12ASR2d

12ASR2d

Members of the Taufi Family v. Moeaveave,


MEMBERS OF THE TAUFI FAMILY, Petitioners

v.

TAUFI MOEAVEAVE, Respondent

High Court of American Samoa
Land and Titles Division

MT No. 4-89

July 13,1989

__________

Statute requiring attempted resolution of "controversies over matai titles" before Secretary of Samoan Affairs before judicial action may be commenced applies not only to cases of matai appointment put also to petition for matai removal. A.S.C.A. § 43.0102(a).

Copy of petition for matai removal without accompanying certificate of irreconcilable dispute from Secretary of Samoan Affairs must be referred to Secretary for resolution. Land & Titles Rule 4(a);

Before KRUSE, Chief Justice.

Counsel: For Petitioners, A.P. Lutali
For Respondent, Asaua Fuimaono

On Motion to Set for Trial:

This is an action to remove a matai and petitioners have moved to set the matter for trial. After examination of the file, the Court notes that the matter has not been referred to the Office of Samoan Affairs for the preliminary administrative hearings before the Secretary of Samoan affairs as provided by A.S.C.A, § 43.0302. Counsel for petitioners submits that the enactment's requirements for administrative action apply only to cases of matai appointments and not to matai removal.

We disagree. A.S.C.A. § 43.0302(a) provides in part:

Before any action relating to controversies over... matai titles
may be commenced in the land and titles [12ASR2d7] division,
each party shall file with his complaint a certificate signed and
attested by the Secretary of Samoan Affairs or his deputy, in
which the Secretary or his deputy affirms and states:

(1) that on at least 2 occasions, the parties have appeared
personally before him and 2 persons designated by him, without
an attorney or counsel, and that an attempt was made to resolve
the controversy.

The enactment talks generally in terms of "controversies over matai titles"; it does not attempt to discriminate, in terms of its application, between actions to appoint a matai and actions to remove a matai. At the same time, we see no apparent reason why the enactment's underlying policy of preliminary extra-judicial resolution should not be equally applicable to matai removal matters as well.

Further, Rule, 2(b) of the Land and Titles Rules provides, inter alia that matai removal actions are commenced by the filing of the appropriate pleading with the land and titles division of the High Court. That appropriate pleading is a petition. Land and Titles Rule 4(a). This rule further provides that:

[i]f the. ..petition [to remove a matai] is not accompanied by a
certificate of irreconcilable dispute from the Secretary of Samoan
Affairs, the clerk of court shall receive, but not file, the... petition
and shall assign a case number, A copy of the ...petition shall be
transmitted forthwith by the clerk of court to the Secretary of
Samoan Affairs for resolution as provided by statute.

Id. (emphasis added).

On the foregoing, the following Order will enter:

1. Motion to seta trial date is hereby denied.

2. The Clerk shall forthwith forward a copy of the petition to the Secretary of Samoan Affairs as provided by Land and Titles Rule 4(a) if he has not already done so.

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Maua v. Mulipola,


MOEGALUPE MAUA, Plaintiff

v.

SAM MULIPOLA, Defendant

High Court of American Samoa
Trial Division

CA No. 101-88

September 15, 1989

__________

Where the parties had entered into an agreement for the construction of a house whereby the carpenter would be compensated for his services in accordance with Samoan custom[12ASR2d106] rather than by calculation of nominal charges for time and expenses, but the house owner did not deal in good faith with the carpenter and then unilaterally terminated the agreement without cause after the carpenter had significantly performed, the carpenter was entitled to compensation or the reasonable value of his labor.

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

Counsel: For Plaintiff, Charles V. Ala'ilima
For Defendant, Gata E. Gurr

Facts

Plaintiff is a carpenter by trade, and in October 1987 he was contacted by defendant, Sam Mulipola, who requested his services in connection with a construction project of his which other carpenters had unsatisfactorily commenced and left unfinished. At first, plaintiff was hesitant to handle a project started by someone else; however, after visiting the site with defendant, and at the latter's urging for assistance, plaintiff agreed to do the work. Also at defendant's insistence, plaintiff reluctantly agreed that his service would be compensated in the fa'a Samoa or traditional manner .

Aided by his sons, plaintiff started working for defendant around the last week of October 1987. The extent of the project when plaintiff commenced working consisted of a foundation and some upright concrete columns; however, there were no building plans for plaintiff to work with from the outset. He was told that these were forthcoming and in fact plaintiff was instructed by a draftsman who was supposed to be in the process of preparing such plans.

By December, 1987 the plaintiff had erected reinforced concrete beams and built the roof structure. (The actual roof cover itself was not done as defendant had not acquired the material.) Plaintiff had also poured the foundation, upright columns, and beams to an extension which plaintiff was instructed to add to the existing layout.

Just prior to Christmas, plaintiff had informed defendant that he wanted to visit his family in Western Samoa. Defendant in turn advised that his wife was due to return very shortly from the United States with funds and that plaintiff would be given $1,000 plus foodstuffs for his family's Christmas. By the time plaintiff was ready to leave for Western Samoa there were neither funds nor the returning wife. In the end, a [12ASR2d107] suspicious and dejected plaintiff was given $100 by the defendant with the reassurance that money, as well as the Christmas hamper, would be later sent upon the return of Mrs. Mulipola. Defendant promised that he would send the money and food with one of his sons.

Between plaintiffs departure and Mrs. Mulipola's return, defendant ousted plaintiffs sons from his property. Several subsequent attempts by plaintiff to contact the defendant were met with deliberate evasion.

Plaintiff sues for the reasonable value of services rendered, claiming 40 days of heavy labor involving 11 hours each day. His calculation of normal charges for such time and work amounted to $7,920.00. He further added the sum of $2,300.00 which represents an away from home per diem "allowance" plaintiff claims as a usual billing to clients.

Defendant counterclaims incompetence and bad workmanship on the part of plaintiff. He seeks damages for the cost of material wasted by reason of his having to undertake a number of major changes to the work done by plaintiff, as required of him by the building authorities. Defendant seeks damages in the amount of $20,603.00.

Conclusions

We conclude that the parties entered into a service agreement whereby the plaintiff would be compensated for his services in accordance with Samoan custom. The said agreement, however, was unilaterally terminated by defendant after plaintiff had significantly performed thereon. Indeed, we conclude that plaintiff could regard the agreement as repudiated ---given defendants' dismissal of plaintiff s sons and his continuing failure to make good on the promised $1,000 and foodstuffs ---after defendant's deliberate evasion of plaintiff in the latter's various attempts to contact him.

Additionally, we question defendant's good faith in his dealings with plaintiff. He evidently secured plaintiff's agreement to do the work even though he did not have the present means to compensate plaintiff. His insistence on the traditional alternative for compensation was nothing more that a ruse to induce plaintiff to work on credit. It was very clear , after examination by the Associate Judges, that defendant had no idea what was involved with compensating an artisan according to fa 'a Samoa. He not only overlooked certain mundane customary preliminaries relating [12ASR2d108] to the formal engagement of a builder , but he also left plaintiff to largely fend for himself and his workers in terms of daily necessities.

Furthermore, we conclude that defendant's termination of the agreement was entirely without cause. His claims of structural faults in the project had nothing to do with workmanship, but all to do with the fact that there were neither plans nor even a clear concept of what was intended by the project. It was very evident that the building inspector who testified on behalf of defendant was talking about ;m entirely different design or concept than that .which plaintiff was instructed to pursue without the benefit of approved plans.

Plaintiff is entitled to the reasonable value of his labor, which we fix at the amount of $8,000.00. Defendant's counterclaim is dismissed. Judgment will enter accordingly.

It is so Ordered.

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Rosendahl Corp.; Patau v.


FUIFATU SEFO PATAU, Plaintiff

v.

ROSENDAHL-CORPORATION, PTE CORPORATION,
UNIVERSITY INDUSTRIES, Inc., and RALSTON
PURINA COMPANY, Defendants

High Court of American Samoa
Trial Division

CA No. 29-89

August 28, 1989

__________

Defendant's motion to dismiss for 1ack of in personam jurisdiction would be continued in order to allow discovery on the issues of fact pertaining to jurisdiction, in light of the early[12ASR2d67] posture of the case and of the contentions of plaintiff that he had not had sufficient time to meet the allegations set fo11h in defendant's affidavits denying jurisdiction and that defendant would not be unduly prejudiced by the resulting delay. T.C.R.C.P. 12(b)(2).

Before KRUSE, Chief Justice, MATA'UTIA, Associate Judge, and AFUOLA, Associate Judge.

Counsel: For Plaintiffs, William H, Reardon and Donald F. Hildre
For Defendant Ralston Purina Co., Robert A. Dennison III
For Defendant University Industries, Roy J.D. Hall, Jr.

University Industries, Inc., moves, pursuant to Trial Court Rules of Civil Procedure, Rule 12(b)(2), to dismiss plaintiff's complaint against it for lack of in personam jurisdiction. Plaintiff Patau argues that he has not had sufficient time to mt the allegations set forth in defendant's supporting affidavits and thus requests permission to undertake depositions and other discovery on the issues of fact raised by the motion. Plaintiff further contends that defendant will not be unduly prejudiced by the resulting delay.

Given the early posture of this case we hold that plaintiff should be given the opportunity to conduct discovery as to the jurisdictional facts. Following discovery, plaintiff shall be required at an evidentiary hearing to prove jurisdiction by the preponderance of the evidence.

Accordingly, defendant's motion to dismiss is continued and either party has leave to conduct discovery as to the jurisdictional facts.

It is so Ordered.

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R.P. Porter Int’l, Inc. v. Pacific Int’l Engineering, Inc.,


R.P. PORTER INTERNATIONAL, Inc., Plaintiff

v.

PACIFIC INTERNATIONAL ENGINEERING, Ltd., Defendant

High Court of American Samoa
Trial Division

CA No. 117-88

August 24, 1989

__________

In order to recover compensation for "standby time" for the use of defendant's own construction equipment as an element of damages arising from plaintiff's breach of contract, defendant would have to prove not only that the breach made it necessary for him to use his own equipment, but that the plaintiff somehow made it necessary for the equipment to wait at the construction site while it was not actually being used.

Even if defendant had proved that plaintiffs breach of construction contract made it necessary to leave machinery at the construction site for long periods of time, court would not have exceeded its discretion in insisting that defendant supply the exact details of the profitable uses from which the equipment was thereby diverted, or in inferring from defendant's failure to supply such details that there was no such profitable use and therefore no monetary loss from the diversion.

Case in which ap appellate court upheld a trial court's assessment of damages on the basis of testimony by a single interested witness does not support the proposition that a trial court is bound to believe the "best available evidence" when this consists solely of the testimony of a witness whom the court has reason to believe is not telling the truth.

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

Counsel: For Plaintiff, Charles V. Ala'ilima
For Defendant, Steven H, Watson

On Motion for Reconsideration:

This case arose from plaintiff s claim that defendant owed $5602 as the unpaid balance on a contract for the sale of crushed rock aggregate, Defendant counterclaimed, alleging damages in the amount [12ASR2d49] of about $40,000 from plaintiffs failure to perform in accordance with the contract. We held that the only elements of either party's claim that had been proved at trial were: (1) an unpaid balance of $2590 on the purchase price owed to plaintiff and (2) damages suffered by defendant in the amount of $1155 on account of plaintiffs failure to load the crushed rock onto defendant's trucks in accordance with a term of the contract. The net amount owing plaintiff was $1435, and judgment was rendered in this amount.

Defendant moves for reconsideration on two grounds. The first ground has to do with our observation that defendant's total payments of $7225 on its account with plaintiff applied not only to the $9240 that had been billed for crushed rock aggregate, but also to $575 for other items supplied to defendant by plaintiff. This finding was in accordance with evidence that was admitted without objection at trial; it also accords with the parties' stipulation with regard to the unpaid balance on the invoices that had been submitted for crushed rock. There was no dispute between the parties about the other items: $575 was billed for them and $575 was paid. The Court's opinion mentioned these other items only because the invoices submitted as evidence included them ---and payments for them - --along with the crushed rock. The reference to them did not result in an unwarranted $575 charge against defendant; on the contrary, it was necessary to avoid giving defendant an unearned $575 credit on the crushed rock bill for payments already credited against other invoices. (At the hearing on this motion the Court explained this to defendant's counsel, who then waived this ground for the motion. )

Defendant's second contention is that the Court should have awarded damages for "standby time" for defendant's dump trucks and loader, said to have resulted from the need to wait at plaintiffs yard for plaintiff to produce aggregate that should have been produced earlier. All the facts necessary to support this contention ---that plaintiff did not produce the crushed rock when it should have been produced in accordance with the parties' understanding, that it was therefore necessary for defendant's trucks and loader to wait at plaintiffs yard, that they were thereby diverted from other profitable work, and the amount by which defendant was damaged by such diversion ---are said to have been proved by the uncontroverted testimony of defendant's owner/operator.

Plaintiff did, however, present testimony to the effect that defendant's loader had been left at plaintiffs yard, for the convenience of defendant, for some weeks or months prior to its use in loading the [12ASR2d50] crushed rock. Plaintiff also presented evidence that its delivery of the crushed rock was in accordance with the schedule contemplated by the parties. Plaintiffs evidence on these points was no better than defendant's, but neither was it any worse: each party relied almost exclusively on the testimony of its owner/operator. As detailed in our original opinion, each of these witnesses made so many extravagant and misleading claims that his unsupported testimony must be regarded as insufficient to meet even the slightest burden of proof. On at least two points necessary to sustain this ground for reconsideration ---that plaintiff kept defendant waiting in violation of the terms of the contract, (1) and that defendant's loader was diverted on account of this breach rather than having been stored there all along ---the defendant had the burden of proof and the evidence was an exact tie. We therefore declined to award any "standby" damages.

Even if defendant had proved that it was necessary to leave the loader and dump trucks at plaintiffs yard for long periods of time on account of plaintiffs failure to have crushed rock ready as promised, we would not have exceeded our discretion in insisting that defendant's principal tell us the exact details of the profitable uses from which the equipment was allegedly diverted ---or in inferring from his failure to supply such details that there was no such profitable use and therefore no monetary loss from the diversion. Defendant cites a case in which an appellate court upheld the trial court's assessment of damages on the basis of testimony by a single interested witness as "the best [evidence] available." Allen v. Gardner, 272 P.2d 99, 104 (1954). The trial court in Allen evidently thought more of the witness in question than we do of this one. The case does not support the proposition that a trial court is bound to believe the "best available evidence" when this consists solely of the testimony of a witness whom the court has reason to believe is not telling the truth.

The motion is therefore denied.

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1. This alleged breach is distinct from the one we did find, viz., plaintiffs failure to supply the crushed rock "free on board" by using its own loading equipment. On account of this breach we awarded defendant its principal's own estimate of what it cost him to load the rock using his own loader. For "standby time" he would have to prove not only that it was necessary to use his own loader, but that plaintiff somehow made it necessary for the loader to wait at plaintiffs yard while it was not actually being used. This was alleged but not proved.

Tufele; Mose v.


ALESENE MOSE, Appellant

v.

TUFELE LI'A, Appellee

High Court of American Samoa
Appellate Division

AP No. 21-88

August 1, 1989

__________

In the context of Samoa in 1911, it would have been inconceivable that the term "and his successors or assignees" in a grant of land from one ranking chief to another was intended to give subject possessory rights to the control of an untitled heir of the grantee.

Appellate court could take judicial notice that appellee had recently assumed the office of district governor

Where trial court, in deciding that a trusteeship devolved upon the appellee in his capacity as a successor in matai title to the original trustee, had failed to consider a plausible argument raised at trial to the effect that the trusteeship should instead have devolved upon the original trustee's successor; in the office of district governor, but the Appellee had recently assumed the office of district governor, the question whether the trusteeship devolved upon the holders of the office of district governor of the matai title was moot in the context of the rase and remand to trial court was inappropriate.

Before REES, Associate Justice, CANBY,* Acting Associate Justice, THOMPSON,** Acting Associate Justice, OLO, Associate Judge, and VAIVAO, Associate Judge.

Counsel: For Appellant, Togiola T.A. Tulafono
For Appellee, Roy J.D. Hall, Jr. [12ASR2d32]

Per Rees, J.:

This is an appeal from the trial court's decision allowing appellee Tufele, as trustee for the people of Manu'a, to evict the appellant from one of several buildings she occupies on a tract of land in the village of Atu'u belonging to the trust. The facts are more fully stated in the opinion of the trial court, Tufele v. Mose, 7 A.S.R.2d 1, 57 (1988).

The principal issue on appeal concerned the trial court's interpretation of language in the deed of conveyance, executed in 1911, by which Mauga Moimoi conveyed the land to Tufele and "his successors or assignees" in trust for the use and benefit of the people of Manu'a. The trial court held that by the term "successors or assignees" grantor Mauga Moimoi intended that the trusteeship should automatically devolve upon each successive holder of the Tufele title.

The trial court considered and rejected an alternative interpretation according to which the trusteeship would be "restricted only to those qualified to take in the late Tufele's personal estate." 7 A.S.R.2d at 163. As the trial court correctly observed, in the context of Samoa in 1911 it would have been "inconceivable... that [the grantees' possessory rights to Atu'u under the document could be subject to the control of an untitled heir of the late Tufele." Id.

The trial court did not, however, consider a far more plausible alternative interpretation of the trust document: that the trusteeship was intended to devolve on the late Tufele's "successors" in his office of District Governor. The record reflects that the Atu'u tract has at various times been administered by Manu'a District Governors who did not hold the Tufele title. We cannot tell from the record whether the trial court failed to address this alternative interpretation because counsel for defendant/appellant Mose did not advance it strongly enough, because the court did not think it worth addressing, or for some other reason. If this question were dispositive of the present case it might be appropriate to remand to the trial court for a finding thereon.

We take judicial notice, however, that appellee Tufele Li'a has recently assumed the office of Manu'a District Governor. The question whether the trusteeship devolves on the District Governors of Manu'a or the holders of the Tufele title is therefore moot in the context of the present case. Tufele Li 'a is the present trustee, either in his capacity as District Governor or in his capacity as Tufele. For the reasons stated by [12ASR2d33] the trial court, the proposed reallocation of the trust resources of which appellant now complains is within the powers of the trustee.

Accordingly, without deciding whether the trusteeship attaches to the office of District Governor or to the title Tufele, we affirm the judgment of the trial court.

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* Honorable William C. Canby, Jr., Judge, United States Court of Appeals for the Ninth Circuit, serving by designation of the Secretary of e Interior.

** Honorable David R. Thompson, Judge, United States Court of Appeals for the Ninth Circuit, serving by designation of the Secretary of the Interior.

Tiapula; Toleafoa v.


AUKUSO TOLEAFOA and
FA'AI'U TOLEAFOA, Appellants

v.

TIAPULA IMO, FOGAFOGA TIAPULA, and
DOES I through X, Appellees

High Court of American Samoa
Appellate Division

AP No. 19-88

August 25, 1989

__________

Appellant who seeks to overturn the trial court's findings of fact on appeal bears the heavy burden of showing that these findings were "clearly erroneous" in light of the record, A.S.C.A. § 43.0801(b).

Where trial court finding that appellant had relinquished possession of house by many years of absence was supported by testimony that appellant lived in another village and rarely visited the village in which the disputed house was located, the finding was not clearly erroneous and appellate court would not disturb it. A.S.C.A. § 43.0801(b).

Relinquishment of possession of Samoan communal land by a member of the communal family causes a reversion of the land back to the matai and family.

Relinquishment of possession of Samoan communal land by a member of the communal family may be either by voluntary surrender or by abandonment by the family member.

While a family member's intentions may not have been to abandon family land so as to cause a reversion to the matai and family, the issue of whether relinquishment has arisen is one of fact. [12ASR2d57]

Family member may not avoid reversion of communal land to the matai and family by having a long-abandoned residence "looked after" by other family members who live elsewhere, or by executing sub-assignments to persons who are not family members.

Where house abandoned by appellant family member and later disassembled by order of the senior matai of the family was a fale constructed ten years earlier at a cost of $600, the land was unattended and overgrown, and one of appellant's own witnesses testified that the clearing of the "crops" on the land might have been done "as part of the ongoing beautification program," the trial court was justified in declining to award compensation to the appellant family member for the value of the house and crops.

Before REES, Associate Justice, CANBY,* Acting Associate Justice, THOMPSON ,** Acting Associate Justice, OLO, Associate Judge, and VAIVAO, Associate Judge.

Counsel: For Appellants, Charles V. Ala'ilima
For Appellees, Gata E. Gurr

Per Rees, J.:

This appeal concerns the power of a sa'o to allocate family land. The trial court held that appellee Tiapula acted within his authority in reassigning a tract of Tiapula land formerly occupied by the appellants, and in ordering the disassembly of a small Samoan-style house on the tract, after appellants had abandoned the house and land. Toleafoa v. Tiapula, 7 A.S.R. 117 (1988).

As happens far too often in the Appellate Division of the High Court, this appeal is primarily a quarrel with the facts as found by the trial court. An appellant who seeks to overturn the trial court's findings of fact on appeal bears the heavy burden of showing that these findings were "clearly erroneous" in light of the record. A.S.C.A. § 43.0801(b). Counsel for appellants in the present case makes no serious attempt to discharge this burden, choosing simply to ignore the trial court's view of the facts rather than to explain in detail why this view was wrong. The legal arguments advanced by counsel are premised on the contention that [12ASR2d58] appellants never did abandon the house and land: that appellant Aukuso Toleafoa lived in the house from 1983 until 1987 except during occasional visits to California. The trial court found, however, that "relinquishment of possession had occurred after the many years of absence" by appellants. 7 A.S.R.2d at 122. This finding was supported by testimony that Aukuso lived in Lauli'i and rarely visited the village of Alao in which the disputed house was located. The finding was not clearly erroneous and we decline to disturb it.

On the facts found by the trial court little is left of appellants' argument. The trial court correctly stated the law:

Relinquishment of possession to land causes a reversion of the
land back to the matai and family. Talagu v. Te'o, 4 A.S.R. 121
(1974). Relinquishment of possession may be either by voluntary
surrender or by abandonment by the family member. Id. at 125.
While a family member's intentions may not have been to abandon
the land, the issue of whether relinquishment has arisen and the
matai has effectively taken over to the exclusion of the family
member is "one of fact. " Id. at 125.

The trial court also correctly rejected appellants' contention that a family member may avoid reversion to the matai and family by having a long-abandoned residence "looked after" by other family members who live elsewhere, or by executing sub-assignments to persons who are not family members.

Appellants urge that even if the sa'o did have the power to evict them, they are entitled to compensation for the value of their house and of crops that were growing on the land. We cannot say that such compensation would never be appropriate. In the present case, however , the house was a fale constructed in 1977 at a cost of $600; the trial court found that the land was "unattended" and "overgrown"; and one of appellants' own witnesses testified that the clearing of the "crops" on the land might have been done "as part of the ongoing beautification program." The trial court was therefore justified in declining to award compensation.

We affirm the judgment of the trial court.

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* Honorable William C. Canby, Jr., Judge, United States Court of Appeals for the Ninth Circuit, serving by designation of the Secretary of the Interior.

** Honorable David R. Thompson, Judge, United States Court of Appeals for the Ninth Circuit, serving by designation of the Secretary of the Interior.

Tedrow v. Manuma,


ANITA TEDROW and DONALD TEDROW, Appellants

v.

TE'O MANUMA for himself and as personal representative of
RYAN MANUMA, Decedent, Appellee

In The Matter of the Special Guardianship of RONALD
HANS TEDROW, ELKI EVELYN TEDROW, CHARLENE ANN
TEDROW, NELLIE TEDROW, and STEVEN TEDROW, Minors

WILLIAM REARDON, Special Guardian, and
DONALD TEDROW, Appellants

High Court of American Samoa
Appellate Division

AP No. 6-88
AP No. 10-88

August 25, 1989

__________

Although real property of a Samoan may not be sold under a writ of court to satisfy a judgment, the proceeds from a voluntary sale of such property are not exempt from execution to satisfy judgment. A.S.C.A. § 43.1528(a).

Purpose of territorial statute providing that real property of Samoan may not be sold under a writ of court to satisfy a judgment is to protect land held by Samoans from being involuntarily alienated, and is not served by exempting from judgment the proceeds of voluntary sales. A.S.C.A. § 43.1528(a).

Analogy between territorial statute prohibiting forced sale of real property owned by a Samoan to satisfy a judgment and statutes in other jurisdictions exempting the proceeds of a homestead sale from execution of judgment is not entirely helpful; the purpose of the homestead exemption is to protect a rather small investment as a minimum means of survival for the debtor, whereas the Samoan land exemption applies to all land owed by a Samoan no matter how extensive the holdings, and once the land is voluntarily sold the policy against alienation is no longer served by protecting the proceeds. A.S.C.A. § 43.1528(a).

Although a transfer of exempt assets generally cannot constitute a fraud upon creditors, trial court properly found that an arrangement including a transfer from a judgment debtor to her children and a subsequent resale by the children was intended to accomplish indirectly that which could not have been accomplished by the judgment debtor directly ---the sale [12ASR2d52] of the property for cash without rendering the proceeds susceptible to levy by the judgment creditor -and that the traction as a whole was fraudulent as to the judgment creditor.

Where a judgment debtor caused her equitable interest in property to be conveyed to her children, who paid no consideration, and the judgment debtor apparently held no other assets to satisfy her debt and had successfully avoided her creditor's attempts at collection, there were sufficient badges of fraud to permit the trial court to find that the entire arrangement was fraudulent as to the judgment creditor.

Appellant who had sufficiently invoked the remedial powers of the court had subjected himself to its jurisdiction so that the trial court's exercise of such jurisdiction did not violate due process.

Non-Samoan who had intentionally permitted his Samoan spouse to be named as the purchaser of property because as a Samoan she was legally eligible to purchase it, could not escape the consequences of her being named s sole purchaser and had no protected legal interest in the property although he had paid the purchase price and built a house on the property.

Trial court correctly imposed a trust in favor of appellant's children, pending the outcome of the appeal, over land sale proceeds the trial court had awarded to appellant where the issue on appeal was whether appellant's spouse had successfully transferred the land to the children before the sale or whether it remained her property in which appellant had an equitable interest.

Before KRUSE, Chief Justice, CANBY,* Acting Associate Justice, THOMPSON,** Acting Associate Justice, and AFUOLA, Associate Judge.

Counsel: For Appellants, William H. Reardon
For Appellees, Asaua Fuiono

Per Canby, J.:

These appeals arise from decisions of the trial court invalidating a transfer of real estate as a fraud upon a judgment creditor, and directing disposition of the proceeds of sale of that real estate. [12ASR2d53]

In 1983, Mrs. Tedrow took by assignment the purchaser's interest in a contract for deed for the land in question. In 1984, appellee Te'o Manuma obtained a judgment of $90,000 against Mrs. Tedrow for the wrongful death of Teo's son. In 1986, the payments for the purchase of the real estate, which had been made by Mr. Tedrow, were completed. Instead of the land being deeded to Mrs. Tedrow as contract purchaser, however, the land was deeded to the Tedrow children. No consideration was paid by the children for the transfer. Mr. and Mrs. Tedrow continued to occupy the land, living in a house that Mr. Tedrow had constructed upon it. Some eleven months after the property was deeded to the children, arrangements were made for its sale. Te'o Manuma then moved to invalidate the transfer as a fraud to evade payment of his judgment debt.

The land was sold by Mr. Reardon, as guardian of the children, with the approval of the trial court, but the court later ruled that the conveyance to the children was fraudulent. The court accordingly held that Te'o Manuma was entitled to the proceeds of sale, but that as a matter of equity Mr. Tedrow, who paid for the land and constructed the house upon it, should be awarded half of the proceeds. [Te'o v. Continental Insurance Co., 6 A.S.R.2d 135 (1987) (Opinion and Order on Motion to Invalidate Deed).] Thus, of the $65,000 sale price, $32,500 was awarded to Te'o Manuma and $32,500 to Mr. Tedrow, but all of the proceeds were ordered to be held in the registry of the court pending appeals. As it turned out, the Tedrows appealed the award of $32,500 to Te'o Manuma, but Te'o Manuma did not appeal the award of $32,500 to Mr. Tedrow.

Mr. Tedrow subsequently moved for release of the $32,500 awarded to him, and asked the court to approve a distribution of it between himself and the children. The court released the $32,500 to Mr. Tedrow, but ordered that the entire amount be held subject to a trust in favor of the children, until the proper disposal of the proceeds was determined on appeal. [In re Special Guardianship of Tedrow, 9 A.S.R.2d 72 (1988).] Mr. Tedrow appeals that order of the court.

