with the electoral process. We similarly exercise discretion and refuse to make a declaration. Any defects with the results of the elections that may arise through managerial ineptness may be properly cured in an election contest.

For the foregoing reasons, the motion for dismissal by the Election Office is granted.

It is so Ordered.

*********

Chief Election Officer; Tuika v.


TUIKA TUIKA, Jr. and SU'A CARL
SCHUSTER, Appellants

v.

CHIEF ELECTION OFFICER, BOARD OF REGISTRATION,
and FIAAOGA SIATU'U, Appellees

High Court of American Samoa
Appellate Division

AP No. 34-88

November 23, 1988

__________

Under statute requiring election appeals to be filed by 4:30 p.m. on the seventh calendar dayfollowing the election, court had no jurisdiction over an appeal filed at 8:00 p.m. on the seventh day. A.S.C.A. § 6.0903(a).

One who votes in a foreign election, without haying been naturalized as a citizen of a foreign state or taking an oath of allegiance to such a state, does not thereby lose his status as a United States citizen or national. 8 U.S.C. § 1481.

One who votes in a foreign election thereby loses his legal residence in American Samoa. A.S.C.A. § 6.0212(g).

One who loses his legal residence in American Samoa by voting in a foreign election, but who returns to American Samoa with the intention to remain permanently, thereby reacquires his legal residence in American Samoa. A.S.C.A. § 6.0212(a).

To be eligible for election to the territorial legislature, one must have lived in the territory for a total of at least five years and have been a bona fide resident of the district from which he is elected for at least one year immediately preceding his election. Rey'd Const. Am. Samoa art. II § 3(c). [9ASR2d58]

Before REES, Associate Justice, TOGAFAU*, Acting Associate Justice, LUALEMAGA, Associate Judge, and AFUOLA, Associate Judge.

Counsel: For Appellants, Levaula S. Kamu, pro hac vice
For Appellees, Caroline B. Crenna, Assistant Attorney General,
and Enere Levi, Assistant Attorney General

Per REES, J. :

Appellants seek a new election in House of Representatives District 7 on the ground that the winning candidate, Fiaaoga Siatu'u, is a registered matai in Western Samoa and has voted in parliamentary elections there.

The appellees have moved to dismiss on the ground that the Court has no jurisdiction to hear an election appeal filed later than 4:30 p.m. on the seventh calendar day following the election. A.S.C.A. § 6.0903(a). This appeal was filed at 8:00 p.m. on November 15, 1988, the seventh calendar day after the election ---three and one-half hours late.

On the state of the pleadings and arguments in this case we are compelled to agree with the appellees. When the legislature takes the trouble to specify not just the date but the exact time by which an act must be done, a court should not presume to substitute another date and time. At the time this case was heard, counsel for appellants read the Court passages from American Jurisprudence to the effect that courts do not obtain jurisdiction of election cases until after the final results are announced. Since the final results of this election were not announced until November 16, appellants argue that the deadline for challenging the election cannot possibly have been November 15. The Court gave counsel twenty-four hours to cite a case in which this rule had been applied to a statute such as A.S.C.A. § 6.0903(a), which computes the time for challenging an election from the day of the election rather than from the [9ASR2d59] announcement of the results, and no such case has been cited.

Moreover, the appellants knew what they needed to know in order to file this appeal ---that Siatu'u had voted in Western Samoa in 1985, and that the Chief Election Officer and the Board of Registration nevertheless regarded him as a resident and a qualified voter in District 7 ---by November 14 at the very latest. It is true that appellant Schuster, who was sixteen votes behind Siatu'u in the unofficial returns, could not be absolutely sure that this count would not be changed when the official results were announced. But this was no reason to delay beyond the statutory deadline the filing of a challenge to Siatu'u's eligibility as a candidate, which did not depend in any way on the vote count.

If this were a case in which the appellees had made it impossible for appellants to meet the deadline -- if, for instance, one of the appellants were the unofficial winner but had been disqualified by the Chief Election Officer eight days after the election ---our decision on this issue would be a difficult one. On the present facts, and in the absence of any cited authority for the appellants' argument that a statute such as A.S.C.A. § 6.0903(a) should not be regarded as mandatory, we hold that it is mandatory and that we have no jurisdiction to hear the appeal.

