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https://www.courtlistener.com/api/rest/v3/opinions/8485256/ | OPINION AND ORDER OF AFFIRMANCE
MORROW, Chief Justice
The Trial Division of the High Court rendered a decision in the case of Leasiolagi, Tagata, Mapuilefala Tavete, Puapuaga L. Vagi and T. F. Solaita, all of Nuuuli v. Faumui, No. 13-1954 (H.C. of Am. S.) awarding the *510matai name Levu to Tagata. Mapuilefala Tavete and Faumui have appealed, each of them claiming that the Court should have awarded him the title instead of awarding it to Tagata. At the outset of the hearing in the trial court, Solaita withdrew his candidacy for the title and was dismissed as a party to the case. Leasiolagi and Puapuaga have not appealed.
Mapuilefala Tavete grounded his appeal upon the following alleged errors by the lower court:
(1) Its finding that the majority of the Levu Family members supported the candidacy of Tagata instead of finding that the majority supported the candidacy 'of Mapuilefala Tavete; . .
(2) Its finding that Tagata was on an equality with Mapuilefala Tavete on the issue of forcefulness,' character, personality and capacity for leadership instead of finding that Mapuilefala Tavete was superior to Tagata with respect to the subject matter of this' issue;
(3) Its finding that Tagata would be of more value to the Government as the holder of the Levu title than would Mapuilefala Tavete.
Faumui grounded his appeal upon the following alleged errors by the lower court:
(1) Its finding that Faumui was not a blood member of the Levu Family;
(2) Its finding that a majority of the Levu Family did not support his candidacy for the title;
(3) Its finding that Tagata would be of more value to the Government as the Levu than would Faumui.
The power of the Appellate Division on appeal is prescribed in Sec. 213 of subchapter E of section 10 of Amendments, Nos. 11-59, 1952 to the Code of American Samoa. The applicable part of this section reads as follows: “The Appellate Division of the High Court on appeal. . . shall have power to affirm, modify, set aside, or *511reverse the judgment or order appealed from or reviewed and to remand the case with such directions for a new trial or for the entry of judgment as may be just. The findings of fact of the Trial and Probate Divisions of the High Court in cases tried by them Shall not be set aside by the Appellate Division of that court unless clearly erroneous, but in the case of appeals from the district courts the Appellate Division of the High Court may review the facts as well as the law....” In view of this statute this Court cannot set aside any of the findings of fact of the Trial Division in this case "unless clearly erroneous.”
In its opinion, the lower court, speaking with respect to testimony relating to the support in the Levu Family for Mapuilefala and Tagata respectively, said:
“Mapuilefala testified that all of the 224 signers on the petition for him were blood-members. Faumui admitted that 77 of the 224 were blood-members. Leasiolagi testified that 154 on Mapuilefala’s petition were not blood-members while Tagata testified that only 15 of the 224 were blood-members. Puapuaga testified that only 30 of the signers on Mapuilefala’s petition were blood-members. He said not a single one of the remaining 194 lived on Levu land and that none of the 194 was ever called in to discuss Levu Family matters. We are convinced from the evidence that less than 50 of those on Mapuilefala’s petition are real blood-members of the Levu Family.
“Leasiolagi, Puapuaga, Tagata and Mapuilefala testified that all of the 64 signers on the petition for Tagata were blood-members of the Levu Family. Faumui admitted that 60 of the 64 were blood-members. The weight of the evidence is clearly to the effect that all of the 64 are blood-members, and we so find.”
We have gone over the evidence before the lower court and believe that the foregoing from its opinion is a correct, summary of the testimony and that the finding of fact based thereon is correct. We cannot say that such finding of fact was "clearly erroneous.”
In connection with the issue of the wish of the majority or plurality of the family, we think that great weight must *512be given to the testimony of Puapuaga who is a blood-son of the late Levu. He has resided in the Family all of his life. He knows the membership of the Family and knows it well. He testified that only 30 of the 224 signers on Mapuilefala’s petition were blood-members while all. of the 64 signers on Tagata’s petition were blood-members. Also he knows who lives on Levu Family land and who, according to Samoan customs, are called in to discuss family matters. In considering the weight to be given to the testimony of Mapuilefala we cannot overlook the fact that he was once suspended from his position in the Department of Agriculture for financial irregularities and that he was, as will appear later, convicted, and jailed for another offense, the nature of which has a direct bearing upon his credibility as a witness.
Mapuilefala further complains that the lower court was in error when it found that he was on an equality with Tagata with respect to forcefulness, character, personality and capacity for leadership instead of finding that he prevailed over Tagata on this issue.
In its opinion, the lower court, speaking of Tagata and Mapuilefala with reference to these matters said:
“Tagata, 53 years old, finished the second grade and then attended a faifeau’s school for four or five years. He speaks English well. He has been a lesser matai in the Levu Family for a number of years and lives in the Family. He has held the Tagata title for 10 years. He has rendered a very substantial amount of service to the Levu title. During the war he was a foreman directing the work of 40 laborers. He has been pulenuu of Nuuuli and a pulenuu’s policeman. Tagata works on family plantations. He has two sons in the Armed Forces of the United States who make substantial contributions to him.”
In the argument on the appeal, it developed that both Tagata and Mapuilefala had been convicted of crime. Their convictions are matters of court record of which we think we may properly take judicial notice. “Generally *513speaking, an appellate court may take judicial cognizance of any matter of which the Court of original jurisdiction may take such notice; but it cannot judicially notice matters which would not have been noticed by the Court below.” 3 Am.Jur. 375. We think that the Trial Division could very properly have taken judicial notice of these convictions in the district court, the jurisdiction of the district court in such cases having been transferred to the Trial Division. See 31 Corpus Juris Secundum 623-627.
In 1951 Tagata pleaded guilty to a charge of interference with civil rights by a Samoan chief and was fined $25.00. According to the information in the case, he used his rank as a chief to interfere with the civil rights of another by threatening her with bodily injury by members of his family. Apparently there was no bodily injury inflicted. In 1943 Mapuilefala (then Tavete) was convicted of compounding a criminal offense and sentenced to one month in jail and in addition to pay a fine of $50.00. Threats are not uncommon and ordinarily arise in Samoa from a burst of temper. Compounding a criminal offense involves a much more serious matter, viz., corruption. At the time Tavete was convicted the then Code defined compounding a criminal offense as, “The offense of entering into an agreement for a valuable consideration, or taking a reward, for forbearing to prosecute the criminal offense.” Sec. 30, A. S. Code of 1937. Tavete’s crime involved an interference with the administration of justice as well as moral delinquency while Tagata’s involved what is so common, merely threats, normally arising from a burst of temper. While Tagata’s offense is not to be condoned, nevertheless it is quite clear that it was very much less serious than Tavete’s, and that is indicated by the fact that Tavete was sent to jail while Tagata was not and in addition Tavete was fined $50.00 whereas Tagata’s fine was only $25.00.
*514In view of 'Mapuilefala’s jail record which came out on the appeal and his financial irregularities which resulted in his suspension from the Department of Agriculture (neither of which were noticed by the lower court) we think that if .the lower court committed any error in finding that Mapuilefala and Tagata were on an equality with respect to the issue of forcefulness, character, personality and capacity for leadership, it was in its failure to find that Tagata prevailed over Mapuilefala on .that issue and not in its failure to find that Mapuilefala prevailed over Tagata. If there was error with respect to this issue it was in favor of Mapuilefala and not against him.
However, since the final decision will be the same whether the finding that Tagata and Mapuilefala are on an equality with respect to this issue is set aside or not and also since Tagata has not asked that it be set aside, we will not disturb it even though we may .think, considering all of the evidence, that the finding should have been that Tagata prevailed over Mapuilefala on the issue of forcefulness, character, personality and capacity for leadership.
Mapuilefala also complains of the lower court’s finding that he ranked third among the original five candidates on the issue of the value of the holder of the title to the Government of American Samoa.
With respect to this issue the lower court in its opinion said:
“On the issue of value to the government as the holder of the title we believe from the evidence that among the 5 candidates Tagata ranks first, particularly in view of the fact that he has been a lesser matai in the Levu Family for many years, and is very familiar with family affairs. Faumui has lived away from the Family for 20 years and could not have the familiarity with family affairs that Tagata has. We think from the evidence that Mapuilefala ranks third on this issue while Leasiolagi ranks fourth. We cannot overlook the fact that while Leasiolagi holds a title in Asu he does not live there with his family. We think in view of this fact that he *515would be more interested in holding the Levu title than in serving the family. In the recent case of Vaimaona Family of Laulii v. Meafou et al., No. 8-1956 (H.C. of Am. S.) we said that, ‘A chief owes duties to the members of his family. He should serve as well as lead his people’. A chief who lives away from his family is not premarily [sic] concerned with its welfare. He is not serving it to any great extent. Sec. 934 of the Code provides that, ‘Whenever a matai shall live away from his family for a period of six months or more, unless engaged in the performance of the duties of a public office of American Samoa, or shall otherwise neglect to perform the duties of his office of matai’ he may be removed as such matai. We believe that Puapuaga ranks fifth with respect to this issue of the value of the holder of the matai name to the Government. He has been in jail three different times. It costs the Government money to-keep a man in jail. A man who has had to be sent to jail three different times for crime is not very likely to be of great value to the Government as the holder of a matai title.”
We have reviewed the evidence on this issue. We cannot say that the lower court’s finding on this issue is “clearly erroneous” which, pursuant to the statute (Sec. 213 of subchapter E of Section 10 of Amendments Nos. 11-59, 1952, quoted above), we would be required to do if we were to set aside the finding. The Government sent Mapuilefala to jail for compounding a criminal offense which was not only a corrupt act but also, as we have said, an interference with the administration of justice. One can hardly become enthusiastic about the value of a matai to the Government when it has had to put him in jail for compounding a criminal offense. It costs the Government money to prosecute a man, send him to jail, and keep him there until he has served his sentence. After reviewing all the evidence, we think that the lower court’s finding on this issue was correct.
Appellant Faumui first complains of the lower court’s finding that he is not a blood-member of the Levu Family. The Court found that he was “an adopted member and not a blood-member of the Levu Family.” However, on the *516hearing of the appeal his counsel brought to our attention certain records in the High Court cases of Leaeno et al. v. Levu of Nuuuli, No. 14-1930 (H.C. of Am. S.) and Levu of Nuuuli v. Tagata of Nuuuli, No. 5-1925 (H.C. of Am. S.) from which records it appears that on August 23, 1932, Levu Fuatau gave certain parts of the Levu land Falemalama in Nuuuli to Gauta, Vaa and Pisa. Pisa is not Faumui. We will take judicial notice of these court records just as we did of the court records relating to Mapuilefala and Tagata. In view of the fact that the Levu gave certain land to Faumui in 1932 and in view of Samoan customs with respect to land, we think that the finding of the lower court that Faumui was “an adopted member and not a blood-member of the Levu Family” should be set aside.
However, setting aside this finding of the lower court will have no effect upon the final decision in this case since Faumui claims that he has only Vu Levu blood in his veins while it is undisputed that Tagata and Mapuilefala, the other two parties to this appeal, each has 1U Levu blood in his veins. Each of them has a greater hereditary right to the title than Faumui.
Faumui claims that the lower court erred in its finding that more blood-members of the Levu Family supported the candidacy of Tagata than any of the other candidates which of course included candidate Faumui. We have reviewed the testimony with respect to the wishes of the family as to who should be the matai. We think the evidence supports the finding that the number of blood-members wishing Tagata to have the title exceeded the number wishing Faumui to have it. While Faumui testified that all of the 165 signers on his petition were blood-members, Leasiolagi testified that 143 of them were not while Tagata, Mapuilefala and Puapuaga testified that 164 of the 165 were not. Leasiolagi, Puapuaga, and Mapuilefala testified that all 64 signers on the petition for *517Tagata were, blood-members, while Faumui himself testified that 60 of the 64 were blood-members. In view of the evidence on this issue we cannot say that the finding of the Trial Division was clearly erroneous.
Faumui claims on this appeal that he would be of more value to the Government as the holder of the title Levu than would Tagata. We think that the evidence warranted the finding of the Trial Division that Tagata would be of the greater value. With respect to this issue the trial court said that Tagata “has been a lesser matai in the Levu Family for many years,.and is very familiar with family affairs. Faumui has lived away from the Family for 20 years and could not have the familiarity with family affairs that Tagata has.” These facts are undisputed. Giving consideration to these facts and the additional evidence bearing on the issue of value to the Government, we think that the finding was correct.
It is the conclusion of the writer of this opinion as well as that of the two Samoan Judges who sat on the trial court and the four other Samoan Judges who sat on this appeal that the decision of the trial court awarding the Levu title to Tagata was correct.
We will set aside the finding of the Trial Division that Faumui is an adopted member and not a blood-member of the Levu Family. The decree of the Trial Division awarding the Levu title of Nuuuli to Tagata should be affirmed.
ORDER OF AFFIRMANCE
Accordingly, it is ORDERED that the decree awarding the matai name Levu of Nuuuli to Tagata be and it is hereby affirmed.
The finding of the Trial Division that Faumui was an adopted member and not a blood-member of the Levu Family is hereby set aside.
*518Costs in the sum of $17.00 are hereby assessed against Mapuilefala Tavete and Faumui, each to pay $8.50. Costs are to be paid within 80 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485638/ | On Motion for Preliminary Injunction:
The Court has been presented with evidence that defendants Uiagalelei et al. attempted to conduct a survey in preparation for the„ trial of this case and that plaintiff Satele Momosea and two other Satele family members prevented them from conducting the survey.
It is extremely important that each party survey the full extent of the land he claims, even though such surveys encroach on land also claimed by other parties to the case. The Court cannot *110render a judgment for either side until it has an accurate picture of what is claimed by gach and what is in dispute.
Plaintiff Satele Momosea, his aiga, and those acting in concert with him are therefore enjoined-from interfering in any way with the efforts of defendants to' conduct a survey on the disputed 1and.' | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485260/ | OPINION AND ORDER OF AFFIRMANCE
Fesagaiga and Toso, counsel for Appellant.
Lauvao, counsel for Appellee.
MORROW, Chief Justice
This is an appeal from a decree of the Trial Division entered July 2, 1959, ordering the registration of Faumuina S. as the holder of the title Tuiasosopo, attached to the Village of Vatia.
On July 6, 1959, Toso, who had been of counsel for appellant Mere T. Betham (hereinafter referred to as Mere) in the trial court, filed an appeal. Mere, sometime after the hearing and prior to the entry of the decree, had gone to California to attend a summer session of the University of Southern California. Prior to her departure from Tutuila, she left instructions with Penefu, the marshal, to deliver her copy of the opinion and decree in the trial court to her husband, who was to send it to her in California. Penefu delivered the copy to her husband on the day of entry of the decree. Her husband sent it to her. It is noted that she gave instructions that the copy be given to her husband instead of Toso.
Nevertheless Toso, without any express authority from Mrs. Betham, filed an appeal.
It appears that Mere and Toso had a conversation about the case after the trial and before Mere’s departure for California. However, it is clear to us that Toso acted without express authority. Shortly after Mere received the copy in California, she consulted a lawyer in Reseda, California. She filed a second appeal, prepared by the California lawyer, on July 17, 1959, which was 15 days after the entry of the original decree. The second appeal was filed without formal notice of appeal as was the first.
The appeals were set down for hearing on February 15, 1960. Sometime prior thereto, appellant moved the *540Court to grant a continuance, claiming that it. was difficult for her California lawyer to appear in court here at. that time. He seems to have had conflicting engagements. This three-judge court overruled the motion for a continuance because the appellant already had local counsel to represent her at the hearing on the appeal. Absence of nonresident counsel because of conflicting engagements is not ground for a continuance when the party is already adequately represented by counsel. See in this connection 12 Am.Jur. 455 and 17 C.J.S. 216.
At the hearing on the motion for continuance, counsel for appellee moved the Court to dismiss both appeals; the appeal filed on July 6 upon the ground that it was filed without authority; the appeal filed on July 17 upon the ground that it was filed too late.
The statute requires notice of appeal to be filed “within seven days after the imposition of sentence or entry of the judgment or order appealed from.” Section 10, Chapter 5, subchapter E, Section 212, Amendments, Nos. 11-59, to the A. S. Code.
Since the second appeal was filed 17 days after the entry of the order appealed from, and not within seven days as required, the Court dismissed the second appeal.
The Court did not rule on the motion to dismiss the first appeal although, doubtless, we might properly have dismissed it upon the ground that it was filed without express authority. See 7 C.J.S. 912 and 5 Am.Jur. 325-
In the appeal filed by Toso, Mere claims that Associate Judges Ape and Tauala, who sat in the trial court, are related to Faumuina. Chief Masaniai of Vatia, who is a member of both the Tuiasosopo Family and the Faumuina Family, and who is familiar with the membership of both families, testified that neither Judge Ape nor Judge Tauala was a member of the Faumuina Family. Faumuina *541testified that neither Judge Ape nor Judge Tauala was a member of .the Faumuina Family. When John Faumuina, the blood son of the appellee, was recently installed as the holder of the Faumuina title (his father, the appellee, resigned from the Faumuina title after the trial court handed down its decision awarding him the Tuiasosopo title), neither Ape nor Tauala appeared at the ceremony in which he was presented with his sua, nor did either of them present a fine mat. If they had been members of the Faumuina Family, they would normally have been present at the ceremony and presented fine mats in accordance with Samoan customs. There was no evidence whatever presented to the Court giving any indication that Judge Tauala is related to appellee Faumuina. In fact, the only evidence on the issue was to the effect that Judge Tauala is not related to Faumuina. The appellant’s claim that Judge Tauala was related to Faumuina was obviously groundless.
Appellant claims that Ape is related to Faumuina because Ape’s son Maina was once married to a woman who is supposed (presumably after a divorce from Maina) to have married a man related to Faumuina. Nevertheless, assuming it is true (and the evidence was not at all convincing that it is true) that Maina was once married to this woman, all relationship by marriage between her and Maina would terminate upon the divorce. She would no longer be Maina’s wife, not being married to him. Certainly if she later married a man related to Faumuina, that man wouldn’t be related to Maina since she and Maina were not then husband and wife; and if Maina would not be related to the second husband of his former wife, certainly Maina’s father Ape would not be related .to that man. That any relationship between Ape and Faumuina could possibly grow out of the foregoing circumstances, if true, (and they were not satisfactorily proved) would be purely imaginary and have no basis in fact. Also, appellant *542claims that Ape and Faumuina are related through thé Moaaliitele title in Fitiuta. It appears that both Ape and Faumuina signed a petition in 1954 favoring Talalefalealii for the Moaaliitele title. Assuming such to be true, it does not follow at all that Ape and Faumuina are related either by blood or marriage. We know that a man may be adopted into a family or marry into it and sometimes (in the olden days, and even now as far as the law is concerned) become th$ matai. A descendant of such a matai could very well have no relationship by blood or marriage to descendants of a former holder of the title. By palagi customs, both B and C may be related to A but not related to each other. A may be the great-grandson of B and at the same time also the great-grandson of C, but that does not make B a relative of C. Furthermore, two Samoans may imagine they are related when in fact they are not, and two others may believe that they are not related when in fact they are, both errors growing out of erroneous genealogies handed down by word of mouth. This Court judicially knows that genealogies handed down by word of mouth for a long period (and many of them are handed down for 150 years and more) are many times notoriously inaccurate. In this very case Mere testified that Faumuina was not a member of the Tuiasosopo Family, when the record in the case Galu of Vatia v. Mariota of Fagatogo, No. 7-1932 (H.C. of Am. S.) shows quite clearly that Mariota, Mere’s blood father, testified that Faumuina of Leloaloa was a matai in the Tuiasosopo Family. Apparently Mere, when trying to get the Tuiasosopo title in this case, was using a genealogy somewhat different from .that used by her father Mariota when he was seeking the same title in the above 1932 case. A genealogy in the hands of one member of a family may be an entirely different thing from the same genealogy in the hands of another member of the same family on a different occasion.
*543We think that the testimony of Masaniai that Ape is not related to Faumuina is to be believed and that it was a true statement of fact. The evidence clearly preponderates in favor of the view that Ape is not related to Faumuina. In view of this and the fact that the only evidence as to whether Tauala was related was to the effect that he was not, we conclude that the first ground of appeal has no merit.
The second ground of appeal is a claim that “Faumuina provided suatai for the Samoan judges openly on the first day of the case and tuuga basket of foods on all the remaining days of the hearing.” “Sua” is a short form of “suatai.”
The only witness of the appellant Mere to establish this claim was Faagata. Faagata testified that he worked as a stevedore on a ship tied up at the Customs dock during the three days of the hearing and that on the first two days he saw from the ship the alleged suatai being delivered to the Samoan judges Ape and Tauala in the Administration Building, which is at least 250 yards from the dock. Also, there are a number of trees between the Administration Building and the dock through which Faagata must have looked when he saw the supposed delivery of the suatai.
According to Samoan customs, a suatai or sua is a very formal presentation of food. First comes a man bearing a coconut and wearing a tapa cloth wrapped about him over his lava lava; next comes another man carrying food on a tray made from a coconut frond; and then a third man follows bearing a roasted pig with a flower in its ear. The coconut, tapa cloth, food, and pig are then presented to the recipient with much formal ceremony.
That Faagata could see 250 yards through trees and know that the so-called sautai came from Faumuina and not one of the three other candidates; that he could see the shucked coconut, the tapa cloth, and a pig on the tray with *544a flower in its ear; that he could see two Samoan judges inside the office of the Deputy Clerk and Marshal of the Court and recognize them; see through the walls of the office and see the' three persons deliver the suatai to the Samoan judges inside the office is. simply incredible. Faagata may have good eyes, but it taxes our credulity to believe he could see through the walls of a building 250 yards away and see three persons deliver a suatai to two Samoan judges in the office.
Appellant Mere filed with the Court an affidavit of Faagata which was obviously prepared in her lawyer's office in California for Faagata to sign in Samoa and which he did sign. That affidavit, which was in English, says that:
“I, Fa’agata, M. of Fagatogo Village, American Samoa, being first sworn, do depose and say that on Monday, May 25, 1959, at about 1 :'30 o’clock P.M. inside the Administration Building in Fagatogo, saw with my own eyes, chief Faumuina of Leloaloa Village and members of his family, present a Sua to each of the Samoan judges (Tauala and Ape), who sat at the trial of the Tuiasosopo Title in the High Court of American Samoa, Monday, May 25, 1959.
/s/ Fa’agata, M.”
As before stated, in his testimony at the hearing on the appeal Faagata swears that he saw the presentation from the ship, while in the affidavit he swears he saw the presentation inside the Administration Building. How he could have seen the same presentation “with his own eyes" at the same time from two different places at least 250 yards apart also taxes our credulity. In his testimony, Faagata said that the suatai was presented at about 12:30 noon. In his affidavit he says it was' “about 1:30." The transcript of the proceedings in the trial court shows .that the Court recessed at 11:58 A.M., May 25th and reconvened at 1:15 P.M. In other words, the two Samoan judges were on the bench in the courtroom at the very same time *545that Faagata, while on a ship 250 yards away, recognized them in the Deputy Clerk’s office, looked through the walls of the office and saw them receive a su'atai, recognized by him as coming from Faumuina. Faagata did not explain to the Court just how he could look through trees at a roasted pig with a flower in its ear from a distance of 250 yards and recognize it as having come from Faumuina.
Not only did Faagata, if we are to believe his testimony, accomplish this truly remarkable feat on the first day of the hearing in the trial court but he did it again on the second day which was May 26th. In view of Faagata’s testimony, we think that he was very careless of the truth when he signed the affidavit. However, it was prepared in English in California for him to sign. He is a Samoan, and Samoan is his language. The affidavit has an indorsement on it to the effect that it was translated for him.
It appears from Faagata’s testimony that on the third day of the hearing in the trial court he left the ship at noon and came to a poolroom back of the Administration Building and was in the poolroom when he heard a noise; that upon hearing the noise he went to the office of the Deputy Clerk, apparently thinking that he could get some food. When he got there he saw the head of a pig and some leaves of the kind put inside a pig when it is roasted. He said that Judges Ape and Tauala were there. Whether Faagata looked at the pig’s head and recognized it as the head of a pig that was once the property of Faumuina, we do not know. However, that may be, he testified that the two Samoan judges indicated to him that it was Faumuina’s pig. Faagata testified in this appeal that he was not an aiga of Mere, yet Mere’s own testimony before the trial court indicates that she and the said Faagata are related. It is somewhat difficult for us to understand just how Mere could be related to Faagata and at the same time Faagata not be related to her. We note that Faagata was *546testifying for Mere. In view of the affidavit of Faagata and his statements on the witness stand, we think we know how much weight .to give to his testimony.
Punefu, the Marshal of the Court, who occupies the Deputy Clerk’s office along with Poia, the Deputy, testified with respect to the presentation of food. He told the Court that he was in the office and that three baskets (a basket is made from a coconut frond) of food were brought to the office for the office force. It is the custom of Samoans when a feast is had in a village to call out to strangers and present food to them. No doubt the custom grows out of the communal way of life of the Samoan people. Any child in a village is welcome to go into any house in the village and eat. When a matai name case or a land title case is being heard, each of the litigants may have a feast at noon attended by those of his aiga accompanying him to the trial. Quite naturally and pursuant to the customs of the Samoan people, food is presented to strangers or others in the vicinity. Punefu testified, and it was in accordance with the custom, that the three baskets of food were sent by three of the litigants to his and Poia’s office for whoever might be there. We think from Punefu’s testimony (and we believe him; he was not seeing a pig with a flower in its ear through walls from a distance of 250 yards) that on each of the three days at least three of the litigants each sent a basket of food. Punefu, who received the baskets, did not know which three of the four litigants sent them. As far as he knew, when he got the food for the office, it might have come from Mere, Faumuina, and Gaoteote; from Mere, Gaoteote, and Petelo; from Faumuina, Gaoteote, and Petelo; or from Faumuina, Petelo and Mere. He just knew that it was being presented to the office force and whoever might be there, in accordance with the Samoan custom of providing food for strangers in the vicinity when a feast is had. The fact that Faagata went to the *547Deputy Clerk’s office from the poolroom on the third day to get some food shows that it was for anybody in the vicinity. There was evidence that Fesagaiga, the Assistant Public Defender, who represents Mere in this appeal, went to the Deputy Clerk’s office on one of the days and had some of the food. He had nothing to do with the case in the trial court. He was a stranger in the vicinity when the food was given to Punefu.
The judges of this Court are familiar with the Samoan way of life and Samoan customs. This Court takes judicial notice of Samoan customs. They are matters of common knowledge, and courts take judicial notice of matters of common knowledge. 31 C.J.S. 510. We know judicially that the acceptance of such food as was presented here creates no obligation under Samoan customs on the part of the recipient. Section 2 of the A. S. Code recognizes Samoan customs. It provides for the preservation of Samoan customs not in conflict with the laws of .the United States applicable in American Samoa or with the laws of American Samoa. This section of the A. S. Code requires this Court to recognize and give effect to valid Samoan customs. The food coming in baskets was not a suatai or a sua. It was just food for anyone who might be in the vicinity. The food was not presented to the Samoan judges. The reliable evidence was to the effect that it was Punefu who received the food. If the two Samoan judges were in the office of the Deputy Clerk when the food was brought in to Punefu and if they consumed part of it, it would, nevertheless create no obligation on their part to the three donors of the food. There was no satisfactory evidence to show that they knew which three of the four litigants sent it. Punefu, who received it, did not know from what three of the four litigants it came. In view of Samoan customs, there was just as much reason for them to believe that Mere sent one of the baskets as that Faumuina sent one. If *548the Samoan judges were in the office when the food was brought in to Punefu, they could have believed that any three of the four litigants sent it one day and another combination of three on another day and still another combination of three on another day.
The testimony of Punefu (and we regard him as a reliable witness) was that the food was given to him and that it was not presented to the Samoan judges.
Temporary Associate Judge Malauulu asked witness Punefu; “Q Is it the fact then that this sua mentioned by Faagata was not intended for the judges?” to which he replied: “Never been presented for the judges.”
Then the witness testified:
“CJ: Was it a sua?
“A There has never been a sua, Your Honor.
“CJ: Well now was this food that was brought to you a sua?
“A Under oath, No, Your Honor.
“CJ: Did it create any obligation on your part toward the parties, that is, under Samoan custom?
“A No, Your Honor. The fact is, Petero himself brought in some food, as I said, which I just recall now. Petero’s son brought in some food and still Petero lost the case.
“JUDGE MALEPEAI: Q What is your understanding of this matter, Punefu; was it forced upon the family to present food or was it presented willingly by them in recognition of your participation in this case ?
“A I can positively say it is a very understandable thing in Samoa that it was made in consideration of the Samoan customs.
* # *
“CJ: Did the Clerk of the Court receive any food ?
“A No.
“CJ: Did I receive any ?
“A No, Your Honor.
“FESAGAIGA: Q As an expert witness in this case, Punefu, are you trying to protect the associate judges or are you trying to protect Faagata in your testimony a little while ago ?
“A I am bound with my oath, and I am trying to tell the truth and the whole truth and nothing else but the truth. I am not trying to protect anybody.”
*549And Punefu further testified:
“Q Now what is the custom with respect to distributing food when there is no sua, if there are people around when a big feast is being had?
. “A Everyone who is around shares the food, Your Honor.
“Q Now I would like to ask you a hypothetical question. Assuming that this food was just brought to the office and it was not a sua and it came from the various parties, and assuming that the judges were given some of it by you, would that create any obligation under Samoan custom on the part of the judges toward any particular party in the case?
“A No, Your Honor. The answer is no.”
In view of the fact that under Samoan customs no obligation is created by the acceptance of food under the circumstances presented here, it follows that there is no reason to suppose that the Samoan judges had any bias in favor of either Mere or Faumuina or any other candidate who may have furnished food; and this is true even though .they may have consumed some of the food which was intended for those in the vicinity. The food was not presented to the Samoan judges, as we have already said.
Samoan culture is entirely different from American culture. It has its roots in human experience going back thousands of years in .the Western Pacific under conditions that existed nowhere else in the world. The Samoan way of life is communal.
We think that there is no merit in Mere’s second ground of appeal.
The writer of this opinion is fully aware that if the charge made by the appellant with respect to the two Samoan judges were true and if it had occurred in the United States with American judges, it would have been improper there. However, the two Samoan judges sitting with the writer on this appeal (and they constitute a majority of the Court) assure him that, granting for the sake of argument that Samoan Judges Ape and Tauala did *550consume food under the circumstances claimed by the appellant, they would, nevertheless, under Samoan customs, be under no obligation whatever to the one furnishing the food. The writer concurs with the two Samoan judges sitting on this appeal that under Samoan customs there would be no obligation created. However, he prefers to. base his conclusion that there is no merit in the second ground of appeal because of want of satisfactory proof to support the claim of improper conduct by Samoan Judges Ape and Tauala.
The transcript of the proceedings in the trial court shows that at the beginning of the hearing the parties were asked if they had “any objection to any of the judges.” Associate Judge Tauala and Ape were on the bench. Mere was the first to answer “No.” Faumuina, Gaoteote and Petelo also answered “No.” The judges of this Court know Samoans, and they know that that answer of “No” by Mere is a very strong indication that Ape and Tauala are not related to Faumuina, who was opposing Mere for the title. Also when Mere answered “No,” being a Samoan, she knew the Samoan customs with respect to food. It appeared from the testimony of Punefu that when Mere’s father Tuiasosopo Mariota (and he was a very distinguished Samoan) was counsel in the Tiumalu title case in 1953, food was sent by the parties to the Samoan judges sitting in that case, in accordance with the Samoan customs, they being in the vicinity. And, no doubt, in accordance with the custom it was given to strangers and others who happened to be in the vicinity as well as the judges.
The third ground of appeal is that “We objected to Faumuina during the entire hearing because he has no blood connection to the title and that is why we did not examine his list of signers.”
*551The statute (Section 933 of the Code) does not require that the holder of a matai title be a blood member of the family. It provides that “In the trial of matai name cases, the High Court shall be guided by the following in the priority listed: (a) The best hereditary right in which the male and female descendants shall be equal in the family where this has been customary, otherwise, the male descendant shall prevail; (b) The wish of the majority or plurality of the family; (c) The forcefulness, character, personality and capacity for leadership of the candidate; (d) The value of the holder of the matai name to the Government of American Samoa.”
The trial division found that Mere had more hereditary right than Faumuina S.; that she had xk Tuiasosopo blood while he had only 1/ió; and that she prevailed over him on the issue of hereditary right. If the trial court had found that Faumuina had no Tuiasosopo blood at all, its finding that Mere prevailed over him on that issue would necessarily have been the same. Just as 1h is greater than x/is, so xh is greater than zero. There is nothing whatever in the statute requiring a matai to be a blood member of the family. This Court knows judicially that men adopted into the family have become matais of their adoptive families; it also knows that sometimes a married man to the family without any family blood has become the matai of the family.
As long as the trial court found that Mere prevailed over Faumuina on the issue of hereditary right, as it did, she can have no complaint with respect to that issue, even if her contention that Faumuina has no Tuiasosopo blood were true, which, from the evidence before the trial court, we think it is not.
We have gone over the evidence at the trial, and we believe that the weight of evidence favors the view that Faumuina has x/is Tuiasosopo blood. And in reaching this *552conclusion we are not considering the fact, as the trial court did not, that Mere’s own father in the 1932 Tuiasosopo title case (No. 7-1932, already referred to) testified in effect that Faumuina of Leloaloa was a matai in the Tuiasosopo Family.
Under the applicable statute (Section 10, Chapter 5, Subtitle E, Section 213, Amendments Nos. 11-59 to the A. S. Code) we cannot set aside findings of fact made by the trial court “unless clearly erroneous.” The finding of fact that Faumuina has %6 Tuiasosopo blood was not “clearly erroneous.” In fact, the finding was well supported by the evidence at the trial..
The fourth ground of appeal is that the Court erred in finding that Faumuina prevailed over Mere on the issue of “Forcefulness, character, personality and capacity for leadership” and on the issue of the “value of the holder of the matai name to the Government of American Samoa.”
Counsel Fesagaiga’s argument for Mere was that while she does not now have the capacity for leadership, because of lack of experience, to undertake all the duties of the holder of the Tuiasosopo title, yet she will have it in the future and, therefore, she should have the title instead of Faumuina who, according to the evidence before the trial court, has demonstrated his capacity for leadership, whereas Mere has yet to demonstrate her capacity for leadership. The argument is that because of her education she has potential capacity for leadership, which gives her a greater right to the title than the demonstrated leadership of Faumuina gives him. There was no proof that her formal education will make her a leader in the future.
We note from the evidence that while Mere is a college graduate, nevertheless, although she became a classroom teacher in the Samoana High School in 1954, she is still a classroom teacher six years later in 1960. She has not been advanced to an assistant principalship or to a *553principalship. In other words, she has made no advancement in position in six years, although she may have had some automatic increases in pay as all teachers get because of length of service. If she had the potential capacity for leadership claimed by her counsel, why has she not been advanced to at least an assistant principalship? She is just where she started six years ago. Everybody knows that being a college graduate is no guaranty whatever of capacity for leadership. Some college, graduates become leaders, most do not.
According to tradition, the Tuiasosopo should represent his village, his county, and even .the Eastern District at most important meetings of Samoans. Mere’s counsel, while admitting she does not now have the capacity and the knowledge of Samoan affairs sufficient to enable her to do this, argues, as we have said, that she should have the title in preference to Faumuina (who has already demonstrated his capacity for leadership in many ways) because she has a potential capacity for leadership. He says that other chiefs can perform those village, county and district duties — by tradition those of the Tuiasosopo — for a number of years until Mere can develop her capacity for leadership. We think demonstrated capacity for leadership is to be preferred under the statute to a supposed (but not proved) potential capacity. The fact that in six years Mere has not been advanced in the school in which she teaches from a classroom teacher to a position of more responsibility, such as an assistant principalship,.raises substantial doubt as to whether she hás the potential capacity for leadership that her counsel claims she has.
The trial court in its opinion said that while Faumuina “does not have the formal education that Mere has, nevertheless he has had years of experience. He has been a matai for 20 years, a bank director for 12 years, a pulenu’u, a village magistrate, a boss over men, a *554responsible employee of the Navy for 30 years, and he has demonstrated capacity for leadership in his community by leading it in the building of one of the finest schools in American Samoa. Faumuina has built a school while Mere has only taught in one.” The evidence before the trial court warranted this statement. We cannot say in the light of the evidence that the finding of fact that Faumuina prevailed over Mere on the issue of “forcefulness, character, personality and capacity for leadership” was clearly erroneous. In fact, we think that the evidence completely supported the finding. Nobody knows whether Mere is a potential léader or not. Maybe she is and maybe she isn’t. But we can say that the evidence before the trial court showed that Faumuina had demonstrated his capacity for leadership and that he is a good leader; whereas there was no proof that Mere is now or will be a good leader in the future.
On the issue of capacity for leadership, it is not without significance that only 20 persons out of all the hundreds claiming to be blood members of the Tuiasosopo Family signed Mere’s petition to indicate to the trial court that they wished Mere to be the matai of the family and its leader. We have not overlooked the fact that 237 signed for candidate Toso and 18 signed for candidate Tovaki and that when Toso withdrew three days before the trial he attached the petition for himself containing the 237 names and the petition for Tovaki containing the 18 names to the petition for Mere, so as to make it appear that a total of 275 had signed for Mere whereas in fact only 20 had indicated that they wanted Mere to be the matai. Of course we know too that Toso told the trial court that he went to see the 255 signers for himself and Tovaki and that each one of them told him they wanted Mere. However, we also know that it was a physical impossibility for Toso to have interviewed the entire 255 in three days, since they were *555scattered over Tutuila and part of Manua, being in the villages of Fagatogo, Pago Pago, Vatia, Amouli, Utulei, Laulii, Matuu, Fagaitua, Auasi, Alao, Alofau, Fitiuta (in Manua), Faganeanea, Atu’u, Satala, Tafagagai, Vaitogi, Nu’uuli, Iliili, Leone and Amanave. It would have taken at least two days for Toso to have gone to Fitiuta, Manua by ship and returned, which would have left only one day to have gone to all the other villages in Tutuila and seen more than 200 different people. If Mere had the capacity for leadership claimed by her counsel in his argument, we think that more than 20 out of the many hundreds of members of the Tuiasosopo Family would have indicated their wish to have her as the leader of the family. Twenty is a very small number in the large Tuiasosopo Family.
With respect to the issue of value to the Government, we think from the evidence, particularly in view of Faumuina’s already demonstrated capacity for leadership, that he will be of more value .to the Government of American Samoa as the holder of the matai title. Tuiasosopo than would Mere. Certainly we cannot say in the light of the evidence that the finding of the trial court on this issue was “clearly erroneous.” This Court has said many times that the value of the holder of a matai title to the Government depends primarily upon his ability to handle the affairs of the family and that that in turn depends upon his forcefulness, character, personality and capacity for leadership. Faamalolo, et al. v. Liligo Letuli, No. 25-1956 (H.C. of Am. S.); I. Malaga, et al. v. Mase Molioo, No. 4-1957 (H.C. of Am. S.); Pito Tufono v. Kisi, No. 17-1958 (H.C. of Am. S.). The evidence, as we have said, did not show that Mere was a leader, nor did it show that she will become a leader. That she may become a leader is pure conjecture.
It is our conclusion, based upon the record in the trial court, together with the testimony adduced at the hearing *556of the appeal, that none of the grounds of appeal is meritorious.
Accordingly, it is ORDERED that the decree of the trial court he and it is affirmed.
Costs in the sum of $37.50 are hereby assessed against Mere T. Betham, the same to be paid within 30 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485261/ | OPINION AND ORDER
MORROW, Chief Justice
Palafu was convicted of petty larceny in .the District Court for the Third District on July 6, 1960. He was sentenced to pay a fine of $10.00 within two weeks or go to jail for 20 days. The defendant appealed upon, the ground that the statute of limitations had run before the criminal charge against him was filed.
We have gone over the record and believe from it that the defendant was guilty of stealing taro as charged. However, it appears to us that the offence for which the defendant was prosecuted occurred in September 1959 while the record shows that the complaint against him was not filed with the Clerk of the District Court until June 22, 1960, which was at least eight months after the commission of the offence.
The defendant at his trial stated that “This thing occurred in 1959 but I am now brought to court for it.”
Section 801 of the A. S. Code as amended on May 20, 1953 provides that “A felony is a crime or offense which may be punished by death or by imprisonment for life or for more than one year. Every other crime is a misdemeanor (emphasis added).”
Section 856 of the A. S. Code as amended on May 14, 1953 provides that the punishment for petty larceny (and that is the offence with which the defendant was charged) is a fine of not more than $150 or imprisonment for not more than six months or both.
*558It follows, therefore, that the defendant was charged with a misdemeanor.
Section 807 of the A. S. Code as amended on May-20, 1953 provides that “In the case of misdemeanors . . . prosecution must be commenced within six months after the commission of the crime or offence.”
The defendant pleaded not guilty in the District Court.
The editors of American Jurisprudence say that “While in some cases special pleas of the statute of limitations have been countenanced or approved, the general and better practice is to raise the issue under a plea of not guilty.” 15 Am. Jur. 38. The editors of Corpus Juris Secundum say that “In most of the cases it has been held that the statute of limitations is available under the general issue, and need not be pleaded specially.” 22 C.J.S. 700. We think the better rule is that the plea of the statute of limitations may properly be raised under a plea of not guilty.
Since the record in the trial court did not show definitely in what month in 1959 the offence occurred, the Appellate Division took testimony from which it was very clear that the offence occurred in September of that year, at least eight months prior to the filing of the criminal complaint against the defendant on June 22,1960.
• It follows, therefore, since petty larceny is a misdemeanor, that the sentence pronounced against the defendant must be set aside and the complaint filed against him in the district court dismissed.
ORDER
The District Court for the Third District is hereby directed to set aside its sentence of the defendant Palafu in the above-entitled case and to dismiss the criminal complaint filed against him in said case. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485263/ | OPINION AND ORDER OF AFFIRMANCE
MORROW, Chief Justice
This is an appeal from an order of the Trial Division requiring appellant Moananu Liuone “to remove his house from and to vacate the land Ifiatua within four months from the date of this order which is June 6, 1961.”
Most of the basic material facts in this case are undisputed. The real dispute hinges around the question as to whether the part of the land Ifiatua conveyed by one Feato, a young man in the Tuana’itau Family of Pavaiai, *565to Moananu was communal family land of the Tuana’itau Family or the individually-owned land of Feato. Ifiatua is in the Village of Pavaiai. It is not registered.
Feato borrowed $200.00 from Moananu sometime prior to June 30, 1960. To secure the payment of the money borrowed, Feato executed a mortgage to Moananu on Ifiatua “adjacent to the real estate belonging to Leomiti of the Village of Pavaiai.” The money together with the interest thereon was to be repaid by August 31, 1960, payment by installments to begin on June 30, 1960. Feato paid nothing whatever. At the expiration of the time for the payment of the money, Feato made an oral conveyance of the mortgaged land to Moananu in satisfaction of the debt, claiming that the land conveyed was his individually-owned land and that he had the right to convey it. Sometime thereafter Moananu erected his house on Ifiatua. It is set up on concrete posts, as are many palagi-type houses in Samoa. The foregoing facts are undisputed.
Tuana’itau, the appellee, instituted proceedings in the Trial Division to secure an order requiring Moananu to remove his house from Ifiatua and to vacate the land. A hearing was had by the Court at Fagatogo and later at Pavaiai where the Court visited the land involved in the presence of the parties and their counsel and questioned witnesses. The witnesses at Pavaiai were also questioned by counsel for the respective parties.
The trial court concluded from the evidence that Ifiatua was the communal family land of the Tuana’itau Family and not the individually-owned land of Feato, a young man in the family. It ruled, therefore, that Moananu took nothing by the oral conveyance from Feato, and that he had no right to keep his house on the land and to continue to occupy it.
Section 213, Chapter 5 (Judiciary and Judicial Procedure) of Section 10 of Amendments Nos. 11-59, 1952 to *566the A. S. Code provides that, “The Appellate Division of the High Court on appeal . . . shall have the power to affirm, modify, set aside, or reverse the judgment or order appealed from or reviewed and to remand the case with such directives for a new trial or for the entry of judgment as may be just. The findings of fact of the Trial and Probate Divisions of the High Court in cases tried by them shall not be set aside by the Appellate Division of that court unless clearly erroneous (emphasis added).”
The basic question before the Appellate Division is whether the finding of the Trial Division that the land Ifiatua was communal family land, and not individually-owned land of Feato, was supported by the evidence before the trial court or was it clearly erroneous in the light of such evidence.
Toluao, a witness 83 years old, testified in the trial court that the land Ifiatua was cleared from the bush before 1900; and that he saw it cleared and planted by Tulaga, Tia Tatupu, Tia Tuvale, and Faimalo. These men belonged to the Tuana’itau Family of Pavaiai. When the Court visited Ifiatua, two very old men testified before the judges that Ifiatua had been cleared from the bush by members of the Tuana’itau Family and that it was not cleared by either Feato or by Feato’s father. The judges saw two old graves on the land, which, according to family tradition, were the graves of two former holders of the Tuana’itau title. The Court takes judicial notice of .the custom of the Samoans to bury their chiefs on communal family land. Chiefs are not buried on individually-owned land.
Feato testified that his parents and he cleared Ifiatua from the virgin bush. Feato is 54 years old. Silauleaga, his mother, was a sister of Tuana’itau Numera. She was married to a Western Samoan who came to Tutuila and lived with Silauleaga in her Tuana’itau Family on Ifiatua.
*567Called as a witness for Moananu, Feato testified:
“CJ: Would you first state your name, age, and village?
“A Feato Tua of Pavaiai; 54 years of age.
CJ: Did you live on this land Ifiatua?
“A Yes.
“C J: Now were you born on it ?
“A Yes.
“CJ: Who lived on it before you were born?
“A My parents.
“CJ: What family did they belong to ?
“A Tua.
“CJ: That is the Tuana’itau Family?
“A Yes.
“Q (By Ale) Is it true to say that Ifiatua is your own land, privately-owned land instead of a communal family land?
“A It is my individually-owned land. I cultivated it, cleared it, together with my parents.”
If Feato cleared Ifiatua together with his parents, it must have been cleared not earlier than seven or eight years after Feato was born in 1907 (he was 54 years old in 1961). A boy younger than seven or eight years could hardly help his parents clear land from the virgin bush. If Feato helped his parents clear Ifiatua (as his testimony indicated), then Ifiatua must have been virgin bush before he was born. And if he was born on Ifiatua, as he testified, then it would follow that his mother went out into the virgin bush to give birth to him, a most improbable thing. It will be noted from the above testimony that Feato testified that his parents lived on Ifiatua before he was born. If he helped his parents clear it when he got to be seven or eight years of age (and he could hardly help them clear it at an earlier age) and his parents lived on Ifiatua before he was born, as he testified, then his parents must have lived in the virgin bush for a good many years, a very improbable thing.
The judges of this Court are thoroughly familiar with Samoan customs. We know that under those customs when *568land is cleared from the virgin bush, it is done by young men in the family either with or without the help of the chief, and that when the land is cleared it becomes communal family land and not the individually-owned land of some young man in the family, and it is claimed by the chief and the family as communal family land.
Now, according to Feato’s testimony, above quoted, his father and mother lived in the Tua Family when Ifiatua was cleared. His mother, Silauleaga, as we have said, was a sister of Tuana’itau Numera. She was a Tua woman. Feato’s father came from Western Samoa and lived with his mother in the Tua Family. He became, then, a married man to the family, and under Samoan customs a member of it. If we are to believe Feato’s story as to who cleared it, the land would be cleared under the authority of their chief and it would become communal family land. That was the custom when this land was cleared, whether it was cleared before 1900 or seven or eight years after Feato was bom on it in 1907 or later.
The judges of this Court, as we have said, know the customs, and we know that whether the land was cleared by Tua Family members before 1900 or it was cleared by Feato’s parents (aided by their small boy), living in the Tua Family, the land became communal land of the Tua Family in accordance with the customs of .the Samoans. Section 2 of the A. S. Code provides that, “The customs of the Samoans not in conflict with the laws of American Samoa or the laws of the United States concerning American Samoa shall be preserved.”
We think that the weight of the evidence is to the effect that the land was cleared from the virgin bush before 1900 by Tuana’itau Family members, as 83-year-old Toluao testified, which testimony was confirmed by two very old witnesses who testified before the trial court at Pavaiai. The evidence with respect to the graves of the two chiefs of *569the Tua Family as well as the fact that Feato did not claim compensation for war damage on Ifiatua (it was claimed by a lesser matai in the Tua Family) supports the view that Ifiatua is communal family land and not individually-owned land of a young man in the family.
It was claimed on appeal that the trial court was in error when it said in its opinion that Feato lived in Western Samoa for a good many years. The transcript of the testimony taken at Fagatogo shows that Feato testified that, “The truth of the matter is that I went to Upolu when I was 20 years of age, and I spent less than a year there in Upolu and returned.” And a moment later in response to the question, “Will you tell the Court when you came back from Upolu, when you came over to Tutuila, how old were you?” Feato answered, “Over 30 years.” According to Feato’s first testimony, he spent less than a year in Upolu; according to his later testimony, he must have spent more than 10 years there. We cannot say that the trial court, in view of his later testimony, was in error.
However, it makes no difference. It is not material whether Feato lived in Upolu 10 years or less than one year. The fact is that Feato has lived on Ifiatua most of his life. But that is not a circumstance to prove that Ifiatua was his individually-owned land. He has lived and is living in the Tua Family of which he is a member. Samoan family members usually live on the communal land of their families all of their lives. And the fact that a family member lives on communal family land of his family for 50 years, 60 years, or 75 years does not convert the communal family land into his individually-owned land.
We have gone over the evidence carefully. It is our conclusion that Feato, a young man in the Tua Family, living on communal family land of his family was trying to convey a piece of his family land to Maonanu to satisfy his personal debt to Moananu. We think that the findings of *570fact of the trial court are fully sustained by the evidence and that they are not “clearly erroneous.” Feato had nothing to convey and Moananu got nothing.
It follows, therefore, that .the order of the trial court should be affirmed.
ORDER OF AFFIRMANCE
Accordingly, it is ORDERED that the order of the Trial Division in the case of Tuana’itau, M. V., of Pavaiai v. Moananu, Liuone of Pavaiai, No. 30-1961, be and the same is hereby affirmed.
Costs in the sum of $6.00 are hereby assessed against appellant Moananu, the same to be paid within 30 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485264/ | OPINION AND ORDER OF AFFIRMANCE
Fuga Selega, prose.
Aumoeualogo, counsel for Leota.
MORROW, Chief Justice
We have before us two appeals in the case of Te’o, Tavai Esela, Asuega S. & Lealaifuaneva, S. P. Mauga, Mageo Maaele & Felise, Fuga Selega, Leota, all of Pago Pago, Alo Simanu of Fagasa, Savea of Faganeanea, and Folau I. Teofilo of Fatumafuti v. Gi of Pago Pago, No. 45A-1960, in which the Trial Division decreed that the litigants, viz. Gi, Te’o, Asuega and Lealaifuaneva (as one), Mauga, Mageo, Fuga and Leota should each have a certain portion of 6.74 ± A. of land, known as the Water Catchment Basin and also as Utumoa, in the Pago Pago area registered as the communal family land of his title. The Water Catchment Basin contains 6.74 ± acres of land. The seven parts to be registered totaled 6.74 ± A., i.e., the entire Water Catchment Basin. The trial court ordered 0.30 ± A. to be registered as the communal family land of the Gi title of Pago Pago and 2.04 ± A. to be registered as communal family land of the Mageo title of Pago Pago.
Mageo appealed claiming that the entire 6.74 ± A. in the Water Catchment Basin was Mageo land and that the trial court erred in decreeing the registration of any part of it in the names of any of the six other litigants.
Gi also appealed claiming that the methods pursued by the trial court in determining the amount of land in the 6.74 ± A. which each of the claimants owned were not correct. We assume that Gi meant to claim on appeal that the trial court should have decreed that the Gi title should have had more than 0.30 ± acres registered in its name, although, as a matter of fact, Gi’s notice of appeal contains no claim to the effect that the trial court should have found that the Gi title was the owner of more than 0.30 ± A. and *572should have decreed that more than 0.30 ± A. in the'6.74 ± A. should be registered as Gi land. However, counsel for Gi claimed in his argument that all the 6.74 ± A. was Gi property.
There were 10 different claimants before the trial court, each of whom claimed to own the entire 6.74 ± A. Originally there were 11, but Chief Tavai withdrew his claim in favor of Mauga when the trial began.
If the Appellate Division should modify the trial court’s decree so as to order more than 2.04 ± A. to be registered in the name of the Mageo title, it would follow that any increase in the 2.04 ± A. decreed to be so registered would result in a corresponding decrease in the amount to be registered in the names of the other six litigants, since there are only 6.74 ± A. in the entire Water Catchment Basin, all of which was decreed to be registered among Mageo and the other six. In other words, should the Appellate Division modify the trial court’s decree so as to order 3.04 ± A. instead of 2.04 ± A. to be registered as Mageo communal land, the Court would necessarily have to order only 3.70 ± A. to be registered as the property of the other six instead of 4.70 ± A. And, likewise, if the Appellate Division should modify the trial court’s decree so as to order more than 0.30 ± A. to be registered as Gi communal property, it would necessarily have to order less than 6.44 ± A. (6.74 ± A. less 0.30 ± A.) tobe registered as the property of the other six litigants. Because any modification of the trial court’s decree in favor of Mageo and/or Gi would adversely affect either Mageo or Gi or one or more of the other five litigants, the Court has considered the other five, viz. Te’o, Mauga, Asuega S. and Lealaifuaneva (as one), Fuga, and Leota, as appellees.
Alo Simanu, a party in the case before the trial court, asked leave to appeal after the statutory time of seven days within which notice of appeal must be filed with the Clerk *573had elapsed. As a preliminary matter before the Appellate Division, Alo was permitted to make an argument as to why the Court should grant him leave to appeal. There were opposing arguments in behalf of a number of the appellees. In his argument Alo claimed that the trial court “... failed to consider the fact that the water floating to the land now in dispute comes from Alo lands.” It is sufficient to say that whether it comes from Alo lands or not, the trial court was not determining the ownership of the “water floating to the land now in dispute.” It was determining the ownership of the land comprising the Water Catchment Basin with a view to ordering its registration.
Alo also claimed in his argument that “. .. my family as well as the people of my village first cut the bush which was in the land now in dispute. All those things are not considered in the decision of the trial court.” It is sufficient to say that Talking Chief Atuatasi, the member of the Alo Family who represented it at the trial, was asked this question when he was on the witness stand:
“Q Did you yourself or Alo or any members of your family cut a single bush, virgin bush, or cleared within the surveyed tract or just surrounding the surveyed tract?”
to which question he answered, “No.”
While on the stand Atuatasi was also asked this question:
“Q Then you are telling us that the Alo people have never had any plantations inside the surveyed tract?”
Atuatasi answered “Yes” to this question. Alo Foa (he holds the Alo title jointly with Pepe and Simanu) told the judges, when they viewed the land in dispute in the presence of the parties before the hearing, that the Alo Family had no land inside the surveyed tract. We think the trial court considered the f oregoing evidence when it determined that the Alo title was not the owner of any land within the surveyed area.
*574Alo also stated that, “The chiefs of Pago Pago Village now occupying the land in dispute have certain connections to this family. Isn’t that the reason why they occupy the land now in dispute?” Conceding that the chiefs of Pago Pago do have “certain connections to this (the Alo) Family,” it does not follow that land in the Water Catchment Basin is the property of Alo and not the property of Pago Pago chiefs who cleared it and occupied it, claiming it as the communal land of their families.
The Court denied leave to Alo to appeal upon the ground that he had not given notice of appeal within the seven days allowed by law for filing notice of appeal with the Clerk. The ruling of the Court was obviously correct.
Gi claims that the trial court committed error when it did not specify in its decree the bearing and distance of each boundary of each of the pieces of land decreed to be registered' as the property of seven of the various claimants. The area of each piece, as it will later appear, could easily be determined without giving the description of each piece by metes and bounds, i.e., by giving the terminal points and angle of each boundary. Suffice it to say that such a procedure was not necessary.
Gi filed his application to register the entire Water Catchment Basin as the communal property of his title. With it he filed a survey of the tract, which survey showed that the Basin contained 6.90 ± A. Ten different chiefs filed objections to the proposed registration by Gi, each of them claiming as did Gi that the entire Water Catchment Basin was the communal property of his title. It was found after the case was submitted that the original survey was slightly erroneous. The Court procured a new survey to be made by the Government surveyor using the triangulation method, a more accurate method in a mountainous area than measuring with a tape on the ground and measuring the angle for each separate boundary as was done in *575making the first survey. The new survey made by the Government surveyor showed that the area of the tract was 6.74 ± A. instead of 6.90 ± A. as indicated by the first survey.
Prior to making the new survey, notice was givén to the various claimants and they had an opportunity to attend the survey, and many, if not all of them, did. Also public oral notice of the intended survey was given by the pulenu’u of Pago Pago at a meeting of the chiefs of the village.
Prior to the hearing the trial court viewed the land in the presence of the claimants. It questioned them on the land itself in regard to what each claimed, where each had or had had plantations, who cleared the various parts of the land from the bush, and other evidentiary matters bearing on ownership. The Court heard testimony for five days and it also listened to arguments of counsel. There was much conflict in the evidence. The witnesses for claimant A usually told a different story from the witnesses for claimant B. The Court weighed the testimony. It had each claimant mark on the survey the land on which he claimed to have or have had plantations.
After considering all of the evidence, the Court itself marked on the old survey the boundaries of that part of the surveyed tract which it considered that the preponderance of evidence showed each of the seven claimants (Gi, Te’o, Mauga, Mageo, Asuega and Lealaifuaneva (as one), Fuga, and Leota) to own, it first having concluded from the evidence that claimants Savea, Alo, and Folau owned no land inside the surveyed tract. The Court then procured the Government surveyor to determine how much land each of the seven claimants had in the part or parts of the surveyed tract marked off as his property by the Court. Instead of calculating the bearing of each boundary and its length and then determining the area by the latitude and *576departure method, the Government surveyor used a planimeter, an instrument used by surveyors for computing areas. The planimeter itself makes the mathematical calculation mechanically just as an adding machine makes a mathematical calculation mechanically when it adds up a bunch of figures upon the totalling key being pressed. It was discovered that the total area of the parts of the surveyed tract was less than the 6.90 ± A. shown on the survey. The Court then knew that there was an error in the survey and procured a new one to be made.
The Government surveyor stated on the new survey furnished to the Court that, “Iron pins at all angle points are the originals set during the survey of January 2, 1957. Positions of monuments were redetermined and courses and distances recomputed. This survey supersedes the survey of 1957.” Thus the new survey covered the identical land covered by the old survey of January 2, 1957 which Gi filed with his application to register. However, the computed areas in the two surveys differ by 0.16 ± A. And this difference was obviously the result of the Government surveyor’s using the triangulation method of surveying in a very steep and rough area instead of measuring distances on the ground with a tape and getting the bearing of each boundary by measurement instead of mathematical computation.
After the second survey was made and the area of the entire tract calculated mathematically, the Court had the boundaries which it itself had previously marked on the old survey transferred to the new survey, under the direction of the Government surveyor. The Government surveyor then calculated for the Court the area of the part of the surveyed tract determined by the Court to be the property of each one of the seven claimants which the Court found to have land in the surveyed tract. In making the calculation for the Court, the Government surveyor *577again used a planimeter, the small computer used by surveyors for computing areas. The total of the areas of the various parts aggregated 6.74 ± A. which accorded with the new survey to the nearest hundredth of an acre, and which constituted a check to show that the computations of the various areas by the use of the planimeter were correct. It was the planimeter in the first place which demonstrated that there was an error of 0.16 ± A. in the area of the Water Catchment Basin as shown on the first survey of January 2, 1957. There is no merit in Gi’s claim on appeal that the Court did not use a proper method to determine the areas of those parts of the surveyed tract which it determined to be the property of each of the seven respective claimants.
It is claimed by counsel for Gi that the “Tense of language of Court had misled the appellant causing his failure to mark on the map all of area cleared.” In his argument counsel states that “When appellant Gi was called upon by the Court to mark on the original survey map (the one he filed for registration), the tense used was referred to existing plants and crops. There was no mentioned [sic] of areas cleared and planted before or area where plantations used to be but are not in existence now.” It must be borne in mind that the areas marked on the original survey by the various claimants to indicate to the Court the areas claimed by them respectively and where they had plantations were only one item of the evidence before the Court.
We believe that counsel Seugogo is in error when he claims on appeal that when the Court called on Gi to mark on the survey where the Gi people had plantations the Court used only the present tense so that Gi would mark only the area where he presently had plantations. The transcript of the testimony shows the following:
*578“CJ: Now we would like to have each party come up who claims to have plantations on this land and mark on the maps — we got three of them here — where his plantations were.
(Whereupon Gi marked on the map)
“CJ: Now, Gi, do you solemnly swear that the place that you have marked on the map is the place inside the six and nine-tenths acres where you had your plantations? Now just yes or no?
“GI: Yes.
“CJ: All right. Is this the only plantation you ever had on the land, which you have marked, on this six and nine-tenths acres ?
“GI: That is all.
“CJ: Did you have any other plantations inside the six point nine-tenths acres?
“GI: No.”
The fact is that Mageo, when he marked on the survey the areas on which he claimed the Mageo people had plantations, included in his marking the very same land marked by Gi. Fuga also claimed by his marking on the survey that he had plantations on a large part of the land marked by Gi. Gi claimed that he had plantations on each side of the stream north of the filter shed, the area being cut by the stream into two parts. Witness Leota, who had plantations on the right-hand side, was asked “Now did you ever see any Gi people working there on the left-hand side?” to which he replied “No.” We think that Onosai (Gi’s young man’s name) as Onosai may have had some plantations on part of the land claimed by Mageo since the evidence showed that Gi Onosai is a member of the Mageo Family. The transcript shows that Judge Ape asked Mageo: “We have seen the plantations of the Gi people. Why did you not object to those plantations?” to which query witness Mageo replied: “Because Gi Onosai is a member of the Mageo Family. I let him do that because he knows I am the boss.” Mageo claimed that the Gi Family had no land inside the surveyed tract. Most of the testimony for Gi was based on hearsay since Seugogo, his *579witness, did not become a member of the Gi Family until he married Gi’s daughter in 1945. He relied to a great extent on family tradition told to him after 1945.
Despite the great conflict in the testimony with respect to Gi’s ownership of a part of the land (he claims all of it and Mageo claims all of it, too), we are satisfied from the evidence that Gi is the owner of 0.30 ± A. in the 6.74 ± A. as found by the trial court. In order to reverse the trial court’s decision and grant a new trial, the Appellate Division must find that the finding that Gi was the owner of only 0.30 ± A. was clearly erroneous. Section 213, Chapter 5 (Judiciary and Judicial Procedure) of Section 10 of Amendments, Nos. 11-59, 1952, provides that “The finding of fact of the Trial and Probate Divisions of the High Court in cases tried by them shall not be set aside by the Appellate Division of that Court unless clearly erroneous (emphasis added).” We think the evidence before the trial court, despite the great conflict in the testimony, reasonably supported the conclusion that Gi had 0.30 ± A. in the surveyed tract but since one witness told one story to the Court, another witness another story, and sometimes a third witness still another story, we cannot say that the finding that Gi owned only 0.30 ± A. of the land in dispute and no more was clearly erroneous.
We are satisfied from the evidence that the Mageo title does not own all of the 6.74 ± A. Samoans acquired title to their lands through first occupancy accompanied by a claim of ownership. This was the principle laid down by the High Court in the cases of Soliai v. Lagafua, No. 5-1949 (H.C. of Am. S.) and Faataliga v. Fano, No. 80-1948 (H.C. of Am. S.), and it has been followed by the Court in a number of other cases. The usual way by which a Samoan family acquired title to land was to clear it from the virgin bush, put in plantations on the cleared land, occupy it and claim it as their own communal property.
*580Mageo’s testimony at the trial indicated that while he claimed all of the land on both sides of the stream, nevertheless the Mageo people had plantations only on the left-hand side. However, there was much testimony indicating that Mageo people had or had had plantations not on all of the left-hand side but only on a part of it. Unquestionably, the Leota people, the Gi people, the Te’o people and the Mauga People have land inside the surveyed tract on the right-hand side of the stream.
The testimony of Mageo bearing on his claim to the right-hand side of the surveyed tract was as follows:
Q I see. Well, then, the Mageo people didn’t clear any on the right-hand side?
“A No.
“Q Well, now, did you tell us a minute ago that you claimed to own the land on the right-hand side, too ?
“A Yes, I did, Judge.
“Q Well, now, how did you get title to that side; how did you become the owner? You can just give us a summary of what facts made you the owner of the right-hand side. Now what did you do or what did the former Mageo do to become the owner of the right-hand side?
“A We got it from a fight against the Mageo — against Maneafaiga.
“Q You mean two Mageos were fighting?
“A Two different persons. Maneafaiga is different from Mageo, but our family originated from Tatafafieloa and Maneafaiga.
“Q When did this fight occur ?
“A I cannot tell; a long time ago.
“Q Then it’s tradition?
“A It is, Judge.
“Q Well, now, how did the fellow that lost the fight, how did he get ownership of that land when it was virgin bush? What did he do to become owner?
“A Maneafaiga was the only warrior of Tutuila at that time and Malietoafaiga in Upolu.”
It is clear from Mageo’s own testimony that, despite his claim, the Mageo people never cleared any of the land on *581the right-hand side; also that his claim to that side is based on a hearsay story handed down from a long time ago, so far back that Mageo did not know when the story originated. Such stories handed down by word of mouth from person to person from a long time ago are notoriously inaccurate. There are many stories handed down by word of mouth from long ago in Samoa. If A tells B a story today and B repeats it to C 25 years from now and C to D 25 years later and D to E 25 years later and E to F 25 years later and F to G after another 25 years and G to H after another 25 years and A could be brought back to life and H repeat the story back to him after 150 years, A in all probability would not recognize it as the same story he told B 150 years before. Stories handed down like that are just hearsay piled on hearsay. In the course of time they frequently develop into the category of fairy tales.
And if the story about Maneafaiga having a fight with Malietoafaiga be true with the result that Maneafaiga did claim to own the right-hand side, any claim he might have had to it has long since been wiped out by the fact that that side, according to the evidence, has been in the possession of other claimants for more than 20 years under circumstances making their possession adverse to any claim or title of the Mageo. Adverse possession for the statutory period operates to divest the true owner of his title and to vest it in the adverse possessor. The Supreme Court of the United States announced this rule in the case of Maxwell Land Grant Co. v. Dawson, 151 U.S. 586, 607. Section 907(2) of the American Samoa Code provides that the “statutory period governing acquisition of title by adverse possession” shall be 20 years. This Court ruled that adverse possession for 20 years divests the owner of his title and vests it in the adverse possessor in the case of High Chief Fuimaono v. Moananu and Felila, No. 12-1955 *582(H.C. of Am. S.). The editors of Corpus Juris Secundum state the same rule in 2 Corpus Juris Secundum at p. 803.
As in the case of Gi, there were many different stories told by the witnesses in regard to Mageo people and their possible connection with the land. There was much conflict in the testimony bearing upon what land in the surveyed tract is Mageo property. The trial court weighed the testimony and it concluded that the weight of evidence was to the effect that the Mageo people had 2.04 ± A. on the left-hand side of the stream and that the Asuega and Lealaifuaneva (as one), Te’o, and Fuga also had land inside the surveyed tract on that side of the stream. It must be admitted that the different witnesses did not all tell the same story to the Court and that there was a conflict, a very serious conflict, in the testimony. We cannot say upon reviewing the evidence before the trial court that the finding that the Mageo had only 2.04 ± A. inside the surveyed tract was clearly erroneous. We think it was not.
It is our conclusion that the decree of the trial court in the case of Te’o of Pago Pago and others v. Gi of Pago Pago, No. 45A-1960 should be affirmed.
ORDER OF AFFIRMANCE
Accordingly, it is ORDERED that the decree of the trial court in the case of Te’o, Tavai Esela, Asuega S. & Lealaifuaneva, S. P. Mauga, Alo Simanu, Mageo Maaele & Felise, Fuga Selega, Leota, Savea, and Folau I. Teofilo v. Gi, No. 45A-1960 be and the same is hereby affirmed.
Costs in the sum of $16.50 are hereby assessed against Mageo and Gi, each to pay $8.25 within 30 days. However, since the land within the surveyed tract is being taken by the Government of American Samoa for public purposes, the above court costs will be paid by the Director of Budget and Finance pursuant to the directive of the Governor of American Samoa (reference GAS/1A over Serial 755) *583dated December 17, 1957 to the Director of Budget and Finance. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485265/ | MORROW, Chief Justice
This is an appeal from a money judgment rendered by the Trial Division against the appellants (hereinafter referred to as the defendants) and in favor of the appellees (hereinafter referred to as the plaintiffs). The judgment was rendered on May 2,1961. On May 9th notice of appeal was filed, and the appeal was set down for hearing on May 31, 1961, Mr. Trask, counsel for the defendants, having *587requested, the Chief Justice shortly after notice of appeal was filed to have it set down for hearing within three weeks. The defendants requested two continuances which were granted, the appeal, pursuant to the second request for a continuance, being set down for hearing at 9:00 A.M. July 24,1961.
About 30 minutes prior to the time the appeal was finally set down for hearing, Mr. Trask filed a motion to disqualify the Chief Justice, claiming that if he sat in the hearing of the appeal as he is required to do by Sections 167(a) and 181 of Chapter 5 (Judiciary and Judicial Procedure), § 10, Amendments, Nos. 11-59, 1952 to the Code of American Samoa, there would be a denial of due process. Mr. Trask also claimed in the motion to disqualify that the Chief Justice was biased and prejudiced against him personally. Just a few minutes after filing the motion to disqualify, Mr. Trask filed a request with the Governor that the Governor appoint a temporary Chief Justice for the reasons set out in his motion to disqualify. The Governor is authorized by Section 168 of the above Chapter 5 (Judiciary and Judicial Procedure) to appoint a temporary Chief Justice “In case of the disability, disqualification, or absence of the Chief Justice..
The Governor considered Mr. Trask’s request and did not appoint a temporary Chief Justice.