In attacking the trial court's ruling that the transfer to the children was fraudulent, the Tedrows' first contend that the land was exempt from execution and consequently could not be the subject of a fraudulent transfer. A.S.C.A. § 43.1528(a) provides that "[n]o real property of a Samoan may be subject to sale under a writ of a court to satisfy any judgment." Thus, if Mrs. Tedrow, who is Samoan, had [12ASR2d54] merely taken title to the land and continued to hold it, Te'o Manuma could never have levied upon it.

The land was not held by Mrs. Tedrow, however, nor was it held for long by her children. It was sold, and the question then arises whether the proceeds of sale were subject to the same immunity from execution that the land enjoyed while it was held by a Samoan debtor. The Tedrows argue that the exemption attaches to the proceeds, analogizing this case to those involving the exemption of homesteads from execution. The analogy is not entirely helpful, however. Many jurisdictions that recognize the homestead exception do not permit it to apply to the proceeds of a voluntary sale of the homestead. See 40 Am. Jur. 2d Homestead § 46. Others protect the proceeds only for a reasonable time, to permit reinvestment in another homestead. Id. Thus the Uniform Homestead Act protects the traceable proceeds of sale only for 8 months. Uniform Homestead Act § 9(a); see 40 Am. Jur. 2d Homestead § 47 (Supp. 1989).

The analogy to homesteads is also deficient for the reasons set forth by the trial court. The purpose of the homestead exemption is to protect a rather small investment in a homestead as a minimum means of survival for the debtor. That policy is served by protecting, at least for a time, the proceeds of sale of a homestead, so that the debtor may be able to obtain shelter. The purpose of A.S.C.A. § 43.1528(a) is to protect land held by Samoans from being alienated, or at least from being alienated involuntarily. The exemption applies to all land owned by a Samoan, no matter how extensive the holdings. Once the land is voluntarily sold, the policy against alienation is no longer served by protecting the proceeds. Nor would the proceeds necessarily represent some minimal stake essential for the debtor's survival. We conclude, therefore, that the trial court was correct in holding that the exemption provided by § 43.1528(a) does not attach to the proceeds after a voluntary sale of the property. If Mrs. Tedrow had taken title to the property herself and then sold it, Te'o Manuma would accordingly be entitled to levy on the proceeds.

Mrs. Tedrow did not sell the land herself, however; she conveyed it to her children, who sold it. The Tedrows contend that, because the property would have been exempt from execution in her hands, its transfer cannot constitute a fraud upon a creditor. There is considerable authority in support of the general proposition that a transfer of exempt assets cannot constitute a fraud upon creditors. See e.g., 37 Am. Jur. 2d Fraudulent Conveyances § 103-104 and cases there cited.[12ASR2d55] We cannot, however, view the transfer of the property in this case apart from its sale shortly thereafter, The trial court found that the transfer and sale was an arrangement intended to accomplish indirectly that which could not have been accomplished by Mrs. Tedrow directly --the sale of the property for cash without rendering the proceeds susceptible to levy by Te'o Manuma. Under these circumstances, we conclude that the trial court was correct in ruling that the transaction as a whole was fraudulent as to Te'o Manuma, the judgment creditor.

The Tedrows next argue that there was no fraudulent intent. They point out that the names of two of the children, with ditto marks, were written on the assignment of the contract of purchase in 1983, before Te'o Manuma obtained his judgment. Nevertheless, the assignment clearly designated Mrs. Tedrow as purchaser, and she became equitable owner of the property upon the assignment. When she subsequently caused her mature interest to be conveyed to her children, the children paid no consideration. Mrs. Tedrow apparently held no other assets to satisfy her judgment debt, and had successfully avoided Te'o Manuma's attempts at collection. There were consequently sufficient badges of fraud to permit the trial court to find, as it did, that the entire arrangement was fraudulent as to her judgment creditor. See 37 Am. Jur. 2d Fraudulent Conveyances § 17.

Mr. Tedrow raises due process objections to the trial court's decision, stating that the court, without obtaining jurisdiction over him, subjected his interest in the marital property to Mrs. Tedrow's debt. We agree with the trial court that Mr. Tedro had sufficiently invoked the remedial powers of the court to subject himself to its jurisdiction. Moreover, Tedrow had intentionally participated in the assignment of the purchaser's interest to Mrs. Tedrow. Like other non-Samoans married to Samoans, Mr. Tedrow apparently permitted Mrs. Tedrow to be named as purchaser because she was legally eligible to purchase the property. Having sought the benefits of his wife's eligibility to hold title, Mr. Tedrow cannot now escape the consequences of her being named as sole purchaser of the property. Mr. Tedrow had no protectable legal interest in the property, although the trial court accorded him equitable protection to the extent of one-half of the proceeds. There has been no violation of due process.

Tedrow's appeal of the trial court's order subjecting his $32,500 to a trust in favor of the children retains little importance, in light of our affirmance of the decision that the transaction was fraudulent. As the trial court indicated, the fraudulent transfer conveyed nothing to the [12ASR2d56] children. Mr. Tedrow is entitled to the entire $32,500 that represents his equitable share. The trial court's order imposing a trust in favor of the children pending appeal was correct when entered and we affirm it, but it necessarily expires by its own terms upon the entry of our decision here.

The decisions of the trial court are AFFIRMED.

*********

*Honorable William C. Canby, Jr., Judge, United States Court of Appeals for the Ninth Circuit, serving by designation of the Secretary of the Interior.

**Honorable David R. Thompson, Judge, United States Court of Appeals for the Ninth Circuit, serving by designation of the Secretary of the Interior.

Taulaga v. Patea


TAULAGA MARESALA MASANIAI, Plaintiff

v.

PATEA SIAFONO, Defendant

High Court of American Samoa
Land and Titles Division

LT No. 14-89

August 25, 1989

__________

Rule of civil procedure empowering court to relieve a party from a final judgment uses word "may" and is subject to the court's sound discretion. T.C.R.C.P. Rule 60(b).

Motions under the first three sections of rule allowing relief from final judgment must be made no more than one year after entry of judgment. T.C.R.C.P. Rule 60(b).

Sections of rule allowing relief from judgment for specific reasons such as mistake or newly discovered evidence on the one hand, and catch-all provision encompassing "any other reason justifying relief" on the other, are mutually exclusive so that resort o the latter may not be had to escape time limits applicable to motions grounded on the former. T.C.R.C.P. Rule 60(b)(1)-(3), 60(b)(6).

Where judgment adjudicating title to land had been final for twenty-three years, discretion would be exercised in favor of finality and an end to the needless protraction of litigation; after twenty-three years of settled expectations the equities were against the reopening of judgment. T.C.R.C.P. Rule 60(b).

Before KRUSE, Chief Justice, MATA'UTIA, Associate Judge, and VAIVAO, Associate Judge.

Counsel: For Plaintiff, Fai'ivae Galea'i
For Defendant, Asaua Fuimaono

This is yet another attempt by plaintiff to revive a land dispute that went to final judgment in Patea v. Taulaga, 4 A.S.R. 739 (1966), hereinafter referred to as the "1966 case." A previous attempt by the same plaintiff to reopen this litigation resulted in summary judgment and award of attorney's fees for defendant Patea. See Taulaga v. Patea, 4 A.S.R.2d 186 (1987), hereinafter referred to as the "1987 case," also [12ASR2d65] a final decision of the Court. Plaintiff continues to challenge the judgment entered in the 1966 Case which awarded certain land, "Laloulu," to the Patea family. Plaintiff invokes at this time Trial Court Rule of Civil Procedure, Rule 60 (which tracks the language of Rule 60 of the Federal Rules of Civil Procedure).

When plaintiff's complaint herein was served by delivery to defendant's home, defendant was in fact off-island. After the usual period for responsive pleading had lapsed, plaintiff moved for default sanctions. However, prior to the hearing day for plaintiff's motion, an answer was filed on behalf of defendant together with a counter-motion for summary judgment and attorney's fees. For reasons given, we grant defendant Patea summary judgment and attorney's fees and at the same time deny plaintiff's motion for default.

Discussion

The circumstances presented here magnify the very policy reasons behind the general objective for judicial finality. The Patea family finds itself today having to again defend its title to the land "Laloulu," which title had been affirmed in the Patea family by the Court some 23 years beforehand.

Plaintiff asserts today in his pleadings that he is entitled to a "retrial" pursuant to Rule 60 because: (1) the Court had made mistakes in both the 1966 case and the 1987 case; and (2) that plaintiff can produce new evidence not presented or available to the Court previously.

Trial Court Rules of Civil Procedure, Rule 60(b) empowers the Court to relieve a party, other than the party in whose favor judgment is rendered, or his legal representative from a final judgment for any of six enumerated reasons. The rule uses the word "may" and thus granting motions under the rule is subject to the Court's sound discretion.

Furthermore, the availability of relief thereunder is not without time limitations. The rule generally requires that motions be made within a reasonable time, and, in the case of motions pursuant to clauses (1)-(3) of the rule, no more than one year after entry of judgment. Thus a motion under one of these first three clauses made beyond the one year period must be denied regardless of the reason shown for delay. Ackermann v. United States, 340 U.S. 193 (1950). Additionally it is settled that clauses (1)-(3) on the one hand, and the catch all provision of clause (6) ---"any other reason justifying relief" ---on the other, are [12ASR2d66] mutually exclusive so that resort to the latter may not be had to escape the time limits applicable to motions grounded on the former. Klapprott v. United States, 335 U.S. 601 (1948), Ackermann v. United States, 340 U.S. at 193.

In the present matter, the pleadings, in terms of the 1966 case, seek relief under Rule 60(b)(1) ---mistake, etc., ---and Rule 60(b)(2) --- newly discovered evidence. Plaintiff's claim to relief is time barred.

Additionally, we exercise our discretion in favor of finality and an end to the needless protraction of litigation. After 23 years of settled expectations the equities are against the reopening of judgment. Our conclusions are necessarily dispositive of any claims to relief with regard to the decision of the 1987 case. Indeed the decision in that case is also res judicata.

Defendant Patea's motion for summary judgment is granted. Defendant is awarded his attorneys fees and costs. A statement of fees and costs shall be submitted for the Court's approval. Plaintiffs motion for default is denied.

It is so Ordered.

*********

Utuutuvanu v. Mataituli,


UTUUTUVANU S. FAATEA, Appellant

v.

MATAITULI S. TAUA, Appellee

High Court of American Samoa
Appellate Division

AP No. 18-88

September 8, 1989

__________

Denial by trial court of appellant's offer to register land, based on court's findings that (1) all or almost all members of the appellee's family were connected to the appellant's family [12ASR2d89] and vice versa; (2) the matai title held by appellee was recognized in the village as a title in its own right; and (3) that the land offered for registration was in fact occupied by the appellee and by family members who rendered service to him rather than to appellant, did not implicitly suggest that appellant's matai title was a lesser matai title of appellee's family, but concluded only that appellant had not established his claim to the land.

Argument that trial court had incorrectly referred to disputed land by appellee's nam1e for it, rather than by the different name used by appellant, would not advance the merits of appellant's case where appellee prevailed on the basis of competent evidence quite unrelated to the name of the land.

It is not within the province of the appellate court to re-weigh the evidence and interfere with a decision based on the lower court's choice of one version of the facts over another; findings of facts may not be set aside by the appellate court unless clearly erroneous. A.S.C.A. § 43.0801(b).

Credibility of witnesses is uniquely the prerogative of the trial court.

Before KRUSE, Chief Justice, CANBY,* Acting Associate Justice, THOMPSON,** Acting Associate Justice, and VAIVAO, Associate Judge.

Counsel: For Appellant, Tautai A.F. Faalevao
For Appellee, Gata E. Gurr

Per Kruse, C.J.:

Utuutuvanu attempted to register title to a certain tract of land located in the village of Amanave. Mataituli objected on his family's behalf and the matter was referred to the Land and Titles Division. The record below reflects that both parties gave their respective, and contradictory, versions of family history and tradition. This essentially amounted to each party claiming that the other was his lesser matai and dependent on him for land rights. The trial court, while noting both versions of family history and tradition to be "in and of themselves, equally credible and coherent," Mataituli v. Utuutuvanu, 7 A.S.R.2d 134, 135 (1988), found that all or almost all members of the Mataituli family were also connected to the Utuutuvanu title and vice versa; that [12ASR2d90] the matai title "Mataituli" was recognized in the village as a title in its own right; and, that the land offered for registration by Utuutuvanu was ".. in fact occupied by the Mataituli titleholder together with those family members who rendered tautua (traditional service) to Mataituli rather than to Utuutuvanu. The Court upheld Mataituli's objection to Utuutuvanu's claims to ownership and hence denied the latter's application to register title to the land.

Appellant's first ground on appeal is that the ruling below implicitly suggested that the Utuutuvanu title is a lesser matai title of the Mataituli family. Appellant takes the position that such a conclusion: is inconsistent with history and tradition and therefore erroneous.

Appellant is mistaken about the extent of the holding below. The trial court concluded ---regardless of who might be the greater or lesser matai ---that Utuutuvanu had simply not established his claim to the land.

Secondly, appellant takes exception to the trial court's reference to the disputed land as "Faaea." Appellant makes the point that it was Utuutuvanu who referred to the land as "Faaea" while Mataituli referred to it as "Niumalama." We see nothing in this argument that would advance the merits of appellant's case one way or the other. Appellee prevailed on the basis of competent evidence quite unrelated to the question of whether the land is more correctly labeled "Niumalama" rather than "Faaea."

Finally, appellant urges that hi version of the facts is "more believable. " It is not within the province of the appellate court to re-weigh the evidence and interfere with a decision based on the lower court's choice of one version of the facts over another. Findings of fact may not be set aside by the Appellate Division unless clearly erroneous. A.S.C.A. § 43.0801(b). Additionally, the credibility of witnesses is uniquely the prerogative of the trial court. National Pacific Insurance v. Oto, 3 A.S.R.2d 94 (1986).

We affirm.

*********

* Honorable William C. Canby, Jr., Judge, United States Court of Appeal for the Ninth Circuit, serving by designation of the Secretary of the Interior.

**Honorable David R. Thompson, Judge, United States Court of Appeals for the Ninth Circuit, serving by designation of the Secretary of the Interior.

Leupule; Pu`u v.


NU'UELUA S. PU'U, Appellant

v.

SILIPA LEUPULE and CONTINENTAL
INSURANCE CO., Appellees

High Court of American Samoa
Appellate Division

AP No. 23-88

August 25, 1989

__________

Statute requiring insurance carrier to notify the director of administrative services of the "cancellation" of a policy did not require such notice when the policy expired because the term of coverage ran out and the policy was not renewed. A.S.C.A. § 22.2013.

"Cancellation" as used in insurance law usually refers to termination of a policy prior to the expiration of the policy period, while "termination" refers to the expiration of a policy by lapse of the policy period. A.S.C.A. § 22.2013.

Before REES, Associate Justice, CANBY,* Acting Associate Justice, THOMPSON,** Acting Associate Justice, OLO, Associate Judge, and VAIVAO, Associate Judge.

Counsel: For Appellant, Charles V. Ala'ilima
For Appellee, Roy J.D. Hall, Jr.

Per Thompson, J.:

Nu'uelea S. Po'u sustained damages as a result of the negligent operation of a motor vehicle by Silipa Leupule. Po 'u sued Leupule and Continental Insurance Company. Continental was sued pursuant to the [12ASR2d60] provisions of the compulsory third-party liability automobile statute, A.S.C.A. § 22.2001 et seq. Continental had issued a third-party liability policy covering Leupule and the vehicle involved in the accident. The policy was for the period from March 4, 1986 to September 30, 1986. The accident occurred March 3, 1987. Pu'u alleged that even though the term of the policy had expired, and the policy had not been renewed, the policy nonetheless remained in full force and effect because Continental had not given notice of the policy's expiration pursuant to A.S.C.A. § 22.2013. This section provides:

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

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

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

A.S.C.A. § 22.2013.

The trial division granted summary judgment in favor of Continental. [Pu'u v. Leupule, 8 A.S.R.2d 68 (1988).] Pu'u appeals. We affirm.

Section 22.2013 does not require notice of the "expiration" of a policy. This section only requires 10 days advance notice in the event of "cancellation" of a policy. In the present case, the policy expired because the term of coverage ran out and the policy was not renewed. The policy was not "cancelled." It simply "expired." [12ASR2d61]

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

There is no legislative history to suggest that the Fono intended to alter this generally understood principle of insurance law when it enacted A.S.C.A. § 22.2013. Had the Fono intended to require insurance companies to give notice of a policy's expiration as well as its cancellation it quite easily could have done so. It did not. Moreover, as the lower court noted in its opinion, the annual licensing requirement for a motor vehicle may not be met unless the vehicle owner provides certification of insurance. See § 22.1002(3). This statute provides a common commencement and expiration date for both license and insurance, It thus assures that at the time a license is issued a vehicle will be covered by a policy of insurance and that the policy will remain in existence during the term of the license; unless, of course, the policy should be "cancelled," in which event § 22.2013(a) requires 10 days advance notice of cancellation; If the policy is not cancelled, then upon expiration of the license period a renewed license for the vehicle can be obtained, but only if the expired insurance policy is also renewed, or a new policy is obtained. Section 22.002 then requires that certification of insurance coverage consistent with the requirements of §§ 22.1001 et. seq. be made to the director of administrative services as a condition of obtaining the renewed registration. Enforcement of these licensing/insurance requirements is effectuated by § 22.1003, which provides that license tags must be placed visibly on the front and rear of all vehicles. This enables law enforcement personnel to detect an expired license, and to discover any lack of insurance coverage. These statutes effectively implement the legislative scheme of compulsory motor vehicle liability insurance.

We hold that A.S.C.A. § 22.2013 does not require an insurance carrier to give notice to the director of administrative services when motor vehicle liability policy lapses due to the expiration of its term.

The trial court's grant of summary judgment in favor of Continental is AFFIRMED .

********

* Honorable William C. Canby, Jr., Judge, United States Court of Appeals for the Ninth Circuit, serving by designation of the Secretary of the Interior .

**Honorable David R. Thompson, Judge, United States Court of Appeals for the Ninth Circuit, serving by designation of the Secretary of the Interior.

Leota v. Sese,


MISI PELELEOTA and
TAGIILIMA LEOTA, Appellants

v.

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

High Court of American Samoa
Appellate Division

AP No. 1-89

July 28, 1989

__________

Recorded deed of sale made purchasers at least the equitable owners of the property, so that seller no longer had any right to encumber the property by establishing an easement over it in favor of purchasers of another tract.

Contention by litigants that the land they purchased had belonged not to the seller but to his communal family, advanced for the purpose of defeating an easement of necessity in favor of an adjoining tract on the ground that there was no unity of title between the true tracts, would instead have the effect of divesting the litigants of any property rights at all in the disputed tract.

Contention raised for the first time in oral argument on appeal, which was inconsistent with the contentions made by appellants at trial and in their brief on appeal, need not and should not be addressed by the appellate court.

That one of two tracts sold by grantor was registered in his name, whereas other tract was not so registered, did not mean that grantor had no title in the unregistered tract, and did not preclude easement of necessity over one tract in favor of the other .

Jurisdictional requirement that plaintiff must "file with his complaint a certificate" from office of territorial official, certifying that the parties have met twice and that the meetings did not result in a resolution of the dispute, was met where such a certificate was filed, notwithstanding evidence that an earlier letter by the same official tended to negative the existence of an irreconcilable dispute. A.S.C.A. § 43.0302.

Letter from territorial official charged with mediating land disputes, stating the outline of a proposal by one of the parties but not even hinting that the other parties had ever agreed to the proposal, did not negate the existence of an irreconcilable dispute among the parties. A.S.C.A. § 43.0302.

Statute requiring mediation of disputes over communal land did not apply to dispute over land which trial court concluded, consistently with the record before it, to be individually owned. A.S.C.A. § 43.0802. [12ASR2d19]

Before REES, Associate Justice, CANBY,* Acting Associate Justice, THOMPSON ,** Acting Associate Justice, OLO, Associate Judge, and VAIVAO, Associate Judge.

Counsel: For Appellants, Togiola T.A. Tulafono
For Appellees, Asaua Fuimaono

Per REES, J.:

This dispute arose when the late Aleki Noa subdivided a tract of land near Ili'ili and sold parcels to various people. Some of these purchasers, including appellants Sese and Schuster, were "landlocked"; that is, they had no frontage on a road and therefore could not enter or leave their property without passing overland belonging to someone else.

The trial court found that Noa had pointed out certain route of access to appellees Schuster and Sese when he sold them their parcels in 1985 and 1986 respectively. In 1987, however, Noa sold the area containing this access way to Mr. and Mrs. Leota, the present appellants. When appellant Misi Pele Leota point out to Noa that the tract Leota was buying was apparently used by the Schusters for access to their property, Noa said he would provide an alternate route over the land that had already been sold to the Seses.

The Leotas went ahead and purchased the property containing the existing access route; later they built a wall blocking this route. The wall required the Seses to use a different route of access to their property, and deprived the Schusters of any access whatever to their property. The trial court held that the Leotas had not violated the rights of the Seses by blocking the established access route as they had done, since the Seses were left with an adequate although inferior route encroaching only slightly on the Leota tract. The court also held, however, that the Schusters had an easement of necessity over the established route of access traversing the Leota tract. Sese v. Leota, 9 A.S.R.2d 25, motion for new trial den., 9 A.S.R.2d 136 (1988). [12ASR2d20]

Appellants urge that the Court should have located the Schusters' easement of necessity not over appellants' property but over the Sese tract. They contend, in the first place, that this route was consistent with the intentions of the grantor, Aleki Noa. The evidence does establish that on two occasions Noa manifested an intention to provide the Schusters with a new route of access over the Sese tract. These two manifestations, however ---in 1987 when Noa was selling the Leotas their land and later in 1987 at or after an attempted mediation at the Office of Samoan Affairs ---both happened after the signing and recordation of a deed of sale to the Seses. By this instrument the Seses became at lt the equitable owners of the property; by 1987, therefore, Noa no1onger had any right to encumber the property by establishing an easement over it.

Appellants further contend that the Schusters can have no easement of necessity over their property because there was no unity of title between their tract and the Schuster tract. This contention is based on the fact that Aleki Noa had registered as his individual property a nine-acre parcel, including the parcels that were later sold to the Schusters and the Seses but not that which was still later sold to the Leotas. Appellants now suggest that the land they bought from Aleki was not his individual land at all but was the communal land of the Noa family.

The problem with this contention is that it would have the effect of divesting appellants of any property rights at all in the disputed tract. If Aleki was not the owner of the land when he sold it to the Leotas in 1987, then they did not become its owners and did not acquire a right to interfere with its pre-existing use by the Schusters as a means of access to their property. A contention made by counsel for appellants at oral argument, that the Leotas might have become owners of the tract not by buying it from Noa in 1987 but by bulldozing it at some prior time, is raised for the first time on appeal and is starkly inconsistent with the contentions made by appellants at trial and in their brief on appeal; we therefore need not and should not address this possibility. As the trial court correctly observed,

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....It would
be [12ASR2d21] needless... (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.

9 A.S.R. at 32-33. On the present record the trial court was correct to conclude that the Leotas had acquired only such property rights as Aleki Noa had the power to convey to them in 1987. Those rights were subject to an easement in favor of the Schusters. If some other person should prove in some other case that he and not Aleki Noa was the true owner of the tract sold to the Leotas, it might follow that the Schusters' easement must be over the Sese tract or perhaps elsewhere. Until and unless this should happen, the easement is over the Leota property.

Finally, appellants urge that the trial court never had jurisdiction over the case. They contend that A.S.C.A. § 43.0302 deprives the Court of jurisdiction unless there is an "irreconcilable dispute," and that a letter dated August 28, 1987, from Puleleiite M.F. Tufele of the Office of Samoan Affairs negatives the existence of such a dispute. This contention is wrong for at least three reasons:

First, appellants misread A.S.C.A. § 43.0302. The statute requires only that in cases involving communal land or matai titles, the plaintiff must "file with his complaint a certificate" from the Office of Samoan Affairs certifying that the parties have met twice at that office and that the meetings did not result in a resolution of the dispute. Plaintiffs in this case, the present appellees, did file such a certificate. LT No.5-88, Exhibit "D" to Complaint. The certificate was dated February 3, 1988, d signed by the very Puleleiite on whose earlier letter appellants now rely as evidence that there was no dispute. The record therefore reflects that the jurisdictional requirement was met.

Second, even if it mattered whether the 1987 letter from Puleleiite negated the existence of an irreconcilable dispute, we would conclude that it did not. The letter merely states the outline of a proposal by Aleki Noa to resolve the dispute by establishing a route of access over the Seses' land. It does not even hint that the Seses or the Schusters had ever agreed to this proposal. The record clearly reflects that they did not. Indeed, the answer filed by defendant/appellants specifically admitted the existence of an irreconcilable dispute. LT No. 5-88, Answer, paragraph 12. Only in their Post-Trial Memorandum did defendant/appellants begin relying on the Puleleiite letter as evidence that there was no dispute and therefore no jurisdiction. [12ASR2d22]

Third, by its terms A.S.C.A. § 43.0302 does not apply to disputes over individually owned land. As we have already stated, the trial court was correct to conclude, on the present record and for the purposes of the present proceeding, that the tract purchased by the Leotas had been and continued to be individually owned.

We therefore affirm the judgment of the trial court.

*********

* Honorable William C. Canby, Jr., Judge, United States Court of Appeals for the Ninth Circuit, serving by designation of the Secretary of the Interior .

** Honorable David R. Thompson, Judge, United States Court of Appeals for the Ninth Circuit, serving by designation of the Secretary of the Interior.

Leaana v. Laban,


LEAANA FUATA, for himself and members of the PELE-LEAANA 
FAMILY of the Village of Laulii, Plaintiffs

v.

LORETTA LABAN, Defendant

High Court of American Samoa 
Land and Titles Division

LT No. 29-89

September 11, 1989

___________

To issue a preliminary injunction a court must find that the applicant has a substantial likelihood of prevailing on the merits at trial, and without such injunction will suffer great injury before a full trial. A.S.C.A. § 43.1301(j)(1)-(2).

ln apparent recognition of the unusual nature of interests often being asserted in Samoan land disputes, the territorial legislature has provided that in such disputes a justice may [12ASR2d94] make such preliminary orders as to him seem just to restrain any Samoan from exercising any right or doing any act, matter, or thing affecting or concerning any Samoan land pending the outcome of the litigation, without requiring that any specific irreparable harm be shown. A.S.C.A. § 43.0303.

Punishment is not the purpose behind injunctive relief.

Preliminary injunction against defendant's unauthorized construction on family communal land would be denied, as injunction would serve no purpose but punishment for past deeds, where: defendant bad been assigned the building site by the late senior matai; defendant was rebuilding a home destroyed by fire; plaintiff matai did not object to defendant's having a home on communal land, but only to her doing so without his signature on the building permit; defendant would owe her contractor liquidated damages for any delay; and the normal requirement of security or bond requirement was not applicable. A.S.C.A. § 41.1309(b).

Preliminary injunction would be granted enjoining defendant from misrepresenting on the public record that family land was owned by non-matai family member who had signed her building permit application; the defendant would have ten days to rectify her building permit to reflect family ownership and family approval given under the signature of the matai with the appropriate family authority.

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

Counsel: For Plaintiffs, Tau'ese P.F. Sunia 
For Defendant, Gata E. Gurr

Facts

Plaintiff is registered as the holder of the matai tile Leaana of Lauli 'i. He brings suit on behalf of the Mulitauaopele/Leaana family to enjoin certain construction undertaken by defendant, allegedly without authority, on the family's communal land "Pataua."

Defendant, Loretta Laban, is a blood member of the family and a non-matai. She claims that the late Mulitauaopele Tamotu had assigned to her the site where the disputed construction is located, and that the work being undertaken on the site is actually the rebuilding of her home which had been previously destroyed by fire. She adds that if construction is enjoined, she would suffer economic harm in the way of liquidated damages payable to her contractor at the rate of $1,700 per week.

Both sides acknowledge that the senior matai with pule over family lands is the holder of the title "Mulitauaopele" (hereafter "Pele"). [12ASR2d95] However, this title is currently vacant and a dispute about who may act for the family in the absence of a senior matai arose in the following circumstances. (1) It is common knowledge in American Samoa that the relevant government authorities require the land owner, or senior matai in case of communal land, to sign off on building permit applications. The signing of building permits has taken on very significant implications in the communal context. It is indeed an act of "pule." When Leaana and other family members checked into the permit issued by the government to the defendant, they discovered that "Pataua " is stated to be owned by one "Konelio Pele." Konelio is a non-matai family member and a contender for the family's senior matai title. (In his bid for the family title, Konelio is supported by the defendant.) He admitted signing defendant's permit application because, as he said, Leaana was off-island at the time.

Defendant's position, as she testified, is that even if plaintiff was on island at the time, she would not have sought his approval of her permit application. She maintains that "Leaana" is the traditional designation for the head of the aumaga (kava bearers), and accordingly she does not recognize Leaana as a matai of the family with matai authority.