Even if we did have jurisdiction, however, appellees would prevail on the merits. Appellants argue that Siatu'u lost his status as a United States national when he registered his matai title in Western Samoa, since (1) under the law of Western Samoa only a Western Samoan citizen can hold a matai title and (2) in order to become a Western Samoan citizen one must take an oath renouncing the citizenship of any other nation. This proves, however, only that Siatu'u either took an oath to renounce his status as a United States national violated the law of Western Samoa when he registered his matai title. His testimony is that he has never taken any such oath and has never become a citizen of Western Samoa. If not, he appears to have violated section 8 of the Samoan [9ASR2d60] Status Act of Western Samoa, (1) but he has not lost his status as a United States national.

Appellants also contend that even if Siatu'u did not lose his United States national status by registering his matai title, he lost it by voting. They rely on a statement in Shelton v. Tiffin, 47 U.S. (6 How. ) 163, 185 (1848):

[C]itizenship may depend upon the intention of the individual.
But this intention may be shown more satisfactorily by acts than
declarations. An exercise of the right of suffrage is conclusive
upon the subject.

Shelton, however, concerned whether a party who had moved from Missouri to Louisiana had become a citizen of the latter state for the purpose of conferring diversity jurisdiction on the federal courts. From the willingness of the Supreme Court in 1848 to accept voting as conclusive evidence on this point, it does not follow that voting in a foreign election is also conclusive of an intention to take the much weightier decision to renounce the rights of citizenship in the United States. More to the point is 8 U.S.C. § 1481, which provides a number of ways in which a person can lose United States citizenship. The list includes naturalization in a foreign state, or taking an oath of allegiance to such a state, but does not include voting in a foreign election. [9ASR2d61]

The list of voters in Western Samoa outside the township of Apia consists entirely of the list of registered matai title holders. Appellee Siatutu testified that he was born in American Samoa and has lived here all his life; that he took the title Peseta in the village of Putaputa in Western Samoa for family reasons unrelated to a desire to participate in Western Samoa politics; but that on one or more occasions his family in Western Samoa prevailed upon him to exercise the voting right appurtenant to his Peseta title. After he did so he returned to American Samoa where he continued to live, to participate in community affairs, and to be elected several times to the Legislature. It is clear that he did not intend to renounce his rights as a United States national.

When Siatutu voted in Western Samoa he did lose his "residence in the territory." A.S.C.A. § 6.0212(g). However, his residency recommenced as soon as he returned to American Samoa with the intention to remain permanently. A.S.C.A. § 6.0212(a). By the time of the 1988 election he had resided here for more than one year since casting his vote in Western Samoa in 1985 and returning to American Samoa, and so he was eligible to run for the office of Representative. See Rev'd Const. Am. Samoa art. II § 3(c).

It is arguable that after officially losing his residence in 1985 Siatutu should have been purged from the voting list and required to re- register. This, however, is irrelevant to whether he was a qualified candidate for Representative; the territorial constitution does not require that the candidate be a registered voter for a year or even a day, but only that he "have lived in American Samoa for a total of at least 5 years and have been a bona fide resident of the representative district from which he is elected for at least 1 year next preceding his election." Id. art. II § 3(c) (emphasis added). Siatu'u met these conditions.

We cannot emphasize too strongly that the Court does not confer its approval on the act of voting in foreign elections while attempting to retain the advantages of citizenship in American Samoa. Perhaps penalties for such acts, including the loss of the right to vote in American Samoa for an extended period of time, should be prescribed by [9ASR2d62] law. The law as it stands, however, does not appear to prescribe such penalties.

The appeal is dismissed.

*********

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

1. Appellant Su'a Carl Schuster, who testified that he holds the tile Su'a in Western Samoa but has never registered the title and is not a citizen of Western Samoa, would also appear to have run afoul of section 8, which makes it an offense for any non- citizen to permit a matai title to be conferred upon him. If either Schuster or Siatu'u has used his Western Samoan title in American Samoa, he would appear to have committed a misdemeanor under A.S.C.A. § 1.0414, which prohibits the use of unregistered matai titles. This law appears to be honored as often in the breach as in the observance; we have no way of knowing whether the same is true of the Western Samoa statutes cited by appellants.