The motion to disqualify came on for argument and was denied by the decision of the three-judge court. The Court considered that the above Sections 167(a) and 181 requiring the Chief Justice to sit were constitutional and that if the Chief Justice sat in the hearing of the appeal there would be no denial of due process of law. In his argument on the appeal itself, Mr. Trask claimed that Pub. Law 7-3 revising the Appellate Court system for American Samoa made the Chief Justice ineligible to sit. It does *588not have such an effect since by its provisions it does not become effective prior to July 1,1962.
Also in his argument on the motion, Mr. Trask, referring to the alleged matter of bias and prejudice, said that he might “be entirely wrong and the Court may disagree” when he (Mr. Trask) alleged that the Chief Justice was biased and prejudiced against him personally. The Court in its opinion denying the motion said that, “The Chief Justice says not only that Mr. Trask is entirely wrong but also that the Court disagrees. Any belief that Mr. Trask may entertain that the Chief Justice has bias and prejudice against him personally is a mistake on Mr. Trask’s part. The Chief Justice does not entertain personal bias or prejudice against him.” Mr. Trask did not file á motion to disqualify the Chief Justice when the principal case was heard in April 1961. He waited until 30 minutes before the hearing on the appeal was to begin to file his motion.
The motion to disqualify was filed too late. It could have been filed immediately after the notice of appeal was filed on May 9, 1961 instead of waiting until 30 minutes before the hearing on the appeal was to begin on July 24, 1961, two-and-one-half months later.
“It is a well recognized rule that an application for the disqualification of a trial judge must be filed at the earliest opportunity.” 30 Am.Jur. 98.
We think the same rule should apply in this case.
The motion to disqualify was denied, and the Chief Justice sat in the hearing of this appeal as he is required by law (above Sections 167(a) and 181) to do. Both the Samoan judges on the Court and the Chief Justice considered that the latter should perform his statutory duty by sitting.
The decision in which the motion to disqualify was fully *589considered has already been rendered, and there is no need to give further consideration to it in this opinion.
The plaintiffs William Steffany, Joe Steffany and their aged Samoan mother Alo Pepe are the owners of the M. Y. SAMOA. They claim rent due under an alleged lease of the vessel entered into in September 1959 between the plaintiffs and the defendants Scanlan, Langkilde and Trask.
The trial court found that the lease was valid; that the defendants had taken possession of the vessel the day following the signing of the lease, kept possession under the lease until March 13,1961 and had paid no rent. Under the terms of the lease, rent at the rate of $1,000 per month was to be paid beginning on “the first day upon which the M. V. SAMOA shall be put in actual service as a fishing vessel.” The defendants were to fit the M. V. SAMOA out as a fishing vessel at their own expense. It was stipulated between the parties that the defendants put the vessel into service as a fishing vessel on March 13,1960. The lease was to continue in force for one year after the vessel was put into such service.
The lease provided in Clause 11 “That upon the signing of this agreement by the lessors, Joseph and William Steffany, the lessee shall take immediate possession of the M. V. SAMOA and shall commence refitting of said vessel for fishing purposes.”
Pursuant to Clause 11, the defendants took possession of the ship the day after the lease was signed and proceeded to refit it for fishing. The plaintiffs resumed possession of the ship 12 months after it was put into service as a fishing vessel.
The vessel was rented in the name of Herbert J. Scanlan one of the partners, the lease being signed by him for the defendant partners who were doing business under the name of “Samoan Fisheries.” However, the lease itself contained no reference to Samoan Fisheries. The lease was *590also signed by William Steffany and Joseph Steffany, but it was not signed by Alo Pepe, their elderly Samoan mother. She, although a co-owner of the vessel with her two sons, had always left everything in connection with it to them.
No rent having been paid, the plaintiffs instituted an action against the defendants on January 31, 1961, for $11,000, i.e. for 11 months’ rent at $1,000 a month. The case came on for trial and on May 2, 1961,. the Trial Division of the High Court rendered judgment for the plaintiffs for $10,000, from which judgment the defendants have appealed.
Section 213, § 10 of Amendments, Nos. 11-59, 1952 to the A. S. Code provides that:
“The findings of fact of the Trial and Probate Divisions of the High Court in cases tried by them shall not be set aside by the Appellate Division of that Court unless clearly erroneous. . .
The defendants resisted payment of the rent on a number of grounds, the first of which was that the lease was void under the Statute of Frauds, not being signed by Alo Pepe Steffany, one of the co-owners of the M. V. SAMOA. As indicated by the trial court in its opinion, this contention overlooks the fact that there is no Statute of Frauds in the American Samoa Code. Furthermore, the English Statute of Frauds was not brought to American Samoa as a part of the common law. With respect to the matter of the English Statute of Frauds having been brought to states in the United States as a part of the common law, the editors of American Jurisprudence say this:
“The English Statute of Frauds, 29 Car. II, is usually not considered as extending to this country, and is of force here only by virtue of its adoption by the legislatures of the several states, directly or indirectly (emphasis ours).” 49 Am.Jur. 864.
Since, as is clear from this statement of the law, the English Statute of Frauds was not brought to the States as *591a part of the eommon law, it would follow that it was likewise not brought to American Samoa as a part of the common law.
However, if it should be conceded, but without agreeing, that the English Statute of Frauds did apply to the lease, it is very clear that it was complied with when Herbert Scanlan signed for the defendants. The only possible part of the English statute that could have been applicable was that part of the 4th Section which provides that:
“No action shall be brought... whereby ... to charge any person . . . upon any agreement that is not to be performed within the space of one year from the making thereof . .. unless the agreement upon which such action shall be brought, or some note or memorandum thereof, shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized (emphasis ours).”
The text of the English statute copied from 27 C.J. 123 n. 8 is set out in the appendix to this opinion.
The editors of Corpus Juris Secundum say that:
“The two general rules as to the party or parties who must sign the memorandum are that a party not signing the memorandum cannot be charged on the contract, and that the only signature made necessary by the statute is that of the party to be charged, or, in other words, defendant in the action or the party against whom the contract is sought to be enforced (emphasis ours). Mutuality of obligation is not essential to the validity of a contract, in so far as its compliance with the statute of frauds is concerned, and the fact that the contract may not be enforceable against one party, because not subscribed by him, is no defence to the other, by whom it is signed.” 37 C.J.S. 698.
And the editors of Corpus Juris Secundum further say that:
“A partnership generally may sign a memorandum, so as to comply with the Statute of Frauds, by the act of one partner in signing the partnership or his individual name (emphasis ours).” 37 C.J.S. 703.
*592It is clear under the law that when partner and defendant Herbert J. Scanlan signed his name to the lease, the Statute of Frauds, had it been in force here, would have been complied with. Even if the Statute of Frauds had been applicable, it would not have been necessary, as far as the statute is concerned, to have had the signatures of any of the plaintiffs including Alo Pepe on the lease. The statute only requires that “the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed, by the party to be charged therewith, or some other person by him lawfully authorized; (emphasis ours)The statute does not require that the plaintiffs in the action sign; it is only the defendants, the parties to be charged, or their agent, who must sign. The parties charged in this case are the defendants Scanlan, Langkilde, and Trask. Scanlan signed for the defendants.
Section 1 of the Statute of Frauds provides that leases of land for years not put in writing and signed shall have the force of leases at will only. See appendix, page 640. We think it was this section that the defendants were relying upon when they contended that they were tenants at will only. However, the section has no application because a ship is not land, nor an interest therein.
The proper consideration of this appeal makes it necessary for the Court to take judicial notice of the record in an injunction case, No. 4-1960, in which the plaintiffs were the same as the plaintiffs in this case and the defendants the same, except that one Marvin Cox was a defendant in the injunction case but not this case. In the injunction case the plaintiffs (the Steffanys) filed a petition on February 21, 1960, in which they sought an order restraining the defendants “from further using the M. V. SAMOA,” and also “granting possession of said vessel to *593William Steffany until such time as the tentative agreement between the parties is finalized.” The Steffanys claimed in their petition that the lease agreement was only a tentative agreement between the parties. The defendants claimed that the lease was valid. After the hearing on the petition had been partially completed, the plaintiffs (Steffanys) withdrew their petition and thereupon the Court entered the following order:
“Upon motion of the petitioners made in open court this 4th of March, 1960, this petition is hereby dismissed.”
It is claimed by the defendants on appeal that both cases involved “the same parties, the same issues, and facts and question of law,” and the claim is substantially correct. That we may properly .take judicial notice of the record in the injunction case is clear.
“Also a court may take judicial notice of, and give effect to, its own records in another, but interrelated, proceeding, particularly where the issues and parties are the same or practically the same.” 31 C.J.S. 625, citing cases from Federal courts as well as state courts.
What transpired in the injunction case was referred to (particularly by the defendants) in the trial of this case and has a definite bearing upon the correct decision on this appeal. It was an interrelated proceeding. Not only may a trial court take judicial notice of the record in an interrelated proceeding, but an appellate court may do likewise.
“An appellate court will take judicial notice of any matter of which the court of original jurisdiction may take notice.” 20 Am.Jur. 55.
The trial court could take judicial notice of the record in the injunction case. The Appellate Division may also take judicial notice of that record.
Defendants Herbert J. Scanlan and Bernard Trask met with Joseph Steffany at the home of Scanlan one evening *594in September 1959 for the purpose of signing the lease. Mr. Trask had carried on the negotiations with the Steffanys for the making of the lease and had drafted it for signature. William and Joseph had always handled all matters in connection with the M. V. SAMOA, their elderly Samoan mother having left everything relating to the ship to them. The lessees knew this, having been so informed by Joseph and William.
The trial court stated in its opinion that at the meeting at Scanlan’s home to execute the lease Mr. Trask, who was acting as counsel for himself and his partners in the leasing of the vessel, told the assembled group that it was not necessary for Alo Pepe to sign. Defendants claim on appeal that the Court erred when it so stated. However, Joseph Steffany, who was one of the assembled group, testified on his direct examination with respect to the signing of the lease at Scanlan’s house:
“Q Did you read the document before you signed it ?
“A I read it but just a few sentences because my eyes — I didn’t have any glasses on; my eyes.
“Q Did you have any lawyer or any other adviser about the time that you signed it?
“A Well, we — Mr. Trask, there, was supposed to be my adviser, and he was acting for both sides.
“Q Was there any remark made about the necessity or otherwise of your mother’s signature ?
“A Yes. It was brought up by Mr. Trask, says she didn’t need to.
“Q Mr. Trask said Alo Pepe’s signature was not needed?
“A Not needed because Bill and I was enough.”
We cannot say that the trial court’s statement that Mr. Trask told the group that it was not necessary for Alo Pepe to sign was contrary to the evidence. It finds definite support in the evidence.
On his cross-examination by Mr. Trask, Joseph testified:
*595“MR. TRASK: May it please the Court.
“Q Joe, when this exhibit, Defendants’ Exhibit 1 in evidence, which you have identified to be the agreement you signed at Mr. Scanlan’s house, in Clause 11 we have these words, and I quote: ‘That upon the signing of this agreement by the Lessors Joseph and William Steffany, the Lessee shall take immediate possession of the M. V. SAMOA and shall commence refitting of said vessel for fishing purposes.’ Do you remember that?
“A Yes, sir.
“Q Do you remember in the preliminary discussions when I asked you if your mother was a part-owner of the vessel?
“A I don’t remember.
“Q Do you remember telling me what you have said in Court today, that you and your brother Bill always took care of all of the business for her, that she would leave it up to you boys ?
“A Yes sir.
“Q And that is the reason why we have this Clause No. 11?
“A Yes.
“Q And you knew, did you not, Joe, that after you and Bill signed and we took possession immediately, as a matter of fact, the very next day, and started to work on her?
“A Yes.
“Q And you knew that your mother’s signature was not necessary on this document?
“A Yes.”
During the hearing in the principal case, Mr. Trask stated to the trial court in referring to the lease:
“It is not signed by Alo Pepe Steffany. The parties felt at the time, Your Honor, that the necessity, that there was no necessity for Alo Pepe to sign because, as the evidence brought out, both Joe and William took care of all the matters pertaining to the boat.”
It is quite clear from the evidence and Mr. Trask’s own just-quoted statement to the Court that it was intended by the parties that Alo Pepe should not sign. And it is also clear from Clause 11, drawn by Mr. Trask, which provides:
“That upon the signing of this agreement by the Lessors Joseph and William Steffany, the Lessee shall take immediate possession *596of the M. V. SAMOA and shall commence refitting of said vessel for fishing .purposes.”
that it was not intended by the parties that Alo Pepe’s signature was to be a condition precedent to the existence of a valid lease. We do not think that the evidence in the record warrants the conclusion that the defendants intended to take possession of the ship and spend several thousand dollars in refitting her for fishing without first having a valid lease; nor do we think it was the intention of the plaintiffs to turn over their ship to the defendants without a prior valid lease. Neither the circumstantial evidence nor the testimonial evidence point to any such intention by either party.
We think that the evidence before the trial court fully warranted the conclusion that it was intended by the parties that Alo Pepe was not to sign. Furthermore, the record is devoid of any evidence that Mr. Trask, who took care of drafting the lease and getting it signed, ever made any effort to procure her signature on the lease. We conclude that the finding of the trial court that Alo Pepe’s signature was not necessary to a valid lease was not error, and that this finding should not be set aside on appeal.
With respect to the actual signing of the lease, it appears that one evening in September 1959 Mr. Trask had four or five copies of it on hand at Scanlan’s home to be signed. Partner Herbert J. Scanlan testified that he signed for the defendants. Joe Steffany signed. It was then nearly 10:00 o’clock in the evening. Mr. Trask took the copies already signed by Herbert and Joseph to William to get William’s signature. William was on the ISABEL ROSE about ready to sail for Apia. At first he refused to sign, partly because he was “kind of afraid” to sign, as he testified, and partly because he had not read the document. He couldn’t read without glasses, and he had no glasses. According to his testimony, Mr. Trask told him to sign, which he did after *597being informed that his brother Joseph had signed.
William testified that he did not trust Mr. Trask. After he signed he told Mr. Trask in substance that the lease was “no good” without Alo Pepe’s and Herbert Scanlan’s signatures. We believe that William was in error when he implied that Herbert had not signed, because Herbert himself testified that he had signed at his home with Mr. Trask and Joseph present. William signed the four or five copies on the ISABEL ROSE. According to William’s testimony, Mr. Trask tried to get all of the copies away from him. But William did get one copy back from Mr. Trask which he gave to his son for ultimate delivery to Wayne Storer, the Manager of the Bank of American Samoa, or to the Attorney General.
It is claimed on the appeal that the trial court committed error in referring in its opinion to the testimony of William that he did not trust Mr. Trask and that Mr. Trask had tried to keep all the copies. The trial court in its opinion did not go outside the scope of Mr. Trask’s final argument, in which he said:
“During the hearing, Your Honor, there was inferences and innuendoes that perhaps I personally took advantage of the plaintiffs. One witness said ‘I don’t trust you.’ And he had some other derogatory remarks.”
Mr. Trask then proceeded to argue to the Court that he had not taken advantage of the plaintiffs.
As a matter of fact, the trial court indicated in its decision that it did not believe from the evidence that Mr. Trask permitted the lessees to take possession of the ship without the lessees first obligating themselves in writing for the rent. That would indicate that the Court considered that Mr. Trask was not taking advantage of the plaintiffs; that he was not guilty of any dishonesty. Certainly the $1,000 a month was considered to be a proper rent and if the lessees were obligated in writing to pay it, no *598advantage was being taken of the plaintiffs. The trial court concurred with Mr. Trask’s argument that he did not take advantage of the plaintiffs. The opinion of the trial court on this point is not a ground for reversal when the record shows the fact to be that Mr. Trask himself made an issue of his integrity in his own argument; and especially when the Court agreed with him that he had not taken advantage of the plaintiffs. Also the Court said in its opinion that, “We think that Mr. Trask was perfectly honest in his drafting of the lease____”
Furthermore, the trial court was the judge of the facts as well as the law. The Court saw the witnesses and heard them testify. It was not error for the trial court to delineate in its decision evidence surrounding William’s signing.
It is next claimed that the trial court erred when it considered that William was expressing only a sailor’s legal opinion when he told Mr. Trask at the time of signing that the contract was “no good” because his mother and Herbert had not signed. (As a matter of fact, Herbert had signed at his home before Mr. Trask took the lease up to the ISABEL ROSE to get William’s signature.)
We think when Mr. Trask told the assembled group at Scanlan’s home that it was not necessary that Alo Pepe sign (and the testimony* of Joseph Steffany above quoted shows that he did) that he was merely expressing a legal opinion, too; and that his legal opinion was based upon the fact that William and Joe had always handled everything in connection with the ship. In other words, Counsel Trask in effect, as the testimony shows, told the assembled group that the contract was good without Alo Pepe’s signature; whereas William when he signed told Mr. Trask that the contract was “no good” without Alo Pepe’s signature. We *599think that Mr. Trask’s legal opinion was correct and that William’s legal opinion was wrong.
The defendants are asking the Court to construe William’s statement when he signed as if he had said: “Now, Mr. Trask, I am signing this contract upon the condition precedent that it is not to be binding on me until after my mother signs.”
Mr. Trask, to whom William’s remark was addressed, obviously did not so construe the remark that the contract was “no good,” for he and the other defendants took possession of the ship the next day pursuant to Clause 11, written by Mr. Trask, which clause expressly provided that they should take immediate possession “upon the signing of this agreement by the Lessors, Joseph and William Steffany.”
It appears to us from the testimony in the record that the parties got along quite well together for about four months after the lease agreement was signed. Around early February 1960 the defendants took the ship to sea a number of times on trial runs. On one of these runs, according to the testimony of William, when the ship broke down about 11 miles out at sea, there was a call for help, and William, Captain Benson, and William Reed went out with two launches and towed it in. In response .to an inquiry of William as to who was in command on these trips around early February, he answered:
“I believe his name is Cox, that skinny fellow, engineer on the Samoan Airline. ... I guess he was lost. He was never born a seaman.”
Clause 9 in the lease provided that “The Lessee shall, if possible in American Samoa, insure said vessel for a reasonable amount made payable to the Lessors.” It appeared that it was not possible to secure insurance in American Samoa. However, that did not mean that it could not be procured elsewhere.
*600There was no insurance on the ship, and William began to complain to the defendants about it around January or early February 1960. This was understandable in view of the fact that the ship had to be towed in 11 miles. People familiar with the sea know that a broken-down ship near an island can easily be blown on a reef and quickly destroyed. William’s complaint was not about his mother not having signed the lease, nor was it about the fact that he had said that the lease was “no good” when he had signed it about four months earlier.
During the examination of William in the principal case, Mr. Trask, referring to the difficulty over the insurance between the parties, stated to the Court:
“That is the key to the whole problem. It’s the insurance that gave vent to all this difficulty. It’s the seed to the disruption of our (the parties) fine relationship.”
Again in his final argument to the Court, Mr. Trask said:
“The parties existed harmoniously, Your Honor, under that contract (the Sept. 1959 lease agreement) for nearly four months.”
William testified that:
“The reason why I hold the ship up is no insurance, not insured.”
After the question of insurance was raised by William, he and Mr. Trask met at the Bank of American Samoa where they initialed a modification in the lease, striking out of insurance clause 9 the words “if possible in American Samoa.” This was about January or early February 1960 and about four months after the lease was signed. Testifying with respect to the lease at this time, William said:
“Everything was nice except that the insurance was not settled.”
The trial court held that this modification was without consideration and never became effective.
*601From William’s testimony and Mr. Trask’s statements to the Court, it is apparent that the parties considered that the contract was valid. The foregoing shows that the parties did not consider that it was void because of the lack of Alo Pepe’s signature or because William had said it was “no good” when he signed. The difficulty was lack of insurance.
The parties themselves having treated the contract as valid, we cannot say, in the light of the evidence, that the finding of the Court that it was valid was contrary to the weight of the evidence. There was no error in the Court’s so finding. It was the judge of the facts and the law.
The record in the prior injunction case shows that the defendants in that case did not claim that there was no contract because Alo Pepe had not signed, nor did they claim that William had signed conditionally. Instead they took the position and claimed that there was a contract.
The record in the injunction case shows that the Court in that case asked Mr. Trask, who was representing himself and the other defendants, this question:
“Now do you claim that you have a contract?”
and Mr. Trask’s answer to the Court was:
“We do sir, and I am going to put it in evidence when I am ready.”
Furthermore, according to the record in the injunction case, Mr. Trask in making an argument to the Court resisting a motion for a continuance said:
“Everything the bank has asked we have granted, notwithstanding the fact that we have our agreement.”
Here was another statement by the defendants to the Court that they had a contract.
The following taken from the record in the principal case makes it very clear that in the injunction case the *602defendants claimed and took the position that they had a contract and that they resisted the petition in the injunction case:
“CJ: Did the defendants in the injunction suit resist the petition?
“MR. TRASK: Yes, indeed, Your Honor. We were in court a whole day in argument.
“G J: In other words, you resisted it in repudiation ?
“MR. TRASK: That is right, Your Honor. Just a moment, Your Honor. We did not resist the repudiation. We resisted the petition which calls for repossession.
“CJ: In other words—
“MR. TRASK: (Interposing) We took the position that there was a contract.
“CJ: In other words, there was still a contract when you had a right to continued possession of the boat?
MR. TRASK: That is correct. That only illustrates, Your Honor, the attitude of the defendants acting in good faith. They entered into a contract four months previously with the plaintiffs, feeling and agreeing that there was a valid contract. Why? Because the plaintiffs made representations that there was no necessity for the mother to sign; that they always acted for their mother.”
It is quite apparent from the foregoing, and particularly Mr. Trask’s statement to the trial court that, “They (the defendants) entered into a contract four months previously, feeling and agreeing that there was a valid contract,” that the defendants did not construe William’s statement that the contract was “no good” as making his signing conditional. Mr. Trask told the Court in the principal case that “We (the defendants) thought we had an agreement from September to January, until January when things blew up.” Obviously, the defendants did not construe William’s signing as conditional. They considered that they had a valid contract.
As will appear later, Herbert J. Scanlan, the lessee, sometime after the contract was signed by William, initialed two notations inserted in it in order to correct *603clerical errors contained therein. This is a circumstance leading to the conclusion that the defendants considered the contract as valid and binding on the parties. There would be no point in the defendants initialing the notations if they considered the contract to be a nullity.
There was no error in the trial court’s conclusion that William’s signing was not conditional. Its conclusion that William’s statement was a mere legal opinion and not a condition finds substantial support in the record, and we cannot say that the Court’s finding with respect thereto was erroneous.
If it should be conceded, but without agreeing, that William’s signing was conditional, we agree with the trial court that he waived the condition when he raised no objection to the defendants having possession of the ship pursuant .to Clause 11 and fitting her out as a fishing vessel. Upon William’s return from Apia, he saw many times that the defendants were in possession of the ship over a period of months and that they were refitting her, yet during all that time he raised no objection to such possession and refitting. He acquiesced in the defendants’ possession of the ship and if there had been any condition to his signing, his acquiescence would have been a waiver of it. And once having waived the condition his subsequent conduct could not reinstate it.
We also think that if there was a defect in the contract, but without agreeing that there was, that defect was cured by ratification by William and that the ratification would be implied by William’s knowledge that the ship had been taken by the defendants and his raising no objection thereto.
The editors of Corpus Juris Secundum say this:
“A defect in the method of executing a written instrument evidencing a contract, or even want of execution, may, in general, be *604cured by ratification which may be express or implied. A party who accepts benefits accruing under a contract may be bound notwithstanding defects in, or want of, execution (emphasis ours). 17 C.J.S. 419.
When the defendants took possession of the ship and kept possession for refitting, they accepted the very benefits specified in the writing signed by William and which Alo Pepe had not signed. That the benefits accepted may not have resulted in financial gain did not make them any the less benefits. The plaintiffs were deprived of the possession of their ship, which was a legal detriment, and the defendants gained possession and kept possession, which was a legal benefit. The defendants got what they bargained for, viz., the possession of the ship, and that was a benefit. The fact that the venture was unprofitable is irrelevant.
And we think also that the defendants having accepted benefits under the contract were later estopped from denying its validity. The editors of American Jurisprudence say:
“Estoppel is frequently based upon the acceptance and retention by one having knowledge or notice of the facts of benefit from a transaction, contract, instrument, regulation, or statute which he might have rejected or contested. This doctrine is obviously a branch of the rule against assuming inconsistent positions, and it has been said that such cases are referable, when no fraud, either actual or constructive is involved, to the principles of election or ratification rather than to those of equitable estoppel. The result produced, however, is clearly the same and the distinction is not usually made. Such estoppel operates to prevent the party thus benefited from questioning the validity and effectiveness of the matter or transaction in so far as it imposes a liability or restriction upon him, or, in other words, it precludes one who accepts the benefits from repudiating the accompanying or resulting obligation.” 19 Am.Jur. 682-687.
Since the defendants accepted benefits under the contract when they took possession and kept possession (the *605benefit specified in the September 1959 lease agreement) of the M. V. SAMOA, knowing that Alo Pepe had not signed and also that William had told Mr. Trask, when signing, that the contract was “no good”, it follows that the defendants are estopped from denying its validity.
See also III, Williston on Contracts § 687 and 17 C.J.S. 926-7.
It is the conclusion of the Appellate Division that the defendants’ claim in the injunction case that they had a contract was correct, and that the trial court, when it so agreed in the principal case, did not commit error. The finding of the trial court that the defendants had a valid contract is substantiated by the evidence.
The defendants claim that the trial court was in error when it said in its decision “that he (William) changed his mind about its (the lease agreement) legality by the time the lessors delivered possession of the ship to the lessees the next day,” and that it was also in error when it said that “the plaintiffs acquiesced in it (the lease) without Alo Pepe’s signature by delivering the ship to them (the defendants).”
We note that Mr. Trask told the trial court that:
“The parties existed harmoniously, Your Honor, under that contract (the September 1959 lease agreement) for nearly four months.” (See this quotation on page 600.)
We think that Mr. Trask’s statement indicates quite clearly that William acquiesced in the lease without his mother’s signature. And, furthermore, we believe that Mr. Trask’s statement is well supported by the evidence. And we think also, in view of his statement, that William must have changed his mind about the legality of the lease very soon after he signed it, at which time he said it was “no good” without his mother’s signature. If the Court was in error as to the precise time he changed his mind this time, it was harmless.
*606At the trial William testified in part:
“Q Then in February, four months after this document (the lease agreement of September 1959) you concluded that there was no agreement because your mother did not sign?
“A Yes, I did; yes.”
This indicates that William changed his mind back again in February as to the validity of the lease agreement because of the lack of his mother’s signature. Other testimony of William’s, as well as the fact that he signed the petition for an injunction and repossession filed Feburary 21, 1960 and sent the letter of February 16, 1960, also indicates quite clearly that he changed his mind back again in February. If the trial court was in error as to the time William had any of these vacillations of mind as to the legality of the lease agreement, it was harmless, for the defendants, having accepted benefits under the September 1959 lease agreement, were estopped to deny its validity. See quotation from 19 Am.Jur. 682-687 at page 604, supra.
Furthermore, William did not say that he had signed the lease agreement of September 1959 upon the condition that his signature was not to be binding unless and until his mother signed. He expressed the opinion that the lease was “no good” without her signature, and he concluded in February that there was no agreement because she hadn’t signed. These were statements of opinion and not statements of a condition precedent. But regardless of what they were, the defendants, having accepted benefits under the lease agreement, were estopped from denying its validity. And, as we have just indicated, any error that the trial court may have made as to the time William had his vacillations of mind was harmless. Any vacillation of mind by William could not wipe out an estoppel.
The defendants claim that the trial court erred when it said in its opinion that:
*607“Furthermore, while it may not be necessary to a decision, We remark that since Attorney Trask, while acting as counsel and agent of the defendants, stated to the parties before anyone signed that Alo Pepe’s signature was not necessary and since the lessors delivered the ship to the lessees without her signature, it follows that the defendants may well be estopped from denying the validity of the lease because of the lack of Alo Pepe’s signature. Upon the evidence there was certainly an estoppel in favor of Lessor Joseph Steffany. See 19 Am.Jur. Tit. Estoppel, Sec. 24, p. 634.”
We think that there was no error here, particularly in view of the testimony of Joseph quoted supra at page 594 and the law as stated in 19 Am.Jur. 682-687, quoted supra at page 604.
As before indicated, there were two notations on the lease agreement introduced in evidence by the defendants as their Exhibit No. 1, both initialed by Herbert J. Scanlan, in whose name the lease was made on behalf of the defendants. The trial court found that the notations were made to correct mere clerical errors and to make the lease read as it was originally intended to read. The trial court in its opinion said that the notations were written in by Mr. Trask, although initialed by Mr. Scanlan. Mr. Scanlan testified that while the initials were his he thought that it was Mr. Trask who wrote in the notations. On appeal the defendants claim that the Court’s statement that Mr. Trask made the notations was in error and that “Though the record is a little confused the evidence is still clear enough to show that Mr. Trask did not make those notations.”
It is sufficient to say that if the trial court did misinterpret the evidence and was in error as to who made the notations, the error was harmless. The legal effect of the notations depended upon their contents and the fact that Herbert J. Scanlan initialed them. Whether it was Mr. Trask or some other person who wrote them in before Mr. Scanlan initialed them had no more bearing upon their *608legal effect than whether they were written with green ink or black ink or with pencil.
As we have before indicated in another connection, about four months after the defendants had taken possession of the ship and had done work in refitting her for fishing, William brought up .the matter of insurance on the ship.
Clause 9 of the lease agreement, as before indicated, provided that:
“The Lessee shall, if possible in American Samoa, insure said vessel for a reasonable amount made payable to the Lessors.”
William was dissatisfied with the clause, although William and Joseph had told Mr. Trask during the preliminary negotiations that it was not possible to get insurance on the ship in American Samoa. However, this did not prevent William from complaining about lack of insurance after the ship had broken down at sea. Finally William and Mr. Trask met at the Bank of American Samoa and modified the insurance clause by striking out of it the words “if possible in American Samoa” so 'that it then read:
“The Lessee shall insure said vessel for a reasonable amount made payable to the Lessors.”
The modification was then initialed by William and by Mr. Trask as attorney.
On his cross-examination by Mr. Trask, William testified:
“Q You knew did you not, Mr. StefEany, during the preliminary discussions that insurance would be almost impossible to get for an fishing vessel?
“A Well I knew it; I guess my brother told you about it. But you said you can fix it, so you was the man to fix it.
“Q You do recall then that when the question of insurance for the vessel came up that I proposed insurance and that your brother Joseph said, ‘It’s impossible, you can not get insurance.’ Do you *609remember me then saying to your brother Joseph that ‘We will put the clause in the contract anyway and I will see what I can do here in American Samoa.’ Do you remember me saying that?
“A Well, I remember you said something to Joe that — but maybe you can do it; you will see that the boat will be insured.
“Q You say that you remember me saying to Joe that T can insure the boat?’ You heard me say that?
“A Yes, because he told you you can not, but you said, ‘Yes, I can get the insurance for it.’ ”
Counsel Trask in his brief complains that the trial court was in error when it said in its opinion that:
“However, Mr. Trask assured William that he could ‘fix it,’ i.e. get the insurance” and that “William . . . honestly believed since Mr. Trask had assured him . . . that insurance could be procured.”
The trial court saw and heard the witness. It was the judge of the facts. It obviously believed the witness. The finding was not contrary to the evidence. It is not ground for reversal. However, the matter is immaterial anyway since the trial court found that the modification enlarged the obligation of the defendants and that there was no consideration for it so as to make it effective.
It should be stated that after the modification was made Mr. Trask did in good faith try to get insurance by writing to the agent in Western Samoa of an insurance company having an office in Sydney, Australia. However, his effort with this one company did not meet with success. It did not follow, however, that insurance could not have been procured from some other company. It is common knowledge that many companies in the world write marine insurance.
It may properly be remarked here that the fact that William initialed the modification is a circumstance clearly indicating that he recognized the lease agreement as a valid contract. There would have been no point whatever in initialing a modification in a nullity. And the fact that Mr. Trask initialed it for the defendants was a recognition by *610them that it was a valid contract. There would be no point in his initialing a modification in a nullity either.
When the refitting of the ship was about completed and the defendants were about ready to take her to sea for fishing, William, knowing that no insurance had been procured, wrote a letter to the lessee Herbert Scanlan in which he said:
“As per our agreement of past, there remains two important steps to be taken before I the owner of the ‘M. V. SAMOA’ will allow you to take my boat out for fishing.
“These two steps are:
“1. — Our contract must be finalized by having you and my mother sign.
“2 — The boat must be insured by you for a value of $25,000.00.”
The letter was dated February 16,1960.
The Bank of American Samoa was a creditor of William and Joseph for about $110,000. Its security was the ISABEL ROSE owned by the debtors. The ISABEL ROSE was not worth $110,000. If the Bank had foreclosed on the ISABEL ROSE, it could have collected any deficiency, to some extent at least, by levying on Joseph’s and William’s interest in the M. V. SAMOA, although the Bank did not at that time have a lien on the M. V. SAMOA.
The Attorney General was the attorney for the Bank of American Samoa. On February 21, 1960 William “representing the Steffany Family” filed the petition (heretofore referred to in another connection) for a preliminary injunction against the defendants prohibiting use of the M. V. SAMOA pending hearing on the petition and for “an indefinite injunction and restraining order prohibiting further use of the M. V. SAMOA by Samoan Fisheries until such time as the agreement for use of the vessel is settled between the parties.” The plaintiff also prayed for an order “granting possession of the said vessel to William *611Steffany until such time as the tentative agreement between the parties is finalized.”
Also on February 21, 1960, the Bank of American Samoa filed a petition to intervene in the injunction case upon the ground that it was a creditor of the plaintiff and that “unless the interest of the plaintiff in said vessel (the M. V. SAMOA) is adequately protected, the Bank of American Samoa will be injured in that the security for the indebtedness will be diminished.” The Court granted the petition to intervene.
There was a hearing in which Mr. Trask, according to the record in the injunction case, cross-examined William Steffany. However, before the hearing was fully completed, the plaintiff William Steffany, representing the Steffany Family, withdrew the petition for an injunction. The Court made an nrder dismissing it and the parties entered into an agreement addressed to Joseph and William Steffany which provided that:
“In consideration of your withdrawing your application for an injunction and in consideration of your permitting the M. V. SAMOA to go to sea, we, the undersigned, on behalf of Samoan Fisheries (hereinafter called the lessees), do hereby undertake that if the said M. V. SAMOA should be damaged or lost through the negligence of the lessees or their servants or from any other cause, except for damage sustained by Act of God or capture by pirates or alien enemies in time of hostilities, we shall indemnify you to the extent of Ten Thousand Dollars ($10,000.00). This undertaking is limited to a period of 31 days from the date hereof.” It was dated March 4,1960.
It is claimed by the defendants that the letter of February 16, 1960 together with the petition for an injunction constituted a repudiation of the lease agreement of September 1959 and that such claimed repudiation put an end to the lease agreement so that when the plaintiffs sued on it in January 1961 it was no longer in existence and, consequently, could not be sued on.
*612While it may be (it is not necessary for us to decide the point) that the letter and the institution of injunction proceeding would have justified the defendants in electing to treat the contract as repudiated and suing at once for its breach, nevertheless, that was not the course pursued by the defendants. Instead the defendants did not elect to treat the letter and the petition for an injunction as a repudiation or renunciation. They refused to accept the so-called repudiation. They rejected the claimed repudiation by resisting the petition for an injunction and retaining possession of the ship.
The hearing on the petition for an injunction began a few days after William wrote the letter to Scanlan, the letter being dated Februry 16,1960.
It is claimed on appeal that in the decision of the trial court it erred when it said:
“. . . the fact is that the defendants did not accept the repudiation. They resisted it when they resisted the petition on the hearing for an injunction.”
Mr. Trask told the Court on the appeal that:
“The record discloses no resistance. The petition was withdrawn before the plaintiffs established their allegations. There was ho cross-examination or testimony. The defendants were present by virtue of process served on them.”
Then Mr. Trask was asked in the hearing on the appeal:
“You say that the defendants did not cross-examine (in the injunction case) ?”
to which he replied to the Court:
“That is correct, sir.”
Then counsel for the defendants then proceeded with his argument on the appeal as follows:
“At Page 9, again, the Court said “They' — meaning the defendants — ‘They claimed that the lease was valid....’
“The fact of the matter is, no such claim was made, and the *613Court cannot furnish any evidence to show that such claim was made.
“Pursuing this same notion and on Page 9, again, Your Honor, quoting the Court, we quote:
‘They’ — meaning the defendants — ‘They rejected it by resisting the petition for an injunction____’
“Page 91 of the record of trial will show that the defendants did not reject the petition for injunction but merely responded to process served.
“CJ: Now you say you did not cross-examine ?
“MR. TRASK: That is right, sir.
“CJ: In the injunction suit?
“MR. TRASK: That is right, sir.”
We realize that more than a year and a half had elapsed between the hearing on the petition for the injunction and the hearing on the appeal, and that Mr. Trask could easily have forgotten just what transpired at the hearing in the injunction case. We think that he may very well have honestly believed that the defendants did no more in the injunction case than respond to the summons of the Court.
However, the facts are that the defendants did resist the petition and they did claim .that they had a valid contract. They did more than just respond to the summons of the Court. See quotations from the record in the principal case at page 602, supra.
The record shows that Mr. Trask was asked by the Court in the principal case:
“Did the defendants in the injunction suit resist the petition?”
to which he replied:
“Yes, indeed, Your Honor. We were in Court a whole day in, argument.”
The record in the injunction case shows that in that case Mr. Trask cross-examined William Steffany, the initial part of his cross-examination being as follows:
“TRASK: May it please the Court. Mr. Steffany, on Wednesday the 17th when we were with Mr. Storer, before I gave Mr. Storer *614exhibit A for the plaintiff in evidence before I gave Mr. Storer this document isn’t it a fact that I show another document than this?
“STEFFANY: No, Barney handed one document to Mr. Storer first and he had another then the discussion went on.
“Q Do you remember I read anything to Storer ?
“A Yes.
“Q You remember me reading from a paper like this?
“A Barney read certain paper to Storer.
“Q When I read this paper to Mr. Storer wasn’t Mr. Storer follow me reading at the same time ?
“A No, Barney you were only reading the paper and Storer read his.
“Q I was reading aloud ?
“A Yes.
“Q Before I handed this document to Mr. Storer you remember that I said I will read it and he proof read it? You remember me saying that to Mr. Storer?
“A I did not have myself clear to that picture at that time.
“Q But you remember I do read this aloud and Mr. Storer follow this document?
“A Yes.
“Q You remember me saying to Mr. Storer that this is Herbert signature, Joe’s signature and your signature?
“A I did not see the document when you read it but the only' thing I notice it was the document that I and my brother sign.
“Q On the last sheet I ask you if you recognize this signature?
“A Yes.
“Q Whose signature is that ?
“A My brother and this is my signature, this is Herbert Scanlan.”
It appears that in the cross-examiner’s first question he refers to “exhibit A for the plaintiff in evidence.” The foregoing taken from the record in the injunction case (of which the Court may properly take judicial notice) shows quite clearly that the defendants did more in that case than just respond to the summons of the Court. And it confirms Mr. Trask’s statement to the trial court quoted on page 602, supra that the defendants resisted the petition.
The cross-examination of William by counsel for the *615defendants constituted resistance to the petition. The repudiation was not accepted. On the other hand, it was rejected by the defendants when they resisted the petition in the injunction case.
We think that Mr. Trask’s statement that the defendants resisted the petition in the injunction case and the foregoing quoted initial cross-examination taken from the record in that case show that the trial court did not err when it said in its decision that:
“. . . the fact is that the defendants did not accept the repudiation. They resisted it when they resisted the petition on the hearing for an injunction.”
The following part of the record in the injunction case shows that the Court made an inquiry of Mr. Trask as to the defendants’ claim concerning the contract between the parties, and the record gives Mr. Trask’s answer:
“CJ: Now do you claim that you have a contract?
“MR. TRASK: We do, sir, and I am going to put it in evidence when I am ready.”
This part of the record in the injunction case indicates that the trial court did not err when it said in its decision that “They (the defendants) claimed that the lease was valid.”
And we are confirmed in this view by Mr. Trask’s statement to the Court in the principal case concerning the position taken by the defendants in the injunction case when he said to the Court:
“We (the defendants) took the position that there was a contract.”
See page 602, supra.
The defendants on the appeal claim that the trial court erred when it said in its decision that the ship was delivered to the defendant lessees. The defendants took possession pursuant to Clause 11 of the lease agreement and claim that there was no delivery.
Clause 11 provided:
*616“That upon the signing of this agreement by the Lessors, Joseph and William Steifany, the Lessee shall take immediate possession of the M. V. SAMOA and shall commence refitting of said vessel for fishing purposes.”
We think that when the defendants took possession of the ship pursuant to Clause 11 there was a delivery.
After William signed the lease, he went to Apia on the ISABEL ROSE. The next morning the defendants took possession of the ship and began refitting her.
A manual transfer is not necessary to effect a delivery. Delivery of a thing normally means a transfer of possession of the thing.
“Delivery does not necessarily import an actual physical transition of possession from one hand to another; and in its legal sense . . . it may mean a transfer of possession. There may be delivery without handling the property or changing its position.” 18 C.J. 478. And “What constitutes delivery depends largely on the intent of the parties. It is not necessary that delivery should be by manual transfer. Miller v. Hospelhorn, 176 Md. 356, 4 A.2d 728, 733.” Black’s Law Dictionary (4th Ed.) p. 515.
It was not necessary in order to effect a delivery that the lessors stand .on the deck of the M. V. SAMOA and manually hand the possession of the ship over to the lessees.
It was the intention of the parties as evidenced by Clause 11, supra, that the lessee should take immediate possession of the ship upon the signing of the agreement by the lessors, and that is what happened the next morning. When the lessees took possession pursuant to Clause 11, the possession of the ship was transferred from the possession of the lessors to the lessees; the lessors no longer had possession, the lessees did, and the possession had passed from the lessors to the lessee just as it was the intention of the parties that it should, as evidenced by Clause 11.
*617There having been a change of possession from the lessors to the lessee, there was a delivery. We do not believe that when the lessees took possession that they committed a trespass. There was no error in the trial court’s finding that there was a delivery of the ship.
The trial court did not err when it ruled that the repudiation did not put an end to the September 1959 lease agreement.
The editors of Corpus Juris Secundum say this:
“The renunciation of a contract by the promisor before the time stipulated for performance is not effective unless such repudiation is unequivocally accepted by the promisee (emphasis ours). If the promisee declines to accept the renunciation and continues to insist on performance of this promise, as he may do, the contract remains in existence for the benefit and at the risk of both parties, and, if anything occurs to discharge it from other causes, the promisor may take advantage of such discharge.” 17 C. J.S. 978.
When the defendants resisted the petition for an injunction, they did not accept the repudiation. By resisting the petition, as Mr. Trask told the Court they did, they refused to accept the repudiation and consequently kept .the contract open for both parties. And that the defendants did resist the petition in the injunction suit is very clear from the following part of the record in the principal case:
“C.J: Did the defendants in the injunction suit resist the petition?
MR. TRASK: Yes indeed, Your Honor. We were in court a whole day in argument.”
And the record in the injunction case shows that Mr. Trask’s statement was correct.
The defendants refused to accept the repudiation not only by resisting the petition but also by continuing to keep possession of the ship.
The withdrawal of the petition for an injunction at the close of the not-fully-completed hearing was a withdrawal *618of the repudiation. When the petition was withdrawn, the parties entered into the agreement already set out at page 611 of this opinion.
It is claimed by the defendants that this March 4, 1961, agreement was the only one in force after the injunction suit was dismissed upon the withdrawal by William of his petition and that it constituted a lease of the ship for 31 days from March 4, 1960. The trial court held that the refusal of the defendants to accept the repudiation of the September 1959 agreement coupled with a withdrawal of the repudiation by William (and he withdrew his repudiation by withdrawing his petition for an injunction) left the September 1959 lease agreement still in force; that the new agreement was a supplementary contract and not a lease for 31 days, but only a contract to indemnify the plaintiffs against damage to or loss of their ship under the conditions set out in the agreement. In other words, the Court ruled that the new agreement was not a lease for 31 days with an indemnification agreement included in it, but only an indemnification agreement. These rulings are assigned as error.
With respect to the contention that the repudiation put an end to the September 1959 lease agreement, we have already pointed out that the repudiation did not have that effect since the repudiation was not accepted by the defendants. See quotation from 17 C.J.S. 978, supra, at page 617. On the other hand, the repudiation was rejected by them when they resisted the petition for an injunction and kept possession of the ship; not only that, but the repudiation was withdrawn, as it could be, when the petition for an injunction was withdrawn.
When the petition was withdrawn, it became the duty of the defendants to go ahead and perform their obligations under the lease agreement.
*619“A withdrawal of a repudiation obligates the other party to perform.” 12 Am.Jur. 976.
“In case the renunciation of the contract is not accepted, the renunciation may be withdrawn and the party renouncing after performance on his part may hold the adverse party to performance.” 17 C.J.S. 979.
The supplementary agreement (set out on page 611, supra) does not purport to be a lease. During Mr. Trask’s final argument in the principal case, the Court inquired about how much rent was reserved in the supplementary agreement. Mr. Trask replied:
“Nothing is said about rent, sir, nothing at all. There are no terms at all. The only thing that is in there is that they would withdraw the suit, permit us to go to sea, and we would indemnify the plaintffs $10,000 in case of damage and loss.”
We agree with this statement of counsel.
The supplementary agreement contained no provision that the defendants should have possession of the ship for 31 days or for any other period. It was the undertaking to indemnify in case of loss or damage that was limited to 31 days. Mr. Trask was obviously correct when he told the Court in his final argument that “The only thing that is in there (the March 4 agreement) is that they would withdraw the suit, permit us to go to sea, and we would indemnify the plaintiffs $10,000 in case of damage and loss.” The supplementary agreement did not contain a lease nor did it contain a clause rescinding the September 1959 lease agreement. It makes no mention of that agreement. The defendants came into possession of the ship about five months before by virtue of the September 1959 agreement and not by the March 4, 1960 agreement. The latter did not provide for the payment of rent.
Since the repudiation of the September 1959 lease agreement was not accepted by the defendants and since the repudiation was withdrawn when the plaintiffs with*620drew their petition for an injunction; also since the new or indemnification agreement was not operative as a lease for 31 days or any other period and did not contain a clause rescinding the September 1959 lease agreement, it follows that that agreement continued in force. See excerpt from 17 C.J.S. 978 quoted at page 617, supra.
The new agreement made sense only when read in connection with and supplementary to the September 1959 lease agreement. And we are satisfied not only that the September 1959 lease was continued in force as a legal result of the rejection of the repudiation by the defendants and its withdrawal by the plaintiffs but, also, that the parties themselves considered that the September 1959 lease agreement continued in force after the new agreement was made at the conclusion of the injunction suit.
The ship, as was stipulated, was put into actual service as a fishing vessel on March 13,1960.
The defendants had taken the ship to sea on four or five trial runs before that time. Sometime between March 13, 1960, and April 1,1960, when Herbert Scanlan returned to American Samoa from New Zealand, the defendants took the ship to sea again for three days and caught some fish. However, they never caught enough fish on any of the five or six runs to make a profit.
Shortly after Herbert came back from New Zealand, he and Joe Langkilde went to see William at the Marine Railway across Pago Pago Bay. They told him that they had no further use for the ship and that they couldn’t run it. They asked William to take .the ship back, but he told them that he would have to see Joseph and his lawyer about it. About August 1960 Trask, Langkilde and Scanlan went to Western Samoa to see Joseph; but when they proposed to him that the ship be taken back, he said that he wanted to see his lawyer and would leave the matter up to his lawyer.
*621Joseph apparently left the matter up to his lawyer because Attorney Metcalfe on August 11, 1960 wrote to William in Pago Pago as follows:
"Joe has informed me that two men, evidently Joe Langkilde and Herbert Scanlan, asked you to take back M. V. SAMOA and you advised them that you must consult your lawyer.
“I am glad you told them that because under the agreement which they signed the term of the lease is 12 months and there is no right to cancel it.
"They cannot compel you to take the ship back until the 12 months have expired unless it suits you to do so.
“I expect to be in Pago Pago on Monday the 15th and I shall try to telephone you or see you about what I think is the best thing to do.”
The plaintiffs did not take back the ship. The defendants kept possession of it for 12 months after March 13, 1960, when it was first put into service as a fishing vessel. At the expiration of the 12 months the plaintiffs resumed possession.
Around the time of the conversation between William, Joe Langkilde, and Herbert at the Marine Railway, the defendants tied the ship up to a buoy in Pago Pago Bay. While it was tied up and continued in their possession, the defendants had it inspected two or three times a week to see that it remained in good condition.
The defendants obviously attempted to surrender the ship to William at the Marine Railway and again to Joseph at Lotopa in Western Samoa about August 1960.
The fact that the defendants went to Lotopa in August 1960, about four months after the supplementary agreement had expired, and proposed to Joseph that the plaintiffs take the ship back is circumstantial evidence indicating that the defendants considered that the September 1959 lease agreement was still in force and that they wanted to get rid of the obligation to pay $1,000 a month *622rent. That is the only reasonable construction of their conduct. And the fact that Joseph did not take the ship back is a circumstance indicating that he considered the September 1959 lease agreement still in force.
The fishing venture had been a financial failure. The evidence is not that the defendants said to Joseph in August 1960: “Our contract came to an end 31 days after the agreement was signed by us on March 4, 1960. Here’s your boat.” They merely proposed to Joe that he take back the ship, but he said he’d see his lawyer and leave it up to him. The evidence is not that Langkilde and Scanlan (when they went to the Marine Railway shortly after Scanlan returned from New Zealand on April 1, 1960 and asked William to take the ship back) said to William: “Here’s your boat. Our contract comes (or came) to an end on April 4.” They merely asked William to take the ship back, but William said he’d have to see Joe.
Circumstantial evidence is frequently entitled to more weight than testimonial or direct evidence. It has been said that witnesses may be mistaken or corrupted but that circumstances “cannot lie.”
The editors of American Jurisprudence say this:
“The law does not require that every fact and circumstance going to make up a case be proved by eye witnesses or positive direct testimony. In both criminal and civil cases, issues may, generally speaking, be established by, and verdicts founded upon circumstantial evidence — that is by way of inference from circumstances.” 20 Am.Jur. 1041.
We think that the circumstantial evidence supported the trial court’s (it was the judge of the facts) conclusions that the defendants’ proposals to Joe and William were made with a view of getting out of the payment of rent and in recognition of the September 1959 lease agreement, and that statements in the trial court’s decision to that effect *623did not constitute error as claimed. The statements were supported by the evidence.
The Court’s conclusion on this matter constitutes the only reasonable construction that can be put on the defendants’ conduct in trying to get William and Joseph to take the ship back. The circumstances did not indicate that the defendants wanted to pay $1,000 a month rent for the ship when they couldn’t catch enough fish to make the venture profitable.
“In order that the attempted surrender shall release the tenant from the further payment of rent, it must be accepted (emphasis ours) by the landlord unless it was made in compliance with a demand by the landlord.” 52 C.J.S. 270.
Since the plaintiffs did not accept the attemped surrender, the defendants remained liable for the payment of the rent.
If a man rents an apartment for a year he cannot discharge his duty to pay the rent by going to his landlord and telling him that he wants to surrender the apartment. The surrender must be accepted to effect a discharge.
Defendants claim on appeal that the plaintiffs were judicially estopped from pleading the September 1959 contract as the basis of their claim in the principal case, they having denied its validity in their petition for an injunction.
There is a rule against a party’s taking inconsistent positions in judicial procedings.
“The rule against inconsistent positions applies generally to positions assumed not only in the course of the same action or proceeding, but also in proceedings supplemental thereto, including proceedings for review or retrial, or even in separate actions or proceedings involving the same parties and questions.” 19 Am.Jur. 706-8.
*624However, there are a number of limitations upon this rule, and it has been laid down that in order that it may apply, it is necessary that the prior inconsistent position have been successfully maintained. 19 Am.Jur. 709. The editors of Corpus Juris state the limitation this way:
“Applying the rule, a party to an action is estopped from assuming a position which is inconsistent with his assertion of a title or contract in a previous action, which assertion was successfully maintained, but it is essential that such assertion should have been successfully maintained (emphasis ours).” 21 C.J. 1231-2.
Where the suit is dismissed voluntarily, the party dismissing is not estopped from taking an inconsistent position in a subsequent proceeding. Sinclair Refining Company v. Jenkins Petroleum Process Co., C.C.A., Me., 99 F.2d 9, certiorari denied Jenkins Petroleum Process Co. v. Sinclair Refining Co., 305 U.S. 659, rehearing denied 306 U.S. 667, second rehearing denied 307 U.S. 651.
The rule of judicial estoppel has no application to the plaintiffs in the principal case. They voluntarily withdrew their petition for an injunction and an order for repossession of their ship. They did not successfully maintain their action in the injunction case. They did not get possession of the ship. The defendants kept possession of it and went out fishing.
On the other hand, the defendants in the injunction case took the position that they had a valid contract in the September 1959 lease agreement.
In that case, as before indicated at page 601, supra the Court asked Mr. Trask: “Now do you claim that you have a contract?” to which query he answered: “We do, sir, and I am going to put it in evidence when I am ready.”
And again during the hearing in the principal case Mr. Trask (referring to the position taken by the defendants in the injunction case) stated to the Court: “We took the position that there was a contract.” See page 602, supra. *625Then the Court asked Mr. Trask: “In other words,.there was still a contract when you had a right to the continued possession of the boat?” to which query Mr. Trask replied: “That is correct. That only illustrates, Your Honor, the attitude of the defendants acting in good faith.” See page 602, supra.
As before indicated, Mr. Trask also during his final argument in the principal case to the query by the Court: “Did the defendants in the injunction suit resist the petition?” replied: “Yes, indeed, Your Honor. We were in court a whole day in argument.” See page 602, supra.
Our examination of the record in the injunction case convinces us that Mr. Trask was entirely correct in his foregoing statements to the trial court.
The defendants having resisted the petition in the injunction case and having taken the. position that the September 1959 lease agreement was a good contract and having prevailed in that case cannot now say that that contract was a nullity. And the defendants did prevail, when, after having resisted the plaintiffs’ petition, the plaintiffs withdrew it and the Court dismissed it, and the defendants kept possession of the M. V. SAMOA and took it out to sea to catch fish.
It follows, therefore, having taken the position in the injunction case, that the September 1959 lease agreement was a valid contract; and having successfully maintained that position, the defendants are now judicially estopped from taking an inconsistent position in .the principal case by asserting that the very same contract they said was good in the injunction case is void in the principal case. See the quotations from 19 Am.Jur. 706-8 and 21 C.J. 1231-2 at pages 623, 624, supra.
Not only did the defendants take the position in the injunction case that they had a contract, but Mr. Trask stated to the Court in the principal case that it was *626“correct” that they “had a right to continued possession of the boat” under that contract. See page 602, supra. Our conclusions on the evidence with respect to the attempted surrenders at the Marine Railway and Lotopa are in accord.
The defendants claim that the trial court erred when it said in its decision that “The Court did not issue a preliminary injunction or restraining order.” The record in the injunction case does not show that any injunction was issued. However, Mr. Trask states on appeal that “The Court orally ordered Mr. Trask not to remove the ship pending hearing.” While the Chief Justice has no definite recollection of such an oral order, it may very well be that Mr. Trask’s recollection is entirely correct. Assuming it is (and we do not question it), it would not be ground for reversal in this case — the oral order being merely an interlocutory one maintaining the status quo pending hearing and not going to the merits. It did not prevent the defendants from maintaining their position successfully. The plaintiffs’ petition was dismissed.
On appeal the defendants claim that William testified at one time that he typed letter of February 16, 1960 (set out supra)* and that he later testified that he did not type it, it being typed by Marcel; that such alleged contradictory testimony constituted perjury by William, and, as a consequence of the alleged perjury, the defendants were deprived of due process of law.
We do not believe .that this claim of perjury has any basis either in fact or law. In the first place, the alleged testimony did not relate to a matter material to the issues. The substance of the letter sent by William to Herbert was to the effect that William would not allow Herbert to take *627the boat to sea for fishing until (1) the contract should be “finalized by having you and my mother sign,” and (2) “The boat must be insured by you for a value of $25,000.”
Perjured testimony must relate to a material matter.
“At common law and under statutes preserving the common law rule in this respect, a false statement must be material to the issue or question under consideration in order to constitute perjury, and a false oath as to superfluous and immaterial matter will not sustain an indictment for this offense.” 70 C.J.S. 465.
Section 864 of the A. S. Code relating to perjury provides that:
“Every person, who, having taken an oath before a competent tribunal . . . that he will . . . testify truly . . . shall willfully and contrary to such oath state . . . any material (emphasis ours) matter which he does not believe to be true, is guilty of perjury----”
Our statute requires that the matter testified about be material.
This letter by clear inference denied that the lease agreement was a valid document, and it also put the procurement of insurance in the sum of $25,000 as a condition for taking the boat to sea, which was not a condition in the lease agreement. What was material in connection with the letter was its contents, the fact that William signed it so as to make the contents his, and that he sent it to Herbert. Its legal effect was not determined by who struck the keys on the typewriter used in typing it. The legal effect was the same whether it was typed by William, by Marcel, or by John Doe. It constituted a substantial but not complete repudiation of the September 1959 lease agreement, and it did so whether William, Marcel, or John Doe typed it. Who typed it was immaterial.
On the first day of the hearing, on cross-examination'by Mr. Trask, William testified as follows:
*628“Q No.w I show you a document marked Defendants’' Exhibit No. 4 and ask you if you recognize the signature here?
“A Yes.
“Q Whose signature is this ?
“A It’s mine.
“Q And it is a letter dated February the 16th, 1960 and addressed to Mr. H. Scanlan ?
“A Well, I believe, because I wrote the letter. But the date . . .
“Q Well here is the date; is that correct, you put that date there?
“A Yes, but I remember I wrote the letter.
“Q You typed this letter out? Do you remember what you said in the letter?
■ “A Yes, that I cannot take the ship out unless they pay $25,000 worth of insurance.”
On the second day of the hearing on recross-examination of William by Mr. Trask the record shows the following:
“MR. TRASK: May it please the Court.
“Q Mr. Steffany, going back to Defendants’ Exhibit No. 4 in evidence wherein you stated on the redirect examination that this letter was not typed by you but by Marcel, why did you volunteer the information yesterday when I showed you this exhibit and you said, T typed it’ without being asked ? Why did you say that ?
“A I can prove to you I don’t know enough to type my name on the typewriter.
“Q Answer the question: why did you say yesterday under oath without anyone asking you, why did you volunteer the information that T typed this. My name is in there, I signed it’? Why did you say you typed it? Just why did you say to the Court that you typed, it; that is all.
“A I don’t know how to type that, Barney.
“Q Just answer the question: why did you say to the Court you typed it?
“A Well, I signed my name there.
. ■ “Q Is this a j oke ? Are you laughing about it ?
“A I don’t know how to type.
*629“MR. METCALFE: Are we getting anywhere with all this shouting? The witness has said he can’t type; it’s quite evident that he is confused.
“MR. TRASK: Your Honor...
“CJ: (Interposing) I think the Court knows the truth.
“MR. TRASK: We are not going to be permitted, Your Honor, to show for the record that obviously there has been perjury committed in this Court?
“MR. METCALFE: I object to that.
“MR. TRASK: Your Honor, he testified under oath. It’s not a matter for argument, sir. It’s a matter of record. It’s the question of the integrity and honesty of this Court, sir.
“CJ: Well the Court will consider the evidence.
“MR. TRASK: We certainly have a right to put it in the record, sir.
“THE WITNESS: Why didn’t you ask me if I didn’t know how to type?
“MR TRASK: The question is a valid question. It involves not only the integrity of the witness, sir, it involves the whole judicial system. The counsel objects to the fact that we are not getting anywhere by this type of action, sir.
“CJ: That is right.
“MR. TRASK: But I am trying to bring out that this witness has voluntarily said to the Court yesterday under oath that he typed the instrument. Today he says that somebody else did.
“CJ: Well, now, did he say that yesterday? Well, Mr. Trask, says that you said yesterday that you typed that letter, and he wants to know why you said that. Now will you please tell him?
“THE WITNESS: Well, why I saw my name there — well, that is the meaning of the whole thing. I typed it or somebody else typed it. My name is there, so I say yes.
“MR. TRASK: Q You mean then, Mr. Steffany, it makes no difference whether Marcel typed it, that this is still your statement, it is still yours?
“A That is my understanding, and I signed it.
“Q And everything that is contained in here is from you, it’s yours ?
“A Well, yes.”
*630The above quoted testimony on the first day of the hearing shows that William testified that he “wrote” the letter. He did not say in that .testimony that he “typed the letter.” The last question in the quoted testimony on the first day is:
“Q You typed this letter out? Do you remember what you said in the letter ?
“A Yes, that I cannot take the ship out unless they pay $25,000 worth of insurance.”
The question was an improper one. “Questions containing more than one proposition to which different answers might be given are improper.” 98 C.J.S. 33. The witness did not answer the first question about whether he typed the letter. He did answer the second question about what he said in the letter.
The quotation from the record shows that Mr. Trask asked William on recross-examination on the day following his testimony if he (William) wrote the letter:
“MR. TRASK: Answer the question: why did you say yesterday under oath without anyone asking you, why did you volunteer the information that T typed this. My name is in there. I signed it’? Why did you say you typed it? Just why did you say to the Court that you typed it; that is all.”
“A I don’t know how to type that, Barney.”
This question was misleading to the witness. William had said that he “wrote” the letter, not that he had “typed” it. The question was misleading to the witness because it assumed a fact not in evidence. William had testified that he “wrote” the letter. He had not testified that he “typed” it. It is improper for a cross-examiner in asking a question to include in it facts not supported by the evidence. McBaine, California Evidence Manual (2d ed.) 114.
And it is entirely possible that the cross-examiner misled not only opposing counsel but also the Court by stating to *631the witness that he had testified the day before that he had “typed” the letter. We believe from the record that the witness told the truth when he answered the question by saying: “I don’t know how to type .that, Barney.”
We have no doubt after reading the testimony that the fact is that William got Marcel to type the letter after telling him the situation about the boat, that William then signed it and sent it to Herbert; and that that being true, William wrote the letter; he did not type it. When William signed the letter he made its contents his.
Among the meanings for the word “write” given in Webster’s New International Dictionary (2d ed.) is: “To compose, send, or communicate by, a letter or letters.” To send a letter is to “write” it. When William sent the letter to Herbert, he “wrote” it. If A dictates a letter addressed to B to his stenographer, who types it, and A signs it and sends it to B, A has written a letter to B; and if A meets B on the street a couple of days later and says to B, “I wrote you a letter a couple of days ago,” he is stating the truth. There was no perjury here. The matter inquired about was not material. There was no denial of due process here.
Mr. Trask claims that the Court viewed his efforts to show perjury by William as a joke. Apparently it was William, if anybody, who viewed the effort as a joke, and not the Court, for Mr. Trask asked William:
“Q Is this a joke ? Are you laughing about it ?
“A I don’t know how to type.”
Apparently counsel on appeal is asserting that the Court prevented him from showing perjury. The record does not show that. It shows that during the cross-examination with respect to who typed the letter the Chief Justice said: “I think the Court knows the .truth” and that “Well the Court will consider the evidence.” And when Mr. Trask stated to *632the Court that “The counsel (Mr. Metcalfe) objects to the fact that we are not getting anywhere by this type of action, sir,” the Court replied: “That is right,” thereby agreeing with Mr. Trask that Mr. Metcalfe did object.
Counsel for the defendants in his appeal brief says that “In the principal case before the Court, Judge Morrow at one stage of the hearing looked with obvious disgust and resentment at Mr. Trask when Mr. Trask endeavored to show perjury on the part of William Steffany.”
We do not know from the record how Judge Morrow looked at Mr. Trask. However, Mr. Metcalfe in his reply brief says:
“It is true that after an outburst by counsel (Mr. Trask) in which he alleged that William Steffany committed perjury the Judge did look at him. Many judges would have given him more than a look.”
Again the defendants on appeal complain that the trial court was in error when it stated in its opinion that Langkilde was in the group that met at Scanlan’s house “one evening in September 1959 for the purpose of signing the lease.” If this was an error, it was harmless. The presence or absence of Langkilde when the group met for the signing was immaterial as far as the validity of the lease was concerned. Herbert signed for the defendants and the presence or absence of Langkilde was of no consequence. An agent may sign a contract for his principal and bind him whether his principal is present or is on another island.
The opinion in the principal case was written by the judge using his notes with occasional assistance from the reporter’s stenotype notes, the reporter reading parts of the same to the judge. When one of the defendants’ motions for a continuance was being heard, the judge told counsel that in the preparation of the opinion he had used *633his notes with some assistance from the reporter’s notes. The defendants now claim on this appeal that the judge should have used a transcript.
Defendants claim on appeal that the method used by the judge in preparing his opinion is grounds for reversal and granting a new trial. Counsel for the defendants characterizes the judge’s statement that he had prepared his opinion using his notes with some assistance from the reporter’s stenotype notes as an “unbelievable confession;” that it was an admission “unprecedented and unequalled.”
There is no rule of practice which forbids a judge to use his own notes in writing an opinon. The law did not require the writing of an opinion in this case. And if the judge saw fit to write an opinion, he could use any method he wanted to. The question is whether the judgment was correct; not the method the judge used in writing the opinion. Trial judges usually render their judgments without opinion. And when a trial judge does write an opinion, he may use only his notes.
In the bulk of cases, both in the High Court and Court of Appeal in England, the judges deliver their judgments orally at the close of argument, and they are taken down by an official shorthand writer. Very few judgments are reserved. See 47 American Bar Association Journal 699 (July 1961). See also 45 American Bar Association Journal 1258 (December 1959). The fact that the judge used his notes with occasional help from the reporter’s notes in the preparation of his opinion was not error.
It is difficult for us to believe that counsel for the defendants thought it was error for the judge to use his notes, but he apparently did. He did not cite any authority on the point.
The defendants complain in their brief that the Court in its opinion “italicized” the words “fix it” when it said “. . . *634Mr. Trask assured William that he could ‘fix it/ ” i.e. get the insurance. The words “fix it” were not italicized but put in quotes, William having testified with reference to this matter on cross-examination by Mr. Trask:
MR. TRASK: “You knew did you not, Mr. Steffany, during the preliminary discussions that insurance would be almost impossible to get for a fishing vessel ?”
WILLIAM: “Well, I knew it; I guess my brother told you about it. But you said you can fix it, so you was the man to fix it.”
There was no error here. The quotation was from the testimony, and the trial court was the judge of the facts.
Mr. Trask had drawn the September 1959 lease agreement sued on. It was signed only by Scanlan and the Steffany brothers. Mr. Trask was not a party to the contract on its face. When the contract was sued on, Mr. Trask filed a petition to intervene as a party-defendant. On the hearing on the petition, Mr. Trask informed the Court that “Scanlan is the only party liable on the face of the contract.” He stated that he (Mr. Trask) had not signed it but that he had drawn it. His name did not appear in the contract. The contract did not describe anybody as doing business as the Samoan Fisheries. Mr. Trask described the fishing enterprise as a “joint venture.”
The Court then asked him:
“Now I notice that you use the term joint venture. Do you mean joint venture or a partnership?”
To which query he replied :
“It was a joint venture, Your Honor; sort of a loose partnership, Your Honor.”
He also told the Court that there was a second contract.
The Court asked Mr. Trask:
“Is there anything in that second contract, on the face of it, that would make you personally liable for the rent?” to which he replied “no, sir.”
*635Mr. Trask told the Court that the reason that only Scanlan was made liable for the rent ón the face of the contract was “for the convenience” of the Steffanys. Doubtless the Court thought that it would be just as convenient for the Steffanys to accept a rent check from a partnership of which Scanlan was a member as it would be to accept a rent check from Scanlan alone.
Since the Court had to decide whether Mr. Trask was liable on the contract (and he had drawn it) when on the face of it he was not and he had described the organization as “a sort of loose partnership” (it is not certain as to what a “loose partnership” is), it was reasonable for the Court to inquire of him as to why it was so drawn, which the Court did when it asked him:
“When you drew it, you drew it in such a way that only Scanlan was liable on it and you weren’t?”
That question invited an explanation as to why the contract was so drawn. It was a reasonable and proper question. But it did not bring forth any explanation. Then the Court asked him:
“Well, would you tell us then if you are liable on the contract?”
Mr. Trask then said to the Court:
“Not on the contract . . . my name does not appear in the contract.”
And that was the contract sued on.
Defendants complain of the question which obviously was intended to elicit the reason for drawing the contract as it was drawn. Mr. Trask was claiming in one breath that he was liable for the rent of the ship and should be permitted to intervene, and in the next breath he was telling the Court that he was not liable on the face of the very contract for the rent which was being sued on. Defendants claim on appeal that the judge had personal *636knowledge that Mr. Trask was in partnership with'-the other defendants. However “a sort of loose partnership” not being accurately definable, it is difficult to see how the Court could have had personal knowledge as to whether Mr. Trask was a real partner or a loose partner, so loose as not to be liable on the contract. The question complained of was a proper one under the circumstances since an answer to it might well have cleared up confusion and enabled the Court to make a ruling. However, the Court was satisfied after Mr. Trask put Mr. Metcalfe on the witness stand and established that Mr. Trask was a partner, and it granted him leave to intervene. There was no error in asking the question complained of.
The defendants’ claim on appeal that the judgment was contrary to the evidence is without foundation.
The defendants themselves introduced in evidence the September 1959 lease agreement (Defendants’ Exhibit No. 1); they established that they took possession of the ship the next day and kept possession, which was the benefit stipulated for the defendants in the lease agreement. Having received and accepted the benefits under the lease agreement, they were then estopped from denying its validity. See 19 Am.Jur. 682-687 quoted supra, page 604.
The defendants introduced in evidence the letter of February 16, 1960 (Defendants’ Exhibit No. 4) and the petition (Defendants’ Exhibit No. 5) in which the plaintiffs sought the injunction and repossession of the ship.
The letter and the petition constituted an almost complete repudiation by the plaintiffs of the September 1959 agreement.
Mr. Trask informed the Court in the principal case that in the hearing on the petition for an injunction that the defendants resisted the petition and took the position that there was a contract, which the record in the proceedings *637on the petition fully establishes. See Mr. Trask’s statements to that effect to the Court quoted on page 602, supra.