Plaintiff, who is also a contender for the Pele title, claims that in the absence of the senior matai, the Leaana titleholder is the next matai in rank with the appropriate family authority to sign on government papers concerning family assets. He acknowledged that he was not against the rebuilding of defendant's house and would have approved, on behalf of the family, defendant's permit application if she had properly requested him to do so. What plaintiff does consider objectionable is the apparent attitude that without a senior matai there is no family control and that therefore people like the defendant may do as they please without regard for family norms. For example, plaintiff spoke of defendant's stubborn refusal to bury her father's body within the family's designated burial ground. Instead, and over plaintiffs objection, she had her father interred at a site within the family's already limited residential resources. Now she has been instrumental in the usurpation of the matai's function and authority by a non-matai of the family, Konelio. [12ASR2d96]

Discussion

A.S.C.A. § 43.1301(j)(1)(2) sets out what are "sufficient grounds" for issuance of a preliminary injunction. That is, there is a substantial likelihood that the applicant would prevail at trial on the merits and that great injury will result to the applicant before a full trial may be had. (2)

We turn to the merits of the application and find that the evidence preponderates in favor of plaintiffs version of family authority in the absence of the senior matai. We further find that defendant Laban's permit application was undertaken in defiance of the traditional role of family matai and without any regard whatsoever for the communal interest. Her collaboration with a non-matai was indeed contemptuous of the family and the matai, and the evidence strongly suggests that her actions were principally motivated by the underlying matai title dispute. (Konelio candidly admitted that he had never before assumed approval authority on the family's behalf. At the same time, defendant's justification of her actions ---the claim that Leaana is not a matai ---simply bespeaks obstinacy. Her claim is not only inconsistent with the legal reality that the territorial Matai Registry (kept in accordance with the requirements of A.S.C.A. § 1.10401 et seq.) recognizes the "Leaana" as a matai title, but also inconsistent with the fact that the Leaana takes a kava cup at village council meetings.

Plaintiffs complaint on behalf of the family is well taken. Since Konelio did not have the pule to sign building permit applications, the ongoing construction work by defendant will not only be regarded by family members as unauthorized but, as plaintiff suggests, a disdainful display of contempt for communal authority. Individual family members [12ASR2d97] simply should not be allowed to do as they see fit with communal assets whenever the family is without a sa'o.

Notwithstanding, we are of the opinion that it would not be appropriate to enjoin construction. A preliminary injunction to stop construction would, in the circumstances, serve no other purpose but to punish defendant for past deeds. Punishment is not the purpose behind injunctive relief. Additionally, we are also mindful of the following factors: the home site in question is after all the site duly designated by the late senior matai, Pele Tamotu, to defendant Laban ---this claim was not controverted; defendant is rebuilding on the exact same site of her previous house which was destroyed by fire; plaintiff does not really object to defendant's entitlement to a home on communal land; defendant is liable to her contractor for a liquidated damages sum of $1,700 per week whether the construction work proceeds or not; and the normal requirement of security or bond is not applicable. See A.S.C.A. § 41.1309(b).

The only continuing wrong which defendant is guilty of is not so much the rebuilding of her home, but her allowing a public record to misrepresent family land "Pataua" as being owned by Konelio Pele. (3) We conclude that the continuance of that misrepresentation may be enjoined under A.S.C.A. § 43.0303. See Talili v. Satele, 3 A.S.R.2d 36 (1986). (4)

Conclusion

Accordingly, a preliminary injunction will issue enjoining defendant, Loretta Laban, and those in active concert with her, from perpetuating on public record, to wit her building permit and application [12ASR2d98]therefor, the misrepresentation that the land "Pataua" is owned by Konelio Pele. Defendant shall have 10 days from date of entry hereof to rectify her building permit application and building permit to properly reflect family ownership and family approval given under the signature of Leaana.

It is so Ordered.

*********

1. The evidence also shows that, without a sa'o, the family has become divided as a result of ongoing and competing succession claims to the senior matai title. Indeed the matter before us clearly appears to be an extension of that title dispute adding intensity to the division.

2. Cf. A.S.C.A. § 43.0303. The Land and Titles Division, in Talili v. Satele, 3 A.S.R.2d 36 (1986), referred to this enactment in the following terms:

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

Id. at 38-39.

3. Perhaps defendant is also guilty under Samoan custom of failing to atone or make amends to family dignity for her flagrant breach of customary norms and effrontery displayed to the family's matai. This is something, however, beyond the realm of the Court.

4. No one raised the prohibition contained in A.S.C.A. § 41.1309, which requires that, in the absence of a sa'o, injunctive actions concerning matters of communal land within the family may only be brought by "two" blood male matai of the family. Did not Leaana require another male blood matai of the family to join him in the application for injunctive relief? May we assume, as we must with the result we reach, that the statutory prohibition does not apply to a family whose traditions are such that family authority passes to the next ranking titleholder upon the death or incapacity of the sa'o?

Laumoli; American Samoa Gov’t v.


AMERICAN SAMOA GOVERNMENT ,Plaintiff

v.

TUIA T. LAUMOLI, Defendant

TUIA T. LAUMOLI and MASALOSALO I'AMENE, 
Respondents to Order to Show Cause

High Court of American Samoa 
Trial Division

CR No. 47-89

September 29, 1989

__________

Warden's contention that judgment and sentence prohibiting release of prisoner was not binding on him because the copy he initially received did not bear the signatures of the judges was without merit, where sentence had been previously been announced from the bench and where a signed copy of the written order had been served on the government prior to the time the warden wilfully disregarded the order .

Order issued in open court is binding from the moment it is announced. whether or not it is ever reduced to writing. [12ASR2d112]

In providing prison warden with an unsigned document stating the terms of a prisoner's sentence, office of the attorney general was acting to ensure compliance by government officials with an order that had already been publicly announced in the presence of counsel for the government and was already binding on the government as well as on the defendant, and receipt of this document imposed a duty on the warden to inquire further of the court or the attorney general's office, at the very least, before releasing the defendant in direct violation of the notice he had been given.

Attempts by warden and prisoner to cover their tracks, by omitting any record of the prisoner's comings and goings from theprison1og book and by lying in court when asked whether the prisoner had been released, were inconsistent with their contentions that they had not fully understood the court's order prohibiting release of the prisoner.

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

Counsel: For Respondent Laumoli, Gata E. Gurr 
Respondent Masalosalo pro se

On Order to Show Cause:

On September 27, 1989, having been presented with evidence that the respondents violated the Court's previous order by causing Tuia Laumoli to be released from the Correctional Facility on Saturday, September 23, the Court ordered respondents to show cause why they should not be held in contempt of Court and sentenced accordingly.

The hearing on the Order to Show Cause was held Thursday, September 29, and continued to Friday, September 30. Tuia Laumoli was represented by counsel. Masalosalo I'amene, the Warden of the Correctional Facility, was advised of his right to counsel and chose to represent himself. Each of the respondents was given the opportunity to present evidence, and each respondent testified on his own half. The Court then heard other witnesses, after which each respondent presented further evidence in rebuttal.

The Court finds that respondent Tuia Laumoli was released from the Correctional Facility on Saturday, September 23, in direct violation of 1he Court's order that he not be released "for any reason except medical emergency. " The Court further finds that both respondents were aware of the terms of the order and wilfully disregarded them. [12ASR2d113]

There is no merit in the Warden's contention that since the copy of the order he initially received did not bear the signatures of the judges, the order was not binding on him. The sentence in this case was announced from the bench on Wednesday, September 20. The Attorney General's office then drafted a written order which was presented to the Court for review and signature by the judges. The Warden was apparently provided with a copy of this document at the same time it was presented to the Court. (1)

An order issued in open court is binding from the moment it is announced, whether or not it is ever reduced to writing. In providing the Warden with a document stating the terms of Tuia Laumoli's sentence, the Attorney General's office was doing exactly what it should have done in its capacity as lawyer for the Government: acting to ensure compliance by government officials with an order that had already been publicly announced in the presence of counsel for the Government and was already binding on the Government as well as on the defendant. The Attorney General's office was under no duty to wait until the judges had signed the written order before providing a copy to the Warden. Receipt of this document imposed a duty on the Warden to inquire further of the Court or the Attorney General's office, at the very least, before releasing the defendant in direct violation of the notice he had been given.

Nor is there any merit in the contention of both respondents that they did not fully understand the sentence. Even without the specific admonition that defendant was not be released except for medical emergency, most people would understand a sentence of "seven weekends in the Correctional Facility" to exclude the possibility that defendant could spend all day Saturday at a rugby game.

Moreover, if the respondents had not known they were doing wrong they would presumably not have bothered to cover their tracks. Although the Warden authorized the release of Tuia Laumoli on Friday night and again on Saturday, the records of Tuia's comings and goings on both days are conspicuously absent from the prison log book. Each respondent also lied to the Court when first asked whether Tuia had been released on Friday night. Under repeated questioning from the Court, [12ASR2d114] both respondents stuck to their story that Tuia had been present in the Facility at all times between 6:00 p.m. Friday and 9:00 a.m. Saturday. They admitted the contrary only after testimony by two witnesses who had seen Tuia elsewhere that night and by a third (Acting Commissioner of Public Safety Fonoti Jessop) to whom the Warden had admitted authorizing the Friday release.

The respondents are accordingly held to be in contempt of Court and are sentenced as follows:

Respondent Tuia Laumoli is sentenced to serve thirty days in the Correctional Facility. Execution of the sentence is suspended on condition that Tuia serve the remaining term of his sentence for Second Degree Assault in strict accordance with the conditions imposed by the Court, and that he also serve two additional weekends in the Correctional Facility.

The total number of weekends included in both sentences, including the weekend of September 22-24, is nine (9). Respondent shall report to the Facility no later than 6:00 p.m. each Friday and shall leave no earlier than 6:00 p.m. on Sunday. (2) During his periods of detention he is not to leave the Facility for any reason other than medical emergency.

Respondent Masalosalo is also sentenced to serve thirty days in the Correctional Facility. Execution of the sentence is suspended and respondent placed on probation for a term of two years on condition that he pay a fine of $500 no later than October 13, 1989, and that he comply strictly with the terms of all Court orders.

This sentence is imposed only for the contempt of Court constituted by the release of respondent Tuia on Saturday. Although evidence of the release on Friday was relevant to the veracity of both [12ASR2d115]respondents and to the pattern of conduct underlying the Saturday release, it is a separate incident with respect to which no Order to Show Cause was issued.

It is so ordered.

*********

1. Signing of the written order was delayed until Friday, September 22, pending the expedited hearing of a motion by defendant Tuia Laumoli asking the Court to revise his sentence. The signed order was served on the Department of Public Safety late Friday afternoon. The Warden says he did not personally receive a signed copy until Monday, September 25, but admits having read the unsigned copy on or before the previous Friday.

2. At the request of the Speaker of the House, a slight change will be made in the schedule of respondent's sentence for the weekend of September 29 to October 1. In order to allow respondent to attend a meeting of the Fono that is required by law to be held on September 30, his detention for this weekend is modified to allow him to report to the Correctional Facility by 6:00 p.m. Saturday and leave no earlier than 6:00 p.m. on Monday, October 2. The terms of this change are incorporated in a separate written order.

Laban; Leaana v.


LEAANA FUATA, for himself and members of the PELE-LEAANA
FAMILY of the Village of Laulii, Plaintiffs

v.

LORETTA LABAN, Defendant

High Court of American Samoa
Land and Titles Division

LT No. 29-89

September 11, 1989

___________

To issue a preliminary injunction a court must find that the applicant has a substantial likelihood of prevailing on the merits at trial, and without such injunction will suffer great injury before a full trial. A.S.C.A. § 43.1301(j)(1)-(2).

ln apparent recognition of the unusual nature of interests often being asserted in Samoan land disputes, the territorial legislature has provided that in such disputes a justice may [12ASR2d94] make such preliminary orders as to him seem just to restrain any Samoan from exercising any right or doing any act, matter, or thing affecting or concerning any Samoan land pending the outcome of the litigation, without requiring that any specific irreparable harm be shown. A.S.C.A. § 43.0303.

Punishment is not the purpose behind injunctive relief.

Preliminary injunction against defendant's unauthorized construction on family communal land would be denied, as injunction would serve no purpose but punishment for past deeds, where: defendant bad been assigned the building site by the late senior matai; defendant was rebuilding a home destroyed by fire; plaintiff matai did not object to defendant's having a home on communal land, but only to her doing so without his signature on the building permit; defendant would owe her contractor liquidated damages for any delay; and the normal requirement of security or bond requirement was not applicable. A.S.C.A. § 41.1309(b).

Preliminary injunction would be granted enjoining defendant from misrepresenting on the public record that family land was owned by non-matai family member who had signed her building permit application; the defendant would have ten days to rectify her building permit to reflect family ownership and family approval given under the signature of the matai with the appropriate family authority.

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

Counsel: For Plaintiffs, Tau'ese P.F. Sunia
For Defendant, Gata E. Gurr

Facts

Plaintiff is registered as the holder of the matai tile Leaana of Lauli 'i. He brings suit on behalf of the Mulitauaopele/Leaana family to enjoin certain construction undertaken by defendant, allegedly without authority, on the family's communal land "Pataua."

Defendant, Loretta Laban, is a blood member of the family and a non-matai. She claims that the late Mulitauaopele Tamotu had assigned to her the site where the disputed construction is located, and that the work being undertaken on the site is actually the rebuilding of her home which had been previously destroyed by fire. She adds that if construction is enjoined, she would suffer economic harm in the way of liquidated damages payable to her contractor at the rate of $1,700 per week.

Both sides acknowledge that the senior matai with pule over family lands is the holder of the title "Mulitauaopele" (hereafter "Pele"). [12ASR2d95] However, this title is currently vacant and a dispute about who may act for the family in the absence of a senior matai arose in the following circumstances. (1) It is common knowledge in American Samoa that the relevant government authorities require the land owner, or senior matai in case of communal land, to sign off on building permit applications. The signing of building permits has taken on very significant implications in the communal context. It is indeed an act of "pule." When Leaana and other family members checked into the permit issued by the government to the defendant, they discovered that "Pataua " is stated to be owned by one "Konelio Pele." Konelio is a non-matai family member and a contender for the family's senior matai title. (In his bid for the family title, Konelio is supported by the defendant.) He admitted signing defendant's permit application because, as he said, Leaana was off-island at the time.

Defendant's position, as she testified, is that even if plaintiff was on island at the time, she would not have sought his approval of her permit application. She maintains that "Leaana" is the traditional designation for the head of the aumaga (kava bearers), and accordingly she does not recognize Leaana as a matai of the family with matai authority.

Plaintiff, who is also a contender for the Pele title, claims that in the absence of the senior matai, the Leaana titleholder is the next matai in rank with the appropriate family authority to sign on government papers concerning family assets. He acknowledged that he was not against the rebuilding of defendant's house and would have approved, on behalf of the family, defendant's permit application if she had properly requested him to do so. What plaintiff does consider objectionable is the apparent attitude that without a senior matai there is no family control and that therefore people like the defendant may do as they please without regard for family norms. For example, plaintiff spoke of defendant's stubborn refusal to bury her father's body within the family's designated burial ground. Instead, and over plaintiffs objection, she had her father interred at a site within the family's already limited residential resources. Now she has been instrumental in the usurpation of the matai's function and authority by a non-matai of the family, Konelio. [12ASR2d96]

Discussion

A.S.C.A. § 43.1301(j)(1)(2) sets out what are "sufficient grounds" for issuance of a preliminary injunction. That is, there is a substantial likelihood that the applicant would prevail at trial on the merits and that great injury will result to the applicant before a full trial may be had. (2)

We turn to the merits of the application and find that the evidence preponderates in favor of plaintiffs version of family authority in the absence of the senior matai. We further find that defendant Laban's permit application was undertaken in defiance of the traditional role of family matai and without any regard whatsoever for the communal interest. Her collaboration with a non-matai was indeed contemptuous of the family and the matai, and the evidence strongly suggests that her actions were principally motivated by the underlying matai title dispute. (Konelio candidly admitted that he had never before assumed approval authority on the family's behalf. At the same time, defendant's justification of her actions ---the claim that Leaana is not a matai ---simply bespeaks obstinacy. Her claim is not only inconsistent with the legal reality that the territorial Matai Registry (kept in accordance with the requirements of A.S.C.A. § 1.10401 et seq.) recognizes the "Leaana" as a matai title, but also inconsistent with the fact that the Leaana takes a kava cup at village council meetings.

Plaintiffs complaint on behalf of the family is well taken. Since Konelio did not have the pule to sign building permit applications, the ongoing construction work by defendant will not only be regarded by family members as unauthorized but, as plaintiff suggests, a disdainful display of contempt for communal authority. Individual family members [12ASR2d97] simply should not be allowed to do as they see fit with communal assets whenever the family is without a sa'o.

Notwithstanding, we are of the opinion that it would not be appropriate to enjoin construction. A preliminary injunction to stop construction would, in the circumstances, serve no other purpose but to punish defendant for past deeds. Punishment is not the purpose behind injunctive relief. Additionally, we are also mindful of the following factors: the home site in question is after all the site duly designated by the late senior matai, Pele Tamotu, to defendant Laban ---this claim was not controverted; defendant is rebuilding on the exact same site of her previous house which was destroyed by fire; plaintiff does not really object to defendant's entitlement to a home on communal land; defendant is liable to her contractor for a liquidated damages sum of $1,700 per week whether the construction work proceeds or not; and the normal requirement of security or bond is not applicable. See A.S.C.A. § 41.1309(b).

The only continuing wrong which defendant is guilty of is not so much the rebuilding of her home, but her allowing a public record to misrepresent family land "Pataua" as being owned by Konelio Pele. (3) We conclude that the continuance of that misrepresentation may be enjoined under A.S.C.A. § 43.0303. See Talili v. Satele, 3 A.S.R.2d 36 (1986). (4)

Conclusion

Accordingly, a preliminary injunction will issue enjoining defendant, Loretta Laban, and those in active concert with her, from perpetuating on public record, to wit her building permit and application [12ASR2d98] therefor, the misrepresentation that the land "Pataua" is owned by Konelio Pele. Defendant shall have 10 days from date of entry hereof to rectify her building permit application and building permit to properly reflect family ownership and family approval given under the signature of Leaana.

It is so Ordered.

*********

1. The evidence also shows that, without a sa'o, the family has become divided as a result of ongoing and competing succession claims to the senior matai title. Indeed the matter before us clearly appears to be an extension of that title dispute adding intensity to the division.

2. Cf. A.S.C.A. § 43.0303. The Land and Titles Division, in Talili v. Satele, 3 A.S.R.2d 36 (1986), referred to this enactment in the following terms:

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

Id. at 38-39.

3. Perhaps defendant is also guilty under Samoan custom of failing to atone or make amends to family dignity for her flagrant breach of customary norms and effrontery displayed to the family's matai. This is something, however, beyond the realm of the Court.

4. No one raised the prohibition contained in A.S.C.A. § 41.1309, which requires that, in the absence of a sa'o, injunctive actions concerning matters of communal land within the family may only be brought by "two" blood male matai of the family. Did not Leaana require another male blood matai of the family to join him in the application for injunctive relief? May we assume, as we must with the result we reach, that the statutory prohibition does not apply to a family whose traditions are such that family authority passes to the next ranking titleholder upon the death or incapacity of the sa'o?

Isumu v. Palaia,


ISUMU for himself and on behalf of his children, Plaintiffs

v.

PALAIA and FELENI MULIPOLA and Family, Defendants

High Court of American Samoa
Land and Titles Division

LT No.10-89

September 12, 1989

__________

Defendants' permissive occupation of plaintiff's property did not amount to a legal interest in the land whereby the defendants could maintain the claim that the land was theirs to live on forever.

Depending on circumstances, a parol license without consideration may be revocable at will, irrevocable until licensee recoups his expenditures made in pursuance of the license, or irrevocable for the intended duration of the license.

A license is personal and non-assignable, and therefore will ordinarily expire at the death of the licensor or the licensee, unless in the case of the licensor's death, the license is extended by the licensor's heirs.

Parol license allowing licensees to build and occupy a home on licensor's land was irrevocable, until the death of either the licensor or the licensee and so long as the licensees should comply exactly with its terms, where licensees had not been troublesome, had rendered tautua effectively, and had made substantial and costly improvements on the land, and neither party had envisioned an earlier termination when the license was granted.

Before KRUSE, Chief Justice, TAUANU'U , Chief Associate Judge, and OLO, Associate Judge. [12ASR2d99]

Counsel: For Plaintiffs, Utu Sinagege R.M.
For Defendants, Gata E. Gurr

Plaintiff seeks the eviction of defendants from his land.

Factual Background

In 1972 plaintiff, Isumu Leapaga, secured in "[himself] & [his] children," registration of title in individual ownership to a certain acreage of land known as "Leatuvai" located in Tafuna. Shortly thereafter, he gave defendants, Palaia and Feleni Mulipola, permission to build themselves a dwelling on a portion of the said land. In 1973 he executed defendants' building permit application and in 1977 executed a separation agreement with defendants which is recorded with the office of the Territorial Registrar. The parties are not related; however, the defendants were related to plaintiff's then wife, Mao, and under those circumstances plaintiff gave his permission. Defendants did indeed act on the permission and after clearing the site designated, they built a fale papalagi (European type structure). For many years, the parties lived harmoniously together with defendants rendering certain tautua (traditional services) to plaintiff.

In 1987, however, Mrs. Mao Leapaga passed away and subsequently plaintiff remarried. The defendant Palaia testified that not long thereafter his family was soon made to realize that Mao's death had also served to terminate whatever ties plaintiff had to them. The new Mrs. Leapaga immediately began to assert her presence and standing by involving herself in a lot of petty quarrels with members of defendants' family telling them what they could and could not do on the land. (It seems clear that the defendants must have represented to the new Mrs. Leapaga the remaining vestige of her predecessor's influence. They had to go.)

Defendants confronted plaintiff about his new wife' s interference with their accustomed use of the land. However, they were met with the response that Mao's era had ended and that the times had changed. Mr. Leapaga's position was that the defendants were brought on the land by his late wife and that with her death there was no further reason for defendants to remain on the land. (He took the apparent view that Mao's death not only ended their marriage but also ended any further alliance between he and his kin on the one hand, and Mao's surviving kin on the[12ASR2d100] other.) (1) Mr. Leapaga also testified that defendants were becoming troublesome on the land and claimed that their tautua was ineffective.

Despite plaintiff's repeated directives to defendants to move out, they refused to budge. Their recent thinking being that they had poured their lives and sweat into their homesite and that therefore as far as they were concerned they were entitled to live on the land forever. Defendant Palaia Mulipola testified that when they first moved onto the land, the area was isolated bush and rocky in terrain. To clear the area in order to obtain a homesite, as well as an access to that site, Mulipola claimed that it took many months of burning large trees together with the assistance of a bulldozer. He further testified that he had, at the outset, $8,000 in savings which was all expended in clearing the land and constructing their home, which for a time remained incomplete. He testified that he obtained a further $5000 in the way of a loan and finally completed their home.

Defendants deny being problematic on the land and further deny that their tautua has lately been ineffective. Plaintiff was in fact refusing to accept any further service from them.

Discussion

The first observation which can be made on the facts is that the defendants' permissive occupation of plaintiff's property has not amounted to any sort of legal interest in the land whereby the defendants can maintain the claim that the land is theirs to live on forever. In similar cases involving a falling out between a property owner and his permittee, the Court analyzed the parties' rights in terms of the common law concept of "license." See Tago v. Leota, 4 A.S.R. 341 (1963), Lutu v. Petelo, 3 A.S.R. 252 (1956), Lutu v. Ponali, 2 A.S.R. 503 (1949), Tago v. Sami, 2 A.S.R. 285 (1947).

In earlier times, the Court had little difficulty with applying the general proposition that a parol license without consideration was revocable at will, notwithstanding improvements made on the land by the licensee. With the relatively simpler life style of the day, there was very [12ASR2d101] little hardship involved with a licensee who was required to pack up and relocate his family, fale, and crops within a reasonable period of time. (2)

In other circumstances, however, it was also realized that a licensee could not simply be ordered to relocate without his suffering significant hardship. In some cases, therefore, the Court, while acknowledging the licensor's right to revoke a license, allowed the licensee to recoup his expenditures made in pursuance of the license. (3) Yet again in other cases, the Court has also held on equitable principles ---in circumstances where a licensee's reliance has proved to Pe particularly substantial or costly ---that the license became "irrevocable" and therefore the licensee could continue possession for the intended duration of the license. Foster v. Olotoa, 3 A.S.R. 76 (1953), Lutu v. Ponali, 2 A.S.R. 503 (1949), Tago v. Sami, 2 A.S.R. 285 (1947). However, even an irrevocable license does not create an interest or property in land. Talo v. Tavai, 2 A.S.R. 63 (1939). A license is personal and non-assignable and therefor will ordinarily expire at the death of the licensor or the licensee, unless in the case of the licensor's death, the license is extended by the licensor's heirs. Tuileata v. Talivaa, 3 A.S.R. 201 (1956).

Conclusions

1. We conclude on the evidence that plaintiff, Isumu Leapaga, had in 1973 given a parol license to defendants, Palaia and Feleni Mulipola, to construct a home on and to occupy, for residential purposes, a portion of his land "Leatuvai" subject to a requirement of tautua. [12ASR2d102]

2. On the evidence we are satisfied that defendants have not been troublesome nor rendered tautua ineffectively. We accordingly conclude that defendants have not acted inconsistently with the terms of the license given them.

3. We conclude that, with the substantial and costly improvements made to plaintiff's land by the defendants in the way of clearing the bush and erecting a papalagi style home thereon pursuant to the terms of the license, the license may not be revoked by plaintiff at will.

4. We are also satisfied on the evidence that at the time the license was created neither party gave thought to a termination date as coinciding with the death of Mrs. Mao Leapaga. Additionally, we cannot say that because of Samoan custom an inference reasonably follows that the parties (at the time the license was created) contemplated Mao's death as the termination date of the license.

5. We conclude that the license in its normal course is terminable upon the death of either the plaintiff or defendant unless in the case of plaintiff's sooner demise, his heirs extend the term of the license. (4)

6. We conclude that the terms of the license must be complied with exactly by defendants ---see Lutu v. Ponali, 2 A.S.R. 503 (1949), and that the defendants may continue to have possession of the licensed premises accordingly unless the license is sooner terminated by agreement or otherwise by law.

Judgment will enter accordingly. It is so Ordered.

*********

1. Cf. Tuiteleleapaga v. King, 8 A.S.R.2d 49 (1988) (a widow who has no children by her deceased husband has no right to remain on the communal land of husband's family unless the family invites her to remain).

2. For example, in Talo v. Tavai, 2 A.S.R. 63 (1939) the Court explained, "[t]o hold [a license] irrevocable would be to convert [it] into an interest or property in land." Id. at 71. On the other hand, "[t]he fales and the cook house, although attached to the soil can be taken down and rebuilt elsewhere. The soil and climatic conditions in American Samoa are such that the pineapple plantation on the land can be removed plant by plant to other land without loss of the plants. The same is true of the giant taro and yam plantations put in by Talo, except insofar as some of the taro and yams may have matured. Such matured plants can be dug up and used, or sold." Id. at 72.

3. In Faiivae v. Tiumalu, 3 A.S.R. 402 (1959), the Court held that a licensee who made extensive repairs and substantial improvements to a building was entitled to continued possession of the licensed premises, in accordance with the terms of the license, until such time as the value of his use of the premises was equivalent to the value of his expenditures. See also Magalei v. Tago, 3 A.S.R. 185 (1955) (retention of possession of premises until value of use is equivalent to value of licensee's expenditures on improvements less salvage value of any building removed by the licensee).

4. Such an inference must presuppose at the outset: that Isumu and Mao could not possibly have had, or adopted issue which would supply a bond among kin that would nave survived Mao's death; and, secondly, that Mao could not have possibly survived Isumu (whose death would, as a matter of law, terminate the license).

In re Two Minor Children (Juv. Nos. 21-89, 49-89),


In the Matter of TWO MINOR CHILDREN

High Court of American Samoa
Trial Division

JUV No. 21-89
JUV No. 49-89

September 1, 1989

__________

Where prospective adopting father was almost seventy years old, had suffered a stroke and was too sic to come to court for the relinquishment hearing, and natural parents wr young and healthy, child could go on living with the prospective adopting parents for as long as the arrangement was suitable to all concerned, but it would not be in the child's best interest to terminate the natural parents' obligation to provide support.

Where the only effect of a legal adoption of child by his grandparents, aside from any possible increase in the retirement or social security benefits of the grandfather, would b to deprive the child of the legal duty of support owed by his 38-year-old employed natural father and to substitute a similar duty on the part of a 62-year-old retired grandfather, a change in legal relationships would not b in the child's best interest.