Bank of Hawaii v. Congregational Christian Church,


BANK OF HAWAII, Plaintiff

v.

CONGREGATIONAL CHRISTIAN CHURCH OF TUTUILA,
CONGREGATIONAL CHRISTIAN CHURCH OF TUTUILA AND
MANU'A, CONGREGATIONAL CHRISTIAN CHURCH IN AMERICAN
SAMOA, CONGREGATIONAL CHRISTIAN CHURCH IN SAMOA,
CONGREGATIONAL CHRISTIAN CHURCH AUTAUMAFAI,
CONGREGATIONAL CHRISTIAN CHURCH IN FALEFANO,
THE BOOK STORE, FAAGAU TULAFONO, GALEA'I POUMELE,
REV. FITI A. SUNIA, REV. PANAMA, REV. PANAPA,
REV. TIMA TIMA, REV AASI, LE'IATO T., REV. ENOKA,
and DOES I-X, Defendants

High Court of American Samoa
Trial Division

CA No. 32-80

December 12, 1988

__________

Where court order required disputed funds to be kept in bank pending outcome of the litigation, but an officer of one party to the litigation secretly withdrew and spent the funds in violation of the order, an opposing party which agreed to a settlement under which it would receive "the funds in the bank " did not thereby waive its right to receive the funds which had been wrongfully withdrawn, since it was entitled to rely on compliance by other parties with the court order.

Court order discharging plaintiff in interpleader, a bank, from further liability in connection with the interpleaded funds did not discharge the bank from continuing compliance with previous order prohibiting the disbursal of other funds pending the outcome of the litigation.

Where one party to litigation, in violation of a court order, had released money to another party which had then spent it, both parties were jointly and severally liable to a third party who was held entitled to the money; as between the two parties who violated the order, the party who received and spent the money would be required to indemnify the party who merely released it. [9ASR2d101]

An institutional party to litigation is chargeable with the knowledge, and responsible for the actions, of its agents who conduct the transactions that are the subject of the litigation.

Party was not entitled to relief from stipulated judgment on the ground of mutual or unilateral mistake, where: (1) the party was an institution which had agreed to the stipulated judgment after negotiations during which it was advised by counsel; (2) the basis for the alleged mistake was that, at the time of the stipulation, it was wrongly assumed that certain funds were being kept in a bank in accordance with a court order; (3) in fact, the funds had been withdrawn and spent in violation of the court order by an officer of the party seeking relief from the judgment; (4) the officer was the party's chief agent for the safekeeping and disposition of the funds, and a participant in the negotiations leading up to the stipulation; (5) the funds had been spent on expenses of the party seeking relief; and (6) in support of its motion for relief, the party submitted an affidavit from a current officer stating that his predecessor had misunderstood the stipulation, but submitted neither an affidavit from the previous officer nor an explanation of why it could not present one. T.C.R.C.P. Rule 60(b).

Before REES, Associate Justice.

Counsel: For Plaintiff, Roy J.D. Hall, Jr.
For Defendant Congregational Christian Church in American Samoa, John Ward
For Defendant Congregational Christian Church in Samoa, Aviata Fa'alevao

On Order to Show Cause, Motion to Dismiss or in the Alternative for Joint Liability, and Motion for Relief From Judgment:

I. Facts and Procedural History

In 1980 the Bank of Hawaii filed this action in interpleader. As a result of a disagreement between the two principal parties, Congregational Christian Church in Samoa (CCCS) and Congregational Christian Church in American Samoa (CCCAS), the [9ASR2d102] Bank claimed that it did not know the true owner of certain funds it held on deposit.

The Bank deposited certain funds with the Court and sought an order compelling the defendants to interplead and discharging the Bank from further liability, On June 16, 1980, the Court ordered that certain other funds in the amount of $29,607, held by the Bank of Hawaii at its Waikiki branch "be held as part of the money entity ." On June 26 this order was put in writing. The funds in Waikiki were ordered "to be included in the sums of moneys herein litigated between the Church in American Samoa and the Church in Western Samoa, The said amount of $29,607,09 plus any interest earned therefrom shall not be dispursed [sic] by anyone in any manner or form unless ordered by the Court."