The resistance to the petition constituted a refusal to accept the plaintiffs’ repudiation and kept the contract open for both parties. 17 C.J.S. 978 quoted supra, page 617. Then the defendants introduced in evidence the supplementary contract (Defendants’ Exhibit No. 6) which established the fact that the plaintiffs withdrew their petition, thereby withdrawing their repudiation. The defendants, in addition, proved by Herbert Scanlan’s testimony that they went to Apia in August 1960 and tried to get Joseph to take the boat back and that he put them off, saying he’d have ,to see his lawyer about it. Also, the defendants themselves proved by testimony of Herbert that they proposed to William shortly after April 1, 1960 at the Marine Railway that he take the boat back and that he put them off by saying he’d have to see his lawyer and Joseph about it.
By stipulation in open court the defendants agreed that the boat was put into actual service as a fishing vessel on March 13, 1960. The defendants introduced evidence to the effect that they had possession of the boat for a year after March 13, 1960 proving that they had it inspected two or three times a week to see that it remained in good condition. The rent of $1,000 a month was to begin when the ship was put into actual service as a fishing vessel.
Having established that they prevailed in the injunction proceeding and kept possession of the boat and in view of Mr. Trask’s statement to the Court that they resisted the petition in the injunction case and claimed there was a contract (sustained also by the record in the injunction case), the defendants themselves established that they were estopped from taking an inconsistent position in the principal case to the effect that the September 1959 lease *638agreement was not a valid, subsisting document. See quotations from 19 Am.Jur. 706-8 and 21 C.J. 1231-2 on pages 623, 624, supra.
And the defendants themselves established that there was no estoppel against the plaintiffs with respect to inconsistent positions when they proved by Defendants’ Exhibit No. 6 (the supplementary contract) that the plaintiffs had withdrawn their petition for an injunction and repossession, thereby showing that the plaintiffs had not successfully maintained their position in the injunction case. See quotation from 21 C.J. 1231-2 at page 624, supra.
Not only did the plaintiffs prove their own case but the defendants proved almost all of it a second time for them. The defendants did not prove that they had not paid any of the rent called for by the contract. That was proved by the testimony of William, and it was not denied by the defendants.
In view of the fact that the plaintiffs proved their own case and the defendants, in addition, proved almost all of it a second time for them, our conclusion is that the claims on appeal that the conclusion, order, and judgment of the Court was contrary to weight of the evidence and the preponderance of the evidence and contrary to the authorities are not well grounded. It is our conclusion from the record that the defendants had a full and complete hearing and that they were accorded due process of law.
The editors of Corpus Juris Secundum say:
“Error in declarations or rulings of law given by the court will not constitute a ground for reversal where it sufficiently appears that no prejudice resulted from the erroneous declaration or ruling, as where the error is merely one of form; where the same judgment would follow whether the law on the issue involved was declared correctly or incorrectly; where, notwithstanding such erroneous declarations, it is apparent from the record that the case was tried on the right theory, or that the judgment is obviously correct; or *639where the particulars in which the declaration was erroneous were obviated by the appellant’s admissions, or the findings of the court or jury.” 5B Corpus Juris Secundum 18.
It is apparent from the record that the case was tried on the right theory and that the judgment of the trial court was correct, particularly in view of the admissions of the defendants by their counsel as shown in the quotations from the record set out at page 602, supra, and evidence introduced by the defendants themselves.
Mr. Trask sent copies of his appeal brief to the Secretary of the Interior and the Attorney General of the United States. Referring to this fact, Mr. Metcalfe, counsel for the plaintiffs, said in his argument:
“I cannot escape the suspicion that this is an attempt to bring political influence to bear on this Court. The day when political influence makes itself felt in this Court will be an unhappy one for Samoa, and any man who tries to subject this Court to political influence is a traitor to the cause of justice and a traitor to the people of Samoa.”
Referring to this same matter, Mr. Trask said in his final argument:
“My political activity in this community is known and is common knowledge, but no one within the hearing of my voice can say at anytime that I have used political influence against this Court. And anyone who makes such charges is out of his mind. It is embryonic and infantile!”
Mr. Trask, however, did not explain why he sent copies of the brief to the Secretary of the Interior and the Attorney General of the United States.
The Court expresses no opinion as .to why the copies were sent to the two Cabinet officers.
Suffice it to say that no political pressure whatsoever has been brought to bear upon this Court to get a decision *640one way or the other on this appeal. The Secretary of the Interior and the Attorney General of the United States are men of high intelligence and great ability; they are men of integrity, honorable and upright. Neither of them would even think of bringing political pressure upon a court to secure a decision one way or the other in any case.
The judgment in this case should be affirmed.
ORDER OF AFFIRMANCE
It is hereby ORDERED that the judgment entered by the Trial Division in the case of Alo Pepe Steffany of Fagasa, Widow, William Steffany of Pago Pago, Master Mariner, and Joseph Steffany of Lotopa in Western Samoa, Retired Master Mariner, Plaintiffs v. Herbert J. Scanlan and Joseph V. Langkilde, both of Fagatogo, Merchants, Defendants, Bernard K. Trask, Intervener, As a Party Defendant, No. 25-1961, be and the same is hereby affirmed.
Court costs in the Appellate Division on this appeal aggregate $50.00 of which $16.67 are hereby assessed against Bernard K. Trask and a like sum against Herbert J. Scanlan. The assessed costs are to be paid within 30 days.
APPENDIX
Statute of Frauds as set out in Note 8 of 27 Corpus Juris at Page 123
“Text of statute — ‘Section 1. All leases, estates, interests of freehold or terms of years, or any uncertain interest of, in, to, or out of any messuages, manors, lands, tenements, or hereditaments, made or created by livery and seizin only or by parol, and not put in writing and signed by the parties so making or creating the same, or their agents thereunto lawfully authorized by writing, shall have the force and effect of leases or estates at will only, and shall not, either in law or equity, be deemed or taken to have any other or *641greater force or effect; any consideration for making .any such parol lease or estates, or any former law or usage, to the contrary notwithstanding.'Section 2. Except, nevertheless, .all leases not exceeding the term of three years from the making thereof, whereupon the rent reserved to the landlord during such term shall amount unto two-third parts at the least of the full improved value of the thing demised. Section 3. And, moreover, that no leases, estates, or interests, either of freehold or terms of years, or any uncertain interest, not being copyhold or customary interest of, in, to, or out of any messuages, manors, lands, tenements, or hereditaments, shall be assigned, granted, or surrendered,, unless it be by deed or note in writing signed by the party so assigning, granting, or surrendering the same, or their agents thereunto lawfully authorized by writing, or by act and operation of law. Section 4. No action shall be brought whereby to charge any executor or administrator upon any special promise, to answer damages out of his own estate; (2) or whereby to charge the defendant upon any special promise to answer for the debt, default, or miscarriages of another person; (3) or to charge any person upon any agreement made upon consideration of marriage; (4) or upon any contract or sale of lands, tenements, or hereditaments, or any interest in or concerning them; (5) or upon any agreement that is not to be performed within the space of one year from the making -thereof; (6) unless the agreement upon which such action shall be brought; or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized. Section 17. No contract for the sale of goods, wares, or merchandise for the price of £10 sterling, or upwards, shall be allowed to be good, except the buyer shall accept part of the goods so sold, and actually receive the same, or give something in earnest to bind the bargain, or in part of payment, or that some note or memorandum in writing of the said bargain be made and signed by the parties to be charged by such contract, or their agents thereunto lawfully authorized.’ ”
Supra at page 594.
At page 610. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485266/ | MORROW, Chief Justice
This is an appeal from a judgment of the Trial Division ordering Faoliu Lualemana, the appellant (hereinafter referred to as the defendant, he having been the defendant in .the trial court), to vacate a part of the land Tafeata “occupied by him and his family” and to pay Filo, the appellee (hereinafter referred to as the plaintiff, he having been the plaintiff in the trial court), $25.00 for damage to the plaintiff’s plantations on Tafeata.
The plaintiff brought an action in the trial court praying for an order evicting the defendant from a portion of the land Tafeata occupied by the plaintiff prior to October 17, 1960, at which time the defendant took possession of the land away from the plaintiff and damaged the plaintiff’s plantations thereon. Plaintiff also asked for damages to his plantations.
Upon hearing had the trial court found that the land involved was communal land of the Moeai Family of Faleniu, that it had been assigned by the Moeai to plaintiff Filo, a married man to the Moeai Family, that Filo was entitled to possession of it. It also found that the defendant had ousted Filo from its possession and damaged his plantations.
On appeal, the defendant first claimed, and we quote, that the trial court “was misled by Filo’s testimony that he began to work on this land in 1922 while he was living in Tuiaana Family until he married a Moeai woman in 1927. Now the Court was convinced that Moeai owns the land when he was working there while he was living in the Tuiaana Family. Tuiaana Family is not related to the Moeai Family.”
*644The Court was not misled as claimed. Filo did not testify that he worked on the part of the land Tafeata involved from 1922 to 1927. The Court in its opinion said:
“Plaintiff Filo, who is 59 years old, testified that the Faleniu people cleared Tafeata from the bush in 1922 and that after it was cleared the land was divided up among the chiefs of the village; that he was living in the Tuiaana Family of Faleniu in 1922 and participated in the clearing with the chiefs and the other young men of the village; that after the clearing took place the Faleniu people put in plantations on it; that he married a Moeai woman in 1927 and thereafter lived in the Moeai Family; that upon his marriage Moeai assigned to him a part of Tafeata which Moeai received when the chiefs of Faleniu divided up the cleared land and that he (Filo) had plantations on the land in dispute until the Marines left Tutuila at the conclusion of the war, he re-entered the disputed land and put in plantations including coconuts; . . .”
“We are convinced from the evidence that the land in dispute is Moeai communal land in Tualauta County, and that it was cleared from the bush by the Faleniu people in 1922 and after the clearing was awarded, upon a division by the chiefs of Faleniu, to Chief Moeai as his communal property; that it was occupied and used by the Moeai people from 1922 under a claim of ownership up to the time when the Marines took possession during the war; that when the Marines left at the conclusion of the war Filo, under an assignment to him by the Moeai in 1927 (when he married a Moeai woman), reoccupied it and put in plantations;...”
There is no merit to the first ground of appeal. The Court was not misled.
It was next claimed on appeal, and we quote:
“That the Court was misled when Filo stated that the land in question was the communal land of the Moea’i family from the dividing of the land among the matais of Faleniu village. The Court must be aware of the fact that when Tago Sianava offered this land for registration, Lualemana was one of the parties filing objection to such registration, even though the case was dismissed. Moea’i was not a party.”
*645The Court was not misled with respect to the ownership of the land. The evidence showed clearly that the Faleniu people cleared Tafeata from the bush in 1922; that after it was cleared, the Faleniu chiefs divided Tafeata up among themselves, and that a part of the cleared land was received by Moeai, which part included the land in dispute. It also showed quite clearly that this part in dispute was occupied and used by the Moeai people after Tafeata was divided (and beginning in 1927 by plaintiff Filo when he married a Moeai woman, the land having been assigned at that time to Filo by the Moeai) up until sometime during the war when it was taken over by the U.S. Marines; that after the war was over and the Marines had left Samoa, Filo reoccupied the disputed land and put in plantations.
The trial court pointed out in its opinion that “The Samoan people acquired title to their lands through first occupancy coupled with a claim of ownership,” and that the Court had so held many times, citing Soliai v. Lagafua, No. 5-1949 (H.C. of Am. S.), Faatiliga v. Fono, No. 80-1948 (H.C. of Am. S.), and Oi v. Te’o,; No. 35-1961 (H.C. of Am. S.). See 2 Blackstone 8; Maine’s Ancient Law (3rd Am. ed.) 238. Samoan families acquired title to their communal family lands by going out into the virgin bush, taking possession, cutting down the trees, and claiming the land cleared as their own. After the trees were burned or had rotted, or both, they put in plantations on the cleared land. That was the custom. The fact that “When Tago Sianava offered this land for registration, Lualemana was one of the parties filing objection to such registration” only shows that Lualemana claimed (emphasis added) to own Tafeata, not (emphasis added) that he did own it.
In .the case to which the defendant makes reference (Lualemana, Galoia, Tuiaana, Tuilefano, Siufanua v. S. R. S. Tago, No. 8-1952 (H.C. of Am. S.)), the trial court in its decision said:
*646“. . . it is possible for us to decide one point, and one point only, viz: that the land Tafeata as shown on the survey filed by Tago with his application to register the same is not the individually owned property of Tago. Nothing else is decided herein.”
The Court made no decision whatever as to the Lualemana claim. The fact that Moeai did not file an objection in that case is of no significance since Siufanua and Tuiaana, both Faleniu chiefs, did. Their objections were sufficient to prevent the registration of Tafeata as the individually-owned land of Tago. There was no need for Moeai to file an objection. However, in view of the testimony (hereinafter set out) of Tuiaana and Siufanua in that case, we think they intended to represent the Faleniu chiefs including Moeai as well as themselves when they objected.
Counsel for the defendant makes reference to that case (it involved the land Tafeata), and we shall quote a part of the testimony of Tuiaana and Siufanua. We think we may properly notice such testimony. 31 C.J.S. 619 et seq. and 3 Am.Jur. 375.
Tuiaana testified:
“Nikolao: Do you recall when this new road was built toward Aoloau?
“Tuiaana: Yes.
“Nikolao: How do you know?
“Tuiaana: I was working on that road when it was built.
“Nikolao: Any plantations of either Faleniu or Favaia’i people been damaged at the construction of the road?
“Tuiaana: Yes.
“Nikolao: State who please?
“Tuiaana: Moea’i (emphasis ours), Si’ufanua, Sagapolu, Toloao, Poloai, Aea, Tuiaana, Nu’u.”
And in that case Siufanua testified:
“C.J.: What is your name, age and village?
“Si’ufanua: Si’ufanua of Faleniu, over 70 years of age.
“C.J.: Are you familiar with this land in dispute?
“Si’ufanua: Yes.
*647“C.J. Do you remember when the land was cleared, the big trees, you are an old man ?
“Si’ufanua: Yes.
“C.J. Who cut the big trees on the land or parts of it if you know?
“Si’ufanua: Myself and my family and also people of my village of Faleniu.
“C.J. What family’s family from Faleniu besides the Si’ufanua family cut down the big trees ?
“Si’ufanua: Tuiaana and Tuiaana family. Moea’i and Moea’i family (emphasis ours). Sagapolu and Sagapolu family. Maiava and the Maiava family. And other people of Faleniu village.
“C.J. Did any people from Pavaia’i cut down any big trees if you know?
“Si’ufanua: Yes.
“C.J. What families of Pavaia’i ?
“Si’ufanua: Toloau family, Poloai family, Galoia family, Aea family, Letele family and also Pagofie family and other people of Pavaia’i village.
C.J. After these various families cut down the big trees did they put in plantations?
“Si’ufanua: Yes.”
It appears from the evidence that the Moeai people had possession of this land openly, notoriously, peaceably and under a claim of ownership from 1922 up until the Marines occupied it during the war and that after the Marines moved out at the end of the war, plaintiff Filo reoccupied it as a married man to the Moeai Family. We think the Marines had possession with the permission, express or implied, of the Moeai people.
In the case of High Chief Fuimaono by S. R. S. Tago v. Moananu and Felila, No. 12-1955 (H.C. of Am. S.), involving another part of Tafeata (it is a large area and includes much more land than is involved in the principal case), we hold that the possession of the Marines could be tacked to the possession of the Galoia people which began *648in 1923 and continued until the Marines took possession during the war. In that case we said:
“We think the Galoia family’s possession of the land in dispute under a claim of ownership began in 1923 and continued (when tacked to the Marines’ possession) until late in 1946 when Tago entered, took possession, and put in plantations.”
Obviously the Marines did not claim ownership of the land involved in this case so as to break the continuity of the possession of the Moeai people which began in 1922. The Marines always entered upon Samoan lands during the war with permission, either express or implied, of the Samoans. If the Lualemana ever had any claim to the land in dispute, it was wiped out by operation of the 20-year statute of limitations governing acquisition of title by adverse possession.
Section 907(2) of the A. S. Code provides that the “statutory period governing the acquisition of title by adverse possession” shall be 20 years. The effect of the running of the statutory period is to vest title in the adverse possessor. 2 Corpus Juris Secundum 803. This rule was approved by the Supreme Court of the United States in Maxwell Land Grant Co. v. Dawson, 151 U.S. 586 at p. 607. And we have applied this same rule in numerous cases in American Samoa, among them Puailoa v. Leapaga, No. 64-1948 (H.C. of Am. S.); Fagafa v. Tout, No. 18-1957 (H.C. of Am. S.); Lutu et al. v. Faamao Tiumalu et al., No. 45-1961 (H.C. of Am. S.). If the Lualemana ever had any interest in the land in dispute, it was wiped out in 1942 when the 20 year period of limitation expired in favor of Moeai. See also Section 349(4) of the A. S. Code limiting actions for the recovery of real property to 20 years after the cause accrues. There is no merit in the defendant’s second ground of appeal.
It is also claimed by the defendant:
*649“That the Court misinterpreted the term which I used referring to the word ‘TUPU’ (king). It means the highest ranking chief of certain areas. It is the same term used by high chiefs, high talking chiefs, chiefs and talking chiefs in several occations [sic], i.e. (Tupu ma Tamalii).”
We do not believe that the Court was misled by Lualemana’s testimony that he was a king. The trial court in. its opinion said:
“As to the Lualemana being a king before April 17, 1900, we express no opinion.
“However, what we do say is that if he was, his kingship came to a very sudden end on April 17, 1900 when the islands of Tutuila and Aunu’u were ceded to the United States. However, we note that the Lualemana did not describe himself as a king when he signed the deed of cession. In fact, all the signers are described in the document of cession as chiefs and Lualemana by signing thereby described himself as chief.
When Tuimanua signed the deed of cession of Manua, he described himself as King of Manua. We think that if the Lualemana had been a king prior to April 17, 1900, he would have described himself as a king and not as a chief when he signed the deed of cession on April 17,1900.”
We think from the record, however, that Lualemana did testify that he was a king. Defendant’s testimony on the matter of kingship reads as follows:
“Q Well, now, I believe you said in your statement that the Lualemana was king?
“A That is correct.
“Q Now when did they crown him?
“A It is the Samoa custom that the tradition is passed from generation to generation and that is recognized or shown by several proofs or actions that have been done by a certain king.
“Q Well, now, I didn’t ask you what the Samoan custom was; I asked you when Lualemana was crowned king ?
“A I do not know that.
*650“Q Well, now, was he crowned?
“A It is the tradition in the family that he is the king. However, I do not know the time.
“Q Well, now, was he crowned?
“A Yes.
“Q Now where did they crown him ?
“A Lualemana was crowned as a king in the place known as Fagafue.
“Q Well, now, when you got the Lualemana title did they crown you?
“A I am not crowned yet; it is planned to be October 21 this year.
“Q That is, they are going to crown you ?
“A Yes.
“Q Now are they going to pour oil on your head, too, and anoint you?
“A Yes.”
However, on appeal the defendant claims that he is not a king but a high chief. If his testimony as to his being a king was misinterpreted by the interpreter (and Lualemana on appeal claims that it was misinterpreted), Lualemana, who speaks English as well as Samoan, should have corrected the interpreter by substituting the words “High Chief” for “King”. He did not do so. He sat by and was obviously willing to have the Court misled by his testimony.
We cannot overlook the fact that Lualemana gave false testimony in regard to his war damage claim, which he testified he filed on Tafeata, using the matai name Tuiapolima. The records of the Standing Claims Commission show that it was filed on land “situated in the Village of Fagafue-Asu” and not on Tafeata.
The editors of Corpus Juris Secundum say this:
“Under the maxim falsus in uno, falsus in omnibus, as strictly interpreted, if a witness testifies falsely as to any one material part *651of his testimony, it should be discarded as a whole, and cannot be relied on for any purpose whatsoever, unless corroborated.” 98 C.J.S. 344.
This principle is grounded upon the theory that if a witness will lie about one material. .thing, he will not hesitate to lie about another. Now, the trial court did not discard Lualemana’s testimony as a whole, which it could have done under the law, but, on the other hand, it gave it much weight, in the light of his false testimony, as the Court considered it was entitled to.
We might point out that the records of the Standing Claims Commission do not indicate that plaintiff Filo lied to the Court about his war damage claim.
There is no merit in the defendant’s third ground of appeal. Despite his testimony about the kingship, he obviously did not mislead the Court, as is clear from the part of the Court’s opinion quoted above on the kingship. If the trial court had been misled by Lualemana’s saying he was a king and would be crowned and anointed with oil, it would not have said:
“However, we note that the Lualemana did not describe himself as a king when he signed the deed of cession.”
Nor would it have said:
“As to Lualemana being a king before April 17, 1900, we express no opinion.”
It is clear that the Court did not believe the testimony about the kingship of Lualemana. It considered him to be a high chief.
The fourth ground of appeal is:
“That the Court ignored the important part of the Samoan custom as protected by law, and that is the traditional rights of chiefs to their properties.”
Lualemana claims the land in dispute upon the ground that he is the high chief of Leasina County. The map of *652Tutuila shows very clearly that the land involved is in Tualauta County and not in Leasina County. Any claim that there may be under consideration the matter of a surveyor’s making, a new map of Tutuila: does not prove that the old map is wrong. Furthermore, if Lualemana ever did have ¡any right in this land, it was wiped out in 1942 when the Moeai people had had adverse possession of it for 20 years, as we have already indicated. See Section 907 (2) of the A. S. Code. There is no merit in the fourth ground of appeal.
As a fifth ground of appeal, the defendant claims:
“That the ruling of the Court saying that this land is a communal land of Moea’i family without syrveying [sic] will deprive the rights of the true owner when the land will be surveyed and offer for registration.”
If the true owner of the land is the Moeai people, as the Court held, there is no reason to suppose, if the land is surveyed and offered for registration, that the Moeai people will be deprived of it. If the defendant means that Lualemana is the true owner, we can only say that the evidence in the case shows quite clearly that he is not. The land is in Tualauta County, not Leasina County.
The Moeai Family, along with other families of Faleniu, cleared the area known as Tafeata and Moeai received the land in dispute when the cleared area was divided up among the chiefs of Faleniu. Furthermore, the Moeai people had possession of it for 20 years following its being cleared in 1922, under circumstances making their possession adverse to any other claimant.
Four different Samoan judges (2 in the trial court and 2 on appeal) say that the judgment is correct, and the writer of this opinion agrees with them.
The judgment of the trial court should be affirmed.
*653ORDER OF AFFIRMANCE
It is hereby ORDERED that the judgment of the Trial Division in the case of Filo of Faleniu v. Faoliu Lualemana of Asu, No. 43-1961, be and the same is hereby affirmed.
Costs in the sum of $6.00 are hereby assessed against Lualemana, the same to be paid within 30 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485267/ | The above-entitled action was brought by the plaintiffs to enjoin the defendant from interfering with their peaceful occupancy of certain improved land situated in Tutuila, American Samoa, which said land is a portion of the land known locally as Alega.
In their complaint the plaintiffs alleged that they are surviving members of the family of Peter E. Reid, Sr., now *4deceased, and that the said Peter E. Reid, Sr., had cleared, improved and occupied the land for the last 20 years or so with the knowledge and permission of Ta’ape Fa’amuli, the former matai of the Fa’amuli family, the owner of the land. The plaintiffs further alleged that upon the death of Peter E. Reid, Sr., the possessory rights in the property passed to the surviving members of his family in accordance with Samoan custom.
The defendant, Afenoa Fa’amuli, alleged that he is the son of Ta’ape Fa’amuli, now deceased, and that he is currently holding the matai title. He denied the material allegations of the complaint insofar as they claimed the right of possession in accordance with Samoan custom and set up by way of cross-complaint the contention that the said Peter E. Reid, Sr., was entitled to a life estate only which terminated upon his death, thereby leaving no basis upon which the plaintiffs could predicate a claim of possessory rights. In their answer to the cross-complaint the plaintiffs alleged a family relationship between Peter E. Reid, Sr., and Ta’ape Fa’amuli. They further alleged that the clearing, planting and construction of the land were by the labors and at the expense of the Reids. On the basis of these allegations the plaintiffs contend their occupancy of the property is in accordance with Samoan custom and that it cannot be terminated arbitrarily by the matai of the family without cause.
Thus the controlling issue in the case was narrowed by the pleadings to the question whether Peter E. Reid, Sr.’s, use and occupancy of the property derived from his membership in the Fa’amuli family and was in accordance with the Samoan custom.
The plaintiff, Mabel Reid, was married to Peter E. Reid, Sr., in 1946, and obtained an absolute divorce from him on October 20, 1967. The plaintiff, Mabel Reid Foster, is an *5adopted daughter of Mabel Reid and Peter E. Reid, Sr. The third plaintiff, Walter Foster, is the husband of Mabel Reid Foster.
The said Peter E. Reid, Sr., died on October 22, 1968, survived by his son, Peter E. Reid, Jr., and his adopted daughter, Mabel Reid Foster, one of the plaintiffs herein. His estate is the subject of probate proceedings now pending in this court (Probate No. 24).
The plaintiff, Mabel Reid, testified that her husband wanted to build their family home on land of his relatives instead of land belonging to her relatives. She further testified that her husband’s mother was related to Ta’ape Fa’amuli and that Ta’ape invited them to select a home site on Fa’amuli family lands. They then selected a home site on the land known as Alega and moved there in 1947. Peter Reid, Jr., testified that he lived there with them and helped in the construction of the house.
Further testimony on behalf of the plaintiffs was to the effect that Peter Reid, Sr., would send food to Ta’ape weekly and would help him out from time to time in various ways when he needed material things. Two of Ta’ape’s children lived with Peter Reid, Sr.’s, parents in Fagatogo when they were young children and the plaintiffs’ evidence showed that Ta’ape would visit in that home practically every week. On Ta’ape’s death Peter Reid, Sr., appears to have assumed considerable responsibility for the funeral arrangements.
The case of Toafili et al. v. Ta’ape Fa’amuli, No. 16-1944, was decided by the Trial Division of the High Court of American Samoa on December 15, 1944. The decree in that case recognized and fixed the title to Alega in Ta’ape Fa’amuli as being the communal or family land of the Fa’amuli family. Peter E. Reid, Sr., testified in that case in support of Ta’ape Fa’amuli’s claim and identified himself *6as being a cousin of Ta’ape, “through his mother’s side.” Specifically, he testified that his maternal grandmother was a sister of Ta’ape’s mother.
In 1958 the defendant, Afenoa Fa’amuli, filed his application to register his claim of succession to the matai title, Fa’amuli, which had become vacant upon the death of Ta’ape. On the forms provided for the purpose the applicant obtained the signatures of members of the family who approved his application. Among the parties signatory were Peter E. Reid, Sr., and Peter E. Reid, Jr.
The defendant placed in evidence a document entitled, “Acknowledgment Of Titles So As To Prevent The Running Of The Statute Of Limitations.” This document, which was signed by Peter E. Reid, Sr., recites that he was occupying the land by the sufferance and permission of its owner, Ta’ape Fa’amuli. Appended to this document was a statement signed by Ta’ape Fa’amuli requesting that the document be filed in accordance with Section 907(2) of the 1949 Code of American Samoa and further reciting that Peter Reid occupied the property as a life tenant only.
On the basis of the evidence presented and after a study of the pleadings and the briefs filed by counsel, the court makes the following findings of fact and conclusions of law:
FINDINGS OF FACT
1. The land known as Alega is the communal or family land of the Fa’amuli family.
2. The land involved in this action is that part of Alega containing 1.103 acres, more or less, described in an official plat of survey approved for registration on September 18, 1969, and more particularly described as follows:
“All that certain real property lying in Land Square 10, Unit D, Village of Alega, County of Sua, Island of Tutuila, Government of American Samoa, land known *7as ‘Part Alega’ more partieulary describe (d) as follows:
Beginning at a concrete monument which is 30 feet from centerline of main highway run thence S 45°38/20" W, 104.60 feet to an iron pin; thence S 43°45'20" W, 81.91 feet to an iron pin; thence S 37°10'20" W, 122.28 feet to an iron pin; thence N 23°39/40" W, 121.14 feet to an iron pin; thence N 34°12'40" W, 103.32 feet to an iron pin; thence N 47°28'20" E, 161.65 feet to a palm tree; thence S 80°06/12,/ E, 162.45 feet to a concrete monument; thence S 34°21'40" E, 58.04 feet to the point of beginning. Containing 1.103 acres more or less.”
3. In 1947 Peter E. Reid, Sr., and his then wife, Mabel Reid, entered into possession of the land described in finding No. two above, with the permission and consent of the matai, Ta’ape Fa’amuli.
4. Peter E. Reid, Sr., and his then wife, Mabel Reid, with assistance from his son, Peter E. Reid, Jr., proceeded by their own labors and at their own expense to clear, plant and improve the premises and construct a home thereon.
5. Peter E. Reid, Sr., and members of his immediate family have remained in continuous occupancy of the premises since they first entered into possession.
6. Peter E. Reid, Sr., died October 22, 1968, survived by his son, Peter E. Reid, Jr., and his adopted daughter Mabel Reid Foster, one of the plaintiffs herein. (His estate is the subject of proceedings now pending in this court in Probate case No. 24.) Since his death the plaintiffs have continued their occupancy of the property described in Finding No. 2.
7. Plaintiff Mabel Reid obtained an absolute divorce from Peter E. Reid, Sr., on October 20,1967.
8. Peter E. Reid, Sr., was related on the maternal *8side of his family to Ta’ape Fa’amuli, the matai of the Fa’amuli family which held title to the land known as Alega. This family relationship is manifested by impressive probative evidence that Ta’ape Fa’amuli and Peter E. Reid, Sr., regularly exchanged visits in a manner typical of family members and they otherwise engaged in a course of conduct which evidenced a family relationship, as, for example, the Reids regularly furnished foods and supplies to Ta’ape Fa’amuli and checked regularly to see about his needs. Some of Ta’ape Fa’amuli’s children resided at times in the home of the parents of Peter E. Reid, Sr. The latter actively participated in the arrangements for Ta’ape Fa’amuli’s funeral and engaged in all the activities normally associated with the handling of a Samoan funeral. Equally impressive is the fact that Peter E. Reid, Sr., testified in this court in Civil Action No. 16-1944 in support of Ta’ape Fa’amuli’s claim to ownership of Alega and identified himself as being related to Ta’ape Fa’amuli. And further persuasive evidence of the strongest probative effect is found in the fact that the defendant in this action procured the signatures of Peter E. Reid, Sr., and Peter E. Reid, Jr., as members of his family who supported his claim of succession to the matai title, Fa’amuli.
9. On December 15, 1949, Peter E. Reid, Sr., executed a sworn statement bearing the title “Acknowledgment Of Titles So As To Prevent The Running Of The Statute Of Limitations” which recited that the affiant was occupying a portion of the land “Alega” by the sufferance and permission of Ta’ape Fa’amuli, the owner of the land. Appended to this statement was the sworn request of Ta’ape Fa’amuli that the statement be filed in the High Court in accordance with Section 907(2) of the [1949] Code of American Samoa “as a record that I claim title to the parcel of land described above and that the said Peter E. Reid occupies a portion of that land as a life tenant only.”
*9CONCLUSIONS OF LAW
1. This court has jurisdiction of the parties and the subject matter of this action.
2. The occupancy of the land by Peter E. Reid, Sr., and his family represented a typical allocation of family land by a matai to a family member in accordance with Samoan custom.
3. The statement mentioned in Finding No. 9 served to arrest the running of the statute of limitations as authorized by Section 907(2) of the 1949 Code of American Samoa. It did not as a matter of law create a life tenancy in Peter E. Reid, Sr.
4. Under Samoan custom the death of Peter E. Reid, Sr., did not terminate the right of his surviving children and their immediate families to continue their occupancy of the property subject, however, to their rendering the required services to the matai.
5. Mabel Reid’s divorce from Peter E. Reid, Sr., terminated her status as his wife but did not affect her status as a member of the family of Mabel Reid Foster nor did it adversely affect her right to reside with her daughter.
Judgment is hereby entered in favor of the plaintiffs and against the defendant in accordance with the foregoing findings of fact and conclusions of law. The defendant is hereby permanently enjoined from interfering with the plaintiffs’ peaceful occupancy of the property described in Finding No. 2, so long as such occupancy is in accordance with the foregoing findings of fact and conclusions of law.
Court costs in the amount of $75.00 are assessed against the defendant, $25.00 of which amount is reimbursable by the Clerk of the High Court to Mabel Reid as one half of the survey costs incurred and paid by her. Said court costs are due on or before October 29,1969. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485268/ | DECISION DELIVERED FOR THE COURT
GOSS, Presiding Judge.
The motion of Moeaveave Iosia “to reconsider, to nullify *11decree, and to adjudicate Moeaveave Iosia to be matai, or, in the alternative, for a trial, motion to correct error in law, and for a stay of execution” filed May 25, 1970, and amended June 4, 1970, came regularly on for hearing on June 8, 1970. Affidavits submitted by Moeaveave Iosia and A. P. Lauvao Lolo were considered. In essence the movent Iosia, seeks herein relief from the Order of Dismissal entered on April 15,1970, after withdrawal of all claimants and objectors except for Chief Lolo. Besides various other matters, the movent claimed:
1. Movent’s branch of the Lutali family is the branch of which former claimant-objector Taimanu T. Taupule is a member, and its members were not aware of and did not authorize the withdrawal of Mr. Taupule’s claim and objection.
2. Movent’s branch of the family had objected to the title being conferred on Chief Lolo and had not withdrawn its objection.
On May 11,1970, the Territorial Registrar registered the title in the name of A. P. Lauvao Lolo. The appeal period having run (Section 3.0502, Code of American Samoa), movent filed a motion for relief from the order of dismissal.
Prior to his motion of May 25, movent was not a party to the case. The motion, amendment and affidavits set forth a great variety of claims, but it is necessary to consider only the issue of whether movent may intervene in a dismissed case to which he had not been a party.
Movent is proceeding under Rule 60 of the Rules of Civil Procedure for the United States District Courts, which reads in part as follows:
RULE 60. RELIEF FROM JUDGMENT OR ORDER.
* * ❖
(b) MISTAKES: INADVERTENCE; EXCUSABLE NEGLECT; *12NEWLY DISCOVERED EVIDENCE; FRAUD, etc. On motion and upon such terms as are just, the court may relieve a party or Ms legal representative from a final judgment, order, or proceeding for the following reasons . . . (Emphasis added).
Rule 60 was adopted by the Territorial Legislature as a Rule of Civil Procedure for American Samoa in C.A.S. 3.0608.
The primary duty of a Court is to encourage and assist the parties themselves in settlement of their controversy, and if this fails then the less satisfactory Court proceedings follow. It is clear that Moeaveave Iosia was not a party to this case, nor is he the legal representative of Chief Lolo, the only, party at time of dismissal. He is therefore not permitted to move for relief from the Order of Dismissal. Screvin v. U.S., C.A. Colo. 1954, 214 F.2d 759.
It is not possible for a contested case to be tried with only one party. The dismissal was in accordance with a long standing interpretation of C.A.S. 6.0106 by the High Court. Tuiteleleapaga et al. v. Tuiteleleapaga, Trial Division No. 378 (Civil), 1968.
It should be noted that even if movent were entitled to appear in this action, the motion should not be granted. The Court finds that (1) notice of the filing of the claim of Chief Lolo was duly given as required by C.A.S. 6.0105, and (2) while Mr. Taupule’s claim purported to be on behalf of rest, of the Lutali family, the objection filed herein by Mr. Taupule was his personal objection and was not worded as if made on behalf Pf any branch, clan or other class:
Please accept" this as my formal objection against the offer to register the matai title LUTALI of Aunu’u by one LAU-VAO-LOLO for the following-reasons..
*13When Mr. Taupule withdrew his objection and claim, there was nothing further upon which the Court could act.
On April 3, 1970, the Court entered an order against the filing of any further claims or objections. This order was made almost one year after filing of the first claim, and was necessary in order that pre-trial conferences and trial could proceed in an orderly manner.
That this procedure was in accordance with Legislative intent as to the construction of C.A.S. 6.0106 is indicated by the fact that in 1970 the Section was amended to prohibit the filing of claims and objections after notice of a claim had been posted for 60 days.
Counsel has cited no matai title case wherein a withdrawal of a claim or objection has been treated as a. withdrawal of a personal claim or objection only, so that a substitute claimant or objector was accepted as a party after the time for filings had been treated as closed. The Court concludes that a substitution cannot be made later than the deadline for filings established by statute or Court order.
The dismissal was entered by a single Justice pursuant to C.A.S. 3.0202, 3. A quorum of the Land and Titles Division had never convened herein until the hearing of this motion. The Court has not ruled on the qualifications or support of any claimant for the title: therefore these matters are not relevant to this proceeding. The Court’s action having been to dismiss an uncontested case in accordance with long established precedent, movent’s cause of action, if it existed, should have been directed to the Territorial Registrar. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485271/ | DECISION DELIVERED FOR THE COURT
MASANIAI, Presiding Judge.
This action concerns registration of the matai title Sala of Fagasa Village, Tutuila Island, pursuant to Title VI of the Code of American Samoa. It was stipulated that all parties met the requirements of C.A.S. 6.0101 and C.A.S. 6.0104.
After consideration of the evidence herein and the law of the case the Court makes its findings, conclusions of law and judgment as follows:
FINDINGS OF FACT
1. The title Sala, sometimes formerly referred to as Vaetusala or Vaetu’usala, originating in the Village of Fagasa, Tutuila Island, became vacant in 1966, on the death of Sala Ationo.
2. All parties are members of the Sala family.
3. Notice of the filing of the claims of succession of all parties was duly given by the Territorial Registrar by posting a notice thereof in the English and Samoan languages on the bulletin board in front of the Administration Building in Fagatogo and in two public places in Fagasa.
*234. None of the claimants were supported by a majority or plurality of the clans of the Sala family.
5. Samiu E. Sala prevails over Onosa’i Sataua, Objector, in the following considerations under C.A.S. 6.0107:
a. Hereditary right as all parties stipulated that Onosa’i Sataua has 1/i6th Sala blood, whereas Samiu E. Sala has Sala blood.
b. Forcefulness, character, personality, and knowledge of Samoan customs. Claimant Samiu E. Sala’s forcefulness and character has been particularly demonstrated by his performance in a position of great responsibility in the Department of Education.
c. Value to family, village of Fagasa and country.
CONCLUSIONS OF LAW
1. As used in C.A.S. 6.0107, the phrase “The value of the holder of the matai title to the family, the village and the country” is construed to refer to the expected future value of a particular claimant if he were to be registered as holder of the matai title.
2. The Claimant Samiu E. Sala is determined by law to have the highest right to the matai title Sala.
JUDGMENT
Accordingly, it is the decision of this Court, and it is hereby ORDERED, ADJUDGED AND DECREED:
. 1. The name of Samiu E. Sala is certified to the Territorial Registrar for registration as the holder of the matai title Sala, originating in the Village of Fagasa, providing that prior to registration the successful claimant shall resign any other matai title which he then holds.
2. After the decision in this case has become final, the Territorial Registrar shall issue to the successful claimant a certificate of registration.
*243. At that time the Clerk of the High Court will return any exhibit to a party upon his application therefor.
4. Court costs in the amount of $37.50 are assessed against Onosa’i Sataua to be paid within thirty days after the decision herein is final.
5. The Clerk of the High Court is instructed to docket this decision and furnish copies thereof to counsel and to the Territorial Registrar. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485272/ | *25APPEARANCES
Tuiteleleapaga Family, Napoleone Tuiteleleapaga.
This cause came before the. Court on a petition under Section 6.0110, Code of American Samoa, to divest Defendant of the matai title Filioali’i. Section 6.0110 reads:
1. Any matai who leaves American Samoa for longer than one year may be divested of his title upon application instituted by petition filed in the High Court by any member of the family of the absent matai. Upon presentation of such petition the Court may, but need not, upon satisfactory proof of such absence divest such title. The Court in its discretion may also consider the reasons for such absence, and the wishes of the family actively serving the matai.
2. Service shall be made in accordance with Section 6.0108. The Court in its discretion shall set the time of hearing of the cause so as to allow sufficient and reasonable time for the matai defendant to appear in his defense, either in person or by counsel. Failure to appear in person or by counsel, after proper service,, shall be sufficient for the Court to find the defendant matái in default.
The Court having considered the evidence and the law, makes its Findings of Fact, Conclusions of Law and Judgment as follows:
FINDINGS OF FACT
1. Defendant, Filioali’i Iosefo, was duly served, submitted to the Court an answer to Plaintiff’s complaint and the Court has jurisdiction herein.
2. Defendant has been away from American Samoa for more than one year prior to the filing of the petition herein and remains away from American Samoa.
3. Petitioner herein is a member of the Tuiteleleapaga family, the family of the absent matai and to which Defendant’s title belongs. The title originates in the Village of Leone.
*264. The majority of the Tuiteleleapaga family members actively serving the Defendant matai desire that defendant be divested of his title. Defendant has not served the Tuiteleleapaga family since he left American Samoa.
5. Defendant did not leave his home in American Samoa (1) to attend an educational institution, (2) to serve in the Military Service of the United States, (3) for medical treatment and recuperation, or (4) for temporary traveling.
CONCLUSIONS OF LAW
1. As used in C.A.S. 6.0110, (1) the words “family actively serving the matai” may include the members of the family to which the matai title belongs. Under the matai system, persons of higher status within a family are required to actively serve those holding lesser matai titles just as those with lower status serve those with higher titles. Vaotuua Family v. Puletele, Trial Division No. 20 (Civil), 1954.
2. Whether the Defendant is away from American Samoa for one of the reasons listed under C.A.S. 6.0113 is a factor which should be considered by the Court in determining whether the Defendant has shown a proper reason for his absence under C.A.S. 6.0110. C.A.S. 6.0113 reads:
Sec. 6.0113 — REGISTER OF ABSENT RESIDENTS:
1. A register shall be kept by the Territorial Registrar in which shall be kept the names of the bona fide residents of American Samoa who are absent from the Territory for the following reasons.
A. To attend an educational institution.
B. In the military service of the United States.
C. For medical treatment and recuperation.
D. Temporary traveling.
2. Such name may be entered in the register by the petition of *27five (5) adult members of the registrant’s family. Such registration will be valid for a period of two (2) years.
3. Any person registered on such roll shall be eligible to apply for, or object to, registration of a matai title as if he actually resided in American Samoa.
3. The requirements of C.A.S. 6.0110 having been met by Plaintiff and Defendant not having shown any proper reason for absence, the petition should be granted.
IT IS THEREFORE, ORDERED, ADJUDGED AND DECREED:
1. That defendant, Filioali’i Iosefo, of Honolulu, Hawaii, be and he is hereby divested of the matai name Filioali’i.
2. Court costs in the amount of $50 are assessed against Defendant, who shall pay said amount within 30 days after the decision herein is final.
3. The Clerk of the High Court will docket this order and transmit copies to both parties and to the Territorial Registrar who shall take appropriate action at the time this Judgment becomes final. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485273/ | OPINION OF THE COURT
A. P. LUTALI, Presiding Judge.
Unutoa Sonoma Liufau filed his application on April 24, 1969, to be registered as the holder of the matai title Liufau of Aua. Auauna Leao filed his application to be registered as the holder of the same matai title on May 29,1969. Tuuu Soogapu filed her objection on May 26, 1969, to the registration of the Liufau matai title by Unutoa Sonoma Liufau. On July 1,1969, Tasi L. Liufau and Meafua Liufau each filed an objection to the registration of the Liufau *29matai title by Auauna Leao. Fiavaai P. Suaava filed his objection on July 3, 1969, to the registration of the Liufau matai title by Auauna Leao.
At a pre-trial conference in the courthouse on March 12, 1971, Meafua Liufau, Fiavaai P. Suaava, Tasi L. Liufau, and Tuuu Soogapu each withdrew his or her objection and therefore each ceased to be a party in .this litigation.
For purposes of this hearing, Unutoa Sonoma Liufau will be referred to as Unutoa and Auauna Leao as Auauna.
From the evidence adduced at the hearing, both candidates Unutoa and Auauna are eligible to hold a matai title under Sec. 6.0101 of the Code of American Samoa.
Sec. 6.0104 of the Code of American Samoa, 1961 Edition, as amended, prescribed the requirements for the registration of a matai title. The evidence clearly established that each of the two remaining candidates, viz., Unutoa and Auauna, possesses those qualifications and is, therefore, eligible for registration as the holder of a matai name.
The Code of American Samoa, 1961 Edition, as amended, prescribes the law which the Court must follow in determining which one of the opposing candidates for a matai name shall be registered as its holder. It reads as follows:
Sec. 6.0107 — Consideration given by the Court: In the trial of matai name cases, the High Court of American Samoa shall be guided by the following considerations, in the priority listed.
First: The best hereditary right in which the male and female descendants shall be equal in families where this has been customary, otherwise the male descendant shall prevail over the female.
Second: The wish of the majority or plurality of those clans of the family as customary in that family.
Third: The forcefulness, character, personality, and knowledge of Samoan customs.
*30Fourth: The value of the holder of the matai title to the family, the village and the country.
The undisputed evidence as to Un-utoa’s lineage was that Liufau Mativa had a daughter Leutu who is the mother of Unutoa. It is apparent from this evidence that Unutoa is the grandson of Liufau Mativa. The evidence as to Auauna’s lineage, also undisputed, was that Liufau Tosiese had a daughter Sailegogo who had a daughter Fuelasi who had a daughter Taeli who had a daughter Savali who had a daughter Faiumu who was the mother of Auauna. It follows from this evidence that Unutoa, who is the grandson of Liufau Mativa, prevails over Auauna who is the great, great, great grandson of Liufau Tosiese, and we so find.
Unutoa submitted evidence to the effect that five clans are customary in the Liufau family and that three of the five clans are supporting his candidacy. The other two clans are without known descendants at present. Auauna submitted evidence that only two clans are customary in the Liufau family, and that one of the two clans is supporting his candidacy. The other clan is supporting Unutoa’s. The evidence clearly shows that the majority or plurality of the clans as is customary in the Liufau family are supporting the candidacy of Unutoa. We find therefore that Unutoa prevails over Auauna on this issue.
Since the statute provides that the Court “shall be guided by the following (meaning four issues) in the priority listed”, it follows that the Court must give more weight to the issues of hereditary right and wish of the majority or plurality of the clans of the family than it does to The third and fourth issues, viz., “the forcefulness, character, personality, and knowledge of Samoan customs” and “the value of the holder of the matai name to the family, the village, and the country.”
*31Since Unutoa prevails over Auauna on the first two issues, he is entitled to be registered as the holder of the matai name Liufau. No useful purpose would be served by lengthening this opinion by setting out the evidence in this case with respect to the last two issues. Suffice it to say, however, that the Court is of the opinion from the evidence in this case that Unutoa prevails over Auauna, not only on the first two issues, but also on the last two.
DECREE
Accordingly, it is ORDERED, ADJUDGED AND DECREED that Unutoa Sonoma Liufau of Aua be registered as the holder of the matai name LIUFAU attached to the village of Aua, subject to the condition that he file with the Territorial Registrar within 30 calendar days from the date of this Decree, his resignation from the Unutoa title.
Costs in the sum of $25.00 are hereby assessed against Auauna, the sum to be paid within 30 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485639/ | Opinion ' and Order on Motion for Preliminary Injunction:
Plaintiff alleges that defendant Drabble, the President and majority shareholder of Transpac', has caused the corporation to engage to its detriment in' a-series of financial transactions with Drabble himself and with other entities controlled by him.
The Court is keenly aware of the limits of its authority and competence in dealing with charges of the sort that . have been ■ made here. Minority shareholders are not entitled to any particular return . on their investment, or to any return at all. They are not entitled to manage the corporation or. to get the Court to .manage it for them, even if the minority shareholders and the Court believe the business judgment of the majority to have been unsound. A minority shareholder is, however, entitled to insist that the managers and majority shareholders observe their fiduciary duty to the corporation. When management engages in acts of self-dealing that are so clearly detrimental to the corporation as to overcome the strong presumption that a court should not interfere with the business judgment of those charged with managing business enterprises ---- what is known as "the business judgment rule"---"this fiduciary duty is breached.
It is easy to understand the resentment that someone in the position of Mr. Drabble, who owns the vast majority of the shares in a corporation and who has spent most of his working life in an effort to make it prosper, must feel when his dealings with the corporation are questioned. For reasons that are just as easy to understand, however, such a person may tend to deal with the corporation as though it were an extension of himself rather than an entity to which he owes a fiduciary duty. When there are minority share*112holders who object to such dealings, they are impermissible.
At the hearing on plaintiff’s motion for a preliminary injunction, she produced evidence of a number of instances in which corporate assets had been used by Mr. Drabble or other entities controlled by him without any apparent benefit to the corporation. The absence of evidence of apparent benefit to the corporation dod>s not necessarily mean that no benefit was derived. It might be possible to characterise some of the transactions to which plaintiff objects as compensation for Mr. Drabble’s services to the corporation. Others, such as the use of Transpac computers and of Transpac employees’ time in the conduct of non -Transpac enterprises, may have or may not. have imposed substantial costs on the corporation. Although the pattern of ■ casual transfers among Drabble-controlled entities that appears from the present' record is such that plaintiff will probably be able to prove at trial that some of these transfers should not have occurred or should have been handled differently, with regard to most such items the plaintiff has not proved that she or the corporation will be irreparably injured if no interim relief' is granted pending a trial on the merits. Accordingly, plaintiff’s request that the Court' order a complete audit and the return of any diverted assets prior to trial is denied.
Our finding that no irreparable injury will take place prior to trial, however, is conditioned on the assumption that there will be no substantial transfers of Transpac resources to other Drabblecontrolled entities between now and then. Although plaintiff presented evidence that would suggest the likelihood of such transfers, Mr. Drabble assured the Court that none are contemplated. The Court will therefore enjoin any such transfers pending the outcome of this case. The limitation of this order to "substantial" transfers is designed to make it clear that defendants are not requii-ed to restructure their operations so as to eliminate the current use by non-Transpac entities of such assets as computer time and administrative work by Transpac employees. Only the direct transfer of funds, or a series of indirect transfers clearly calculated to achieve the effect of a substantial and direct transfer of funds, is prohibited.
*113The principal point of contention between the parties is the development of the "Sadie Thompson building.” After plaintiff objected to an earlier arrangement by which Transpac was to develop the building and use it to house some corporate operations, Mr. Drabble and the corporation reached an agreement that Drabble would take over the development of the building and reimburse Transpac for ' the amounts it had expended. A complicated series of transactions ensued, including a recent decision by the Transpac Board of Directors that Transpac will lease the building from Mr. Drabble "at cost." There is at present no lease document; the term of the lease and the exact amount constituting “cost" remain unspecified. At the hearing on this motion Mr. Drabble testified that no further expenditures by Transpac were contemplated other than "tenant expenses," primarily interior decoration of those areas Transpac intends to lease. The expenditure of Transpac funds for such "tenant expenses" does not violate the preliminary injunction. Substantial expenditures for amounts not customarily charged to commercial tenants would violate the injunction, unless they were made pursuant to a lease approved by the board of directors of Transpac and whose terms were not so unfavorable to the corporation as to violate the business judgment rule.
It would be difficult to underestimate the enthusiasm with which the Court embarks on this venture into the world of retail sales and interior finance. The corporate form of organisation has many advantages, but there is very little to be said for a closely held corporation whose shareholders do not like each other. Even the relatively unintru-sive inquiry into whether challenged transactions violate the business judgment rule promises to be painful for the defendants without offering any great prospect of substantial profit to the plaintiff. The Court reiterates its • suggestion that the parties negotiate, perhaps by resort to arbitration, a fair price per share. Surely there must be objective factors (other than the near-monopoly power of the majority shareholder and the "nuisance value" of the minority shares) -by which such a figure could be calculated. This would allow Mr. Drabble to conduct transactions among the various enterprises he controls without regard to the benefit or detriment to each entity from each transaction, and it would allow Mrs. H&ythornthwaite to direct her *114activities to more productive enterprises than litigation.
It is so ordered.• | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485640/ | PER CURIAM:
This is an appeal from the trial court’s decision convicting the appellant of the offenses of Sodomy and Sexual Abuse, in violation of A.S.C.A. ■§§ 46.3’611 and 46.3615 respectively.
The appellant present^ the following for appellate review: (1) whether the trial court violated the defendant’s right to a public trial by hearing the complainant witness’ testimony in camera; ('2) whether the government had adduced sufficient evidence to sustain the conviction of defendant; and (3) whether the .terms of probation imposed by the Court upon the defendant were violative’of A.S.C.A.. i 46.2201 et. seq.
Public Trial
*116Appellant concedes that, while he is secured the fundamental right to public trial, this right-is not an absolute one. Appellant admits as settled law that the trial court has inherent power to exclude the public "when there is an overriding interest or existence of special or exceptional circumstances." It is argued that the trial court was without "genuine" reason to.conclude that there was an overriding interest or special and exceptional circumstances to justify the exclusion of the public, as well as defendant’s' family members, while hearing the testimony of complainant.
We disagree. Firstly, the applicable review standard in determining whether the record sufficiently supports the trial judge’s exclusion of spectators from the courtroom is whether there has been an abuse of discretion. United States v. Eisner, 533 F.2d 987 (6th Cir. 1976), cert. denied 429 U.S. 919. Further it is inveterate law that a trial judge may, .in the exercise of his discretion, exclude some or all of the spectators from^th^ courtroom while the testimony of a particular witness is being taken where it appears necessary to protect or 'shield the witness; to prevent embarrassment or emotional disturbance; or to enable the witness, who is otherwise reluctant in public, to testify to the facts that are material in the case. State v. Poindexter, 92 So.2d 390 (La. 1956); Kirstowsky v. Superior Court in and for Sonoma County, 300 P.2d 163 (Cal. App. 1956).
Examination of the record reveals that the trial judge carefully undertook a public hearing in accordance with the holding in Globe Newspaper Co. v. Superior Court, 457 U.S 596 (1982), seeking of every spectator who wished to remain in the courtroom his or her reasons for wanting to stay. Family members related to both the defendant and the complainant were the only people who requested to be present during the complainant’s testimony. The Court accorded each of these people the opportunity to be heard on the 'question of their exclusion, as well as hearing from the complainant to determine whether she needed shielding and protection. On the evidence taken, the trial judge articulated findings which, in the lower court’s view, sustained a closed hearing. The Court found that the immediate relatives clearly hoped to intimidate and influence the complainant. Exclusion of these relatives was therefore *117necessary from the complainant’s point of view, as well as in the interests of enhancing the pcssibility of her testifying truthfully. The distant relatives who were excluded testified that they were curious as to what went on. 'The Court found this factor to be outweighed by the interest of the victim in not becoming an object of salacious curiosity. See Globe Newspaper Co., supra, 457 U.S. at 607-08. With the victim’s .age and the nature of the charges, the Court was also concerned with protecting her psychological well-being.
We find sufficient grounds articulated on the record to warrant a finding below to exclude spectators during the testimony of complainant and that there was no abuse of discretion on the part of the trial judge. Indeed, the compromise of the defendant’s rights (as well as the public’s first amendment right to be present in the courtroom) was limited to the taking of complainant’s testimony. The hearing thereafter was reopened to the public.
Sufficiencv of Evidence
We note at the outset the applicable standard for review as provided in A.S.C.A. § 46.2403(b). That is, findings of fact may not be set aside by the appellate division unless clearly erroneous.
Appellant excepts to his conviction for the offense of sodomy in the following manner. He contends that the offense is comprised of four elements: (1) deviate sexual intercourse; (2) with another person to whom he is not married; (3) without that person’s consent; (4) by using forcible 'compulsion.
Appellant concedes proof of elements one and two but objects to the sufficiency of proof of elements three and four.
The first observation to be made of appellant’s argument is that elements three and four are disjunctive, whereby proof of element three obviates the need for proof of four and viceversa.
Contrary to appellant’s claims, a conclusion by the trial court that complainant did not consent to the deviate sexual intercourse is clearly substantiated on the record. A.S.C.A. § *11846.3111(4)(c) provides that consent or lack of consent may be expressed or implied, but that: "[a]ssent does not constitute consent if: it is induced by force, duress or deception . . . ." There was testimony relating to a history of vaginal checks imposed by the defendant upon the complainant. She had succumbed to these checks for fear of being beaten, as had'happened before. The incident which gave rise to the criminal charges was subsequent to a violent beating of the complainant by the defendant the afternoon beforehand, because complainant had remained after school for a volleyball game. She was subjected to a vaginal check the following morning” after the rest of the household (except for a year-old baby) had left. Defendant was insistent on checking the complainant’s virginity. When complainant was reluctant to allow the. defendant access, the defendant "yanked her legs apart" by "pushing both knees aside."
The background of checks by her father, enforced at times by beatings, together with his insistence on checking her virginity after remaining late at school and after being severely punished therefor, were all circumstances sufficient for the trial court to find the absence of consent.
Appellant further complains of insufficient showing as to all the elements of the offense of Sexual Abuse. The offense includes the element of "sexual contact," which requires a touching “for the purpose of arousing or gratifying sexual desire of any person." See A.S.C.A. § 46.3601(b). It is this element which appellant claims was not proven by the prosecution beyond a reasonable doubt.
We disagree. The record was again sufficient to sustain an inference of arousal or gratification of sexual desire, beyond the claims of clinical checking for virginity. Defendant took several minutes with his exercise, which first involved massaging of the pubic area and thighs. There was further massaging utilizing baby oil prior to defendant’s internal checking. Subsequent to his internal check, defendant continued with massaging as before.
The government’s case in chief thus provided adequate evidence to withstand a motion for acquittal, while the record at the close of, *119evidence also substantially supported the conclusions of guilt.
' We accordingly affirm the convictions entered below.
Probation
Appellant upon conviction was sentenced to a term of five years probation for each count. Pursuant to A.S.C.A. § 46.2206, and’as a condition of probation, the Court required th® defendant to serve a period of detention of one year on each count, with the terms of detention to ' be served "consecutively."
Appellant takes issue with the imposition of consecutive periods of detention, citing A.S.C.A. i 46.2207. This enactment provides, inter alia, that: "Multiple terms of probation, ' whether imposed at the same time or at different times, shall run concurrently." The' argument therefore is to the 'effect that detention as a condition of probation must also be concurrent. We agree'. The government maintains that the probationary condition of detention can be imposed "consecutively, concurrently, or -at whatever time intervals the court shall designate". The government points to A.S.C.A. § 46.2206 as authorizing consecutive detention periods. The enactment providés in part:
Except in infraction cases, when probation is granted, the court, in addition to conditions imposed under 46.2205,- may require as a condition of probation that the defendant submit to a period of detention in an appropriate institution at whatever time or intervals within the period of probation, consecutive or nonconsecutive, the court shall designate.
(1) In misdemeanor cases, the period of detention under this section may not exceed Í5 days.
(2) In felony cases, the period of detention under this section may not exceed one year.
We are unable to 'read this enactment in the manner viewed by the government. Firstly, the provision does not address multiple terms of *120probation. Rather, its context concerns a singular probationary instance, and permits as a condition of probation a term of detention. It is a "split sentencing" provision and allows the sentencing judge flexibility in structuring a period of detention as a condition of probation. The enactment permits the Court to impose the commencement of detention at any point of time within the period of probation, and alternatively permits detention to be undertaken at "intervals" within the period of probation. The enactment thus implies that the Court may break down or subdivide the total detention period into lesser periods which may be served at such intervals as the Court may designate. Those "intervals" may be "consecutive" or "non-consecutive," thus allowing the Court the flexibility of structuring any pattern of time periods. On the one hand, detention may be ordered to be served all at one stretch, while on the other, it might also be required to be served in intermittent stages within the overall probation term. The "aggregate" period of detention for a felony conviction however, is restricted by subsection (2) to a period not exceeding one year.
Reliance, therefore, by the government on § 46.2206 to sustain the imposition of consecutive detention terms as conditions of probation is hardly tenable. Given the mandate of A.S.C.A. § 46.2207, which specifically addresses multiple terms of probation, and which requires that such terms "shall" run concurrently, it is the opinion of the Court that the respective conditions imposed with multiple probationary terms must also be served concurrently.
It is apparent from the reasoning of the trial court that since the language of § 46.2206 permits the Court to impose a period of detention "at what ever time . . . within the period of probation," detention periods in a multiple term situation could thus in fact be staggered in commencement date (albeit consecutive in effect), so long as those detention periods accumulate within the overall five-year probation maximum for felonies.
While the language of § 46.2206 may appear to lend itself to such a possible reading, in our opinion such a result was not intended by, and would be repugnant to the spirit of, the Probation Act. If it had intended to permit consecutive *121periods of detention as conditions of multiple terms of probation, the legislature could' have been mere explicit, given the specific proscription of 8 46.2207 that multiple terms of probation shall run concurrently,' as well as the limits, to the term of probation so as not to exceed five years and the condition of detention so as not to exceed one year, in the case of a felony. See 88 46.2204 and 46.2206 respectively.
The basic premise, or underlying policy, of the Probation Act may be seen in 8 46.2203, which directs the sentencing court’s attention to the probation option in circumstances where:
(1) institutional confinement of the defendant is not necessary for the protection of the public; and
(2) the defendant is in need of guidance, training, or other assistance which in his case can be effectively administered through probation supervision.
Probationary concerns,• therefore, are antithetical to "institutional confinement," arid while the legislature has deemed confinement as a suitable "guidance, training, or other assistance" factor to be taken into account, and imposed as part of probation, the one-year limit to the period of detention must be taken as the decisive dividing line between what is probationary and what is penal in nature and in the interests of public protection. To allow, therefore, consecutive detention terms, especially when the aggregate duration- of those terms exceeds one year, is to undermine that legislatively determined dividing 1ine.1
In People v. Tedford, 445 N.E.2d 841 (Ill. App. 1983), an Illinois court faced with a similar probation act, prescribing that multiple terms of probation shall run concurrently, reasoned as follows:
*122There is a logicál inconsistency to the argument that the terms of probation must be served concurrently and the conditions of probation may be served, consecutively. . . . While the statute requires that multiple sentences of probation be served concurrently it follows naturally and logically that the conditions of those multiple sentences of probation be served concurrently as well . . . . Therefore the jail term conditions of probation should be modified to run concurrently.
Id. at 843.
The court felt that a ruling to the contrary would subject the defendant to probationary detention in excess of statutory limits; it also noted that the basic . theory of probation is the opportunity of rehabilitation without incarceration. Similarly, federal experience embodies the same reasoning. Under 18 U.S.C. i 3651, Congress has provided a six-month limitation on detention periods conditional to probation. It has been held, given that multiple terms of probation are required to run concurrently,. that this limitation does not permit the imposition of consecutive periods of detention. United States v. Rice, 645 F.2d 691 (9th Cir. 1981), cert. denied 454 U.S. 862 (1982).
Conclusion
Accordingly on the above we affirm the convictions entered below, but vacate and modify sentence so that the terms of detention imposed as conditions of probation shall run concurrently and not consecutively.
In 1983, this dividing point was amended by the Legislature from six months to a period not .exceeding one year. See P.L. 18-16 8 1. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485641/ | The natural parents of the minor child before the Court petition to relinquish their parental rights to the minor in anticipation of an adoption petition by the child’s maternal grandmother.
The facts of the case are as follows. The natural father is thirty-eight years old and gainfully employed. The natural mother is thirty-four .years of age and similarly employed. Including the minor here, the petitioners have, three children. The proposed adoptive parent; on the other hand, is sixty-seven years . of age, widowed, and a beneficiary of social security and veterans benefits in the aggregate amount of $418 per month. Grandmother owns a three bedroom house shared by'a household of five, and she has had the primary care of the minor since his birth. . The child is presently nine years old.
The natural parents’ only explanation in agreeing to relinquish their rights to the.child is that he has become naturally attached to the *124grandmother. Upon questioning, the petitioners responded affirmatively that they appreciated and understood the consequences of their petition if granted. Petitioners have further attended counseling with the Department of Human Resources; in the Department’s report we find an additional motive to the petition, that petitioners may leave the island in order for the natural father to attend school and further his drafting career. They desire not to separate the minor from his-grandmother because of the close bonding which has developed between them.
A number of things require the Court’s consideration in these proceedings. Most significant, of course, are the best interests and welfare of the child. See generally § 102 of the Juvenile Justice Act of 1980, A.S.C.A. § 45.0102. Among other things, we are also to look to the best interests of all the parties concerned, A.S.C.A. i 45.0402(e), and the reason why relinquishment is desired, A.S.C.A. i 45.0402(a).
On the facts presented us, it is the opinion of the Court that the reasons given are not sufficient to justify us in granting the petition.
Firstly, relinquishment is being sought with the view to securing the bonding that has arisen between the grandmother and the child. The Court does not feel that a relinquishment order is necessary to effectuate these purposes. The grandmother, subject to the natural parents’ agreement, may retain custody of the child and may continue the relationship developed.
Secondly, the consequence of a final order of relinquishment is to: "divest the relinquishing parent or parents of all legal . . . obligations they may have with respect to the child relinquished." The corresponding package of rights of the child as against his parents includes the full force and effect of the law to ensure that their parental obligations are complied with in accordance with those standards demanded by society.
The alternative sought by this petition and anticipated adoption is the transferal of those parental obligations, guaranteed by the law to the child, to the grandmother. The remaining years of the child’s minority and dependence, as well as the *125age difference between the child and grandmother, speaks against this alternative as ' being more advantageous to the child than those of his natural circumstances. The natural circumstances' are such that the child has healthy young parents to whom the law can look for the child’s future support and maintenance of his 'needs, given his remaining years of dependency.
While the Court is mindful of the attachment and bonding that has arisen between the child and his maternal . grandmother, it does not necessarily follow that the furtherance of that relationship requires the formal divestment of the child’s rights against his natural parents. There is no superior advantage offered by the grandmother in terms of making more secure the child’s future needs, and there is no real reason why the child’s present relationship with his grandmother may not otherwise continue.
Accordingly we deny the petition. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485643/ | Opinion and Order on Motion for New Trial:
Defendant Taulafoga Tulisua moves for a new trial upon the following grounds:
(1) Defendant contends that the decision of the Court resulting in ejectment is error in that plaintiff is required to prove title in order to upset defendant’s possession. The contention alludes to the old common law maxim that the plaintiff must recover on the strength of his own title, and hot on the weakness of the defendant’s. That is, defendant’s possession ought not to be disturbed until and unless plaintiff proves superior entitlement.
The reasoning implies that, as the Court did not find title in either of the parties, defendant’s possession is indefeasible as far as plaintiff is concerned.
Without intimating whether this common law principle is contextual to a communal land setting, we point out that defendant’s argument nonetheless may not be sustained at law. Firstly, the maxim does not apply in circumstances.where the plaintiff had prior possession of the land and his possessory rights have been disturbed by an intruder or by trespassers who physically move in and attempt to oust plaintiff. Haws v. Victoria Copper Mining Co., 160 U.S. 303 (1895). The Supreme Court here-quoted Christy v. Scott, 55 U.S. (14 How.) 282, 292 (1852):
*131A mere intruder cannot enter on a person actually seised, and eject him, and then question his title, or set up an outstanding title in another. The maxim that plaintiff must recover on the strength of his own title, and not on the weakness of the defendant’s, is applicable to all actions for the recovery of property. But if plaintiff had actual prior possession of the land, this is strong enough to enable him to recover it from a mere trespasser, who entered without title.
Haws, 160 U.S. at 310.
Our findings herein were to the effect that neither plaintiff nor defendant had proven title to the land. Plaintiff had been in prior possession of the site in question for many years. Defendant had attempted to oust plaintiff from the site when, after January 1987, defendant moved in, over plaintiffs’ objections, and erected a building within a three-month period. He may not now assert possession forcibly obtained and invoke the maxim pointing to a' flaw in the title of plaintiff. To sustain defendant’s argument would be to permit one to benefit by one’s own wrongdoing through self-help.
(2) Defendant also takes exception with the Court’s conclusion that defendant was lacking in good faith, and is thus not entitled to compensation for improvements. The case cited by the Court, namely Fonoti v. Fagaima, 5 A.S.R.2d 158 (1987), is sought to be distinguished by defendant. The distinction, says defendant, is that Fonoti was more vigorous than the plaintiff herein with his objections to wrongful ouster. The argument appears to be one of degree --- the difference between axes and knives on the one hand, and verbal objections on the other? One thing is clear from the cases: the question of "good faith" is one of fact, Meyers v. Canutt, 46 N.W.2d 72 (Iowa 1951), and depends on the circumstances of the case in which "good faith" is asserted. Simpson v. Bostwick, 80 N.W.2d 339 (Iowa 1957).
The circumstances in this matter were that there had been a recent history of continuing exchange between the parties regarding defendant’s activity on the land, including the obliteration of *132plaintiffs’ grave sites by the defendant’s rerouting of access way, and his building of stone walls. In the face of this, activity, defendant does not deny knowledge of plaintiffs’ past occupation. He knew of a prior attempt by plaintiffs in seeking court action, and furthermore, defendant, consistent with the theory of his case, had no title in his own right on which to assert or premise a belief of better entitlement than that of plaintiffs. He acknowledged the objections made by plaintiffs (who preferred to resolve the dispute extrajudicially) but he testified that he commenced to build on the site because plaintiffs had earlier filed suit against him, and because after the Office of Samoan Affairs had recommended to the parties to discuss their differences, plaintiffs had not gone to defendant to discuss the matter. Indeed, defendant acknowledged that the matter could easily have been resolved but that the plaintiffs did not care to come to him.
We find no possible basis of “good faith" in these circumstances --- merely the attitude that "might is right.'"
(3) Defendant further claims abandonment of the site by plaintiffs, but asserts abandonment for purposes of a license argument. We reject this argument in that our findings did not encompass defendant’s contention that plaintiffs were licensees of .Manamea. The Court did not make a finding on title vis-a-vis the parties, although it found • plaintiffs’ possessory rights superior to defendant’s.
(4) Finally, defendant makes the remarkable claim at this stage that there is uncertainty as to the exact location of the so called "Olo Site," as referenced in the judgment. This contention comes close to courting contempt sanctions. The Court was quite- clear .at the outset of trial in pointing out its concerns regarding the lack of surveys. The parties assured the Court that surveys were not needed and that the dispute centered merely on a house site. The parties were in agreement that the land-itself comprised one-half to one acre in area and were evidently in consensus with regard to the various locations of people’s homes on the land, as was quite clear from their respective drawings made in open court. What was pointed out as the Olo site was distinct and separate from what was *133Tulisua’s site. If the latter has any new-found difficulties with ascertaining the Olo site, we make quite clear that a consequence of our decision is that defendant shall go back to the Tulisua location which has and continues to locate his home. We are prepared to educate defendant the hard way if he is unable to comply with the Court’s order to remove that 1987 construction of his.