Before REES, Associate Justice, TAUANU'U, Associate Judge, and MATA'UTIA, Associate Judge.

Counsel: For Petitioners, Togiola T.A. Tulafono and Roger Hazell

Both of these petitions for relinquishment of parental rights have been brought in contemplation of legal adoption by grandparents or other family members. In each case the prospective adoption parents are considerably older than the natural parents, and in each case the child has been living with the prospective adopting parents since birth.

The Court is permitted to grant a petitions for relinquishment of parental rights only when it finds that relinquishment would be in the best interest of the child. See A.S.C.A. § 45.0102(a)(1). In neither of these s can we make such a finding. [12ASR2d88]

The prospective adopting father in JUV No. 21-89 is almost seventy years old. He suffered a stroke a year ago and is still too sick to come to Court for the relinquishment hearing. The natural parents re young and healthy. Although the child has been adopted by his father's older relatives according to Samoan custom, and although he may go o living with them for as long as this arrangement is suitable to all concerned, it is quite possible that at some time during his minority he may need the care and/or support of his natural parents. It would not be in his best interest to terminate their obligation to provide such support.

In JUV No. 49-89 the child's natural parents and his grandparents live adjacent to one another. They sleep in different houses but otherwise live together as a Samoan family. The child is said to sleep in the grandparents' house and to be under their primary authority. This arrangement has subsisted for nine years without the necessity of a legal adoption. The only effect of such an adoption, aside from any possible increase in the retirement or Social Security benefits of the grandfather, would be to deprive the child of the legal duty of support owed by his 38-yr-old employed natural father and to substitute a similar duty on the part of a 62-year-old retired grandfather. This is not to say that the grandparents may not continue to love and care for the child. But a change in legal relationships would not be in the child's best interest.

The petitions are therefore denied.

*********

In re Siaumau,


In the Matter of ELIOTA SIAUMAU

High Court of American Samoa
Trial Division

CR No. 59-89

July 20, 1989

__________

Search and seizure clause of territorial constitution requires an independent finding of probable cause by a neutral and detached magistrate. Rev'd Const. Am. Samoa art. I, § 5.

In making an independent judicial finding of probable cause for a search, the judge may not rely merely on the prosecutor's decision to file a complaint. Rev'd Const. Am. Samoa art. I, § 5.

Judge may independently find adequate basis for probable cause in a criminal complaint which not only contains directly incriminating information but also identifies the source of such information. Rev'd Const. Am. Samoa art. I, § 5.

Factual allegation~ given their common sense meaning may be sufficient to constitute probable cause for certain crimes. Rev'd Cons\. Am. Samoa art. I, § 5.

Criminal complaint containing factual allegations of complainant officer and 89urces upon which the officer based such allegations, including personal investigation with interviews of identified victim, eyewitness, and treating physician, was sufficient to sustain independent judicial finding of probable case. Rev'd Const. Am. Samoa art. I, § 5.

Before KRUSE, Chief Justice.

Counsel: For Petitioner, Barry Rose, Assistant Public Defender

Eliota Siaumau petitions for a writ of habeas corpus. (1) He challenges the validity of the warrant for his arrest which was executed [12ASR2d12] on or about July 14, 1989 and resulted in his being detained at the Tafuna Correctional Facilities. The said warrant was issued by the District Court in the pending matter American Samoa Government v. Siaumau, DCCR No, 111-89 (1989). Petitioner argues that his arrest was illegal because the sworn complaint upon which the warrant issued neither stated the essential facts constituting the offenses charged nor provided the source of information contained in the complaint. (2) He claims that "[t]he affidavit [or more precisely the sworn complaint] merely states a series of unattributed conclusions [on the part of the complainant] and even these conclusions fall far short of constituting the elements of the crimes charged." Petition for Writ of Habeas Corpus at 2. Our attention is further directed by petitioner to the provisions of A.S.C.A. § 46.08023 (3) and the Supreme Court's decision in Giordenello v. United States, 357 P.2d. 480 (1958). That case discusses the "probable cause" requirement of the Fourth Amendment which governs the issuance of warrants. (4)

The argument in essence is that the District Court Judge was not supplied sufficient information in the complaint whereby he could independently base a finding of probable cause. The Fourth Amendment and, we hold, its territorial counterpart ---Art. I, § 5, Rev'd Const. Am. Samoa ---require that before an extended deprivation of a defendant's [12ASR2d13] liberty occurs a finding of probable cause must be made by a neutral and detached magistrate, in territorial practice, the District Court Judge. Gerstein v. Pugh, 420 U.S. 103, 114 (1975). The judge may not rely on the prosecutor's decision to file a complaint upon affidavit as supplying the requisite probable cause. Giordenello, 357 U.S. at 486. Petitioner feels that the information supplied in the complaint in question was nothing more than conclusionary statements on the part of the complainant officer and that therefore the District Court Judge under those circumstances would not have had the opportunity to independently assess that information, or the reliability of its source, in order to judge for himself whether there was probable cause. These were essentially the circumstances with the warrant considered and held defective in Giordenello.

The circumstances here, however, are materially distinguishable from those in Giordenello. Rather, the complaint in question is not unlike that considered by the Court in Jaben v. United States, 381 U.S. 214 (1965). The Court there differentiated between two types of information in a complaint: (1) that information which, if true, would directly indicate commission of the crime charged, and (2) that which relates to the source of the directly incriminating information. Id. at 223. The Court noted that the Giordenello complaint gave no source of information whatsoever while its directly incriminating information consisted merely of an allegation in the words of the statute. Id. The information contained in the complaint considered in Jaben consisted of directly incriminating conclusions made by a Special Agent of the Internal Revenue Service that the taxpayer had violated the income tax laws. However, these conclusions were presented to the magistrate as being based upon the agent's personal investigation in his official capacity in the course of which he examined the taxpayer's relevant returns for certain years, interviewed third parties with whom the taxpayer did business and others having knowledge of taxpayer's financial condition, and consulted public and private records reflecting the taxpayer's income. In these circumstances, the Court was satisfied that "unlike narcotics informants, for example, whose credibility may often be suspect, the sources in this tax evasion case are much less likely to produce false or untrustworthy information." Id. at 224. The Court went on to state that a complaint must be able to

provide the affiant's answer to the magistrate's hypothetical
question, "What makes you think that the defendant committed
the offense charged? " This does not reflect a requirement that
the Commissioner ignore [12ASR2d14] the credibility of the
complaining witness. There is a difference between disbelieving
the affiant and requiring him to indicate some basis for his
allegations. Obviously any reliance upon factual allegations
necessarily entails some degree of reliance upon the credibility
of the source. [Citation omitted.] Nor does it indicate that each
factual allegation which the affiant puts forth must be independently
documented, or that each and every fact which contributed to his
conclusions be spelled out in the complaint. [Citation omitted.]
It simply requires that enough information be presented to the
Commissioner to enable him to make the judgment that the
charges are not capricious and are sufficiently supported to
justify bringing into play the further steps of the criminal process.

Id. at 224-25.

In the present matter, although the complaint's directly incriminating information appears to be factual allegations by the complainant officer, its informational data did not "merely" stop there. Like the magistrate in Jaben, the District Court Judge was also given sources of that directly incriminating information, to wit: the affiant deposed that he, in his official capacity, had personally conducted an investigation in the course of which he interviewed a named victim, a named eyewitness, as well as a named treating physician at the LBJ Tropical Medical Center. It may be said here with equal conviction that "unlike the narcotics informant, for example, ...the sources in this ...case are much less likely to produce a false or untrustworthy information." Bearing in mind that the District Court Judge is concerned with balancing probabilities, it would seem less than likely that a person who has been shot in the foot would have the tendency to lie about his assailant's identity. Further, could it not be said that the named eyewitness surely comes within the category of the honest citizen informant stepping forward to report criminal activity? Finally, the veracity and reliability of a doctor who tells an investigating officer that a certain patient has received a foot injury consistent with having being shot with a .22 caliber bullet can hardly be doubted.

Nor do we agree with petitioner that the facts set out "fall far short of constituting the elements of the crime charged." As the Supreme Court has said, some types of offenses are "subject to putative establishment by blunt and concise factual allegations, e.g., 'A saw [12ASR2d15] narcotics in B's possession.'" Id. at 223. We have such a situation here. The complaint essentially alleges that "A shot B," Although more facts would have been helpful, when we give the allegations in the complaint their common sense meaning there is enough in this instance to support a probable cause determination on the crimes charged.

The Court concludes in these circumstances that there was adequate basis for the District Court Judge to independently make a probable cause finding based on what the deposing officer had heard from reliable and trustworthy sources, as well as from that which the officer observed during the course of his investigation.

We note, however, that Count II of the complaint could have been drafted with a little more attention to detail. The facts allege a shooting with a .22 caliber pistol, yet the charge also contains those portions of the enactment which refer to knives and black jacks. While the Court recognizes that the prosecuting attorneys are often under time constraints to prepare charging papers quickly, they will be well advised to show a little more concern with draftsmanship. The problem here with the complaint appears to be one of surplusage; however, hurried preparation may equally result in a defective charging paper. Petition denied.

It is so Ordered.

*********

1. The Court notes that the Clerk has assigned a criminal docket number to this petition whereas a civil docket number may b more appropriate and less misleading. This Court has previously held that habeas corpus proceedings are not part of the underlying criminal case but a collateral and independent attack against confinement contrary to the constitution or fundamental law. The writ was not designed to address the merits of the underlying criminal charge nor may the writ proceedings be used as a substitute for an appeal to correct mere errors or irregularities in the criminal proceedings. Suisala v. Moaali'itele, 6 A.S.R.2d 15 (1987).

2. The complaint states as follows:

I, PSO M. TAVAI, am informed by my police investigation and
interviews with victim Simeni Liu, eyewitness Va'aloa Liu and
LBJ Tropical Medical Center] Physician Dr. Fernandez, do believe
and thereon allege:

At about 2145 hours on July 12, 1989, in Vaitogi, American Samoa,
the above named defendant used a .22 caliber pistol to shoot victim
Liu Simeni in the left foot. The victim arrived at the hospital where
a .22 caliber bullet was removed from his left foot and to [sic] victim
was admitted to the surgical ward at the hospital.

3. The enactment sets out in part: "(b) The affidavit must set forth the facts stated by the complainant tending to establish the commission of the offense and the guilt of the defendant. If necessary, such affidavit may be made upon the information and belief of the affiant, provided the facts and the sourcee of the information are stated in the affidavit."

4. Art. I, § 5, Rev'd Const. Am. Samoa, tracks the language of the Fourth Amendment to the United States Constitution. It states that no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the persons or things to be seized. This requirement applies to arrest as well to as search warrants. Giordenello v. United States, 357 U.S. at 485-86.

In re Matai Title “Mulitauaopele”,


I.S. MULITAUAOPELE and FOFOGATUMUA 
K. MULITAUAOPELE, Plaintiffs/Objectors

v.

LUI LEAANA FUATA, Defendant/Claimant

[In the Matter of the Matai Title "MULITAUAOPELE" 
of the Village of Lauli'i]

High Court of American Samoa 
Land and Titles Division

MT No. 5-89

July 19, 1989

__________

Where certificate of irreconcilable dispute from Secretary of Samoan Affairs was issued, upon is information given by a party to the dispute, proceedings in Land & Titles Division would be stayed pending certification by the Secretary of compliance with statutory procedures for attempted resolution. A.S.C.A § 43.0302.

Before KRUSE, Chief Justice.

Counsel: Objector I.S. Mulitauaopele pro se 
For Objector Fofogatumua K. Mulitauaopele, Gata E. Gurr 
For Claimant, Tau'ese P.F. Sunia .

Memorandum Order:

Upon notice from the Secretary of Samoan Affairs that the parties in the above-entitled matter have not met in accordance with the requirements of A.S.C,A. § 43.0302 and that the Certificate of Irreconcilable Dispute dated June 21, 1989 was issued upon misinformation given by one of the parties and whereas compliance with the requirements of A.S.C.A. § 43.0302 have not thus been shown to the Court's satisfaction, [12ASR2d9]

It is Ordered that the proceedings in above-entitled matter before the land and titles division shall be stayed until compliance with the requirements of the aforesaid enactment has been certified by the Secretary of Samoan Affairs or until further order of the Court.

*********

Hudson; Ass’n of Apartment Owners v.


ASSOCIATION OF APARTMENT OWNERS OF
THE CHANDELIER by its Board of Directors, Plaintiff

v.

JOHN HUDSON, LUCILLE HUDSON, 
INTERNATIONAL SAVINGS AND LOAN ASSOCIATION, Ltd., 
JOHN DOES 1-50, JANE DOES 1-50, 
DOE CORPORATIONS 1-50, DOE ENTITIES 1-50 
and DOE GOVERNMENT AL UNITS 1-50, Defendants

High Court of American Samoa 
Trial Division

PJ No. 2-87

August 31, 1989

__________

That judgment debtor did not receive certain funds when he had expected to receive them, that some of the expected receipts were subjected to a tax lien and to a pre-judgment garnishment in another case, and that the judgment debtor applied the remainder to his living and business expenses in addition to his judgment debt, did not excuse his noncompliance with a court order to notify the court in advance should it appear that he would be: unable to make a scheduled payment on the judgment debt. [12ASR2d82]

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

Counsel: For defendant/Petitioner International Savings and Loan, Tautai A.F. Fa'alevao 
For Defendants/Respondents John and Lucille Hudson, L. Su'esu'e Lutu

On Order to Show Cause:

On June 17, 1988, defendants were ordered to pay $2000 per month on this foreign judgment and also to make a payment of $35,000 on October 1, 1988, by which time defendant John Hudson assured the Court he would have received his "retention" payment on a government contract. The Court specifically ordered that "[i]f at any time it appears to defendant that he will not be able to meet this schedule, he should inform the Court immediately of this and of the reasons therefor."

On September 29 defendants moved for a modification of the order, to allow the lump sum payment of $30,000 (apparently a typographical error, since the order had specified $35,000) at a later date. On October 19 the Court modified its order to allow this payment to be made no later than December 31, 1988.

The modified order specified that "[all] other terms and conditions of he Order in Aid of Judgment remain in effect. " This included the provision that Mr. Hudson was responsible for notifying the Cour1 in advance if it should appear that he would be unable to meet any scheduled payment.

Mr. Hudson did not make the lump sum payment and did not request a modification of the order prior to December 31, 1988. Counsel for the judgment creditor consequently moved that he be ordered to show cause why he should not be held in contempt of court.

Mr. Hudson' s defense is that he did not receive the retention payment at the scheduled time; that a Court order in another case subjected to a pre-judgment garnishment $29,000 of the $70,000 he had expected to receive; that the Tax Office issued a lien and withheld another $18,000 of the expected proceeds for nonpayment of 1988 FICA taxes; and that he applied the remaining $23,000 to the balance due on [12ASR2d83] the judgment debt in this case, to a bond in a project he is now working on, and to living and personal expenses.

None of this affords Mr. Hudson any excuse for not notifying the Court in advance that he would be unable to make the December 31 payment and requesting a modification of the order. Accordingly, we find him in contempt of Court.

Sentencing will be postponed indefinitely for so long as Mr. Hudson pays $2000 per month to the Clerk of Court on the outstanding balance of the foreign judgment debt, on or before the 10th day of each month; and so deposits with the Clerk of Court 80% of any "retention" payment he should receive prior to satisfaction of the judgment debt. Upon deposit of any such lump sum payment, the Court will decide which of Mr. Hudson's various creditors, if any, is entitled to it.

If Mr. Hudson complies scrupulously with the provisions of this order, no sentence will be imposed.

Mr. Hudson suggests that much of his problem was caused by the Court's order allowing pre-judgment garnishment in the other case, CA No. 33-89. He suggests that the Court should now reconsider its order and allow the garnished funds to be applied to satisfaction of the judgment in the present case.

The record in CA No. 33-89 reflects that Mr. Hudson agreed to the garnishment. We cannot modify our order in that case without giving the other parties notice and an opportunity to be heard. Mr. Hudson is free to make a motion for such modification with notice to all parties to CA No. 33-89. The judgment creditor in the present case is also free to intervene in CA No. 33-89 in order to assert any prior entitlement to the garnished funds. Pending any such motion, the funds will remain where they are.

It is so ordered.

*********

Hirata; American Samoa Gov’t v.


AMERICAN SAMOA GOVERNMENT , Appellant

v.

LARRY HIRATA, Appellee

AMERICAN SAMOA GOVERNMENT, Appellant

v,

SOANE TAUSAGA, Appellee

AMERICAN SAMOA GOVERNMENT, Appellant

v.

SOANE MANUHA'APAI, Appellee

High Court of American Samoa 
Appellate Division

AP No. 4-89 
AP No. 10-89 
AP No. 13-89

July 28, 1989

__________

Where the government appeals from an order dismissing criminal charges, it must show that dismissal resulted from the misconstruction of the statute upon which prosecution was founded. A.S.C.A. § 46.2405(a)(1). [12ASR2d23]

Appellate court could not assume, from the mere fact of dismissal of criminal complaints by the district court, that dismissal resulted from misconstruction of a statute rather than the insufficiency of the evidence. A.S.C.A. § 46.2405(a)(1).

Before KRUSE, Chief Justice, CANBY,* Acting Associate Justice, THOMPSON,** Acting Associate Justice, VAIVAO, Associate Judge, and AFUOLA, Associate Judge.

Counsel: For Appellant, Jerry Williams, Assistant Attorney General 
For Appellees, Charles V. Ala'ilima

Per Kruse, C.J.:

In these separate matters, the government appeals the District Court Judge's dismissal of certain criminal charges filed against the appellees/defendants. The District Court Judge ruled at the conclusion of each of the preliminary examinations that the evidence presented by the government was not sufficient to establish probable cause. The government relies on the provisions of A.S.C.A. § 46.2405 to establish its right to appeal. (1) This enactment provides in pertinent part:

(a) In a criminal case, the government may appeal in the 
following instances:

(1) from a[n] order....dismissing the information, complaint 
or other accusation, or any count thereof, where the decision 
is based upon the... construction of the statute upon which 
the prosecution is founded.

As we understand the government's argument, it rests on the following propositions: the government presented a certain amount of [12ASR2d24] evidence; that amount of evidence was sufficient for any "reasonable" person to find probable cause; accordingly, in concluding otherwise, the District Court must have misconstrued the pertinent enactments. This is speculation on the part of counsel. The government has nowhere directed us to any statement or ruling of the District Court which would indicate how that court construed ---or misconstrued ---the statutes involved. Rather, we are only told that the Court dismissed each of the complaints based on a finding of insufficient evidence. We are unable, from the mere fact of dismissal, to assume automatically that that dismissal necessarily resulted from the misconstruction of a statute rather than the insufficiency of the evidence.

The ruling the government seeks would mean that each time the District Court Judge found the evidence presented in a preliminary examination to be insufficient to bind a defendant over for trial, the government could assert that the statute had been misconstrued and appeal. if this were what the Fono indeed intended to do, it could have done so explicitly. In our view, appeals are open to the government only in the more limited instances where the asserted misconstruction rests on something more than inference.

The appeals are dismissed.

*********

* Honorable William C. Canby, Jr., Judge, United States Court of Appeals for the Ninth Circuit, serving by designation of the Secretary pf the Interior.

** Honorable David R. Thompson, Judge, United States Court of Appeals for the Ninth Circuit, serving by designation of the Secretary of the Interior.

1. In its brief the government also cited a federal statute, 18 U.S.C. § 3731, as further authority for its right to appeal. However, at oral argument counsel wisely abandoned this contention.

Ga`opo`a; American Samoa Gov’t v.


AMERICAN SAMOA GOVERNMENT, Plaintiff

v.

JOHN GA'OPO'A, Defendant

High Court of American Samoa 
Trial Division

CR No. 23-89

September 22, 1989

__________

Where court had allowed defendant a limited "work release " during a term of detention as a condition of probation, and defendant had wilfully violated the terms of the work release by spending time at home and engaging in social activities during times when he was released solely for purposes of employment, the work release would be revoked an the defendant held in contempt of court.

Before REES, Associate Justice, VAIVAO, Associate Judge, and AFUOLA, Associate Judge. [12ASR2d109]

Counsel: For Plaintiff, Jerry Williams, Assistant Attorney General 
For Defendant, Togiola T.A. Tulafono

On Order to Show Cause:

On June 29, 1989, defendant was sentenced to serve two years in the Correctional Facility for the crime of Second Degree Assault. The sentence was suspended and defendant was placed on probation for five years. One of the conditions of his probation was that he actually serve six months in the Correctional Facility. The Court's order provided that during this six month period of detention the defendant was not to be released from the Facility except with Court approval or for emergency medical treatment.

On July 21, 1989, defendant requested the Court to modify its order to allow for "work release." The Court granted the requested modification subject to several conditions.

The conditions were carefully drawn to ensure that the "Work release" would genuinely serve its stated purpose. The order allowed the Commissioner of Public Safety to release the defendant "only during such hours between 6:00 a.m. and 6:00 p.m. Monday through Friday as are necessary to allow defendant to work at his place of employment. "The order further provided that defendant was "to go directly to work and to return directly to the Correctional Facility after work." He was "to remain at his employer's principal place of business throughout the day" and was "not to be employed in any capacity that would require him to leave his employer's principal place of business."

On August 31, 1989, defendant's Probation Officer met with him to discuss reports that he had been seen around the island at times and places not authorized by the Court's order. Defendant confirmed that he had been sometimes been released from the Correctional Facility on Saturdays. He said he could not remember whether he had been at the market one Saturday rather than at his place of employment. He also told the Probation Officer he would prefer to be on "home release" rather than "work release." The Probation Officer reminded him of the terms of the Court's order and told him any modification would have to be authorized by the Court.

Later that same day a call was placed from the Court to defendant's place of employment. The person who answered the phone [12ASR2d110] said that defendant was not working that day. An attempt was then made to reach the defendant at the Correctional Facility, Defendant was not there either; the Facility's records reflected that he had been released to go to work.

The Court then issued an order requiring defendant to show cause why he should not be held in contempt of Court for violating the terms of the work release order, and why his work release should not be revoked.

On September 5, 1989, a Tuesday, the Marshal of the High Court attempted to serve the Order to Show Cause on defendant at his place of employment. Defendant was not there. The Marshal located defendant at his residence in Malaeimi.

The order to show cause was heard on September 19, 1989. Defendant admitted being away from the facility on Saturdays. He further admitted that he frequently spent time at his home rather than at his place of employment, and that he and his wife had breakfast one Saturday at the market place and then socialized with several other inmates who were also on work release. His excuses were that there was frequently no work for him to do at his place of employment; and that he had read but not understood the Court's order requiring him to return directly to the Correctional Facility after work and not to spend time at any other place. He apologized and promised not to violate the order again.

Under the circumstances excuses and apologies are not enough. Defendant is an intelligent man. He graduated from high school in California and is fluent in the English language. The Court's order was carefully drafted with the specific purpose of making it impossible for anyone to interpret "work release" to mean "home release" or "brunch release." And yet this is how the defendant chose to interpret it. Moreover, on August 31 the order was explained to him again by his Probation Officer. He complained about the terms of the order and was told that it could not be changed except by the Court. And then he violated the order again that very day. Finally, contrary to defendant's testimony at the Order to Show Cause hearing, he violated the order at least once more on the following Tuesday when the Marshal found him at his residence. [12ASR2d111]

The Court's order of August 2, 1989, allowing the release of the defendant for the purpose of employment, is hereby rescinded, During the remainder of his six-month period of detention the defendant is not to be released from the Facility without written permission of the Court except in case of medical emergency.

The Court further finds that defendant's wilful violation of the August 2 order constitutes contempt of court. Sentencing for this contempt will he deferred until the completion of defendant's period of detention, If he complies with the present order and with all other terms of his probation during the remaining period of detention, no additional sentence will be imposed.

It is so ordered.

*********

Development Bank v. Sam Scanlan, Inc.,


DEVELOPMENT BANK OF AMERICAN SAMOA, Plaintiff

v.

SAM SCANLAN, Inc., FANENE SCANLAN , 
and LALOIFI SCANLAN, Defendants

MA'I AFUVAI, Intervenor in Post-Judgment 
Execution Proceeding

High Court of American Samoa 
Trial Division

CA No. 69-88

August 30, 1989

__________

When lessors, by not paying their lawful debt to the bank that held the mortgage on the leased premises, caused a writ of execution to be issued against the premises, they breached the covenant of quiet enjoyment which is an essential element of very leasehold agreement. Unrecorded lease of building, which did not include the land on which the building was located, gave rise only to contractual rights, not to a real interest in the property.

Where lessor's mortgagee had secured a writ of execution against the leased premises, and unrecorded lease gave lessee no real interest in the property, lessee could have been lawfully evicted by mortgagee with no recourse but to try to collect his damage from the lessor.

When lessor's mortgagee secured a writ of execution against leased premises, giving mortgagee the legal right to evict lessee at any time, the lessee was constructively evicted from the premises by the fault of the lessor .

That lessor's mortgagee, after securing a writ of execution against leased premises, initially chose not to evict the lessee but instead allowed lessee to remain as a tenant at will, was irrelevant to analysis of the legal relationship between lessor and lessee.

Lessors of nightclub who continued to regard themselves as its proprietors, demanded drinks on credit, threatened to fire employees of their lessee who attempted to deny such credit, and ordered the lessee to remove a rock he had placed on top of a loose piece of roof but refused to fix the roof themselves, justified the lessee in regarding the lease as at an end.

Where lease provided that lessee would be entitled, upon termination of the lease by fault of the lessor, to return of furniture and other improvements he installed, "less depreciated value," and where the depreciated value of all such furniture and improvements was less [12ASR2d75] than the amount spent by the lessee on improvements that could not easily be removed from the building, the lessee would be entitled to the return of all furniture and improvements not affixed to the building.

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

Counsel: For Plaintiff, Steven H. Watson 
For Defendant, John L. Ward II 
For Intervenor, Charles V. Ala'ilima

On Motion to Intervene in Post-Judgment Execution Proceeding:

The Development Bank sued defendants for the balance due on a loan, and defendants stipulated that judgment be entered against them in the amount of $68,397.98. On December 29, 1988, a writ of execution was issued ordering the Marshal of the High Court to seize and sell property of the defendants in the amount of the judgment. The judgment creditor's instructions to the Marshal specified only one asset, a leasehold interest in "the premises commonly known as the Seaside Garden Club."

The Marshal did not immediately seize the Garden Club, which defendants were then sub-leasing to a partnership whose principal operating officer was Ma'i Afuvai. Instead, by mutual agreement of the Bank, the defendants, and Afuvai, the monthly rent Afuvai had been paying to defendants was thereafter paid directly to the Bank. The Bank remitted $500 monthly to defendant Fanene Scanlan and applied the rest toward the judgment debt.

This arrangement broke down quite dramatically on the evening of June 1, 1989, when Mr. Afuvai, after an argument with Mr. Scanlan, closed the Garden Club and began throwing heavy objects around the premises. Several items were broken including at least one exterior glass door. Counsel for the Bank, driving by the Club on his way to work the next morning, perceived something amiss and posted a guard. The Bank then caused its seizure of the defendants' interest in the Garden Club to be perfected.

The Marshal seized not only the premises but also the Club's inventory , fixtures, equipment, and furniture. Afuvai has petitioned the Court for the return of most of the furniture and equipment, which he[12ASR2d76] says is his own personal property. Defendants maintain, however, that the furniture and equipment placed in the Garden Club by Afuvai became the property of Sam Scanlan, Inc., in accordance with the terms of the sub-lease to Afuvai.

The document in question does provide that lessee (the Afuvai partnership) was to "renovate and refurnish the interior" of the Club. The "initial costs of renovation, furnitures, equipments and inventories" were to be $30,000 "to be verified by invoices." In exchange for these renovations, lessee was to pay $2500 per month rent rather than some unspecified higher figure. Under the lease, therefore ---contrary to the usual rule whereby only fixtures "permanently attached " to leased premises by a lessee are said to become part of the premises ---the furniture as well as the other items purchased by Afuvai would have become the property of Sam Scanlan, Inc., had the lease run its course.

The lease also provided, however, that if it should be "terminated due to the fault of the lessor then all improvements less depreciated value [would] be reimbursed to lessee." We are convinced that the lease did in fact terminate by the fault of the lessor, several months prior to Mr. Afuvai's inexcusable outburst.

When defendants, by not paying their lawful debt to the Bank, caused a writ of execution to be issued against the leased premises, they breached the covenant of quiet enjoyment which is an essential element of every leasehold agreement. Because the Afuvai lease was unrecorded (and also because it appears to have been a lease only of the building, inventory , and equipment that comprised the Garden Club rather than of the land on which the Club was located) it gave rise only to contractual rights, not to a real interest in the property. Afuvai could have been lawfully evicted at any time after December 29, 1988, with no recourse but to try to collect his damages from the Scanlans. On that day, therefore, Afuvai was constructively evicted from the premises by the fault of the lessor. That the Bank initially chose not to shut down the Club and sell its contents, but instead allowed Afuvai to remain as a tenant at will, is irrelevant to an analysis of his legal relationship with the Scanlan defendants.