At the June 16 hearing the Court also granted a motion to dismiss Rev, Faagau Tulafono, then the assistant treasurer of CCCS and the named holder of the Waikiki bank account, as a defendant in his individual capacity, since he "disclaims and has no personal interests " in any of the funds.

On June 27, 1980, the Court signed an order discharging the Bank of Hawaii from further liability. The Court noted that it retained jurisdiction for the purpose of determining the rights of the respective defendants "in and to the funds on deposit in the registry of this Court."

Four years later, on June 27, 1984, counsel for CCCAS moved that the Court order Rev, Tulafono and CCCS to withdraw the $29,607 on deposit in Waikiki, plus accumulated interest, and to deposit the money in the registry of the Court. On July 9 the motion was denied. Although a transcript of that hearing is unavailable, the notes of counsel for CCCS reflect that the motion was denied on the ground that the money would earn a higher rate of interest in Waikiki than in American Samoa. No other party disputes this,

On November 27, 1987, CCCS and CCCAS agreed to a stipulated judgment. The stipulation provided in pertinent part that "[a]ll funds remaining with the Court registry in this matter, to wit, $19,579.72 and the $29,607.90 deposited with the Waikiki Branch of the Bank of Hawaii.... by Elder Rev. Tulafono Fa'agau plus interest accumulated since [9ASR2d103] deposit shall be paid over to the CCCAS." On November 30 the Court signed this judgment.

Shortly thereafter CCCAS presented the Bank of Hawaii with a copy of the judgment and requested the $29,607 plus interest. The Bank responded that the money was not in the Bank and had not been there for some time. The Court later learned that Rev. Tulafono had moved the money from the Waikiki Branch to the American Samoa branch of the Bank of Hawaii, and had subsequently withdrawn and spent it, No party disputes Rev. Tulafono's contention that he spent the money for church (CCCS) purposes.

II. The Order to Show Cause

Counsel for CCCAS then moved for an order to show cause why the Bank of Hawaii should not be held in contempt of the Court's orders of June 27, 1980, and November 27, 1987. The first of these orders provided that the funds in Waikiki were to be included in the funds litigated and were not to be disbursed by anyone. The second order provided that the funds should be disbursed to CCCAS in accordance with the stipulated judgment.

III. The Bank's Motion "to Dismiss or for Joint Liability"

The Bank has moved to dismiss the order to show cause on several grounds. The Bank's primary contention is that the Court's June 26, 1980, order was a clumsily drafted attempt to order the Waikiki money deposited in the registry of the Court. This contention is contrary to the clear language of the order and to the most obvious inference from the circumstances surrounding it. It is clear that the Court wished the Waikiki money to be "included" in the interpleaded funds only in the sense that it was to be left right where it was pending the ultimate outcome of the case. Indeed, in 1984 the Court denied a motion by CCCAS to deposit the funds in the registry of the Court. The denial of such an order makes no sense if it was, as counsel for the Bank now contends, exactly what the Court had already ordered back in 1980. The Court minutes reflect that counsel for the Bank, as well as for CCCAS and CCCS, were present at the 1984 hearing. It is obvious that all counsel agreed with the obvious premise of the CCCAS motion: that the money was still safely in the Waikiki branch of the Bank of Hawaii.[9ASR2d104]

The Bank also maintains that the Court's 1987 judgment implicitly incorporated a July 1987 stipulation between the CCCS and the CCCAS according to which CCCAS would receive "the funds in the Bank of Hawaii" as of that date. Since the Waikiki funds had already been withdrawn by then, the Bank argues that CCCAS lost any right to them when it agreed to this stipulation. This argument. ignores the fact that CCCAS had a right. to rely on compliance by all parties with the Court's 1980 order that the Waikiki funds not be disbursed.

The record reflects that these funds were a continuing source of interest and concern to CCCAS from 1980 through 1987. It is unrealistic to assume that CCCAS meant to waive its claim to these funds merely because it agreed to accept "the funds in the Bank of Hawaii" instead of "the funds that are in the Bank of Hawaii assuming the Bank has not wrongfully disbursed them." Moreover, the November 1987 stipulated agreement on which the judgment is explicitly based does specifically refer to the $29,607 that had been on deposit in Waikiki.