(5) Defendant also attempts an argument of title based on the evidentiary principle that possession points to ownership. We merely note that some three months of forced ouster of the prior possessor could not be evidence of ownership by any stretch of the imagination.
Motion for New Trial is Denied. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487013/ | If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
ENITA MORRISSETTE, UNPUBLISHED
November 17, 2022
Plaintiff-Appellant,
and
CENTRAL HOME HEALTH CARE SERVICES,
Intervening Plaintiff,
v No. 359503
Macomb Circuit Court
INDIAN HARBOR INSURANCE COMPANY, LC No. 20-002690-NF
Defendant-Appellee,
and
CANTRELL MITCHELL,
Defendant.
Before: MURRAY, P.J., and CAVANAGH and CAMERON, JJ.
PER CURIAM.
Plaintiff Enita Morrissette appeals as of right the trial court’s order granting defendant
Indian Harbor Insurance Company’s motion for summary disposition, arguing that she provided
defendant with proper notice of her injury within one year of the accident pursuant to MCL
500.3145(1). We affirm.
I. BACKGROUND AND PROCEDURAL HISTORY
This case arises from an automobile accident on January 29, 2019, when plaintiff allegedly
sustained injuries while operating her 2009 Ford Escape as a driver for Lyft. At the time of the
accident, plaintiff was transporting a Lyft passenger, and while her vehicle was stopped at a red
traffic light at the intersection of Van Dyke and Stephens road, Cantrell Mitchell, an uninsured
motorist, rear–ended her. Aside from a broken bumper, plaintiff’s vehicle remained in good
-1-
working condition as she completed her passenger’s Lyft ride, which included multiple stops .
Plaintiff testified that pain in her back and neck instantly emerged after the impact, but she did not
immediately seek medical attention and instead waited until her upcoming previously scheduled
appointment with her physician.
Following the accident, plaintiff could not drive for Lyft because she had difficulty getting
in and out of her vehicle and experienced numbness and weakness in her lower extremity. Plaintiff
testified that when she called Lyft to report the accident, she could not get a representative on the
line for assistance. So instead, plaintiff notified Lyft through their text messaging service line, and
within a week following the accident, a Lyft representative contacted her. Plaintiff subsequently
applied for Uninsured Motorist (UM) and First-Party Personal Injury Protection (PIP) benefits
with her insurer, AAA, and filed suit against AAA following their denial of benefits. That matter
was dismissed, however, when the trial court granted AAA’s motion for summary disposition on
plaintiff’s claims because of a business pursuits exclusion in AAA’s policy. Plaintiff admits that
it was not until her litigation with AAA that she identified defendant as Lyft’s insurer.
Plaintiff filed her complaint against defendant on July 27, 2020, more than one year after
the date of the accident.1 Defendant filed its motion for summary disposition pursuant to MCR
2.116(C)(7) and (10), arguing that plaintiff’s claims were time-barred under MCL 500.3145(1)
because written notice of injury was not furnished to defendant within one year of the accident.
Defendant claims that they did not receive any notice until March 11, 2020, when plaintiff verbally
reported the accident to defendant. Plaintiff responded to defendant’s motion, arguing that she
notified defendant’s insured, Lyft, via text message on the day of the accident. Plaintiff also argued
that the unusual circumstances of this case warranted the tolling of the statute of limitations
because it would defy logic to require that someone who is not privy to the insurance contract in
question—the policy between Lyft and defendant—provide notice to an entity of which it is
unaware.
In a well-written and reasoned opinion, the trial court granted defendant’s motion,
concluding that plaintiff did not give defendant notice of a potential claim within the one-year
statute of limitations. The trial court found that although plaintiff testified that she texted Lyft on
the day of the accident and that a representative for Lyft called her back later that week, plaintiff
provided no other evidence regarding the content of the text messages or her follow-up telephone
conversation. Even more, plaintiff failed to present any evidence that she or Lyft notified
defendant of the subject accident or any potential claims. The trial court also rejected as
speculative plaintiff’s claims that defendant’s heavily redacted claim file lacked dispositive
evidence of when Lyft first received notice from plaintiff. And finally, the trial court rejected
plaintiff’s claim that “unusual circumstances” warranted tolling of the statute of limitations
because plaintiff failed to cite any fraud, mutual mistake, or other conduct by defendant that could
have induced her action or inaction.
II. STANDARD OF REVIEW
1
Intervening plaintiff Central Home Healthcare Services filed its intervening complaint on
November 6, 2020. Thus, neither plaintiff nor Central Home Healthcare Services commenced an
action against defendant within the one-year statute of limitations period under MCL 500.3145(1).
-2-
Summary disposition is appropriate under MCR 2.116(C)(7), where the claim is barred by
the statute of limitations. MCR 2.116(C)(7). We review de novo the legal question of whether a
claim is barred by the statute of limitations. Citizens Ins Co of America v Univ Physician Group,
319 Mich App 642, 647; 902 NW2d 896 (2017). When reviewing a motion for summary
disposition challenged under MCR 2.116(C)(7), “the court considers all documentary evidence
submitted by the parties in the light most favorable to the nonmoving party.” Id. at 648.
A motion for summary disposition under MCR 2.116(C)(10) tests the factual sufficiency
of the complaint. Woodring v Phoenix Ins Co, 325 Mich App 108, 113; 923 NW2d 607 (2018).
When reviewing a motion for summary disposition challenged under MCR 2.116(C)(10), “this
Court considers all evidence submitted by the parties in the light most favorable to the nonmoving
party.” Id. The motion is properly granted “if there is no genuine issue regarding any material
fact and the moving party is entitled to judgment as a matter of law.” West v Gen Motors Corp,
469 Mich 177, 183; 665 NW2d 468 (2003).2
III. NO–FAULT STATUTE OF LIMITATIONS
Plaintiff first argues that her claim was not barred by the one-year statute of limitations
outlined in MCL 500.3145(1) because she notified her employer and defendant’s insured, Lyft, of
the accident. MCL 500. 3145(1) provides that:
An action for recovery of personal protection insurance benefits payable
under this chapter for an accidental bodily injury may not be commenced later than
1 year after the date of the accident that caused the injury unless written notice of
injury as provided in subsection (4) has been given to the insurer within 1 year after
the accident or unless the insurer has previously made a payment of personal
protection insurance benefits for the injury.
In other words, “under MCL 500.3145(1), a claim for PIP benefits must be filed within one year
after the accident causing the injury unless either of two exceptions applies: (1) the insurer was
properly notified of the injury, or (2) the insurer had previously paid PIP benefits for the same
injury.” Perkovic v Zurich American Ins Co, 500 Mich 44, 50; 893 NW2d 322 (2017). The one-
2
Plaintiff entirely misstated the standard of review for a motion for summary disposition under
MCR 2.116(C)(10) by relying on an outdated and overruled standard, arguing that “[t]he test is
whether the kind of record which might be developed, giving the benefit of reasonable doubt to
the opposing party, would leave open an issue upon which reasonable minds might differ,” citing
Linebaugh v Berdish, 144 Mich App 750, 754; 376 NW2d 400 (1985). Yet, 23 years ago, the
Supreme Court explicitly rejected that standard and reversed any cases citing to that standard.
Smith v Globe Life Ins Co, 460 Mich 446, 455 n 2; 597 NW2d 28 (1999). Almost two decades
ago, this Court also recognized that the old standard, requiring denial of a motion if “a record
might be developed” that could create a question of material fact, was no longer viable. Grand
Trunk W R, Inc v Auto Warehousing Co, 262 Mich App 345, 350; 686 NW2d 756 (2004). These
standards simply do not apply. Instead, “a party faced with a motion for summary disposition
brought under MCR 2.116(C)(10) is, in responding to the motion, required to present evidentiary
proofs creating a genuine issue of material fact for trial. Otherwise, summary disposition is
properly granted.” Smith, 460 Mich at 455 n 2, citing MCR 2.116(G)(4).
-3-
year statute of limitations protects against stale and protracted litigations and is “consonant with
the Legislative purpose in the No-Fault Act in encouraging claimants to bring their claims to court
within a reasonable time and the reciprocal obligations of insurers to adjust and pay claims
seasonably.” Pendergast v American Fidelity Fire Ins Co, 118 Mich App 838, 841; 325 NW2d
602 (1982).
It is undisputed that plaintiff filed her claim against defendant more than one–year after the
accident that caused her injury. It is also undisputed that the second exception does not apply
because defendant had not paid any PIP benefits to plaintiff for her injuries attributable to the
accident. As a result, plaintiff’s claim is time-barred under MCL 500.3145(1) unless the first
exception applies—whether defendant was properly notified of plaintiff’s injury within one year
following the accident.
The record shows that within one year after the subject accident, plaintiff notified her
personal insurer, AAA, and defendant’s insured, Lyft, of the accident and her alleged injuries.
Plaintiff testified that shortly after the accident occurred, she sent text messages to Lyft reporting
that she was in a motor vehicle accident while transporting a passenger and a Lyft representative
contacted her later that week. Plaintiff also testified that because she had difficulty contacting
Lyft, she applied and ultimately sued for PIP benefits from her personal insurer, AAA. It was not
until AAA successfully moved for summary disposition based on a policy exclusion that plaintiff
decided to pursue recovery from defendant. And even still, plaintiff commenced the underlying
action against defendant after the one–year limitations period.
The trial court found that plaintiff’s timely notice to an improper insurer, AAA, and her
employer, Lyft, did not constitute proper notice to defendant for the purposes of MCL 500.
3145(1). While the trial court did not explain why timely notice to AAA did not suffice, it noted
that “[t]his Court has expressly held that when an action is commenced against one party the §
3145 period of limitation is not tolled as to other potential parties who may not have been named
as defendants in the suit.” Hunt v Citizens Ins Co, 183 Mich App 660, 666; 455 NW2d 384 (1990),
citing Taulbee v Mosley, 127 Mich App 45, 47-48, 338 NW2d 547 (1983). The same holds true
even when a plaintiff argues a lack of knowledge or difficulty ascertaining the identity of the
appropriate insurer. Hunt, 183 Mich App at 666, citing Pendergast, 118 Mich App at 841–843.
Thus, we cannot conclude that plaintiff’s action against AAA provided defendant, an unnamed
party, with notice of her intention to claim benefits regardless of her alleged difficulty in
identifying defendant as the proper insurer.
To the extent that plaintiff argues that MCL 500.3145(4) permits notice to be given “to the
insurer or any of its authorized agents,” plaintiff failed to demonstrate how a contractual
relationship between defendant insurer and its insured, Lyft, would establish an agency
relationship within the meaning of the statute. See Boss v Wolverine Ins Co, 123 Mich App 175,
177; 333 NW2d 212 (1983) (holding that absent evidence that an agency relationship had been
created between defendant insurer and its insured, notice provided by an injured plaintiff to his
employer, the insured, did not constitute notice to the insurer).
IV. UNUSUAL CIRCUMSTANCES
Plaintiff further argues that “unusual circumstances” warrant tolling the statute of
limitations period and that defendant should be equitably estopped from denying coverage.
Specifically, plaintiff claims that unusual circumstances exist here because she sent timely notice
-4-
of the accident to Lyft and that she timely sued AAA and only learned of defendant as the proper
insurer through that litigation.
Plaintiff relies primarily on Devillers v Auto Club Ins Ass’n, 473 Mich 562, 590; 702 NW2d
539 (2005), which held that the one-year statute of limitations period in MCL 500.3145 may be
tolled under “unusual circumstances.” The Devillers Court explained that “[a]lthough courts
undoubtedly possess equitable power, such power has traditionally been reserved for ‘unusual
circumstances’ such as fraud or mutual mistake. A court’s equitable power is not an unrestricted
license for the court to engage in wholesale policymaking . . . .” Id.
Plaintiff failed to allege any unusual circumstances providing a basis to invoke judicial
equitable powers as a means to disregard the plain language of MCL 500.3145(1). The trial court
correctly noted that plaintiff had not cited any fraud, mutual mistake, or other conduct by defendant
that could have induced her action or inaction. Despite plaintiff’s contentions, providing timely
notice to an improper party does not equate to the unusual circumstances addressed in Devillers.
Devillers, 473 Mich at 590. Plaintiff’s inability to identify defendant as the correct insurer also
does not warrant tolling, as the trial court properly noted that this Court has specifically rejected
the argument that “an exception should be carved from the statute of limitations when, despite
diligent efforts, a claimant is unable to ascertain the identity of the responsible insurer.”
Pendergast, 118 Mich App at 840.3 See also Hunt, 183 Mich App at 666 (“The fact that Hunt, in
the exercise of due diligence, could not or did not identify Allstate as the appropriate insurer is not
enough to toll the period of limitation as to Allstate.”). Accordingly, there was no basis for the
trial court to invoke its equitable power absent a finding of fraud, mutual mistake, or other “unusual
circumstance.” Devillers, 473 Mich at 590. See also Senters v Ottawa Savings Bank, FSB, 443
Mich 45, 56; 503 NW2d 639 (1993) (finding that when a statute “is applicable to the circumstances
and dictates the requirements for relief by one party, equity will not interfere.”).
Affirmed.
/s/ Christopher M. Murray
/s/ Mark J. Cavanagh
/s/ Thomas C. Cameron
3
“Mindful of the possibility that, under some circumstances, the responsible insurer cannot be
identified within one year the Legislature enacted an alternative source of recovery. A person
entitled to No-Fault benefits who has difficulty in determining the identity of the responsible
insurer is given rights against the Assigned Claims Office under MCL 500.3174.” Pendergast,
118 Mich App at 843. This alternative was not timely exercised by plaintiff.
-5- | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485274/ | OPINION FOR THE COURT
LUTALI, Presiding Judge.
The issues having been duly tried and a decision having been duly rendered,
IT IS ORDERED, ADJUDGED, AND DECREED:
1. The name Manuita M. Fiame is certified to the Territorial Registrar for registration as the holder of the matai name title ATIULAGI, originating in the village of Ta’u, Manu’a, American Samoa, providing that by the time of registration and within 30 days after the decision has been final, the successful claimant shall resign any other matai title which he then holds.
2. After the decision in this case has been final, the Clerk of the High Court will return any exhibit to a party upon his application therefore.
3. Court costs in the amount of $25 per day of trial are assessed. Ape Poutoa is to pay the full costs thereof within 30 days after the decision herein is final.
4. Copies of this decision will be furnished to all parties and to the Territorial Registrar. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485275/ | DECISION DELIVERED FOR THE COURT
LUTALI, Presiding Judge.
This action concerns registration of the matai title Toeaina of Ofu Village, Manu’a Island, pursuant to Title VI of the Code of American Samoa. Laumilo V. Lagima and Faaea Talaalemotu withdrew their claims and objections.
Judgment having been entered, and upon the request of the parties hereto, the Court makes its Findings and Conclusions of Law as follows:
FINDINGS OF FACT
1. The title Toeaina, originating in the Village of Ofu, Mahu’a Island, American Samoa, became vacant on April 27, 1961, on the death of Toeaina Fagaese, father of Fetalia’i Toeaina.
*342. Each claimant has at least one-half Samoan blood.
3. Each claimant lives with Samoans as a Samoan.
4. Each claimant is a descendant of a Samoan family.
5. Each claimant was chosen by his immediate family for the title.
6. Each claimant was born on American Samoa soil.
7. All claimants have filed with the Territorial Registrar a written claim of succession to the title.
8. All of the claimants herein have filed with the Territorial Registrar a certificate signed by the Chiefs of the village that the matai name is an old matai title.
9. All claimants have filed with the Territorial Registrar a petition signed by not less than twenty-five blood members of the matai family over 18 years of age asking that the claimant be registered for the matai title.
10. The Territorial Registrar has given notice of the filing of the claims by posting a notice of filing in English and Samoan on the bulletin board in front of the Courthouse and in two public places in the village where the title originates for a period of over 60 days.
11. All parties are members of the Toeaina family.
12. No claims or objections were filed except for those named herein.
13. None of the claimants were supported by a majority or plurality of the clans of the Toeaina family.
14. The following claimants prevail over the other parties in the other considerations under Code of American Samoa 6.0107.
a. Hereditary right — Potasi Fagaese and Fetalia’i Toeaina each having one-half Toeaina blood in their veins. Potasi Fagaese is the son of the late Toeaina Peni Potasi and Fetalia’i Toeaina is the son of the last holder of the Toeaina title, Toeaina Fagaese. Both claimants prevail *35over Faufano F. Muasau who is the grandson of Toeaina Tela, and has one-fourth Toeaina blood in his veins.
b. Forcefulness, character, personality, and knowledge of Samoan customs — claimant Faufano F. Muasau prevails over the other claimants in this consideration.
c. Future value to family, village of Ofu and country —claimant Faufano F. Muasau prevails over the other claimants.
CONCLUSIONS OF LAW .
1. The Court has jurisdiction over the parties and subject matter.
2. When claimants are closely matched, it is conducive to family harmony to make the selection from a different clan than the clan which last held the title.
3. Under Code of American Samoa 6.0107 considerations No. 3 and No. 4 are entitled to more weight than consideration No. 1. Utu v. Aumoeualogo, Appellate Division 104 (Civil), 1964. Apelu Galea’i II v. Peni Poumele et al., L & T 1050, 1971.
4. That claimant Faufano F. Muasau is determined by law to have the highest right to the matai title “TOEAINA”. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485276/ | *37DECISION AND OPINION DELIVERED FOR THE COURT
GOSS, Presiding Judge.
This matter comes before the Court on Plaintiff’s petition for reversion of an area adjacent to Mapusaga School. Plaintiff’s predecessor was one of the Chiefs who on August 14, 1944, deeded the land to the Defendant to be used for school and church purposes. Plaintiff originally claimed reversion alleging that the property had not been used for school and church purposes. He later was permitted to amend his petition and alleged that the deed was in violation of Section 71, Subsection 2, Codification of the Regulations and Orders for the Government of American Samoa, 1937. Plaintiff having failed to comply with the Court’s Order for submission of briefs on the issue raised in the amended petition, the amended petition is stricken without prejudice. The matter is decided on the basis of the original petition. No ruling is made on the issue raised in the amended petition.
After consideration of the evidence herein and the law, the Court makes its Findings, Conclusions of Law and. Judgment as follows:
FINDINGS OF FACT
1. That the Plaintiff has changed his name since the commencement of this action, and he is now known as Moea’i Uiliata.
2. The Defendant is a corporation subject to the Church of Jesus Christ of Latter-Day. Saints. The Church operates Mapusaga. School adjacent to the premises herein concerned.
■ 3. As between the parties and all claiming under them, Defendant is owner of the said land by way of the deed of conveyance dated August 14,1944; Said land is described as follows:
*38A parcel of land in Tualauta County, American Samoa of approximately twenty-two acres formerly known as the village of old Mapusaga and more definitely described in Native Lease Book, Volume I, page 118 in the archives of American Samoa.
4. Defendant has had the effective use of the land since at least the turn of the century. Defendant leased the land from 1903 to the time of the said deed.
5. There is presently on said property a house used as living quarters for proselyting missionaries and such use is for Church purposes.
6. There is an L.D.S. cemetery maintained on the property and such has been in use and maintained since the turn of the century. This is a Church purpose.
7. Living accommodations are on the premises for selected Church personnel. This is use of the premises for Church purposes.
8. A cemented portion of the land is and has been used for athletic functions of the students at the adjoining Mapusaga School. This is school usage of the property.
9. The gasoline tank and pump maintained on the premises were purchased by the Church and served its purposes during and immediately after the construction of said school. All of this is Church and school purpose.
10. No persons are allowed to reside on the premises except at the sufferance of the Defendant. The Church allows selected Church and school personnel and their families to live on the premises. All persons living on the premises are there for a Church purpose or a school purpose.
11. There is not now and never has there been a garage on the premises.
. 12. Defendant has never sold or conveyed any portion of the property to any persons whomsoever.
*3913. At the time of the conveyance of said land to the Defendant it was being used for Church and school purposes. The use of the land since the 1944 deed has been similar to the use of the land from 1903 to 1944. In 1944 the grantors construed such usage as in the interests of the Church and school and Church and school purposes. No claims of any such violations were made for years. The use of the property by the Defendant has been consistent with Church and school purposes. There were no violations of any covenants nor agreements incident to said conveyance.
14. The Defendant paid to the grantors One Thousand ($1,000.00) Dollars in consideration for the land in question and such consideration was a fair market price for the land at the time of the conveyance to the Defendant in the light of Samoan custom at the time.
CONCLUSIONS OF LAW
From the foregoing Findings of Fact the Court concludes :
1. As between the parties and all persons claiming under them, under the deed of August 14, 1944, the Defendant is the owner of the property and entitled to possession thereof.
2. The Defendant’s use of said property is consistent with the provisions of the said deed.
ORDER
Pursuant to the foregoing facts and conclusions, and for good cause appearing, and upon motion of counsel for Plaintiff on file herein,
IT IS ORDERED, ADJUDGED AND DECREED:
1. The Plaintiff’s complaint and petition is dismissed with prejudice except as above set forth.
2. Within 30 days, Defendant shall pay to the Clerk of the High Court $25 for each day of trial.
*40... 3. The Clerk of the High Court is instructed to docket this order and furnish copies thereof to counsel. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485278/ | DECISION DELIVERED FOR THE COURT
LUTALI, Presiding Judge.
This action concerns the registration of the matai title “FUGAIPAOGO” originating in the village of Iliili, Tutuila, American Samoa. The Fugaipaogo title has been vacant since the resignation of the last holder of the title, FUGAIPAOGO JOE PEARSON, on March 20, 1971. John Viena filed his claim of succession to the Fugaipaogo title on March 29, 1971 with the office of the Territorial Registrar. Lealofi Uiagalelei filed his counter-claim to the matai title Fugaipaogo with the office of the Territorial Registrar on April 8,1971.
Judgment having being entered, the Court makes its Findings of Fact and Conclusions of Law as follows:
FINDINGS OF FACT
1. The matai title FUGAIPAOGO, originating in the *42village of Iliili, Tutuila, American Samoa, became vacant on March 20,1971, upon the resignation of FUGAIPAOGO JOE PEARSON.
2. Parties in this case consist of Claimant John Viena and Claimant Lealofi Uiagalelei.
3. No claims or objections were filed except by those named herein.
4. Each claimant has at least one-half Samoan blood.
5. Each claimant lives with Samoans as a Samoan.
6. Each claimant is a descendant of a Samoan family.
7. Each claimant was chosen by his immediate family for the title.
8. Each claimant was born on American Samoa soil.
9. Each claimant filed with the Territorial Registrar a written claim of succession to the title.
10. Each claimant filed with the Territorial Registrar a certificate signed by the chiefs of the village that the matai name is an old matai title in the village.
11. Each claimant filed with the Territorial Registrar a petition signed by not less than 25 members of his immediate family over 18 years of age asking that the claimant be registered for the matai title.
12. The Territorial Registrar has given notice of the filing of the claims by posting a notice of filing in English and Samoan on the -bulletin board in front of the Courthouse and in two public places in the village where the title originates for a period of over 60 days.
13. Both claimants are blood members of the Fugaipaogo family.
14. No claimant submitted evidence to the satisfaction of the Court that he was supported by a majority or plurality of the clans of the Fugaipaogo family.
15. In the first consideration under C.A.S. 6.0107, claimant John Viena prevails as follows:
*43a. John Viena is the blood son of Fugaipaogo Lemi who held the title in 1952 and he therefore has one-half C/2) Fugaipaogo blood in his veins. Lealofi Uiagalelei is the son of Lafi who was the daughter of Siatitui who was the daughter of Pasa who was the daughter of Inaleta who was the daughter of Fuga Malila and he therefore has one-thirty-second (1/32) Fugaipaogo blood in his veins.
16. In the third consideration under C.A.S. 6.0107, it is the considered opinion of the Court that while Lealofi Uiagalelei possesses more formal education qualifications and higher scholastic achievements, John Viena prevails over Lealofi Uiagalelei on those qualities of leadership and character that are immediately best suited for a person who is to be the matai of a family who has had no matai for many years, the last holder of the title having lived away from Samoa for several years, and we so find.
17. In the fourth consideration under C.A.S. 6.0107 we find of the title that Lealofi Uiagalelei prevails over John Viena on the value of the holder to the country; we find, however, that John Viena prevails over Lealofi Uiagalelei on the matter of the value of the holder of the title to the family and the village.
CONCLUSIONS OF LAW
1. The Court has jurisdiction over the parties and the ■subject matter.
2. Claimant John Viena is determined by law to have the highest right to the matai title FUGAIPAOGO.
The issues having been duly tried and a decision having been duly rendered,
IT IS ORDERED, ADJUDGED, AND DECREED:
1. The name John Viena is certified to the Territorial Registrar for registration as the holder of the matai name “FUGAIPAOGO” originating in the village of Iliili, *44Tutuila, American Samoa, providing that by the time of registration and within 30 days after the decision has been final, the successful claimant shall resign any other matai title which he then holds.
2. After the decision in this case has been final, the Clerk of the High Court will return any exhibit to a party upon his application therefore.
3. Court costs in the amount of $25 per day of trial are assessed. Lealofi Uiagalelei is to pay the full costs thereof within 30 days after the decision herein is final.
4. Copies of this decision will be furnished to all parties and to the Territorial Registrar. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485280/ | DECISION OF THE COURT
TUIOLOSEGA, Presiding Judge.
This action concerns the registration of the matai title “Tulifua” originating in the village of Taputimu, Tutuila, *50American Samoa, pursuant to Title VI of the Code of American Samoa. Magauli So’oto filed his claim to the matai title “Tulifua” on April 5,1971 with the Office of the Territorial Registrar. Mata’itoa Malau’ulu filed her counter-claim on April 27, 1971, and Pupi Lam Yuen Tulifua filed his counter-claim on June 15,1971.
The question was raised as to the validity of the counterclaim filed by Pupi Lam Yuen Tulifua, being filed approximately 10 days after the termination of the required period for registration prescribed by law under Section 6.0101. The evidence adduced indicates that the counter-claim entered by Pupi Lam Yuen Tulifua was not filed timely through no lack of diligence on his part.
The Court having reviewed the evidence herein, the law and the original decision, the Court hereby modifies its Findings of Fact, Conclusions of Law and original Decision as follows:
FINDINGS OF FACT
1. The matai title Tulifua originating in the village of Taputimu, Tutuila, American Samoa, became vacant since the death of Tulifua Epati who was the latest holder.
2. Each claimant has at least one-half Samoan blood in his veins.
3. Each claimant is a descendant of a Samoan family.
4. Each claimant lives with Samoans as a Samoan.
5. Claimants Mata’itoa Malau’ulu and Magauli So’oto were born on American Samoa soil, except claimant Pupi Lam Yuen Tulifua was born in Western Samoa.
6. Each claimant filed with the Territorial Registrar a written claim of succession to the title Tulifua.
7. The Territorial Registrar has given notice of the filing of the claims by posting a notice in English and Samoan on the bulletin board in front of the Courthouse, *51and in two. public places in the village where the matai title originates for a period of 60 days.
. 8. All claimants are blood members of the Tulifua family.
9. No claims or objections were filed except those named herein.
10. Claimants were selected by their immediate families.
11. Each of the claimants filed a certificate purported to have been signed by the chiefs of the village of Taputimu certifying that the matai title Tulifua is an old matai name in Taputimu as required under Section 6.0401.
12. The Tulifua family members held several meetings and no one was selected to hold the title.
13. Each of the three claimants filed a petition signed by at least 25 blood members of the Tulifua’s family who are 18 years old and who are residents of American Samoa, at the time of the signing of the petition, as required under Section 6.0104 of the Code of American Samoa.
14. None of the claimants was supported by a majority or plurality of the clans of the Tulifua’s family.
15. The following claimants prevail over the other parties in the other considerations under Section 6.0107 of the Code of American Samoa:
a. Hereditary right — Pupi Lam Yuen Tulifua prevails over Mata’itoa Malau’ulu and Magauli So’oto as the son of the Mataiumu who was the daughter of Tulifua Noaese and therefore he has one-quarter (xk) Tulifua blood in his veins. Magauli So’oto is the son of Selina Talamaivao who was the daughter of Vaotupu who was the daughter of Tulifua Taivai, and he has one-eighth (x/s) Tulifua blood in his veins. Mata’itoa Malau’ulu is the daughter of Fiasoso who was the daughter of Faaofo who was the daughter of Taufoai who was the son of Sione who was the son of *52Taunu’uga Tulifua and she has one-thirty-second (%2) Tulifua blood in her veins.
b. Magauli So’oto prevails over the other two claimants with respect to the issue of forcefulness, character, personality and knowledge of the Samoan customs, although other claimants showed excellent knowledge of the Samoan customs.
c. Magauli So’oto prevails over the other two claimants with respects to the issue of future value to family, Taputimu village and the country.
CONCLUSIONS OF LAW
1. The Court has jurisdiction over parties and the subject matter.
2. Under Code of American Samoa Section 6.0107 consideration #3 and #4 are entitled to more weight than consideration #1.
3. Pupi Lam Yuen Tulifua does not meet the residential requirements under Section 6.0101 of the Code of American Samoa and therefore he is not eligible to hold a matai title at this time.
4. The claimant Magauli So’oto is determined by the law to have the highest right to the matai title TULIFUA.
DECISION
IT IS HEREBY ORDERED, ADJUDGED AND DECREED:
1. The name Magauli So’oto is certified to the Territorial Registrar as the holder of the matai title Tulifua, originating in the village of Taputimu, Tutuila, American Samoa, providing that by the time of registration and within 30 days after the decision has been final, the successful claimant shall resign any other matai name which he then holds.
*532 After the decision in this case has been final, the Clerk of the High Court will return any exhibit to a party upon any application therefore.
3. Court costs in amount of $60.00 are assessed. Mata’itoa Malau’ulu is to pay $35.00 and Pupi Lam Yuen Tulifua is to pay $25.00 within 30 days after the decision herein is final.
4. Copies of this decision will be furnished to all parties and to the Territorial Registrar. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485282/ | The evidence submitted on behalf of the Plaintiff herein established:
1. The land in question was originally assigned in 1946 by Aifa’i Fagaima acting as the duly appointed representative of the matai to Ropati and Caroline Manuma and their children.
2. That at the time of the assignment in 1946 Aifa’i Fagaima, as a matter of courtesy, consulted with to be assigned, but such consultation was not required to make a valid assignment.
3. That the assignment made was unconditional and final.
4. That the Plaintiff herein failed to establish any factual or legal grounds upon which an action for eviction of the Defendants could be maintained.
*57IT IS THEREFORE, THE JUDGMENT OF THE COURT
I
The motion to dismiss is hereby granted with prejudice. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485283/ | *58As this case developed the Court was made aware of a great spirit of understanding and love by all parties.
And although there existed a point of apparent disagreement, as each witness took the stand it became more and more obvious that all parties sincerely hoped to end their disagreement, and once again live as a close and loving family united under God.
Each of the plaintiffs stated that they would have no objection to the defendant living upon the family lands if he, in turn, would give service to the senior matai and join with other members in family affairs. They not only would have no objections but would welcome him home.
The defendant, for his part, recognized the correctness of the plaintiffs’ position and stated in court, not only his willingness, but his desire to return to Iliili, to build a house there, and to serve the senior matai and join in family functions. He asked only to be given a chance. He did not ask that the conditions that have existed for years and to which the plaintiffs properly objected, be continued.
In effect, all parties said “come, let us join hands before God and be a family again.”
IT IS THEREFORE, THE JUDGMENT AND ORDER OF THE COURT:
I
That the defendant is hereby allowed to return and live on family lands under the supervision of the senior matai.
II
All necessary papers will be signed and agreed upon so as to, permit the repair of, or building of, a house by the defendant.
*59III
'. Defendant should serve his senior matai and participate in all family affairs and faiga faa-Samoa.
IV
Should the defendant fail to return to the family in Iliili, or fail to carry out the provision for services to the senior matai and participate in family functions within 90 days from the date this decision becomes final, then in that case he shall be permanently restrained and enjoined from making any use of the land in any manner, and from residing on any family land.
V
In view of the Findings and Judgment of the Court it is unnecessary to make any Findings on the genealogy and the Court does hereby specifically decline to do so. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485284/ | Evidence were presented by both parties, and the Court, after careful consideration of the evidence and the law, and it being fully advised, makes its Findings of Fact, Conclusions of Law, and Judgment as follows:
FINDINGS OF FACT
1. That the real property in question is a part of the estate of the Coleman family of Pago Pago, American Samoa.
2. That defendants came to live on the property by permission of Mabel Coleman also known as Tali Mabel, deceased, a member of the Coleman family.
3. That defendants are not related in any manner to the Coleman family.
4. That no assignment of land has been made to defendants; that defendants have lived on the property in question as licensee.
5. That Mabel T. Foster, daughter of Mabel Coleman or Tali Mabel, has now withdrawn permission granted defendants by her mother.
From the foregoing Findings of Fact, the Court hereby makes its Conclusion of Law.
*611. The petition to evict the defendants from the premises should be granted.
2. Mabel T. Foster, daughter of Tali Mabel, deceased, has the right to withdraw permission granted to defendants to live on the land by her mother.
IT IS THEREFORE ORDERED, DECREED AND ADJUDGED:
1. The petition to evict defendants from the property in question is hereby granted.
. 2. That defendants have 60 days to remove themselves and their property from the premises.
3. Court costs in the amount of $25 shall be paid by defendants within 30 days from the date this decision becomes final. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485685/ | On Motion to Dismiss or for Summary Judgment:
Since this motion and the accompanying memorandum and affidavit call our attention to facts not discernible from the face of the complaint and answer, we consider it as a motion for summary judgment. We assume the following facts:
In 1965 Marie Langkilde leased property from Lagafuaina Laisene. In May of 1966 Marie and her husband Marcus Langkilde entered into possession of the leased land. On October 29, 1968, Marie Langkilde purchased the land from Lagafuaina and the lease was cancelled.
In 1983 this action was filed by plaintiff Puailoa. The action was designated a civil action; it sought various sorts of relief including a declaratory judgment that 60 acres called Malaeimi *38was communal land of the Puailoa family and an injunction putting Puailoa into possession of the land. The named defendants were the estate of Lagafuaina, the executrix of the estate, and "Does I thru X." Plaintiff Puailoa swore that these unnamed defendants were occupying parts of the land but that he did not know their correct identities. For the purpose of this motion we assume the truth of this assertion and of the other assertions in the verified petition to the effect that Malaeimi was communal land of the Puailoa family which was improperly conveyed to Lagafuaina by his sister, the widow of a former Puailoa titleholder.
In July of 1987 the Court granted plaintiff’s motions to transfer this action to the Land and Titles Division and for an amendment of the complaint to substitute the names of ten persons, including Marcus Langkilde, for "Does I thru X."
On July 30, 1987, Marcus Langkilde was served with a copy of the amended complaint.
On August 4, 1987, Marie Langkilde died. Her estate has been admitted to probate; Marcus Langkilde is the executor. A notice to creditors to file claims against the estate within 60 days was published in a local newspaper on February 12, 1988, and no claims were filed. The Court has not yet approved a final order closing the estate and distributing Marie’s property to her heirs or legatees.
Defendant Marcus Langkilde makes this motion for summary judgment on three grounds: that the action is barred by the twenty-year limitation on actions to recover possession of real property provided by A.S.C.A. § 43.0120(6); that the action is barred by laches; and that the complaint should be dismissed for failure to join an indispensable party, Marie Langkilde.
I. The Statute of Limitations
Counsel for defendant Langkilde argues that plaintiff’s action against Langkilde, if any, accrued not with the sale in October of 1968 but with the lease in 1965 or when defendant and his late wife went into possession of the land in 1966. Counsel therefore contends that the twenty-year *39limitation period had already expired when "[t]his action . . . was filed July 8, 1987."
This contention must be rejected for several reasons:
1) The sale in 1968 gave rise to a new relationship between the Langkildes and the land in question, a new set of claims and defenses between plaintiff and defendant, and therefore to the accrual of a new cause of action.
Prior to 1968 the Langkildes’ right to occupy the land was incidental to whatever right Lagafuaina had. Any demand that the Langkildes leave the land would doubtless have been referred to Lagafuaina; and a successful lawsuit against him, while not technically binding on the Langkildes, would almost certainly have been dispositive of all issues in a subsequent action for their eviction.
After 1968 Marcus Langkilde claimed his right of occupancy through Marie and Marie claimed to possess the land in her own right. An action against Lagafuaina would no longer be dispositive of the result in an action against the Langkildes; indeed, Lagafuaina would not even be an indispensable party in such an action. Although the Langkildes’ possession of the land prior to 1968 might well count toward the thirty years’ adverse possession after which they would own the land as a matter of substantive law, this prior possession did not prevent the accrual of a new cause of action (a procedural question distinct *40from the substantive question of ownership1) when Marie Langkilde purchased the land in 1968.
2) In any case, even where possession is under a title courts have generally held that it must be open and notorious in order to trigger the beginning of the statute of limitations. If open and notorious possession did not begin prior to July 1967, the statute of limitations has not run even by plaintiff’s counsel’s reckoning. We have on the present record no evidence of the nature of the Langkildes’ possession in this period. We are told, for instance, that they built a home and resided on the land, but not when they began to do so.
3) Moreover, this action was filed not in 1987 but in 1983. Plaintiff and defendant disagree *41about whether plaintiff knew the Langkildes’ identity at that time. On a motion for summary judgment we are bound to view the facts in the most favorable light for the party against whom judgment is sought; assuming that plaintiff was unaware of the Langkildes’ identity, his designation of them as "Doe defendants" was sufficient to toll the statute of limitations.
4) Assuming arguendo that the plaintiff’s cause of action accrued in 1965 when Marie Langkilde leased the land from Lagafuaina, it would appear that the filing of suit against Lagafuaina in 1983 tolled the running of the statute against the Langkildes even if plaintiff knew their identities and did not serve them. Commencement of an action ordinarily suspends the running of the statute not only in favor of parties to the action but also in favor of those claiming under them. We recognize, of course, that since 1968 Marie Langkilde had a distinct claim of ownership in her own right. However, the only claim that existed twenty years before defendant Marcus Langkilde was named as a defendant in this action --- and therefore the only claim that could possibly serve as a basis for his reliance on the twenty year statute of limitations --- was the claim to possess the land as Lagafuaina’s lessee. The statute of limitations against plaintiff’s right to controvert that claim was suspended in 1983 when Lagafuaina was sued.
5) Finally, we note what-appears to be the broad holding of the Appellate Division in Reid v. Puailoa, 1 A.S.R.2d 85 (1983), to the effect that communal land can never be acquired through adverse possession by an individual. Id. at 88-89 n.1. Although the Court cites only A.S.C.A. § 37.0120, the substantive thirty year adverse possession statute, the appellant in Reid had sought to overturn the trial court’s holding on the ground that it also controverted A.S.C.A. § 43.0120(6), the twenty year statute of limitations at issue in the present case. See Reid v. Puailoa, AP No. 14-82, Reply Brief of Appellant Reid at 19. Since the appellant in Reid had occupied the land under a deed for 26 years, the issue seems necessarily to have been decided. The Court’s reasoning --- that the legislature’s enactment of various provisions restricting the conversion of communal land to individual land is inconsistent with a desire to allow such conversion to occur by operation of the *42adverse possession statute --- seems to apply with equal force to the statute of limitations.
Inasmuch as we have already decided the issue on far narrower grounds, however, we need not decide whether and how this holding of Reid applies to the present case.
II. Laches
The determination of whether an action is barred by laches entails a fact-intensive inquiry. At present we know almost none of the facts about this case. Since there is no evidence in the present record concerning the circumstances surrounding the delay in filing suit --- except plaintiff’s assertion, which we are bound to accept for the purpose of the present motion, that he did not even know the Langkildes were on his land until sometime after 1983 --- we cannot grant summary judgment on the ground of laches.
III. Failure to Join an Indispensable Party
When plaintiff named the "Doe defendants" in 1987 he named Marcus Langkilde rather than Marie, the record owner of the tract on which the Langkildes lived. Plaintiff’s counsel learned that the proper party defendant was not Marcus but the Estate of Marie Langkilde on or shortly after April 5, 1988, when defendant’s counsel filed answers to plaintiff’s interrogatories. Counsel for defendant Marcus Langkilde now maintains (1) that the Estate of Marie Langkilde is an indispensable party to this action and (2) that the Estate can no longer be joined as a party, since the 60 days in which creditors could have filed claims against the estate expired on or about April 12, 1988.
We agree that either the Estate or the heirs of Marie Langkilde should be joined in this action. The 60-day limit on claims by creditors of the Estate is not jurisdictional, and to allow a late claim under the present circumstances would appear reasonable. The property seems still to be registered in the name of the Estate rather than of the heirs or legatees. Plaintiff’s counsel seems first to have learned that his client might have a claim against the Estate via answers to interrogatories that appear themselves to have been *43filed about 90 days late. By then there was about one week left before the closing date for claims. Plaintiff’s counsel may not have known of the deadline, since the notice appears to have been published in the newspaper but not sent directly to plaintiff or his counsel.
Whether to allow a claim to be filed against the Estate, however, is a question for the judge in the probate case. We will allow the joinder of Marcus Langkilde in his capacity of Executor of the Estate as a defendant in this action, but we cannot guarantee that it will have the juridical effect desired by plaintiff. It is within the discretion of the judge in the probate case to distribute the property to the heirs or legatees without regard to a claim now filed by plaintiff. In that case, the heirs or legatees would receive only whatever interest Marie actually owned. That, in turn, is a question partly for determination in the present case. If necessary, her successors in interest can be joined as parties to this litigation.
Conclusion
The motion for- summary judgment is denied. Marcus Langkilde in his capacity as Executor of the Estate of Marie Langkilde is added as a party defendant.
It is so ordered.
It is important to remember that the limitation of actions and the doctrine of adverse possession, while the facts giving rise to them are usually intertwined, are separate laws with somewhat different underlying principles. They may therefore sometimes depend on different facts. Adverse possession concerns itself primarily with the nature of defendant’s possession of the land: someone who possesses for ten years under no title at all, then for twenty years under a deed from someone who does not own the land, may nevertheless acquire it so long as his possession is continuous, open, notorious, exclusive, and hostile for the whole thirty years. However, an important change in the nature of the possessor’s claim to the land or of the record owner’s relation to it may result in the accrual of a new cause of action and thus toll the statute of limitations. This means that an owner of record may, if various persons with some legal relationship to one another have been possessing the land for thirty years, have a procedural right to sue but nothing of substance to sue for. The case before us presents exactly the opposite circumstances: defendant Langkilde does not claim that he has acquired ownership of the land by thirty years’ possession, but only that plaintiffs --- even if they do own the property --- can no longer sue him to recover it. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485686/ | This case concerns land called Lugavai in Pago Pago. The facts are set forth in our opinion granting a partial summary judgment. We reaffirm those findings of fact, with the following additions and modifications:
1) Molitui Sepetaio, defendants’ ancestor in title, moved to California in 1955 or shortly thereafter.
2) In or around 1965 T.S. Muasau, plaintiffs’ ancestor in title, requested permission from Molitui Sepetaio to build a house on her property in Pago Pago. She not only gave permission but borrowed $2500 which she sent as a contribution toward the construction of the house.
3) Shortly after it was built this house was destroyed by the 1966 hurricane. It was replaced with a "hurricane house" which cost about $3500 to build. The construction was primarily paid for by the federal government, but T.S. Muasau took out a loan from the Development Bank (or from its predecessor institution, the Bank of American Samoa) to finance the remainder.
4) The purported signature of Molitui Sepetaio on the 1967 separation agreement seems dissimilar in almost every particular from her signature on two documents signed in 1951 and 1958 respectively. *45Recognizing that her terminal illness began only a few days after she is supposed to have signed the document, we have examined the purported 1967 signature carefully to see if this might explain the discrepancies. There are, however, several flourishes and other distinctive features on the signature that are not so well explained by Molitui’s age and weakness as by the hypothesis that someone else signed the paper. Moreover, the signature purports to be that of "Molitui Sepetaio Muasau." The unrefuted testimony of defendant Ferra that Molitui never went by the name "Muasau" is bolstered by the evidence of family history: her brother (T.S. Muasau) held the title Muasau but her father was Sepetaio. The weight of the circumstantial evidence is also against the theory that Molitui signed the document: it was registered with the Territorial Registrar in March of 1967, whereas the meeting with relatives in Los Angeles at which Molitui might conceivably have signed such a document did not take place until April. Her daughter, defendant Ferra, testified that Molitui had steadfastly resisted requests from T.S. Muasau to "put his name on the land." We conclude that the evidence preponderates against the genuineness of the signature.
5) On May 15, 1974, plaintiff Milaneta Roberts took out a loan for improvements on the house. The loan was in the principal amount of $8700 and was at 7 per cent interest. Payments of about $2700 were made prior to May 1979; these did not fully cover the interest, so that there was a balance in May 1979 of $9008. Since then payments of $8082 have been made. The remaining balance is $7098.97.
6) Defendant Ferra testified that when she returned to the island in 1978 or 1979 the house was already being rented to Island Beverage Company. Plaintiff Roberts testified that it was not rented at all until 1981. The former President of the Island Beverage Company has submitted an affidavit that the company did not rent the building until 1981, and we find that the evidence preponderates in favor of this conclusion.
7) Between 1981 and 1988 plaintiff Roberts received $11,000 in renfs on the house and a $3000 insurance award for damages to it. She spent $6000 on renovations and $600 on an insurance premium.
*468) During the same period (specifically between 1983 and 1986 when Island Beverage was paying rent to the defendants) the defendants received $10,500. They reported no expenses.
9) Plaintiff’s witness on real estate values seemed consistently to err on the high side. From his testimony about discounted future rentals, however, it is possible to arrive at an estimate of the fair value of the house. On the assumption that the house would rent for $650 per month, the value of the house and the land would be about $50,000. It was clear from his testimony that at least half this value is attributable to the prime business location of the land; in his opinion the house is in terrible condition and still needs $7000 worth of work before it can be rented. Moreover, the $650 figure is based on what plaintiff says an unnamed Korean is willing to pay her for the house. A few months ago it rented for $350 per month. We therefore estimate the value of the house, apart from the land, at $15,000.
We conclude that there is some equity and some iniquity on both sides. On the one hand, T.S. Muasau or someone in concert with him seems to have forged his sister’s signature. This goes a long way toward weakening the force of plaintiff’s argument that public policy requires "the stability of separation agreements" to be sedulously fostered.
There is in any case not much force in this argument, as we observed in granting partial summary judgment. A separation agreement does not of itself entail the landowner’s commitment to let the beneficiary remain on the land forever, or even for "the useful life of the building." For this very reason, a separation agreement rarely stands alone. Most often it is accompanied by the traditional obligation to let family members reside on communal land. The usual way to arrange for non-owners to build structures on individual land is by lease.1
*47The presence or absence of a separation agreement, or even the existence of a forged one, does not automatically tell the Court what to do about a house owned by one person on land owned by another. Our conclusion that Molitui did not sign the agreement is not as devastating to plaintiff’s case as it might be. However she felt about signing papers, Molitui was more than willing to let her brother live on the land and even to build a house there. Moreover, plaintiff Roberts appears to have believed in good faith that her father had a legal right to keep the house on the land and that he had validly conveyed that right to her. She believed this when she borrowed $8700 for improvements on the house.
In 1979 the two sides to this litigation were about even, except for the Development Bank loan. Molitui had paid $2500 for a house for her brother to live in; Muasau had put up a thousand or two; his daughter Mrs. Roberts had made payments of about $2700 in interest during her father’s lifetime; the federal government had also been persuaded to contribute. Muasau had been provided with a place to live out his life as Molitui had wished. Defendant Ferra owned the land; plaintiff Roberts was the equitable owner of the house at least to the extent of her investment in it. Had Mrs. Ferra wished to reoccupy the land she might have done so upon assuming the remaining balance on the Development Bank loan. Mrs. Roberts would have been entitled to this compensation even if Mrs. Ferra had no use for the house itself, since she had obligated herself in reliance on the erroneous but innocent impression that the house would remain on the land after her father’s death. If Mrs. Ferra had wished not only to occupy the land but also to acquire the house, then the measure of her compensation to Mrs. Roberts should have been the fair value of the house.
*48Since 1979 the arithmetic has been complicated by various transactions in which both sides have engaged. Since each side was willing to let the controversy simmer for several years while occupying the building and collecting rents, we need not allocate blame for the delay. We will assume, consistent with the testimony of plaintiff’s witness on real estate values, that the rental value of the house was about equally attributable to the house itself and to the prime business location of the land. On this assumption, plaintiff and defendant should share equally in the net proceeds.
Since 1979 the plaintiff has collected $14,000 and has spent $14,682. Defendants have collected $10,500. If defendant Ferra wishes to repossess her land but not to acquire plaintiff’s house, she should pay plaintiff Roberts $5591 (so that the two parties will have benefitted equally from the house and land between 1979 and 1988) and pay the remaining balance of $7098.97 on the Development Bank loan.
If Mrs. Ferra wishes to acquire the house as well as the land, she should pay its fair value. This we have estimated at $15,000. Of this amount $7098.97 should be paid to the Development Bank and $7901.03 (plus $5591 for interim rents) to Mrs. Roberts.
Order
Judgment will enter in behalf of defendant Estate of Molitui Sepetaio, enjoining plaintiff Milaneta Roberts and those in concert with her from going on the land Lugavai.
Judgment will enter in behalf of plaintiff Milaneta Roberts and against the defendants in the amount of $5591.
Judgment will enter against defendant Estate of Molitui Sepetaio in the additional amount of $7098.97. The Estate should discharge this part of the judgment within 60 days by paying Mrs. Roberts’ loan at the Development Bank or by arranging with the Bank for the assumption of the obligation and for the release of Mrs. Roberts from all further liability.
*49Finally, defendants should inform the Court within 60 days whether they wish to acquire plaintiffs’ house or to seek its removal. If they wish to acquire it, judgment will enter in the additional amount of $7901.03 against defendant Estate of Molitui Sepetaio. If the defendants do not wish to acquire the house, plaintiffs will be given the opportunity to remove it. If defendants do not wish to acquire it and plaintiffs do not wish to remove it, defendants will be ordered to destroy it.
It is so ordered.
We remain unpersuaded that Lugavai was "really" the communal land of the Muasau family, or even of the Sepetaio family. Notwithstanding the testimony of plaintiff that Muasau allowed the land to be registered in his sister’s name *47because of his great love for her, the evidence shows that he knew how to look after his own interests and often did so. We were unsuccessful in our efforts to adduce much information at trial about how and when Molitui acquired the land, but we believe it was hers. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485688/ | On Motion for Reconsideration:
On July 22, 1987, petitioner Oketopa Atuatasi was convicted of attempted rape. He was sentenced to a term of seven years in prison.
The Court then invoked the provision of a recent amendment to the territorial statute dealing with probation. This amendment allows the Court to exercise a degree of control over the circumstances of a prisoner’s incarceration by imposing a lengthy term of detention as a condition of probation. The execution of the seven-year sentence was suspended and Mr. Atuatasi was placed on probation for five years, on the condition that he actually serve two years and 121 days in the Territorial Correctional Facility.
It was an explicit condition of the sentence that "[djuring said period of incarceration defendant is not eligible for any release from the confines of the correctional facility for reasons other than emergency medical care, without prior written permission of this Court." American Samoa Government v. Atuatasi, CR No. 12-87, Judgment and Sentence, page 2.
*56On March 15, 1988 --- less than nine months after the imposition of his seven year sentence and of the two years and 121 days during which he was not to leave the correctional facility without written permission of the Court --- Mr. Atuatasi petitioned the Parole Board for release on parole. On March 22 his petition was granted. The Parole Board’s decision stated that Mr. Atuatasi had been "sentenced to two (2) years and 121 days imprisonment" and that he "has served one-third of his prison term, and is therefore eligible to apply for parole." He was then released.
Several weeks later the High Court probation officer charged with supervising Mr. Atuatasi’s probation happened to see Mr. Atuatasi at large in the village of Lauli'i. He filed an affidavit to this effect with the Chief Justice, who forwarded it to the Warden with a request for a response to the allegation that Mr. Atuatasi was at large.1
The Warden, after examining the Court’s judgment and sentence in the case and consulting with the Office of the Attorney General, ordered Mr. Atuatasi reconfined to the Correctional Facility. An Assistant Attorney General then called the Chief Justice to notify him that Mr. Atuatasi was back in custody. The Chief Justice ordered that Mr. Atuatasi’s attorney of record, the *57Public Defender, be notified immediately so that he could consult with his client and make such motions as he might deem appropriate. The Assistant Attorney General notified the Public Defender.
On May 18, 1988, exactly one month after Mr. Atuatasi was reconfined, he commenced the present action by requesting a writ of habeas corpus. The writ was requested at 3:30 p.m. on May 18 and issued immediately; it required the Warden and the other named defendants to "have the body of Oketopa Atuatasi to the High Court at 9:00 a.m. on May 20, . . . then and there to state why said Petitioner was being restrained . . . . "
The defendants accordingly delivered Mr. Atuatasi and explained his detention by reference to the facts recounted above. The Court ruled that the detention was lawful, a ruling we are now asked to reconsider.
Petitioner advances two arguments: that his detention is unlawful because it violates the Parole Board’s order that he be released, and that the procedure by which he was reconfined violated his right to due process of law.
I. The Relationship Between Parole and Probation
Turning first to the substantive argument, we conclude that the continued detention of Mr. Atuatasi is not unlawful. The Parole Board order was clearly outside the statutory jurisdiction of the Board and therefore does not bind the Warden or anyone else. Moreover, it conflicts directly with a Court order that does bind the Warden and the other respondents.
The Parole Board has authority to order a prisoner’s release only after he has served one-third of his sentence of imprisonment. A.S.C.A. § 46.2304. If a prisoner has not served this minimum term of imprisonment, the Parole Board lacks jurisdiction even to entertain his application. A.S.C.A. § 46.2702. The sentence of imprisonment in this case was seven years. Assuming that the Parole Board can ever acquire jurisdiction in this case, it will not acquire such jurisdiction until late 1989 when one-third of the seven year sentence will have elapsed.
*58As the Assistant Attorney General explained at the hearing held pursuant to the writ of habeas corpus, there is no reason to believe that the Parole Board wilfully acted outside its jurisdiction; rather, the clerical employee who prepared the application and the order simply made a mistake. The confusion arose from the Court’s decision to suspend execution of the seven-year sentence and impose a number of conditions. One of these conditions was actual detention of two years and 121 days --- one-third of the seven year sentence --- during which the Court would have sole authority to order any release. The Parole Board employee mistook this condition of probation for the sentence of imprisonment. Nobody caught the mistake until the Probation Officer saw the petitioner at large in Lauli'i.
Counsel for the petitioner suggests, however, that the Parole Board was not mistaken in its calculation of when one-third of the "sentence of imprisonment" had elapsed. Although the Court sentenced petitioner to a term of seven years, it suspended execution of this sentence. The suspension was on several conditions, but the only condition requiring actual confinement was for two years and 121 days (i.e., one-third of seven years). Counsel therefore argues that petitioner was eligible for parole after he had served one-third of this conditional confinement ---i.e., one-third of one-third of seven years.
The History of the Conditional Detention Statute
This argument ignores the unique history and function of the American Samoa statute dealing with detention as a condition of probation, A.S.C.A. § 46.2206. This statute was originally derived from similar provisions in the United States which typically allowed the Court to impose a very short period of detention in a jail or "halfway house" as an alternative to imprisonment. The judge would presumably impose such detention only in cases involving youthful offenders and others for whom lengthy confinement in an actual prison would be inappropriate or even counterproductive. See Masaniai v. American Samoa Government, 6 A.S.R.2d *59114, 120-22 (1987), and authorities cited therein.2 By 1987, however, detention as a condition of probation had come to be used for almost exactly *60the opposite purpose: to prevent prisoners deemed especially dangerous by the sentencing judge from being released almost immediately on furloughs, work releases, unsupervised and open-ended "work details," and other euphemistic devices by which convictions and sentences could be effectively cancelled.
Aside from the tendency of these devices to diminish the value of imprisonment as a way to deter and punish crimes, they had a corrosive effect on the whole criminal justice process by giving rise to a general impression in the community that it was unsafe to testify against a violent criminal or otherwise to assist in his prosecution. A convict’s access to various forms of early release depended more on having a personal relationship with some government official inside or outside the prison --- for a time it seemed that almost any official would do, and that almost every prisoner had some such relationship --- than with any formal criteria. These abuses tended to usurp not only the sentencing power of the Court but also the legitimate authority of identified, accountable executive officials to grant pardons and paroles in specified circumstances; they threatened "[t]o reduce the criminal justice system of American Samoa to the level of make-believe." American Samoa Government v. Dole, 3 A.S.R.2d 63, 65 (1986).
The Dole case and several other well-publicized instances in which violent or repeat offenders were released into the community soon after sentencing were the background of the 1987 amendment to A.S.C.A. § 46.2206. By then the Justices of the High Court were routinely using detention as a condition of probation in order to prevent the immediate release of dangerous offenders. By allowing certain prisoners to be classified as probationers subject to the supervision of the Court (rather than ordinary prisoners subject only to the supervision of the executive branch) the probation statute afforded a way for the Court to prohibit early release without Court approval. The maximum time allowable for such conditional detention was then one year. When the conviction was for burglary, assault with a deadly weapon, or even manslaughter, a sentence of one year actually served seemed a more effective punishment and deterrent than a five-year sentence that would be ignored. In such cases as rape and murder, however --- precisely the cases in which *61society needed the most protection --- one year of detention was simply not enough. In such cases the judge would generally give a "straight sentence" of fifteen years and hope the sentence would be enforced.
The 1987 Amendment
The 1987 amendment was an effort to cure this anomaly.3 It abolished the flat one-year limit on the period of detention that could be imposed as a condition of probation in felony cases, substituting a formula related to the maximum sentences for particular felonies. When the maximum sentence is for a term of years the sentencing judge may elect to suspend the sentence, put the prisoner on probation, and impose conditional detention for up to one-third of the maximum allowable sentence. When the crime is punishable by life in prison the maximum conditional detention is fifteen years.
The Current Statutory Scheme
The effect of the amendment is to allow a judge to prohibit the early release of a felon without giving him an unduly short sentence. This *62is done by providing two alternative modes of sentencing, under each of which the prisoner can be expected to serve the same amount of time as if he had been sentenced under the other:
1) The judge can impose a "straight sentence." The prisoner will then be eligible for parole after he has served one third of his sentence, or fifteen years in the case of a life sentence. According to established practice he will almost certainly be released at that time.
2) Or the judge can impose probation and conditional detention --- with the limit on detention figured according to the same formula as would otherwise determine eligibility for parole. The prisoner will still be released after he has served one-third of the statutory sentence, or fifteen years for a life sentence.
The only difference between the two modes of sentencing is in the degree of control exercised by the Court over the conditions of detention. If a prisoner is not deemed dangerous to the community and there is no other reason to fear his premature release, a "straight sentence" can be used. If it is especially important to ensure that the prisoner will actually remain in prison, probation and conditional detention are appropriate.
Parole and Probation as Alternative Remedies
The interpretation advanced by counsel for the petitioner would destroy the symmetry of this scheme. It ignores the obvious point of defining the formula for detention in probation cases almost identically with the formula for parole in "straight sentencing" cases. When Mr. Atuatasi was given probation and conditional detention, he effectively received the benefit of parole in advance by means of a two-thirds discount on his sentence. If at the time of sentencing the Court had been faced with the possibility that under the conditional detention option Mr. Atuatasi would serve only one-ninth of his sentence, we would have felt constrained to forego this option. Nine months would have been far too short a sentence for this crime. The suggested interpretation would *63thereby restore the pre-1987 situation in which conditional detention was useful for dealing with petty crimes but ineffective as a means of protecting society from really dangerous criminals. This is the very situation the current law was designed to cure.
In order to give the 1987 conditional detention law under which Mr. Atuatasi was sentenced the effect for which it was intended--indeed, in order to give it any effect at all--it is necessary to recognize that probation and parole are alternative rather than cumulative remedies. This is clearly implicit in the parole statute itself, which gives jurisdiction to the Parole Board only after the prisoner "has served" a specified portion of “the sentence of imprisonment." A.S.C.A. §§ 46.2703, 46.2304. A probationer, on the other hand, never begins to "serve" his "sentence of imprisonment"; the Court places him on probation only upon suspending either the imposition or the execution of his term. The probation statute clearly contemplate the "sentence of imprisonment" as something that will be served only in the event probation is revoked, and as something quite distinct from the "period of detention" that may be imposed as a condition of probation. See A.S.C.A. §§ 46.2203, 46.2206(3), 46.2209.
The judgment and sentence in Mr. Atuatasi’s case explicitly preserves this distinction: his "sentence" is seven years, whereas the "period of incarceration" of two years and 121 days is one of the "conditions" on which the sentence is suspended and probation imposed. American Samoa Government v. Atuatasi, CR No. 12-87, Judgment and Sentence, page 2.
The very earliest point at which Mr. Atuatasi can be said to have "served" one-third of his seven year "sentence of imprisonment" will be two years and 121 days after his imprisonment began. It seems more technically precise, however, to recognize that he has never begun serving the sentence at all and will not do so unless his probation is revoked. Parole is simply not available to a person whose sentence has been suspended on the condition that he serve a special term of detention equal to no more than one-third of that sentence.
*64The parole and probation remedies could be made cumulative rather than alternative by construing the term "sentence of imprisonment" in the parole statute as a generic reference to any detention imposed for any reason at all rather than as a specific reference to the "sentence of imprisonment" defined in the Code chapter on Imprisonment. We would adopt such a construction if it were suggested by the general statutory scheme, or if it seemed necessary to mitigate any unintended harshness in the 1987 amendment.
On the contrary, however, the statutory scheme demands that "sentence of imprisonment" be given a precise rather than a generic interpretation. The section of the parole statute dealing with eligibility for parole specifically incorporates the definition of "the sentence of imprisonment" contained in the imprisonment statute. A.S.C.A. §§ 46.2702, 46.2402. The probation statutes, even while they contemplate conditional "detention," clearly exclude the argument that a probationer is serving "the sentence of imprisonment." A.S.C.A. §§ 46.2203, 46.2206(3), 46.2209. And the 1987 amendment to the conditional detention section does not add to this scheme any sharp edges that need to be rounded out by broad judicial interpretation of the parole statute: as we have discussed, the amendment itself fully compensates incarcerated probationers for the unavailability of parole by limiting the period of their detention to the parole term itself. As a probationer serving a term of detention under the supervision of the Court, Mr. Atuatasi will be released on the very day he would have been eligible to apply for parole if he were an ordinary prisoner serving his seven-year sentence subject to the jurisdiction of the Parole Board.4
*65II. Procedural Due Process
Mr. Atuatasi argues that he should not have been reconfined without an arrest warrant and/or a hearing.
The purpose of requiring an arrest warrant is to ensure that no one will be arrested unless there is probable cause to believe he has committed a crime. The warrant constitutes the assent of a judicial officer to the proposition that probable cause exists. In this case there is no reason at all to believe that Mr. Atuatasi committed a crime subsequent to his improper release from prison. Rather, his confinement was pursuant to the unambiguous mandate of a valid Court order requiring that he remain in confinement for two years and 121 days and that he not be released without prior Court approval. This order was issued after a showing that there was not just probable cause to believe he had committed a crime, but proof beyond a reasonable doubt that he had done so.
Mr. Atuatasi’s release clearly violated the Court order, and the Warden was in continuing violation of the order for as long as Mr. Atuatasi remained at large. Dp until the time the Warden noticed the discrepancy between the Parole Board order and the Court order, his noncompliance with the latter was of course entirely understandable. As soon as the violation of the Court order was called to his attention he consulted with counsel and moved to conform his conduct to the order by taking Mr. Atuatasi back into custody. The order itself was issued pursuant to due process of law, and it could be enforced without further judicial assent to the proposition that Mr. Atuatasi had committed a crime.
Similarly, Mr. Atuatasi was not accused of violating the terms of his parole or probation, so he was not eligible for the hearings provided by *66statute for persons against whom such accusations were made. Rather, his situation was analogous to that of a convict who has been mistakenly released from prison by guard, an assistant warden, or some other official with no authority to order such release. Upon finding that such a person is at large the Warden first places him back in custody and then worries about a hearing. (The Assistant Attorney General, who advised the Warden to rearrest Hr. Atuatasi immediately upon learning of his release, testified at the hearing of this case that he regarded Mr. Atuatasi as dangerous to the community. This judgment is fully consistent with the nature of his crime and with the Court’s earlier order forbidding his release.)
Within a few hours after Mr. Atuatasi had been rearrested, the government did move to provide him with a hearing. The Assistant Attorney General notified the Chief Justice that Mr. Atuatasi was back in custody and asked whether there should be an immediate hearing. The Chief Justice responded that there was already a Court order requiring Mr. Atuatasi’s confinement, but that Mr. Atuatasi’s lawyer should be notified immediately so that he could request a hearing if Mr. Atuatasi so desired. The record reflects that this was done.
It is not clear why Mr. Atuatasi’s counsel of record, the Public Defender, did not request an immediate hearing. A hearing was in fact held as soon as Mr. Atuatasi requested one. Although Mr. Atuatasi’s new counsel did not request an expedited hearing, the Court expedited the hearing on its own motion. At the hearing the government was required to show everything it might conceivably have been required to show if a hearing had been held immediately before or after Mr. Atuatasi was taken back into custody. The petitioner himself was likewise given an opportunity to present such arguments and evidence as he might wish. The record is devoid of any suggestion of the slightest possibility that the outcome of the hearing would have been different if it had been held earlier.
If the procedure by which Mr. Atuatasi was taken back into custody fell short of due process, the provision of immediate notice to his counsel of record and of a plenary hearing immediately upon his request would seem to have cured this deficiency or at least rendered it moot. It is hard to imagine any curative measure that has not *67yet been taken. If the manner of Mr. Atuatasi’s rearrest was unlawful it would presumably result in the exclusion of any evidence obtained as a result of the rearrest, but that is not an issue in this proceeding. The Court could order Mr. Atuatasi rereleased so that a further hearing could be held prior to any rearrest, but the evidence and arguments at such a hearing would presumably be identical to those adduced at the previous hearing. Or the Court could announce a rule that any inadvertently released prisoner the manner of whose reconfinement is procedurally deficient will be released from the remainder of his term; but this seems harsh on the people the criminal laws are designed to protect.
Conclusion
Mr. Atuatasi’s continuing confinement pursuant to the Court’s judgment and sentence is lawful. Notice to his counsel of record upon his being taken back into custody, and the provision of an immediate hearing upon his request, fulfilled the procedural requirements of due process or at least rendered moot any procedural deficiencies in the manner of his reconfinement.
The motion to reconsider our dismissal of the action is denied. It is so ordered.
When this action came before the High Court for a hearing, the Chief Justice stated for the record the facts concerning his administrative involvement with the case and offered to disqualify himself from further involvement if either party so requested. He pointed out, however, that, if he were to disqualify himself it would be necessary for the Associate Justice to hear the case. This would leave no qualified member of the Appellate Division in the Territory until the next, regular sitting of an appellate panel consisting of judges from the United States. In view of the desirability of having a Justice of the Appellate Division present in the Territory to hear motions for interlocutory relief pending appeal in the event the trial court should deny such relief, both parties waived any objection to the participation of the Chief Justice as trial judge.
Our analysis of the function of A.S.C.A. § 46.2206 as amended in 1987 differs sharply from the analysis in Masaniai of the same statute prior to the 1987 amendment. The Appellate Division in that case construed the pre-1987 statute by reference to another pre1987 statute (A.S.C.A. § 46.2203) providing that probation should generally be imposed only in cases where the Court has determined that institutional confinement is not necessary, and by reference to opinions from United States courts relying on the intent of legislatures in the United States in enacting similar provisions. The Appellate Division was neither called upon to construe the post-1987 statute now before us, nor presented with the argument that the text and history of that statute suggest legislative intentions somewhat different from those underlying similar provisions in other jurisdictions. Our holding therefore does not conflict with the Appellate Division’s holding in Masaniai.
Our analysis of the function of A.S.C.A. § 46.2206 as amended also suggests a conflict with A.S.C.A. § 46.2203, the section providing that probation should not be given unless institutional confinement is deemed unnecessary. If we are correct in our view that the 1987 enactment was clearly designed to allow the Court to use probation in certain cases where institutional confinement is necessary --- and it is hard to imagine any other legislative purpose behind an enactment which explicitly provides for up to fifteen years’ detention as a condition of probation- — then the general rule stated in § 2203 cannot operate as a limitation on the Court’s power to imposes conditional detention under § 2206. It is axiomatic that in cases of otherwise irreconcilable conflict between statutes the later statute governs the earlier, the new law having implicitly amended all conflicting prior laws pro tanto. In any case, apparent conflicts are often reconciled by application of the rule that the more specific statute (in this case § 2206 as amended) governs the more general.
American Samoa does not keep verbatim records of legislative debates. That the amendment was a response to the concern of the Justices and others that conditional detention should be available as a means of preventing early release of dangerous criminals is, however, suggested by the text and structure of the statute itself: why else increase the maximum allowable detention so dramatically, from one year to fifteen? The amendment is linked to this concern by other evidence that is a matter of public record: Justice Murphy’s plea for reform in the Dole opinion in October of 1986 is one such record. Another is the written proposal by which the Governor suggested to the Fono what eventually became the text of the 1987 amendment, commenting that it had been suggested to him by the Chief Justice. In any case, the facts stated in the text are so widely known among those familiar with criminal justice in the Territory that they are a proper subject of judicial notice.
Counsel for Mr. Atuatasi also argues that the sentence in this case was unconstitutional in that it violates the Governor’s pardon power. This seems clearly wrong, precisely because the pardon power is constitutional and takes precedence over statutes including the probation statute. If the Governor were to pardon Mr. Atuatasi for his crime he could no longer be incarcerated. The parole power, in contrast, is statutory and can therefore be limited by statute. For the reasons stated in the text, the parole *65power could not be exercised in this case because its exercise violated not only the probation and conditional detention laws but also the jurisdictional provision of the parole statute itself. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485689/ | *69Defendant, Continental Insurance Company, (hereinafter "Continental") moves for summary judgment in the above entitled matter under the following circumstances: Plaintiff has filed suit against Continental as the insurer of defendant Silipa Leupule pursuant to the provisions of the compulsory third party liability automobile insurance statute, A.S.C.A. §8 22.2001 et seq., alleging property damages sustained as the result of the latter’s negligent operation of his vehicle. Continental denies any insurance coverage issued in behalf of the said Leupule and by way of affidavit, expands on its denial with additional factual declarations which we treat, for purposes of this motion, as being as established.