The record also reflects other breaches by the Scanlans. Having leased the Club to the Afuvai partners, Fanene Scanlan and some members of his family apparently continued to regard themselves as its proprietors. They demanded drinks on credit, and repeatedly threatened to fire employees who attempted to deny such credit. When part of the [12ASR2d77] Club's roof blew away and Afuvai secured another loose piece of the roof by placing a large rock on top of it, Fanene Scanlan told Afuvai to take the rock down because it was an embarrassment, but refused to fix the roof. Even if the Scanlans had not altogether lost control of the property, Afuvai would have been justified in regarding the lease as at an end well before June 1989.

Afuvai is still the owner, therefore, of the furniture and other improvements he installed, "less depreciated value." Although the actual cost of these improvements is disputed, the expenditure required by the lease was $30,000. At the time of the constructive eviction the lease had run for about 19 1/2 months of its 48-month term. The" depreciated value" owed by lessee upon the premature termination of the lease is therefore 19.5/48 x $30,000, or $12,187. (1) As it happens, this is somewhat less than the amount Afuvai spent (even accepting the Scanlans' estimate of about $6000 for labor costs rather than Afuvai's estimate of $15,000) on the improvements that cannot easily be removed from the building: lumber, paint, doors, interior decorations, and so forth. Afuvai is entitled, therefore, to the return of all items in the Marshal's inventory that are not affixed to the building by bolts, glue, or similar devices. He also remains the owner, in accordance with the lease agreement, of any kitchen equipment purchased by him whether or not it is affixed to the building. The Marshal is directed to return these items to Afuvai.

Whether Afuvai is liable to the Scanlans, or to the Bank, for damage done in the June 1 incident to items not belonging to him, is not before s in this proceeding. Nor do we express any opinion concerning the rights of Afuvai and his partners, if any, in "Garden Club Ltd." as among themselves. [12ASR2d78]

It is so ordered.

*********

1. Counsel for defendants suggests that the $30,000 should be depreciated only over the first two years of the lease, since the parties were to "review lease price after two (2) years and renegotiate a lease price fair to both parties." Counsel suggests that this term, together with Fanene Scanlan's testimony that a previous tenant had been paying $5000 per month before going out of business, establishes that the $30,000 was fully depreciated over two years. We find this possibility no more or less plausible, however, than that the parties were to negotiate an increase or decrease according to the cost of living, or to the gross receipts of the Club, or to some other factor not in evidence. We know little or nothing about whether the "fair market value" of the premises was $2500, $5000, or some other figure. The 1ease did not provide for termination after two years if no new rate were negotiated; rather, in that case the $2500 figure was to remain in force for "the full term of this lease." The evidence therefore preponderates in favor of depreciation of the $30,000 over the four years of the lease term.

Vaimaona v. Tuitasi,


VAIMAONOA FOLOI, ARIETA VAIMAONA,
LAGIMA VAIMAONA, and TAU FUIAVA, Plaintiffs

v.

FA'AMAMAFA TUITASI, Defendant

High Court of American Samoa
Land and Titles Division

LT No. 18-88

August 28, 1989

__________

Sa'o of Samoan family should, in accordance with Samoan custom, have consulted family members before alienating family land.

Family members who had not been consulted by sa'o who alienated family land might, in an action against the sa'o, prove their entitlement to an accounting, to compensation for any alienated lands previously assigned to them, and possibly even to removal of the sa'o from his matai title.

Where sa'o had failed to consult with family members before alienating communal land, but had followed all statutory procedures for alienation of communal land including approval of the land commission and the governor, aggrieved family members could pot secure the invalidation of the record title to the land in the new owner.

Testimony by those seeking to invalidate a land registration, to the effect that they never saw the required notices posted, was insufficient to meet the heavy burden of proving that the territorial registrar ignored his sworn duty by recording title to the land without posting the required notices.

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

Counsel: For Plaintiffs, Togiola T .A. Tulafono
For Defendant, Charles V. Ala'ilima

The Court finds the facts to be as follows:

1) Plaintiff Vaimaona Foloi is the senior matai of the Vaimaona family of the village of Lauli'i. The other plaintiffs are members of the Vaimaona family. [12ASR2d69]

2) Defendant Fa'amamafa Tuitasi is also a member of the Vaimaona family.

3) On or about December of 1977, plaintiff Vaimaona Foloi executed a warranty deed conveying a certain portion of the Vaimaona communal land called Mulipa to defendant Tuitasi.

4) Defendant Tuitasi then undertook to register the tract as her own individual land. The record does not reflect whether, before or during this initial attempt at registration, defendant Tuitasi or plaintiff Vaimaona Foloi attempted to secure approval of the conveyance by the Land Commission and the Governor, as is required by A.S.C.A. §§ 37.0201 et seq. for the alienation of communal land.

5) When plaintiff Arieta Vaimaona learned of the warranty deed and of the pending registration procedure, she complained to various government officials including the then-Acting Governor. The record does not reflect that any formal action was taken by the Registrar, the Land Commission, or anyone else to deny the registration. All parties agree, however, that Ms. Vaimaona's efforts somehow resulted in the destruction or disappearance of the original copy of the warranty deed.

6) At a meeting of the Land Commission either on September 28, 1987, or shortly before that date, plaintiff Vaimaona Foloi appeared personally before the Commission to seek its approval of his conveyance of the land to defendant Tuitasi. Members of the Commission asked him if he had consulted with his family about the transaction, and he said he had not. Members of the Commission then recommended that he not alienate the land without consulting with his family, and also suggested that a separation agreement in favor of Ms. Tuitasi would be far preferable to an outright conveyance. (1)

7) Either later the same day or at a subsequent meeting of the Commission, Vaimaona Foloi returned to the Commission and reiterated his request for Commission approval of the conveyance to Ms. Tuitasi. This time, at a meeting held on September 28, 1987, the Commission approved the conveyance. [12ASR2d70]

8) On October 2, 1987, the conveyance was approved in writing by then-Governor A.P. Lutali. (This was done by signing a copy of the warranty deed.)

9) Meanwhile, on August 6, 1987, defendant Tuitasi had offered the deed for registration as her individually owned land. Notice of the offer of registration was posted at the Court House and at two public places in Lauli'i as required by law, and on October 20, 1987, no objection having been filed to the proposed registration, the Territorial Registrar recorded the land as the individually owned property of defendant Tuitasi.

It is the conclusion of the Court that the land is the individually owned property of defendant Tuitasi.

Plaintiffs' complaint alleges that the defendant defrauded Vaimaona into thinking he was signing something other than a warranty deed. Then she is alleged to have waited ten years and snuck the conveyance past the Land Commission without the knowledge of any of the plaintiffs. Far from proving any of this, the evidence establishes that Vaimaona was specifically advised by members of the Land Commission of the nature of the conveyance yet reiterated his request that it be approved.

It does appear that plaintiff Vaimaona, the sa'oof the family, acted under the influence of the forceful personality of defendant Tuitasi. It also appears that Vaimaona and others, including whoever improperly removed or destroyed the original copy of the deed, have been influenced at times by the equally forceful personality of plaintiff Arieta Vaimaona. Such influence does not render null and void the otherwise lawful actions of the sa'o, the Land Commission, the Governor, and the Territorial Registrar.

If there was any fraud in this case it was by the sa'o himself against the members of the family who should, in accordance with Samoan custom, have been consulted before any family land was alienated. This is not, however, an action by such family members [12ASR2d71] against the sa'o; he appeared in this case a plaintiff rather than a defendant. Aggrieved family members might well prove their entitlement to an accounting from the sa'o, to compensation for any lands previously assigned to them that were alienated to Ms. Tuitasi, and possibly even to removal of Vaimaona from his matai title. They could not, however , secure the invalidation of the record title to the land. Although the real property statutes of American Samoa provide numerous safeguards in an effort to deter the alienation of communal land when such alienation would not be in accordance with tradition, a matai who is really determined to ignore tradition ---and who secures the approval of the Land Commission and the Governor and complies with all other statutory procedures ---is legally free to do so.

Finally, any objections to the registration of this land as the individual land of defendant Tuitasi come too late. A.S.C.A. §§ 37.0101 et seq., require that such objections be made within sixty days of an offer of registration or be forever barred. See Ifopo v. Siatu'u, AP 12-89 (July 12, 1989). In this case, as in most other collateral attacks on land registration, those who would invalidate the registration testified that they never saw the notices posted. Such testimony is insufficient to meet the heavy burden of proving that the Registrar ignored his sworn duty when he recorded Ms. Tuitasi's title to the land. See Ifopo, supra. In the present case the plaintiffs did not even call the Registrar or any member of his staff as a witness on the question of posting. In the absence of clear and convincing evidence to the contrary, the official record stands.

For the foregoing reasons, the action is dismissed. (2) It is so ordered.

VAIVAO, J., concurring in part and dissenting in part:

Although the decision of the Court is correct according to the law, the sa'o should never have alienated this communal land without consultation and consent of the family.

The Fono has recently enacted an amendment to A.S.C.A. § 37.0103 that will prevent the registration of land unless the proposed [12ASR2d72] registration has been advertised at least twice in a local newspaper. Public Law No. 21-1. This law will go a long way toward solving the problems presented by cases like this one. The Fono should also provide, however, that the Land Commission may not approve the alienation of communal land unless it is satisfied that there has been full consultation with the whole family and that the family consents to the alienation. Indeed, the Fono should strongly consider an outright prohibition on the further alienation of communal land.

I concur in the judgment, because the law allows the Court no choice in the present case. But I strongly disagree with the law insofar as it allows any alienation of communal land except in strict accordance with Samoan custom.

(Rees, J., joins in this separate opinion. )

*********

1. One member of the Commission who testified at trial, Western District Governor Tuitele Le'oso, remembered only the first meeting at which the members of the Commission advised Vaimaona not to convey the land. Another member of the Commission, former Manu'a District Governor Soli Aolaolagi, testified to the subsequent appearance of Vaimaona before the Commission and the decision to approve his request. The official minutes of the Commission, attested by its secretary Territorial Registrar Pelema Kolise, confirm the Commission's approval of the conveyance on September 28. 1987. The evidence therefore clearly preponderates in favor of Vaimaona 's reiteration of his request and the Commission's ultimate approval thereof, although the record does not reflect whether the two appearances happened on the same or different days.

2. The foregoing are the findings and conclusions of the Associate Justice, who presided at trial. The judges have conferred on this matter and judgment is being entered today in accordance with A.S.C.A. § 3.0241(8). The Associate Judges have not, however, had the opportunity to review the written opinion of the presiding judge, and reserve the right to concur, to dissent, or to join in the opinion.

In re a Minor Child (Juv. No. 19-89),


In the Matter of a MINOR CHILD

High Court of American Samoa
Trial Division

JUV No. 19-89

July 21, 1989

__________

Where grounds for petition to terminate parental rights were simply that the child's grandmother had taken care of her since birth, the petition failed to show circumstances of a "neglected or dependent child" as required by territorial statute. A.S.C.A. § 45.0401(a)(1) & (a)(3). [12ASR2d16]

For parental rights to be voluntarily relinquished, the court must be satisfied that the relinquishing parent was counseled and fully advised of the consequences and that relinquishment best serves the interests of all concerned parties. A.S.C.A. §§ 45.0401(a)(2), (d), & (t).

Petition by child's grandmother to terminate the parental rights of her daughter and son-in- law should be denied, even if it could be construed as a voluntary petition for relinquishment by the natural parents, where the court could neither ascertain whether absent natural parents were counseled and advised of consequences nor conclude that the child's best interests (considering age, income, prospects, and composition of both households) would be served.

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

Counsel: For Petitioner, Robert Porter

Grandmother, who was recently widowed, petitions to terminate the parental rights of her daughter and son-in-law to their four year old daughter whom she wishes to adopt. The natural parents are a young couple who left the territory last year in pursuit of the natural father's new career with the United States Army. They have, however, executed a notarized document which recites their consent to grandmother's adoption of their daughter. Prior to starting out a life in the armed forces, the natural parents lived in the territory with grandmother .

The grounds for the petition are simply that grandmother (together with grandfather while he was alive) took care of the child since birth.

The petition is denied. The facts here do not reveal the circumstances of a "neglected or dependent child" envisaged by A.S.C.A. §§ 45.0401(a)(1) and 45.0115(a)(3), which provide the basis for a petition to terminate parental rights. See In re Two Minor Children, 8 A.S.R.2d 75 (1988). Rather, the facts here reveal circumstances of "voluntary relinquishment" envisaged by A.S.C.A. § 45.0401(a)(2). Even if we treat the petition as one of voluntary relinquishment the end result would nonetheless be denial of the petition. A.S.C.A. § 45.0401(b) states that:

No parent may relinquish his parental rights in a child other
than in accordance with the provisions of this chapter [A.S.C.A.
§§ 45.0402 et seq.]. [12ASR2d17]

Before a petition for voluntary relinquishment may be granted, the Court is required by A.S.C.A. § 45.0402(d) to be satisfied "that the relinquishing parent has been counseled and fully advised of the consequences of his act." The Court is further required by paragraph (f) of this enactment to be satisfied that the"relinquishment would best serve the interests of all parties concerned." Neither of these requirements has been satisfied on the evidence before us.

Firstly, the natural parents were not before the Court and accordingly we had no opportunity to evaluate whether they had been counseled and fully advised as to the consequences of relinquishment.

Secondly, and perhaps more importantly, we simply cannot conclude that the minor's best interests would be secured by terminating her legal relationship to her parents. We can find nothing on the evidence to suggest that her grandmother is better equipped to secure the child's future than her parents. The circumstances of the natural parents are that they are 23 and 22 years of age respectively. They are a relatively young couple who have opted to start out in life with the security that a military career offers. There is a wealth of benefits available to military dependents to which this petition, if granted, would disentitle the minor .

On the other hand, grandmother's income is limited. She receives a modest survivor's benefit in the way of a monthly check. (For purposes of these proceedings she has also figured into her disposable income the social security benefits which she receives on behalf of her own dependent child.) We note the difference in age between her and her grandchild as well as the grandchild's expected period of minority and dependence. This is a relevant factor which weighs against the petition. Further, we cannot avoid noticing that there is no father figure in grandmother's household. While none of these factors are conclusive in every case to deny a petition, they, in sum, tally negatively against altering the child's natural circumstances.

Petition is denied.

*********

Immigration Bd.; Rakhshan v.


DAVOUD RAKHSHAN, Appellant

v.

IMMIGRATION BOARD, AMERICAN
SAMOA GOVERNMENT, Appellee

High Court of American Samoa
Appellate Division

AP No. 18-89

August 29, 1989

__________

Appellate court cannot entertain an ex parte motion for stay of immigration order, since applicable rule requires that notice be given to all parties. Appellate Court Rule 18.

Stay of deportation order should not be granted unless petitioner proves both that there is a substantial likelihood of his prevailing on the merits and that he will be greatly or irreparably injured if the stay is not granted. [12ASR2d73]

Proof of elements required for stay of deportation order ordinarily requires a hearing.

Before REES, Associate Justice.

Counsel: For petitioner, Charles v. Ala'ilima

On petition for stay:

Appellant has been ordered by the Immigration Board to leave the Territory for his country of origin by August 31, 1989.

He now moves ex parte for a stay of this order pending judicial review.

The Court cannot entertain such an ex pane motion. Appellate Court Rule 18 specifically requires that "[r]easonable notice of the motion shall be given to all parties."

Moreover, a stay of a deportation order should not be granted unless petitioner proves both that there is a substantial likelihood of his prevailing on the merits and that he will be greatly or irreparably injured if the stay is not granted. Leti v. Immigration Board, 8 A.S.R.2d 107 (1988). Such proof ordinarily requires a hearing. It is not clear why this motion is being made only two days before the deadline, when a hearing with the requisite reasonable notice will be difficult if not impossible to arrange.

If, however, petitioner complies immediately with the notice provision of Rule 18, it may be possible to schedule an expedited hearing at some time during the next two days.

*********

 

Ifopo v. Siatu'u,


IFOPO SAIPISA and
IFOPO FAMILY, Appellants

v.

SA SIATU'U, FIAAOGA SIATU'U,
SAPINI SIATU'U and the children of
SIATU'U, Appellees

High Court of American Samoa
Appellate Division

AP No. 12-89

July 28, 1989

__________

Land registration statute, under which any objection to proposed registration must be filed within sixty days or land is registered in the name of the claimant and all other claims of[12ASR2d25] ownership are forever precluded, does not amount to a judicial transfer of land from the "true" owner to the registered owner; rather, the statute gives anyone who believes himself the owner of land a fair opportunity to present his claim to the court, and then conclusively presumes that anyone who did not avail himself of this opportunity was not the true owner of the land. A.S.C.A. §§ 37.0101 et seq.

Land registration statute gave competing claimants sixty days in which to urge any objection to the proposed registration, including objection that the land was communal and that no sale was approved by the Land Commission or by the Governor. A.S.C.A. §§ 37.0101 et seq., 37.0204.

Where objections to land registration based on statutory procedures for alienation of communal land were not raised within sixty days of proposed registration, the law conclusively presumes either that the procedures for alienation of communal land were met or that the land was not communal. A.S.C.A. §§ 37.0101 et seq., 37.0204.

Purpose of requirement that objection to proposed registration of land be made within sixty days was to relieve the registrant of the burden of affirmatively proving every fact necessary to establish title after the passage of many years, during which witnesses would tend to die and documents to be lost or destroyed. A.S.C.A. §§ 37.0101 et seq.

Where statutory scheme including land registration procedure and restrictions on alienation of communal land effected its own reconciliation of competing policies, there was no need for a court to fashion a new and different one by refusing to enforce land registration statute. A.S.C.A. §§ 37.0101 et seq., § 37.0204.

Courts can and do disregard land registrations that are clearly proved to have been procured by fraud, or in which the failure to afford required notice affirmatively appears in the record of the regi5tration. A.S.C.A. §§ 37.0101 et seq.

Territorial registrar is charged with regi5tering title to land only when all statutory registration procedures have been met, and court should not assume that he did not comply with this obligation. A.S.C.A. §§ 37.0101 et seq.

Court could not conclude that notice required by statute was not given simply because the registrar's file contained no document atte5ting such notice, or because a number of witnesses testified that they never saw any notices. A.S.C.A. §§ 37.0101 et seq.

Land registration statute cannot have the intended effect of affording finality to disputes and security to titles if court is prepared to conduct its own de novo review of whether there was compliance with the statute in every case where non-compliance is alleged; rather, court must assume ---and absent compelling evidence to the contrary must conclude --that territorial registrar recorded a title only after complying with his obligations under the law. A.S.C.A. §§ 37.0101 et seq.

Before REES, Associate Justice, CANBY,* Acting Associate Justice, [12ASR2d26] THOMPSON,** Acting Associate Justice, OLO, Associate Judge, and VAIVAO, Associate Judge.

Counsel: For Appellants, Tautai A.F. Fa'alevao
For Appellees, Gata E. Gurr

Per Rees, J.:

Appellant Ifopo sued for eviction of the Siatu'u family from a small piece of land claimed to be communal land of the Ifopo family. The land, however, was registered in 1945 as the individual property of Reverend Peleti Siatu'u, the late father of the appellees. Ifopo claimed that Siatu'u never had any right to register the land and that the registration did not confer title; the Siatu'us responded that their father had bought the land from the father and grandfather of the present Ifopo and registered only what he had purchased.

The trial court held that when land is offered for registration in accordance with A.S.C.A. §§ 37.0101 et seq., anyone who wishes to object on any ground whatever to the registrant's claim of ownership must do so within the statutory sixty-day limit. Ifopo v. Siatu'u, LT No. 10-88, 10 A.S.R.2d 66 (1989); see A.S.C.A. §§ 37.0103 (a)-(b). If an objection is lodged within the sixty days, the matter is referred to the High Court for adjudication of the competing claims; if not, the land is registered in the name of the claimant and all other claims of ownership are forever precluded. Puluti v. Muliufi, 4 A.S.R, 672 (1965); Molitui v. Pisa, 2 A.S.R. 268 (1947).

Appellant urges that for the Court to give such preclusive effect to the registration process amounts to a sort of judicial transfer of the land from the "true" owner to the registered owner. As the trial court observed, however, the registration statute gives anyone who believes himself the owner of land a fair opportunity to present his claim to the court; it then conclusively presumes that anyone who did not avail himself of this opportunity was not the true owner of the land.

Appellant urges, however, that in giving effect to the registration statute the trial court failed to take account of the statute prohibiting [12ASR2d27] alienation of communal lands without approval of the Land Commission and the Governor. This prohibition is currently codified as A.S.C.A. § 37.0204, and was formerly contained in 18 A.S.C. §§ 1281-82. In the present case there was no evidence that any sale from Ifopo to Siatu'u was approved by the Governor and the Land Commission. Appellant urges that the Court must "reconcile" the registration statute with the prohibition on alienation of communal lands, and that the proper reconciliation is to treat the registration by Siatu'u as null and void unless it should affirmatively appear that his purchase from Ifopo was approved by the Land Commission and the Governor .

The statutory registration process, gave Ifopo or any member of the Ifopo family sixty days in which to urge any objection to the proposed registration by Siatu'u. This would include the objection now urged by Ifopo: that the land was communal and that no sale was approved by the land Commission or the Governor. If such an objection had been made and proved, Siatu'u would never have been allowed to register the land. Since no objection was made within the specified period, the law now conclusively presumes either that the procedures for alienation of communal land were met or that the land was not communal.

The purpose of requiring such an objection to be made within sixty days of the proposed registration was precisely to relieve the registrant of the burden which appellant now wishes the Court to impose: the burden of disproving the objection by affirmatively proving every fact necessary to establish title after the passage of many years, during which witnesses would tend to die and documents would tend to be lost or destroyed. The registration statute does not ignore or nullify the restriction on alienation, but provides a channel for its orderly administration. Since the statutory scheme effects its own reconciliation of the competing policies, there is no need for the Court to fashion a new and different one by refusing to enforce the registration statute.

Finally, Ifopo urges that the registration was invalid because the required notice was never given. This contention is based partly on the testimony of Ifopo herself (who did not live in American Samoa in 1945) to the effect that neither she nor any member of her family ever learned of the proposed registration, and partly on the absence in the files on the Territorial Registrar of a certificate from the pulenu'u that the required notice had been given. [12ASR2d28]

This contention is easily the most serious of those raised by appellant. If no notice was given, then the central purpose of the registration statute was defeated and due process of law was denied. Courts can and do disregard registrations that are clearly proved to have been procured by fraud, or in which the failure to afford the required notice affirmatively appears in the record of the registration itself. See, e.g., Faleafine v. Suapilimai, 7 A.S.R. 2d 108 (1988).

The Territorial Registrar, however, is charged with registering title only when all the statutory procedures have been met, and the court should not assume that he did not comply with this obligation. As the court observed, that a document should be missing from a file in the Registrar's office is so common as to be an extremely unreliable indicator of whether an event that might have been attested by the document did or did not occur. Nor can the Court conclude that no notice was given simply because a number of witnesses testified that they never saw any notices. The registration statute cannot have the intended effect of affording finality to disputes and security to titles if the Court is prepared to conduct its own de novo review of whether there was compliance with the statute in every case where non-compliance is alleged. Rather, the Court must assume and, absent compelling proof to the contrary , must conclude ---that the Registrar recorded a title only after complying with his obligations under the law.

In the present case the trial court correctly refused to look behind a Registrar's certificate of title that had gone unchallenged for over forty years. As the trial court observed,

[e]ven a casual glance at the [registration statute]... would
reveal the unmistakable legislative design to secure finality
of the registration process. A review of the process some 40
years after the fact must surely be in derogation of that
objective. If review could be readily available at any time
whatsoever, then any public confidence in the recordation
process will disappear and "[the] security of registered land
titles would be seriously weakened to the detriment of the
Samoan people."

10 A.S.R.2d at 70, quoting Molitui v. Pisa, supra, at 270.

Accordingly, we affirm the judgment of the trial court.

*********

*Honorable William C. Canby, Jr., Judge, United States Court of Appeals for the Ninth Circuit, serving by designation of the Secretary of the Interior.

**Honorable David R. Thompson, Judge, United States Court of Appeals for the Ninth Circuit, serving by designation of the Secretary of the Interior.

Hall; Siofele v.


PAPU JOSEPH SIOFELE, Jr., Petitioner

v.

ROY J.D. HALL, Jr., Respondent

AMERICAN SAMOA BAR ASSOCIATION,
Real Party In Interest

High Court of American Samoa
Trial Division

CA No. 64-89

July 20,1989
__________

Chief Justice of the High Court has the ultimate authority to decide who may practice law in the territory. A.S.C.A. § 31.0101(a).

Administrative body's failure to act may be addressed through extraordinary writ proceedings. T.C.R.C.P. Rule 88.

Two week peri09 without formal response from bar association to petitioner's letter requesting reinstatement was not the sort of "failure to act" which might be remedied by extraordinary writ proceedings, especially where petitioner did not file a formal application or provide requested infoffi1ationto the bar association.

Before KRUSE, Chief Justice.

Counsel: Petitioner Papu Siofele, Jr., Pro Se

At one time, the petitioner was a legal practitioner entitled to practice before this court. For reasons which are; not clear on the extent [12ASR2d10] of this record, his name was removed from the rolls of legal practitioners. Petitioner seeks a writ of mandate directing the American Samoa Bar Association to reinstate him on its list of members. (1)

The petitioner has not demonstrated that he has been aggrieved by any decision of the Bar Association. Indeed, he has not shown that the Bar Association has rendered any decision in his case. The materials he has submitted show only that he sent a letter to the Bar Association on June 21, 1989. He filed this petition on July 3, 1989. The Territorial Court Rules of Civil Procedure do provide that an administrative body's "failure to act" may be addressed through extraordinary writ proceedings. T.C.R.C.P. Rule 88. However, a two week period without a response is hardly the sort of "failure to act" which may be remedied by a writ of mandate. This is all the more so since petitioner, by his own admission, has not undertaken those steps which the Bar Association has asked him to take in reviewing his case. Respondent Hall apparently requested that petitioner file an application explaining the circumstances surrounding his being stricken from the membership of the Bar Association. This, petitioner has not done ---apparently in the belief that such application would be rejected out of hand. As this court said in another case involving petitioner, it "would be the height of discretionary abuse for this court to issue its writ to an [administrative body] to compel that [body] to do something it was never asked to do by a complaining party in the first place." Siofele v. Shimasaki, 9 A.S.R.2d 3, 7 n.3 (1988).

The petition is denied.

*********

1. Although the petitioner addressed his pleadings to the Appellate Division, the clerk has assigned the matter a Trial Division civil, docket number. Territorial Court Rule of Civil Procedure 88 provides that extraordinary review of executive or administrative acts is to be had in the Trial Division. Petitioner has chosen to sue the Bar Association and we will assume for purposes of considering this matter that the Bar Association could render the relief petitioner seeks. It is to be noted, however, that the ultimate authority to decide who may or may not practice law in the territory rests with the Chief Justice of the High Court. A.S.C.A. § 31.0101 (a).

Gi v. Temu ,


GI M. MALALA, for himself and on behalf
of the GI FAMILY of Pago Pago, Plaintiff

v.

LEAIA TEMU and SOLEMA TEMU, Defendants

High Court of American Samoa
Land and Titles Division

LT No. 22-88

August 25, 1989

__________

A motion for relief from judgment cannot be used as a substitute for appeal by one who had a fair chance to appeal and chose not to do so. T.C.R.C.P. Rule 60(b).

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

Counsel: For Plaintiff, Gata E. Gurr
For Defendants, Tau'ese P.F. Sunia

On Motion for Relief from Judgment:

[See Gi v. Temu, 11 A,S.R.2d 137 (1989); id. (Memorandum Order), 12 A.S.R.2d 33 (1989).]

This motion was heard on August 22, 1988. The Court heard the testimony of Freddie Malala, the son and brother of the two defendants and their designated spokesman, to the effect that neither he nor the defendants knew that they had lost the case until a day or two before July 16, when their then-attorney told him to come to his office to discuss the decision. Malala said he went to the office on July 16 but that the attorney could not find the decision; and that he came back the following day and was given a copy of the decision. He added that he discussed the case further with the attorney at a church revival meeting held a couple of days later in Tafuna, and that the attorney advised him not to appeal. [12ASR2d63]

The attorney submitted a memorandum stating that all these events happened about two weeks earlier than Malala said they did. The memorandum says the attorney called Malala on June 27, the very day the decision was issued, and explained the decision and the defendants' right to appeal; that during the following three days the attorney reminded Malala' s wife and then Malala himself that Malala should come in to the office to discuss the decision; that Malala finally came in on July 3 but that the attorney could not find his copy of the opinion; that on July 4 he did find it, gave a copy to Malala, discussed the impending deadline for filing a motion for new trial as a prerequisite to any appeal, and also discussed the prospects of success on appeal; and that on July 5 they met at a revival meeting and agreed that there should be no appeal.