Finally, although the Bank does not raise this as a ground for its motion, we note that the Bank's discharge from further liability in connection with the interpleaded funds (signed by the Court on June 27, 1980) was obviously not intended to discharge the Bank from continuing compliance with the order the Court had signed the day before (June 26) prohibiting the disbursal of the Waikiki funds until further notice.

In the alternative the Bank argues that it is jointly liable with CCCS, and should be indemnified by CCCS for any money it is required to pay to CCCAS. This seems obviously correct. The Court order prohibiting the Bank from disbursing the funds also prohibited CCCS or Rev. Tulafono from withdrawing them. It is undisputed that the funds were received by Rev. Tulafono and used for CCCS expenses. Both parties who violated the order thereby obligated themselves to compensate the party for whose protection the order was made--- that is, the party ultimately held entitled to the funds. As between the two parties who violated the order, the party who received and spent the money must indemnify the party who merely released it. [9ASR2d105]

IV. The CCCS Motion for Relief from Judgment

CCCS has moved for relief from the judgment awarding the Waikiki funds to CCCAS, on the ground that when the parties stipulated to this judgment they did so under a mutual mistake. But there was no mutual mistake. It is true that CCCAS and some representatives of CCCS seem to have assumed that Rev. Tulafono had not violated the Court's order. Rev. Tulafono was an officer of CCCS, its chief agent in connection with the safekeeping and disposition of the Waikiki funds, and a participant in the negotiations leading up to the stipulation. An institutional party is chargeable with the knowledge (and responsible for the actions) of the agents who conduct the transactions that become the subject of litigation. See Development Bank v. Ilalio, 5 A.S.R.2d 110, 124 (1987). CCCAS is the only party who can claim the benefit of a mistake with regard to facts within the sole knowledge of CCCS and its officers, and CCCAS does not wish to disturb the judgment.

CCCS also argues that it agreed to the November 1987 stipulation under a unilateral mistake, not understanding that the stipulation would entitle CCCAS to the Waikiki funds. The only evidence for this is (1) an affidavit from Rev. Tulafono, saying that he had always regarded the Waikiki funds (contrary to the clear language of the 1980 order) as outside the scope of this litigation; and (2) an affidavit from the current General Secretary of CCCS stating that "my predecessor reviewed [the November 1987 stipulation] together with members of the Committee that agreement and approved its execution by then counsel Aitofele Sunia," but that "my predecessor was not fully aware of all previous agreements between CCCS and CCCAS when the stipulated agreement was approved."

CCCS submits neither an affidavit from the General Secretary who actually conducted the negotiations, and whose awareness CCCS wishes to put at issue, nor an explanation of why it is unable to present such an affidavit. Counsel for CCCAS, on the other hand, submits an affidavit that he specifically apprised the then General Secretary that the Waikiki funds were subject to the stipulation. Moreover, the language of the stipulation itself clearly and prominently refers to the Waikiki money. [9ASR2d106]

If the wrongful removal of the funds had been discovered prior to the entry of judgment and CCCAS had moved to require CCCS to replace them, it would have been difficult to construct an argument for the denial of the motion. The position of CCCS at present, after agreeing to a stipulated judgment with the advice of counsel, would appear to be weaker rather than stronger than before. Relief from a judgment is an equitable remedy, and it would be grossly inequitable to allow CCCS such relief (to the corresponding detriment of an innocent opposing party) on the sole ground of its own violation of an unequivocal court order.

Conclusion

The Court finds the failure of the Bank of Hawaii to comply with the Court's orders owing to confusion rather than wilfulness, and therefore declines to find the Bank in contempt. The Bank is, however, obliged by the Court's 1980 and 198/ orders to surrender to CCCAS an amount equal to $29,607.90 plus the interest that would have accrued on a certificate of the type in which the funds were held, and further denial of this obligation would constitute contempt.

The primary obligor, however, is CCCS, which received the benefit of the funds in question. CCCS and the Bank are jointly and severally liable to CCCAS, and CCCS must indemnify the Bank for any amounts it is required to pay CCCAS.

CCCS has not raised the issue of its rights, if any, against Rev. Tulafono, and we express no opinion on this question.

The order to show cause is dismissed. The motion for relief from judgment is denied.

It is so ordered.

*********

American Samoa Gov’t v. Julio,


AMERICAN SAMOA GOVERNMENT, Plaintiff

v.