Continental declares that on March 3, 1987, the alleged date of the automobile collision, it had no record of any third party liability policy for Silipa Leupule and the vehicle allegedly involved. That while it had issued such coverage for the said defendant and his vehicle for the period of 3/4/86 to 9/30/86, that particular policy had lapsed or expired on the latter date and the same was never renewed.
In response to the motion, plaintiff argues that the policy claimed by Continental as having expired was still in full force and effect, as a matter of law, by virtue of the provisions of A.S.C.A. 8 22.2013. Plaintiff interprets this enactment as requiring an insurer to give 10 days prior notice of a policy’s expiration date to the Director of Administrative Services before such a policy can be said to have ceased and be of no effect. Section 22.2013 provides:
(a) The director of administrative services shall be notified by the insurance carrier of the cancellation of any motor vehicle liability policy of insurance at least 10 days before the effective date of such cancellation.
(b) In the absence of such notice of cancellation, the policy of insurance shall remain in full force and effect, except that any policy subsequently procured and certified shall on the effective date of its certification terminate the insurance previously *70certified with respect to any vehicle designated in both certificates.
(c) Upon receipt of the notice of cancellation, the license and all of the registration certificates of the person whose insurance has been canceled shall be suspended by the director of administrative services and shall remain so suspended until that person files a certificate of insurance.
Continental argues that the word "cancellation" as used in the enactment should not be confused with terms such as "expiration" or "lapse." The former is said to connote the situation where a policy is terminated prior to its stated term or period provided, whereas the notion of a policy lapsing or expiring means that the policy has arrived at the end of the term for which it was written. "Cancellation" is something that happens prior in time to an "expiration" and hence the terms are not synonymous. Continental submits that the enactment is confined only to terminations prior to the policy’s stated term and accordingly that A.S.C.A. § 22.2013 has no application in the circumstances herein.
To the contrary, plaintiff argues that the enactment’s use of the word "cancellation" means termination of the policy however effectuated, whether it be prior to the term stated in the policy or at the end of such term stated. In essence the argument is that an automobile insurance policy governed by the enactment has a term or duration which ends or terminates only upon the giving of 10 days advance notice to the Director of Administrative Services of a policy’s termination whether such occurs before or after the stated term has run. In justification, plaintiff points to underlying public policy which gave rise to the enactment.
DISCUSSION
The Court was referred to a number of cases from different jurisdictions concerning the use of the word "cancellation" in a number of other comparable enactments. Our conclusion after review is that there is very little in the way of general principles that may be derived from these cases. *71What we did note as apparent is that different jurisdictions, while having a common objective, utilized varying statutory controls for purposes of enforcement and thus a varying employment of language. For example, some enactments expressly distinguished situations requiring notice in advance of cancellation and situations requiring notice in advance of the need to renew. Some required notice to a public official only while others required notice to the insured as well. Whatever the particular notice requirements, the cases were generally of the consensus that statutory notices required strict compliance. In the final analysis the exercise significantly appears to be one of statutory construction and accordingly we look to A.S.C.A. §§ 22,2001 et seq.
The licensing of motor vehicles within the territory is an annual requirement (section 22.1004) and before any vehicle may be licensed the vehicle owner is required, among other things, to furnish "certification of insurance coverage as required by 22.2001 et seq. [the compulsory insurance statute]." A.S.C.A. § 22.1002(3). As no vehicle may be operated on the highways of American Samoa without valid licensing (section 22.1001), the cumulative effect of the above provisions is that permission to use the highways is made conditional to the maintenance of compulsory insurance.
A review of section 22.2003 reveals the obvious design of the compulsory insurance statute. That is facilitating compensation to the hapless highway victim who is injured or has sustained damage because of the negligent operation of a motor vehicle. The Act ensures some measure of economic solvency or financial responsibility of operators upon the highways to whom such innocent victims may look to for compensation. The public is thus afforded a realistic remedy against the inevitable tortious use of automobiles.
To secure these public ends the legislature has provided a number of built in controls and policing measures. The possibility of private dealing between the insured and insurer to defeat or avoid the statutory scheme will be of no effect. Section 22.2007 mandates a number of provisions deemed as incorporated in every policy governed by the Act. Among these implied provisions is a condition that a policy may not be "canceled or *72annulled ... by any agreement between the insurance carrier and the insured." Section 22.2007(b). Further, "no violation of a policy may defeat or void the policy.” Section 22.2007(c). Additionally, the terms and conditions of the insurance contract may not be in conflict with the provisions of the statute. Section 22.2007(f). Therefore, notwithstanding any agreements that an insurer and insured may otherwise reach, the statute preempts with regard to third party benefits intended by the Fono.
Similarly, section 22.2019 is another control measure to enhance the achievement of statutory objectives. This enactment makes any violation of the statute’s provisions a criminal offense punishable accordingly upon conviction.
Finally section 22.2013 (the text of which is above quoted verbatim) provides a manner of cancellation which if not complied with, will render the policy as continuing in full force and effect. The dispute here centers on the scope of this enactment and the operative effect of the word "cancellation."
We agree with Continental that the term "cancellation" as used in insurance law usually refers to termination of a policy prior to the expiration of the policy period by act or one or all of the parties; "termination" refers to the expirations of the policy by lapse of the policy period. See, e.g., Waynesville Security Bank v. Stuyvesant Ins. Co., 499 S.W 2d 218, 220 (Mo. 1973).
On the other hand, plaintiff contends that in the context of the territorial compulsory insurance statute the restrictive interpretation of "cancellation" as advanced by Continental "would seriously undermine the enforcement of American Samoa’s mandatory insurance law. " (Plaintiff’s Memorandum at P.3). In this regard we find that while plaintiff has correctly focused on the controlling factor at issue - the statute’s enforcement and thus proper implementation - we do not agree that his conclusions are a necessary consequence of the statute. Plaintiff’s primary contention is that the burden of reporting the failure of coverage as envisioned by the Act is placed upon insurance companies. That unless insurance companies are required to give advance *73notice of non-renewal (as well as cancellations) of policies, the supervising agency would not be able to enforce the statutory sanctions of suspending vehicle registration and licensing when the insurance requirements of the Act are thus not met. The assumption is that vehicle owners will not do the reporting, or are less reliable at reporting, and that some incentive is therefore available for vehicle owners to be tardy with renewal because of the difficulties presented the Director of Administrative Services in finding out when sanctions should be made to attach.
In reviewing the compulsory insurance statute, the enforcement shortfalls suggested by plaintiff, as necessitating a reading of section 22.2013 to include the reinstatement of a policy that has expired because the insurer has not given prior notice of non-renewal, are not evident. The statute has provided a number of ways for the Director of Administrative Services to become aware of policy expirations and hence occasion to apply sanctions. Firstly, we note that the annual licensing requirement for automobiles may not be met unless the vehicle owner provides certification of insurance. See section 22.1002(3). This enactment further contains the proviso "that such coverage will be effective for the period of the fvehicle’si license." (emphasis added). As may be seen the statute provides a common commencement and expiration date for both license and insurance and therefore the usual policing of vehicle licenses by traffic officers will also coincide as an enforcement measure with regard to insurance. The intertwining nature of the statute’s enforcement features are evident in section 22.1002 which provides that upon compliance with the requirements of licensing, the Commissioner of Public Safety shall issue the license applicant with two decals to be placed on the vehicle’s license tags, and which decals shall nominate the period of registration. Also section 22.1003 provides that such license tags shall be at all times visibly displayed on the front and rear of the vehicle. Thus, in the case of lapsed policies, legislative design has taken into account adequate public noticing measures to promote the attainment of social goals embodied in the compulsory insurance statute.
In addition to insurance certification requirements with the Commissioner of Public Safety *74for licensing purposes, section 22.2002 requires that certification consistent with the requirements of sections 22.1001 et seq., must also be made to the Director of Administrative Services as a condition of continuing registration. The combined effect of these provisions is also the placing of registration on an annual review basis by reason of section 22.1002(3). With all these control features the enforcement problems attributed by plaintiff to the statute are not at all apparent. If the Fono had attempted an additional enforcement control measure by also placing a reporting burden of the insurance industry with regard to anticipated policy lapses, it could have easily articulated this requirement more clearly as opposed to creating an ambiguity with a term otherwise clear in matters of insurance.
On the other hand enforcement measures would surely be frustrated had the Fono not addressed "cancellation" options normally available to contracting parties. The tripartite ends of the compulsory insurance statute clearly necessitate the need for legislative restrictions on the ability of an insurer and an insured to privately cut short a policy term which is publicly held out as terminating on a date determinable from an automobile’s license tags. Hence the legislature’s use of the term "cancellation" was purposeful and the intent is clearly to limit a reporting burden on one of the contracting parties in these normally private occasions.
For the foregoing reasons we hold that plaintiff is not entitled to relief under subsection (b) of section 22.2013 by reason of Continental’s failure to give advance notice of nonrenewal to the Director of Administrative Services. Motion granted.
It is so Ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485285/ | On June 30, 1971, Lefaoseu Leitu filed the necessary papers for a separation agreement for the purpose of *62building a Guest House on the described property and Lauatuaa, Malepeai, and Vimalefetau objected. This became L & T 1206.
On July 12, 1971, Lauatuaa, Malepeai, and Vimalefetau filed the necessary papers for a separation agreement for the purpose of building a Guest House on the described property and Lefaoseu objected. This became L & T 1212.
By agreement of all parties and the Court both cases were tried together.
I
Lauatuaa, Malepeai, and Vimalefetau make claim that their Guest House was first located on this property as far back as 1862. This is denied by Lefaoseu, but, in any case all parties agree that the Guest House of Lauatuaa, Malepeai, and Vimalefetau has been on the property since 1980. Lauatuaa, Malepeai, and Vimalefetau now wish to rebuild their Guest House.
II
Lefaoseu has a Guest House adjacent to the property in question, but is presently using it as a home for his family. He desires to have a Guest House and seeks to place it on the property presently used by Lauatuaa, Malepeai, and Vimalefetau.
III
For a period of at least 41 years no objection has been made by anyone to the Guest House of Lauatuaa, Malepeai, and Vimalefetau being located on the described property.
IV
The Court finds that Lefaoseu’s position that the original permission to build given to Peva Malepeai was personal to him is not persuasive.
IT IS THEREFORE, THE JUDGMENT OF THE COURT:
*63I
That L & T 1206 is hereby dismissed with prejudice.
II
That the objection filed by Lefaoseu in L & T 1212 is hereby dismissed and judgment is entered for the petition ers. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485286/ | FINDINGS OF FACT
I
That plaintiff and defendants in L & T 1176 discuss the true line between their properties, and at that time did walk the line accompanied by the District Governor. It was then agreed that the line should be from the pandanus trees on the main road in a line to a coconut tree on the south. That ■subsequently the dispute arose over the southern point agreed upon.
II
' That both parties now agree that the southern point is the point shown on the map and description filed in this case.
*64III
That from the testimony and the physical inspection of the property the true boundary on the main road or northerly point is the hedge or pandanus trees.
From the foregoing findings of fact the Court makes the following Judgment.
I
The boundary line between the plaintiff and defendants is established as beginning on the northerly end on the main road at the point of the hedge and pandanus trees and extending southerly to the southern point shown on the map filed here, dated October 16,1963. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485288/ | IT APPEARING TO THE COURT that the judgment heretofore entered on November 1st, 1971 in the above-entitled matters is incomplete in that the judgment *67rendered and announced by this Court was not completely followed; and
Whereas, through inadvertence and clerical error, it was omitted from the record of said judgment that said Fetaiaiga F. Kava and children may continue to occupy the premises they have been and are now occupying as long as they render services to their matai, Fanene Filo.
IT IS HEREBY ORDERED THAT THE JUDGMENT HERETOFORE entered by the Court in the above-entitled matters on November 1st, 1971, be, and the same is hereby, corrected to conform to the actual judgment announced and rendered by the Court by adding to said judgment the following:
Fetaiaiga F. Kava and her children may continue to occupy the premises they have been and are now occupying, by and through the sufferance of the Matai, Fanene Filo, and providing that they render services (tautua) to Fanene Filo; absence and ceasing such tautua, Matai Fanene Filo, in compliance with Samoan customs, may remove said persons from family land.
IT IS FURTHER ORDERED that this Order correcting the record of said judgment be entered nunc pro tunc to appear of record as of November 1, 1971, that being the date when said Judgment was originally made and entered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485290/ | This action concerns the registration of the matai title Faiivae of the village of Leone, Tutuila, American Samoa. Tuiloma S. Faiivae filed his application with the Territorial Registrar to be registered as the holder of the matai title Faiivae on June 1, 1972. Eni Hunkin filed his application *72on June 27,1972. Apelu Galeá’i filed his application on July-28, 1972. Agaese Tago filed his application on July 81, 1972. Anaoso Sio filed his application on July 31, 1972. Leseali’i F. Hunkin filed his application on August 1, 1972, and Aumavae Tusi filed his application on August 1, 1972. Each of the seven (7) applicants filed a petition signed by at least twenty-five (25) blood members of the Faiivae family supporting his candidacy as required under Sec. 6.0104 of the Revised Code of American Samoa.
Section 6.0101 of the Code sets out the basic qualifications which a person must have to be eligible to succeed to a matai title. It is clearly established from the evidence that each of the seven candidates is eligible to be registered as the holder of a matai title.
During the Pre-Trial Conference a stipulation was entered and agreed to by all seven candidates that each and every one of them is a descendant of the Faiivae matai title.
Section 6.0107 of the Code sets out the considerations which shall guide the Court in determining which of the opposing candidates shall be registered as the holder of a matai title. It reads as follows:
CONSIDERATION GIVEN BY THE COURT: In the trial of matai title eases, the High Court shall be guided by the following considerations, in the priority listed:
First: The best hereditary right in which the male and female descendants shall be equal in families where this has been customary, otherwise the male descendant shall prevail over the female.
Second: The wish of the majority or plurality of those clans of the family as customary in that family.
Third: The forcefulness, character, personality, and knowledge of Samoan customs.
Fourth: The value of the holder of the matai title to the family, the village, and the country.
*73Each of the seven candidates filed his pedigree with the Court and testified and argued with respect to his descent from a former holder of the Faiivae title. Candidate Tuiloma S. Faiivae is the son of Faiivae Vili II and he has
Faiivae blood. Candidate Eni Hunkin is the son of Katafelu the son of Faiivae Ioane and he has 1k Faiivae blood. Candidate Leseali’i F. Hunkin is the son of Fiavivini the son of Faiivae Vili I and he has x/4 Faiivae blood. Candidate Apelu Galea’i II is the son of Apelu Galea’i I the son of Saili the daughter of Tovea the daughter of Faiivae Tuitagivale and he has x/i6 Faiivae blood. Candidate Anaoso Sio is the son of Tulili the daughter of Melea the son of Saetoesua the daughter of Vaivaiopua’a the daughter of Faiivae Sooto and he has %2 Faiivae blood. Candidate Aumavae Tusi is the son of Aumavae Lui the son of Mele the daughter of Fatumalala the daughter of Vaivaiopua’a the daughter of Faiivae So’oto and he has V32 Faiivae blood. Agaese Tago is the son of Pai’a the daughter of Leti Tago the son of Neli the son of Tu’umasina the daughter of Faiivae Niulaititi and he has x/32 Faiivae blood.
It follows therefore that Tuiloma S. Faiivae with xb Faiivae blood in his veins prevails on the issue of hereditary right over all other candidates for the title. We hold that Eni Hunkin and Leseali’i Hunkin have equal rights with each possessing x/4 Faiivae blood and thus rank second on this issue. We further hold that Apelu Galea’i with x/i6 Faiivae blood ranks third, and Anaoso Sio, Aumavae Tusi, and Agaese Tago are on a parity in the fourth place with each having XÍ32 Faiivae blood.
In the matter of clans, there was conflict not only on the number of clans favoring each individual candidate, but there was also disagreement as to the number of clans in the Faiivae family.
*74The provision in the Code reads: “The wish of the majority or plurality of those clans of the family as customary in that family.” The Legislature of American Samoa, either in its wisdom or as a result of an oversight, failed to define the word “clan.” There are different theories as to what a clan means. Some argue that the number of clans in the family is determined by the number of offsprings of the original holder of the title, and that each of the children of the original holder who gets married, and has children constitutes a clan, no matter how long the title has been in existence or how many different families there are. Another theory is that there are as many clans in the families as there have been holders of the title, each holder of the title giving origin to another clan. Still another theory is that the number of clans depends on the number of families of the different title holders with the restriction that when two or more brothers or sisters hold the title consecutively, it should count only as one clan.
Candidate Tuiloma S. Faiivae presented evidence and testified that there are nine (9) clans in the Faiivae family, namely: Faiivae Pauna, Faiivae Sipai, Faiivae Leka, Faiivae Vili I, Faiivae II, Faiivae Ioane, Faiivae Leo’o, Faiivae Tialuga, and Matau, the female clan. He further testified that there are other clans in the Faiivae family, namely: So’oto, Tuitagivale, and Niulaititi. Candidate Eni Hunkin presented evidence that there are three (3) clans in the family. These clans are Leka, Ioane, and Vili. On the witness stand he admitted that there are other clans in the family, namely: Mele, Matau, Taeleifi, and Saetoesua. Candidate Agaese Tago submitted evidence and testified that Niulaititi and Liafasa are the only two (2) clans in the Faiivae family and both clans are supporting him. He admitted under oath that there are other clans in the family. Candidate Anaoso Sio presented evidence and *75testified and argued that there are six (6) clans in the Faiivae family. These clans are Saetoesua, Fatumalala, Yili, Mele, Ioane, and Tuitagivale. He testified, however, that he is supported by the Saetoesua clan only. Candidate Apelu Galea’i presented evidence and testified that there are three (8) clans in the Faiivae family and these clans are Taeleifi, Fatumalala, and Saetoesua. He testified that he is supported by the Taeleifi and Saetoesua clans. Candidate Leseali’i F. Hunkin presented evidence and testified that there are eight (8) clans in the Faiivae family, namely: Saetoesua, Fatumalala, Taeleifi, Matau, Ioane, Leta, Mele and Vili. He further testified that there are other clans descended from holders of the Faiivae title who preceded Faiivae Sooto.
This Court is reluctant to accept the testimony of Aumavae Tusi and others, as well as the arguments of their respective counsels, that the three (3) descendants of Faiivae Sooto; namely, Fatumalala, Saetoesua, and Tuitagivale, gave origin to the seven (7) clans presently recognized by the Faiivae family. They argued that Fatumalala married a Matthew Hunkin and begot five children who gave rise to five separate clans. They further argued that all the children of Saetoesua constituted one clan and those of Tuitagivale, another. Under this theory, descendants of Fatumalala with their five clans enjoy an unfair advantage, and in fact dominate the affairs of the Faiivae family over descendants of both Saetoesua and Tuitagivale. It is the unanimous feeling of this Court that all members of a Samoan family must enjoy equal rights and privileges under the family clan system. The fact that the last five (5) consecutive holders of the Faiivae title were all descendants of Fatumalala clearly shows their dominant position in affairs of the Faiivae family. We believe that descendants of Saetoesua and Taeleifi must *76have the same rights and privileges in the affairs of the Faiivae family as the descendants of Fatumalala.
This Court does not propose — and it would not, even if it could — to advise the Legislature on the wording of this or any other statute, but we believe that until the term “clan” is defined or clarified, the question of interpretation will be up to the Court, and we would not hesitate to give it a definite interpretation when it shall become absolutely necessary unless the Legislature makes its own clarification.
Three of the candidates testified that they are supported by the Saetoesua clan; two testified that they are supported by the Tuitagivale clan; two testified that they are supported by the Ioane clan; another two testified that they are supported by the Niulaititi clan; still another two testified that they are supported by the Fatumalala clan.
If the Court is to believe the evidence, by the majority of the candidates, that various members of the same clan favored different candidates, then this Court is confronted with the necessity of disregarding consideration 2 of R.C.A.S. Sec. 6.0107, “The wish of the majority or plurality of those clans of the family as customary in that family,” the reason being that one clan cannot be dissected or divided amongst several candidates. As a matter of fact, Ivi S. Pele, counsel for Apelu Galea’i, and Mariota Tuiasosopo, counsel for Eni Hunkin, specifically asked the Court to disregard the clan consideration. This Court is discounting the issue of the number of clans, not because we accept the proposal put forth by counsels Ivi S. Pele and Mariota Tuiasosopo, but because this Court can arrive at a definite selection of the holder of the title Faiivae without the necessity of committing itself to any definition of the word “clan.”
*77This Court is of the unanimous opinion that all seven (7) candidates rank equally in the number of clans favoring them and that the consideration of the number of clans favoring each candidate should be and the same is hereby discounted for the purpose of selecting the new holder of the Faiivae title.
After considering the testimony, evidence and arguments, and taking into specific account the demeanor, personality, presence of mind, the clarity, speed and correctness with which the answers were given, the sincerity and self-confidence, and other qualities reflected from the speech and behavior of the individual candidates on the witness stand, it is the unanimous opinion of this Court that Agaese Tago and Apelu Galea’i II are on a parity in the first place in the matter of forcefulness, character, personality, and knowledge of Samoan customs. This Court is further of the opinion that Eni Hunkin, Aumavae Tusi, and Tuiloma S. Faiivae are equal in the second place, and that Leseali’i F. Hunkin and Anaoso Sio rank third in the same category.
Agaese Tago testified that he is' 33 years old; that he is now the Government Comptroller; that he receives a salary of about $17,400.00; that he is in charge of seven (7) different activities in the Department of Administrative Services in the Government of American Samoa; that he directly supervises 70 employees. He further testified that he is a college graduate with a degree in accounting; that he also did internship work in accounting before returning to American Samoa. He further testified that he is the President of the American Samoa College Foundation; that he belongs to other social groups and activities; that he at one time taught at the Community College. He further testified that he renders services to the Faiivae family via Sesi and Poloa; that he is not a matai; that he *78has never been a matai; and that he is married and lives in Tafuna.
Apelu Galea’i II testified that he is 43 years old; that he is at present the Director of the Office of Tourism of the Government of American Samoa; that his present salary is about $12,000.00; that he was directly responsible for the development of the golf course. He testified that he is a college graduate with a degree in speech communication; that he graduated from the local high school; that he attended the Suva Medical School but did not finish it. He further testified that prior to his employment by the government he was a businessman; that he established the American Samoa Commission Agency and other businesses which are still in operation; that he receives dividends from these companies; that he also receives an income from real estate. He further testified that he is a lay preacher in his church; that he is involved in youth development programs; that he is a member of other social and political groups. He further testified that he was a matai for eight (8) years in the Faiivae family holding the title Tuitagivale, a lesser matai in the said family; that he is familiar with the affairs of the family and participates actively in family projects; that being the youngest matai he was always given the responsibility of distributing food in family gatherings; that he renders services to the Faiivae title. He further testified that he is married; that his wife has an income; that he has children and resides in the village of Aua at the present time.
Eni Hunkin testified that he is 57 years old; that he is at present attending the Community College; that he is the Student Body President; that he attended the Marist Brothers School and later the Léala Junior High School; that he receives a check from the Veterans Administration for educational benefits under the G.I. Bill. He testified that *79he served in the United States Navy for about twenty (20) years; that he retired with an Honorable Discharge; that he resided in the states after retirement from the Navy to send his children to school; that while in the Navy he was awarded several commendations; that he also received the good conduct medal; that he was a radio technician; that he also receives a retirement check from the Navy. He further testified that he holds several important positions in his church. He further testified that he renders services to the Faiivae family; that he resides at Vailoatai; that he is married and four of his children are college graduates; that he is not a matai and has never been a matai.
Aumavae Tusi testified that he is 52 years old; that he is now a student in the Community College; that he is the President of the Veterans Group in the school; that he attended the Marist Brothers School; that he receives a check from the Veterans Administration for educational benefits under the G.I. Bill; that in addition he also receives a retirement check from United States Marine Corps. He testified that he served in the United States Marines from which he retired with an Honorable Discharge. He testified that at one time he was employed by the government as an electrician; that he resigned to go into private work; that he still has his private electrical services. He further testified that he renders services to the Faiivae family; that he participates directly in affairs of the said family; that he assisted the late holder of the Faiivae title in building the present guest house. He further testified that he is a member of the Leone Water Commission; that he often takes his own children to clean the village reservoir. He further testified that he is a member of the village curfew committee; that he uses his own car to inspect the village during curfew hours. Lastly he testified that he has *80rendered services to the Faiivae family; that he is married; that he resides in Leone.
Leseali’i F. Hunkin testified that he is 52 years old; that he is the leading young man for the Faiivae title; that he resides in the Faiivae family; that he has rendered services to the Faiivae family all his life; that he has never left the family. He testified that he attended the Marist Brothers School and further testified that he works for the government of American Samoa as a heavy equipment operator; that his take home pay every two weeks is about $147.00. He further testified that he has a plantation; that he sometimes sells his produce in the market; that at one time he earns about $179.00 one week. He testified also that he is not a matai, and that he has never been a matai; that he is married and have [sic] children.
Anaoso Sio testified that he is 48 years old; that he lives in Leone; that he is a matai in the Tuiteleleapaga family; that he has been a matai for about 7 years. He testified that he is employed as a carpenter; that his take home pay is approximately $114.00 every pay [sic]. He testified that he attended the Marist Brothers School; that he later attended vocational classes at the Le’ala Junior High School. He further testified that he is married and lives in Leone; that he renders services to the Faiivae family; that he participates in Faiivae family affairs.
Tuiloma S. Faiivae testified that he is 66 years old; that he is the proprietor of the Island Moon Bar in Fágatogo; that he is a matai in the Faiivae family. He further testified that he retired from the Navy with an Honorable Discharge; that he receives a retirement check; that he also receives an income from the bar, although he was unclear as to the exact amount. He further testified that he attended the Marist Brothers School. He further testified that he renders services to the family; that he is the only candidate *81presently residing on Faiivae land; that he is married and he has children.
With respect to the issue of the value of the individual candidate to the family, the village, and the country, we think, from the evidence and the testimony, particularly in view of the capacity for leadership already demonstrated by Agaese Tago and Apelu Galea’i II, that these two candidates would be of more value to the family, the village, and the country. It is our unanimous opinion that they rank first in this consideration. It is further our unanimous opinion that Eni Hunkin and Aumavae Tusi are equal in the second place, and that Tuiloma S. Faiivae, Leseali’i F. Hunkin, and Anaoso Sio are on an equality in the third place.
We note from the evidence that Agaese Tago, 33 years old, and Apelu Galea’i II, 43 years old, are college graduates, and that each of them is occupying a position of leadership and great responsibility not only in the government but in other social capacities. This Court is aware that being a college graduate is no guarantee whatever for leadership. Some college graduates become leaders, most do not. The evidence before the court shows, however, that both Agaese Tago and Apelu Galea’i II have already demonstrated and proven their leadership qualities. That the other candidates may become leaders in the future is pure conjecture.
We further note from the evidence that Eni Hunkin, 57 years old, and Aumavae Tusi, 52 years old, are both students in the Community College, and that they will continue to be in school during the next two or three years. We also note from the evidence that Tuiloma S. Faiivae, 66 years old, is obviously in his declining years, and that Leseali’i F. Hunkin, 52 years old, and Anaoso Sio, 48 years *82old, have not advanced with any significance during the past 2 5 years.
This Court has said many times before that the value of the holder of the matai title to the family, the village, the people of American Samoa and the government depends primarily upon his ability to handle the affairs of the family and that in turn depends upon his forcefulness, character, personality, and capacity for leadership. Fa’amalolo et al. v. Liligo Letuti, No. 25-1956 (High Court of American Samoa). Pito Tufono v. Kisi, No. 17-1958 (High Court of American Samoa). Demonstrated leadership, in our opinion, takes precedence over potential leadership.
We have already stated that in the matter of the hereditary right, Tuiloma S. Faiivae ranks in the first place and thus prevails over Eni Hunkin and Leseali’i F. Hunkin who are equal in the second place, and Apelu Galea’i II who ranks third, and Agaese Tago, Aumavae Tusi, and Anaoso Sio who are on an equality in the fourth place.
We also have already stated that all seven (7) candidates rank equally in the consideration of the number of clans favoring each candidate. This holding has the effect of this consideration being discounted in the selection of the Faiivae title holder, leaving only the remaining three issues to be considered.
Since we hold that Agaese Tago and Apelu Galea’i II are equal in the first place in the third and fourth issues, with Apelu Galea’i II prevailing over Agaese Tago in the first issue (hereditary right), Tuiloma S. Faiivae ranking first in this issue, it follows therefore, that he, the said Apelu Galea’i II, should be registered as the holder of the Faiivae title attached to the village of Leone, Tutuila, American Samoa. However, before he can be registered as the Faiivae, he must resign from any other matai title he may be presently holding.
*83Accordingly, it is the unanimous decision of this Court, and it is hereby ORDERED, ADJUDGED AND DECREED that Apelu Galea’i II be registered as the holder of the matai name Faiivae, upon his resignation from any other matai title he may presently hold within 30 days from the date of this Decree.
The Territorial Registrar will be advised of this Decision. Costs in the amount of $100.00 are hereby assessed against Tuiloma S. Faiivae, Eni Hunkin, Leseali’i F. Hunkin, Aumavae Tusi, Agaese Tago, and Anaoso Sio, each of them paying the amount of $16.67 within 15 days from the date of this Decree. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485293/ | This action concerns the registration of the matai title Alalamua originating from the village of Ta’u, Manu’a. Claimant Lagoo filed his claim with the Office of the Territorial Registrar on June 30, 1972. Moetoto Alalamua, hereinafter called Saveaena, filed his claim on July 31, 1972. Fagavaa filed his claim on August 7, 1972. Savini filed his claim on August 14,1972.
Each of the claimants, with the exception of Lagoo, filed a petition signed by 25 persons purported to be blood members of the Alalamua family as required under Section 6.0104 of the Revised Code of American Samoa. Lagoo filed a petition signed by only 20 persons claimed to be blood members of the Alalamua family. However, he also filed an affidavit showing that his family does not have a sufficient number of blood members qualified to support his claim as required under Section 6.0104 of the Revised Code of American Samoa.
*95Section 6.0101 of the Revised Code of American Samoa sets out the basic qualifications which a person must have to be eligible to succeed to a matai title. The evidence clearly shows that each of the four claimants is eligible to be registered as the holder of a matai title.
Section 6.0107 of the Revised Code of American Samoa sets out the four issues which shall guide the Court in its determination which of the opposing claimants shall be registered as the holder of the Alalamua title. This Section reads as follows:
Sec. 6.0107 — CONSIDERATION GIVEN BY COURT:
In the trial of matai title cases, the High Court shall be guided by the following considerations, in the priority listed:
1. The best hereditary right in which the male and female descendants shall be equal in families where this has been customary, otherwise the male descendant shall prevail over the female.
2. The wish of the majority or plurality of those clans of the family as customary in that family.
3. The forcefulness, character, personality, and knowledge of Samoan customs.
4. The value of the holder of the matai title to the family, the village, and the country. (Public Law 7-38,1962.)
On the issue of hereditary right, each of the four claimants filed a pedigree and testified before the Court as to their respective right to the Alalamua title. Lagoo filed a pedigree showing that he is the blood-son of Alalamua Tauileva. He has one-half (xh) Alalamua blood in his veins. Savini filed a pedigree showing that he is the blood-son of Simealeaga who was the blood-daughter of Pele’ese who was the blood-daughter of Lagisolia who was the blood-daughter of Alalamua Vaiotoga. He has one-sixteenth (Vié) Alalamua blood in his veins. Fagavaa Sea filed a pedigree showing that he is the son of Avaloa who was the blood-son of Mua who was the blood-son of Pele’ese who was the blood-daughter of Lagisolia who was the blood-daughter of Alalamua Vaialoa. He has one-thirty-second *96Ck) Alalamua blood in his veins. Saveaena did not file a pedigree as ordered by the Court; nevertheless, he testified that he has one hundred percent (100%) hereditary right because he once held this title. Our examination shows that he did so hold it for five years, between March 2, 1945 and February 26, 1950; however, he was removed from the title by a holding of this Court after being petitioned to do so by certain members of his family. Counsel for Saveaena still argues that Saveaena has one hundred percent (100%) hereditary right citing Ailua Maga v. Ativalu Tago, Civil (1955). In that case the Court indeed said as Saveaena contends that “even though this may be the first time any candidate for a title has been found to hold 100% hereditary right, nevertheless, we believe Objector Ailua Maga is entitled to such a finding. . . . The fact that he was later removed by petition of the family cannot change the fact that he once held the title.” This Court is of the unanimous opinion that the Ailua Maga v. Ativalu Tago holding is contrary to the basic idea and beliefs of the Samoan people with respect to hereditary right to matai titles. It is the considered opinion of this Court, the members of which are well familiar with the Samoan custom, that the title, not the person, is the most important thing in the matai system. A title holder who is removed by the Court or by the village council forfeits all his rights and privileges, conversely a title holder who voluntarily relinquishes a title to another member of the family by his own free will or by the wish of the family continues to enjoy some privileges and a certain amount of recognition in affairs of the family as a former holder. A title holder who is removed by action of the Court will no longer enjoy a 100% right thereto, but he will revert back to his original position of hereditary right existing prior to his ascension to the title. Whenever a person subsequently takes a title, he will immediately be considered to have 100% right upon *97assumption of the title irrespective of his original percentage of hereditary right. In view of our ruling, Ailua Maga v. Ativalu Tago, supra, is hereby overruled.
It is our finding that Lagoo, being the blood-son of Alalamua Tauileva, and having one-half (^) Alalamua blood in his veins, prevails over Fagavaa, Savini, and Saveaena on the issue of hereditary right.
At this juncture, counsel for Fagavaa moved the Court to withdraw the claim filed by his client Fagavaa stating that his client no longer wishes to continue as a party. The motion was granted by the Court and Fagavaa ceases to be a party in this case.
With respect to the issue of the wish of the majority or plurality of the clans as customary in the family, it is the opinion of the Court that the testimony and the evidence failed to establish clearly which of the three claimants had the support of the majority or plurality of the clans, or which were the customary clans of the Alalamua family. Lagoo testified that there are only two clans in the family. These clans are Tauilima and Tauiafa and both are supporting him. Saveaena testified that are three clans namely Matua, Laufalasii, and Saveaena. All three clans are supporting him. Savini claims that Silia and Lagisolia are the only clans in the family. Only the Silia clan is supporting him. The Court finds, in view of the conflicting and controverted testimony and evidence, that the issue must be disregarded in the consideration of which claimant is supported by the majority or plurality of the clans.
On the issue of forcefulness, character, personality, and knowledge of Samoan custom, it is the unanimous opinion of this Court, after having heard the testimony, evidence, and arguments, and after having given specific observation to the behavior of each claimant on the witness stand, that Savini prevails over Lagoo and Saveaena on this issue.
*98Savini attended Papatea School and the Faife’au School in Ta’u. In 1925 he graduated from the Teachers Training School. He taught school from 1922 until 1928 and at the same time served as Assistant Administrator to the District Governor. In 1948 he was selected to be the Pulenuu of Ta’u village. He again worked as Secretary to the District Governor for many years until he retired in 1971. As a young man he was the leading member of the Aumaaga for Alalamua Silia. He is a Deacon in the Church and performed other functions for the Pastor and the village church. He was a member of the Flag Day Committee for ten years. In 1967 he was a prison warden. During all the years when the Alalamua title was vacant, he took the leadership of the family in all matters pertaining to funerals, church dedications, and many other functions in which the Alalamua family was obligated to participate under the Samoan custom. On many of these occasions he provided the Mavaega or the best fine mat on behalf of the family. He receives Social Security and Retirement checks. He also earns about $136 per month as foreman of the Ta’u Airport project. He gets a monthly allotment check from his son in the Army.
Lagoo attended the Ofu Elementary School and later Poyer Junior High School. From 1941 to 1956 he was employed by the Government of American Samoa, and from 1956 until the present time he has been working for Standard Oil of California. He operated a small store between 1968 and 1970. In 1965 he started a General Contractor business. Lagoo is a past president of the Parent Teachers Association and a Deacon in his Church. At one time he donated “sash windows” for the Ta’u Church. He claims to have participated in family affairs, as well as affairs of the village and country although he did not specifically state how he participated in village and country *99matters. He earns about $4000 annually from Standard Gil of California. He resides at Fagaalu.
Saveaena attended Papatea School, Poyer School, Marist Brothers School, Leilehua High School, Church College of Hawaii, and Leeward College. At one time he was employed as a Court Clerk, taught in the schools both in Western Samoa and American Samoa, worked as extension agent for the Department of Agriculture, and as a teacher in the Veterans Administration Program. He operated a grocery store, a bakery, and he also engaged in farming. Also at one time he was a Clerk for the House of Representatives and later became a member of the House. Saveaena is a Deacon in the Methodist Church. He earns approximately $2880 as a teacher in the public schools. He also receives financial assistance from his son and a daughter in Hawaii. He has an income from his plantation.
On the issue of the value of the holder of the title to the family, village, and country, it is the unanimous opinion of this Court that Savini will be more valuable to the Alalamua family than Lagoo, who has not lived in the family almost all his life, nor participated consistently in affairs of the family.
Savini will also be more valuable to the Alalamua family than Saveaena, who had held the title until 1950 when he was removed as a result of litigation arising out of a petition for removal by the majority of the family members. Saveaena lived in the United States for several years after his removal and only recently return [sic] to Manu’a. This Court has said many times that a claimant who lives in the family is more familiar with members and their problems than the claimant who lives away from the family and the village (see High Court Case No. 5, Civil (1939), and High Court Case No. 16, Civil (1938)). In the High Court Case No. 24, Civil (1936), the Court said “that a claimant who lives away from the family and village cannot *100look after the affairs of the family as well as if he lived with the family and this is an important consideration in determining which claimant has the greatest capacity for leadership.” In this case, it is our contention that Savini, having lived in the village and participated closely with members of the Alalamua family for years would have a greater potential to be more a successful matai than the other claimants. We are unanimous in our finding that Savini prevails over Lagoo and Saveaena on this issue.
It was argued by counsels for Saveaena and Lagoo that Savini is 65 years old. He has passed the government retirement age. He would not be able to provide the leadership the family must have at these important times. The question the Court must decide is whether to award the title to a claimant who is young in age, but has not lived in the family nor consistently participated in affairs of the family, or to a claimant older in age but has taken the leading part in affairs of the family for many years during the absence of the holder of the family title. It is our considered opinion that the family will benefit more from the leadership of an older person who understands the members and their needs and problems through years of close relationship and cooperation than a younger person who has has not lived with the family nor has he indicated a real desire to live with the family.
Since we find that Lagoo prevails over Savini and Saveaena on the first issue, and that Savini prevails over Lagoo and Saveaena on the third and' fourth issues, the second issue having been discounted from being considered, it follows that Savini should be registered as the holder of the Alalamua title. (See Appellate Division Case No. 104, Civil (1964).)
ACCORDINGLY, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that SAVINI be registered as the holder, of. the matai. title ALALAMUA attached to the *101village of Ta’u. But before he be registered as the holder of the Alalamua title, he must resign from any other matai title he now holds within 30 days after this decision has become final.
The Territorial Registrar will be notified of the decision.
Court costs in the amount of $50 is hereby assessed to be paid in equal amount by Saveaena and Lagoo within 30 days after this decision becomes final. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485690/ | *76The maternal grandparents of the two minor children petition the Court to terminate the natural parents’ rights to the children. At the time of the filing of the petition, the natural parents were residing in the State of Hawaii and they had jointly executed a document acknowledging service of the petition and purporting to surrender their parental rights to the children in favor of eventual adoption by the grandparents. The document further asserts waiver of their right to further notice and to be heard. At the hearing of the petition the mother was however present along with her parents and the subject children.
The background facts are that the parents and the grandparents were all at one time residing in Hawaii where the children were born. Upon the birth of each child the grandparents assumed their care and upbringing. The mother testified that, at the time, she and her husband were working and were preoccupied with employment and other activities whereby the children were left to the care of the grandparents.
Presently, the children, the grandparents and the mother are residing in Samoa, while the father is attempting to secure (yet unsuccessfully) employment in the State of Washington. It is the mother’s intention to rejoin the father upon his gaining employment and being settled. In the meantime the parents are not in a position to provide the appropriate care and time for the children which continues to be provided by the grandparents. Accordingly, the parents are willing to permit the adoption of their children principally, as we find it, on the sentiment that the grandparents have taken charge of the children since birth.
DISCUSSION
The petition seeks the "termination" of parental rights under A.S.C.A. § 45.0115 (a)(3)&(5) upon the grounds that the children, vis a vis the parents, are "neglected and dependent." Although the parents have not provided for the children, we cannot conclude on this fact alone that the children are necessarily "neglected and dependent" within the meaning of the statute. A.S.C.A. § 45.0103 (19) defines the concept of "neglected and dependent" in a number of contexts which as *77outlined by the Fono typify those classical instances whereby normal parental consent may be dispensed with or whereby parental rights may be properly considered as forfeited because of deliberate failure on the part of the parents in their responsibilities toward their child. The proceedings envisioned are adversary in nature as distinct from "relinquishment" proceedings provided under A.S.C.A. § 45.0401 (a)(2), which are voluntary in nature.
Although the evidence showed that the natural parents had not provided for the children, the circumstances were not those of forfeiture nor such as rendered the minors "neglected and dependent" within the meaning of the statute. As we view the testimony of the mother, the ostensible inaction with respect to the children was plainly in reliance on the fact that the grandparents were at all relevant times ready, willing, and able to provide substitute parental care to the minors. The mother acknowledged her agreement to these proceedings only because it is her parents who were petitioning, and stated that if some unfortunate malady were to befall her parents, then the most natural thing to do would be for her and the husband to take over the children’s care and needs.
These are not the sort of circumstances addressed by the "termination" statute. There is no conduct on the part of the parents which evinces their deliberate disregard for parental duty nor points us to any settled intention on their part to forgo and forsake the children. Indeed, given the temporary economic difficulties facing the natural parents, the surrender of their children to the better care provided by the grandparents points us to the opposite conclusion. To thus allow this petition for termination on the bare ground that the parents have not provided for the children, would be to do mischief with the statute.
On the other hand, the Court is unable to provide relief by treating the petition as one of voluntary "relinquishment" of parental rights. The evidence received does not sustain such relief. Among other things, A.S.C.A. § 45.0402 (d) requires the court to be "satisfied that the relinquishing parent has been counseled and fully advised of the consequences of [seeking relinquishment]", before such an order may be made. As may be gathered, the father of the minors did not appear at the hearing *78and accordingly there was no opportunity for the Court to make the assessment required by the mentioned enactment. While the mother did appear and testified to the effect that she appreciated the consequences of termination, we are hesitant to conclude that terminating the mother’s parental rights alone would be consistent with a finding that such an order would be in the "best interests of all parties concerned" as required by section 45.0402 (f). Insofar as can be ascertained from the testimony and the written consent filed by the parents, a piecemeal approach to terminating parental rights is, we feel, not anticipated in the petition. The petition is denied.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485691/ | Defendants seek to set aside default entered by the clerk upon the application of plaintiffs. Defendants appear to have been 5 days late in filing their answer and accordingly move the Court pursuant to Trial Court Rules of Civil Procedure (T.C.R.C.P.) Rule 55(c).
It should be noted that plaintiffs, upon securing the entry of default, filed contemporaneously a motion for default judgment which was duly set by the clerk for hearing on August 24, 1988. One day prior to that hearing, defendants filed their motion to set aside default and also sought to have the motion placed on the Court’s calendar of August 24, 1988. This setting was administratively permitted. However, at the hearing the Court explained to plaintiffs (who appeared pro se) their entitlement to at least 10 days notice of defendants’ motion and offered them a continuance. This option was declined and the motion to set aside default taken up.
T.C.R.C.P. 55(c) tracks the federal rule. It speaks of relief in terms of "good cause" shown and the granting or denial of relief has been repeatedly held to come within the sound discretion of the trial court.
Exercising this court’s oft-stated preference of a trial on the merits to summary proceedings, we grant defendants’ motion to set aside default. Defendants did not intentionally ignore plaintiff’s complaint. Nor did defendants act in bad faith. Instead we essentially find here a situation of inaction attributable to counsel’s administrative slip-ups in attorney work management and the scheduling of off-island travel. Indeed, *80prior to the expiration of time for answering the complaint, government counsel made an appearance to oppose plaintiffs’ preliminary motion for injunctive relief; yet no one filed an answer. Although the Attorney General should take note of this uncharacteristic breakdown in coordination within his office, these circumstances are not the sort of neglect that should be held against the client,
Against this, we have given due regard to potential prejudice to plaintiffs. While the 5 day delay may be seen as having caused unnecessary inconvenience to plaintiffs in first having to seek default measures and then finding themselves having to contest a defense motion to set that default aside, these are hardly sufficient grounds to tip the balance of equities against the defendants.
Additionally, plaintiffs’ claim involves a substantial sum of money. This has been a recurring ground cited in the cases to favor•a hearing on the merits over adjudication by default proceedings.
Finally, and although not addressed by either side, the record on file with the clerk raises some doubt whether service of the complaint and summons was sufficiently perfected in order to trigger the commencement of the twenty day period for answering the complaint. The defendant, American Samoa Power Authority, is a statutory corporation with capacity to sue and be sued. However, the very first provision of the incorporating statute, A.S.C.A. § 15.0101, talks of establishing "a governmental agency within the executive branch of the government." Given this description of the Authority, we look to T.C.R.C.P. 4(d)(6) which requires service upon the American Samoa Government "or other governmental organisation in American Samoa subject to suit," to be made by delivering a copy of the complaint and summons to the Attorney General or to his designated representative. From what we gather by way of returns and the affidavits of counsel on file, it appears that service was not made by delivery to the Attorney General. In that we were not briefed on the issue raised, we do not rule on the matter at this time. It suffices for our purposes here to merely mention our reservations.
*81As both parties have alternatively indicated to the Court not only their desire but also readiness to set this matter for immediate trial, an order will also enter directing the clerk to set this matter for hearing within 30 days hereof and to notice the parties accordingly.
It is so Ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485294/ | The Claimant herein has offered for registration a parcel of land known as Mataolo to register as the communal land of the Aiono S. Magalei family.
The application to register the land must be denied for two reasons.
First, the evidence offered by the Claimant as to the ownership of this land points to a conclusion that if the Magalei family does, in fact, have the superior claim it would be lands of the entire Magalei family and not just oP the Aiono S. Magalei family.
Assuming without deciding that the Magalei family has some rights then this registration offer must be denied because it seeks to register the land as Aiono S. Magalei family land.
Second, the Court wishes to again point out that for party to prevail in a registration case they must establish by a preponderance of the credible evidence that they have used and cultivated all parts of the offered land. It is unnecessary for the Court to consider and decide each objection for the reason that the Court does not find and determine the respective rights of each Objector and the Claimant. That question is not before the Court. If the registration is denied, it is sufficient for the Court to consider an objection which leads the Court to the denial.
In the instant case the Court finds that the Claimant failed to establish by a preponderance of the evidence that she had a clear claim to that part of the land used and claimed by the Moea’i family which consists of roughly one-half acre in the northern central part of. the offered tract. It *103is unnecessary to determine just how the Moea’i family came to the land. They assert they cleared it from virgin bush, but even if they did not, they have admittedly lived on the land since 1941 and 1942 and the Claimant testified that they just moved in without getting any permission and that they still are there.
In view of these facts it raises a very serious question of adverse possession, and although the Court makes no finding that the Moea’i family has acquired title by adverse possession it does find that this circumstance clouds the Claimant’s claim of title to such an extent that registration must be denied.
In view of this finding it is unnecessary to discuss any of the other objections, claims and counter claims.
IT IS THEREFORE ORDERED AND ADJUDGED that the offer of registration be and the same is hereby denied. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485295/ | *104On the 29th day of August 1972, Ta’ai U. Galoia filed a separation agreement on land known as “Tafeta” allegedly belonging to the Galoia family.
On the 25th day of September 1972, Tuiaana Moi filed an objection. The land involved in this case is a single tract 60' x 60'. At the trial of this matter the Objector in answer to a question by the Court stated that the first time he saw the tract of land (60' x 60') upon which the separation is asked was in January 1973. The filing of an objection on September 25, 1972, without any knowledge as to the property offered is frivolous and is not worthy of the court’s consideration. This objection should be dismissed.
On September 29, 1972, an objection was filed by Moke Siufanua. At the trial he testified that the part of the 60' x 60' tract that he claimed to own, which, incidentally was exactly one-half or 30' x 30', had been considered in Case No. 12-1955, and he agreed that in that case the land had been declared to be the communal land of the Galoia family. In answer to a question he acknowledged that he knew the result of that case, but he went on to state that God knows it is his property, thereby, in effect disagreeing with the Court decision of 1955.
This, too, is a completely frivolous objection and unworthy of any consideration by the Court.
IT IS THEREFORE, ORDERED AND ADJUDGED that both objections be and are dismissed.
IT IS FURTHER ORDERED that because of the frivolous nature of the objections filed, each Objector shall pay to the Clerk of the Court within 10 days, the sum of $75 as Court costs. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485297/ | This litigation arises out of an offer of registration of the land “MATAGIMALIE” located in the village of Aua, Tutuila, American Samoa., as the communal property of the Paopaoailua family filed by Petitioner with the Territorial Registrar on May 7, 1971. A survey of the land showing metes and bounds accompanied the offer to register the *109land. On January 21,1972, a certificate of the Pulenuu and Surveyor indicating conformance with requirements of Section 10.0112 of the Revised Code of American Samoa was filed along with an affidavit of posting showing that the notice for the proposed registration was posted on the bulletin board at the Administration Building (now the Courthouse) and in two public places in the village nearest to which the land is located. Earlier, on the date of filing of the offer of registration, Objector filed an objection thereto claiming that part of the land offered for registration is a communal property of the Afu family. We proceeded to trial on the question of whether the entire property at issue is a communal land of the Paopaoailua family or whether part of it is the communal land of the Afu family.
In support of his objection Objector testified that members of the Afu family have lived on the land in question for many years; that they had cultivated the land and planted plantations continuously since the time his grandparents were young; that members of the Afu family have no family relationship to Petitioner’s family; and he denied, and most vehemently, that his family ever rendered services to the Petitioner’s family. Objector further testified that the two graves of former holders of the Paopaoailua matai title were located on the land with the permission of Objector’s family, and that Paopaoailua Pati, one of the two holders buried there, was a member of Objector’s family. Objector’s testimony was closely corroborated by his mother who testified on his behalf.
Petitioner, on the other hand, testified that Objector’s parents and grandparents have lived on the property in issue by virtue of the fact that they are members of his family; that at one time Objector’s grandfather was the matai taule’ale’a or leading young man for the Paopaoailua matai title; and that former holders of the Paopaoailua *110matai title were buried on the land without permission from Objector. Petitioner’s testimony was supported by the testimony of Launiusaelua, daughter of the late Paopaoailua Pati. Paopaoailua Pati is one of the holders buried on the land in dispute.
The Court is satisfied that the property in question is a communal land of the Paopaoailua family. The Court is further convinced that members of the Objector’s family, including his parents and grandparents have lived on the land as members of the Petitioner’s family, and that they rendered service thereto. Afu v. Paopaoailua, L & T No. 134 (1964), and Afu v. Paopaoailua, L & T No. 176 (1964), involving the same property and the same parties were adjudicated in favor of Petitioner, therefore, the contentions raised by Objector are barred by the doctrine of res judicata. See Massie v. Paul, 263 Ky. 183, 92 S.W.2d 11, 14. Also see American S.S. Co. v. Wickwire Spencer Steel Co. (D.C.N.Y.), 8 F.Supp. 562, 566.
IT IS THEREFORE THE JUDGMENT OF THIS COURT that the objection filed by Objector Afu be dismissed and the land be registered as the communal property of the Paopaoailua family. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485298/ | On the 8th day of September, 1972, the applicant filed for registration as the communal land of the Lefao family a tract of land being a portion of the land called “VAIALA” which is located in the village of Faga’itua. All formal actions as required by law were followed. Objections to the registration were timely filed by Le’iato Tuli, Lopeti S. Malepeai, Aiganofolelei and Lauatua’a Malepeai.
Prior to the actual start of the trial, the Court, together with counsel, viewed the property. It is a small portion of *112land being only 0.197 acres. It is located on the malae of Sua and Vaifanua counties and approximately the entire southern half of the offered tract is located in the malae itself.
Once again the Court wishes to state that the only question before the Court is whether the offered registration should be approved or denied. In order for the registration to be approved this claimant must establish by the preponderance of the creditable testimony and evidence that the entire offered tract is the communal family land of the Lefao family.
A great deal of testimony was received in this case which was irrelevant to the issue as to ownership of this small piece of land in question, and therefore shall not be considered. These questions dealt with land in other areas of the village and do not bear on the question in this case.
The first question to be decided is whether or not the’ southern portion of the offered tract extends into the malae. As stated before the Court viewed the property in company with the claimant and his Attorney, and at that time the Court requested the claimant to point out the southeast and southwest corners of the tract. There was no physical evidence on the ground as to these corners. The corners had to be in the malae which is sand and yet when the claimant was requested to point it out he was unable to do so, the best he could do was to indicate points as being approximately correct. The subsequent witnesses were in the same position of not knowing the corners of the plot. It is unnecessary to belabor the exact location of the tract because all parties, claimant as well as all objectors agree that the southern portion of the offered land is within the. malae. This is the malae of Sua and Vaifanua counties and is generally under the control, in accordance with Samoan custom, of Le’iato the Paramount Chief.
*113A malae in a village is public land and not subject to ownership as either individual property or as family communal land. It is land for the use of entire village.
It follows, therefore, that the registration of the offered land is hereby denied. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485299/ | This action concerns the removal of Meleisea Misi from holding the matai title “Meleisea” of the village of Taputimu, Tuaulata County, Western District, Tutuila, American Samoa.
Petitioner requested removal of Defendant under Sec. 6.0106 of the Revised Code of American Samoa. It reads as follows:
Any matai who leaves American Samoa for longer than one year may be divested of his title upon application instituted by petition *114filed in the High Court by any member of the family of the absent matai. Upon presentation of such petition the Court may, but need not, upon satisfactory proof of such absence, divest such title. The Court in its discretion may also consider the reasons for such absence, and the wishes of the family actively serving the matai.
Petitioner filed petition on April 3, 1973. Service was accomplished on May 22, 1973, as evidenced by Affidavit of Service and by letter from Defendant to Petitioner acknowledging receipt thereof. Satisfied that all statutory requirements were met, we proceeded to hear the evidence.
Petitioner alleges, among other things, “that Defendant moved to the United States more than 10 years ago, and is (sic) to this date, residing in the United States,” and that “Defendant, by being absent from the Territory, caused irreplaceable damages to the dignity of the Meleisea family, and neglected his duties as a leading matai of my family, village, county, and to the Territory of American Samoa (sic)____”
The facts adduced at the trial clearly show that Petitioner is a blood member of the Meleisea family; that he has lived in the village of Taputimu most of his life; and although he is a matai of another family, he participates in affairs of the Meleisea family. The Defendant is 71 years old and has held the Meleisea title since 1946. In 1964 he left for the United States and remain [sic] there until 1969, when he visited American Samoa for two weeks. He returned to the United States because of ill health.
In deciding this case we are guided by the desire of the people of this territory, expressed through their duly elected representatives in the Legislature, that a matai should not be absent from his responsibilities under the matai system for longer than one year. These are times;of great concern. The matai system, the very foundation of the Samoan way of life and culture, is being incessantly bombarded by changes and pressures from external *115sources. The matai must always be on the alert to protect, preserve, and improve family properties and affairs entrusted to him, as well as to provide the leadership for the people who selected him. To be sure, the matai cannot perform these functions effectively residing thousands of miles away.
More importantly, the matai is the administrator of the family. When he becomes negligent and unmindful of the performance of his duties and when his actions and behavior are detrimental to the well-being of his family, he should be removed. The fact that the Legislature recently facilitated removal of an absent matai by requiring only one member of the family to petition such removal denotes, and strongly, legislative disapproval of absenteeism in the matai ranks.
. Defendant, having resided in the United States for approximately eight years without sufficiently good reason, and having failed to provide the continuous leadership to which the family is entitled, the Court is compelled to divest him of the matai title “Meleisea”.
Defendant argued that removal would constitute “cruel and unusual punishment” contrary to Article I, Sec. 6, of the Revised Constitution of American Samoa. We unanimously hold this argument to be without merit.
ACCORDINGLY, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that Meleisea Misi be hereby, divested of the matai title “Meleisea”.
Costs in the amount of $25 are hereby assessed against Defendant to be paid within 30 days from the date of this decision. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485301/ | Following a review of the pleadings and arguments, the Court makes the following determinations:
I
The petitioner Atimua Talagu brought this action for a Permanent Injunction in order to restrain respondents Lueli Te’o, Ma’a Te’o, and Aveia Tautolo from entering a parcel of land known at various times as Aumalagamai, Matavai, and Toa located in Faleniu village. The respondents’ parents Pepa Si’ufanua Te’o and Uiva Te’o intervened as the real parties in interest in this case. The activities which Atimua sought to enjoin was the building of a house and pig stys, planting plantations, and laying water pipes *123across the property without his permission. The Te’os denied that they needed Atimua’s consent, because they claimed a superior right of possession of the land.
Since both parties claim possession of the land, the court is faced with the question of determining who established the superior claim to this property? In order to make this determination the court must examine the chain of title under which the claimants base their positions.
II
The facts in this matter are substantially uncontroverted. Both parties claim to have received the property from the Si’ufanua family, after a 1949 High Court decision awarded the land to the Si’ufanuas. In 1951, a “Transfer of a Parcel of Land of Si’ufanua Family known as Aumalagamai” was filed with the Register of Titles assigning the property to Uiva Te’o, and signed by the matai Si’ufanua Tamo and 21 other members of the family. In 1952, the Te’o family moved to the United States and left Si’ufanua Tamo and Vaesavali to look after the land and assigned the plantation thereon to Si’ufanua Tamo for his use. This Si’ufanua Tamo is the father of Mrs. Pepa Si’ufanua Te’o, and at the time of the hearing in 1973 was 98 years old. Petitioner Atimua moved onto the land under direction of Si’ufanua Tamo in 1961, at which time, Uiva Te’o learned of the occupancy. In 1964, Si’ufanua Tamo, signed and gave to Sau Talagu Moliga, also known as a document entitled “Bill of Sale,” which conveyed the property Toa. Uiva Te’o made several visits to Pago Pago during these years. Starting in 1969 the Te’o children built and moved into a house on the land. In 1971, Si’ufanua Aitu signed a “Warranty Deed” for Atimua, giving him the same property as before; this deed was approved by the Land Commission and the Governor of American Samoa, John Haydon, on November 2,1972. A month later, Atimua *124filed this case. Uiva Te’o left the United States and moved back to Samoa in 1973, after a twenty-one year absence.
Ill
Counsel for the Te’os states that the assignment of 1951 by the Si’ufanua Tamo and Si’ufanua family is valid and cannot be revoked by Si’ufanua Aitu, the successor to the matai title, citing Tauoa Tikeri v. Mafo’e and Meaalofa, L & T #1107. That a successor matai could not revoke the assignment as long as the grantee continues to serve the matai is sound Law and Samoan Custom. But that rule would not prevent a surrender of the estate.
The character of conveyance known as “surrender” is one method of Inter Yivos Transfers. It includes both the yielding up of an inferior estate to the immediate estate in reversion or remainder, wherein the inferior state may drown by mutual agreement between the parties, and the actual relinquishment of the physical possession of the premises, such as in a leasehold estate. After an estate has been conveyed, the grantor and grantee can agree to the “rescission” of the assignment, divesting the leasehold estate out of the assignee, and a revesting thereof in the landlord. In order to constitute in legal effect a surrender, the rescission must satisfy the requirements existing with reference to such a mode of conveyance. In order to be successful, the estate surrendered must be no greater in amount than the estate of the landlord, since otherwise it cannot merge therein. It must also immediately precede the latter estate as regards the right of possession, with no vested estate intervening. See Tiffany, Real Property, 3rd Edition, 1939, Vol. 4, Section 960.
Although the treatise spoke of a surrender as referring to tenancy for life or years, the court feels that this concept of conveyance can appropriately be applied to the communal land in American Samoa, and the relation*125ships created between the matai and the assignees of property. As the respondent pointed out, the matai does not own family lands but is trustee for the benefit of the family so that land and fruits therefrom continue in family and their descendants. Digest of High Court Opinions, page 70. As trustee, the matai is the ultimate reversioner for all estate carved out of the communal land of his family. And since any estate with a reversion is subject to surrender, the treatment fits perfectly well within the communal land concept.
A surrender by “act and operation of law,” occurs when certain acts by the parties are inconsistent with the continued distinct existence of the two former estates. One which frequently occurs, results from the relinquishment of possession by the tenant and the resumption of possession by the landlord. Because this act is inconsistent with the continuance of an outstanding assignment in the tenant, both are estopped to assert that the relation of landlord and tenant still exists. It is immaterial whether such change of possession is the result of agreement, or whether it occurs as a result of the abandonment of the premises by the tenant and resumption of possession by the landlord. The issue of wheteer [sic] the landlord has taken possession with the intention of occupying and controlling the premises as his own, to the exclusion of the tenant in case the latter desires to return, is ordinarily a question of fact. See Tiffany, Real Property, 3rd Edition, 1939, Vol. 4, Section 962.
IV
Were their [sic] any acts which indicated that a surrender occurred? When a member of the family is assigned communal land, he accepts the obligation of serving the matai and the family as required under Samoan custom. Thus, having married into the Si’ufanua family, when Uiva Te’o moved onto the land in 1949 he accepted *126this responsibility. However, when he moved in 1952, only one year after receiving the assignment, he turned the land back to Si’ufanua Tamo for his care and use. This was an actual relinquishment of possession by the assignee to the reversioner, Si’ufanua Tamo who was also the matai and trustee for all of the Si’ufanua family lands. Perhaps the intention was not to abandon the property, but as the years went by from 1952 to 1961, Uiva Te’o did nothing on the land, and gradually Si’ufanua Tamo began to treat the land as if he were again the sole owner as the matai of the Si’ufanua family.
If there was any doubt as to whether the assignment of 1951 was still in effect ten years later, Si’ufanua Tamo dispelled that question when he directed Atimua to move onto the land. Atimua was rendering service to Si’ufanua in return for living on Si’ufanua family land. That act was completely inconsistent with the continuance of an outstanding assignment for Uiva Te’o. Si’ufanua Tamo acted toward the land as if he assumed that it belonged to him as the matai of the family. By living on the land from a day to day basis, Atimua created continual acts which were inconsistent with the continuance of an outstanding assignment, which acts lasted for years. He treated the land as his own, built a house, had two surveys taken, and delivered fine mats in service to the matai.
In 1964, Atimua received a Bill of Sale,1 which once again reaffirmed the assumptions of the Si’ufanua family *127toward possession of the land. Although entitled Bill of Sale, this document makes several statements which make a strong case for assuming that a Surrender by operation of law had occurred. The document on its face purposts [sic] to transfer all interests of the Si’ufanua family to Sau Talagu Moliga of the land which was surveyed for that specific purpose. The deed even states that the grantor would warrant and defend the sale of the said property to the grantee against all and every person or persons whomsoever. This statement could not be made unless they assumed that the assignment of 13 years before was null and void.
At the hearing, Uiva Te’o stated that in 1964 Si’ufanua Tamo was no longer the holder of the matai title because he had resigned from the position. The Te’os attacked the Bill of Sale on the ground that Si’ufanua Tamo was not the matai or trustee of the land, and consequently could not legally sell it. However, on the face of the document, Si’ufanua Tamo represented that he was the leading chief of the Si’ufanua family and that he was taking care of all the communal properties of the family in the village of *128Faleniu. Even if he had resigned from the title, Si’ufanua Tamo still attempted to exercise the “pule” over the land, by directing Atimua to move on the land, and by signing the deed.
All of the acts are inconsistent with the continuance of the original assignment between the matai and a family ■member. The court must wonder if Uiva Te’o acted like a normal property owner when he learned that someone else moved onto his land and received a deed and Bill of Sale in 1964. A deed purportedly granting the same property which he claimed. The deed was also signed by the same grantor from which he claimed his assignment in 1951. Te’o testified that on his visits to Samoa he learned that Atimua had moved onto the land, and apparently being concerned he asked why Atimua had the land. The response that he was given was that the new title holder Si’ufanua Aitu would explain the situation to him. Evidently this never happened, but Te’o made no effort to reassert his rights to the property.
*129It was not until five years later in 1969 that the Te’o children began to move onto the land, over the objection of Atimua. By this time, Sau Talagu Moliga had been given the Si’ufanua family matai name of Atimua, even though he was not a blood relation, because of his continual service of the matai, Si’ufanua. Atimua had lived on the land for 8 years, and it had been 17 years since Uiva Te’o had left for the states, relinquishing the property, and since Si’ufanua Tamo had resumed possession. By now both parties were estopped from asserting that there was not a surrender, even in the event that the tenant showed a desire to return.
Atimua considered the property to be exclusively his, and when the Te’o children arrived, he began to take steps to establish his rights. Because there was some question about the validity of the 1964 Bill of Sale, apparently because Si’ufanua Tamo was not the matai, and because the Bill of Sale had not been approved by the Land Commission and the Governor, another deed was drawn up in 1971. This deed met all statutory requirements including a family counsel [sic], and was signed by Si’ufanua Aitu, the current matai of the family. Again it is in the form of a warranty deed and even added the phrase: “Grantors hereby covenants to and with said Grantee and Grantee’s heirs, successors, and assigns that Grantor is lawfully seized the premises under the laws of American Samoa and can legally convey unto Grantee free from all encumbrances and that Grantor will warrant and forever defend the above granted premises and every part and parcel thereof against the lawful claims and demands of all persons whomsoever.” Thus, once again if there was any question' at all as to whether the Si’ufanua considered the land to be his to give away, the facts show that the statements would be completely inconsistent with a contrary assignment. In addition, this deed was signed by Si’ufanua Aitu, the *130successor to the Si’ufanua title, thus indicating that it was the wish of both Si’ufanua Aitu and Tamo that Atimua have the land. Uiva Te’o stated that he had asked Si’ufanua Aitu why Atimua had the land and that Te’o was told that Si’ufanua Aitu would take care of it. That is exactly what Si’ufanua Aitu did, and he completely and thoroughly transferred the land to Atimua.
The respondents emphasize that an assignment cannot be revoked by a subsequent matai, nor would a matai take away family land from a family member and assign that some [sic] parcel of land to a non-family member. The successor matai, Si’ufanua Aitu did not revoke the 1951 assignment, because it had been surrendered either by agreement or by abandonment. The two warranty deeds in 1964 and 1971 exercised the right to grant the land out again. The court interprets all of these facts as acts inconsistent with the continuance of an outstanding assignment in the previous tenant, Te’o.
V
The final questions [sic] to consider before a surrender is complete is whether the estate surrendered was no greater in amount than the estate of the landlord in order for the two to be able to merge. The assignment of 1951 was a lesser estate [than] that held by the overall trustee, Si’ufanua Tamo. Thus Te’o grant could merge with the estate controlled by the matai.
In addition for the merger to be complete, the estate of the tenant Te’o did in fact immediately precede the right of possession held by Si’ufanua Tamo, the matai of the family. There were no other vested estates intervening, and when the property was relinquished, Te’o turned it directly over to Si’ufanua Tamo for his use and possession.
Other items were brought out in the testimony such as an allegation that Si’ufanua Tamo had been tricked by the *131Atimua grant and that he actually wanted Pepa Te’o to have the land. In fact Si’ufanua Tamo testified at the trial, and although hard of hearing, it is difficult to believe that Atimua could have lived on the land for 10 years, and have received two separate deeds against the wishes of the Si’ufanua matais. It is clear from the testimony that the parties understood English sufficiently well to understand what was in the deeds and at least to be put on notice that there were conflicting claims to the property.
The Te’o ask [sic] the court to set aside two warranty deeds on the grounds that the transfer was contrary to established and respected Samoan custom. This is exactly what the second deed was to prevent. The Land Commission reported to the Governor on October 25, 1972, that “The present Si’ufanua wishes the grantees to have the land. However, if the present Si’ufanua should die, it is entirely possible that the next holder of the title might not want the grantee to have the land and put him, his wife and children off the land. That is the second reason for the deed.” Atimua recognized that unless he diligently secured the title to his land, he could lose it. His efforts have been rewarded and he is definitely the possessor of the land without any reversion in the Si’ufanua family.
The court is concerned about the carelessness with which land is given out, taken back, given away again, names are changed and no records of the transactions are kept. It does not approve of the granting of land by reference to name only, as in the 1951 assignment, because of the confusion and uncertainty that arises. The court will strive to find consistency and stability in land transactions, in conformance with the law. However, it cannot assist those parties who sit on their rights and fail to properly assert their claims.
In summary the court finds that because a surrender in fact occurred, the grant by Si’ufanua to Atimua was valid, *132and that Atimua has established a superior claim to the land than that of the respondents.
VI
IT IS THEREFORE THE ORDER OF THE COURT, THAT:
1. The respondents are hereby restrained from entering the land described herein, without the permission of the petitioner.
2. That respondents remove the house, pig stys, water pipe, and plantations that they placed on the land.
The Bill of Sale reads as follows:
KNOW ALL MEN BY THESE PRESENTS: That I, SI’UFANUA TAMO, a leading chief of Si’ufanua family and who is now taking care of all the communal properties of the said family, in the village of Faleniu, County of Tualauta, Western District, Island of Tutuila, Territory of American Samoa, of the first part, for and in consideration of One Dollar, to Si’ufanua and Si’ufanua family in hand paid at or before the ensealing or delivery of these presents by Sau Talagü Moliga, of the second part, the receipt whereof is hereby acknowledged, has bargained and sold, and by these presents does grant and convey unto the said parties of the second part, their executors, administration, successors of assigns, the following property, to wit:
All that certain real property situate in the Village of Faleniu, County of Tualauta, Western District, Island of Tutuila, American Samoa, being a *127portion of the land known as “TOA”, more particularly described as follows:
Beginning at a concrete monument located 3 feet from the center of the stream which has Coordinates North 290,970.03; and East 236,606.71; thence leaving said point of beginning on azimuth 317°56'13", a distance of 68.88 feet to a mark (X) on the rock; thence on azimuth 300°10'43", a distance of 73.45 feet to a mark (X) on the rock; thence on azimuth 348°03'43", a distance of 202.94 feet to a point mark (X) on the rock; thence on azimuth 337°04'43", a distance of 72.72 feet to an iron pin; thence on azimuth 350°04'43", a distance of 225.51 feet to a point mark (X) on the rock; thence on azimuth 87°46'13", a distance of 258.56 feet to a concrete monument; thence on azimuth 183°51'59", a distance of 587.12 feet to the point of beginning.