The two-week difference is crucial. Defendants were required by law to file a motion for new trial by July 7 if they wished to appeal the Court's decision. See A.S.C.A. § 43.0802(a). If Malala's testimony is correct, defendants never knew of the statutory ten-day deadline until after it had passed. If the attorney's memorandum is correct, they did know about the deadline and deliberately let it pass.

The Court has ascertained (from evidence outside the record but conceded by defendants' present attorney to be correct) that the Tafuna revival meeting was held no later than July 7. Freddie Malala himself admitted that the meeting took place a day or two after he had been informed of the decision and of defendants' right to appeal. It is therefore clear that the attorney did in fact notify his clients of the July 7 deadline in time for them to have filed a motion for new trial had they so wished.

A Rule 60(b) motion for relief from judgment cannot be used as a substitute for appeal by one who had a fair chance to appeal and chose not to do so. Accordingly, the motion is denied and the Court's judgment stands. (1)

It is so ordered.

********

1. One finding of fact in our judgment will, however, be amended by stipulation of the parties. Defendant Solema Temu is the natural daughter of Temu Marara and is a blood member of the Gi family.

Gi v. Temu,


GI M. MALALA, for himself and on behalf
of the GI FAMILY of Pago Pago, Plaintiff

v.

LEAlA TEMU and SOLEMA TEMU, Defendants

High Court of American Samoa
Land and Titles Division

LT No. 22-88

August 7, 1989

__________

Attorney who was served with the court's opinion and judgment had a duty to inform his clients of the result in time for them to decide whether they wished to file a motion for new trial or reconsideration. A.S.C.A. § 43.0802(a), (b).

Parties who did not file a motion for new trial or reconsideration within ten days of judgment gave up their right to appeal the decision. A.S.C.A. § 43.0802(a), (b).

Attorney who was suspended from practice of law for a period beginning four days after he was served with court's opinion and judgment should have informed his clients of the opinion and explained their right to appeal prior to the date of his suspension.

Although deadlines for filing motions for new trial and appeal are set by the legislature and court is not free to overlook or extend them, a party may file a motion for relief from judgment after the statutory deadline for filing a motion for new trial. A.S.C.A. § 43.0802(a), (b); T.C.R.C.P. Rule 60(b).

To prevail on a motion for relief from judgment, a party must show not only that the judgment was wrong but also that he has some compelling justification for not having called the mistake to the court's attention within the ten days provided for filing a motion for new trial. A.S.C.A. § 43.0802(a), (b); T.C.R.C.P. Rule 60(b). [12ASR2d34]

Depending on the circumstances, parties' receipt of notice of judgment from their attorney after expiration of the statutory time limit for filing a motion for reconsideration or new trial might support a motion for relief from the judgment. A.S.C.A. § 43.0802(a), (b); T.C.R.C.P. Rule 60(b).

Before REES, Associate Justice.

Counsel: For Plaintiff, Gata E. Gurr
Defendants pro se

Memorandum Order:

This case arose from a petition by Gi Malala for the Court to order Leaia Temu and Solema Temu evicted from Gi family land.

Trial of the case was held on March 15, 1989. The Court requested the parties to attempt a settlement, suggested the terms of a possible settlement, and asked the parties to report back to the Court within thirty days.

On May 20, 1989, the Court requested a report from counsel about the progress of any attempts at settlement.

On June 2, 1989, counsel for plaintiff Gi filed a report indicating that there had been no settlement or reconciliation among the parties; that a building had been dismantled by the defendants had been suggested by the Court; but that the defendants had never apologized to Gi as had also been suggested by the Court; and that the defendants had in fact begun clearing a new area previously assigned to other persons.

On June 15, 1989, counsel for defendants filed a report saying that the building had been taken down, but not contesting plaintiffs allegation that no attempts at apology or reconciliation had been made by defendants.

On June 27, 1989, the Court issued its opinion and order. The opinion and order affirmed the right of Gi to evict the defendants, and ordered them to vacate the property within thirty days unless Gi should give them permission to remain. [Gi v. Temu, 11 A.S.R.2d 137 (1989).]

No motion for reconsideration or new trial was filed by the defendants within the ten-day period required by A.S.C.A. § 43.0802(a). [12ASR2d35]

Today, August 7, 1989, a lengthy memorandum addressed to the Justice who presided at trial has been hand-delivered to the Court. The memorandum is dated July 17,1989. No explanation is given for the twenty-one day delay in its delivery .It is signed by several persons including defendant Solema, and it states that "the defendants and we children of Temu Malala just received the Clerk's Entry of Judgment."

The memorandum then states a number of things its signatories believe to have been wrong with the Court's decision. Aside from general disapproval of the Court, of Gi Malala, and of certain uncles and aunties who are said to have been responsible for allowing Gi Malala to become sa'o of the family, the memorandum contends (1) that the Court's statement that defendant Solema is not a blood member of the family is contrary to the evidence at trial; and (2) that defendants did in fact attempt a reconciliation with Gi but that he evaded and then rebuffed them.

The deadline for filing a motion for new trial was July 7, 1989. A copy of the opinion and judgment were served on defendants' counsel on June 27. It was his duty to inform them of the result in the case in time for them to decide whether they wished to file a motion for new trial or reconsideration. When they did not file such a motion by July 7, defendants gave up their right to appeal the decision. See A.S.C.A. § 43.0802(a),(b).

Although it is true, as is pointed out in the memorandum, that defendants' counsel has been suspended from the practice of law for a period that began oh July 1, he should have informed them of the opinion and explained their right to appeal prior to July 1.

The deadlines for filing motions for new trial and appeal are set by the Fono. The Court is not free to overlook or extend them. The Rules of Civil Procedure do provide, however, that a party may file a Motion for Relief from Judgment later than ten days after the judgment. T.C.R.C.P. Rule 60(b). In order to prevail on such a motion, a party must show not only that the judgment was wrong but also that he has some compelling justification for not having called the mistake to the Court's attention within the ten days provided for filing a motion for new trial. Motions for Relief from Judgment are only granted in the most extraordinary circumstances. (This explanation is a simple and therefore incomplete one; the defendants are strongly urged to seek new counsel if they wish to pursue this matter.) [12ASR2d36]
Since the memorandum submitted on behalf of defendants states that the defendants had "just received" the judgment on July 17. If so, and depending on the circumstances, this might support a motion for relief from the judgment. Since the memorandum does seem to seek relief from the judgment, the Court will construe it as a Rule 60(b) motion and will set it for hearing on August 22, 1989.

Defendants have the right to represent themselves at this hearing, but the Court strongly urges them to seek representation of counsel. If they do wish to be represented, they should retain a lawyer or leal practitioner today so that he will have time to prepare for the August 22 hearing.

The setting of this matter for hearing does not give defendants the right to ignore or disobey the judgment against them. The defendants were ordered to vacate by July 27. The memorandum filed on their behalf seems to indicate that defendants do have places to live other than the Gi land. Until and unless their motion is granted, they must obey the Court's order of June 27.

It is so ordered.

*********

Association of Apartment Owners v. Hudson,


ASSOCIATION OF APARTMENT OWNERS OF
THE CHANDELIER by its Board of Directors, Plaintiff

v.

JOHN HUDSON, LUCILLE HUDSON,
INTERNATIONAL SAVINGS AND LOAN ASSOCIATION, Ltd.,
JOHN DOES 1-50, JANE DOES 1-50,
DOE CORPORATIONS 1-50, DOE ENTITIES 1-50
and DOE GOVERNMENT AL UNITS 1-50, Defendants

High Court of American Samoa
Trial Division

PJ No. 2-87

August 31, 1989

__________

That judgment debtor did not receive certain funds when he had expected to receive them, that some of the expected receipts were subjected to a tax lien and to a pre-judgment garnishment in another case, and that the judgment debtor applied the remainder to his living and business expenses in addition to his judgment debt, did not excuse his noncompliance with a court order to notify the court in advance should it appear that he would be: unable to make a scheduled payment on the judgment debt. [12ASR2d82]

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

Counsel: For defendant/Petitioner International Savings and Loan, Tautai A.F. Fa'alevao
For Defendants/Respondents John and Lucille Hudson, L. Su'esu'e Lutu

On Order to Show Cause:

On June 17, 1988, defendants were ordered to pay $2000 per month on this foreign judgment and also to make a payment of $35,000 on October 1, 1988, by which time defendant John Hudson assured the Court he would have received his "retention" payment on a government contract. The Court specifically ordered that "[i]f at any time it appears to defendant that he will not be able to meet this schedule, he should inform the Court immediately of this and of the reasons therefor."

On September 29 defendants moved for a modification of the order, to allow the lump sum payment of $30,000 (apparently a typographical error, since the order had specified $35,000) at a later date. On October 19 the Court modified its order to allow this payment to be made no later than December 31, 1988.

The modified order specified that "[all] other terms and conditions of he Order in Aid of Judgment remain in effect. " This included the provision that Mr. Hudson was responsible for notifying the Cour1 in advance if it should appear that he would be unable to meet any scheduled payment.

Mr. Hudson did not make the lump sum payment and did not request a modification of the order prior to December 31, 1988. Counsel for the judgment creditor consequently moved that he be ordered to show cause why he should not be held in contempt of court.

Mr. Hudson' s defense is that he did not receive the retention payment at the scheduled time; that a Court order in another case subjected to a pre-judgment garnishment $29,000 of the $70,000 he had expected to receive; that the Tax Office issued a lien and withheld another $18,000 of the expected proceeds for nonpayment of 1988 FICA taxes; and that he applied the remaining $23,000 to the balance due on [12ASR2d83] the judgment debt in this case, to a bond in a project he is now working on, and to living and personal expenses.

None of this affords Mr. Hudson any excuse for not notifying the Court in advance that he would be unable to make the December 31 payment and requesting a modification of the order. Accordingly, we find him in contempt of Court.

Sentencing will be postponed indefinitely for so long as Mr. Hudson pays $2000 per month to the Clerk of Court on the outstanding balance of the foreign judgment debt, on or before the 10th day of each month; and so deposits with the Clerk of Court 80% of any "retention" payment he should receive prior to satisfaction of the judgment debt. Upon deposit of any such lump sum payment, the Court will decide which of Mr. Hudson's various creditors, if any, is entitled to it.

If Mr. Hudson complies scrupulously with the provisions of this order, no sentence will be imposed.

Mr. Hudson suggests that much of his problem was caused by the Court's order allowing pre-judgment garnishment in the other case, CA No. 33-89. He suggests that the Court should now reconsider its order and allow the garnished funds to be applied to satisfaction of the judgment in the present case.

The record in CA No. 33-89 reflects that Mr. Hudson agreed to the garnishment. We cannot modify our order in that case without giving the other parties notice and an opportunity to be heard. Mr. Hudson is free to make a motion for such modification with notice to all parties to CA No. 33-89. The judgment creditor in the present case is also free to intervene in CA No. 33-89 in order to assert any prior entitlement to the garnished funds. Pending any such motion, the funds will remain where they are.

It is so ordered.

*********

Aoelua; Tela v.


TELA P. TAGOA'I, Appellant

v.

SOLI AOELUA, Appellee

High Court of American Samoa
Appellate Division

AP No. 7-89

August 16, 1989

__________

Appellant is collaterally estopped from denying the separate and independent nature of two matai titles where the identical factual issue was decided in prior litigation between the same parties and the issue was essential to resolution of the prior controversy.

Prior judicial decision regarding the registration of land is res judicata, even if it was wrongly decided; arguments that the prior decision was contrary to custom and violative of treaty either were or should have been presented to the court deciding that case, and it would be totally contrary to the principles of finality underlying the judicial process to relitigate a matter that was already fully litigated.

Statute providing that land should not be registered when a competing application for registration is pending neither renders void a final judgment entered in violation of its terms, nor otherwise permits a collateral attack on that judgment. A.S.C.A. § 37.001.

Purpose of statute providing that land should not be registered when a competing application for registration is pending is to preclude registration until competing claimants have opportunity to be heard; party who was an objector to a proposed registration and whose competing claim was fully heard and decided was therefore not prejudiced by the court's failure to determine his competing application for registration at the same time. A.S.C.A. § 37.0101.

Before REES, Associate Justice, CANBY,* Acting Associate Justice, THOMPSON,** Acting Associate Justice, and OLO, Asociate Judge. [12ASR2d41]

Counsel: For Appellant, Togiola T.A. Tulafono
For Appellee, Charles v. Ala'ilima

Per Canby, J.:

This case comes to us from the Land & Titles Division, where Tela P. Tagoa'i offered to register 5,62 acres of land as communal property of the Tela family, of which he is the senior matai. Soli Aoelua objected on the ground that Tela's survey included }and belonging to the Aoelua family.

The trial court held that a substantial portion of the 5.62 acres was a part of a tract entitled "Failafua," which was ordered registered to the Aoelua family in Aoelua v. Tela, LT No. 31-80 (1982), affirmed, Tela v. Aoelua, AP No.48-82 (1982). Tela's claim for registration of that portion was accordingly denied, [Aoelua v. Tela, 10 A.S.R.2d 20 (1989).]

Aoelua did not object to Tela's claim to the portion of 1anq in Tela's survey lying to the north of "Failafua," and the Land & Titles Division permitted Tela to register that land.

There was an additional southern and small portion of the land in Tela's survey that was outside the previous adjudication, but was contiguous to the land awarded to Aoelua in 1982. This land was claimed by Aoelua on the ground that it was communal land of the Aoelua family, like the adjoining tract. Tela contest this claim on the same ground that he had urged in the 1982 litigation: that the Aoelua title was a lesser matai of the Tela family. The trial court pointed out that this theory had been rejected in the 1982 litigation. It also held that a preponderance of the evidence showed actual and habitual occupation of the disputed southern portion by members of the Aoelua family. Tela was accordingly denied registration of he contested southern portion. Tela now appeals.

Tela does not dispute the occupation of the disputed southern tract by members of the Aoelua family. He argues very strongly, however, that they cannot hold the land independently for the Aoelua family because the Aoelua title is a lesser matai of the Tela family. Consequently, he contends, they occupy the land as communal property of the Tela family. [12ASR2d42]

The difficulty with Tela's argument is that it is precisely the same issue of fact that was decided between the same parties in the 1982 litigation. Indeed, the only point made by the Appellate Division in affirming the 1982 decision of the Land & Titles Division was that the two titles were separate and that the Aoelua family was capable of holding communal land in its own name independently of the Tela family. Because that issue was actually litigated by the same parties in the 1982 case, and its resolution was essential to the court's decision, Tela is collaterally estopped from denying the separate and independent nature of the two titles today. Restatement (Second) of Judgments § 27.

Tela also argues that the 1982 decision itself should be reconsidered. He contends that it was wrongly decided, and that even today the Aoelua title is recognized as a lesser title of the Tela family. The 1982 decision, Tela contends, was so contrary to custom that it violates the Treaty of Cession, under which the United States was obligated to protect Samoans' rights to their lands.

All of Tela's arguments either were presented or should have been presented to the Land & Titles Division and the Appellate Division in the 1982 litigation. With regard to the lands subject to the 1982 litigation, the court's decision is res judicata. It would be totally contrary to the principles of finality underlying the judicial process to relitigate a matter that was fully litigated seven years ago. We decline to revisit the matter .

Tela finally contends that the 1982 decision permitting Aoelua to register "Failafua" was in violation of A.S.C.A. § 37.001, which provides that land should not be registered when a competing application for registration is pending. This, too, is an argument that should have been addressed to the Land & Titles Division during the 1982 litigation. The 1982 decision is res judicata even if a mistake of law was made. See Fauntleroy v. Lum, 210 U.S. 230, 237 (1908); 46 Am. Jur. 2d Judgments § 641 & n.7 (1969).

Nothing in § 37.0101 renders void a final judgment entered in violation of its terms, or otherwise permits a collateral attack on that judgment. Moreover, the purpose of § 37.0101 is to preclude registration of land without the opportunity of competing claimants to be heard. Tela was an objector to Aoelua's 1982 registration, and his [12ASR2d43] competing claim was fully heard and decided. He cannot have beep prejudiced by the court's failure, if failure it was, to determine his completing application for registration at the same time.

The judgment of the Land & Titles Division is in all rests AFFIRMED.

*********

* Honorable William C. Canby, Jr., Judge, United States Court of Appeals for the Ninth Circuit, serving by designation of the Secretary of the Interior .

**Honorable David R. Thompson, Judge, United States Court of Appeals for the Ninth Circuit, serving by designation of the Secretary of the Interior.

American Samoa Gov’t v. Hirata,


AMERICAN SAMOA GOVERNMENT , Appellant

v.

LARRY HIRATA, Appellee

AMERICAN SAMOA GOVERNMENT, Appellant

v,

SOANE TAUSAGA, Appellee

AMERICAN SAMOA GOVERNMENT, Appellant

v.

SOANE MANUHA'APAI, Appellee

High Court of American Samoa
Appellate Division

AP No. 4-89
AP No. 10-89
AP No. 13-89

July 28, 1989

__________

Where the government appeals from an order dismissing criminal charges, it must show that dismissal resulted from the misconstruction of the statute upon which prosecution was founded. A.S.C.A. § 46.2405(a)(1). [12ASR2d23]

Appellate court could not assume, from the mere fact of dismissal of criminal complaints by the district court, that dismissal resulted from misconstruction of a statute rather than the insufficiency of the evidence. A.S.C.A. § 46.2405(a)(1).

Before KRUSE, Chief Justice, CANBY,* Acting Associate Justice, THOMPSON,** Acting Associate Justice, VAIVAO, Associate Judge, and AFUOLA, Associate Judge.

Counsel: For Appellant, Jerry Williams, Assistant Attorney General
For Appellees, Charles V. Ala'ilima

Per Kruse, C.J.:

In these separate matters, the government appeals the District Court Judge's dismissal of certain criminal charges filed against the appellees/defendants. The District Court Judge ruled at the conclusion of each of the preliminary examinations that the evidence presented by the government was not sufficient to establish probable cause. The government relies on the provisions of A.S.C.A. § 46.2405 to establish its right to appeal. (1) This enactment provides in pertinent part:

(a) In a criminal case, the government may appeal in the
following instances:

(1) from a[n] order....dismissing the information, complaint
or other accusation, or any count thereof, where the decision
is based upon the... construction of the statute upon which
the prosecution is founded.

As we understand the government's argument, it rests on the following propositions: the government presented a certain amount of [12ASR2d24] evidence; that amount of evidence was sufficient for any "reasonable" person to find probable cause; accordingly, in concluding otherwise, the District Court must have misconstrued the pertinent enactments. This is speculation on the part of counsel. The government has nowhere directed us to any statement or ruling of the District Court which would indicate how that court construed ---or misconstrued ---the statutes involved. Rather, we are only told that the Court dismissed each of the complaints based on a finding of insufficient evidence. We are unable, from the mere fact of dismissal, to assume automatically that that dismissal necessarily resulted from the misconstruction of a statute rather than the insufficiency of the evidence.

The ruling the government seeks would mean that each time the District Court Judge found the evidence presented in a preliminary examination to be insufficient to bind a defendant over for trial, the government could assert that the statute had been misconstrued and appeal. if this were what the Fono indeed intended to do, it could have done so explicitly. In our view, appeals are open to the government only in the more limited instances where the asserted misconstruction rests on something more than inference.

The appeals are dismissed.

*********

* Honorable William C. Canby, Jr., Judge, United States Court of Appeals for the Ninth Circuit, serving by designation of the Secretary pf the Interior.

** Honorable David R. Thompson, Judge, United States Court of Appeals for the Ninth Circuit, serving by designation of the Secretary of the Interior.

1. In its brief the government also cited a federal statute, 18 U.S.C. § 3731, as further authority for its right to appeal. However, at oral argument counsel wisely abandoned this contention.

American Samoa Gov’t v. Ga'opo'a,


AMERICAN SAMOA GOVERNMENT, Plaintiff

v.

JOHN GA'OPO'A, Defendant

High Court of American Samoa
Trial Division

CR No. 23-89

September 22, 1989

__________

Where court had allowed defendant a limited "work release " during a term of detention as a condition of probation, and defendant had wilfully violated the terms of the work release by spending time at home and engaging in social activities during times when he was released solely for purposes of employment, the work release would be revoked an the defendant held in contempt of court.

Before REES, Associate Justice, VAIVAO, Associate Judge, and AFUOLA, Associate Judge. [12ASR2d109]

Counsel: For Plaintiff, Jerry Williams, Assistant Attorney General
For Defendant, Togiola T.A. Tulafono

On Order to Show Cause:

On June 29, 1989, defendant was sentenced to serve two years in the Correctional Facility for the crime of Second Degree Assault. The sentence was suspended and defendant was placed on probation for five years. One of the conditions of his probation was that he actually serve six months in the Correctional Facility. The Court's order provided that during this six month period of detention the defendant was not to be released from the Facility except with Court approval or for emergency medical treatment.

On July 21, 1989, defendant requested the Court to modify its order to allow for "work release." The Court granted the requested modification subject to several conditions.

The conditions were carefully drawn to ensure that the "Work release" would genuinely serve its stated purpose. The order allowed the Commissioner of Public Safety to release the defendant "only during such hours between 6:00 a.m. and 6:00 p.m. Monday through Friday as are necessary to allow defendant to work at his place of employment. "The order further provided that defendant was "to go directly to work and to return directly to the Correctional Facility after work." He was "to remain at his employer's principal place of business throughout the day" and was "not to be employed in any capacity that would require him to leave his employer's principal place of business."

On August 31, 1989, defendant's Probation Officer met with him to discuss reports that he had been seen around the island at times and places not authorized by the Court's order. Defendant confirmed that he had been sometimes been released from the Correctional Facility on Saturdays. He said he could not remember whether he had been at the market one Saturday rather than at his place of employment. He also told the Probation Officer he would prefer to be on "home release" rather than "work release." The Probation Officer reminded him of the terms of the Court's order and told him any modification would have to be authorized by the Court.

Later that same day a call was placed from the Court to defendant's place of employment. The person who answered the phone [12ASR2d110] said that defendant was not working that day. An attempt was then made to reach the defendant at the Correctional Facility, Defendant was not there either; the Facility's records reflected that he had been released to go to work.

The Court then issued an order requiring defendant to show cause why he should not be held in contempt of Court for violating the terms of the work release order, and why his work release should not be revoked.

On September 5, 1989, a Tuesday, the Marshal of the High Court attempted to serve the Order to Show Cause on defendant at his place of employment. Defendant was not there. The Marshal located defendant at his residence in Malaeimi.

The order to show cause was heard on September 19, 1989. Defendant admitted being away from the facility on Saturdays. He further admitted that he frequently spent time at his home rather than at his place of employment, and that he and his wife had breakfast one Saturday at the market place and then socialized with several other inmates who were also on work release. His excuses were that there was frequently no work for him to do at his place of employment; and that he had read but not understood the Court's order requiring him to return directly to the Correctional Facility after work and not to spend time at any other place. He apologized and promised not to violate the order again.

Under the circumstances excuses and apologies are not enough. Defendant is an intelligent man. He graduated from high school in California and is fluent in the English language. The Court's order was carefully drafted with the specific purpose of making it impossible for anyone to interpret "work release" to mean "home release" or "brunch release." And yet this is how the defendant chose to interpret it. Moreover, on August 31 the order was explained to him again by his Probation Officer. He complained about the terms of the order and was told that it could not be changed except by the Court. And then he violated the order again that very day. Finally, contrary to defendant's testimony at the Order to Show Cause hearing, he violated the order at least once more on the following Tuesday when the Marshal found him at his residence. [12ASR2d111]

The Court's order of August 2, 1989, allowing the release of the defendant for the purpose of employment, is hereby rescinded, During the remainder of his six-month period of detention the defendant is not to be released from the Facility without written permission of the Court except in case of medical emergency.

The Court further finds that defendant's wilful violation of the August 2 order constitutes contempt of court. Sentencing for this contempt will he deferred until the completion of defendant's period of detention, If he complies with the present order and with all other terms of his probation during the remaining period of detention, no additional sentence will be imposed.

It is so ordered.

*********

Fai'ivae; Willis v.


TONY WlLLIS on behalf of himself and the
HEIRS OF AMELIA VA, Appellant

v.

FAI'IVAE GALEA'I and FAI'IVAE FAMILY, TO'OMATA M.T.
TUITELE, CHIEFS OF LEONE VILLAGE, SUAPA'IA
ANETERE'A, PIO LE'OSO, SE'E LEOSO, SA'AGA LEVI
on behalf of himself and the HEIRS OF APELE LEVI,
Wll.LIAM AH KUOI, PAT N. GALEA'I, OLO LETULI,
SUAFO'A VELIO, PIO SAGOTE on behalf of himself and
the SAGOTE FAMILY, PULETU M. MEREDITH, TAELEIFI
MANE, MAUOLEFALE P. SALAVE'A, AVEGALIO FAMILY,
LE'ALAIALOA FAMILY, AIGAMAUA FAMILY, TAELEIFI A.
RIPLEY, FAILAUTUSI AVEGALIO, SU'A of the Village of
Auma, ETUALE and SONS of the Village of Auma,
TUITELELEAPAGA NAPOLEONE, LUCY UO AH CHING,
EUGENE UO, EDWARD UO, EMILE UO for the UO FAMILY,
AMOS GALEA'I, and DOES I through XX, Appellees

High Court of American Samoa
Appellate Division

AP No. 8-89

August 15, 1989

__________

Question of the extent of land awarded to a party by an earlier court decision was one of fact, and trial court's resolution of this question should be upheld on appeal unless clearly erroneous.

Trial court did not err in dismissing the complaint at the conclusion of plaintiffs case, where plaintiff had testified at length and had had ample opportunity to present all the evidence needed for his case in chief, trial court assumed as true some evidence that plaintiff indicated he would have offered in rebuttal, and trial court's decision was well supported in documentary evidence introduced during the plaintiffs case.

Before CANBY;* Acting Associate Justice, THOMPSON;** Acting [12ASR2d38] Associate Justice, TAUANU'U, Chief Associate Judge, and MATA'UTIA, Associate Judge.

Counsel: For Appellants, Charles V. Ala'ililna
For Appellees Fai'ivae and family, Fai'ivae Galea'i
For Appellees Ah Kuoi, Uo, and Ah Ching, Gata E. Gurr
For Appellees Olo, Suafo'a, Avegalio, Lealaialoa, and Aigamaua, Aitofele Sunia
For Appellee Tuiteleleapaga, Tautai A.F. Fa'alevao

Per Canby, J.:

This appeal is from a decision of the Land & Titles Division denying appellant Willis's application to register, on behalf of himself and others, a tract of land of approximately 297 acres. [Willis v. Fai'ivae, 10 A.S.R. 121 (1989). The survey offered by Willis is substantially identical to a survey involved in a land registration case, decided in 1906, To'omata v. People of Leone, 1 A.S.R. 142 (1906).

The land, or part of it, has borne the name "Lega'oa," the "flat land," and is so denominated in the 1906 decision. Underlying the controversy now on appeal is one question: whether "Lega'oa" originally included land of the Leone valley all the way from the mountains. to the sea, or whether "Lega'oa" referred only to a smaller tract of flat land between the Village of Leone and the mountains. Appellant Willis contends that "Lega'oa" was the larger tract, and that the 1906 decision referred only to the flat lands within the 297 acre survey. Those flat lands were approximately 60 acres in extent, of which the inland half was awarded to Willis's predecessors and cotenants. [12ASR2d39]

Willis now argues that the trial court misinterpreted the 1906 decision, and incorrectly decided the boundaries of Lega'oa. We reject the contention. The trial court wrote an extensive and well-reasoned opinion in support of its order denying reconsideration, and we adopt its reasoning. We need not repeat the many considerations that led the trial court to conclude as it did. Prominent among them are the frequent references in the historical materials to. Lega'oa as the "back lands" behind the Village of Leone; the lack of vigorous contention that would have attended the 1906 claim by Willis' s predecessors had that claim included the Village of Leone; and testimony by Talamaivao at the 1906 trial that a tract called "Pugaloa" was the seaward boundary of Lega'oa.

The question of the extent of Lega'oa is one of fact. The trial court's resolution of that issue was not clearly erroneous. On the contrary, it was very well supported on the record. The trial court also correctly interpreted the 1906 decision in apportioning the flat lands. We therefore affirm its decision.