HAYWARD JULIO, Defendant

High Court of American Samoa
Trial Division

CR No. 90-88

December 29, 1988

__________

There is no constitutional right to be tried as a juvenile in criminal matters; legislature may therefore vest in attorney general the discretion whether to institute ordinary criminal proceedings or juvenile proceedings against a minor fourteen years of age or older, who has allegedly committed a violent crime.

In the absence of statute creating right to certification hearing to determine whether to prosecute minor as a juvenile or an adult, the minor has no due process right to such a hearing.

Territorial statute vesting discretion in attorney general to proceed against certain minors as adults was not constitutionally defective due to alleged inconsistency with general purpose of juvenile justice statute to accord special treatment to minors, since both the general rules of statutory construction and the specific language of another statutory provision indicated that the exception was deliberate and purposeful. A.S.C.A. §§ 45.0103(9)(B)(1), 45.0115(c)(2)(a).

Court will not interfere with the exercise of prosecutorial discretion unless it is shown that such discretion was unconstitutionally vested in the prosecutor or that it has been abused or [9ASR2d129] exercised in an arbitrary, capricious, or discriminatory manner.

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

Counsel: For Plaintiff, Barry I. Rose, Assistant Attorney General
For Defendant, Herbert Evans, Assistant Public Defender

The government has laid an information before the Court accusing the defendant of having committed the crime of assault in the first degree, a Class A felony, in violation of A.S.C.A. § 46.3520(a)(1). The defendant moves to quash the information and dismiss the criminal proceeding against him on the grounds that: he is a minor; and, that he has not been certified by the court to stand trial as an adult in violation of his rights to due process.

Government on the other hand, citing the Juvenile Justice Act of 1980, A.S.C.A. § 45.0115(c)(2)(A), asserts its statutory discretion to prosecute children over the age of fourteen years, who are accused of committing a "crime of violence."

DISCUSSION

We first look to applicable statute. Section 45.0115(c)(1) provides:

When a petition filed in court alleges a child 14 years of age
or older to be a delinquent child by virtue of having committed
an act which would constitute a felony if committed by an adult
and if, after investigation and a hearing, the court finds it would
be contrary to the best interests of the child or of the public to
prosecute the child as a juvenile, it may enter an order certifying
the child to be held for criminal proceedings as an adult.

(Emphasis added). [9ASR2d130]

This enactment plainly leaves it to the "court" to make, in the first instance, the decision whether or not a child should be proceeded against as a juvenile or as an adult. The succeeding subparagraph further requires the court to conduct a hearing.

The statute, however, also provides a number of exceptions to this general requirement. See A.S.C.A. § 45.0115(c)(2). Subparagraph (2)(A) of the enactment provides in pertinent part:

A child may be charged with the commission of a felony....
when the child is: A) alleged to have committed a crime of
violence and is 14 years of age or older.

Thus the statute also attempts unequivocally to permit prosecutorial discretion ---to charge a child 14 years of age or older ---in certain contexts, including the situation where a crime of a violent nature is alleged.

Defendant's Due Process Argument

The defense concedes that there is no underlying substantive constitutional or federal right to be tried as a juvenile in criminal matters. (1) Rather, we find on the cases that where a right arises to be treated as a minor (and hence to a certification hearing), it invariably arises through statute. In terms of the territorial statute, we find an exception to the general requirement for certification proceedings in the context of criminal actions alleging the commission of "violent crimes and in connection therewith, [9ASR2d131] the Fono has clearly given to the Attorney General the appropriate discretion whether to proceed under the criminal code or the Juvenile Act.

The separation of powers doctrine prevents the courts, in the normal course, from interference with such delegated discretion unless of course the discretion is abused or indeed the delegation is constitutionally improper. Having reviewed the provisions of the local statute and evaluated the weight of authority, this Court is persuaded not to depart from what it perceives as the normal course. See United States v. Bland, 472 F.2d 1329 (D.C. Cir. 1972), cert. denied 412 U.S. 909 (1973); Cox v. United States, 473 F.2nd 334 (4th Cir. ), cert. denied 414 U.S. 869 (1973); United States v. Quinones, 516 F.2d 1309 (1st Cir.), cert. denied 423 U.S. 852 (1975).