Containing 2.25 acres more or less.
The description correctly represents a survey made by me or under my direction in conformance with the Code and Administrative Manual of the Government of American Samoa at the request of Talagu Moliga in the month of June, 1963.
The land is located at the Village of Faleniu, Tualauta County, Western District, Island of Tutuila, Territory of American Samoa.
TO HAVE AND TO HOLD THE same, unto the said party of the second part, his executors, administrators, successors or assigns, forever. And the *128said party of the first part, for himself, his family, his heirs, executors, administrators, successors or assigns, covenants and agrees to and with the said parties of the second part, his executors, administrators, successors or assigns, to WARRANT and DEFEND the sale of said property, goods and chattels, hereby made unto the said party of the second part, his executors, administrators, successors or assigns, against all and every person or persons whomsoever.
IN WITNESS WHEREOF, the party of the first part has hereunto set his hands and seal, this 23 day of October, A.D. 1964.
/s/ SI’UFANUA TAMO
Territory of American Samoa 1 ss County of Mauputasi )
The foregoing instrument was acknowledged before me this 23 day of October, 1964, by Talagu and Chief Si’ufanua Tamo, act as a representative of Si’ufanua family.
WITNESS my hand and official seal.
/s/ FAINUULELEI S. UTU Notary Public
Seal: Fainuulelei S. Utu Notary Public American Samoa | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485302/ | *133This is a declaratory judgment proceeding pursuant to Title 11, American Samoa Code, Sec. 6671 (1973) arising from a petition filed by R. S. Tago Sevaaetasi hereinafter referred to as Tago, and members of his branch of the Mauga family on April 13, 1973, requesting the Court to declare “whether or not the Mauga is a split title.” Petitioners averred that the Mauga is a split title. A Memorandum of Points and Authorities was also filed on *134April 13,1973, and made part of the petition. Copies of the petition and Memorandum, respectively, were served upon Mauga Iulio, present holder of the Mauga title and respondent herein, on June 7, 1973, as evidenced by the Affidavit of Service filed on the same date.
Counsel for Mauga Iulio and his branch of the Mauga family, Meauta 0. Atufili Mageo, hereinafter referred to as Mageo, filed a reply on October 30, 1973, refuting averments that the Mauga is a split title. Simultaneously with the filing of the reply, Mageo entered a Motion to Dismiss petition for lack of jurisdiction.
Hearing on the Motion to Dismiss was held on November 2,1973, prior to the beginning of the trial on the same day. The Court hereby issues its written opinion and judgment in support of its respective rulings.
First we shall address ourselves to the Motion to Dismiss eloquently argued by Mageo. Counsel Mageo contended that the status of the Mauga title as to whether it is a single or a split title does not constitute a justiciable controversy sufficient to confer jurisdiction upon this Court to enter any form of judgment, except to dismiss. Counsel asserted that splitting a matai title is “totally upon the wish and order of a Samoan family if they wish to live in peace and harmony.” For emphasis Mageo told the Court that “attempts made in the past to solve the question now presented for adjudication resulted in bloodshed among members of the Mauga family, and should the Court assumes [sic] jurisdiction and render a judgment, it will again result in bloodshed.”
Counsel for petitioners, Tago, argued that petitioners are asserting a right opposed to that of respondent, and that the right and interest of petitioners in the status of the Mauga title must be determined by the Court to avoid future controversies and strife within the family. Tago further argued that the Court recognized the Mauga as a *135split title in Tauvevematalilo v. Fanene Filo, Civ. 1035 (1970). In that case the Court said, “At that time there were two Mauga, Manuma and Lei----” The Court further stated in the same case that “When a title has been officially registered as a split title, and the two groups of the family have not been able to agree that the title be merged into a single holder, successors to each holder of the split title may be selected and registered in accordance with Sec. 6.0101 et seq., Code of American Samoa.” Tago made reference to the Book of Matai Registrations which shows that Moimoi and Taufaasau officially registered the Mauga on the same day in 1906, and the Mauga family has not agreed to merge them as the Court stated in Tauvevematalilo v. Fanene Filo, supra.
Title 11, American Samoa Code, Sec. 6671 (1973) grants this Court the authority to make declarations of the rights and duties of one party with respect to another “in cases of actual controversy relating to legal rights and duties of the parties.” The authority granted is discretionary. Title 11, American Samoa Code, Sec. 6671 (1973). However, it has been recognized that it is better for a trial court not to exercise its discretionary power to deny declaratory relief on a Motion to Dismiss and that it is preferable for a court to hear the evidence. 22 Am.Jur.2d Declaratory Judgment, Section 93 (1965); Bell v. Associated, Independents, Inc., 143 So.2d 904 (Fla. App. 1962).
The basic question in determining whether a complaint presents a justiciable issue which can serve as basis for a declaratory judgment suit is whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant issuance of a declaratory judgment, and the test generally applied is whether it is relatively certain that coercive litigation will eventually ensue between the same *136parties if a declaratory judgment is refused. Carmichael v. Mills Music, D.C.N.Y. 121 F.Supp. 43 (1954). See 28 USCA Sec. 2201 p. 467, (1959). We are convinced from the facts adduced that the question here presented for adjudication is ripe for judicial determination. In Moimoi v. Taelase, Civ. 30 (1913) the Court said, “It appears from the evidence that . . . whenever there have been two, (Mauga) at the same time, the uncontradicted evidence is that there have been strife, quarrels, and even bloodshed.” Evidence further reveals a family history beset by continuous quarrelling, ill-feelings, and dissensions. In the brief span of 16 years, from 1937 to 1953, five cases (Civ. 17, 1937; Civ. 7, 1940; Civ. 1, 1945; Civ. 63, 1948; Civ. 3, 1953) requesting removal of the holder of the Mauga title came before this Court for adjudication. This unfortunate state of affairs in this important family stems directly, in our opinion, from the absence of a judicial determination of the question here presented.
The purpose of a declaratory judgment is to liquidate uncertainties and controversies which might result in future litigations. 22 Am.Jur.2d Declaratory Judgment 841 (1965). Contrary to the argument by Mageo, the facts indicate that this controversy is justiciable in nature involving more than a mere difference of opinion. See State ex rel. La Follette v. Dammann, 220 Wis. 17, 264 N. W. 627 (1936). It is our firm conviction that while there may not be ány resort to actual violence at present, there exists a state of perpetual disturbance and unrest in this highly influential family.
We therefore do not propose to evade the question presented to us now. We have the power to assume jurisdiction and to exercise our discretion in favor of deciding this momentous question, and to lay to rest finally disputes, ill-feelings, and fights which have plagued the Mauga family for generations. We are not impressed by the *137argument, or threat, that the adjudication of this question may result in bloodshed among members of the Mauga family. We are only concerned with our constitutional obligation to the people of American Samoa to “protect the lands, customs, culture and traditional family organizations of persons of Samoan ancestry.” Revised Constitution of American Samoa, Art. I, Sec. 3.
The Motion to Dismiss for lack of jurisdiction is therefore denied.
JUDGMENT
In deciding “whether or not the Mauga is a split title,” we are mindful of the fact that we are here confronted with a momentous decision which will have a profound effect upon the integrity of the matai system, especially insofar as the unimpeached importance of its leadership selection process will be affected. Perpetuation of the matai system, unimpaired, is essential to the enhancement of a way of life that has stood Samoa in good stead for many generations.
Therefore, we pondered long and carefully the evidence and the arguments presented by the parties. We took judicial notice of the evidence garnered from the records of this Court involving the Maüga family since the establishment of the Government in 1900. Courts may take judicial notice of their own records for all proper purposes. 31 C.J.S. Evidence 1018-1028 (1964). Also we took judicial notice of the general practices under the matai system and prerogative belonging to matai of rank in the Samoan custom. Courts may properly take judicial notice of facts that may be regarded as forming part of the common knowledge of every person of ordinary understanding and intelligence in the community.- 31 C.J.S. Evidence 824 (1964). We are judicially cognizant of the development of the matai-system from its inception during Polynesian migration from Asia until the present-time. See *138Buck, “Viking of the Sunrise” (1938). Only after a meticulous sifting of the facts from the fables have we arrived, with unanimity, to the conclusion that the Mauga is not a split title.
This Court is well versed in the Samoan custom and all its ramifications with respect to the matai system. We know judicially that persons holding a title jointly in the same village are recipients of equal shares of the favors, honors, privileges, and respect traditionally inherent in the title they hold. They share on equal terms the duties and the responsibilities of the title. Thus in ’ava ceremonies they are entitled to only one official ’ava cup. They possess one ’ava cup title or igoa-ipu. One traditional seat or pou, is assigned to them. They are tenants-in-common to a single traditional guesthouse site or tulaga-maota. One taupou title or sa’otama’ita’i is shared by all. All answer to one single honorific salutation or Faalagiga. In food distribution in council meetings, jointholders of a title are entitled to one share or tufaaga, customarily given to the holder or holders of the said title by tradition. Likewise in passing out food trays in official council lunches or taumafa-taga, their entitlement is one tray which is usually given to thé oldest of the jointholders. With very few exceptions, jointholders are tenants-in-common also to all communal properties and lands belonging to the title. The exceptions are improvisations for the sake of peace in the family, but not traditional. The situs of the chief of rank such as the Mauga is almost always located on the traditional meeting place or Malae, of the village or county of which the title is paramount.
The situs of Mauga is Gagamoe in Pago Pago. Gagamoe is the traditional meeting place of Pago Pago village and the entire Ma’uputasi County. Gagamoe also is the traditional guesthouse site of the Mauga. Traditions familiar to this Court speak of only one Gagamoe. Mauga *139Moimoi and Mauga Taufaasau shared one ’ava cup title, Filiuamaua auamia a Seugaloloa. Tulimalefoi, the traditional taupou title or sa’otama’ita’i of the Mauga was the same whether there was one holder or two holders holding the title at the same time. All evidence with respect to the Mauga title adduced at this hearing and from the records of this court point unequivocally to the fact that the Mauga had always been, from its inception when the progenitor Mauga Mulivai established himself as the high chief of Pago Pago, a single title.
A review of the history of the Mauga title with respect to litigious disputes provides additional support for our conclusion that the Mauga' is not a split title. Petitioners know this to be the case. In requesting this Court to decide the issue, petitioners merely embarked on a fishing expedition.
When the Mauga was vacant in 1934 after Moimoi passed away, the branch of the family represented by petitioners and the branch represented by the respondent in the case at bar, filed claims to the same Mauga title. In Afamasaga v. Iulio, Civ. 3 (1935), the Mauga was awarded to Afamasaga, member of the petitioners’ branch. After the death of Mauga Afamasaga, and the Mauga became vacant again, fourteen persons filed claims to same Mauga title. All branches of the Mauga family were represented by the fourteen claimants. Subsequently, the Court awarded the Mauga to Iulio in Iulio Taufaasau v. Manuma, Civ. 123 (1963). Iulio is the present holder of the Mauga and respondent in this case. This is the same Iulio who claimed the Mauga in Afamasaga v. Iulio, supra. Thus we learn from the evidence that both petitioners and respondent, by their actions and attitudes, regarded the Mauga as a single title.
Of prime concern to this Court, and it should as strongly appeal to members of the Mauga family, is the fact *140that splitting the Mauga, and the possession of a piece of Mauga by several persons, will weaken the influence and authority of the Mauga in affairs not only of the village of Pago Pago, but in the County of Ma’uputasi and all American Samoa as well. We shall not be the instrument for the disintegration of the Mauga family organization. Our constitutional obligation is to protect family organizations of the Samoan people. Revised Constitution of American Samoa, Art. I, Sec. 3 (1968).
We are judicially cognizant of the fact that in the long history of the matai system, there had been no split titles. Each matai of high rank and head of a family, or Sa’o, is an entity. Two or more persons holding the same title by consent of the family members hold it as a single matai title. All jointholders of the said title share equally in its remunerations and responsibilities.
In Tauvevematalilo v. Fanene Filo, supra, this Court declared that “when a title has been officially registered as a split title, and the two groups of the family have not been able to agree that the title be merged into a single holder, successors to each holder of the split title may be selected and registered in accordance with Sec. 6.0101 et seq., Code of American Samoa.” We are reversing our conclusion in Tauvevematalilo since upon reconsideration, it was ill-advised and in substantial derogation of Samoan custom. Two or more persons may hold the same matai title. They will be considered jointholders of the same title, exercising the same duties and responsibilities, and receiving the same honors and all other attributes traditionally bestowed upon the same title. In no case will the title be considered “split.” All jointholders will enjoy the right of survivorship, i.e. the entire title on the decease or removal of any jointholders remains to the survivors, and at length to the last survivor. This has been the general practice under the matai system before Tauvevematalilo whose *141breach of the integrity of the Samoan custom we repudiate.
Should we assume the power to split a matai title, it must follow that we should assume the responsibility to split communal lands, ’ava cup title, Taupou title, honorific salutation, traditional food tray, traditional shares in a pig or sacred fish or i’a sa, and all other prerogatives traditionally inherent to the matai. Should the splitting continue, Samoa and its culture and custom will eventually disappear. This Court will not allow such to happen to the Samoan people.
IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that the High Chief Title Mauga of Pago Pago Village, Tutuila, American Samoa, is not a split title.
JUDGMENT delivered for the Court by Lutali, presiding Judge. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485303/ | *142ORDER GRANTING SUMMARY JUDGMENT
The above-entitled causes came before this Court on plaintiff’s motion for summary judgment in L & T No. 1382-A-74. Mr. Ivi Pele appeared and represented defendant Isumu Leapaga and Mr. Ray Coston appeared and represented plaintiff Government of American Samoa. Following a motion in open court, it was agreed by both parties, and ordered by the Court, that this be combined for argument with L & T No. 1409-74, and that this hearing would constitute a hearing on the Government’s motion for summary judgment in both cases.
The plaintiff in L & T No. 1382-A-74 (hereinafter, “Plaintiff”) here seeks equitable relief to enforce rights the Government allegedly obtained over the land in question some fifteen years ago. Isumu Leapaga (defendant in L & T No. 1382-A-74, hereinafter “Defendant”) has responded, inter alia, that the condemnation proceedings were defective for several technical reasons, that those proceedings did not comply with the condemnation statute then in force, that defendant Isumu was not given proper notice of the proposed condemnation, and that the Government has *143abandoned the property by not using it for fifteen years following the condemnation and by preparing to use it for a purpose other than the one for which it was condemned.
Only three of defendant Isumu’s claims are cognizable at this time. Generally, collateral attack on a condemnation judgment will be heard only when the judgment is attacked as void, and not merely technically defective. 30 C.J.S., Em. Dom. Par. 326. Defendant’s claim that the judgment is void because it failed to meet the statutory requirements is completely unsupported by the facts. While the Court has been [sic] cited several constitutional and statutory provisions, none brought to the attention of the Court was in effect at the time of this condemnation. In fact, the proceeding does comport with the requirements of the statute that was in force, and, since there was no Constitution of American Samoa at that time, that statute could not violate such a constitution.
Defendant Isumu next claims that even if the original condemnation proceedings did comport with such a statute, that statute would violate the Due Process clause of the United States Constitution because it does not require actual notice to be given to someone resident on the land to be condemned, and, in fact, actual notice was not given to the defendant Isumu in this case. Schroeder v. City of New York, 371 U.S. 208, 89 A.L.R.2d 1398 (1962), decided two years after the currently attacked condemnation, does not support defendant’s position. As the Court pointed out, the Constitution requires that notice be “reasonably calculated, under all of the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections (citing cases)”. 89 A.L.R.2d, at 1403. In Schroeder, where notice involved publication in small town newspapers at a great distance from the affected property and the posting of notices during thé winter months when it could have been *144reasonably expected that many land owners would be away, the Court found the notice did not meet the requirements. This Court now holds that the notice given in the case at bar was reasonably calculated to apprise the interested parties of the action and give them a chance to present their objections. In fact, this Court finds the notice was provided in such a way that it is simply inconceivable that defendant Isumu could have been on the land at the time, as he claims, and yet remain unaware of the proceedings.
Finally, it is clear that the Government has not abandoned the land. Abandonment of condemned land requires an intention to abandon and an act effecting the abandonment. Even if the long period of nonuser [sic] here could constitute evidence of an intent to abandon, there is no supporting act. Further, mere nonuser or misuser is not sufficient to give rise to abandonment of properly condemned land. See 30 C. J.S., Em. Dom. Par. 458.
All of the other arguments advanced by defendant Isumu are either directed toward technical defects of the condemnation, so not cognizable now (see 30 C.J.S., Em. Dom., Par. 327, dealing with Res Judicata) or else wholly without merit.
Thus, since it is established that there is no genuine issue as to any material fact and that the Government of American Samoa is entitled to judgment as a matter of law, THEREFORE
IT IS ORDERED that judgment be entered in favor of plaintiff Government of American Samoa and against Isumu Leapaga in L & T No. 1382-A-74, and in favor of defendant Government of American Samoa and against plaintiff Isumu Leapaga in L & T No. 1409-74, and
IT IS FURTHER ORDERED that Isumu Leapaga shall deliver possession of the property that is the subject matter of this action to the Government of American Samoa, and that he be permanently enjoined from going *145upon, or directly or indirectly interfering with construction upon, such property. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485305/ | The Plaintiff asserts that in 1968-1972, the Defendant thought of offering for registration some land in Tafuna as his individually owned land. Being unsure as to just how to proceed, sought advice from several different practitioners, and finally turned to the Plaintiff, a practitioner with a number of years experience. After several discussions and the Plaintiff’s viewing of the land, the Plaintiff agreed to take the case. At this time, the question of a fee arose and it was agreed by the parties that a contingent fee arrangement would be best.
A total of 45 acres was to be offered for registration as the Defendant’s individually owned land, and it was agreed that if the registration should be accomplished, the Plaintiff, as his fee, would receive 10 acres.
On May 23,1972, the Court, after a trial of two days and a viewing of the property, did approve the registration, and *151the land was registered as Defendant’s individually owned land. The Defendant then refused to honor the agreement and convey the 10 acres to Plaintiff, and continues to refuse.
The Defendant asserts that no such agreement was ever entered into, and on the contrary, states that when the question of a fee arose, the Plaintiff stated he did not want a fee, and would refuse any fee if offered. He states the Plaintiff offered to accept the employment without fee, because of an alleged family tie and out of the love he felt for the Defendant.
Defendant asserts he gave several sua’s to Plaintiff, consisting of a fine mat, a keg of beef, ta’isi and $100. He states this constituted payment in full for any services rendered, and he therefore owes the Plaintiff no part of the land registered in his individual name.
The trial of this case took approximately a day and one-half. The Court had the full opportunity to hear the testimony and to observe the parties and witnesses. The Court is of the opinion that the true arrangement and agreement is as stated by the Plaintiff, and so finds.
The Court is aware that the land in this area has greatly increased in value and that by this decision, the Plaintiff does receive a very large monetary fee. In turn, the remaining land of the Defendant has increased in value so that the proportions of the respective holdings of the parties, although each have large monetary value; nevertheless, maintain the same relative position as they did before the land so greatly advanced in value.
Contingent fee arrangements have recently come under question, but it has historically been a way that attorneys have accepted certain cases. It obviously allows an attorney to occasionally make a large fee in proportion to the actual time spent on a case. At the same time, an attorney has agreed that if he is not successful, he shall receive no fee, *152and it should be apparent that in many instances, he does fail to get a favorable result, and he receives no compensation, even though he has spent days and months on the case.
The exact location of the 10 acres has not been determined and if the parties cannot agree, the Court will designate the area upon a request by either party, and after a further hearing. The Court retains jurisdiction of this case for that purpose, if necessary.
Judgment is granted to the Plaintiff for 10 acres of land heretofore registered as the individually owned land of the Defendant as described in case number L & T 1239-71. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485307/ | The record of this matter begins after this manner upon due consideration of the Court regarding the motion introduced by the Afioga Salanoa S. Aumoeualogo.
After the T5fa Mageo Meauta testified, especially those who testified on the witness stand for Telesia Tiumalu Scanlan’s side, then the time was turned over to the Afioga *157Salanoa Aumoeualogo as counsel for his side for some who shall testify for Palauni Tuiasosopo.
At the very beginning, and before the Afioga Salanoa speaks for his side, the motion was first duly introduced after the following wording: “Public Law 10-16, 1968 § (1) 751, Qualifications for succession to title; Provided, that any person not possessing at least one-half (%) or fifty percent (50%) Samoan blood shall be ineligible to succeed any matai title.”
Accordingly, the Afioga Salanoa classified and outlined Telesia’s blood in support of his motion to the Court, and stated that Telesia has Tongan blood amounting to about 6% deriving from her being the offspring of her mother, Tiumalu Taimane, who is presently holding the title Tiumalu; he (Salanoa) further stated that Telesia, too, possesses Filipino blood through her father, and the said blood amounts to approximately fifty (50%) percent. Summing up both the Tongan and the Filipino blood re: Telesia and it total up to S&k. In other words, Telesia has but only 433k Samoan blood flowing in her veins (body). On the other hand, this means that there is 61k more to make up 50 % re Telesia’s Samoan blood in order she may be qualified for succession to a Matai Samoa according to the motion as entertained by the Afioga Salanoa.
Accordingly, the motion was well taken by the Court, however, the said motion was denied by the Court on its discretion and serious consideration, as well, and to resume the trial in order to discover evidence to determine whether the motion is in order or not, before divulging some evidences that were presented before the Court by those witnesses who testified; but the Court would like to, first, disclose its reasons for denying the motion.
The law has its required considerations whereby properties are to be segregated in that the law is to interpret clearly the intent of the law; for it is not that as soon as *158the law pronounces the guilt of a person, such as “Pai or Lafai”, “Tui or Seve,” then die instantly, before investigating and considering of the cause of the trouble. Consideration of whether said person should be punished or not, according to law.
Upon the following motion: There is no difference of the herein law from the Law in the Code of American Samoa; Section VI, Code of American Samoa 1961, Ed. 6.0110, P.L. 10-61, 1968 whereupon it states that “If it be for one calendar year that a Matai Samoa has not continuously residing in American Samoa, but is residing in some far off countries like America, Hawaii, or in any country which located outside of Samoa.” It means that such is under the consideration of the law, thereupon the family has the right to remove said person from his status as a matai in accordance to the law.
See the evidence in the case of Saga T. Vaivao, in the village of Leloaloa, L&T# 1510-75, whereupon one branch of the family objected and complained to the Court that the matai title of their family be removed on the ground that it has been six years of residing away from the family, and, for not performing a tautua to the family through performing his matai responsibilities, to the village, district and the country; and particularly the family is not living peacefully on the grounds that the lands and family properties have been prejudicially designated by him (the matai) to some people even though they are properties or communal family lands of the family. It reveals from the decision of the Court that the motion was denied and dismissed due to insufficient evidence to warrant the removal of the title from Saga T. Vaivao. Again, note that a complaint filed by the family on the ground that he has resided away from the family for one year; the evidence is that his absence was not only for one year but for six (6) *159whole years residing in America (U.S.A) charging him of violating the above mentioned law.
While Afioga Tiumalu Taimane, 70 years, who is presently holding the title Tiumalu was on the witness stand, she testified that she denies that point that Telesia possesses Tongan blood, because she is of aged in that she is seventy (70) years of age yet she had never heard anything that there are Tongan relatives of the Tiumalu family, neither she has Tongan relatives. She also did not hear any talk about a Tiumalu family trip that would have gone to Tonga either to visit or to trace Tiumalu family genealogical line with the Tongans, not at all. She also neither heard nor learned of any story to that fact that Tongan relatives of the Tiumalu family had come to introduce them to us and declared that they (Tongan relatives) have connection (gafa) to the Tiumalu family in accordance with the conditions of the customs of Samoa, never.
Likewise, T5fa Mageo entertained a motion for denial, and, in objection to the motion which was introduced by Afioga Salanoa, regarding the blood of Telesia. Mageo, counsel for Telesia, stated in his motion that “on page 218 of the ‘Black’s Law Dictionary’ you will find that there are three (3) types of blood: Half Blood; Mixed Blood; and Whole Blood. The wording lh blood denotes the degree of relationship between those who have the same father or the same mother, but both parents in common. Whole Blood is interpreted a person descent from the same father and mother. Mixed blood includes persons who descended from ancestors of different races or nationalities; but particularly, in the United States, the term denotes a person one of whose parents (or more remote ancestors) was a negro. You will find it in the U.S. v. First National Bank of Detroit, Minnesota, 234 U.S. 245, 34 S.Ct. 846, 58 L.ed. 128.”
*160As the translating of this motion to this Court was first objected to, that no person in this world can now test blood that are flowing in the veins of a family such as the Tiumalu family. It is proven there are about three (3) types of blood that can be tested now as we have found them from the wishes and careful researches and the studies of medical doctors thereupon they declared that there are three types of blood. The types are O, A and B. Thereupon the Court declares that Telesia Tiumalu Scanlan, born in Samoa, has resided continuously in American Samoa, she is 49 years now and is still living with Samoans — during her entire life; that there is Tiumalu blood in her veins — equals to 50%, and this was confirmed by candidate Palauni Tuiasosopo, and especially the Afioga Salanoa Aumoeualogo who is counsel for Palauni Tuiasosopo. It, therefore, the ruling of the Court ref [sic] the said issue, as one part of the case, that Telesia Tiumalu Scanlan is eligible now to succeed and hold a matai title in the Government of American Samoa.
And the Court will now turn to find facts in reference to evidences and testimonies of those who testified for each party respectively before the Court.
This matter was first referred to the Office of Samoan Affairs pursuant to law, in that investigation be conducted to discover whether settlement could be reached that Tiumalu family would live peacefully. The family, however, was unable to reach settlement, accordingly, it was referred to the law and the Court. Moreover, it was filed with the law because of Telesia Tiumalu Scanlan offering the title Tiumalu to register in her name, and this application was filed on March 11, 1974, Fagatogo, County of Ma’uputasi. Whereupon Palauni Tuiasosopo filed his application for registration of the title Tiumalu in his name, in the month of May 14, 1975, Fagatogo, County of Ma’uputasi.
*161Now, the Court will consider Telesia Tiumalu Scanlan’s application, as well as Palauni Tuiasosopo’s application.
Counsel for Telesia Tiumalu P. Scanlan — Tofa Mageo Meauta Atufili.
Counsel for Palauni Tuiasosopo — Afioga Salanoa Aumoeualogo.
Section 6.0107, Code of American Samoa outline considerations which the Court shall be guided in its determination as to which candidate to the title is suitable to register the matai title, and the section reads as follows:
Section 6.0107 — that determination of the Court on Land and Titles shall be guided by the Court on important considerations as outlined:
(1) The best hereditary right, as to which the male and female descendants shall be equal in families where this has been customary; otherwise, the male descendant shall prevail over the female.
(2) The wish of the majority or plurality of the clans as customary in that family.
(3) The forcefulness, character and personality and the knowledge of Samoan customs.
(4) The value of the holder of the matai title to the family, village, county and country.
The first consideration of the Court was on the issue on hereditary right to the title Tiumalu. The Court deliberated on the evidence and grouped them together in the light of the witnesses’ testimonies and counsels’ arguments. These caused the Court to believe that Telesia possesses one-half C/2) or fifty percent (50%) Tiumalu blood in Telesia’s veins — and Afioga Salanoa who counseled for Palauni Tuiasosopo concurred.
Regarding Palauni’s blood, the Court had difficulty to firmly determine Palauni’s blood due to a number of those who testified against the Tanielu clan; the Court believes that a person who desires confirmation of his blood for the purpose of succeeding or becoming a matai of a certain family, based on his connection to a certain title, through *162his descent and a clan of his descendant. In other words, if a person not descended, out of a clan that is related to the title Tiumalu, then it meant that there has also not in his veins (body), blood related to the title as tama-matua Petelo, who is 60 years, testified to. He said that “Tanielu, to whom Motumotu, the father of Tuasosopo Mariota descended to whose offspring is Palauni, now a candidate to the title Tiumalu, was not a Samoan, but a Hawaiian. The complete story as testified to by the said tama-matua will not be recorded that his denial of any Tanielu clan in the Tiumalu family.
In the entire written statements by Samu Fa’amao Tiumalu, he said in his testimony that if he would testify on behalf of either of them, Telesia or Palauni, he would state the truth from God. The testimony in its entity causes the Court to positively know and believe that it is a remonstrant testimony emphasizing the fact that there is no Tanielu clan in the ancestry lines of Tiumalu family. Those who were introduced and made statements in the record of Samu Fa’amao Tiumalu’s testimony are the following:
(a) Ta’amu who descended from Luteru clan told Samu Fa’amao Tiumalu that clans of Tiumalu family are Luteru, Malaki, Male (Faigatá) and Eseta.
(b) Likewise is the testimony of Liufau whom Tiumalu Taimane, the present holder of the Tiumalu title, descended from. Liufau’s statement to Samu Fa’amao, too, that, remember your ancestors to wit: Luteru, Malaki, Male (Faigatá), and Eseta.
(c) Also the testimony of the tama’ita’i matua Mausa and Tiumalu La’ila’i given to Samu Fa’amao Tiumalu in the same language.
(d) In the statement Samu Fa’amao Tiumalu, he testified that his grandmother (tiná-matua) Tá’itai, told him the following: “Tanielu was the father of Motumotu; Motumotu was the father of Tuiasosopo Mariota, Toso, *163Fa’ata’ape and Saufaiga — they are our relatives (aiga) in the Samoan way (fa’a-Samoa) in relation to the Tiumalu family, yet not blood relatives (e le o aiga tau-toto). This Ta’itai, Samu Fa’amao Tiumalu’s grandmother who said that she often talked with Motumotu and she was a good server (tautua), however, no Tiumalu blood in her veins (tino).
(e) Fa’aafe’s father, Luteru, adopted Ta’ateo. Her statement to Samu Fa’amao Tiumalu was that Ta’ateo was an adopted one, she too, has no Tiumalu blood. Fa’aafe also informed him, if he liked to know for sure then ask Pala Tavu’i.
(f) Pala Tavu’i verified statements of Ta’itai and Fa’aafe that there is no Tiumalu blood in Tanielu and his seeds, so as Ta’ateo and her children.
(g) All of these recorded statements were around 1928, 1930,1932,1936, and 1938.
The opinion of the Court formed from the testimony of Petelo and the entire statements of Samu Fa’amao Tiumalu seemed like a picture taken by a camera, in the mind of the Court, in that Tanielu clan is an applied or an added one into the genealogical lineage of Tiumalu family, but according to the true tradition of Palauni family as was related by one direct testimony in that the genealogical lineage re their connection to Tiumalu family is as follows: Tiumalu Mataiasi was the ancestor of Tanielu, Luteru, Malaki, Faigata and two girls, Tupu and Litea.
This Tanielu married Tia’ina, daughter of Savea of Matu’u, whom Motumotu is descended. Said Motumotu married Mereane, daughter of Kuki (minister), the offspring was Tuiasosopo Mariota, Toso, Fa’ata’ape and Saufaiga; and this same Tuiasosopo whose offsprings are Mariota, Mere, and Palauni now candidate to the title Tiumalu.
*164And the classification of the blood of Tanielu clan is as follows: Tanielu to Tia’ina, the offspring was Motumotu Tuiasosopo Sarnia, is equal to 12lh% or Vs. Motumotu to Mereane is equal to 6k% or Ve. Mariota Tuiasosopo to Venise is equal to 3 Vs % or V32. In other words, Palauni’s blood to the Tiumalu is equal to V32. And the other testimony which is in the written record is the testimony of Samu Fa’amao Tiumalu to the fact that Toso, the brother of Tuiasosopo, said to Samu Fa’amao Tiumalu that his brother was Mariota Tuiasosopo. That the Tanielu clan takes charge of the selection of a person to hold the title Tiumalu, even though a number of evidences that caused the Court to believe the objection of a large group of Tiumalu family in that there has been no Tanielu clan in the genealogical lineage of Tiumalu family. But the Court has given grave considerations in order to qualify Palauni Tuiasosopo’s blood pursuant to the pedigree of Tanielu clan relating to their connection to the Tiumalu family. Moreover, the T5fa Mageo Meauta, counsel for Telesia, has mutually stipulated that Palauni’s blood to Tiumalu title is equaled to V32.
It therefore decided that the Tiumalu blood flowing in Telesia Tiumalu Fouuluvale Scanlan’s veins is 50%; but Tiumalu blood running in Palauni Tuiasosopo Sarnia’s veins is V32. In other words, Telesia prevails over' Palauni on hereditary issue.
The second issue of the matter “The wish of the majority or plurality of the clans of the family as customary to that family.”
In Palauni’s questionnaire it discloses that there are seven (7) clans in the family, namely, Tanielu, Malaki, Luteru and Faigata; and this is Palauni’s concrete testimony while on the witness-stand that there are only four (4) clans of Tiumalu family. But Fagaso’aia Lio testified on the witness-stand that the family has five (5) *165elans. Moreover, this Fagaso’aoa Lio, representative from Luteru clan, has testified on the witness-stand that he supports Palauni.
It was very clear to the judge that Tófá Mageo Meauta, counsel for Telesia did ask Fagaso’aia twice while on the witness-stand “About how many clans of the Tiumalu family?” Fagaso’aia’s answer is “Only five (5) clans,” and this has indicated to the Court that Palauni is somewhat contradicting Fagaso’aia Lio who testifies representing Luteru side which is supporting Palauni. But the Court knows now these two contradicted each other and this seems to the Court they do not agree on the issue on clans, according to the belief as maintained by supporters of Palauni. Anyway, this is an acknowledgment to the Court that Fagaso’aia Lio strongly opposing Palauni, as the court understood it, and from what was testified in that Fagaso’aia Lio, who is acting for Luteru clan, is supporting Palauni. The careful weighing of evidence the Court has detected that the majority of Luteru clan is not with Palauni since they admitted that there are five (5) clans of Tiumalu family; however, Palauni with his side re Tanielu maintained the belief that there are four (4) clans of Tiumalu family.
Each questionnaire contains twenty-four persons who signed their names on each questionnaire respectively. That means they are on a par as to the total number of persons who affixed their signatures respectively on both of them (Telesia and Palauni); but there is something rude therein when it comes to think of it. In both questionnaires are names of those who signed twice. This denotes that these (persons) have not yet set their minds to one of the above two, consequently, they signed their names on both questionnaires of Telesia and that of Palauni.
The Court, thoroughly studying both questionnaires, is positively sure that there are only four (4) persons of the *166Tanielu clan who signed in support of Palauni, even though Palauni, candidate to the title Tiumalu descended from this very clan; therefore, if we deduct this one person who is a descendant of Tanielu clan who signed his name in favor of Palauni, and then signed in support of Telesia, even though the Tanielu clan is backing Palauni, this would mean that Tanielu clan could have only three (3) members left, and this is the clan wherein Palauni descends; furthermore, the Court after reviewing Telesia’s questionnaire thoroughly, mainly those of her own Malaki clan who favor her, there are 19 signatures; and if the two signatures of Malaki clan who have signed in both her questionnaire and that of Palauni be crossed off it leaves seventeen (17). If then the Court considered that only three (3) members of Tanielu clan supporting Palauni against seventeen (17) of Malaki clan supporting Telesia, this shows how wide apart Telesia prevails Palauni regarding their respectful clan thusly Malaki for Telesia and Tanielu for Palauni.
On other clans that T5fa Mageo referred to such as Malaki clan being the largest in the Tiumalu family is backing Telesia. Faigata clan — part of said clan is upholding Telesia, so as Tanielu clan. The evidence from the argument of T5fa Mageo, he outlined the division of Faigata clan and their names are: Male, Fa’amao, Falo and Yiavia; Tofá Mageo’s testimony was that Palauni is supported by Male’s heirs, but Fa’amao is upholding Telesia, ref the children of Falo and Viavia — the Tofá Mageo further said in his testimony that candidacy of Telesia is supported by clan of Faigata; in the clan of Eseta according to this matter, Mageo testified that the herein clan is splitting in two since Telesia is being supported by the elderly lady (tama’ita’i-matua) Fa’alogoa’e who is still living with her family. Her brother’s children, however, are supporting Palauni.
*167In Palauni’s side, Mariota Tuiasosopo testified that Palauni is supported by Tanielu clan. Afioga Salanoa asked Folasa while on the witness-stand as to “who does Faigata clan support” — Folasa’s answer was that Palauni is supported by Faigata clan. Fagaso’aia Lio was also asked as to who does Luteru clan support, and Lio replied — “Palauni”. This same Fagaso’aia testified on the witness-stand that Tiumalu family has five (5) clans. And the document whereupon Samu Fa’amao’s testimony is recorded and has been admitted as evidence of the Court contains only four (4) clans of the Tiumalu family, and their names as follows: Malaki, Luteru, Faigata, and Eseta, but no Tanielu. Furthermore, Samu Fa’amao Tiumalu said in his testimony that Ta’ateo is an adopted one of Luteru. This Ta’ateo where Lio Fagaso’aia descends from and who testified of five (5) clans, and he (Fagaso’aia Lio) is supporting Palauni; and referring to Palauni’s questionnaire four (4) clans of Tiumalu family are written therein, and their names are as follows: Tanielu, Luteru, Male (Faigata) and Malaki, but Eseta is not included. Telesia also, did not mention anything that there are seven (7) clans customary to the family; also Litea and Tupou are not mentioned in Telesia’s list of clans; thus the Court has gained its understanding and its decision that they are in a clash on the issue on clans, on the ground that no one of the above two candidates to this title have ever told us the total number of blood members of a particular clan which support which of the candidates. And, therefore, this Court cannot render a decision based upon assumptions. We failed in our consideration as to which of these two candidates is supported by the majority of the clans of the family as customary to the family pursuant to the testimony given. Accordingly, we will disregard this issue at our deliberation re our decision re which one of them bears the title Tiumalu.
*168The third (3) issue of the foregoing litigation is “forcefuleness”, character and personality of the one holding the matai title, and especially the knowledge of the Samoan customs. The Court shall first offer a thought on the issue of qualification on Samoan custom. Few simple questions were asked of both of them in relations to the Fagatogo village; though some of the questions and answers were uncertain, any way they moved along together on this part of the third issue of the trial, and, the Court believes that the matai title “Tiumalu” is the “ali’i” title which does not bother to learn the art of speaking as in the case of tulafale titles. The Court believes if one of them (two candidates) succeeds the title Tiumalu, much knowledge about the sure meaning of the custom of the true Samoans would gradually be obtained.
On the issue on forcefulness and personality. It appears in the mind of the Court that Palauni had gained higher educations, and especially his government service. Palauni had attended some major center of education in America at the University of Oregon, and the University of Southern California, he also attended education center in Hawaii, at the East West Center, and Punahou School in Hawaii; he too had completed high school in American Samoa especially the many other fields of education and employment he was engaged in as listed in his questionnaires. Telesia attended and graduated from the Sisters School in American Samoa. She also went off island for schooling in Hawaii, at Lauahola, taking a special course on handicrafts; Telesia also took up courses on general knowledge and the English as well as vocational courses, and particularly a course on dancing and entertainer, in Honolulu. The Court has accepted that Palauni’s education and services are very outstanding, especially his present position as an Aide to the Governor, thereupon he draws very high wage of $23,270.00 per annum not counting his *169wife’s income; and if added together it could amount to $29,000.00 income per year. Telesia operates joint businesses with her husband and she stated that she gets $1,000.00 per month or $12,000.00 per year excluding her husband’s yearly earnings of about seven to eight ($7,000.00 to $8,000.00) thousand dollars. She did not mention any income receiving from her children who are employed with the government or her son who is in the U.S. Army including others who attend school and work. The Court believes that Palauni’s education and positions of employments are higher, particularly their wages, Palauni is higher than Telesia. Accordingly, Palauni in percentage wise is higher than Telesia on this part of Chapter 3, to wit: forcefulness, character, and knowledge of Samoan customs.
On the item of personality, their personality and calmness seemed to be equal; but the Court seems to take the view that Telesia bears a pleasant personality while Palauni a fallen countenance; because Palauni is quiet and it apparent he does not like people, however, he is considered a person of good conduct; Telesia, however, prevails on personality and in living happily. This is another part of the issue on qualification to persuade members of a Samoan family; many of the Samoan people are accustomed to speak to other people in general saying, “how good is that man and that woman who bear happy countenances, but it sounds bad in the fa’a-Samoa when it said that “the man and the woman are good except they don’t look happy with the people.” Indeed we know the culture and the true Samoan customs that if a person is found to be living happily, a couple or a family who lives after this manner such as living happily is liken to living true Samoan custom; if, however, a person lives a seemingly unhappy life, he would likewise be undesirable by anyone else, as was mentioned by Tofá Mageo in his *170view of Palauni while on the witness stand, he said that Palauni is in the class of frowning life. It is the opinion and belief of this Court that this is part of the issue of forcefulness — for a matai with delightful countenance, and is well-liked before his family will also be an attraction of the family toward him/her in the spirit of happiness, accordingly, the Court concluded that percentage-wise Telesia prevails Palauni on this section of the third (3rd) consideration, to wit: forcefulness, character (amio), knowledge of Samoan customs pursuant to Exhibit 1 of T5fa Mageo for his client, as follows:
(a) Telesia has the Power of Attorney to represent some matters, as stated, that in 1966, she served as personal representative of Tiumalu within Fagatogo Village directly with Faletua and Tausi in connection with the cleaning and beautifying of Fagatogo. The said drive caused Fagatogo to win the first prize on the beautification contest.
(b) She, for six (6) years, served as a faletua of the Tiumalu family, and simultaneously she participated with the village council or associated with matai in accordance with Samoan customs.
(c) In 1973, selected by ali’i and faipule of Fagatogo village to be Pulenu’u and she served in this position for two years.
(d) That Telesia requested Public Works Department to construct a bridge, thus the said request was brought to pass at the completion of the said project in the village of Fagatogo.
(e) That Telesia appealed to Afioga Kovana Itumalo, Eastern District that Fagatogo village performed the dance- and the song for the Flag Day celebration of the Government of American Samoa. Telesia made the said request by virtue of her being the Pulenu’u — but, this section of the third (3rd) consideration of the Court was objected *171to by Afioga Salanoa upon the ground, that there was not a single evidence nor a testimony presented to the Court that' touched this point as it submitted to Court now — the Court overruled the objection, and therefore Mageo continued on.
Moreover, this entire part, like all of the above facts which were presented has pointed out that Telesia is truly qualified to succeed the matai title Tiumalu upon her leadership performance in that every one of them completed favorably; however, the Court in its own wisdom, the judges was able to pose a hypothetical sample question as follows: Had Tiumalu felt, concurred by one group of the family, to appoint Palauni to represent Tiumalu Taimane on the grounds that she is old in age and feeble, such as in the case of Telesia, will Palauni have performed the good works herein as in the manner Telesia did? The Court’s hypothetical answer is that Palauni could also do all the herein works as did Telesia. Though the Court is in doubt whether Palauni does the said work or not; any way, Afioga Tiumalu Taimane had not expressed intentions that Palauni continues her administration as she (Tiumalu Taimane) declared that Telesia takes over her administration due to her age; but the Court indeed believe that Telesia’s good works could be superseded by Palauni’s good works if it be done willingly. The Court, therefore, contended that they are in parity on this point, that is consideration three (3) of the Court — “Forcefulness, character, personality, knowledge of Samoan customs”— thus the Court has reached this decision after dividing their points or percentage as follows:
a. Regarding the issue on knowledge of the Samoan customs, they are in parity;
b. Regarding education and employment, as well as income, Palauni prevails Telesia;
*172c. On the issue of personality and character, Telesia superseded Palauni;
d. On forcefulness and character, they are at par. The Court after considering the following sub-sections of the third (3rd) consideration to wit: forcefulness, character, personality, and the knowledge of the Samoan customs find they are equal.
The fourth (4th) issue says: The value of the holder of the matai title to the family, the village, and the country. This issue is part of the matter (fa’amasinoga) and it’s a difficult issue the Court had to consider; other people, and legal counsels are of the opinion that when a person prevails over the third (3rd) consideration, it would be interpreted that that person automatically prevail on the fourth (4th) consideration. The Court’s answer to said conclusion is “no.” Legal counsels and the public are fully aware of the language of the third (3rd) consideration which says: “Forcefulness, character, personality, and knowledge of Samoan customs.” But the fourth (4th) consideration, “The value of the holder of the matai title to the family, the village, district and the country.” This makes difference as pointed out by the Court. The Court will now consider with great care which of these two should bear or succeed to hold the title Tiumalu during this period.
And, will begin after this manner: All activities and works which have completed by them, activities and things which are still going on, the court is taking judicial notice; moreover, a picture apparently depicting an invisible move that both candidates to the Tiumalu title desiring to perform, furthermore, the income received by each of them as in the case of Palauni who receives from his present employment as the Official Aide to the Governor of American Samoa, thereupon he gets $23,270.00; if his wife’s income be added then the grand total would be *173$29,000.00. No further comments about services and Palauni’s education, as it has been revealed earlier at a certain part of the third (3rd) consideration, particularly his outstanding achievements in the field of education and employments whereby he surpassed Telesia’s education and employment. Telesia gave a personal testimony stating that her monthly wages was $1,000.00 or $12,000.00 per annum; she did not comment re her husband’s wage, but taking judicial notice, her husband earns about $7,000.00 to $8,000.00 a year; again, no further comments on Telesia’s education and services which were already mentioned above in connection with consideration three (3) re the matter at bar; in other words, referring to each candidate’s income, Palauni’s wage is above Telesia’s; furthermore, money is a valuable thing as known throughout the world. It is not only valuable to the individual, but to the family as well; then this much money that Palauni gets through his knowledge and wisdom gained from the many field of education he attended to, Palauni therefore, must have built a guest-house or business, such as a restaurant, garage, or a plantation of his own or even a store — this would be good means whereby some of the public might gain employment and receive money for their own use.
The Court is of the opinion that that would only be something that would be a physical result of the wisdom and knowledge which he gained from higher education, especially of much money which he gets — and the most treasured thing to a man would be his beautiful strong fale for him, his wife and children to live in. But lo and behold, when Tofá Mageo, counsel for Telesia, asked Palauni while on the witness stand — if he’s got a house, Palauni’s answer was “no.” Mageo asked Palauni as to whose house he is living now. Palauni’s answer is that “his sister’s house.” Mageo asked if he is serving a Samoan matai, and Palauni’s answer was “no.” Mageo asked if he *174is maintaining his taule’ale’a monotaga in Fagatogo, and Palauni answered “no.” Mageo asked Palauni as to the election district he is a voter at the election, and Palauni replied, “that he is a voter at Vatia.” The herein facts before the Court are Palauni’s personal testimony in Court. Something about Palauni’s rendering services (tautua) to the Tiumalu family was mentioned in one part of the foregoing record of this matter; such services, however, rendered only at times when an incident occurred in the Tiumalu family, or only at times when it can, but not every day; but Palauni gave a correct answer in his reply to Mageo’s question when he (Palauni) said “he is not rendering services to a matai.” All these points that Palauni has personally testified upon, and the Court finds, are not in line with his preparation to this period of time. Again, note that this is the only issue in consideration three (3) in that Palauni prevails Telesia — on the number of higher educations and positions he holds due to his outstanding knowledge whereby his qualification is based on. He is working in the Office as Aide to the Governor of American Samoa, whereupon he receives a very high salary; but there is no physical fruits as of what had been put up from this income; it is caused by lack of sharing such on useful things for him. Again, listen to his own testimony before the Court in that he has no house to live in with his wife and his children, instead, he with his wife and the children are living in his sister’s house. In an opinion and the findings of the Court, the said house is the ownership of Palauni’s sister and her husband, and this house is located on the individual property of his brother-in-law but not on Palauni or Tiumalu family land. This is not the case. This is one of most embarrassing and unrecognized observations of the true Samoan customs that a sister and brother occupying the same house, or a brother and his wife lodging in the same house with his sister and *175her husband under the same roof; that Palauni has no monotaga as a young man in the village of Fagatogo. That means he has not the appearance of being an example for preparation to succeeding a matai title; there being no continual services nor a direct services to a matai, then there is no qualification as of true fa’a-Samoa according to customs which are customary to the Samoans. It pointed out in Palauni’s questionnaire that he has added responsibilities besides his present position as was testified that he is Permanent Assistant Delegate of American Samoa to the South Pacific Conference, Chairman, Board of Trustee, Museum of American Samoa, Director, American Samoa Program for the Elderly People, and various other programs within the works that Palauni performs. But remember when more works with special committees a person is engaged in besides his or her actual position in the government, it meant that his mind will pay much attention and so at the same time have insufficient chance to bring up other valuable experience such as a time to be with his family, as a matai; for the Court believes that more chance a matai spends with his Samoan family, the better the relationship and happiness will the matai and his family members experience with the true Samoan way of living; it will draw the family to live Christian-like life. The Court is therefore reminded of the following sayings: It is useless to own much material rich and prosperity without knowledge of how to spend them properly.
Regarding Telesia, if the Court were to contemplate the record of her works already done — in reference to consideration three (3) as follows: Forcefulness, character, personality, and knowledge of Samoan customs — we will not repeat this, since the Court believes that Telesia is well familiar with proving and fulfilling the matai-family relationship in view of her experimental service, she needs no other training to an attempt to succeed to hold a matai *176title, for it’s done already, and has for the last six (6) years on this experiment service — this is improvement, and would make it easier for her to succeed to be a matai of a Samoan family. Telesia’s yearly income is somewhat smaller and it’s about $12,000.00, not counting her husband’s income from the government amounting to $7,000.00 or $8,000.00 per year as is fully known by Afioga Salanoa being the President of the Legislature and Tofa Mageo Meauta, being the secretary to the Governor of the Eastern District, thus the Court pointed out this issue regarding the wages of Telesia and of Palauni. Palauni receives his wages from his government position as he mentioned — in other words then, if he be dismissed from his service immediately there would be no money received to support the family and his matai as well. Telesia’s income comes out of the work of her own hands and her ideas together with the sound support of her husband — it meant, as the Court felt, Telesia apparently fixed her own wage since the money coming in, is from her own businesses, as she has a fine motel, a two-story building, decorated beautifully wherein Telesia and her workers usually entertain; the Bar Association, too, usually hold their meetings therein and Afioga Salanoa and Tofá Mageo is fully aware of that since they are not only members of certain committees but are members of the said Bar Association. She has a liquor or beer tavern which is publicly known as “Bamboo Room,” moreover, of her beautiful home at Malaeimi where she now lives. Some of the public are employed in the Ice Cream branch, and Telesia pays them out of the income from her businesses; even though it is understood to be a joint business with her husband, the Court, however, believes it’s Telesia’s efforts that generate all these things, that all of Telesia’s works are her own. It’s not a work controlled by the Government, with only bills and business licenses to pay. There would be no reason for dismissing Telesia from work because she is the *177boss of the entire operations. The Court is of the opinion that Telesia’s work will continue on as long as she likes. The Court, in its opinion, has disclosed the said foregoing valuable things as a result of Telesia’s works together with her husband’s help in consideration of Telesia’s monthly income of only one thousand ($1,000.00) dollars, in comparison with the yearly income of twelve thousand dollars ($12,000.00). Summing up the four sections of the Code, the Court concluded that Telesia prevails on issue four (4) on this part of the trial. If four issues be totaled up pursuant to the language of the Code — in reference to the two claimants to the title Tiumalu, as considered by the Court, it reached the following findings: regarding Telesia’s hereditary rights, it is proven before the Court she has fifty (50%) percent Tiumalu blood. Palauni is proven before the Court to have had one-thirty second (V32) Tiumalu blood. Telesia prevails over Palauni in that she has more blood. On the consideration on the wish of the majority of the clans upon each of the claimants, the Court upon consideration, disregarded it. The consideration on forcefulness, character, personality, and being qualified on Samoan customs, they are in parity. The fourth consideration reads: The value of the holder of the title to the family, village (community) and the country. Telesia prevails over Palauni, and in adding all testimonies brings about the following: That Telesia prevails on hereditary right. The two are at par on the consideration of supporting by the majority of the clans as is not considered. They are also equal on consideration three (3), but Telesia prevails on four (4).
WHEREFORE, IT IS ORDERED, DECREED AND ADJUDGED, that Telesia F. Tiumalu Scanlan has the decision, and is hereby awarded the title “Tiumalu” of the village of Fagatogo. The Territorial Registrar is hereby instructed to register the title Tiumalu upon Telesia. Court *178costs for five days is one hundred twenty-five ($125.00) dollars and shall be paid by Palauni Tuiasosopo within thirty (30) days from the date the foregoing decision was signed and approved. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485311/ | OPINION OF THE COURT
MORROW, Chief Judge.
The defendants had begun the erection of a bakery building on Tiumalu Family land in Fagatogo when the plaintiff, a member of the Tiumalu Family, filed his petition to enjoin the erection of the building, alleging as a ground for injunction that the building was being erected “upon a parcel of land belonging to the Communal Matai Family of Tiumalu in the Village of Fagatogo; the said parcel of land is known as the ‘Faleulu’ which is supposed to be a *196well known location for the Maota of the Tiumalu title and the whole Communal Family; i.e., where the guest fale or headquarters of the said Tiumalu Family for their general and public use in accordance with Samoan customs.” The defendant Theresa Scanlan is a blood member of the Tiumalu Family while her husband Herbert, the other defendant, is also a member under Samoan custom, being a married man to the family. The matai, pursuant to Samoan custom, had assigned the land on which the bakery building was being erected to Theresa in order that she and her husband might put up a building on it and use it as a bakery. The defendants started to erect the building but discontinued its construction when the plaintiff filed his petition.
When the case was first called for trial, Tiumalu Taimane, the matai of the family, asked the Court to postpone the hearing in order that she might call a meeting of the Tiumalu Family for the purpose of discussing the dispute which had arisen within the family and to promote peace and harmony within it.
The meeting was called. There are five clans in the Tiumalu Family. Three of the clans expressly approved the assignment of the land to Theresa. A fourth clan, acting through its representative, Unai, impliedly approved the assignment by asking Uputasi to consent to the wish of the matai. Only the Faigata clan of which the plaintiff and Faamao are members disapproved it. The Faigata clan was represented by Folasa and Uputasi.
During the course of the hearing, the Court viewed the land involved in the presence of the parties, counsel, and the matai of the family.
The evidence established that the original guest house location was where the present Catholic church in Fagatogo is located. Tiumalu Lailai, the father of Taimane, the present matai, is buried just a few feet from the east end of the church. Prior to Lailai’s. death, he had moved the guest *197house of the family from Faleulu to Saumaleato, a piece of communal land of the family on which the bakery building was being erected, using some of the timbers in the old guest fale in the erection of the new guest fale. The new guest fale was erected on the spot where Theresa and Herbert presently have their house, which is also the residence of the present matai. The part of the land Saumaleato on which Lailai erected the new guest fale is a considerable distance from the part of Saumaleato on which Theresa and Herbert started to erect their bakery. The Court could easily see that the part of Saumaleato on which the bakery building was being erected was not used nor at all necessary for the erection of Lailai’s new guest fale.
It was claimed by the plaintiff Folasa that the very spot on which the bakery was being erected is now a part of the land Faleulu. The matai denied this on the witness stand. She claims that Faleulu is the spot wherever the matai has his (or her) residence, and that that has been true ever since Lailai moved the guest house location from Faleulu where the church is to the spot where Theresa and Herbert have their house, in which house, as we have already said, Taimane, the present matai, resides with Theresa and Herbert.
The evidence convinces us (and we saw the land and heard the witnesses) that the bakery was being erected on the land Saumaleato and not on Faleulu. No Tiumalu has ever had his guest house on the spot where the bakery was being erected.
Plaintiff Folasa has not rendered any service to the Tiumalu title since the case involving the renting of a piece of Tiumalu land to Max Haleck was heard about two years ago. Faamalo, who operates the Pago Bar on a piece of Tiumalu communal family land, has not rendered any service to the Tiumalu title since the Court designated Taimane as the Tiumalu some five or six years ago. Both Theresa and *198Herbert render service to the Tiumalu title in accordance with Samoan customs.
Both Samoan judges (and they are matais) assure the writer of this opinion that the matai, under Samoan customs, has the pule over communal family lands; that such lands are under the matai’s control and jurisdiction and that the matai has. the authority to assign a piece of family land to a member of the family, and that it is not necessary to have a family meeting to discuss the matter prior to the assignment. Also the writer of this opinion, in view of his long experience in Samoa, knows the customs and that all of this is true. We take judicial notice of Samoan customs.
Section 2 of the American Samoa Code provides that “The customs of the Samoans not in conflict with the laws of American Samoan or the laws of the United States concerning American Samoa shall be preserved.” There is no law of American Samoa nor law “of the United States concerning American Samoa” which deprives the matai of a Samoan family of the pule over communal family lands. This Court must abide by the foregoing provision in Section 2 of the Code in deciding this case. Of course the pule must be exercised fairly and justly for the benefit of the family.
Samoan custom gives the pule over the part of the land Saumaleato on which defendants Theresa and Herbert started to erect their bakery, it being communal family land of the Tiumalu title, to Taimane, the present Tiumalu. The custom does not put the pule over this land in the hands of plaintiff Folasa. If Faamao can have a piece of family land assigned to him for commercial purposes without rendering any service, we think Theresa, too, may have a piece of family land assigned to her for commercial purposes. Both Theresa and Herbert do render service. *199Since Tiumalu Taimane, the matai, has assigned this land to Theresa, a blood member of the Tiumalu Family, for bakery purposes, it follows that the plaintiff Folasa’s petition must be dismissed.
If Folasa or the Faigata clan in .the Tiumalu Family, of which Folasa is a member, could stop the erection of this bakery, then Folasa or his clan would have the pule over the land involved and not the matai. That would be in direct violation of the Samoan custom which Section 2 of the Code says shall be preserved as long as it is not in conflict with a law of American Samoa or a law of the United States concerning American Samoa. The matai, not Folasa or the Faigata clan of the family, has the pule.
ORDER
Accordingly, it is ORDERED that the plaintiff Folasa’s petition be and the same is hereby dismissed.
Costs in the sum of $15.00 are hereby assessed against Folasa, the same to be paid within 30 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485312/ | OPINION OF THE COURT
MORROW, Chief Judge.
Tali Fuamaila, the matai of the Tali Family in Pago Pago, filed his petition seeking an order requiring defendant Faanumi Tupeona to remove the “Fa’anumi house from Pouono.” Prior to the hearing the Court viewed the house and Pouono.
The land Pouono is the location for the guest house of the Tali Family in Pago Pago. It was contended by defendant Faanumi that the true guest house location for the *201Tali Family is another land near Gagamoe. However, we are convinced from the evidence it is Pouono.
We are satisfied from the evidence that Faanumi is a blood member of the Tali Family. Plaintiff himself swore under oath in the Tali title case in 1947 (No. 38-1947, H.C. of Am. S.) that she was a member. However, he says now that he learned later that she was not. We think his statement under oath in 1947 that she was a member was the truth, and that what he learned later is an error.
About 32 or 33 years ago a round house for the Tali Family was built on Pouono. It was used as a guest house with the consent and approval of Tali Filiga. Faanumi used it as a residence. We are convinced from the evidence, that because Tali Filiga, the then matai, did not have sufficient money to errect a guest house himself, he got Faa-. numi and her brother, Pastor Ueligitone, to get their brothers (brothers in the Samoan sense, not the palagi sense) in Manua to come over and build it. Tali claims that it was built by some Nuuuli people and that contributions were received from Tali people in Tutuila. However, Tali admitted on cross-examination that “Faanumi and her cousins from Manua built a round guest house for Tali Filiga” on Pouono “between 1928 and 1929.” While there were contributions from Tutuila people, viz., Amata, Puipui, Siufaga, Tupua and Tali, we are nevertheless convinced from the evidence that most of the work was done by Faanunii’s brothers (cousins) and that much of the money involved was furnished by Faanumi and her branch of the Tali Family, and that that was the reason why Tali Filiga (he had no money) in his capacity as matai assigned the part of Pouono on which the round house was erected to Faanumi, a family member, and authorized her to make use of the round guest house for her living quarters. Tali Filiga had assigned part of Pouono as early as 1924 to Faanumi and she has'lived there ever since.-She occupied' *202part of Pouono with approval of the matai for four or five years before the round guest house was built.
About 1938 or 1939 the round house was accidentally burned. It was Faanumi and her husband who came to the aid of the Tali Family and erected at their own expense the present house which the plaintiff seeks to have removed from Pouono.
After the round house was burned and the time had come to erect a new guest house, Tali Filiga was old and still without money and unable to build a new guest house. But he wanted a new guest house built and at his request to Faanumi the new guest house was erected by her and her husband at their own expense upon a part of Pouono, the same part which had been assigned by Filiga in 1924 to Faanumi. Not only did Faanumi and her husband build the new guest house for the Tali title at their own expense upon the part of Pouono assigned to Faanumi by Tali Filiga but they rendered additional service to Tali Filiga from before the time the round house was built more than 30 years ago to the time of Filiga’s death in 1946.
The plaintiff, Tali Fuamaila, was awarded the Tali title in October 1947. The defendant Faanumi and her husband rendered service to him from that time until sometime in 1959 when the new guest house of the Leota title was being dedicated in Pago Pago. Also from 1947 until sometime in 1959 Tali Fuamaila used the new house built by Faanumi and her husband for Tali Family guests. When guests came, Faanumi and her husband moved out of the house to a little house nearby so that the guests could have the entire guest house for themselves.
Shortly before the Leota house dedication ceremony was to take place, the Tali Family had a meeting at which it was decided that each couple in the family should furnish Tali Fuamaila with a case of sardines and a fine mat for thé ceremony. When Tali Fuamaila went .to Faanumi and *203her husband to ask them for their contribution, Tupeona, the defendant’s husband, told him that they would render no more service to him.
Nevertheless, shortly after refusing to make the contribution they sent a fine mat to the plaintiff for the ceremony. He refused to accept it. After his refusal Faanumi sent him a sua which he also refused. Since that time Tali has refused to accept any service from Faanumi and her husband although they have been willing to render service to the matai in accordance with Samoan custom. They have not only been willing to render service but have been willing that Tali should continue to use the present house built by them as a guest house for the family. But Tali has refused to use it as the guest house of the family ever since the dedication ceremony of the Leota guest house in 1959.
Tali brought this action to get an order from the Court requiring Faanumi to remove from Pouono the very house she and her husband built as the family guest house at the request of Tali Filiga. The order, if made, would require the house, which is palagi in style, to be torn down and it would result in Faanumi’s being ousted from Pouono on which land she has lived since 1924 under an assignment of the land to her by Tali Filiga.
In his argument Tali said that he had three grounds of complaint upon which he had the right, in effect, to have Faanumi and her husband ousted from Pouono and their house torn down and taken away: (1) That Faanumi had raised the guest house up six feet instead of four; (2) that Faanumi had extended the house without his permission; and (3) that Faanumi had told him (Tali) and the family that the house was her own house and that they had no right to it.
It appeared from the evidence that Faanumi raised the house up about six feet in 1955. Termites were damaging it, and that was the reason for raising it. Tali testified that, *204he gave Faanumi permission to raise it up four feet instead of six. Faanumi testified that he gave her permission to raise it up six feet which she did. After she raised it up Tali continued to use it for a number of years as the Tali Family guest house without any complaint by him.
It also appeared from the evidence that Faanumi extended the house some nine or ten feet on the west (Fagasa) end and about the same distance on the south side toward Pago Pago Bay. Tali denied that he gave her permission to extend it, while she testified that he did give permission and that he raised no complaint about the extensions until after they were pretty well completed. However, after they were completed Tali nevertheless continued to use the house for family guests until the time of the dedication of the Leota guest house in 1959. Tali even thanked Faanumi and her husband for the extensions, says Faanumi.
It may be that in a family meeting Faanumi did say to the family that the house was hers and that the family had no right to it. Well, the house was put up with her and her husband’s money. The family did not put it up. She was undoubtedly a little exasperated when she said it. But the fact is that she has been quite willing to have it used as the family guest house ever since she made the statement, and she has continued ready to serve the title, and would, if her service would be accepted by the matai.
Raising the house up six feet instead of four made it more useful as a guest house because guests could use the ground floor without stooping over and without bumping their heads on rafters in the ceiling above. Also extending the house made it more useful as a guest house because the extra space provided by the extensions made it possible for more guests to be housed in it. .
The very fact that Tali continued to use it as a guest house for the family after it was raised up and after the *205extensions were made shows that Faanumi did not spoil it as a guest house. The fact is she made it a better guest house by raising it up six feet and by extending it and that is no ground whatever for the matai trying to have this old lady, who has provided the guest house for the family for so many years, thrown out of her home and her house torn down.
When Faanumi told the Family at the family meeting that the house was hers (it is not to be forgotten that it was built with the money of her and her husband Tupeona) and that the family had no right in it, the matai should have calmed her down and shown her that the family did have the right to use it as a guest house, Tali Filiga having requested her and her husband to put it up for that purpose on Pouono. He should not have gotten angry as the evidence indicated he did. A matai should be patient with family members and slow to anger. He should not have rejected her service. The matai is the father of the family, the members are his children. A good father does not get angry when his child makes a mistake; not after the child has rendered service to the family for at least 35 years as Faanumi has.
In awarding a matai title (and the Court awarded the title to Fuamaila in 1947), one of the things that Section 933 of the Code, as amended, requires the Court to consider is the “value of the holder of the matai name to the Government of American Samoa.” One of the most valuable contributions a matai can make to the Government is getting his family to live together in peace and harmony. We do not think that trying to get a family member thrown out of her house and her house torn down promotes peace and harmony in a Samoan family.
Nor do we think that the Court is authorized under the law and Samoan customs to order Faanumi, a Tali Family member, who has rendered service to the family *206for at least 35 years and who, during the last two years, has had her matai refuse her service, to be thrown out of her house and her house torn down because she raised her house up six feet instead of four and extended her house so as to make it more useful for guests of the Tali Family, even though she did make some remarks that the family and the matai did not like — particularly when she is ready to render service as soon as the matai will stop refusing it and is ready to have her house, built with her and her husband’s money, used as the guest house of the family whenever the matai wishes to use it for guests.
True, the matai has the pule over family lands, but it is a pule which must be used for the benefit of family members and justly and fairly. It is not to be used unreasonably and unjustly. This Court said in the case of Folasa Tiumalu v. Herbert and Theresa Scanlan, No. 31-1961 (H.C. of Am. S.), that the “pule must be exercised fairly and justly for the benefit of the family.” A matai cannot throw a family member off of communal family land assigned to him merely because the matai happens to get mad at the family member, when such ouster would be unfair and unjust. We think under the circumstances of this case that it would be unjust and unfair for the Court upon the petition of her matai to oust Faanumi from her house and have it torn down when she is willing to render service to the Tali title.
This petition must be dismissed.
ORDER
Accordingly, it is ORDERED that the plaintiff’s petition be and it is hereby dismissed.
Costs in the sum of $37.50 are hereby assessed against Tali, the same to be paid within 30 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485313/ | OPINION OF THE COURT
MORROW, Chief Judge.
Anataga Taupa’u and Faailo filed their application with the Registrar of Titles to have certain land, described as Suasua in the application, registered as communal family land of the Faasua Family. The land is in Siufaga, Ta’u. A survey of the land accompanied the application.
Aufotu Nua in behalf of himself and Tuitoelau Laesau filed an objection to the proposed registration claiming that the land Suasua was the communal family land of the Leasau Family. Both Aufotu and Tuitoelau are from Siufaga. The Faasua title is attached to the Village of Luma while the Leasau title is attached to the Village of Siufaga. Both villages are parts of the larger Village of Ta’u on the Island of Ta’u in Manua.
*208Proponent Anataga Taupa’u died before the hearing. The Faasua Family was represented at the hearing by Faailo, the other proponent, who is a member of the Faasua Family. The last Faasua died in 1944, and the family has not selected a successor for him.
This land has been in the actual possession of objector Aufotu for many years. He has lived on it for 23 years, and he has also had plantations on it for many years. Aufotu built a palagi house inside the surveyed area in 1955 and has occupied it as a home ever since. He is a member of the Leasau Family and has occupied the property as such family member.
Faailo married Agatonu about 1940. Agatonu was the brother of objector Aufotu. Both were blood sons of Nua who died in 1952. Nua was married to Tauamo, the mother of Aufotu and Agatonu. Tauamo, who is still living, is a Leasau woman. While Faailo- herself denied that she was a member of the Leasau Family, nevertheless her blood brother Puni testified that he had a connection with the Leasau title, and it would seem to follow that Faailo is also connected with the Leasau Family, despite her denial that she is a member of that family. Agatonu and Faailo occupied a small living house on Suasua which they put up after their marriage about 1940. They continued to occupy it until 1945 when Agatonu died. Shortly thereafter Faailo came to Tutuila leaving her children (both of whom were born in Lelealoa, Tutuila) by Agatonu with the Nua Family. In 1947 she married Tato and has lived in Tutuila ever since, returning to Manua only occasionally for a visit.
Nua, whose wife, as we have said, was Tauamo, a Leasau woman, built a guest house on Suasua in 1938. It was built on a part of Suasua not included in the surveyed part offered for registration. The part offered for registration adjoins the part on which the guest house was built. Nua,who was a district judge, used the guest house as a court *209house. Aufotu lived in the guest house with his father Nua. Faailo and Agatonu also occupied it to some extent after their marriage in 1940 although they had a small living house on the surveyed tract. Puni, who, as we have said, testified that he had a connection with the Leasau, also testified that prior to the time Nua built his guest house on Suasua his uncle Lauofo had built two houses on it. Agatonu, a Leasau man through his mother Tauamo, is buried within the surveyed tract. Other Leasau people are buried on Suasua outside the surveyed tract which is only a part of Suasua. The fact that some Leasau people are buried on Suasua is a very strong indication that Suasua is Leasau land. It is the custom among Samoans to bury their dead on their own land, not on the neighbor’s land.