Appellant Willis raises an objection to the procedure of the trial court. The trial was bifurcated, without objection, and the first part of the trial was concerned with events occurring up to 1918. Willis put on his case and rested. Willis then testified at length in support of other plaintiffs, who then rested. At this point, the trial court concluded that plaintiffs could not establish their claim by a preponderance of the evidence, in the face of the documentary evidence to the contrary. The trial court accordingly dismissed the complaint of Willis and those sharing his interest.

Willis contends that the procedure of the trial court was unfair , and constituted a "rush to judgment." But Willis had an ample opportunity to present all of the evidence needed for his case in chief, and he rested. The trial court even assumed as true some evidence that Willis indicated that he would have offered in rebuttal. The meaning of the 1895, 1906, and 1918 court decisions was well supported in documents. There was no reason why the trial court was required to hear more evidence when plaintiffs' case in chief was insufficient to make out his claim. There was no unfairness and no error .

The judgment of the Land & Titles Division is AFFIRMED.

*********

*Honorable William C. Canby, Jr., Judge, United States Court of Appeals for the Ninth Circuit, serving by designation of the Secretary of the Interior.

**Honorable David R. Thompson, Judge, United States Court of Appeals for the Ninth Circuit, serving by designation of the Secretary of the Interior.

Fai'ai; Uiagalelei v.


UIAGALELEI IONA, Appellant

v.

FALE FAI'AI, Appellee

AP No. 31-88

High Court of American Samoa
Appellate Division

September 13, 1989

__________

Where trial court denied a motion for relief from judgment while an appeal from the underlying judgment was pending, appellate court could hear an appeal from the denial of relief from judgment, either because: (1) the trial court was not deprived of jurisdiction by the filing of the notice of appeal, so that the appeal from its order denying relief from1 judgment would be in order; or (2) the trial court lacked jurisdiction after notice of appeal from the judgment, but the appellate court could treat the notice of appeal from the denial of relief from judgment as a motion for a limited remand to the trial court to p,?FIni( it to consider the motion. T.C.R.C.P. Rule 60(b).

A party may be relieved from judgment on the ground of newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial. T.C.R.C.P. Rule 60(b).

That counsel had not found two reported cases prior to trial, because their captions did not refer to the land involved in the litigation, was insufficient reason not to have discovered evidence consisting of certain statements made at the hearing of these cases; more thorough research could have unearthed the cases before trial, and in any event the evidence disclosed by the cases could have been obtained through normal pretrial discovery. T.C.R.C.P. Rule 60(b).

Before CANBY,* Acting Associate Justice, THOMPSON,** Acting Associate Justice, and MATA'UTIA, Associate Judge. [12ASR2d104]

Counsel: For Appellant, Aitofele Sunia
For Appellee, Charles V. Ala'ilima

Per Thompson, J.:

This case began when Satele sought a permanent injunction in the trial court to stop construction of a structure he claimed was being built on his land. The trial court rendered judgment on December 18, 1987 in the case. The court's findings of fact, conclusions of law, and order are set forth at 6 A.S.R.2d 143. Satele, Uiagalelei and Tuiasosopo appealed from that judgment (appeals Nos. 5-88, 7-88 and 8-88). The appellate division affirmed the trial court in an opinion published at 9 A.S.R.2d 19 (1988). While the appeals were pending, Uiagalelei filed a motion in the trial court styled a "Motion for New Trial or Relief from Judgment." This motion was grounded on the discovery of what Uiagalelei stated was new evidence. As a new trial motion, the motion was filed approximately seven months too late. The trial court construed the motion as a motion for relief from judgment under Territorial Court Rule of Civil Procedure 60(b), and denied the motion by order filed September 20, 1988. Satele v. Uiagalelei, 8 A.S.R.2d 97 (1988). Uiagalelei appeals from the denial of this motion.

At the outset we note the possibility of a jurisdictional problem created by the trial court's entertaining a Rule 60(b)motion while an appeal from the underlying judgment was pending. To the extent such a problem may have existed, however, we conclude it does not prevent us from hearing this appeal. If the trial court was not deprived of jurisdiction by the filing of the notice of appeal, then the appeal from its order denying the 60(b) motion would be in order. If the trial court was deprived of jurisdiction because a notice of appeal had been filed, we can, in the interest of judicial economy, treat the notice of appeal from the Rule 60(b) order as a motion for a limited remand of the case to the trial court to permit it to consider the motion. See Smith v. Lujan, 588 F.2d 1304, 1307 (9th Cir. 1979). In this framework we can consider in this appeal the arguments made in the appellants' motion and the trial court's ruling on it. Id.

Turning to the merits of the appeal, we affirm the trial court's denial of the Rule 60(b) motion. The motion was premised on what was alleged to be newly discovered evidence. Rule 60(b) provides in pertinent part that a party may be relieved from judgment on the ground of "newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial...." The new [12ASR2d105] evidence which was proffered in support of the motion consisted of certain statements made at the hearing of Fauolo v. Tauvaelua, 1 A.S.R. 260 (1912), and in the pleadings of Teo v. Siatafu, 1 A.S.R. 327 (1921).

Counsel for Uiagalelei explained at the hearing on the Rule 60(b) motion that he had not found the Fauolo and Teo cases because their captions did not refer to the land called Fasamea, which was the land involved in the litigation. The trial court concluded, however, that this was insufficient reason not to have discovered the "new" evidence. We agree. As the trial court noted, more thorough research could have unearthed the Fauolo and Teo cases, and in any event the evidence which apparently was disclosed by these cases could have been obtained through normal pretrial discovery directed at one of the parties in the pending litigation. Thus, there was an insufficient showing that the newly discovered evidence could not have been discovered in the exercise of due diligence before trial or within ten days after trial.

We also agree with the trial court that even if the newly discovered evidence had been discovered and presented at trial, it would have made no difference in the outcome of the case. See Trial Court Decision filed September 20, 1988 in Satele v. Uiagalelei, 8 A.S.R.2d 97, 101-06 (1988).

The trial court's order denying Uiagalelei's motion is AFFIRMED.

*********

* Honorable William C. Canby, Jr., Judge, United States Court of Appeals for the Ninth Circuit, serving by designation of the Secretary of the Interior.

** Honorable David R. Thompson, Judge, United States Court of Appeals for the Ninth Circuit, serving by designation of the Secretary of the Interior.

Estate of Lagafuaina; Puailoa v.


PUAILOA TAVETE, Plaintiff

v.

Estate of LAGAFUAINA LAISENE,
FA'AOPOOPO LAGAFUAINA, Executrix;
HUGO GEBAUER; MARCUS LANGKILDE, personally
and as Executor of the Estate of MARIE LANGKILDE;
LEFAGA BEAVER; SMITH HOCHING; TELE'A PULETASI;
FALENOFOA STEFFANY; ROBERT C. PAVES;
ROY J.D. HALL, Jr.; TUI MARCUS;
and SOLA PENEI SEWELL, Defendants

High Court of American Samoa
Land and Titles Division

LT No. 18-87

August 31, 1989

__________

Rule that a judgment binds parties "and their privies" is merely a corollary of the proposition that a buyer or other assignee receives only the title his assignor had the right to convey.

A rule that anyone who buys land is bound by the results of lawsuits against anyone else who should ever buy land from the same seller would carry the privity rule beyond the limits of its logic; in practice it would encourage litigants to bring suit not against the parties whose claims they really wish to contest, but against the least effective and attractive available members of some class to which the real adverse parties happen also to belong .

Proposition that a litigant may be bound by the result of a prior lawsuit to which neither be nor anyone on whom his claim depends was a party would carve a gaping hole in the rule that no one can be denied property without having had a day in court.

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

Counsel: For Plaintiff, Charles V. Ala'ilima
For Defendants Lagafuaina, Payes, and Sewell, Albert Mailo
For Defendants Gebauer, Ho Ching, Marcus, Puletasi, and Steffany, Gata E. Gurr
For Defendant Langkilde, William H. Reardon
For Defendant Heaver, Tautai A.F. Fa'alevao [12ASR2d85]

On Motion for Reconsideration:

Plaintiff argues that our decision was erroneous in several ways:

First, plaintiff correctly observes that the rule of collateral estoppel binds not only the parties to a proceeding that decided the issue in question, but also their "privies." Plaintiff is wrong, however, in his contention that the present defendants are "privies" of the Mormon Church. They neither bought their land from the Church nor otherwise claim through the Church. The only connection is that the chain of title to their land includes some of the same people who were links in the chain of title to the land once claimed by the Church.

The rule that judgments bind parties "and their privies" is merely a corollary of the proposition that a buyer or other assignee receives only the title hi assignor had the right to convey. It is true that both the present defendants and the Church would have been bound by the judgment in a case to which their common ancestor was a party, insofar as it resolved issues common to both chains of title. The journey from this premise to the conclusion that anyone who buys land is bound by the results of lawsuits against anyone else who should ever buy land from the same seller ---or, as is argued here, against anyone who traces his title back through any number and kind of transactions to such a seller ---would carry the privity rule far beyond the limits of its logic. As a matter of juristic theory it would be equivalent to saying that since the sins of fathers are sometimes visited upon sons, they might as well also be visited upon cousins. In practice it would encourage litigants to bring suit not against the parties whose claims they really wish to contest, but against the least effective and attractive available members of some class to which the real adverse parties happen also to belong. The judgments thus obtained would then bind the people who should have been sued in the first place.

Although some of the cases cited by plaintiff do speak in terms of litigants "representing the interests" of other litigants, none stands for the proposition that a litigant may be bound by the result of a prior lawsuit to which neither he nor anyone on whom his claim depends was a party. This proposition would carve a gaping hole in the rule that no one can be denied property without having had a day in court. The appellate court in Reid v. Puailoa specifically rejected an almost identical proposition when it reversed the trial court's attempt to adjudicate title to the land presently in dispute. We also reject it. [12ASR2d86]

Plaintiff further suggests that we were simply wrong on the facts: that the "weight of the extrinsic evidence" surrounding the 1931 Nouata decision is that it did not hold Salataima to be the owner of Malaeimi. We did try to take account of the evidence cited in plaintiff's brief. If it were the only evidence, it might support plaintiff's suggested conclusion; but it is not. We believe the "weight of the extrinsic evidence" ---particularly the evidence cited in subparagraphs (10)(a)-(i) of our findings of fact in which the trial judge and the losing parties to the Nouata case repeatedly treat the case as having adjudicated title to the land ---supports the language of the decision itself to the effect that "that part of Malaeimi that is leased to the Mormon Missionaries is the property of Salataima."

Plaintiff also contends that our alternative holding with regard to adverse possession conflicts with the holding of Justice Murphy's opinion in Reid, not just with obiter dictum. For the reasons stated in our original opinion, we are convinced that the statement in question was not part of the holding of Reid. In any case the statement would appear to have been unprecedented and ill-considered. Communal land comprises, by the most common estimate, about ninety per cent of the land in American Samoa. If the Court really did hold in 1983, in the teeth of precedent and without briefing or argument by any party, that a statute applicable on its face to all land in the Territory really applied to only ten per cent of it, then the holding deserves re-examination. If an appeal should be taken from the present decision and if the appellate court should find it necessary to reach the question of adverse possession, we reiterate our suggestion that the question be carefully and thoroughly considered.

Finally, we agree with plaintiff's observation that laches is an equitable doctrine that does not convey title to land but supports compensation for improvements made in good faith by a possessor who is not the legal owner. Because we held that the defendants were the owners of the land, we did not find it necessary to assess the value of their various improvements.

For the foregoing reasons, the motion to reconsider is denied.

********

American Samoa Gov’t; Lavata'i v.


I.S. MULITAUAOPELE and FOFOGATUMUA
K. MULITAUAOPELE, Plaintiffs/Objectors

v.

LUI LEAANA FUATA, Defendant/Claimant

[In the Matter of the Matai Title "MULITAUAOPELE"
of the Village of Lauli'i]

High Court of American Samoa
Land and Titles Division

MT No. 5-89

July 19, 1989

__________

Where certificate of irreconcilable dispute from Secretary of Samoan Affairs was issued, upon is information given by a party to the dispute, proceedings in Land & Titles Division would be stayed pending certification by the Secretary of compliance with statutory procedures for attempted resolution. A.S.C.A § 43.0302.

Before KRUSE, Chief Justice.

Counsel: Objector I.S. Mulitauaopele pro se
For Objector Fofogatumua K. Mulitauaopele, Gata E. Gurr
For Claimant, Tau'ese P.F. Sunia .

Memorandum Order:

Upon notice from the Secretary of Samoan Affairs that the parties in the above-entitled matter have not met in accordance with the requirements of A.S.C,A. § 43.0302 and that the Certificate of Irreconcilable Dispute dated June 21, 1989 was issued upon misinformation given by one of the parties and whereas compliance with the requirements of A.S.C.A. § 43.0302 have not thus been shown to the Court's satisfaction, [12ASR2d9]

It is Ordered that the proceedings in above-entitled matter before the land and titles division shall be stayed until compliance with the requirements of the aforesaid enactment has been certified by the Secretary of Samoan Affairs or until further order of the Court.

*********

American Samoa Gov’t; Pene v.


SEIGAFOLAVA R. PENE, Appellant

v.

AMERICAN SAMOA GOVERNMENT, Appellant

High Court of American Samoa
Appellate Division

AP No. 22-88

August 16, 1989

__________

There is no fixed formula for determining when the right to a speedy trial has been violated; each case must be determined on its own facts. Rev'd Const. Am. Samoa, art. 1 § 6.

Relevant factors in determining if right to speedy trial violated include the length of delay, the reasons for the delay, whether defendant demanded trial, and the prejudice to defendant resulting from delay. Rev'd Const. Am. Samoa, art. 1 § 6.

Defendant's right to speedy trial was not violated, even though the delay was over a year and a prompt trial had been demanded, where the reasons for the delay were substantial, including the need to entertain and grant motions to quash many subpoenas inappropriately issued by defendant and also to conduct competency examinations; and where defendant was not substantially prejudiced by the delay, as he was not incarcerated and the documentary nature of the evidence minimized the danger of fading memories. Rev'd Const. Am. Samoa, art. I § 6.

Defendant's right to assistance of counsel was not violated where he chose to represent himself and on appeal presented no evidence that such choice was involuntary or that he was unaware of attendant risks.

Defendant is free to represent himself at any stage of criminal proceedings, including competency hearings. [12ASR2d44]

That criminal defendant's case would almost certainly have been better conducted by a lawyer does not free the defendant from the consequences of his choice to represent himself; he is not entitled first to insist on his right to defend himself and then to insist that his conviction must be reversed because his defense was less than competent.

While "practice of law" is a general term, it is sufficiently definite that its employment in a criminal statute satisfies the demands of due process. A.S.C.A. § 31.0104.

"Practice of law" includes legal representation of another in court or in settlement negotiations with opposing attorneys. A.S.C.A. § 31.0104.

Evidence was sufficient to convict defendant of unauthorized practice of law where it was established that appellant filed a memorandum in a criminal case containing legal argument offered on behalf of the defendant. A.S.C.A. § 31.0104.

Evidence was sufficient to convict defendant of unauthorized practice of law where appellant had written letters on behalf of a convicted prisoner slating that defendant was prepared to bring a civil action on behalf of the prisoner "pro se," and proposing a settlement which defendant termed "my personal offer and compromise." A.S.C.A. § 31.0104.

Before CANBY ,* Acting Associate Justice, THOMPSON ,** Acting Associate Justice, OLO, Associate Judge, and VAIVAO, Associate Judge.

Counsel: For Appellant, Togiola T.A. Tulafono
For Appellee, Jerry Williams, Assistant Attorney General

Per Canby, J.:

Seigafolava R. Pene appeals his conviction by a jury on two counts of unauthorized practice of law, in violation of A.S.C.A, § 31.0104. He attacks his conviction on several grounds.

Speedy trial

Appellant first argues that he was denied his right to a speedy trial, guaranteed to him by Article I, Section 6 of the Revised [12ASR2d45] Constitution of American Samoa. Appellant was first informed of the charges against him at his initial appearance on June 21, 1987. Although appellant thereafter requested that he be promptly tried, his trial was not held until July 12, 1988, over one year after his initial appearance.

There is no fixed formula for determining when the right to a speedy trial has been violated; each case must be determined on its own facts. Barker v. Wingo, 407 U.S. 514, 530 (1972). Relevant factors are the length of delay, the reasons for the delay, a demand for trial by the defendant, and the prejudice to the defendant resulting from the delay. Id. In this case, the delay was long and a prompt trial was demanded, but the reasons for the delay were very substantial. One source of delay was that appellant caused subpoenas to be inappropriately issued to many officials, and motions to quash had to be entertained and granted. An even greater cause of delay was for competency examinations, resulting in the trial court's ordering of 120 days of treatment for appellant. After the treatment, appellant was found to be competent to proceed with his trial. In light of the justifiable reasons for most of the delay, we conclude that there was no violation of the right to speedy trial. We also note that appellant was not substantially prejudiced by the delay; he was not incarcerated, and the documentary nature of the evidence minimized the danger of fading memories.

Self-representation

At his initial appearance, appellant elected to represent himself, and he consequently conducted his own defense before the jury, although with the advisory aid of an attorney designated by the court. Appellant raises many arguments that arise from the fact that he represented himself. He contends that his waiver of counsel was not informed and intelligent, that he should have been provided with counsel at his competency hearing, that his defense was incompetently conducted, and that he was inadequately advised by his advisory counsel.

Appellant is now represented by counsel on this appeal , however, and counsel has shown us nothing to indicate that appellant's original decision to conduct his own defense was not voluntary , or that appellant was not made aware of the dangers and pitfalls of self- representation. The right to counsel is attended by "the correlative right to dispense with a lawyer's help." Adams v. United States ex rel. McCann, 317 U.S. 269, 279 (1942); see Faretta v. California, 422 U.S. 806 (1975). Appellant is thus free to represent himself at any stage of the criminal proceedings, including the competency hearing. Appellant [12ASR2d46] chose to exercise his right to represent himself, and the trial court was correct in honoring that choice.

It is almost certainly true that appellant's defense would have been better conducted by a lawyer than it was by appellant himself, but that fact does not free appellant from the consequences of his choice. See Faretta, 422 U.S. at 834. Appellant is not entitled first to insist on his right to defend himself and then to insist that his conviction must be reversed because his defense was less than competent. The trial court did appoint a public defender to assist appellant during trial, (1) and appellant conferred with him on occasion. The conviction was supported by documentary evidence and the trial was not a farce or mockery of justice. We are satisfied that defendant's right to the assistance of counsel was not violated.

Unauthorized practice of law

Appellant contends that the crime of unauthorized practice of law, as set forth in A.S.C.A § 31.0104, is so vague that its enforcement violates due process of law. He also contends that the acts of which he was found guilty cannot qualify as the unauthorized practice of law.

Section 31.0104 simply prohibits the "practice of law" without a license or the authorization of the Chief Justice. While "practice of law" is a general term, it has been held to be sufficiently definite that its employment in a criminal statute satisfies the demands of due process. Hackin v. State, 102 Ariz. 218, 220, 427 P.2d 910, 912 (1967); People v. Ring, 26 Cal. App. 2d 768,70 P.2d 281 (1937). We adhere to that rule.

Appellant's contention that his actions cannot qualify as the practice of law is presented to us in an awkward posture. Appellant did not object to the court's instructions to the jury, and he has not attacked the instructions on appeal. His argument is therefore reduced to a contention that the actions with which he was charged could under no circumstances be found to constitute the practice of law. We reject that claim. [12ASR2d47]

We need not describe the outer boundaries of the practice of law, because there is no question that legal representation of another in court, or in settlement negotiations with opposing attorneys, falls welt within the definition. The evidence established that appellant filed a memorandum in Criminal Case No. 9-87 in support of a defendant's motion for reconsideration of an adverse decision. The memorandum clearly contains legal argument offered on behalf of the third party, the defendant. The evidence is more than sufficient to support the jury's verdict that appellant was guilty of the charge in Count I.

The evidence also shows that appellant undertook to write certain letters on behalf of a convicted prisoner, William Lloyd. One letter, to Lloyd's former lawyer, states that appellant is prepared to bring a civil action on behalf of Lloyd "pro se" against the Government of American Samoa. It also proposes an offer of settlement of Lloyd's criminal case, to be transmitted to the government. Another letter, to an assistant attorney general, follows up on "my personal offer and compromise," and urges further efforts on the part of the Attorney General's office to negotiate regarding Lloyd's case. These letters clearly support the jury's verdict that appellant was guilty of the charge in Count II.

Conclusion

The conviction of appellant on both counts is AFFIRMED.

*********

* Honorable William C. Canby, Jr., Judge, United States Court of Appeals for the Ninth Circuit, serving by designation of the Secretary of the Interior .

**Honorable David R. Thompson, Judge, United States Court of Appeals for the Ninth Circuit, serving by designation of the Secretary of the Interior.

1. Because appellant has not been sentenced to imprisonment, the Sixth Amendment of the United States Constitution would not have required counsel to be appointed even in the absence of a waiver. Argersinger v. Hamlin, 407 U.S. 25, 40 (1972).

American Samoa Gov’t v. Manu'a Air Transport,


AMERICAN SAMOA GOVERNMENT , Plaintiff

v.

MANU'A AIR TRANSPORT, Defendant

High Court of American Samoa
Trial Division

CA No. 36-89

August 30, 1989

__________

Where lessor had agreed, in return for certain commitments by lessee, to credit offsets due to the lessee against current invoices rather than against lessee's past due obligations, but lessee had not kept its part of the bargain, lessor was free to apply the offsets to the earliest debt first.

Evidence did not supported lessee's claim of retaliatory eviction where the only thing lessor appeared to be retaliating for was lessee's failure to pay rent.

Before REES, Associate Justice, OLO, Associate Judge, and MATA'UTIA, Associate Judge.

Counsel: For Plaintiff, Richard Lerner, Assistant Attorney General
For Defendant, William H. Reardon

Plaintiff (hereinafter "ASG") seeks to evict defendant (hereinafter the airline) from a hangar and office space at Pago Pago International Airport. ASG also seeks judgment for past due rent, for the balance due on a promissory note, and for the return of money advanced by ASG to the airline in exchange for prepaid tickets.

The airline admits that it has not paid the rent, at lease not in cash, for some time. It also admits to owing $24,497.58 on an open [12ASR2d79] account, consisting partly of landing fees due ASG and of rents accrued as of May 1987 and partly of the balance on a promissory note executed by the airline in January 1987 to consolidate earlier past due rents and landing fees. The airline further admits that it dishonored some prepaid tickets ---purchased in vast numbers by ASG in order to help the airline with cash-flow problems ---when further cash-flow problems made it seem necessary to accommodate "paying" customers in preference to prepaid ones. The prepaid tickets have in any case been unusable since late 1988 when the airline ceased its operations, and there is no immediate prospect of resumption.

The airline contests the right of ASG to evict it, however, by reference to a March r988 agreement between the ASG Treasurer and airline officials. The agreement was as follows:

1) The airline would "not issue tickets to ASG representatives on credit" (a practice apparently preferred by many ASG employees but not by the Treasurer's office); rather, "[a]ll travel...will be made through prepaid tickets." The only exception was to be for medical emergencies.

2) The airline would make monthly payments of $500 on the promissory note.

3) In return, "any offsets made out of monies due to Manu'a Air [e.g., for past ticket sales made other than through prepaid tickets] will be used to pay current ASG invoices. "

The airline points out that during 1987 and 1988 offsets in the amount of $22,323.72 were credited against the balance of the promissory note. If instead only $14,000 had been credited against the note ---$500 for each month between January 1987 and April 1989, when the present suit was filed ---the $8000 remainder could have been applied to "current invoices" for landing fees and rent. Since the past due rent, other than the pre-1987 rent folded into the promissory note, is only $6270, the airline figures it is not really behind.

There are several problems with this analysis. The most obvious is that Manu'a Air has not kept its two parts of the three-part bargain on which it relies. The airline was to make $500 monthly payments on the promissory note ---cash payments, in addition to any offsetting obligations ASG might happen to incur toward the airline -- and to honor ASG prepaid tickets and no other form of payment for ASG[12ASR2d80] employees. In return, ASG was to apply offsets first toward current invoices and only then toward the promissory note. But the airline never made any of the promised payments, and it dishonored at least some prepaid tickets. ASG is therefore free to apply offsets to the earliest debt first.

Nor do we know how much, if any, of the $22,323 in offsets was applied to the promissory note after the March 1988 agreement. The only evidence presented by Manu'a Air is that total offsets for calendar year 1988 were $20,191.48. If this entire amount had been credited to the promissory note before the agreement was made, ASG would not have been obliged to credit anything toward current rents, since the agreement was prospective only.

An ASG exhibit suggests that there was only one credit to the account of Manu'a Air after March 1988, in the amount of $6090. Since this was insufficient to pay the $9005 in landing fees incurred during 1988, it is not clear that ASG was obliged under the March 1988 agreement to credit any of it toward the rent. Even if the $6090 credit had been allocated pro rata between rents and landing fees it would have left a substantial 1988 balance in each category,

In any event, during 1989 there have apparently been no offsets and no cash payments. Even if ASG had applied all 1988 offsets to current rents before applying them to current landing fees or to past due balances, and even if this had wiped out the rent arrearages for 1987 and 1988, it would not have relieved the airline of the obligation to pay subsequent rentals as they came due. Even exercising every factual and legal presumption in favor of the airline, therefore, and ignoring its noncompliance with the 1988 agreement, the rent is still at least eight months overdue.

Finally, there is no evidence to support the airline's claim that this is a retaliatory eviction. The only thing ASG appears to be retaliating for is the airline's failure to pay the rent. Far from being a pretext for the settling of an extrinsic score, non-payment is itself the only motive of which there was any evidence. This is the very opposite of a retaliatory eviction.

Accordingly, plaintiff will have judgment restoring it to immediate possession of the premises, and for $4370 in past due office rent, $1900 in past due hangar rent, $24,497.58 for amounts owing [12ASR2d81] before May 31, 1987, and $12,737.50 for unusable prepaid tickets, or a total of $43,505.08 with post-judgment interest at the legal rate.

We express no opinion with regard to the unpaid ASG accounts alleged by Manu'a Air, as no evidence was presented in this action to substantiate them. Counsel for plaintiff and defendant are urged to review any such evidence and to stipulate to any amounts hat hold in fairness be credited against the judgment. Id. the event no such agreement can be reached, Manu'a Air is free to bring a separate action or actions on such accounts, either against ASG or against any employees who may have incurred obligations not chargeable to ASG.

It is so ordered.

*********


American Samoa Gov’t v. Maiava,


DEVELOPMENT BANK OF AMERICAN SAMOA, Plaintiff

v.

SAM SCANLAN, Inc., FANENE SCANLAN ,
and LALOIFI SCANLAN, Defendants

MA'I AFUVAI, Intervenor in Post-Judgment
Execution Proceeding

High Court of American Samoa
Trial Division

CA No. 69-88

August 30, 1989

__________

When lessors, by not paying their lawful debt to the bank that held the mortgage on the leased premises, caused a writ of execution to be issued against the premises, they breached the covenant of quiet enjoyment which is an essential element of very leasehold agreement. Unrecorded lease of building, which did not include the land on which the building was located, gave rise only to contractual rights, not to a real interest in the property.

Where lessor's mortgagee had secured a writ of execution against the leased premises, and unrecorded lease gave lessee no real interest in the property, lessee could have been lawfully evicted by mortgagee with no recourse but to try to collect his damage from the lessor.

When lessor's mortgagee secured a writ of execution against leased premises, giving mortgagee the legal right to evict lessee at any time, the lessee was constructively evicted from the premises by the fault of the lessor .

That lessor's mortgagee, after securing a writ of execution against leased premises, initially chose not to evict the lessee but instead allowed lessee to remain as a tenant at will, was irrelevant to analysis of the legal relationship between lessor and lessee.

Lessors of nightclub who continued to regard themselves as its proprietors, demanded drinks on credit, threatened to fire employees of their lessee who attempted to deny such credit, and ordered the lessee to remove a rock he had placed on top of a loose piece of roof but refused to fix the roof themselves, justified the lessee in regarding the lease as at an end.

Where lease provided that lessee would be entitled, upon termination of the lease by fault of the lessor, to return of furniture and other improvements he installed, "less depreciated value," and where the depreciated value of all such furniture and improvements was less [12ASR2d75] than the amount spent by the lessee on improvements that could not easily be removed from the building, the lessee would be entitled to the return of all furniture and improvements not affixed to the building.

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

Counsel: For Plaintiff, Steven H. Watson
For Defendant, John L. Ward II
For Intervenor, Charles V. Ala'ilima

On Motion to Intervene in Post-Judgment Execution Proceeding:

The Development Bank sued defendants for the balance due on a loan, and defendants stipulated that judgment be entered against them in the amount of $68,397.98. On December 29, 1988, a writ of execution was issued ordering the Marshal of the High Court to seize and sell property of the defendants in the amount of the judgment. The judgment creditor's instructions to the Marshal specified only one asset, a leasehold interest in "the premises commonly known as the Seaside Garden Club."