The defense referred us to a number of cases, including the Supreme Court's decision in Kent v. United States, 383 U.S. 541 (1966). We find nothing in these cases to suggest that a person, by reason of his or her minority, has an independent or absolute right to certification proceedings in all criminally related matters. Nor do we find any suggestion requiring the court's involvement in all cases. Rather, these cases were concerned with "statutorily" created juvenile rights and benefits necessitating judicial supervision in one manner or another. (2) Kent, for example, dealt with a District [9ASR2d132] of Columbia statute which conferred in the District' s Juvenile Court, "exclusive" jurisdiction over minors. The enactment further provided that where the minor is accused of committing a felony the Juvenile Court may waive its "exclusive" jurisdiction and authorize the prosecution of such minor before the District Court. The Court there viewed the statutory scheme of things as entitling the minor "to certain procedures and benefits as a consequence of his.... right to the 'exclusive' jurisdiction of the Juvenile Court." 383 U.S. at 557. In that a decision to waive jurisdiction by the Juvenile Court, in favor of prosecution before the District Court, could potentially mean to the minor the difference between five years confinement and the death sentence, the Court held that as a condition of valid waiver order, the minor was entitled to a hearing and access by his counsel to those social reports which a Juvenile Court might consider. Id. The Court concluded that "this result is required by the statute read in the context of constitutional principles relating to due process and the assistance of counsel." Id.

It may thus be seen that Kent was involved with specific juvenile rights statutorily created and which attracted the requirements of procedural due process as evident from the legislative scheme of the District's juvenile code, However, there are no comparable rights contained in the enactment before us as would attract procedural due process. There are no certification statutory hearing rights when violent crimes are alleged and in those cases the Attorney General, and not the courts, has the sole say.

Prosecutorial Discretion and Due Process

The difference between Kent and the matter before us seems to be the difference between the Fono's vesting in the Attorney General, as opposed to the courts, the discretion whether a minor should be held to juvenile or criminal proceedings. The case of Russell v. Parratt, 543 F.2d 1214 (8th Cir. 1976), illustrates.

This case involved the consideration of a Nebraska statute which apparently gave the County [9ASR2d133] Attorney "unbridled" discretion to proceed against a minor as a juvenile or an adult. The defendant claimed he was denied due process because the County Attorney was permitted to make this decision alone without any standards and without a hearing. The 8th Circuit followed Cox, Bland, and Quinones, and held that the exercise of prosecutorial discretion did not require a due process hearing. Id. at 1216. The court also distinguished Kent noting that Kent involved the decision of the juvenile court to waive its jurisdiction, and therefore, the juvenile was entitled to a hearing on the waiver, whereas, the case at issue did not involve judicial proceedings, but rather, the "traditional exercise of discretion within the executive branch." Id.

Similarly in Woodard v. Wainwright, 556 F.2d 781 (5th Cir, 1977), cert. denied 434 U.S. 1088 (1978), petitioners challenged the validity of a Florida statute which provided "'[a] child of any age charged with a violation of Florida law punishable by death or life imprisonment' shall be tried as an adult '[if] an indictment on such charge is returned by the grand jury. ' " Id. at 783. It was within the prosecutor's discretion to seek such an indictment.

The petitioners, relying on Kent, argued that they were entitled to a due process hearing before jurisdiction of the juvenile court could be waived.

The 5th Circuit, like the courts of the other circuits, distinguished Kent. "Kent concerned a statutory duty by a juvenile court judge to investigate and hear matters relevant to the waiver of juvenile discretion, whereas this case concerns the prosecutor's discretionary act to present his case to a grand jury." Id. at 784.

Further, the court upheld the statute. It reasoned that "treatment as a juvenile is not an inherent right but one granted by the state legislature, therefore the legislature may restrict or qualify that right as it sees fit, as long as no arbitrary or discriminatory classification is involved." Id. at 785. The court, quoting Bland, supra, noted that the legislative classification created by the statute was "'entitled to a strong presumption of validity [which] may be "set aside only if no ground can be conceived to justify [it]."'" Id. It then rejected petitioner's [9ASR2d134] argument that once the right to juvenile treatment is given by the legislature it cannot be taken away without due process. The court stated that petitioners had never really been given the right to juvenile treatment as the statute contained express limitations on the jurisdiction of the juvenile court. (3) Finally, the court also rejected the petitioner's argument that the statute was an "invalid and overbroad delegation of legislative authority to the prosecutor." Id. at 786. It said "[i]n light of our previous holding that juvenile treatment is a creation of state legislatures, we find no federal constitutional infirmity in permitting state prosecutors to employ their discretion to seek indictments against those juveniles who have allegedly committed serious crimes." Id.