It is a fundamental principle of law that a presumption of ownership arises from the fact of possession alone. Jones in his work on evidence states it this way:
“A presumption of ownership or title is derived from the possession of real property, the probative weight or force thereof being dependent upon the duration of the possessor’s tenure. The universal favor which this presumption enjoys is evidenced by legislative recognition in substantially all jurisdictions.” I Jones on evidence (4th Ed.) 133.
The editors of Corpus Juris Secundum say that:
“Possession of property is indicia of ‘ownership’, and a rebuttable presumption exists that those in possession of property are rightly in possession. Under common law or statutory provisions declaratory of the common law, a rebuttable presumption of ownership arises from possession of real property, and from the possession of personal property, unless the ownership of the property is conceded to be in someone else.” 73 Corpus Juris Secundum 211.
The Faasua people through Faailo are asserting ownership of the surveyed tract in possession of Aufotu, a Leasau man. They have the burden of establishing it.
*210“Under general rules, one asserting a title has the burden of establishing it.” 73 Corpus Juris Secundum 213.
The first Leasau and the first Nua were brothers. A Faasua of Luma married a daughter of Leasau. Faasua Vaovasa later became the Leasau. These items of evidence make it clear as to why some Faasua people may at one time have had some plantations on Suasua as well as some houses before Nua built a guest house on Suasua in 1938. However, Puni, Faailo’s brother, testified that there was no relationship between the Faasua title and the Nua title. It does not appear that the Faasua people objected when Nua, married to a Leasau woman, built his guest house on Suasua and occupied it for many years. Of course, the Leasau people did not object when Faailo and Agatonu built their small living house on the surveyed tract after they were married about 1940 because Agatonu was a Leasau man through his mother Tauamo, a Leasau woman.
The very fact that Aufotu, a Leasau man, has occupied and possessed the part of Suasua included in the survey for many years creates a presumption in his favor that the land is the communal family land of the Leasau title. Both of the judges are of the opinion, despite the conflict in the testimony, that the great weight of evidence is to the effect that the surveyed tract offered for registration is the communal family land of the Leasau Family of Siufaga. The Faasua title is attached to Luma, not Siufaga, while the Leasau title is attached to Siufaga.
DECREE
Accordingly, it is ORDERED, ADJUDGED, and DECREED that the part of the land Suasua included in the survey accompanying the offer to register and described as follows: “Beginning at a concrete monument at the northeast corner of the 0.092 acre parcel of land deeded to the Roman Catholic Church, thence run N 78°32'58" E a dis*211tance of 167.30 feet to a second concrete monument, thence N 68°27/09// E a distance of 48.90 feet to an iron pin, thence N 27o26'00" E a distance of 21.40 feet to a second iron pin, thence N 67°27'31" E a distance of 29.10 feet to a third iron pin, thence N 34033'58" W a distance of 135.80 feet to a fourth iron pin, thence S 67°14T3" W a distance of 68.80 feet to a fifth iron pin, thence S 3°22'56" E a distance of 65.00 feet to a sixth iron pin, thence S 35°44/55// W a distance of 29.40 feet to a seventh iron pin, thence S 72°26'26" W a distance of 14.50 feet to an eighth iron pin, thence S 76°45/39" W a distance of 95.00 feet to a third concrete monument, thence S 14°58/13// E a distance of 52.10 feet to .the point of beginning.” shall be registered as the communal family land of the Leasau title attached to the Village of Siufaga in Ta’u, Manua.
The above described land contains 0.51 acres more or less. Bearings refer to the true meridian.
Costs in the sum of $12.50 are hereby assessed against Faailo, the same to be paid within 30 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485344/ | OPINION OF THE COURT
MORROW, Chief Justice.
Sa filed a petition in behalf of herself and the members of the Pu’u Family of Nu’uuli against Fia seeking an injunction restraining Fia from continuing the erection of a Samoan fale on certain land adjoining the East-West highway near the Village of Nu’uuli and also a mandatory injunction requiring Fia to remove the partially-constructed fale from the land.
The Court viewed the partially-constructed fale and the land surrounding it in the presence of both parties and Pu’u on Friday, December 27,1963.
Maisu, the principal witness for Sa, testified that he was a member of the Pu’u Family of Nu’uuli and that he had left Nu’uuli three or four years ago for Vaitogi where he is now living. He also testified that he had never seen the partially-constructed fale and that he did not know what land it was on. He also testified that Sa had had a house on the land Tuanu’u since after the war but that she did not *439have a house on it when he left Nu’uuli for Vaitogi, which was three or four years ago.
Since Maisu had never seen the partially-built fale in dispute and did not know what land it was on and in view of the inconsistencies in his testimony, it is obvious to us that his testimony is entitled to very little weight.
Sa herself testified that half of the partially-constructed fale is on defendant Fia’s land. She also testified that Pu’u, her matai, is a matai in the Lavatai Family of which Lavatai is the senior matai.
Lavatai, Sa’s senior matai, testified that he was very familiar with the land on which the partially-constructed fale is built. He has lived in Nu’uuli all of his 64 years and has been familiar with the land ever since he was old enough to know things. He also testified that the Lavatai title had communal family land adjoining such land. In addition he testified that Pu’u was a lesser matai in the Lavatai Family of which he is the senior matai. Lavatai’s testimony was to the effect that the fale in dispute stands on Soliai land named Matalii.
Defendant Fia is a young man in the Soliai Family of Nu’uuli. Lavatai told the Court that the land Tuanu’u was Lavatai land and that it was back from the main highway and on the seaward side of the highway. Lavatai also told the Court that he, as matai, had assigned Tuanu’u to his lesser matai Pu’u for the use of Sa and her family. Sa is an untitled woman in the Pu’u Family.
Taufete’e, who is 63 years old and has been the Pulenu’u of Nu’uuli for many years, testified that he was familiar with the land Matalii and also the land Tuanu’u and that the partially-constructed fale in dispute stands on the land Matalii which is the property of the Soliai title of Nu’uuli, and that Fia is a young man in the Soliai Family.
Our conclusion from the evidence is that the partially-constructed fale is on Matalii, the property of the *440Soliai Family, and not on Tuanu’u which is the communal land of the Lavatai Family assigned to lesser matai Pu’u for the use of Sa and her family. The great weight of evidence is to this effect. Accordingly, we must dismiss this petition.
ORDER
It is ORDERED that Sa’s petition filed in her own behalf and the members of the Pu’u Family against defendant Fia be and the same is hereby dismissed.
Costs in the sum of $6.25 are hereby assessed against Sa, the same to be paid within two weeks. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485346/ | OPINION OF THE COURT
MORROW, Chief Justice.
Beryl Barbara Wilson and Faamafu Tupuola made application to the Registrar of Titles to have the land Taileau near the Village of Vailoatai registered as their individually-owned land. A survey of the land proposed to be registered accompanied the application to register. Chief Satele of Vailoatai filed an objection to the application claiming that the land was the communal family land of the Satele Family. Aiaifua Fau of Vailoatai filed an objection in behalf of his father claiming that the land Taileau was the individually-owned land of his father Fau. However, the objector’s father Fau is dead and it appeared during the hearing that Aiaifua Fau was claiming the land as his own individually-owned property through possession derived from his father.
Prior to the hearing the Court viewed the land Taileau in the presence of the parties except Faamafu Tupuola, who, according to information given to the Court, was in the United States.
In this opinion we shall frequently refer ,to Beryl Barbara Wilson as Barbara and to Faamafu Tupuola as Faamafu.
It appeared at the hearing that Parcel No. 2, as marked on the survey, is a road leading to the remainder of the land from the main highway between Vailoatai and Leone. Parcel No. 2 was orally conveyed by Tuiasina, the matai of the Tuiasina Family of Vailoatai, to Barbara and *446Faamafu in return for a piece of land marked Parcel No. 3 on the survey which, it was claimed, was a part of the land Taileau. Parcel No. 2 is communal family land. The oral conveyance is void, it not having been approved in writing by the Governor as required by law.
Section 1282, A. S. Code of 1949 provides in part that:
“It is prohibited for any matai of a Samoan family, who is, as such, in control of the communal family lands or any part thereof, to alienate such family lands or any part thereof to any person without the written approval of the Governor of American Samoa.”
According to the evidence, Barbara and Faamafu each have a paper title to an undivided half of a part of the land Failolo from Ilaoa, the first document in the chain of title being a deed executed in Apia on May 30,1898 from Sopoaga and Uele to Lili in which it is recited that Ilaoa granted said land to Lili, who was the grandmother of Barbara and Faamafu. We are informed that the piece of land referred to in the deed is the same as the land Taileau and also the same as the land Aoloau, a one-half interest in which was conveyed by Florence Scholes Wilson to Beryl (Barbara) Wilson by deed dated October 20,1960.
A link in the chain of title of Barbara and Faamafu is a judgment rendered in the High Court in the case of Satele v. Sopoaga and, Lili (No. 18-1901) in which the Court declared that the land Aoloau was the property of Lili and stated that “A decree of the Court vesting the property aforesaid in the said Lili will be issued upon a proper survey of the said land being made and a plat of the same submitted to the Court.” It appears that by decree dated October 20, 1914, A. Stronach, Judge of the High Court, Lili having died, and the conditions in the judgment rendered in Satele v. Sopoaga and Lili (No. 18-1901) having been complied with, rendered a decree vesting the land Aoloau in *447Lili’s two children, her heirs-at-law, viz., Bella Scholes Nita and Florence Scholes Wilson. Florence Scholes Wilson was the mother of Barbara and Bella Scholes Nita the mother of Faamafu. Bella died leaving Faamafu as her only heir-at law. As before indicated, Florence deeded her undivided half to Barbara on October 20,1960. The survey referred to in the judgment in the case of Satele v. Sopoaga and Lili (No. 18-1901) is included in the record of the judgment in that case together with the record of Judge Stronach’s decree supplementing the judgment, both of which are recorded in Yol. I, Native Titles, pp. 125-127.
The land was resurveyed on November 24,1923. There is considerable variation between the 1923 survey and the 1906 survey included in the land records. Barbara had a survey made in 1963, and it was the 1963 survey which accompanied the application to register.
It was admitted at the hearing that when the 1963 survey was made the surveyors could not find any pin or monument from either the 1906 survey or the 1923 survey to serve as a starting point. They decided to and did retrace the 1923 survey without finding any pin or monument to use as a starting point. Since there was considerable variation between the 1906 survey and the 1923 survey, it follows that there is considerable variation between the 1963 survey and the 1906 survey, the 1963 survey being an attempted retracing of the 1923 survey.
Any rights which Barbara and Faamafu may have in the land involved must be measured by the 1906 survey, since it was the land decreed by Judge Stronach to be the property of Lili’s children through whom Barbara and Faamafu respectively derive their paper titles.
All three judges of this Court believe that the weight of evidence is to the effect that the portion of the land included in the 1963 survey on the Vailoatai side of the creek running through the land is the communal prop*448erty of the Satele Family, and we so find. And for that reason the application to register must be denied, since the boundary between the part we consider to be Satele land and the remainder of the land included in the 1963 survey is not properly identified. Section 10.0112 of the A. S. Code, 1961 Ed., provides that:
“No title to land shall be registered . . . unless the description clearly identifies the boundaries of the land by metes and bounds.”
We have no doubt whatever from the evidence that a part of the land included in the 1963 survey was originally Satele land or, if not, that the Satele people have occupied and used it continuously without interference from anyone for much more than 20 years. If it was not originally Satele land, it is now, such through adverse possession by the Satele people. Section 10.0115, A. S. Code, 1961 Ed., provides that:
“Actual, open, notorious, hostile, exclusive and continuous occupancy of real estate for the period prescribed by law as sufficient to bar an action for the recovery of real property confers a title thereto by adverse possession, which is sufficient against all.”
Actions for the recovery of real property must be brought within 20 years after the cause of action accrues. Section 3.1101(4), A. S. Code, 1961 Ed.
The testimony of Talili, who is 76 years old, convinces us that the Satele people have occupied and used a part of the land included in the 1963 survey for about 50 years. Talili is a Satele man. He testified that Satele and his children had been getting coconuts from the land for about 50 years without interference by anyone. He also testified that the Satele people cleared the land from the virgin bush and planted what are now the long coconut trees on the land. He also testified that some cocoa trees now on the 1963 surveyed tract were planted by Momo’s children. Momo is a Satele man.
*449It appears from the evidence that objector Fau has been occupying much of the surveyed land and taking the fruits therefrom for more than 20 years. He claims this part as his individually-owned property, .the possession of which he procured from his father. It is quite clear from the evidence that a former Satele gave the part of the land included in the survey on the Leone side of the creek running through the land to Fau’s grandfather. Talili testified that no persons other than Fau people had used any part of the land on the Leone side of the creek for 50 years.
We think the weight of evidence supports the conclusion that whatever part or parts of the land now occupied and used by Fau which may have been included in the 1906 survey are now Fau’s land through adverse possession for 20 years.
It was argued that in order to acquire land by adverse possession the adverse possessor must live or dwell on the land. Occupancy is necessary but a person may occupy land without living on it. Thus if A owns two different parcels of land and has his dwelling house on parcel one and goes to parcel two a half mile away and plants a crop on part of it, cultivates and harvests the crop, at the same time pasturing some of his livestock on an uncultivated part, he is occupying parcel two. Black’s Law Dictionary (4th Ed.) defines “occupy” as “To take or enter upon possession of; to hold possession of; to hold or keep for use; to possess.” Obviously, occupancy of land does not require the occupant to dwell or have his house on it.
Our conclusion is that since the 1963 survey does not follow the 1906 survey and since we have found that Satele owns land included in the 1963 survey lying on the Vailoatai side of the creek running through such surveyed land and since we have also found that Fau owns some land on the Leone side of said creek and included in such survey, it follows that Barbara and Faamafu’s application to register *450the land included in the 1963 survey must be denied. Also, there is the objection that the Tuiasina land (Parcel 2) included in the 1963 survey was not validly conveyed to Barbara and Faamafu, the conveyance, as before indicated, not being approved by the Governor in writing as required by Section 1282, A. S. Code of 1949. Parcel 2 is still Tuiasina land.
DECREE
Accordingly, it is ORDERED, ADJUDGED, AND DECREED that the application of Beryl Barbara Wilson and Faamafu Tupuola to have the land Taileau registered as their individually-owned land shall be and the same is hereby denied.
The Registrar of Titles will be informed of this decree.
Costs in the sum of $30.00 are hereby assessed against Beryl Barbara Wilson, the same to be paid within 30 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485348/ | OPINION OF THE COURT
ROEL, Associate Justice.
On July 5, 1968 Talalele Nuaea, hereinafter referred to as Talalele, filed his application with the Registrar of Titles to be registered as the-holder of the matai title Tali, attached to the Village of Pago Pago. Mabel C. Reid, hereinafter referred to as Mabel, filed her objection to the proposed registration on July 15,1963. Tu’uaimau Alapati, *460hereinafter referred to as Tu’uaimau, filed his objection to the proposed registration on July 31, 1963. Both Mabel and Tu’uaimau claimed a better right to the title. This resulted in each of the objectors and the applicant becoming candidates for the title Tali, hence this litigation. See Sec. 6.0106, Code of American Samoa, 1961 Edition.
Sec. 6.0101 of the Code sets out the basic qualifications which a person must have to be eligible-to succeed to a matai title. It is clearly established from the evidence that each of the three candidates is eligible to be registered as the holder of a matai title.
Sec. 6.0107 of the Code sets out the considerations which shall guide the Court in determining which of the opposing candidates shall be registered as the holder of a matai title. It reads as follows:
“CONSIDERATION GIVEN BY COURT: In the trial of matai title cases, the High Court shall be guided by the following considerations, in the priority listed:
“First: The best hereditary right in which the male and female descendants shall be equal in families where this has been customary, otherwise the male descendant shall prevail over the female.
“Second: The wish of the majority or plurality of those clans of the family as customary in that family.
“Third: The forcefulness, character, personality, and knowledge of Samoan custom.
“Fourth: The value of the holder of the matai title to the family, the village, and the country.”
Each of the three candidates filed his pedigree with the Court and testified with respect to his descent from a former holder of the Tali title. It is undisputed that Applicant Talalele has 1k Tali blood and that Mabel has lhi Tali blood. Tu’uaimau’s pedigree as filed reflected that he had x/4 Tali blood. However, his pedigree was challenged by Mabel and later by Talalele. Mabel insisted that one Tali Pouono, who Tu’uaimau claimed as his grandfather, had never existed. Neither Mabel nor Talalele included Tali *461Pouono in their pedigree. After questioning by the Court, Tu’uaimau could not logically explain the existence of Tali Pouono as his grandfather, who according to Tu’uaimau, would be 160 years old if now living. Tu’uaimau testified that his grandfather Pouono acquired the title Tali in 1829 at the age of about 25. We will not go into great detail since the record reflects all the testimony on this matter, but this Court is of the unanimous opinion, after considering .the witness’ demeanor and unsatisfactory answers and also considering the span of life of Samoans 150 years ago, that Tu’uaimau’s grandfather did not hold the title Tali Pouono and that said Tali Pouono should be disregarded in estimating the Tali heredity of Tu’uaimau. When asked by the Court whom he would claim descendance from if Tali Pouono were disregarded, Tu’uaimau answered he would claim as the descendant of Tali Vaivai, the same Tali from which Mabel claimed descendance. On argument, Lolo, counsel for Tu’uaimau, stated that if Tali Pouono were disregarded, Tu’uaimau would have Vs Tali blood. This Court is of the unanimous opinion that after disregarding Tali Pouono, as we now do, that leaves Tu’uaimau with %2 hereditary right to the Tali title. Both of the Samoan judges agreed with this.
It follows .therefore that Talalele with 1k Tali blood prevails on the issue of hereditary right over Mabel and Tu’uaimau. We hold that Mabel and Tu’uaimau are on an equal level on the issue of hereditary right, each having V32 Tali blood.
Concerning the matter of the clans, there was conflict not only on the number of clans favoring each individual candidate, but there was disagreement also as to the number of clans in the Tali Family.
The provision in the Code reads: “The wish of the majority or plurality of those clans of the family as customary in that family.” The Legislature of American *462Samoa, either in its wisdom or as a result of an oversight, failed to define the word “clan.” There are different theories as to what a clan means. Some argue that the number of clans in the family is determined by the number of offspring of the original holder of the title, and that each of the children of the original holder who gets married and has children constitutes a clan, no matter how long the title has been in existence or how many different families there are. Another theory is that there are as many clans in the Family as there have been holders of the title, each title holder giving origin to another clan. Still another theory is that the number of clans depends on the number of families of the different title holders with the restriction that when two or more brothers or sisters hold the title consecutively, it should only count as one clan.
This Court does not propose — and it would not, even if it could — to advise the Legislature on the wording of this or any other statute, but we believe that until the term “clan” is defined or clarified, the question of interpretation will be up to the Court, and we will not hesitate to give it a definite interpretation when it shall become absolutely necessary, unless the Legislature makes its own clarification.
Two of the three candidates presented pedigrees and testified and argued that there was only one (1) clan in the Tali Family because Lolopo, whom all three candidates agree was the original holder of the title, had only had one child who was later to become Tali Aetonu. The other candidate, Mabel, insisted in her pedigree, testimony and arguments that there were six (6) clans in the Tali Family and that five (5) of these clans favored her, even though her testimony indicated there had been nine (9) holders of the Tali title. Each of the two candidates claiming only one clan in the Tali Family agreed that the present members of that same one clan were divided as to whom they favored to hold *463the title and that different members of this one clan favored each of the three candidates for the title. We should point out here that Mabel pointed out from the members of the audience purported representatives of the different families or “clans” in the Tali Family favoring her candidacy.
If we go along with the proposition of the majority of the candidates that there is only one clan in the Tali Family and that each of the three candidates is favored by different members of this one clan, then this Court is faced with the necessity of disregarding the consideration concerning clans, since one clan cannot be dissected or divided amongst the three candidates. As a matter of fact, Lolo, counsel for one of the candidates, specifically asked the Court to disregard the clan consideration. This Court is discounting the issue of the number of clans, not necessarily because we agree with the definition of “clan” as expressed by Talalele and Tu’uaimau, but because their definition has the effect of dispensing with the question of who the majority of the clans favor for the candidacy, and because this Court can arrive at a definite selection of the holder of the title without the necessity of committing itself to any definition of the word “clan.”
This Court is of the unanimous opinion that all three candidates rank equally in the number of clans favoring them and that the consideration of the number of clans favoring each candidate should be and the same is hereby discounted for the purpose of selecting the new holder of the Tali title.
We now come to the consideration of the forcefulness, character, personality, and knowledge of Samoan customs.
After considering the testimony, evidence and argument, and taking into specific account the demeanor, personality, presence of mind, the clarity, speed and correctness with which the answers were given, the self-confidence and other *464qualities reflected from the speech and behavior of the candidates, this Court is of the unanimous opinion that candidate Mabel C. Reid ranks first in forcefulness, character, personality, and knowledge of the Samoan customs. The Court is further of the unanimous opinion that Tu’uaimau Alapati ranks second and Talalele Nuaea ranks third in this same category.
Mabel is 54 years old; she is the President of the Public Welfare Organization with 16 members; she is the Presi-. dent of the Sacred Heart Society, a religious organization with 65 members; she is a high school graduate; a 1929 graduate of the Sacred Heart Academy, a junior college in Honolulu, where she majored in business; she was selected as the personal representative of the Governor of American Samoa on a delegation to New Zealand; she headed the Legislative delegation to New Zealand in the absence of the Speaker of the House, the other five members of the delegation being men; she was a member of the Legislature of American Samoa for six years, four years in the House of Representatives for Mauputasi County and two years as representative of part-Samoan people as a member of the Legislature; she was the first Clerk of the Legislature of American Samoa; she worked for the Government of American Samoa for a period of 13 years as secretary to the Supply Officer, then also Treasurer, as private secretary to Governor Moyer, and as Clerk of the High Court for one year. She holds the title “Sinata’aga” in the Village of Vatia.
In addition to the above accomplishments and qualifications, Mabel is very fluent in both the English and Samoan languages. There was no indication from the testimony or the evidence reflecting in any manner against her good character. She testified that she was well versed in the Samoan customs and traditions and did an excellent job of answering questions on this subject from the Samoan *465judges and on cross-examination by counsel for Talalele and Tu’uaimau. Mabel testified she had good personal and family relations with the members of the Tali Family and with the chiefs and matais of Pago Pago. Mabel further testified that she has always been concerned with the problems and general welfare of the Tali Family. She testified she had a good knowledge of the genealogy and the lands of the Tali Family, and her testimony and her answers to questions on the witness stand supported her claims.
Last, but not least, Mabel served as her own counsel while the other two candidates relied on their counsel to a great extent to put forth their claim. There is certainly nothing wrong with parties having counsel, and at times this proves better for all concerned, but the way Mabel handled her own case was a credit to her and more emphatically brought out her qualities of forcefulness, character, personality and knowledge of Samoan customs, as well as her value to the family, the village and the country in comparison with the other two candidates for the title.
Candidate Tu’uaimau started his testimony by stating he was not sure of his age, that he was about 57 years old. Tu’uaimau testified he did not know his grandfather, whom he called Tali Pouono; that he did not know when Pouono had died; that he did not remember when his (Tu’uaimau’s) father or mother died, even though he was 15 or 16 years old when his father died and older when his mother died. He testified that his father Tauala died between the age of 60 and 70 years and had died in 1889, even though he, Tu’uaimau, was not born until 1905. Later, in answer to Lolo’s question, he changed dates again. He stated his father was living in 1900 and had died about 15 years after the Government was established or about 1915. In other words, from one question to the next his father increased his life span by 26 years, or almost one generation. He also answered Lolo that his father was about 30 years old or so *466when Tauala’s father Pouono died. In answer to Leota’s question, Tu’uaimau claimed that Vaivai was Pouono’s father. Tu’uaimau testified he had lived in Utulei for the last 20 years. At one time Tu’uaimau stated that he and Mabel descended from Vaivai and then changed to say that they descended from different marriages of Vaivai. Tu’uaimau stated that his father Tauala was married six times and that he was the issue of the last marriage and that he had about 15 brothers and sisters through his father.
The above testimony is referred to not to arrive at Tu’uaimau’s hereditary right but to show his indecisiveness and lack of knowledge even of his immediate family.
Concerning his forcefulness, character, personality and knowledge of Samoan customs, Tu’uaimau testified that he finished the sixth grade in Pastor’s School in 1921; that he graduated from high school in 1925; that he graduated from Poyer’s School from the 9th grade in 1930; that he completed an agricultural course maybe in 1947 or 1948; that he completed an adult education course in American Samoa in 1963 for which he received a certificate.
Tu’uaimau testified he worked as a clerk in Poyer School in 1931; that he was teaching school in 1932 at the same time he was attending Poyer School; that he was a mess sergeant in the Armed Forces during World War II; that he taught cooking to veterans in 1945; that he was elected chaplain or pastor for the Veterans of Foreign Wars in Samoa in 1951; that he was elected to the House of Representatives for Mauputasi District in 1955-56. Tu’uaimau testified that he has worked as a cook in the Hospital of American Samoa for 20 years and that he now supervises and instructs 12 employees under him in the kitchen; that he earns a salary at the hospital of $1686.00 per year; that he has other income from crops and relatives for a grand total of $5,586.00. Tu’uaimau testified that he became a lay preacher and was ordained in 1946, and became a deacon *467in 1951; that he has held several offices in the church and was elected treasurer in a number of organizations. He testified that he has held the matai title Tu’uaimau for 12 years. Tu’uaimau’s knowledge of the English language could be termed fair, but he is a long ways from being fluent. A number of inconsistencies appear in the dates he enumerated and with his testimony that he has worked at the hospital continuously for 20 years.
In testifying as to his value to the family, the village and the country, Tu’uaimau stated that his experience as a matai would serve him well and that he would do what he has done as a matai in Utulei to bring peace and harmony in the Tali Family if selected. Among other things, Tu’uaimau stated he would be of value to the country by making the people contribute to the church. In answer to Leota’s question, Tu’uaimau stated that he had never attended a meeting of the Tali Family in Pago Pago. He testified that Tali Fuamaila received the title Tali in 1947 and that Tali Filiga, Fuamaila’s predecessor, had died in 1950, at which time he still held the title Tali. Then he testified that maybe Tali Filiga had died in 1940 instead of 1950, and that he guessed that the Tali title was vacant from 1940 through 1947. Tu’uaimau testified that before Tali Filiga the title Tali was held by Tali Tauli and that Tali Tauli had died between 1940 and 1942. As the answers to the questions indicate, Tu’uaimau was rather inadequate and indefinite concerning the Tali title.
Talalele testified he had 1/4 Tali blood and insisted that Tu’uaimau had no Tali blood at all. Talalele testified he did not know if Mabel had 1Í32 Tali blood. In answer to Mabel’s questions, Talalele stated that Tali Laau had no brother; that he did not know who Tali Filiga’s father or mother were; that he did not know if Aetonu #2 was Tali Filiga’s father; that he did not know about Tali Vaivai or Tali Talimanava; that Tali Aetonu #1 had no children. *468Talalele’s knowledge of the Tali Family tradition left much to be desired.
In connection with the issue of forcefulness, character, personality and knowledge of the Samoan customs, Talalele claimed he was 100% qualified to hold the Tali title. He testified that he could get the family to live in peace, send the children to school and be of better use to the country. He testified he had been a carpenter for many years; that he had been in the Armed Forces in World War II; that he was a first-rate carpenter working for the Government from 1945 to the present and that he was also a hand-craftsman.
Talalele testified he had gone to the 7th grade in school and had three years vocational training as a carpenter after the war. He testified that he had never been a matai, but had been a leading young man for a lesser matai. He testified he earned between $280.00 and $300.00 per month working for the Government as a carpenter, but then stated that he was presently working for Van Camp and had done so for several months, following his being laid off on leave without pay by the Government.
Talalele testified he was familiar with the Samoan customs and the tradition of the Tali Family. He said he had served the Tali title for 25 years. Talalele testified he could be of great value to the family; that he would speak for the family through the village and represent the village in the county. He said he had never run for public office but always voted. Talalele testified he spoke the English language fairly well, but it was apparent that he was far from being fluent. Talalele’s demeanor and behavior on the witness stand left very much to be desired in the matter of forcefulness, character and personality. These same deficiencies made it apparent that he did not possess the qualifications to be of the most value to the family, the village and the country.
*469We have already stated that in the matter of forcefulness, character, personality and knowledge of the Samoan customs, Mabel ranked first, prevailing over Tu’uaimau and Talalele, and that Tu’uaimau ranked second prevailing over Talalele.
In the consideration of value to the family, the village and the country, this Court is of the unanimous opinion that candidate Mabel C. Reid ranks first, prevailing over Talalele and Tu’uaimau, and that Talalele ranks second, prevailing over Tu’uaimau on this issue.
Since this Court is holding that all three candidates rank equally in the consideration of the number of clans favoring each candidate, this has the effect of this consideration being discounted in the selection of the Tali title holder, leaving the remaining three issues to be considered.
Since we find that candidate Mabel C. Reid ranks first and prevails over Tu’uaimau and Talalele on the third and fourth issues, and is on an equality with Tu’uaimau on the first issue (heredity), Talalele ranking first on this issue, it follows that she, the said Mabel C. Reid, should be registered as the holder of the matai title Tali attached .to the Village of Pago Pago. However, since a person cannot hold two matai titles at the same time, it follows that before she can be registered as the Tali, Mabel C. Reid must resign from any other matai title she may be presently holding.
Accordingly, it is the unanimous decision of this Court, and it is hereby ORDERED, ADJUDGED AND DECREED that Mabel C. Reid be registered as the holder of the matai title Tali, attached to the Village of Pago Pago, upon her resignation from any matai title she may presently hold within three weeks from the date of this decree, which is- — 1964.
The Registrar of Titles will be advised of this decree.
Costs in the amount of $62.50 are hereby assessed against Talalele and Tu’uaimau, each of them to pay the amount of $31.25 within 30 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485349/ | OPINION OF THE COURT
ROEL, Associate Justice.
Came on ,to be heard the above entitled and numbered cause wherein Applicant, Isumu Leapaga, filed an application with the office of the Registrar of Titles of American Samoa to register a certain surveyed parcel of land called Lalotoga, containing 1.003 acres, more or less, situated in the Village of Nu’uuli. Upon notice of the proposed *471registration of the land, objection was filed by Leapaga Kesi on behalf of the Leapaga Family.
Applicant, Isumu, sought to register the land in question as his own individually-owned land. Leapaga Kesi objected on the ground that the land as surveyed was the communal land of the Leapaga Family and not the individually-owned land of the Applicant.
Previous to the time of trial, all three judges viewed the land in question in the presence of the applicant and objector.
Isumu testified that he and Leapaga Kesi were blood brothers of the same father and mother. At first Isumu stated that he was claiming the land as the individually-owned land of himself, Kesi and their sister, Paepaeuli, but then stated that he had surveyed the land as the individually-owned land of the Akasini Family, which included only himself, Kesi and Paepaeuli, because this land was given by one Fanene to their grandfather.
Isumu testified that on June 26, 1961 a mortgage to the land in question was executed by Leapaga Kesi, Laupua M. and Akasini Leapaga in favor of the Assembly of God Church to secure a loan of $600.00, said loan of $600.00 due to be paid on or about October 1, 1961. Isumu introduced what appeared to be the original of said mortgage instrument and the same was admitted into evidence marked “Applicant’s Exhibit No. 1.” The mortgage instrument was never recorded.
Applicant’s Exhibit No. 2 consisted of a letter from the Attorney General’s office dated May 3, 1962 addressed to Laupua M. of Nu’uuli inquiring how the addressee intended to pay the $600.00 debt due the Assembly of God Church, which debt had been secured by a mortgage (Applicant’s Exhibit No. 1).
Isumu testified that the letter warned the addressee that unless the debt was paid the land mentioned in the *472mortgage would pass to the Assembly of God Church. After reading the letter, the Court is satisfied that no representation was made in the letter that the land would be lost if the debt was not paid as set out in the mortgage instrument.
Isumu testified that after receipt of the letter by Laupua, he, Isumu, had gone to see the Attorney General. Isumu testified that the Attorney General had told him that if he, Isumu, paid the outstanding debt to the Assembly of God Church, the land mortgaged would then become Isumu’s, and if the debt was not paid the land would be forfeited to the mortgagee, and that based on such representations he, Isumu, had undertaken to pay the debt.
Isumu introduced, as Applicant’s Exhibit No. 3, 12 receipts from the Attorney General’s office in the amount of $50.00 each, for a total of $600.00, said receipts being dated from March 5,1962 to April 11,1963.
Isumu’s claim to the land in question as his individually-owned land was based on the following reasoning: That the land was not the communal land of the Leapaga Family, but the individually-owned land of the Akasini Family, consisting of himself, Kesi and his sister Paepaeuli; that the land was mortgaged without his knowledge to the Assembly of God Church to secure a $600.00 loan executed by Leapaga Kesi, Laupua M., and Akasini Leapaga, his father; that if the money borrowed had not been paid by Isumu to the mortgagee, the mortgaged land would have been lost to the mortgagee; that since he, Isumu, personally paid back the $600.00 due to the mortgagee to keep the church from foreclosing on the mortgage, the land was now his individually-owned land.
Isumu had Fanene and his wife, Mao, as his witnesses. Fanene testified that the land in question was originally Fanene land. Mao testified that when Kesi came back from Hawaii there were conversations between Isumu and Kesi, but that even though she had heard Kesi offer to pay Isumu *473the money he had paid to the mortgagee, she had only heard the verbal offer but had not seen the actual money.
Leapaga Kesi testified that the land Lalotoga was the communal land of the Leapaga Family and not the individually-owned land of the Akasini Family. Kesi called Fa’agata and Paepaeuli as witnesses to the effect that the land in question was the communal land of the Leapaga Family. Fa’agata, 60 years old, stated his mother was the sister of Isumu’s and Kesi’s father, and that he had lived on the land in question in years past when he served food to the father and grandfather of Isumu and Kesi. Paepaeuli testified that both Isumu and Kesi were her brothers and that the mortgage on the land was executed with the consent of the Leapaga Family. She also testified that Kesi tried to pay Isumu back on two occasions.
To further show that the land in question was the communal land of the Leapaga Family, Kesi made reference to a 40-year lease of the land in question dated November 5, 1924, wherein the instrument, recorded in Volume 1, page 509, Native Leases, states that the lessor is leasing the land as the matai of the Leapaga Family, for himself and for the members of his matai family. Kesi further referred to a 3-year extension of the 1924 lease considered by the Land Commission of American Samoa and approved by the Governor on January of 1964, wherein the instrument states that the lessor is acting as matai of the Leapaga Family. The instrument extending the lease is recorded in Volume 3, page 44, Native Leases.
Leapaga Kesi admitted having signed the mortgage together with Laupua and Akasini Leapaga to secure the $600.00 loan from the Assembly of God Church. Kesi testified that of the $600.00 received he gave Isumu $50.00, Paepaeuli $100.00, and an undisclosed sum to his wife to care for his father and their children, and that he had used the rest to go to Hawaii to look for work. Kesi testified that *474when he realized he would not be able to pay the $600.00 on time, he contacted Paepaeuli, his sister, to see if she and Isumu could get the money to pay the note and that he would reimburse them when he got back. Paepaeuli testified she had gone to see Isumu about Kesi’s request and that Isumu had not contacted her again but had himself gone to the Attorney General’s office to agree to pay the whole amount himself. Kesi testified that immediately upon his return from Honolulu he went to see Poe Haleck about paying the loan back to the mortgagee, but that Poe had told him that Isumu had already paid the whole debt. Kesi testified that he then went to see Isumu on two different occasions and tried to get him to take the $550.00 which Isumu had paid on the note, discounting the $50.00 Isumu had originally received from Kesi, but that Isumu had each time refused to accept the money saying that the land was now his and that he would rather go before the Court on the matter. Kesi testified that at the time he offered to pay Isumu he had the money on his person.
When Isumu asked Kesi if he, Kesi, could pay Isumu back the $600.00 before 4 P.M. the same day of the trial, Kesi answered in the negative. Kesi stated that Isumu had paid the $600.00 to the Assembly of God Church as a .legal debt of the Leapaga Family and that Isumu should get his money back in the amount of $550.00 because Isumu had already received $50.00 from Kesi when the loan was first obtained in 1961.
The Court is satisfied that the hearsay attributed by Isumu to the Attorney General is not accurate since the Attorney General would have known that the mortgage in favor of the Assembly of God Church was not good as being contrary to the prohibition of alienation of lands in American Samoa, and that the mortgage was legally unenforceable.
*475This Court will not speculate as to what motivated Isumu to pay the $600.00 to the mortgagee. Isumu testified that he paid the money to save the land from being taken by the mortgagee. The fact is that the mortgage instrument itself would not operate to pass title of the land to the mortgagee in case of non-payment of the note since said mortgage was legally contrary to the alienation of land laws of American Samoa. Since Isumu had not personally executed either the note or the mortgage instrument, he was not personally legally obligated to pay the debt to the mortgagee. At most he had only a moral obligation to pay a debt incurred by the Leapaga Family. Whether the land was the communal land of the Leapaga Family or the individually-owned land of the Akasini Family, the mortgage instrument could not have operated to alienate the land in question in favor of the mortgagee. At best, the mortgage instrument is only a promise to pay the $600.00 to the Assembly of God Church on or about October 1,1961. If Isumu had not paid, the land would not have been lost as a result of the alleged mortgage.
After considering the testimony, the evidence, the exhibits and the arguments, the Court is of the unanimous opinion that the land in question, Lalotoga, was the communal land of .the Leapaga Family at the time the mortgage was executed to secure a $600.00 loan and that Lalotoga is still the communal land of the Leapaga Family.
The Court is further of the unanimous opinion that whatever the worth or value of the mortgage executed in favor of the Assembly of God Church, the Leapaga Family was morally responsible to pay the $600.00 back. The Court further holds that in paying back the $600.00 to the mortgagee, Isumu was paying a legal and moral obligation of the Leapaga Family for which the present matai of the Leapaga Family is responsible, and that Isumu is entitled to a reimbursement, within a reasonable time, of $550.00 *476($600.00 less the $50.00 he received from Kesi) plus 6% interest from April 11, 1963, the date Isumu paid the last installment of the loan to the mortgagee.
It is further the unanimous opinion of this Court that the application by Isumu Leapaga to register the land Lalotoga as his own individually-owned land should be and the same is hereby denied.
In conclusion, it is the unanimous decision of this Court and it is hereby ORDERED, ADJUDGED AND DECREED by the Court as follows:
1. That the application by Isumu Leapaga to register the land Lalotoga as his own individually-owned land is hereby denied.
2. That the land in question, as shown in the survey, is the communal land of the Leapaga Family.
3. That Leapaga Kesi as matai of the Leapaga Family pay to Isumu Leapaga the amount of $550.00 plus 6% interest from April 11, 1963, not later than six (6) months after the filing of this judgment, which date is April 3, 1964.
4. Court costs in the amount of $25.00 are assessed against Isumu Leapaga and Leapaga Kesi, each to pay $12.50 within 30 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485350/ | OPINION OF THE COURT
MORROW, Chief Justice.
The heirs of Avegalio Sekio, viz., Faasau Avegalio, Failautusi Avegalio, Fuapopo Avegalio, Su’e Avegalio, Fiapito Avegalio and Ve’a Avegalio, filed their application with the Registrar of Titles to have the land Ulutolu in the Village of Pavaiai registered as their individually-owned land, share and share alike. A survey of the land accompanied the application. Such survey was introduced in evidence as an exhibit in the case. Prior to the hearing the Court viewed the land involved in the presence of the parties.
*479Kuki and Puavai filed an objection to the proposed registration claiming that the land Ulutolu was their individually-owned property. Vele filed an objection claiming that the survey of Ulutolu included a portion of the Vele communal family land known as Alofa. U. Galoia filed an objection claiming that the survey of Ulutolu included a portion of the land Faletele, a communal family land of the Galoia Family. Uo also filed an objection to the proposed registration claiming that the surveyed tract was land bought from Vele by his father Uo Sopoaga in 1918 and that it was Uo communal family land.
At the beginning of the hearing Kuki and Puavai Ilaoa withdrew their objection and were dismissed as parties in the case.
The evidence shows very clearly that Avegalio Sekio purchased the surveyed tract Ulutolu from Tua Palepale in 1920 and that the [sic] claimed the purchased land as his individually-owned property. Sekio died in 1945. The six applicants are his surviving children. Sekio either personally occupied the land until his death or had it occupied by others with his permission. Since his death it has either been occupied by one or more of the applicants or by persons with permission of the applicants. At present, it is occupied by Sagi and his wife by permission of the applicants. Sagi and his wife moved on to the land in 1960. The occupation by Sekio and, following him, the applicants (or by persons with permission from Sekio before his death and persons with permission from the applicants after Sekio’s death) has been continuous. No one raised any objection to this continuous occupancy from 1920 up to the time of the survey in 1963.
The evidence clearly established the fact that Sekio (or persons occupying it under his authority) was in possession of Ulutolu from 1920 until his death in 1945 and that the applicants (or persons likewise occupying it under *480their authority) have been in possession of Ulutolu from 1945 up to the present time. Furthermore, the evidence without question establishes the fact that such possession has been actual, open, exclusive, notorious, and continuous from 1920 to the present time in 1964. Also, the evidence clearly establishes that such possession was hostile, i.e., under a claim of ownership, first in Sekio from 1920 to 1945 and from 1945 to the present time under a claim of ownership by his heirs, who are the applicants. There was no adverse claim of ownership of the land, either in whole or in part, made by any of the objectors prior to 1963 when the survey was made.
The fact that the applicants have possession (Sagi and his wife are living on the land with their permission) creates a presumption of their ownership.
“A presumption of ownership or title is derived from the possession of real property, the probative weight or force thereof being dependent upon the duration of the possessor’s tenure. The universal favor which this presumption enjoys is evidenced by legislative recognition in substantially all jurisdictions. Such recognition takes the form of express enactments, statutes of limitations, and the innumerable procedural statutes for establishment of title by adverse possession.” I Jones on Evidence (4th Ed.) 133-4.
Section 10.0115 of the American Samoa Code, 1961 Edition, provides that the:
“Actual, open, notorious, hostile, exclusive, and continuous occupancy of real estate for the period prescribed by law as sufficient to bar an action for the recovery of real property confers a title thereto by adverse possession, which is sufficient against all.”
Section 3.1101 of the Code limits the time for bringing actions for the recovery of real property to 20 years.
The possession of Sekio for 25 years may be tacked to the possession of his heirs for 19 years. 2 C.J.S. 685.
If the various objectors in this case, or any of them, ever had any claim to all or any part of the surveyed tract *481Ulutolu, such claim has been extinguished by the actual, open, notorious, hostile, exclusive and continuous occupancy of the land first by Sekio and then by his children following him, from 1920 to 1964. The occupancy of the land by the various people who occupied it under the authority of Sekio and his heirs (the applicants) at various times during 44 years constituted the possession by Sekio and following his death possession by his heirs.
Uo at first claimed that Ulutolu had been purchased by the then Uo about 1918 for $100 and a cow. However, later in his testimony he admitted that he did not know whether the land he claimed to have been purchased was Ulutolu. He was only 12 years old at the time of the supposed purchase and if any purchase was made, there was no deed of the land recorded. Uo also claimed that Sekio was a Uo man and that was the reason that the Uo never made any objection when Sekio and, following him, Sekio’s children permitted strangers to live on the land. However, the fact is that under Samoan custom family lands are under the jurisdiction of the matai, not a young man (Sekio was a young man and his sons are young men) such as Sekio. A young man has no authority to permit strangers to live on communal family lands. The very fact that the matai Uo never made any objection to strangers, with Sekio’s permission or later with his children’s permission, living on the land is a very strong indication that it was Sekio’s individually-owned land and not Uo family land. We are convinced from the evidence that it was Sekio’s individually-owned land. Furthermore, Sekio conveyed some of his individually-owned land to Sau Pritchard as shown by the record of a deed in Vol. II, Register of Land Transfers, pp. 172-174. The land conveyed to Sau Pritchard is very near Ulutolu.
Galoia claimed that Sekio’s mother was a member of the Galoia Family. Since Samoans do not marry inside *482the family, she was also a member of many other families, too. Galoia also claimed that because of the relationship of his mother to the Galoia, Sekio was permitted to live on the surveyed land and that a good portion of the land was Galoia communal property. However, the fact is that if Galoia’s claim is true, Galoia permitted Sekio, a young man, to permit strangers to occupy Galoia land without any objection, a most unlikely thing since it is the matai and not a young man in the family who has jurisdiction over family lands.
Vele claimed that a small portion of the northwest part of the surveyed land was Vele communal family land. We are satisfied from the evidence, if such was ever the fact, that the title to such small portion has been extinguished by the adverse possession of the same by Sekio and, following him, his heirs for 20 years, pursuant to Section 10.0115 of the American Samoa Code, 1961 Edition, above quoted. And the same may be said of the claims of Galoia and Uo, if they ever had any validity.
We hold that the land Ulutolu as shown on the survey is the individually-owned land of the applicants, and that any claims of the objectors to such land, if any such claims were valid, have been extinguished long ago by the law of adverse possession.
DECREE
Accordingly, it is ORDERED, ADJUDGED AND DECREED that the land Ulutolu, as shown in the survey introduced in evidence as an exhibit in the case, shall be registered as the individually-owned land of Faasau Avegalio, Failautusi Avegalio, Fuapopo Avegalio, Su’e Avegalio, Fiapito Avegalio and Ve’a Avegalio as tenants in common.
Costs in the sum of $37.50 are hereby assessed against Uo, Vele, and Galoia, each of whom is to pay $12.50 within 15 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485351/ | OPINION OF THE COURT
MORROW, Chief Justice.
On April 16, 1964 Savea Moe filed an application with the Registrar of Titles to have certain land described as Mapusaga Fou in the Western District of Tutuila registered as the communal family land of the Savea Family. The application was accompanied by a survey of the land. However, the survey was not accompanied by a valid “certificate of the surveyor and the pulenu’u of the village in which or nearest to which the land is located, to the effect that the pulenu’u gave public oral notice in the village at a meeting of the chiefs thereof of the time and place of the intended survey in order that other interested landowners might have an opportunity to be present thereat,” as required by Section 10.0112, A. S. Code of 1961. However, there was filed with the survey a similar certificate to the effect that such notice was given on April 24, 1963. The survey was made on August 17, 1946. Obviously, the certificate filed does not comply with the statute, the notice having been given almost 17 years after the survey was made. The area of the land included in the survey is 11.20 ± acres.
*485Muagututia Tuia filed an objection to the proposed registration claiming that a part of the land proposed to be registered was the property of the Muagututia Family. The other objectors, viz., Magalei T., Agailemalo, Uiliata, and Maea T., filed objections, each of them claiming that he had a better right to the land than Savea.
At the beginning of the hearing, the Court assured itself that Muagututia Tuia, as counsel for himself and three of the other objectors, was not representing adverse interests.
Savea claims that his father and brothers cleared the land involved from the virgin bush about 1900, put in plantations on the cleared land, and claimed it as the communal family land of the Savea Family. However, the only evidence as to this was the testimony of Tanu, Savea’s son, who is 48 years old and who was born 16 years after 1900. His testimony was based on hearsay and not on his own knowledge.
We believe that the weight of the evidence is clearly to the effect that the land was cleared from the virgin bush about 1916 by Agailemalo (hereinafter called Siufanua, which was his former title) and certain other chiefs, some from Faleniu, some from Pavaiai. We also believe that the weight of the evidence is to the effect that after the clearing, Siufanua and the various other chiefs put in plantations on different parts of the cleared land, each claiming a separate part for himself.
This Court has held a number of times that the Samoans acquired title to their land through first occupancy coupled with a claim of ownership. Soliai v. Lagafua, No. 5-1949 (H.C. of Am. S.); Faataliga v. Fano, No. 80-1948 (H.C. of Am. S.). See 2 Blackstone 8; Maine’s Ancient Law (3rd Am. Ed.) 238.
In 1943, during the war, a number of people living in Mapusaga Tuai were moved by the Government from Ma*486pusaga Tuai to Mapusaga Fou, which is the land involved in this case. Some of these people were from Western Samoa. The remainder were American Samoans. The school at Mapusaga Tuai was also moved to Mapusaga Fou.
Siufanua testified that the school was moved under his authority without objection by anyone. It appears that before the actual removal of the school and people, Siufanua consulted with a number of chiefs from Pavaiai who agreed to the removal to Mapusaga Fou when Siufanua told them he had already approved the removal. Among the Pavaiai chiefs consulted by Siufanua were Tua, Toluao, Muagututia, Poloai, and Faimalo. Savea claims that the removal was under his authority. However, despite Savea’s claim, we believe that the weight of evidence is to the effect that Siufanua and the Pavaiai chiefs consulted by Siufanua gave the authority and not Savea. Savea may have had something to do with the removal, but we are convinced from the evidence that the actual authority came from Siufanua and the Pavaiai chiefs consulted by him, and that anything done by Savea in connection with the removal was the result of his having consulted with Siufanua and upon .the authority of Siufanua.
We believe from the evidence that the dividing line between the Village of Pavaiai and the Village of Faleniu passes through the land Mapusaga Fou substantially from north to south and that the land on the west side of such line is the property of certain Pavaiai chiefs including, among others, objector Muagututia, and that the land on the eastern side of such dividing line is the property of certain Faleniu chiefs, Siufanua and Moea’i being two of such chiefs.
Section 10.0112, A. S. Code of 1961, provides that:
“The owner of any land in American Samoa not previously registered may register with the Registrar of Titles his title thereto. No title to land shall be registered unless the Registrar is satisfied *487that there are no conflicting claims thereto and unless the description clearly identifies the boundaries of the land by metes and bounds (emphasis added).”
It is obvious from our conclusions from the evidence that we must deny the application of Savea to register the land Mapusaga Fou, as shown on the survey, as the communal land of the Savea Family. Since we have concluded that a number of Pavaiai chiefs including objector Muagututia as well as Siufanua and other Faleniu chiefs own lands within the surveyed tract which are not identified in the survey by metes and bounds, it follows that the survey does not identify by metes and bounds any land, if any, which Savea may own within the survey.
It is not necessary for the Court to determine whether Maea T. has, or does not have, any land in the surveyed tract since the application of Savea to register must be denied.
DECREE
Accordingly, it is ORDERED, ADJUDGED, AND DECREED that the application of Savea Moe to register the land described as Mapusaga Fou in the Village of Mapusaga Fou in the Western District as the communal family land of the Savea Family be and the same is hereby denied.
The Registrar of Titles will be advised of this decree.
Costs in the sum of $25.00 are hereby assessed against Savea Moe, the same to be paid within two weeks. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485352/ | *489FINDINGS
Upon consideration of the evidence and arguments of counsel in the above-entitled case the Court finds as follows:
1. Tutogi filed an application to be registered as the holder of the matai name Tuaolo, attached to the Village of Pago Pago, on March 16,1964.
2. Maliuga Tuaolo filed an objection to the proposed registration on April 10, 1964, claiming that Tutogi had never been selected by the Tuaolo Family to hold the title Tuaolo but that he was the one who was unanimously selected by the Family to hold the title. He thereby became a candidate for the title.
3. Each of the candidates has the qualifications for eligibility to hold a matai title, as prescribed by Section 6.0101 of the A. S. Code, 1961 Edition, except that Tutogi was not chosen by her family for the title.
4. Tutogi prevails over Maliuga Tuaolo on the issue of hereditary right, she being the blood daughter of Tuaolo Maliuga with one-half Tuaolo blood, while the objector is the grandson of Tuaolo Maliuga with one-fourth Tuaolo blood. See Section 6.0107 (First) of the A. S. Code, 1961 Edition.
5. Maliuga Tuaolo prevails over Tutogi on the issue of the “wish of the majority or plurality of the family as customary in that family,” all the clans in the Tuaolo Family wishing the objector to hold the title, while only Tutogi and her blood children wish her to hold the title. See Sec. 6.0107 (Second) of the A. S. Code, 1961 Edition.
6. Maliuga Tuaolo prevails over Tutogi on the issue of “forcefulness, character, personality, and knowledge of Samoan customs.” See Sec. 6.0107 (Third), A. S. Code, 1961 Edition.
7. Maliuga Tuaolo prevails over Tutogi on the issue of the “value of the holder of the matai title to the family, *490the village, and the country.” See Sec. 6.0107 (Fourth), A. S. Code, 1961 Edition.
Applying the law as prescribed by Sec. 6.0107 of the A. S. Code, 1961 Edition, to the foregoing findings, the Court further finds that Maliuga Tuaolo is entitled to be registered as the holder of the matai name Tuaolo attached to the Village of Pago Pago.
DECREE
Accordingly, it is ORDERED, ADJUDGED AND DECREED that Maliuga Tuaolo shall be registered as the holder of the matai name Tuaolo attached to the Village of Pago Pago. The Registrar of Titles will be advised of this decree.
Costs in the sum of $8.50 are hereby assessed against Tutogi, the same to be paid within two weeks. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485353/ | OPINION OF THE COURT
MORROW, Chief Justice.
Tulei filed his application to be registered as the holder of the matai title Faagau attached to the Village of Sailele. Toliniu filed an objection to the proposed registration claiming that he had a better right to the title, thereby-becoming a candidate for the same. Hence, this litigation. See Sec. 6.0106, A. S. Code, 1961 Edition.
*492Sec. 6.0107, A. S. Code, 1961 Edition, provides that:
“CONSIDERATION GIVEN BY COURT: In the trial of matai title cases, the High Court shall be guided by the following considerations, in the priority listed:
“First: The best hereditary right in which the male and female descendants shall be equal in families where this has been customary, otherwise the male descendant shall prevail over the female.
“Second: The wish of the majority or plurality of those clans of the family as customary in that family.
“Third: The forcefulness, character, personality, and knowledge of Samoan customs.
“Fourth: The value of the holder of the matai title to the family, the village, and the country.”
Tulei is the grandson of Faagau Tafuna and has one-fourth Faagau blood in his veins while Toliniu is the great-grandson of Faagau Tu’utasolo and has one-eighth Faagau blood in his veins. It follows, therefore, that Tulei prevails over Toliniu on the issue of hereditary right, and we so find.
There was much contradictory testimony as to the wish of the majority of clans in the family as to which of the candidates should have the title. We have considered the evidence and have concluded that the weight of the evidence is to the effect that the two candidates stand on an equality with respect to this second issue. We find that Tulei and Toliniu rank equally on this issue.
Both candidates speak English fairly well. Tulei has completed six grades in school, Toliniu seven. Tulei works as a foreman for the Department of Public Works at Tafuna. He has about twenty-five laborers working under his direction. Toliniu works at the Star-Kist Cannery as a cook, i.e., he cooks the fish in steam cookers after they are canned in order to prepare the canned fish for the market. Both candidates have worked on plantations. Toliniu worked for the Van Camp Sea Food Company once. However, he was caught stealing from the Company and was *493sent to jail for larceny. He has been using the matai title Faagau without being registered as the holder of the title. This is a criminal offense under Sec. 6.0109 of the A. S. Code, 1961 Edition, for which the punishment is a fine of not more than $25.00 or imprisonment for not more than three months or both. Both candidates are familiar with Samoan customs.
We observed the personalities of both candidates during the hearing. From the testimony and our observations, we conclude that Tulei prevails over Toliniu on the issue of “forcefulness, character, personality, and knowledge of Samoan customs,” and we so find.
Each candidate testified that if awarded the title he would get the Faagau Family to live together in peace and harmony. However, considering all of the evidence bearing on the issue of the “value of the holder of the matai title to the family, the village, and the country,” we conclude that Tulei prevails over Toliniu on the fourth issue, and we so find.
Since we find that Tulei prevails over Toliniu on the first, third, and fourth issues and stands on an equality with him on the second issue, it follows that we must award the Faagau title to Tulei.
DECREE
Accordingly, it is ADJUDGED, ORDERED AND DECREED that Tulei shall be registered as .the holder of the matai title Faagau attached to the Village of Sailele. The Clerk of the High Court will register Tulei as the holder of such matai title and will issue to him a certificate of registration as such.
Costs in the sum of $12.50 are hereby assessed against Toliniu, the same to be paid within 20 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485354/ | OPINION OF THE COURT
MORROW, Chief Justice.
Laeli, a member of the Tauala Family, filed his petition seeking an order evicting Moetoto, a member of the Alalamua Family, from certain land in Ta’u together with an *495order requiring Moetoto to remove his cook house from said land.
The evidence is clear that the land called Fogaolo by the plaintiff Laeli was in the possession of Tauala’s Family prior to defendant Moetoto’s entering upon it and putting up a cook house thereon about a month or a month- and-a-half ago.
“A presumption of ownership or title is derived from the possession of real property, the probative weight or force thereof being dependent upon the duration of the possessor’s tenure.” I Jones on Evidence (4th Ed.) 133.
There was some evidence, which we think is entitled to very little weight, to the effect that Moetoto’s family Alalamua might have had some claim to this land many, many years ago, possibly before the Government was established in 1900. However, it is clear to us from the evidence that the Tauala Family had possession of the land with plantations thereon for more than 35 years prior to the entry of Moetoto thereon to put up his cook house, and that this possession was under circumstances making it adverse to the Alalamua Family.
It is our conclusion from the weight of the evidence that if the Alalamua Family, of which Moetoto is a member, ever had any claim to or interest in the land, such claim or interest has been extinguished many years ago by adverse possession by the Tauala Family, and we so find. Sec. 10.0115, A. S. Code, 1961 Edition, provides that adverse possession of land for 20 years confers a title “which is sufficient against all.”
JUDGMENT
Accordingly, Moetoto is hereby ORDERED to remove his cook house from the land Fogaolo (called Mulifusi by Moetoto) in Ta’u within 10 days and it is further ORDERED AND ADJUDGED that Laeli, representing the *496Tauala Family, do recover possession of said land from Moetoto and Moetoto is also hereby ORDERED no.t to enter upon said land except to remove his cook house therefrom.
Costs in the sum of $16.50 are hereby assessed against Moetoto, the same to be paid within 20 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485355/ | *497OPINION OF THE COURT
MORROW, Chief Justice.
Paleafei filed a petition seeking an injunction prohibiting Leatisua from destroying his plantations on land claimed by Paleafei to be the communal land of the Paleafei Family. Leatisua is a lesser matai in the Pele Family. He claims that the plantations are on communal land of the Pele Family and that any plants which he removed were planted on land of that family. The land involved is named Amalu in the Village of Laulii.
Leatisua relied primarily upon a decision of the High Court (No. 5-1904) in which the Court decreed that the central part of Amalu was the property of the Paleafei Family while the eastern and western parts (each adjoining the central part) were the property of the Pele Family. Amalu had not been surveyed and the respective boundaries of these three parts were not specified in the decree. This is not the first dispute between the Paleafei and the Pele Families as to the true boundary between the western part which is the property of the Pele Family and the central part which is the property of the Paleafei Family. Sometime after the decision in the High Court Case No. 5-1904 was made, District Court Case No. 1-1907 was decided. This case involved a dispute as to the true boundary line between the west part and the central part of Amalu. However, the true boundary line was not determined in that case, the substance of the decision being that the parties should keep the peace.
Paleafei* had a survey of what he claimed to be the western part of Amalu by a Mr. Yandall on August 30, 1906. A copy of the survey was introduced in evidence. The land as shown on the survey was never offered for registration. Leatisua relies in part upon the survey. However, *498since the land shown on the survey was never registered, the most we can say is that Pele Fia, claimed to own the surveyed part of Amalu (i.e. the western part). We cannot say from the evidence before us where the true boundary line is between the western part and the central part of Amalu.
As we view the evidence, plaintiff Paleafei did not establish by a preponderance of the evidence that his family is the owner of the part of Amalu in dispute. And, likewise, it cannot be said that the evidence preponderates in favor of the view that the disputed portion of Amalu is the property of the Pele Family.
Since we have concluded that plaintiff Paleafei has not proved by a preponderance of the evidence that the land in dispute is his property, we must dismiss his petition.
All of the judges join in the suggestion to the parties that one of them, after they make a sincere effort to agree upon a boundary line between them, have the western part of Amalu surveyed and offer it for registration.
ORDER
It is hereby ORDERED that the plaintiff Paleafei’s petition be and it is hereby dismissed.
Costs in the sum of $12.50 are hereby assessed against Paleafei and a like sum against Leatisua, the same to be paid within two weeks.
Paleafei should read Pele Fia. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485356/ | OPINION OF THE COURT
MORROW, Chief Justice.
Plaintiff Bottling Corporation filed its complaint demanding that “(1) This Court issue a declaratory judgment that the Defendant, Governor H. Rex Lee, has an obligation under law to approve Plaintiff’s application for tax exemption and/or that (2) This Court issue a judgment and order in the nature of a Writ of Mandamus requiring .the Governor to grant approval of plaintiff’s application for tax exemption as the law requires so that a certificate may issue for the tax exemption as provided for by the Industrial Incentive Act, Chapter 26.01, Code of American Samoa, 1961 edition, Public Laws 7-37.”
On or about May 10, 1962 the Bottling Corporation applied for the tax exemption as set forth for new businesses under the Industrial Incentive Act. The principal parts of the Act pertinent in this case read as follows:
“Sec. 26.0101 — PURPOSE: In order to establish a firm foundation for self-government and to assist the people of American Samoa to attain the maximum possible self-support, it is hereby declared to be the policy of the Government of American Samoa to attract new capital to American Samoa; to encourage the establishment of new businesses, to the extent that suitable facilities are available; and to promote and develop in American Samoa an economy suited to the needs and resources of the territory and its people. To achieve these objectives, exemption from the payment of taxes, customs duties, and business license fees imposed or levied by the Government of American Samoa may be allowed to new businesses in American Samoa. The Government of American Sa*502moa will regard each such certificate of exemption as being in the nature of a contract between the Government and the person or corporation to which the certificate is granted, and it will take no action to impair any rights granted by such certificate except as hereinafter provided.”
“Sec. 26.0102 — TAXES EXEMPT: 1. From and after the date of approval hereof, all persons or corporations duly qualified to do business in American Samoa and constituting new businesses within the meaning of this title may, upon application therefor and the granting of a certificate on the basis thereof, as hereinafter provided, be granted a ten-year graduated exemption as set forth below from the payment of taxes, customs duties, and business license fees imposed or levied by the Government of American Samoa:
“The first through the fifth year — 100% exemption
The sixth through the seventh year — 75 % exemption
The eighth through the ninth year — 50% exemption
The tenth year — 25 % exemption
“2. The rate of taxes, customs duties, and business license fees which are in effect on the date a person or corporation applies for a certificate of exemption shall, if the certificate is granted, be the rates which apply to such person or corporation during the period in which such person or corporation is entitled to the percentage of exemption described in subsection 1, of this section.
“3. Notwithstanding subsection 2, hereof, if the rate of any tax, customs duty, or business license fee is, at any time during the period in which a person or corporation is entitled to such percentage of exemption, lower than it was at the time such person or corporation applied for a certificate of exemption, such person or corporation shall, during such time, pay the prescribed percentage of such lower rate.
“4. The exemption described in such subsection 1 hereof shall relate to the particular new business conducted by the person or corporation to which the exemption is granted, and no new additional exemption shall be granted with respect to such particular business by reason of the subsequent operation of such business by a different person or corporation.
“3. No exemption from the payment of taxes, customs duties, or business license fees shall apply to or be granted to any officer, director, or employee of such new business, so long as he is em*503ployed by such new business, nor shall anyone doing business with a person or corporation which holds a certificate of exemption be regarded as qualifying for an exemption by reason of its doing business with such exempt person or corporation.”
“Sec. 26.0108 — TAX EXEMPTION BOARD: The provisions of this title shall be administered by a Tax Exemption Board of five members. The said Board shall include the Attorney General of American Samoa, who shall be the Chairman, the Treasurer of American Samoa, and three residents of American Samoa who shall be appointed by the Governor and who shall serve at his pleasure. All applications for exemption shall be filed with the said Board. In the performance of its duties hereunder, the said Board shall exercise the following powers:
“1. Conduct hearings, after due notice to all interested parties, with respect to applications for exemption. At the conclusion of such hearing, the Board shall determine whether the applicant for exemption is a new business within the meaning of this title. No later than 60 days from the receipt of the application, the Board shall submit the above determination to the Governor. The Governor shall, within 30 days, determine whether the business is a new business as defined herein and he shall approve or disapprove the application on the basis of such determination: Provided, That the Governor may also determine whether such new business is in the public interest and, even though a business is determined to be a new business, a certificate of exemption may be denied if it is determined by the Governor that such new business is not in the public interest. In the event the Governor approves an application, there shall be issued by the Attorney General within five days following such approval a certificate providing for such exemption. In the event the Governor does not act within 30 days, the determination of the Board will be final and if such determination is favorable to the applicant, the Attorney General shall issue a certificate as provided above.”
The Governor referred the application for tax exemption to the Tax Exemption Board. On October 2, 1962 the Board reported (Exhibit C of Plaintiff’s Complaint) to the Governor as follows:
“A meeting of the Tax Exemption Board has determined that the Bottling Company of Samoa is a new business under the provisions *504of the industrial incentive law. The recommendation of the Tax Exemption Board however is that the Bottling Company should not be given the Tax Exemption as prescribed by the industrial incentive law. The reasons for this decision is that there will only be approximately ten new jobs open to the Samoan population. Although there will be a capital investment of around $75,000.00, it is not felt that the payment of the taxes would be a bar to this Corporation doing business in Samoa.”
By letter (Exhibit B of Plaintiff’s Complaint) dated October 16, 1962, Mr. Carpenter, the Bottling Corporation’s President, wrote the Governor as follows:
“In regards to our meeting of October 12th, we are pleased to submit the following information:
“Capital Expenses for the first year of business if conducted properly would be as follows:
“Building 15.000.00
Plant 30.000.00
Delivery Vehicles 8,000.00
Bottles and Cases 37.000.00 (59,000)
Office Equipment 1.500.00
C02 Cylinder 2.100.00
Vending Machines and Coolers 4.000.00
Beginning Inventory 7.000.00
Incidental Expenses 5.000.00
Corporation Liabilities
incurred as of 30/15/1968 [sic] 3,400.00
“The Bottling Corporation of Samoa is incorporated for $60,000.00 which will be paid once we file our incorporation papers with the Treasurer of the Government of American Samoa. We are negotiating with the Bank of Hawaii and The First National Bank, also located in Honolulu, for a $40,000.00 loan. You can readily see from the $100,000.00 we will have to work with, that it will be necessary to cut down on many of the items listed above and that the most efficient operation must be conducted in order to survive the first several years of business. The import duty on our raw materials, supplies, and equipment are as follows:
“Sugar 15%
C02 15%
*505Chemicals 20%
Concentrate 15%
Bottles 20%
Cases 15%
Six Pack Containers 20%
Bottling Equipment 25%
Vehicles 25%
Parts 25%
Building 15%
“We anticipate sales to Western Samoa of 30,000 cases a year at 1.20 per case F.O.B. Pago Pago Dock. This means an additional $36,000.00 new dollars being brought into American Samoa that will be used for wages, imports of raw materials, power, water, gas, oil, grease, paint, office supplies, and general expansion of the operation. At the best, the sales to Western Samoa will be marginal for several years until the efficiency of the Bottling operation has reached its zenith, as we must sell to them at a price considerably less than the price that it will be wholesaled for in American Samoa. They have a 36% import duty on this type of product, and naturally we could not compete with their present sources of supplies at a higher wholesale price.
“We intend to have a retail price of 10$ per 10-oz. bottle for Coca-Cola and all flavors in American Samoa. The wholesale price to stores in American Samoa would be $1.60 per case delivered to their premises. We will also pick up empty bottles at no charge. A deposit of $1.00 per wooden case and 5$ a bottle will be charged to the stores and they in turn will charge the customer the same deposit rate. This will do much to the cleaning up of the continual amount of empty cans you now see along the roads and sidewalks of Tutuila.
“Industrial Incentive Act 26.01:
“Before we made any commitments as to the forming of our Corporation, I discussed this Act with the best Corporate Attorney I could find in Honolulu. It was made quite clear to our group that there would be absolutely no doubt that our type of business would more than comply with the meaning of ‘new business’ as defined in the Industrial Incentive Act, lines 238-244. We proceeded to organize the corporation, negotiate with the Coca-Cola Corporation for a franchise, negotiate for building and equipment with this assumption in mind. In June of this year, we appeared before four mem*506bers of the five-member Tax Exemption Board and a final negative decision was received in the early part of this month. This, naturally, was quite a shock to us as the Bill is quite clear in stating what powers the Board shall exercise, lines 81-99 of the Industrial Incentive Act. I would like to quote lines 82-83 and 84 as follows:
“ ‘At the conclusion of such hearing, the Board shall determine whether the applicant for exemption is a new business within the meaning of this title.’
“I would also like to quote the meaning of a ‘new business,’ lines 238-241:
“ ‘new business’ shall mean (1) a business involving the manufacture, processing, creating, or production of any articles or commodities not being manufactured, processed, created, or produced in American- Samoa on or before January 1,1960.”
“In yesterday’s mail, we were finally appointed with the Coca-Cola franchise for Samoa. This was wonderful news as we have been waiting several months for this decision. If land is made available and a favorable decision obtained on the industrial tax exemption, we will be ready to start business immediately.”
By letter (Exhibit D of Plaintiff’s Complaint) dated October 23, 1962, the Governor wrote Mr. Carpenter as follows:
“I have reviewed your letter of October 16, 1962, and the Tax Exemption Board’s recommendation that no tax exemption be made to the bottling works. I have discussed the matter with certain members of the tax board and while I am reluctant to override the recommendation of that board, I am willing to partly do so in order to get this new business into American Samoa and to get it started.
“I am willing to grant tax exemption only on the initial capital investment in the plant and equipment. This would include tax on the building, plant, delivery vehicles, bottles and cases, office equipment, C02, cylinder, and vending machines and coolers. This exemption would apply on capital improvement items up to the first day of operation and would not apply on anything brought in thereafter. This tax would not include beginning inventory and raw materials which you would import.
*507“I have talked with our land people again about the site for your operation and told them to make a first order priority for possible sites near the airport so that you and other interested businesses might establish there. You might keep in touch with Mr. Aspinall on this matter in my absence.”
By letter (Exhibit G of Plaintiff’s Complaint) dated November 16, 1962, the Governor wrote Mr. Carpenter as follows:
“This will reply to your letter of November 18, 1962. I am sorry that you were disappointed with the limited tax exemption granted you in my letter of October 23.