The Marshal did not immediately seize the Garden Club, which defendants were then sub-leasing to a partnership whose principal operating officer was Ma'i Afuvai. Instead, by mutual agreement of the Bank, the defendants, and Afuvai, the monthly rent Afuvai had been paying to defendants was thereafter paid directly to the Bank. The Bank remitted $500 monthly to defendant Fanene Scanlan and applied the rest toward the judgment debt.

This arrangement broke down quite dramatically on the evening of June 1, 1989, when Mr. Afuvai, after an argument with Mr. Scanlan, closed the Garden Club and began throwing heavy objects around the premises. Several items were broken including at least one exterior glass door. Counsel for the Bank, driving by the Club on his way to work the next morning, perceived something amiss and posted a guard. The Bank then caused its seizure of the defendants' interest in the Garden Club to be perfected.

The Marshal seized not only the premises but also the Club's inventory , fixtures, equipment, and furniture. Afuvai has petitioned the Court for the return of most of the furniture and equipment, which he[12ASR2d76] says is his own personal property. Defendants maintain, however, that the furniture and equipment placed in the Garden Club by Afuvai became the property of Sam Scanlan, Inc., in accordance with the terms of the sub-lease to Afuvai.

The document in question does provide that lessee (the Afuvai partnership) was to "renovate and refurnish the interior" of the Club. The "initial costs of renovation, furnitures, equipments and inventories" were to be $30,000 "to be verified by invoices." In exchange for these renovations, lessee was to pay $2500 per month rent rather than some unspecified higher figure. Under the lease, therefore ---contrary to the usual rule whereby only fixtures "permanently attached " to leased premises by a lessee are said to become part of the premises ---the furniture as well as the other items purchased by Afuvai would have become the property of Sam Scanlan, Inc., had the lease run its course.

The lease also provided, however, that if it should be "terminated due to the fault of the lessor then all improvements less depreciated value [would] be reimbursed to lessee." We are convinced that the lease did in fact terminate by the fault of the lessor, several months prior to Mr. Afuvai's inexcusable outburst.

When defendants, by not paying their lawful debt to the Bank, caused a writ of execution to be issued against the leased premises, they breached the covenant of quiet enjoyment which is an essential element of every leasehold agreement. Because the Afuvai lease was unrecorded (and also because it appears to have been a lease only of the building, inventory , and equipment that comprised the Garden Club rather than of the land on which the Club was located) it gave rise only to contractual rights, not to a real interest in the property. Afuvai could have been lawfully evicted at any time after December 29, 1988, with no recourse but to try to collect his damages from the Scanlans. On that day, therefore, Afuvai was constructively evicted from the premises by the fault of the lessor. That the Bank initially chose not to shut down the Club and sell its contents, but instead allowed Afuvai to remain as a tenant at will, is irrelevant to an analysis of his legal relationship with the Scanlan defendants.

The record also reflects other breaches by the Scanlans. Having leased the Club to the Afuvai partners, Fanene Scanlan and some members of his family apparently continued to regard themselves as its proprietors. They demanded drinks on credit, and repeatedly threatened to fire employees who attempted to deny such credit. When part of the [12ASR2d77] Club's roof blew away and Afuvai secured another loose piece of the roof by placing a large rock on top of it, Fanene Scanlan told Afuvai to take the rock down because it was an embarrassment, but refused to fix the roof. Even if the Scanlans had not altogether lost control of the property, Afuvai would have been justified in regarding the lease as at an end well before June 1989.

Afuvai is still the owner, therefore, of the furniture and other improvements he installed, "less depreciated value." Although the actual cost of these improvements is disputed, the expenditure required by the lease was $30,000. At the time of the constructive eviction the lease had run for about 19 1/2 months of its 48-month term. The" depreciated value" owed by lessee upon the premature termination of the lease is therefore 19.5/48 x $30,000, or $12,187. (1) As it happens, this is somewhat less than the amount Afuvai spent (even accepting the Scanlans' estimate of about $6000 for labor costs rather than Afuvai's estimate of $15,000) on the improvements that cannot easily be removed from the building: lumber, paint, doors, interior decorations, and so forth. Afuvai is entitled, therefore, to the return of all items in the Marshal's inventory that are not affixed to the building by bolts, glue, or similar devices. He also remains the owner, in accordance with the lease agreement, of any kitchen equipment purchased by him whether or not it is affixed to the building. The Marshal is directed to return these items to Afuvai.

Whether Afuvai is liable to the Scanlans, or to the Bank, for damage done in the June 1 incident to items not belonging to him, is not before s in this proceeding. Nor do we express any opinion concerning the rights of Afuvai and his partners, if any, in "Garden Club Ltd." as among themselves. [12ASR2d78]

It is so ordered.

*********

1. Counsel for defendants suggests that the $30,000 should be depreciated only over the first two years of the lease, since the parties were to "review lease price after two (2) years and renegotiate a lease price fair to both parties." Counsel suggests that this term, together with Fanene Scanlan's testimony that a previous tenant had been paying $5000 per month before going out of business, establishes that the $30,000 was fully depreciated over two years. We find this possibility no more or less plausible, however, than that the parties were to negotiate an increase or decrease according to the cost of living, or to the gross receipts of the Club, or to some other factor not in evidence. We know little or nothing about whether the "fair market value" of the premises was $2500, $5000, or some other figure. The 1ease did not provide for termination after two years if no new rate were negotiated; rather, in that case the $2500 figure was to remain in force for "the full term of this lease." The evidence therefore preponderates in favor of depreciation of the $30,000 over the four years of the lease term.

Macomber v. Am. Samoa Gov’t


Extent to which the equal protection clause of the Fourteenth Amendment of the U.S. Constitution applies in the territory of American Samoa is unclear, U.S. Const, amdt. 14.

There is a rational basis for a legislative distinction between (1) people who drive under the influence and then drive with a suspended license; and (2) those who commit other sorts of conduct punishable by suspension and then drive with a suspended license; therefore, a statute embodying such a distinction did not deny equal protection of the laws. U.S. Const. amdt. 14.

Before KRUSE, Chief Justice, CANBY,* Acting Associate Justice, THOMPSON,** Acting Associate Justice, VAIVAO, Associate Judge, and AFUOLA, Associate Judge.

Counsel: For Appellant, Charles V. Ala'ilima
For Appellee, Jerry Williams, Assistant Attorney General

Per Kruse, C.J.:

Appellant challenges the constitutionality of the penal provisions of A.S.C.A. § 22.0223. The enactment provides that "[a]ny person who [12ASR2d30] drives a motor vehicle while his license is suspended pursuant to [A.S.C.A. §] 22.0211 [suspension upon conviction for driving under the influence] shall be guilty of a class D felony and. upon conviction, shall be sentenced to serve at least 90 days in custody." Appellant was duly convicted under this enactment and sentenced accordingly; however, the trial court stayed execution of sentence pending appeal.

Appellant points out that those convicted of driving while their licenses are suspended for any reason other than driving under the influence are guilty only of a misdemeanor which carries with it appropriately less severe penalties. He claims that the statute denies him the equal protection of the law guaranteed by the Fourteenth Amendment, contending that there is no rational basis for the legislature to impose a more severe penalty on drivers whose licenses are suspended for driving under the influence than on those whose licenses are suspended for some other reason.

The extent to which the equal protection clause of the Fourteenth Amendment applies in the territory of American Samoa is unclear; however, the government stipulated that the statute in question should be examined against Fourteenth Amendment standards. The trial court thus assumed for purposes of the matter before it that the equal protection clause was applicable in the territory, at least insofar as it requires a rational basis for statutory classifications. The Court then found that under applicable United States Supreme Court precedents, the statutory classification could not be struck down.

We agree with the reasoning of the trial court and its conclusion that there is a rational basis for legislative distinction between "(1) people who drive under the influence and then drive with a suspended license; and (2) those who commit other sorts of conduct punishable by suspension and then drive with a suspended license." American Samoa Government v. Macomber, 8 A.S.R.2d 182, 186 (1988).

We affirm. The order to stay sentence is vacated.

*********

* Honorable William C. Canby, Jr., Judge, United States Court of Appeals for the Ninth Circuit, serving by designation of the Secretary of the Interior.

**Honorable David R. Thompson, Judge, United States Court of Appeals for the Ninth Circuit, serving by designation of the Secretary of the Interior.

American Samoa Gov’t v. Laumoli,


AMERICAN SAMOA GOVERNMENT ,Plaintiff

v.

TUIA T. LAUMOLI, Defendant

TUIA T. LAUMOLI and MASALOSALO I'AMENE,
Respondents to Order to Show Cause

High Court of American Samoa
Trial Division

CR No. 47-89

September 29, 1989

__________

Warden's contention that judgment and sentence prohibiting release of prisoner was not binding on him because the copy he initially received did not bear the signatures of the judges was without merit, where sentence had been previously been announced from the bench and where a signed copy of the written order had been served on the government prior to the time the warden wilfully disregarded the order .

Order issued in open court is binding from the moment it is announced. whether or not it is ever reduced to writing. [12ASR2d112]

In providing prison warden with an unsigned document stating the terms of a prisoner's sentence, office of the attorney general was acting to ensure compliance by government officials with an order that had already been publicly announced in the presence of counsel for the government and was already binding on the government as well as on the defendant, and receipt of this document imposed a duty on the warden to inquire further of the court or the attorney general's office, at the very least, before releasing the defendant in direct violation of the notice he had been given.

Attempts by warden and prisoner to cover their tracks, by omitting any record of the prisoner's comings and goings from theprison1og book and by lying in court when asked whether the prisoner had been released, were inconsistent with their contentions that they had not fully understood the court's order prohibiting release of the prisoner.

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

Counsel: For Respondent Laumoli, Gata E. Gurr
Respondent Masalosalo pro se

On Order to Show Cause:

On September 27, 1989, having been presented with evidence that the respondents violated the Court's previous order by causing Tuia Laumoli to be released from the Correctional Facility on Saturday, September 23, the Court ordered respondents to show cause why they should not be held in contempt of Court and sentenced accordingly.

The hearing on the Order to Show Cause was held Thursday, September 29, and continued to Friday, September 30. Tuia Laumoli was represented by counsel. Masalosalo I'amene, the Warden of the Correctional Facility, was advised of his right to counsel and chose to represent himself. Each of the respondents was given the opportunity to present evidence, and each respondent testified on his own half. The Court then heard other witnesses, after which each respondent presented further evidence in rebuttal.

The Court finds that respondent Tuia Laumoli was released from the Correctional Facility on Saturday, September 23, in direct violation of 1he Court's order that he not be released "for any reason except medical emergency. " The Court further finds that both respondents were aware of the terms of the order and wilfully disregarded them. [12ASR2d113]

There is no merit in the Warden's contention that since the copy of the order he initially received did not bear the signatures of the judges, the order was not binding on him. The sentence in this case was announced from the bench on Wednesday, September 20. The Attorney General's office then drafted a written order which was presented to the Court for review and signature by the judges. The Warden was apparently provided with a copy of this document at the same time it was presented to the Court. (1)

An order issued in open court is binding from the moment it is announced, whether or not it is ever reduced to writing. In providing the Warden with a document stating the terms of Tuia Laumoli's sentence, the Attorney General's office was doing exactly what it should have done in its capacity as lawyer for the Government: acting to ensure compliance by government officials with an order that had already been publicly announced in the presence of counsel for the Government and was already binding on the Government as well as on the defendant. The Attorney General's office was under no duty to wait until the judges had signed the written order before providing a copy to the Warden. Receipt of this document imposed a duty on the Warden to inquire further of the Court or the Attorney General's office, at the very least, before releasing the defendant in direct violation of the notice he had been given.

Nor is there any merit in the contention of both respondents that they did not fully understand the sentence. Even without the specific admonition that defendant was not be released except for medical emergency, most people would understand a sentence of "seven weekends in the Correctional Facility" to exclude the possibility that defendant could spend all day Saturday at a rugby game.

Moreover, if the respondents had not known they were doing wrong they would presumably not have bothered to cover their tracks. Although the Warden authorized the release of Tuia Laumoli on Friday night and again on Saturday, the records of Tuia's comings and goings on both days are conspicuously absent from the prison log book. Each respondent also lied to the Court when first asked whether Tuia had been released on Friday night. Under repeated questioning from the Court, [12ASR2d114] both respondents stuck to their story that Tuia had been present in the Facility at all times between 6:00 p.m. Friday and 9:00 a.m. Saturday. They admitted the contrary only after testimony by two witnesses who had seen Tuia elsewhere that night and by a third (Acting Commissioner of Public Safety Fonoti Jessop) to whom the Warden had admitted authorizing the Friday release.

The respondents are accordingly held to be in contempt of Court and are sentenced as follows:

Respondent Tuia Laumoli is sentenced to serve thirty days in the Correctional Facility. Execution of the sentence is suspended on condition that Tuia serve the remaining term of his sentence for Second Degree Assault in strict accordance with the conditions imposed by the Court, and that he also serve two additional weekends in the Correctional Facility.

The total number of weekends included in both sentences, including the weekend of September 22-24, is nine (9). Respondent shall report to the Facility no later than 6:00 p.m. each Friday and shall leave no earlier than 6:00 p.m. on Sunday. (2) During his periods of detention he is not to leave the Facility for any reason other than medical emergency.

Respondent Masalosalo is also sentenced to serve thirty days in the Correctional Facility. Execution of the sentence is suspended and respondent placed on probation for a term of two years on condition that he pay a fine of $500 no later than October 13, 1989, and that he comply strictly with the terms of all Court orders.

This sentence is imposed only for the contempt of Court constituted by the release of respondent Tuia on Saturday. Although evidence of the release on Friday was relevant to the veracity of both [12ASR2d115] respondents and to the pattern of conduct underlying the Saturday release, it is a separate incident with respect to which no Order to Show Cause was issued.

It is so ordered.

*********

1. Signing of the written order was delayed until Friday, September 22, pending the expedited hearing of a motion by defendant Tuia Laumoli asking the Court to revise his sentence. The signed order was served on the Department of Public Safety late Friday afternoon. The Warden says he did not personally receive a signed copy until Monday, September 25, but admits having read the unsigned copy on or before the previous Friday.

2. At the request of the Speaker of the House, a slight change will be made in the schedule of respondent's sentence for the weekend of September 29 to October 1. In order to allow respondent to attend a meeting of the Fono that is required by law to be held on September 30, his detention for this weekend is modified to allow him to report to the Correctional Facility by 6:00 p.m. Saturday and leave no earlier than 6:00 p.m. on Monday, October 2. The terms of this change are incorporated in a separate written order.

American Int’l Underwriters; Maulupe v.


SAOFAIGALI'I MAULUPE, LILIU MAULUPE,
and LIALIA MAULUPE, Plaintiffs

v.

AMERICAN INTERNATIONAL UNDERWRITERS
(SOUTH PACIFIC), ISAPELI VAENUKU,
JACK LIU, and ESE LIU, Defendant

High Court of American Samoa
Trial Division

CA No. 52-88

July 13, 1989

__________

Owner's implied permission to use his vehicle, which extends compulsory liability insurance coverage to a non-owner driver, may be inferred from a course of conduct or relationship between the vehicle owner and driver in which there is mutual acquiescence or lack of objection under circumstances signifying consent, A.S.C.A, § 22.2003(2).

Evidence must show owner's permission, express or implied, in order fo\, non-owner driver to be covered by owner's compulsory vehicle liability insurance policy. A.S.C.A. § 22.2003(2).

Plaintiff failed to show owner's express or implied permission to employee living on premises to use vehicle where: employee had never before driven owner's vehicles; her duties did not require driving; and she obtained vehicle key by breaking locks on home office door and key cabinet in owner's absence.

Plaintiffs failure to mitigate damages by promptly replacing destroyed vehicle is considered in determining damages for loss of vehicle's use.

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

Counsel: For Plaintiffs, Charles V. Ala'ilima
For Defendant A.I.U., Roy J.D. Hall, Jr.
For Defendants Liu, Asaua Fuimaono

On or about September 1, 1988, plaintiff Liliu Maulupe, accompanied by her mother Lialia Maulupe, drove to "Pago Pago International Airport" to await the arrival of her father, Saofaigali'i Maulupe, who was returning from an off-island trip. The vehicle she [12ASR2d2] was driving was registered in the name of her father. Liliu testified that as she approached the intersection by the Army Reserve compound, she noticed a pickup truck speeding towards the intersection. However, she continued towards the airport anticipating that the pickup would give way and stop in compliance with the posted stop sign at the intersection. As it happened, the pickup truck ran the stop sign and collided into the side of the Maulupes' vehicle. Both plaintiffs, Liliu and Lialia Maulupe, suffered certain injuries, while their vehicle was later declared a total loss.

The pickup belonged to defendants Jack and Ese Liu who had been traveling overseas for a month and who were also returning to the territory on the same flight as Mr. Maulupe. Liu had taken out compulsory third party liability insurance on the vehicle as required by A.S.C.A. §§ 22.2001 et seq. with defendant American International Underwriters (South Pacific) (hereinafter referred to as "A.I.U."). However, the pickup truck at the time of collision was driven by defendant Isapeli Vaenuku, an unlicensed driver.

Jack Liu testified that defendant Vaenuku was employed in his shop and that she was a very good employee. He had sponsored her for immigration purposes and he had also furnished her living quarters, situated to the rear of his family residence, which Vaenuku occupied with her own family. Liu also testified that he had several business vehicles which he parked at home after hours. He further testified that defendant Vaenuku's duties did not require her to drive nor had she ever driven any of these vehicles before. Liu also stated that he started his business at home and that he continues to maintain his old office space in the house for business use. This room he kept locked and at the same time he kept therein a locked cabinet for all his vehicle keys. Liu further testified that while he and his wife were away, he had arranged for his sister-in-law to open and close his business premises each day. He testified that his sister-in-Iaw would each day use the said pickup truck for these purposes and that she had, at the time, the vehicle key with her. Liu discovered, however, that Vaenuku had in fact obtained the spare key which was kept in the locked cabinet. This defendant had admitted to him that she had been under the influence of alcohol when she decided to take the pickup truck and that she had forced the locks to the office and key cabinet.

Liability

There is no doubt that defendant Vaenuku was negligent and that her negligence was the proximate cause of the personal and property [12ASR2d3] injuries to plaintiffs. In so concluding, we rule out the insurance company's argument of comparative negligence on the part of plaintiff Liliu Maulupe. Although this plaintiff had noticed the approaching pickup truck and admitted hurrying to the airport knowing that her father's plane had landed, we hold that it was reasonable for her in the circumstances to expect that the pickup truck would come to a halt and give way. The only real questions before us are whether defendant Liu may be held vicariously (1) liable to plaintiffs and whether A.I. U. is liable as insurer within the provisions of A.S.C.A. §§ 22.2001 et seq.

We conclude on the evidence that Jack Liu is not vicariously liable to plaintiffs for the negligent ac(s/omissions of defendant Vaenuku. The latter had simply taken the pickup truck for a joyride with friends. Her actions were unauthorized and without any purpose referable to the fact that she worked for Mr. Liu.

With regard to A.I.U., the insurance company contested the existence of a policy on the ground that its insurance contract with Jack Liu had expired the day before the collision. The evidence reveals that A.I. U. had notified Liu thirty days beforehand of the pendency of the contract's expiration date. Its notice, which invited renewal, was sent to Liu's office while he was off-island. Alternatively, A.I.U. argues that even if the policy had not expired, coverage would not be available in the circumstances as defendant Vaenuku was not an insured permittee within the provisions of the compulsory insurance statute. We find merit in this argument. Accordingly we need not address the question of whether or not there was an insurance contract in effect.

Coverage mandated by the compulsory insurance statute includes "any...person who uses the (insured] vehicle ...with the express or implied permission of the named insured against loss from liability imposed by law for damages." A.S.C.A. § 22.2003(2). There is no evidence of express consent in this matter; however, counsel for plaintiff contends that implied permission may be inferred from an employment relationship, and, in addition, from circumstances which essentially depict a setting of household familiarity and therefore the sort of acquiescence typical with intra-family borrowing. [12ASR2d4]

"Implied" permission resulting in extending liability iqsurance coverage to the non-owner driver, within the meaning of the enactment, involves an inference from a course of conduct or relationship between the vehicle owner and driver in which there is mutual acquiescence or lack of objection under circumstances signifying consent. Sataua v. Himphill, 5 A.S.R.2d 61 (1987); Toleafoa v. Sioka, 5 A.S.R.2d 18 (1987). It is permission which may be inferred from circumstances whereby the owner may be seen as having tacitly consented to the vehicle's use. For example, a showing that the owner had tolerated the driver's past use of his vehicle may sufficiently indicate permission to the fact finder. By requiring the extension of compulsory insurance coverage to include the driver with "implied permission," the Legislature was obviously concerned with eliminating any opportunity for an otherwise acquiescent vehicle owner to deny, based on his subjective intentions, the existence of permission after the fact of third-party injury. However , that consent or permission, whether expressed or implied, must be effectively shown. As stated in Sataua v. Himphill, "[t]he statutory criterion is 'consent' and that fact must appear on the evidence in order to bring the wrongful acts of a driver within the coverage of compulsory insurance policies." 5 A.S.R.2d at 68.

On the evidence presented, it is difficult to find any basis for concluding that defendant Jack Liu tacitly consented to use of his car . The driver Vaenuku's actionable use of the pickup truck arose under the following circumstances: the owner, Jack Liu, and his wife were off- island; in his absence, the key to the truck was given by Jack Liu to his sister-in-law; his sister-in-law retained possession of that key; the driver drove the truck by using the spare key to the vehicle; she obtained the spare key by breaking two different locks within Liu's premises; her use of any of Liu's vehicles was unprecedented. Against this, plaintiff urges us to draw the appropriate inferences of permissive use from the relationship of employment and the household relationship which plaintiff contends existed between the parties. We are unable to find implied permission within the meaning of A.S.C.A. § 22.2003(2).

On the foregoing, the complaint against Jack Liu, Ese Liu, and A.I.U. shall be dismissed. Having concluded actionable conduct on the part of defendant Vaenuku, we next consider damages.

Damages

As a result of the collision, plaintiff Lialia Maulupe suffered a laceration to her head requiring stitches and she also experienced pains [12ASR2d5] about the head area and on her right arm. She attended an outpatient clinic over the following two week period and her primary complaint was of a lot of pain. She also missed a few days at work claiming $94.80 in lost income. We assess Lialia Maulupe's damages for pain and suffering in the amount of $1500 and in addition she is awarded $95.00 in lost income ---a total of $1,595.00.

Plaintiff Liliu Maulupe suffered cuts and abrasions to her head and facial area as the result of being thrown against glass. She was admitted for two days of observation and, fortunately, she had escaped potentially serious injury, having worn her seat belt at the time. Liliu also attended hospital on an outpatient basis over the next two weeks for pain experienced to her back and head area. She lost work days also for which she claims $104.00. We assess Liliu Maulupe's damages for pain and suffering in the amount of $1500 and allow damages for lost income in the amouint of $104 ---a total of $1,604.00.

Saofaigali'i Maulupe prays for damages in the amount of$4, 740 for vehicle loss plus an' additional $3000 for "alternate transport and inconvenience. " He testified that his vehicle was declared a total loss and that after the accident, it was towed to a mechanic's yard where it remains today. He also testified that he purchased the said vehicle in 1985 and together with finance charges he had paid over $10,000 for it. We find the amount of $4,740 claimed as reasonably reflecting the value of the vehicle at the time of loss. We find no basis, however, to sustain plaintiff's additional claim of $3,000 for alternate transport and inconvenience. Liu allowed plaintiff the use of a vehicle for a period of one week after the collision. Mr. Maulupe purchased another vehicle two months after the collision. Taking into account his duty to mitigate damages, we allow Mr. Maulupe the additional sum of $500 for loss of use.

On the foregoing, we dismiss the complaint as against Jack and Ese Liu and A.I. U. , and plaintiffs take nothing thereby. Judgment will enter against defendant Isapeli Vaenuku in favor of plaintiffs as follows: Lialia Maulupe, damages in the amount of $1,595.00; Liliu Maulupe, damages in the amount of $1,604.00; and Saofaigali'i Maulupe, damages in the amount of $5,240.00.

It is so Ordered.

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1. There was simply nothing in the evidence on which to base a claim of primary liability on the part of Mr. Liu .

Alai'a; Moea'i v.


MOEA'I ULIATA, Appellant

v.

ALAI'A FILIFILI, SI'UFANUA AITU, and
TUIA'ANA MOI, Appellees

High Court of American Samoa
Appellate Division

AP No. 35-88

September 11, 1989

__________

Trial court's finding of facts may not be set aside on appeal unless clearly erroneous. A.S.C.A. § 43.0801(b).

When determining whether trial court finding of facts is clearly erroneous, appellate court must give due regard to trial court's opportunity to weigh credibility of witnesses. T.C.R.C.P.52(a).

Trial court does not merely determine which version of events is more researched, less contradicted, or better sounding story , but also assesses the credibility of the live witnesses before it.

Trial court denial of appellant's land claim was supported by substantial evidence where his underlying contentions were inconsistent with documentary records and with the result of a previously litigated case.

Whether or not a dissatisfied litigant had himself presented substantial evidence in trial is not the test for clear error; rather, the question is whether there was substantial evidence to support the trial court's conclusions.

Trial court properly declined to grant motion for reconsideration based on an issue that had not been properly raised at trial.

Before KRUSE, Chief Justice, CANBY,* Acting Associate Justice, THOMPSON,** Acting Associate Justice, and OLO, Associate Judge. [12ASR2d92]
Counsel: For Appellant, Togiola T.A. Tulafono
For Appellee Alai'a, Charles V. Ala'ilima
For Appellee Tuia'ana, Albert Mailo

Per Kruse, C.J.:

Appellant, Moea'i Uliata, for himself and his con1ffiunal family, appeals from a decision of the Land and Titles Division denying much of his offer to register title to some 15.5 acres of land located near the village of Faleniu. [Moea'i v. Te'o, 8 A.S.R.2d 85, motion for reconsideration den. , 9 A.S.R.2d 107 (1988).] Basically underlying the appeal is a quarrel with the trial court's unfavorable assessment of appellant's evidence.

Appellant's first contention is that his side presented "the most detailed history of its entitlement to the land." He urges, in lather strong terms, that there was substantial evidence to support his claim to all of the 15.5 acres and that the trial court was thus clearly in error.

With regard to findings of fact of the Land and Titles Division, the appellate court's role is statutorily delimited in A.S.C.A. § 43.0801(b). This enactment provides that the Appellate Division may not set aside findings of fact below unless they are clearly erroneous. Trial Court Rules of Civil Procedure, Rule 52(a) not only restates this proscription, but further provides that "due regard shall be given tp the opportunity of the trial court to judge of the credibility of the witnesses." This Court has previously given, in National Pacific Insurance Co. v. Oto, 3 A.S.R.2d 94 (1986), a detailed explanation why appellate tribunals defer to the factual judgment calls made by the trial court on the basis of conflicting testimony.

There is more to the trial court's fact-finding exercise than merely making comparisons to see which is the more researched, the less contradicted, or the better sounding story. Credibility alone might negative the best presentation ---the trial court with the live witness before it is in the best position to assess credibility. We note from the record at least one glaring difficulty with appellant's exclusive claim to title which required explanation. That is, his claim to sole ownership of the area was directly inconsistent not only with documentary records (a lease of the land to the Mormon church in 1902 or 1903 and a deed of conveyance to the church) indicating a number of Faleniu chiefs as owners of the disputed land, but also contradictory with the result of at [12ASR2d93] least one previous case which recognized appellee, Tuia'ana, as a land owner in the vicinity. See Siufanua v. Uele, 2 A.S.R. 462 (1949).

Whether or not a dissatisfied litigant had himself presented substantial evidence is not, as appellant seems to suggest, the test for clear error. Rather, the question is whether there was substantial evidence to support the trial court's conclusion. Here, there was substantial evidence in support.

Appellant's other contention on appeal is that appellee Tuia'ana is not a senior matai capable of holding land under Samoan customs and that the award of land to Tuia'ana was, therefore, error.

In its Opinion and Order on Motion for Reconsideration and Relief from Judgment, the trial court held that this issue was not properly raised at trial. Moea'i v. Te'o, 9 A.S.R.2d 107, 111-12 (1988). We agree. Moreover ,we find that there is substantial evidence to support the alternative conclusion that Tuia'ana is a matai of Faleniu and can therefore own communal land.

The judgment of the Land and Titles Division is affirmed.

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* Honorable William C. Canby, Jr., Judge, United States Court of Appeals for the Ninth Circuit, serving by designation of the Secretary of the Interior.

**Honorable David R. Thompson, Judge, United States Court of Appeals for the Ninth Circuit, serving by designation of the Secretary of the Interior.