Conclusion

As noted above, the enactment in question is a deliberate exception to the general requirement that before a minor may be prosecuted as an adult a certification decision must be made by the courts. This exception clearly permits prosecutorial discretion with the executive in cases alleging violent crimes. As the cases point out, the fact that this discretion is considerable does not result in the denial of due process. One case spoke of this prosecutorial discretion as involving [9ASR2d135]
"no more than that which is inherent in our system of criminal justice. Its origin is found in the common law of England." Johnson v. State, 314 So.2d 573, 577 (Fla. 1975).

Further, at common law a child over the age of 14 years was presumptively capable of committing a crime and the prosecution of such a person, as in every other case, was the subject of prosecutorial discretion. The amenability of minors to the criminal process has now been changed by the various juvenile codes legislatively adopted. What is in the power of the legislature to grant is also in the power of the legislature to withhold or limit as long as no arbitrary or discriminatory classification is involved. Woodard v. Wainwright, supra. Accordingly the reservation of prosecutorial discretion in whether or not to indict a minor accused of committing a certain range of offenses is historically well founded in our legal system.

Finally, the defense went to great lengths to attempt to show the desirability of eliminating prosecutorial discretion in favor of judicial certification proceedings. We simply dismiss these contentions as normative argument. The policy reasons behind certification proceedings versus prosecutorial discretion are matters within the legislative realm. The cite to Government v. Fuaalii. 4 A.S.R. 828 (1975) is misplaced reliance. The reasoning in Fuaalii, concerned legislative policy decisions which have been repealed by the statute before us and accordingly the case inapposite.

We conclude on the foregoing that the criminal information laid before the Court was the exercise of prosecutorial discretion vested in the Attorney General by the provisions of A.S.C.A. § 45.0115(c)(2)(A). There has been no showing whatsoever of abuse or that the exercise of this discretion has been arbitrary, capricious, or discriminatory.

Denied. It is so ordered.

*********

1. The Florida Supreme Court in Johnson v. State, 314 So. 2d 573 (Fla. 1975), rejected an argument to the effect that due process is denied by a statute which created an exception to the jurisdiction of the juvenile court over a minor charged with the commission of a crime punishable by death or life imprisonment. The court explained that a child who is accordingly being prosecuted as an adult is not deprived of due process because he has in effect the same substantive and procedural rights as any other person charged with a criminal offense. Id. at 577.

2. The territorial Juvenile Justice Act of 1980 does not create a new juvenile court. The reference to "Court" in the enactment means Trial Division of the High Court. See § 45.0103(8). This same division which has jurisdiction over the prosecution of "violent crimes" also undertakes the certification hearings required by section 45.0115(c)(1). The Act's provision for judicial involvement in certification proceedings is somewhat different than the statutory schemes adopted by many of the states. These create separate juvenile courts with "exclusive" jurisdiction over minors. Such schemes authorize the juvenile court to waive its jurisdiction over minors accused of certain crimes in favor of the criminal courts. However, such waiver proceedings must afford procedural due process to the minor affected. See discussion of Kent, infra.

3. The defense raised a similar argument at hearing contending that A.S.C.A. section 45.0115(c)(2)(A) was constitutionally defective in that it was inconsistent with the overall purposes of the Juvenile Justice Act, namely, to accord the special treatment of minors. The innuendo is that the inclusion of this provision by the legislature was oversight.
Quite apart from the Court's difficulties in accepting such an interpretation because of the familiar rules pertaining to statutory construction, it is clear from the Act that the Fono's inclusion of the enactment was, to the contrary, quite deliberate and purposive. Section 45.0103(9)(B)(I) excludes from the definition of "delinquent child," "children 14 years of age or older who allegedly commit crimes of violence." The exception is recurring and not mistaken.

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