“After carefully considering the negative recommendation of the Tax Exemption Board on this project and also all of the known elements involved, I feel that this exemption is the very best that can be done.
“In relation to your site problem we have run into some legal difficulties and also some problems in dealing with the owners of the land we have lately considered. Until these are cleared in court there is nothing I can do. Since my return I have had everyone involved in this matter together in my office for a meeting and have asked for speedy action. While I cannot predict the reaction of the owners or the court, I am hopeful that land will be soon available. You will be advised the minute there are any developments in this regard.”
Plaintiff claims that it is entitled to a full tax exemption as set out in Sec. 26.0102(1) of the Industrial Incentive Act above quoted and not just an exemption “on the initial capital investment in .the plant and equipment” as indicated in the Governor’s letter of October 23, 1962 to Mr. Carpenter.
Complaint is made by the plaintiff that the Tax Exemption Board exceeded its statutory authority by recommending to the Governor “that the Bottling Company should not be given Tax Exemption as prescribed by the industrial incentive law.” Plaintiff claims that the duty of the Board was limited to a finding that the business of the *508plaintiff was a new business within the meaning of that term as defined in the Industrial Incentive Act. And that was true. However, the fact that the Board made a gratuitous recommendation to the Governor is not material as far as the decision in this case is concerned. Making such a recommendation was not illegal. It was just not called for by the statute.
It is next claimed by the plaintiff that the Governor could not legally grant a partial exemption. There are no guidelines or standards set out in the statute for granting partial exemptions. If we were to construe the statute as giving authority to the Governor to grant partial exemptions without prescribing any guidelines or standards by which he is to determine whether or not to grant such exemptions, we would be required to hold that the Industrial Incentive Act is unconstitutional. Panama Refining Company v. Ryan, 293 U.S. 388, 421-430; 79 L.Ed. 446, 464 (1934). It is our duty to interpret the Act so as to hold it constitutional, if possible.
“The Courts favor the constitutionality of statutes, and the cardinal principle of statutory construction is to save and not to destroy; the courts must sustain, or uphold, statutes, if possible, and are, or should be, reluctant to strike down a statute as unconstitutional.” 16 C.J.S. 357-359.
The statute may be held constitutional by holding that it does not give the authority to the Governor to grant partial exemptions. If the Legislature had intended to give authority to the Governor to grant partial exemptions, we think they would have said so. We think that the granting of a partial exemption was a nullity because it was not authorized by the statute.
The Attorney General claims that the disjunctive “or” in the clause “No exemption from the payment of taxes, customs duties, or business license fees” in Sec. 26.0102(5) of the Act indicates that the Legislaturé in*509tended that partial exemptions could be granted. However, we note that the conjunctive “and” is used in the similar clauses contained in Sec. 26.0102(1) and Sec. 26.0102(2). We think that the Legislature did not intend to give the Governor authority to grant partial exemptions by the use of the disjunctive “or” in Sec. 26.0102(5), and that it should be construed as “and.”
“In the construction of statutes, it is the duty of the court to ascertain the clear intention of the Legislature. In order to do this, courts are often compelled to construe ‘or’ as meaning ‘and’ and again ‘and’ as meaning ‘or.’ ” Mr. Justice Grier in United States v. Fisk, 70 U.S. (3 Wall.) 445, 447, 18 L.Ed. 243, 244.
We hold that the Governor’s granting a tax exemption on the initial capital investment in the plant and equipment only was a disapproval of the application of the plaintiff for a full tax exemption as specified in Sec. 26.0102(1). It could be nothing else. A quarter of a loaf is not a whole loaf.
The election of a President is a matter of great public interest. In that sentence the term “public interest” certainly means something different from what the same term means in the Industrial Incentive Act.
“Public interest” is a term with various meanings. It may mean one thing under one set of circumstances and another thing under another set of circumstances. This is apparent from the various judicial interpretations of the term as they appear in 35 Words and Phrases 229-240. It is a somewhat indefinite and ambiguous term.
“Resort to the preamble of a statute to aid in the construction of the enacting portion thereof is proper where an ambiguity exists. As sometimes expressed, it is the key to open the mind of the makers of the law. The preamble is especially helpful when the ambiguity is not simply that arising from the meaning of particular words, but such as may arise in respect to the general scope and meaning of the statute.” 50 Am.Jur. 297-8.
*510We think that we may resort to the preamble (Purposes) of the Industrial Incentive Act in Sec. 26.0101 to aid us in its construction. A primary objective (purpose) of the Act as expressed by the Legislature is “to establish a firm foundation for self-government and to assist the people of American Samoa to attain the maximum possible self-support.” We may consider the purposes (preamble) of the Act to determine what was in the mind of the Legislature when it provided that new businesses in the public interest might be granted a graduated tax exemption as provided in Sec. 26.0102 of the Act. We think that it “is the key to open the mind of the makers of the law.” We think that “public interest” in the Act should be construed in the light of the Act’s purposes as stated by the Legislature in Sec. 26.0101.
In its complaint the plaintiff alleged that the Governor by his letter (Exhibit D of Plaintiff’s Complaint) of October 23, 1962 to the plaintiff “in review of the Tax Exemption Board’s Memorandum (Exhibit C) and a Report from Plaintiff (Exhibit E) found and determined that the Bottling Corporation of Samoa was a new business and that its existence in American Samoa was not against the public interest.” This allegation the defendant denied. This denial creates issues of fact.
The burden of proof was on the plaintiff as to these issues of fact. We think there is no doubt about the Governor’s having determined that the plaintiff’s business was a new business. It was for him to make a determination as to whether or not the plaintiff’s business was in the public interest.
The plaintiff alleges in its complaint that the Governor has arbitrarily disregarded the “clear requirement of the law and his own findings.” This allegation the defendant also denies.
*511It is not our function to determine whether the plaintiff’s business was or was not against the public interest. That was the function of the Governor.
Let us examine Mr. Carpenter’s letter of October 16, 1962 to the Governor. It informs him, among other things, of the customs duties on the various ingredients going into Coca Cola. The Governor must have known that none of these ingredients, such as sugar, CO2, chemicals and concentrate, are produced in American Samoa and that they would have to be imported. There was no point in Mr. Carpenter’s informing the Governor of the customs duties on these items if they did not have to be imported. Also, it is a matter of common knowledge that none of them is produced in American Samoa, and we can take judicial notice of matters of common knowledge. 31 C.J.S. 824. Mr. Carpenter told the Governor by indirection that ingredients going into the beverage would have to be imported. Since Mr. Carpenter in the same letter informed the Governor that “we were finally appointed with the Coca-Cola franchise for Samoa,” it follows that the Governor must have known that the plaintiff’s business would be to sell its beverage to the Samoan people. The Governor’s letter of October 23, 1962 shows that he knew that the ingredients would be imported.
The Governor must have known also from Mr. Carpenter’s letter that the plaintiff would be selling its product, not a necessity (and we can take judicial notice of that fact, for it is common knowledge that Coca Cola is not a necessity) to American Samoans, taking a very substantial part of the money received from them for it and sending it out of the Territory to buy ingredients for making more Coca Cola. The Governor in his letter of November 16, 1962 to Mr. Carpenter said that he had considered “all of the known elements involved.”
A primary purpose of the Industrial Incentive Act as set out in Sec. 26.0101 is “to establish a firm foundation *512for self-government and to assist the people of American Samoa to attain maximum self-support,” and “public interest” in Sec. 26.0103 should be interpreted in the light of these objectives.
Since the Governor considered, as he said, “all of the known elements involved,” we think he must have asked himself this question: “Is a business which receives money from the Samoan people for a non-necessity and sends much of it out of the Territory a business not in the public interest?” And again we think he must have asked himself: “Will sending money received from Samoans for a non-necessity out of the Territory ‘assist the people of American Samoa to attain the maximum possible self-support/ which is an objective of the Industrial Incentive Act as declared by the Legislature?” And again we think he must have asked himself this question: “If American Samoans spend money for a non-necessity, will they not have just that much less money to spend for the necessities of life, thereby rendering themselves less able ‘to attain the maximum possible self-support?’ ” The Governor must have realized that the Bottling Corporation would not be bringing money into the Territory to pay out as wages to Samoan workmen except possibly some from sales in Western Samoa but on the other hand would be sending money out of the Territory drained off from the American Samoan economy for a non-necessity. Then we .think he must, as an intelligent man, here asked himself the question: “Will the Samoan people be better able to support themselves as a result of this practice by the Bottling Corporation?” And finally, we believe the Governor must have asked himself this question: “Will it benefit the Samoan people to have their money drained off for a non-necessity and much of it sent out of the Territory?” We believe that the circumstances indicate that the Governor must have considered all of these matters when he was making up his mind as to whether or not he *513would approve plaintiff’s application for a full tax exemption as set out in Sec. 26.0102 of the Industrial Incentive Act. The Governor, as we have said, said that he considered “all the known elements involved.” See the Governor’s letter of November 16,1962.
The plaintiff claims that the Governor found that the plaintiff’s business was in the public interest because he stated in his letter of October 23, 1962 to Mr. Carpenter that “I have discussed the matter with certain members of the tax board and while I am reluctant to override the recommendation of that board I am willing partly to do so in order to get the new business into American Samoa and get it started.” However, following this statement, the Governor in the same letter said:
“I am willing to grant tax exemption only on the initial capital investment in the plant and equipment. This would include tax on the building, plant, delivery vehicles, bottles and cases, office equipment, C02 cylinder, and vending machines and coolers. This exemption would apply on capital improvement items up to the first day of operation and would not apply to anything brought in thereafter. This tax would not include beginning inventory and raw materials which you would import.”
This letter from the Governor clearly indicates that customs duties were not to be paid on the initial capital investment in plant and equipment. The plant and equipment would necessarily be brought in before any Coca Cola could be manufactured and sold to the Samoans. The initial plant and equipment would obviously not be paid for with money taken out of the Samoan economy for a non-necessity.
We note again that the Governor in his letter of October 23, 1962 to Mr. Carpenter said “This tax (the tax computed) would not include beginning inventory and raw materials which you would import (emphasis supplied).” In other words, the Governor exempted the initial plant and equipment to be paid for out of the corporation’s capital, *514or possibly in part with an outside bank loan, but refused to exempt anything already imported or to be imported which would be manufactured into Coca Cola and sold to the Samoan people.
It is most significant that he refused to exempt beginning inventory and raw materials to be imported while exempting initial plant and equipment. This is the key that opens up the Governor’s mind to us. The initial plant and equipment would not be sold to the Samoan people and the money received therefor sent out of the Territory; the beginning inventory and raw materials to be imported would be sold to the Samoan people in the form of Coca Cola and much of the money secured from them for it would be sent out of the Territory.
This circumstance of dividing the plaintiff’s imports into two classes, exempting the one from duty and not the other, points almost unerringly to the conclusion that the Governor determined that it was against the public interest to drain money out of the Samoan economy for a non-necessity and send much of it out of the Territory.
We think that under the circumstances the contents of the Governor’s letter of October 23, 1962 is a clear indication that the Governor determined that the plaintiff’s business was not in the public interest.
The fact that the initial plant and equipment would not be paid for with money procured from the Samoan people for a non-necessity may well have been the reason that the Governor exempted these items from import duties by giving a partial exemption.
Mr. Carpenter said in his letter of May 10, 1962 to the Governor that the plaintiff would have five employees and the Tax Exemption Board said ten in its report to the Governor. It would have a few stockholders also. While the business would be in the interest of the handful of employees and also in the interest of the few stockholders *515if the business made profits, nevertheless, the small number of employees together with the stockholders do not constitute the public.
There was no evidence that the Governor ever said, either orally or in writing, what he determined with respect to the plaintiff’s new business being or not being in the public interest. We must make our finding of fact from the circumstances in this case.
It is true that the Governor said in his letter of October 23, 1962 that he was granting a partial exemption “in order to get this new business into American Samoa and to get it started.” While the Governor might determine that the plaintiff’s new business was not in the public interest as that term is used in the Industrial Incentive Act, he could still very well say at the same time that he would like to see it get started. The business was a perfectly legitimate one that would provide jobs for five or ten Samoans and possibly profits for a few stockholders, and the Governor could very well desire that the new business get started. Merely because a business might not qualify for a tax exemption does not mean that the Governor would not want to see it get started. Doubtless, many perfectly legitimate businesses do not qualify for tax exemption under the Industrial Incentive Act.
Counsel for the plaintiff has set out in his brief some apparently extemporaneous remarks which the Governor made to a legislative committee some two or three months after he had denied the plaintiff’s application for a full tax exemption. These remarks were not introduced in evidence by the plaintiff. The Governor said that the plaintiff’s business “would make a small contribution to our economy. Now maybe I was wrong in overruling the Board. I did this after a great deal of deliberation.”
No doubt providing five or ten jobs might make a small contribution to the economy, but the Governor could well *516consider that that would be a very small matter when weighed against sending substantial amounts of money gotten from the Samoan people for a non-necessity out of the Territory. The Governor made reference to the importation of soft drinks. However, since it would seem not to make much difference whether merchants exported money for soft drinks or the plaintiff did it for ingredients to go into its beverage, it is difficult to read into the Governor’s remarks that he found that the plaintiff’s business was in the public interest. However, these remarks, as we have said, were not introduced in evidence by the plaintiff, although plaintiff’s counsel did mention them in his argument.
As we have already said, there was no evidence that the Governor ever said, either orally or in writing, what he determined with respect to the plaintiff’s new business being or not being in the public interest. We have only circumstantial evidence on that matter. The fact that he denied the plaintiff’s application for a full exemption is a strong indication of what his determination was.
Upon consideration of all the circumstances, we believe that the weight of evidence is to the effect that the Governor determined that the plaintiff’s new business was not in the public interest, and we so find. It follows from this finding of fact that the plaintiff’s petition should be dismissed.
It is not necessary for us to determine whether we have authority to issue “a judgment and order in the nature of a Writ of Mandamus requiring the Governor to grant approval of the Plaintiff’s application for tax exemption,” as demanded by the plaintiff in its complaint. The question of approving or disapproving an application to the Governor for tax exemption is one requiring the exercise of judgment and discretion. However, “It is generally agreed that the courts have no right or power to interfere by mandamus with the governor on questions involving his judgment and discretion, and he cannot be compelled by mandamus to *517perform duties which are partly discretionary and partly ministerial.” 55 C.J.S. 203.
The plaintiff demanded a declaratory judgment that “the Defendant, Governor H. Rex Lee, has an obligation under law to approve Plaintiff’s application for tax exemption.” Although it is also not necessary for a decision in this case, we note that “Since a declaratory judgment is of purely statutory creation, and unknown to the common law, . . ., in the absence of an authorizing statute a court cannot, either at law or in equity, entertain an action for, or render, a merely declaratory judgment declaring rights, obligations, or legal relations without awarding any remedial process; and .this rule applied in the federal courts prior to the enactment of the federal declaratory judgments act.” 26 C.J.S. 54. American Samoa does not have a statute authorizing declaratory judgments.
Counsel for the Bottling Corporation asked the writer of this opinion ex parte in Chambers to enter an order, pending final determination of this case, that “the payment of taxes, customs duties and business license fees to the Government of American Samoa is hereby stayed.” Later the Acting Attorney General objected .to the entry of such an order. It is not believed that under the facts in this case such an order is authorized by the Federal Rules of Civil Procedure. The request was not conditioned upon furnishing a bond.
DECREE
It is hereby ORDERED that the plaintiff’s complaint be and it is hereby dismissed.
Costs in the sum of $35.00 are hereby assessed against the plaintiff, Bottling Corporation of Samoa, the same to be paid within 30 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485692/ | On "Petition for Writ of Mandate":
Plaintiff asks that the Court order defendants to show cause why they should not (1) permit him to vote in the upcoming gubernatorial election and (2) "provide him with all necessary nominating papers according to law." He also asks (3) that the Court "extend time required [by statute] for filing of nomination papers by ten (10) working days subsequent to September 01, 1988"; and (4) that he be awarded damages in the amount of $50.
Nowhere in his petition or the accompanying affidavit and memorandum does petitioner specifically allege that he has attempted to register as a voter in accordance with the procedure prescribed by statute, or that he has asked for nominating petitions and that his request has been refused, or that he has paid a filing fee of $50 and then unsuccessfully sought a refund. From what petitioner does allege and from his requests for relief, however, we gather that some or all of these things may have happened.
A person whose application for registration as a voter has been denied by an election officer has the right to appeal to the board of registration. A.S.C.A. § 6.0224. The board is required by statute to sit on election day; the statute does not seem to prohibit the board from also sitting prior to election day. A.S.C.A. § 6.0224(b). In the meantime the person appealing the denial of registration is allowed to cast his ballot, but the ballot is set aside in a sealed envelope to be counted or not counted later depending upon the outcome of the appeal. A.S.C.A. § 6.022.3(c). If the board of registration denies his appeal, the prospective voter has the right of appeal to the High Court, which shall hear the case as soon as possible after the election. A.S.C.A. § 6.0230. In the meantime the applicant’s rights are preserved by the retention of his ballot in a sealed envelope, to be counted along with other such ballots in the event the Court overturns the rulings of the board of registration. A.S.C.A. § 6.0223.
*83In seeking a writ of mandamus ordering his immediate registration as a voter, petitioner essentially asks the High Court to skip the intermediate steps in the appellate procedure and proceed immediately to the final appeal. This we cannot do. The statutory procedure provides petitioner with an adequate remedy at law, absolutely ensuring that his right to vote will not be denied without judicial review. A writ of mandamus at this time is therefore inappropriate.
With regard to the alleged denial of petitioner’s right to run for Governor or Lieutenant Governor the situation is more complicated. Petitioner has apparently not presented the Election Office with a petition signed by 300 registered voters in support of his nomination for Governor or Lieutenant Governor. Until he does this and the Election Office refuses to put him on the ballot, he is not in a position to allege that his right to run for office has been denied. See A.S.C.A. §§ 4.0103, 6.0301. Petitioner implies, although he does not specifically state, that he has asked the Election Office for blank petition forms and that they have denied his request.
The only statutory reference to blank petition forms is a requirement that they be "distributed in each district by the chief election officer." A.S.C.A. § 6.0301(b). This statute does not say that these forms should only be given to people who have previously been certified as eligible to run for office. On the contrary, the statute goes on to specify that the chief election officer "shall determine whether the nominated candidates [that is, those who have filed their petitions] are eligible for election." A.S.C.A. § 6.0301(d). Thus the determination of a candidate’s eligibility is to be made after he has filed his petitions, not at the time he requests blank petition forms. Petitioner does have the legal right to receive such forms.
Petitioner’s request for an extension of the statutory deadline for filing his petitions is highly problematic. It is not inconceivable that someone who was legally eligible to run for office and who was wrongfully denied blank petition forms until shortly before the statutory deadline might be entitled to such relief. The legislature that *84enacted the statutory deadline also commanded election officials to distribute blank petition forms. In an appropriate case the Court might have to decide whether the deadline and the requirement for distribution of forms are so closely related that the former should be regarded as conditional upon the latter. Before the Court could reach this question, however, it would be necessary for the petitioner to prove that he was in fact denied the petitions and that he was damaged by this denial --- that he was in fact eligible to run for office and that he could have collected the necessary signatures on or before the deadline if he had been given the petitions when he first asked for them.
If the present petitioner has been denied blank petition forms, and if he immediately obtains such forms and collects 300 signatures but misses the September 1 deadline by a few days, we will be presented with the question whether he is entitled to have his petitions accepted. If he submits his nominating petitions and the chief election officer rules that he is ineligible to run on the ground of nonresidence, we will be presented with this question as well. Until petitioner submits such nominating petitions and the chief election officer makes his ruling, any opinion the Court might express would be purely advisory and therefore inappropriate.
With respect to the alleged fifty dollars in damages the Court is confused. Did the election office accept fifty dollars from the petitioner? If so, did petitioner request a refund? If so, does he intend to withdraw his candidacy? Without knowing the answers to these questions we cannot award damages.
If petitioner should request blank nominating petitions from the chief election officer, or if he has already requested them, they should be provided immediately. All other requested relief is denied.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485357/ | OPINION OF THE COURT
MORROW, Chief Justice.
Ativalu and other members of the Mana Family of Masefau filed their petition seeking removal of Mana Ailua from the title Mana.
We believe from the evidence that the case of the petitioners has been proved and that Mana Ailua should be removed from the title Mana.
The Mana Family should select a new matai. It may be Ailua or Ativalu or any other member of the Mana Family.
*519Section 6.0108 of the American Samoa Code provides that “Upon the removal of a matai under the procedure set forth in this section, another matai shall be selected by the family concerned in the usual manner.”
ORDER
It is hereby ORDERED that the Registrar of Titles shall remove from the Register of Matai Titles the name of Ailua as the holder of the matai title Mana attached to the village of Masef au.
Costs in the sum of $12.00 are hereby assessed against Ailua, the same to be paid within 30 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485358/ | OPINION OF THE COURT
ROEL, Associate Justice.
Plaintiff, Max Haleck, Sr., by and through his attorney *522of record, filed, on October 5, 1964, his complaint against Defendant, H. Rex Lee, present Governor of American Samoa. On October 23, 1964, the Attorney General of American Samoa, Counsel for Defendant, filed his answer. Briefs in support of their case were submitted to the Court previous to the day of the trial by counsel for Plaintiff and Defendant.
At the trial neither party presented any witnesses. They each wholly relied on their argument to the Court, their pleadings, and on their brief.
Plaintiff set down four different counts in his complaint, as basis for his action. Under Count I the complaint sets out the U.S. citizenship and residence in American Samoa of both Plaintiff and Defendant; that under a decree and Order of the Appellate Division of the High Court of American Samoa Tiumalu Taimane executed and delivered a new lease to Plaintiff pursuant to the renewal clause in a 1938 lease from Tiumalu Male to Ho Ching; that the covenant of renewal was declared valid as of 1938 by the decree of September 8, 1959 of the High Court of American Samoa, and constituted as of that date an encumbrance and alienation of the land in question; that the covenant for renewal of 1938 received the approval of Governor Hanson, required by law for its validity under Sections 1282 and 1283 of the Code of American Samoa applicable in 1938: that Defendant, Governor Lee, by and through his advisory Land Commission, has refused to recognize the validity of the renewal lease notwithstanding the execution of the lease approved by Governor Hanson and ordered into execution by the High Court of American Samoa, and that Defendant has attempted to destroy the renewal lease and force upon Plaintiff a substitute lease (Plaintiff’s Exhibit C) drawn by the Land Commission which is not agreed between the parties but contains unconscionable, harsh, and oppressive terms; that Defendant bases his action on his belief that the *523renewal lease is unenforceable unless and until he grants his signature of approval and that no substitute lease will be permitted to receive such approval other than that which agrees with his judgment of value; that Defendant himself and by his Land Commission has threatened Plaintiff with eviction and dispossession of his lawfully held property under the renewal lease and, if Defendant were to prevail, Plaintiff would suffer a retroactive liability under Paragraph 2(c) of the Land Commission lease (Exhibit C) which he is not prepared to undertake and which if such terms are to be imposed upon him he should know at once that he may take steps now to terminate further liability. Plaintiff concludes his first count by asking the Court to issue a declaratory judgment that the renewal lease as ordered in execution by the High Court of American Samoa of September 8, 1959 and signed by the parties on August 10, 1960 is valid and binding in having received the requisite approval of Governor Hanson and that Defendant, Governor Lee, acting alone or by his advisory Land Commission has no right to ask to interfere and set aside this lawful leasehold.
In Count II, Plaintiff, after adopting all the allegations in Count I, sets out the following: That under the decision of the High Court of American Samoa of September 8, 1959, the covenant for the renewal lease is declared to be an existing and valid contract; that if the technicality of law requires approval of Governor Lee for the validity of the renewal lease, Defendant’s refusal is an impairment of an existing and valid contract and he is thereby depriving Plaintiff of his property by an arbitrary and unlawful exercise of governmental power in violation of the Due Process Clause of the Fifth Amendment of the U.S. Constitution.
Plaintiff in Count III of his complaint adopts all the allegations in Counts I and II, and charges that Defendant is depriving Plaintiff of his property by an arbitrary and *524unlawful exercise of governmental power in violation of the Due Process Clause of Article I, Section 2, of the Constitution of American Samoa.
In Count IV the Plaintiff adopts all the allegations of Paragraphs 1 through 11 and goes on to claim that the Defendant, Governor Lee, is depriving Plaintiff of his right not to be oppressed by retroactive laws impairing the obligation of contracts which is guaranteed by Article I, Section 13, of the Constitution of American Samoa.
In his prayer, Plaintiff demands as follows: (a) That the Court issue an order in the Nature of Writ of Mandamus requiring Governor Lee to issue his approval of the renewal lease executed under the order of the High Court of American Samoa of September 8, 1959, or in the alternative (b) issue judgment that the statute requiring the Governor’s approval for validity of this lease was not meant to be construed and held applicable to a lease under the present circumstances, and such other relief as the Court deems meet.
In Count No. I of his written answer, Defendant’s counsel admitted the allegations in Paragraphs 1, 2, 3, 5, and 11 of the Plaintiff’s complaint. He also admitted the allegations in Paragraph 4 except the phrase “.. . and constituted as of that date an encumbrance and alienation of this land,” which Defendant denied. Defendant admitted refusing to recognize the validity of the renewal lease executed August 10, 1960 as alleged in Paragraph 6, and that he has refused to approve the same, but denies that the substitute lease drawn and recommended by the Land Commission contains unconscionably harsh and oppressive terms. Defendant admits he believes the renewal lease as executed by Plaintiff on August 10, 1960 is unenforceable unless approved by the Governor, as set out in Paragraph 7 of Plaintiff’s complaint, but denies that approval of a substitute lease is based solely on his judgment of value but rather, upon that recommended by the Land Commission., Defend*525ant denies that he has threatened to evict or dispossess Plaintiff of his lawfully held property as alleged in Paragraph 8 of Plaintiff’s complaint, and alleges that he is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations in said Paragraph 8. Defendant further denies each and every other allegation contained in Plaintiff’s complaint.
In Count II of his answer, Defendant adopts and repeats all of the allegations in Count I. Defendant further alleges that the Court is without statutory authority to issue a declaratory judgment as prayed for in Paragraph 9 of Plaintiff’s complaint; Defendant further alleges that the Court is without authority to issue an order in the nature of a Writ of Mandamus as prayed for in Paragraph 17(a) of Plaintiff’s complaint since the acts which Plaintiff requests that Defendant be required to perform involve the exercise of official judgment and discretion.
Except for one or two additional cases cited at the trial, both parties relied upon the statements and citations in their individual briefs and on their pleadings in their arguments to the Court.
Previous to the trial of the case, a pre-trial conference was had in the Court’s chambers at which counsel for Plaintiff and Defendant were present. In an attempt to narrow down the issues, it was agreed by counsel for both parties that the main point at issue before the Court would be: Is the renewal clause in the 1938 lease such as to make the present lease a “new” lease or merely an extension of the 1938 lease, and that the answer to this question would determine the necessity of Defendant’s approval of the 1960 lease. We may say here that at the trial neither side confined itself to this issue alone in their argument to the Court. Because of the nature of the case, the Court felt that the parties should not be precluded from arguing any relevant matter and accordingly allowed counsel ample time and latitude.
*526In his argument to the Court counsel for Plaintiff began with the 1938 lease (Exhibit B) which was assigned by the original lease to Plaintiff in 1953, and that said lease contained a covenant for renewal for twenty (20) years; that assignee of the 1938 lease, Plaintiff, had exercised said covenant for renewal in 1958; that lessor had resisted Plaintiff’s right to renew; that in 1959 Plaintiff had sought from the Court of American Samoa specific performance of the covenant to renew; that the High Court of American Samoa had upheld Plaintiff’s rights under the covenant in the 1938 lease and had ordered the lessor to execute a new lease with the Plaintiff; that the Appellate Division of the High Court affirmed its decision on appeal; that on August 10, 1960 a new lease was executed between Plaintiff and lessor, pursuant to the Court order of September 3, 1959, in enforcing the covenant to renew; that after the execution of the lease on August 10, 1960, the Land Commission had informed Plaintiff that said lease was not valid because it lacked the approval of the Governor of American Samoa; that the Land Commission presented to the Plaintiff a lease which would receive the approval of the Governor, said lease containing different provisions than those on the lease with the covenant for renewal of 1938.
Counsel for Plaintiff argued that Section 3c of the “Land Commission” lease (Exhibit C) requiring payment of retroactive rent upon approval of the lease by the Governor was in violation of Plaintiff’s rights; that the Court issue a declaratory judgment respecting Plaintiff’s rights as set out in his complaint; that all the documents submitted by Plaintiff were admitted by the Defendant; whereupon counsel for the Defendant stipulated that Exhibits A, B, and C attached to the Plaintiff’s complaint were true copies of the authentic documents. Exhibit A was identified as the lease executed between the parties on August 10, 1960 on order of the Court on September 8,1959; Exhibit B *527was the original 1938 lease; and Exhibit C was the lease presented to the Plaintiff by the Land Commission as being the lease which the Governor would approve.
Counsel for Plaintiff further argued that the matter before the Court was simply an issue of law, not of equity or social justice, only a matter of law as to Plaintiff’s rights; that Section 71 of the 1937 Code of American Samoa was the law applicable to the original lease of 1938; that the main issue was whether the covenant for renewal in the 1938 lease is such a lease that it requires the approval of the present Governor; he argued that he did not know what the definition of the word “sanction” in Section 71(3) was, and that arriving at the distinction between words in the statute was a waste of time.
Plaintiff’s counsel argued that the covenant for renewal was an alienation of land; that both the words “disposal” and “alienation” included a lease; that the covenant for renewal had received the approval of Governor Hanson in 1938; that the covenant to renew had all the earmarks of a lease itself which required the approval of the Governor, which approval was granted in 1938 by Governor Hanson.
Plaintiff’s counsel then argued about the definition of a “lease,” and stated that it was a contract for the use of land for a specific time or an instrument by which one is granted the right to occupy land to the exclusion of the lessor.
Plaintiff’s counsel further argued that the covenant to renew was itself a lease since all the conditions requisite for the lease were set out; that the covenant in the 1938 lease was in fact a new lease with the amount of rent changed to $35.00 per month; that the decision of the Appellate Division of the High Court of American Samoa held that the covenant to renew was part of the original lease; that Governor Hanson could in 1938 approve a lease to start twenty (20) years hence, since under Section 71(3) Gover*528nor Hanson could approve a lease up to forty (40) years; that all leases for the approval of the Governor are an approval for future leases; that what had happened in 1938 was that Plaintiff’s assignor and lessor agreed to a forty year lease, but that Plaintiff’s assignor did not have to take the last twenty (20) years of the lease; that a covenant to renew is a present lease agreement for future possession; that Defendant joined issue with Plaintiff on the difference between a contract to grant an estate and a lease; that Defendant considered the covenant an executory contract, but that Plaintiff did not agree it was an executory contract.
Plaintiff’s counsel argued that the 1959 decision of the High Court of American Samoa held that there was adequate consideration in 1938 for the validity of the renewal covenant in 1958. Plaintiff’s counsel argued that a mere contract to make a lease will not be enforced by specific performance, but that a lease will be enforced by specific performance; that damage is the only remedy for breach of a contract to make a lease; that there is no right to possession in a mere contract to enter into a lease.
When questioned by the Court regarding certain parts of the decision of the High Court of American Samoa, Trial Division, counsel for Plaintiff stated he had not seen or read the decision of the Trial Division of the High Court of American Samoa, a decision to which he had referred on numerous occasions in his argument and brief. When shown a copy of the decision and advised by the Court if he required any time to examine it the Court was willing to give him all the time necessary, counsel for Plaintiff indicated he did not wish to study the decision since the part of the decision referred to was mere dicta and had been overruled by the Appellate Division of the High Court of American Samoa.
The part of the decision by the Trial Division referred to was 3 A.S.R. 391-94. It reads as follows:
*529“The renewal lease for 20 years from the expiration of the old lease on February 8,1959, will be a new lease. After its execution it may be presented to the Land Commission for its recommendation to the Governor, pursuant to the provisions of Section 1281 of the A. S. Code.
“Section 1282 provides that ‘All instruments affecting the title to land which require the approval of the Governor before becoming effective shall be filed with the Secretary of the Land Commission for study and recommendations thereon by the Commission. The said Commission shall . . . make recommendations to the Governor respecting the approval or disapproval of instruments affecting the title, ownership or possession of land, so submitted for consideration and approval. It shall be the duty of the Commission to endeavor to prevent the monopolistic ownership of land and improvident alienations of communal lands (emphasis added) by those charged with the management and control thereof.’
“Section 1280 of the Code provides that ‘As used in this Chapter “Alienation” shall mean the sale, gift, exchange, or any other method of disposal.’ A renewal lease of the land will dispose of an estate for 20 years in it. An estate for years is frequently treated as an interest in land. See Fidelity Trust Co. v. Wayne County, 244 Mich. 182, 59 A.L.R. 698.
“Section 1283 of the Code provides that ‘Native land may, with the approval of the Governor, be leased to any person for any term not exceeding thirty (30) years for any purpose, except for the working of minerals, and cutting of timber.’
“We think that Sections 1281 and 1283 constitute a proper exercise of the police power of the Government to protect the owners of communal lands from improvident dispositions of their property by lease or otherwise.
“In the exercise of its police power, the Government may see to it that a lease provides for an adequate and reasonable rental under existing conditions or in effect prohibit the making of the lease through the intervention of the Land Commission and the Governor, unless it provides for a sufficient rental so as not to make the transaction improvident with respect to the owner of the Samoan communal land. The Samoan people need protection against improvident transactions such as disposing of their property for less than it is worth.
*530“The provision in Section 10 of Article 1 of the U.S. Constitution to the effect that ‘No State shall. . . pass . . . any law impairing the obligation of contracts’ is a limitation upon the power of a State, not a U.S. possession as is American Samoa.
“In Home Bldg. & Loan Assoc. v. Blaisdell (1933), 290 U.S. 398, 88 A.L.R. 1481, a Minnesota statute extended the period of redemption from a mortgage foreclosure. This was during the time of a great economic distress in United States in the early 1930’s. The Supreme Court of the United States upheld the statute as a proper exercise of the police power of the State for the protection of the economic interests of the people despite the prohibition against the impairment of the obligation of contracts clause in Article 1, Section 10, and the due process and equal protection clauses in the 14th Amendment. Speaking with reference to the constitutional prohibition against the passage of laws by a state which impair the obligations of a contract, Mr. Justice Brewer in Long Island Water Supply Co. v. Brooklyn, 166 U.S. 685, 692, said: ‘But into all contracts, whether made between States and individuals, or between individuals only, there enter conditions which arise not out of the literal terms of the contract itself; they are superinduced by the pre-existing and higher authority of the laws of nature, of nations or of the community to which the parties belong; they are always presumed, and must be presumed, to be known and recognized by all, are binding upon all, and need never, therefore, be carried into express stipulation, for this could add nothing to their force. Every contract is made in subordination to them, and must yield to their control, as conditions inherent and paramount, wherever the necessity for their execution shall occur.’ An examination of the decisions of the U.S. Supreme Court interpreting the prohibition against the impairment of the obligation of contracts will reveal that it is not absolute.
“Mr. Justice Reed in Veix v. Sixth Ward Building and Loan Association, 310 U.S. 32, 38, said: ‘In Home Building and Loan Association v. Blaisdell (290 U.S. 398, 434) this Court considered the authority retained by the State over contracts “to safeguard the vital interests of its people.” The rule that all contracts are made subject to this paramount authority was there reiterated. Such authority is not limited to health, morals and safety. It extends to economic needs as well. Utility rate contracts give way to this power, as do contractual arrangements between landlords and tenants.’ . .
*531“Section 1281 respecting the creation and duties of the Land Commission was enacted into law on June 24, 1947 (It was enacted as Amendment No. 8-1947) which was after the November 1, 1938 lease was executed by Tiumalu Male and Ho Ching. But it was in effect when Haleck took the assignment of the lease from the Ho Ching heirs in 1954 and 1955.”
Counsel for Plaintiff argued that the consequence of the exercise of the option for renewal was that which was the intention of the parties; that the Court would have to decide what the intention of the parties was; that it was the conscious intention of the parties to make the exercise of the renewal option a lease and not a contract for a lease; that all terms of the lease were agreed upon and that there was nothing more intended to be done by the parties; that where the parties have agreed upon all the terms of a lease, there is an actual lease, even if executed later.
Plaintiff’s counsel further argued that at the time of the execution of the 1938 lease, there was no competent lawyer in American Samoa and that there was no considered attempt at the time to draft a fool-proof legal instrument, and that the Court should not seriously consider accidental language such as “new” as appeared in the 1938 lease; that a covenant to renew runs with the land and that the Court of American Samoa had so held; that the Court had to live with its holdings; that a covenant to renew was either a contract to lease or a lease running with the land.
Counsel for Plaintiff argued that since the 1949 Code sets out a penalty for entering into a lease without the approval of the Governor, when the Court ordered specific performance of the lease between the parties it had in fact decided that the Governor had approved said lease; that the Court would only have to affirm the decree of September 1959 by the Appellate Division of the High Court of American Samoa and that the Plaintiff’s rights would be settled to the extent that the lease had received the approval of the Governor; that if the Court upheld Defendant’s position, it *532would outlaw all covenants to renew and would preclude the Governor from approving future covenants for renewal of leases;'that the present Governor was attempting to revoke the approval by Governor Hanson; that the lease does not require the further approval of Governor Lee. Plaintiff’s counsel indicated he did not know what the Defendant’s position on the law was; that if mere technicalities necessitate Governor Lee’s signature on the lease, he is required to sign it.
Counsel for Plaintiff made reference in his argument to Article I, Section 13, of the Constitution of American Samoa in connection with the Plaintiff’s right against the impairment of contracts. He then made reference to the police power clause in the same constitution, and argued that specific language will prevail over general language in the constitution; that the extent of the authority from the police power was not clear in the Constitution of American Samoa ; that the law is unconstitutional if the new lease has to be approved by Governor Lee.
Plaintiff’s counsel further argued that under Section 1282 a leasehold interest did not affect title and that the Land Commission had no position to comment upon leases. He then questioned the definition of “title” and argued that Section 1281 gave the Land Commission power to approve “title” not “possession.”
Counsel for Plaintiff argued that if the terms of a lease are so low something must be done and there should be more rent. He stated that his client, the Plaintiff, was willing to renegotiate for an increased rent with the lessor, Tiumalu, but that he was very sensitive to the government’s interference with his rights and that Plaintiff would not have their contract broken by the Government of American Samoa. When questioned if the lessor, Tiumalu, joined the Plaintiff in the above sentiments, counsel answered in the *533negative. He argued that the Governor had over-stepped his authority after the Court ordered specific performance of the lease as between Plaintiff and Tiumalu; that the rule of law should prevail over social justice or over the social consciousness of the government. Counsel for Plaintiff again stated that Plaintiff was willing to adjust the lease contract, but not to be forced by the government. He did not reveal to what extent Plaintiff was willing to adjust the rental.
Counsel for Plaintiff then argued regarding his request for a declaratory judgment and Writ of Mandamus as remedies on behalf of Plaintiff. He argued that notwithstanding Defendant’s objection to a declaratory judgment, no statutory authority for such a remedy was needed and that statutory authority was already granted; that a declaratory judgment was only a procedural remedy. He then proceeded to talk about constitutional and legislative courts in connection with their powers to issue declaratory judgments; that the Court of American Samoa was a constitutional and not a legislative court; that according to Section 3.0608 of the Code of American Samoa, 1961 Edition, “U.S. Federal Rules of Procedure should be followed as closely as practicable.” He then agreed that it was up to the Chief Justice of American Samoa to determine whether a declaratory judgment could issue from this Court, concluding that the Court may issue a declaratory judgment. Counsel cited a Virgin Islands case regarding declaratory judgment, Ottley v. DeJongh, 149 F.Supp. 75.
In connection for his request for a Writ of Mandamus against the Defendant, counsel for Plaintiff argued that the Attorney General did not dispute that the Court could issue Writs of Mandamus but that a Writ of Mandamus would not issue to require the Executive exercise acts which were discretionary. He argued that if the approval of the Governor of the lease is required, then a Writ of Mandamus *534must issue, saying that the approval of the Governor, if if necessary, was only ministerial and not discretionary and hence a Writ of Mandamus should issue.
Counsel for Plaintiff then reiterated his requests for remedy set out in his pleadings.
Answering the argument by counsel for Plaintiff, the Attorney General of American Samoa, acting as counsel for Defendant, Governor Lee, stated that he conceded that Plaintiff’s Exhibits A, B, and C were authentic; that the Defendant has declined to approve the 1960 lease between Plaintiff and Tiumalu (Exhibit A).
Defendant’s counsel argued that throughout the period since the United States was granted possession of American Samoa in 1900 there was reflected a policy on the part of the government to protect the communal lands for the benefit of the Samoan people. He indicated that the first regulation to protect communal land was enacted by Commander Tilley on April 30,1900, only thirteen days after the raising of the American flag; that the second regulation for the same purpose was Section 71(3) of the 1937 Code of American Samoa, incorporating the law which had been in existence since April 30, 1900; that it was this law, Section 71(3), which governed the original 1938 lease; that the policy of protecting communal lands for the people of Samoa was continued with the enactment of Sections 1282 and 1283 of the Code of American Samoa, 1949 Edition, where the word “sanction” was changed to “approval” and the word “commandant” to “Governor.” Counsel for Defendant argued that for sixty-four years — since the raising of the American flag in Samoa — the approval of the Governor was required for leases of communal land.
Counsel for Defendant answered Plaintiff’s argument that Section 1281 referred only to “title” by stating that Section 1283 clearly requires the approval of the Governor for the “leasing” of land. He argued that the Governor may-*535ask the help of the Land Commission or anybody else for guidance and that the Governor is not bound by the findings of the Land Commission.
Counsel for Defendant argued that if the communal land had not been or was not protected by the government, most of the Samoans would have no land left. He argued that Article I, Section 3, of the Constitution of American Samoa specifically provides for a policy by the government to protect Samoans in connection with their lands, Policy protective legislation; that this provision is in the Bill of Rights of the Constitution, the same place as is found the impairment of contract clause. He argued that Section 1283 of the Code of American Samoa, 1949 Edition, was in existence in 1960 when the constitution was considered and passed and that said constitution became effective on October 17, 1960; that if the framers of the constitution had wished to do away with the requirement of the Governor’s approval for the validity of a lease, the Constitutional Convention could have changed the law, but instead they strengthened the section by specifically mentioning it in the constitution and by providing that no law regarding the alienation of land should become effective unless it was approved by a two-thirds majority of each house at two different consecutive legislative sessions and approved by the Governor; that there could have been no possible stronger endorsement by the Constitutional Convention of the existing statutes protecting the land for the Samoan people.
Counsel for Defendant argued that the statute prohibiting the alienation of communal land without the written approval of the Governor is a proper exercise of the police power and is not unconstitutional. He made reference to 3 A.S.R. 391, decision of the High Court of American Samoa, Trial Division, in the case of Haleck v. Tiumalu where the Court found that Section 1283 of the Code of American Samoa, 1949 Edition, was a proper exercise of *536the police power. He also referred to the case of Home Building and Loan Association v. Blaisdell, 290 U.S. 398, and Long Island Water Supply Co. v. Brooklyn, 166 U.S. 685. Counsel for Defendant argued that as assignee of the 1938 lease, Plaintiff came under the then existing law regarding alienation of lands; that the covenant for renewal called for a “new” lease; that a covenant to renew was different, from a covenant to extend a lease; that the covenant was merely a contract to grant an estate; .that the presence of the word “new” in the 1938 lease was no accident of language; that Governor Hanson may have insisted on the term “new” to make sure that twenty (20) years hence the then Governor would have an opportunity to re-examine the lease before approving it.
Counsel for Defendant referred to Page 10 of his submitted brief to argue the difference between renewal and extension. He cited Arnett v. Lewis, 45 N.E.2d 313, to the effect that an extension created an additional term but that a provision for a renewal did not of its own force create a new term; that a provision for renewal merely creates an obligation to execute a new lease for the additional term. He also referred to 32 Am.Jur. 978 to make the same point.
Answering Plaintiff’s counsel’s argument that the Plaintiff was willing to negotiate with Tiumalu for more money in consideration for the new lease, Defendant’s counsel stated that the fact was that the Plaintiff had signed the lease in August of 1960 for only $35.00 per month. He rejected Plaintiff’s counsel’s charge that the Governor had “cornered” Plaintiff, saying that if the rental offered by Plaintiff had been more the matter would not have reached the courts.
Defendant’s counsel cited the case of Twentieth Century Assoc. v. Waldman, 294, N.Y. 571, 162 A.L.R. 197 regarding a maximum rental law in New York to argue that the refusal of Governor Lee to approve the renewal lease is not *537an unconstitutional exercise of the police power, arguing that said case was quite relevant to the matter before the Court; that where there is á valid exercise of the police power, due process must give way. Defendant’s counsel argued that Plaintiff’s contention that the rule of law must prevail over social justice assumes that the parties are .dealing on an equal basis, and stated that the Samoan Matai who negotiated the 1938 lease with Ho Ching was certainly not negotiating on an equal basis and most probably did not realize what the value of the land involved would be twenty (20) years hence; that the reason for the law requiring approval of the Governor for the validity of a lease is to protect the Samoan people who cannot properly protect their own interests; that that was the reason why the 1938 lease called for a “new” lease and not an extension.
Counsel for Defendant argued that there was no statutory authority in American Samoa to empower the Court to issue a declaratory judgment and referred to 26 C.J.S., Section 4, Declaratory Judgment. He argued that no declaratory judgment had ever been issued by the Courts of American Samoa; that the Court gets its authority from the Constitution and not from independent authority, citing 21 C.J.S. 120, 121, 122, 170, 179.
Defendant’s counsel argued that a Writ of Mandamus cannot issue against the Defendant, Governor Lee, for the reason that the approval of a lease would entail official judgment and discretion on the part of the Governor, and that Plaintiff’s counsel agreed that if the act is discretionary a Writ of Mandamus will, not issue; that Plaintiff’s counsel is wrong in saying the approval by Governor is only ministerial and not discretionary; that the new lease is subject to approval of the Governor under Sections 1281 and 1283 of the Code of American Samoa, 1949 Edition.
Counsel for Defendant argued that Plaintiff’s demand for a declaratory judgment and Writ of Mandamus should be denied by the Court.
*538In rebuttal argument, counsel for Plaintiff stated that Defendant’s authorities regarding the difference between a covenant to renew and a contract to make a lease were not exhaustive; that the matter depends on the substance of the contract and the intention of the parties. He stated he agreed with Mutual Paper Co. v. Hoague-Sprague Corp. as cited on Page 10 of the Defendant’s brief, and that the question was whether the renewal covenant had all the necessary elements to make a binding lease. He argued that the High Court of American Samoa had held that that renewal created a new term of lease. Plaintiff’s counsel went on to argue that Defendant’s speculation that Governor Hanson would want the approval of the Governor twenty (20) years hence was fanciful, and if that had been the case Governor Hanson would have only permitted a twenty (20) year lease.
Plaintiff’s counsel argued again that if Tiumalu had not objected to the execution of the lease, the Plaintiff would have raised the rent; that the Plaintiff had a very sensitive sense of dignity and did not want to be told about his rights.
Counsel for Plaintiff argued that he admitted that a contract for a lease was not valid till it received the Governor’s approval, but that the fact that the Court had ordered specific performance of the lease indicated that the covenant was not only a contract to lease but an extension of the original lease. He presented five propositions for Plaintiff as follows:
1. That the covenant to renew constituted a lease which received the approval of Governor Hanson in 1938;
2. That all conditions of the lease were defined and agreed to;
3. That the High Court of American Samoa ordered specific performance of the lease and the Court would not have so ordered if the covenant was only an executory contract;
4. That the High Court of American Samoa could not have ordered specific performance of an invalid lease;
*5395. That the ambit of a decision by the Court against Plaintiff would be to outlaw covenants for renewal in American Samoa.
In closing, counsel for Plaintiff argued that what was the intention of the parties regarding the covenant for renewal was a matter for the Court to decide.
Let us now then consider the pleadings of the Plaintiff. The first three paragraphs of Plaintiff’s petition are uncontradicted.
The allegations in Paragraph 4 are admitted by the Defendant except the phrase “and constituted as of that date an encumbrance and alienation of this land.” We are of the opinion that the covenant for renewal in the 1938 lease did not constitute an alienation and encumbrance of the land and that the decree of the High Court of American Samoa of September 8, 1959, did not so hold. The fifth paragraph of the 1938 lease reads as follows:
“. . . And the said party of the first part further covenants with the said party of the second part that he (the party of the first part) on demand of the said party of the second part, and, upon expiration of this lease, will enter into and execute a neiu lease for a period of twenty years under the same terms as set forth herein except that the monthly rental shall be at the rate of thirty-five (35) dollars per month.” (Emphasis added.)
The first paragraph of the Decree of the High Court of American Samoa, Trial Division (3 A.S.R. 391), reads as follows:
“The renewal lease for 20 years from the expiration of the old lease on February 3, 1959 will be a new lease. After its execution it may be presented to the Land Commission for its recommendation to the Governor, pursuant to the provisions of Section 1281 of the American Samoa Code.” (Emphasis added.)
Paragraph 3 of Plaintiff’s complaint reads as follows:
“Under the Decree and Order of the Appellate Division of the High Court of American Samoa on September 8, 1959, Tiumalu Taimane executed and delivered on August 10, 1960 a new lease to *540Plaintiff (Exhibit A) pursuant to the renewal clause in a lease of November 1, 1938 from Tiumalu Male to Ho Ching. (Exhibit B.) (Emphasis added.)
The fourth paragraph of the decision of the Trial Division of the High Court of American Samoa in the case of Haleck v. Tiumalu Taimane, 3 A.S.R. 380, reads as follows:
“In September, 1919, Tiumalu Lailai, the then matai of the Tiumalu Family, leased a portion of the land covered by the lease in litigation to Ho Ching for 15 years at a yearly rental of $84.00. In September, 1925, the same parties entered into a new lease for 15 years from September 1, 1925, at a yearly rental of $240.00. . . .” (Emphasis added.)
The 1925 lease was surrendered twenty-two (22) months before its expiration and the same parties entered into a new lease in November 1938, the lease now in question. (Emphasis added.)
From the quoted language in the 1938 lease and the language quoted from the decision of the High Court of American Samoa, Trial Division, it appears to the Court that the intention of the parties was to execute a new lease at the expiration of the 1938 lease. Whether the language in the Plaintiff’s complaint in using the word “new” was accidental or legal is of little import. The issue of the 1938 lease was completely gone into by the Trial Court in the case of Haleck v. Tiumalu. The Court there had the benefit of evidence and testimony by both parties, and was certainly in a good position to arrive at the intention of the parties as to whether the renewal lease was a new lease or an extension of the old lease. The language of the Court is unequivocal in saying that the new instrument to be executed between Haleck and Tiumalu was to be a new lease. And if this were not enough, the history of dealings between the Tiumalu Family and Ho Ching, the Plaintiff’s assignor, is that a new lease has been entered between the parties at the expiration of each previous lease.
*541The allegations in Paragraph 5 of Plaintiff’s complaint are incorrect to the extent that he says that Sections 1282 and 1283 of the Code of American Samoa were applicable in 1938. Sections 1282 and 1283 first appeared in the 1949 Edition of the Code, but were enacted in 1947. The law applicable in 1938 was Section 71(3) of the 1937 Code. Certainly there was no evidence introduced as to the interpretation Governor Hanson might have accorded the covenant for renewal.
In connection with Paragraph 6 of Plaintiff’s complaint, there was no evidence presented to prove the allegation that the substitute lease drawn and recommended by the Land Commission contains unconscionably harsh and oppressive terms.
Plaintiff presented no evidence to substantiate the allegation in Paragraph 7 of his complaint to the effect that Governor Lee will permit no substitute lease to receive his approval other than that which agrees with his personal judgment of value. We believe it is clear from the Plaintiff’s pleadings and the arguments before this Court that Governor Lee has sought the guidance of the Land Commission in using his discretion regarding the approval of said lease.
There was no evidence presented to substantiate Plaintiff’s allegations in Paragraph 8 of his complaint to the effect that either Governor Lee or the Land Commission has threatened Plaintiff with eviction and dispossession of his lawfully held property. In connection with the retroactive liability under Paragraph 2(c) of the Land Commission lease, the same provision for retroactive rent is included in Exhibit A, the lease between Haleck and Tiumalu.
In connection with Paragraph 11 of Plaintiff’s complaint that under the decision of the High Court of American Samoa on September 8, 1959, the covenant for the renewal lease is declared to be an existing and valid contract, the Court unquestionably held that the lease was *542to be a new lease, to be presented to the Land Commission for recommendation to the Governor pursuant to Section 1281 of the Code of American Samoa. An obligation as between the parties to a lease will not deprive the Governor of his power to consider and determine whether to approve or not said lease through authority given to the Governor under the law. It is not only the right but the duty of the Governor to examine instruments of lease before his approval. Even if the parties inserted a provision in the lease instrument doing away or even objecting to the exercise of the power of the Governor to approve, the lease must still be approved by the Governor under the provisions of Sections 1281 and 1283 of the 1949 Code. As if this were not enough, the Governor is charged with protecting the Samoan people regarding the alienation of their lands under Section 3, Article I, of the Constitution of American Samoa. This policy is reiterated in the last sentence of Section 9, Article II, of the Constitution of American Samoa. The Governor is further charged under Section 2, Article IV, of the Constitution of American Samoa as follows:
“The executive power shall be vested in the Governor of American Samoa, who shall take care that the laws be faithfully executed. . ..”
Section 2, Article V, of the Constitution of American Samoa reads as follows:
“Existing laws: In addition to the continuance of certain laws as provided for by Section 3 of Article III of this Constitution, all other laws of American Samoa not inconsistent with this Constitution shall continue in force until they expire by their own limitation or are altered or repealed by competent authority.”
Sections 1281, 1282, and 1283 of the Code of American Samoa, 1949 Edition, were part of the existing law when the Constitution was prepared and ratified in 1960, and continue in force to this day. Section 8, Article V, of the Constitution reads:
*543“The enumeration in this Constitution of specified powers shall not be construed as limitations upon the power of the Government of American Samoa to provide for the general welfare of the people.” (Emphasis added.)
Plaintiff’s allegations in Paragraph 12 of his complaint that, “If the technicality of law requires the approval of the current Governor, H. Rex Lee, for the validity of this renewal lease, then his refusal is an impairment of an existing and valid contract and the Defendant Governor is thereby depriving the Plaintiff of his property by an arbitrary and unlawful exercise of governmental power in violation of the Due Process Clause of the Fifth Amendment of the United States Constitution,” appears to indicate that the approval of the lease by Governor Lee, if necessary at all, is only a ministerial act, and that the Defendant has no choice but to approve it. Counsel for Plaintiff argued that if the approval of the lease constituted a discretionary act on the part of the Governor that such exercise of power was under Sections 1281 and 1283 of the Code of American Samoa, 1949 Edition. Counsel for Plaintiff admitted further in argument that the provisions of Sections 1281 and 1283 of the 1949 Code are proper under the police power, and if the Governor was acting properly under said legislation, the necessity for approval by the Governor of such a lease would not be in violation of the Due Process Clause of the Fifth Amendment of the United States Constitution. But Plaintiff argued that the renewal lease now in question was approved by Governor Hanson in 1938, and that Defendant’s approval, if required, would only be a ministerial act requiring no discretion but merely ratifying the approval by Governor Hanson in 1938.
In connection with Paragraph 14 of Plaintiff’s complaint, except for general argument, Plaintiff’s counsel presented no evidence to prove his allegation that the Defendant was depriving Plaintiff of his property by an arbitrary and *544unlawful exercise of governmental power in violation of the Due Process Clause of Article I, Section 2, of the Constitution of American Samoa.
Plaintiff’s counsel failed to support or prove his allegations set out in Paragraph 16 of his complaint to the effect that the Defendant is depriving the Plaintiff of his right not to be oppressed by retroactive laws impairing the obligation of contracts which is guaranteed by Article I, Section 13, of the Constitution of American Samoa. Section 13 of Article I of the Constitution of American Samoa reads:
“Retroactive laws: No bill of attainder, ex post facto law, nor any law impairing the obligation of contracts shall be passed.”
Although the parties agreed in pre-trial conference that the only real issue was whether, at the exercise of the option by Plaintiff, the covenant for renewal in the 1938 lease gave rise to a new lease or was merely an extension of the original lease not necessitating the approval by Defendant, Governor Lee, this Court nevertheless will consider three propositions, as follows:
1. Are the laws dealing with limiting or restricting the -alienation of communal land in American Samoa constitutional?
2. Is the Governor of American Samoa violating his constitutional prerogatives and responsibilities of his office by attempting to carry out the legislative mandate as enunciated in legislation enacted concerning the alienation of communal land in American Samoa?
3. Was the lease entered into between Plaintiff and Tiumalu Taimane dated August 10, 1960, pursuant to an order of the High Court of American Samoa a new lease requiring the approval of the Defendant Governor for its validity or was it merely an extension of the original lease to such an extent that it would amount to the approval of a forty (40) year lease by Governor Hanson in 1938, making the approval by Defendant unnecessary for its validity ?
It is an indisputable fact that since the raising of the American flag in April 17, 1900, to the present, it has *545been the uninterrupted policy of the Government of American Samoa to protect Samoan communal lands for the benefit of the Samoans. The concern for the preservation of land for the benefit of the natives of American Samoa was expressed in general terms as early as April 17, 1900, in the Instrument of Cession from the Chiefs of Tutuila to the United States Government; Thereafter, the first specific regulation restricting the alienation of land in American Samoa was promulgated on April 30, 1900, thirteen (13) days after the Instrument of Cession. This was “The Native Lands Regulation, 1900.” Section 4 of said regulation reads:
“Native land may, with the sanction of the Commandant be leased for any term not exceeding forty years for any purpose (except for the working of minerals and cutting of timber).”
Thereafter Section 71, “Alienation of Native Lands” was enacted as part of the 1937 Codification of the Regulations and Orders for The Government of American Samoa. Paragraph 3 of said section reads:
“Native land may, with the sanction of the Governor, be leased for any term not exceeding 40 years for any purposes, except for the working of minerals and cutting of timber. . . .”
Other paragraphs in the same Section 71 also deal with restrictions on alienation of land. In the same vein Sections 1281 and 1283 appear in the 1949 Edition of the Code of American Samoa.
Section 1281 reads as follows:
“There is hereby created a Land Commission which shall consist of five members who shall serve ex officio as follows: The Chief Justice, who shall serve as Chairman; the Registrar of Titles, who shall serve as Secretary; and the three District Governors of the Government of American Samoa.
“All instruments affecting the title to land which require the approval of the Governor before becoming effective shall be filed with *546the Secretary of the Land Commission for study and recommendations thereon by the Commission. Thp said Commission shall meet from time to time upon call of the Chairman-and make recommendations to the Governor respecting the approval or disapproval of instruments affecting the title, ownership or possession of land, so submitted for consideration and approval. It shall be the duty of the Commission to endeavor to prevent the monopolistic ownership of land and also improvident alienations of communal lands by those charged with the management and control thereof. The said Commission shall also conduct studies and make recommendations to the Governor for the improvement of the registration, recording and indexing of instruments affecting land and property rights and also respecting the surveys and plotting of land. The said Commission shall also make such general recommendations to the Governor as may be considered appropriate for the maintenance of orderly and permanent records respecting the ownership of land and other property. The said Commission shall make such rules governing its procedure as it shall deem proper.”
Section 1283 reads:
“Native land may, with the approval of the Governor, be leased to any person for any term not exceeding thirty (30) years for any purpose, except for the working of minerals, and cutting of timber.” (Emphasis added.)
This Court is of the unanimous opinion that the present law dealing with alienation of communal or native land in American Samoa as set out in Sections 1281 and 1283 of the Code of American Samoa, 1949 Edition, is constitutional. At the time the Plaintiff became the assignee of the 1938 lease in 1953, Sections 1281 and 1283 were the law in American Samoa. The Court is further of the unanimous opinion that Section 71 of the 1937 Edition of the Code of American Samoa was the law regarding the alienation of land in 1938 and was constitutional.
Such legislation is constitutional as being within the proper and reasonable exercise of the police power. Section 16 C.J.S. 897-906 Constitutional Law, Section 175:
*547“b. Scope
“Although it is difficult definitely to fix the bounds of the police power of the state, and although it is usually considered better to decide as each case arises whether or not the police power extends thereto, it may be said, as a general rule, that the possession and enjoyment of all rights are subject to a reasonable exercise of the police power, and that the police power extends to all great public needs.
“Although it is liberally understood and applied, it is difficult, if not impossible, definitely to fix the bounds of the police power of the state, since it represents the state’s great reserve power. Indeed, it is deemed inadvisable to attempt to frame any definition which shall absolutely indicate the limits of the police power by including everything to which it cannot extend, since, the courts consider it better to decide as each case arises whether the police power extends thereto, as the power is coextensive with the necessities of the case and the safeguards of the public interest. It has been said, however, that the exercise of the police power in any given direction is capable of definite expression.
“Notwithstanding the impossibility of exact definition of the scope of the police power, numerous efforts have been made to define its scope in a general way. It has been said that the scope of the power is as broad as the public welfare or necessity, and must be exercised in the interest thereof, that it is one of the least limitable of the powers of government, and that the police power is the broadest in scope of any field of governmental activity. Within the realm of police power the legislature may act in any matter not forbidden by the constitution expressly or by necessary implication. It extends to all matters which concern the regulation and control of the internal affairs of the state, and almost the whole of the great body of municipal law which establishes and enforces the duties of citizens to each other is embraced within and known as the police power. A state in suppressing what it regards as a public evil may adopt any reasonable measures which it may deem necessary, and the reasonableness of a police regulation is not necessarily what is best, but what is fairly appropriate under attendant circumstances. The police power of a state is not to be measured by the criteria applicable to cities and towns.
“The possession and enjoyment of all rights are subject to a reasonable exercise of the police power, and everything contrary to public policy or inimical to public interest is subject to its exercise. *548The police power of the state extends to all great public needs, including the protection and promotion of the safety, health, comfort, and quiet of all persons, and the protection of all property within the state, and the execution of all contracts affecting such, matters, as well as the prevention of discrimination and economic oppression, and the promotion of the public convenience and general prosperity. Such power is not confined to the physical welfare of the public, but includes the general intellectual and moral well-being and development; it extends beyond health, morals and safety, and comprehends the duty, within constitutional limitations, to protect the well-being and tranquility of a community. In enacting police regulations, a state is not bound to cover the entire field of possible abuses. The police power extends to the enactment of all laws which, in contemplation of the constitution, are reasonably necessary to promote the welfare of the public, as distinguished from the interest of a particular class, and under such power the state has authority to enact laws applicable to particular classes, although as shown infra 195, the legislature may not exercise the police power for private purposes or for the exclusive benefit of individuals or classes. The legislature may prohibit or regulate, in the public interest, either a general practice or a single transaction of a kind that is not likely to occur otherwise than as an instance of a general practice. A statute may be sustained although some of the objects affected by it may be wholly innocent; and acts innocent and innocuous in themselves may be prohibited if necessary to secure an efficient enforcement of valid police regulations. The power to prohibit the sale of an article or the doing of a thing necessarily carries with it the lesser power of regulation. The proper exercise of the police power is not confined to the suppression of matters which are offensive or constitute nuisances. The legislature can also declare that acts which might be unlawful if carried to excess, by reason of their general tendency to annoy and injure others, may be lawfully done on such conditions as it may prescribe. Incidental injury to an individual will not prevent operation of the police power.
“It has been said that the police power is not a fixed quantity and that it changes from time to time to meet changed conditions of society, and a police regulation, valid when made, may become arbitrary and confiscatory in operation by reason of later events. It is more accurate to say, however, that the power itself remains the same, and that its. apparent extension is only the application of the
*549principle on which it is based to new conditions as they arise. Its scope is greater in an emergency.
“The state may exercise its police power whenever the public interests demand it. The police power is not exhausted by being once exercised on any subject falling within its scope, but it may be exercised repeatedly as often as occasion may require. The right to exercise the police power is a continuing one, which is not lost by nonexercise, but remains to be exerted as local exigencies may demand. Accordingly, a court of equity is without authority to exempt anyone from the burden resulting from a lawful exercise of the police power even though such exercise is long delayed.” (Emphasis added.)
In Max Haleck, Sr. v. Tiumalu Taimane, No. 3-1959, this Court stated:
“In the exercise of its police power, the Government may see to it that a lease provides for an adequate and reasonable rental under existing conditions or in effect prohibit the making of the lease through the intervention of the Land Commission and the Governor, unless it provides for a sufficient rental so as not to make the transaction improvident with respect to the owner of the Samoan communal land. The Samoan people need the protection against improvident transactions such as disposing of their property for less than it is worth.”
Commenting on the subject of police power, Rottschaefer on Constitutional Law at Pages 485-6 states:
“The legislative power to fix maximum prices has frequently been held compatible, with the requirements of the due process independently of the existence of the facts denoted by the technical conception ‘affected with a public interest.’ Federal statutes limiting the amount chargeable by attorneys for prosecuting various kinds of claims against the United States do not violate the due process clause of the Fifth Amendment, even as applied to contracts for such services antedating such statutes. Nor is the similar clause of the Fourteenth Amendment violated by state statutes limiting the fees of attorneys for services in connection with proceedings under state workmen’s compensation acts. The principal rear son for these decisions was the tendency of such legislation to prevent the danger of oppression, extortion and improvident bargains, *550and the socially injurious consequences thereof. This is also the ultimate basis for sustaining usury statutes, and such provisions in small loan acts as those that treat wage assignments as loans subject to the interest rate provisions of such acts. Legislative price-fixing is sustained in cases such as those just discussed because it directly protects a limited social group from oppression and extortion to which a system of prices determined by individual bargaining exposes them, and thus indirectly protects society at large against effects that the legislatures are free to regard as evils.” (Emphasis added.)
The validity of statutes in connection with the exercise of the police power by the state has been many times upheld by the U.S. Supreme Court. See Home Building & Loan Assoc. v. Blaisdell, 290 U.S. 398; Nebbia v. New York, 89 A.L.R. 1469, 1482, 1483; Hudson Water Co. v. McCarter, 209 U.S. 349; Long Island Water Supply Co. v. Brooklyn, 166 U.S. 685; Veix v. Sixth Ward Building and Loan Association, 310 U.S. 32; Twentieth Century Asso. v. Waldman, 162 A.L.R. 197.
It is common knowledge in American Samoa, to the extent that this Court could properly take judicial notice, that the most valuable tangible thing that the Samoan people possess is the land, and that the average Samoan needs statutory protection regarding alienation of land if he is not to lose it forever. Were it not for the statutory protection, it is not an exaggeration to say that a great deal of the communal land would have been lost to the Samoans by this time, either through the generosity, ignorance or incompetence of the Matai or by the irresistible monetary temptation offered either by Samoans with financial means or by Americans and other tourists to this island who would certainly like to acquire real property in this beautiful area. Even with the statutory restrictions there have been occasions when merchants have brought actions in court seeking to foreclose a mortgage on communal land, the consideration for said mortgage having been two or three kegs of beef *551for a funeral. This only goes to show that the average Samoan is not quite ready to deal on an equal basis when it comes to business transactions with a more sophisticated, business-trained or perhaps unscrupulous individual.
Land to the American Samoan is life itself. He cherishes the land where his ancestors came hundreds of years ago, and where he and his children were born. Land is the only thing he values above anything else because it belongs to him and will belong to his children, just as it belonged to his predecessors for centuries past. Land is what he lives from, for it is only on the land that he can plant, nurse, and grow his plantations of coconuts, papayas, taro, avocados, breadfruit, bananas, pineapples, citrus, vegetables, and other food. Land is where he cooks his food. Land is where the bones of his beloved ancestors are buried. Land is where he builds his fale, large or small. Land is the material thing he loves most, after his children. Land is the most valuable inheritance he can leave his children when he dies. Land is his greatest horizon between the sea and the sky. Land is the greatest gift from God to him on this earth, after life itself.
The whole fiber of the social, economic, traditional and political pattern in American Samoa is woven fully by the strong thread which the American Samoan places in the ownership of land. Once this protection for the benefit of American Samoans is broken, once this thread signifying the ownership of land is pulled, the whole fiber, the whole pattern of the American Samoan way of life will be forever destroyed.
The Court holds that the existent and past statutes dealing with the alienation of land are within the proper, reasonable and legitimate exercise of the police power and therefore constitutional and that they serve for the benefit and general welfare of all the people of American Samoa. This holding of constitutionality applies not only to Sections 1281 and 1283, but to all the still operative Sections of *552Chapter 31 of the Code of American Samoa, 1949 Edition, “Alienation of Communal Lands.”
We now come to the proposition, “Is the Governor of American Samoa violating his constitutional prerogatives and responsibilities of his office by attempting to carry out the legislative mandate as enunciated in legislation enacted concerning the alienation of communal land in American Samoa, and is he thereby violating the Plaintiff’s rights as guaranteed to him by the Constitution of American Samoa or the United States Constitution, or both?”
It is' the unanimous decision of this Court that once the statutes setting out the provisions for alienation of communal land in American Samoa are held to be constitutional, the power, indeed the responsibility of the Governor of American Samoa to consider the terms and conditions of instruments seeking to alienate land, including leases, before he approves them, and to invalidate such transactions until they receive his approval, cannot be questioned or challenged.
The Governor is charged by the legislature with this responsibility; he did not seek to confer or usurp this power unto himself. It is not his prerogative, but his duty. And the Governor’s responsibility is not one merely of formality or ministerial; he must use his independent judgment and discretion in arriving at his decision or to whether a certain alienation of land is to be approved or disapproved. The duties of the Governor in this connection are further supplemented and ratified by the Constitution of American Samoa which was ratified and approved on October 17,1960.
We hold that the legal exercise of his executive powers by the Governor as empowered by the legislature does not in. any way deprive the Plaintiff of his property in violation of any provisions of the Constitution of American Samoa or of the Constitution of the United States.
*553We now come to proposition Number 3, “Was the lease entered into between Plaintiff and Tiumalu Taimane, dated August 10,1960, pursuant to an order of the High Court of American Samoa, a new lease requiring the approval of the Defendant Governor for its validity, or was it merely an extension of the original lease to such an extent that it would amount to the approval of a forty (40) year lease by Governor Hanson in 1938, making the approval by Defendant unnecessary for its validity?”
Counsel for Plaintiff insists that the covenant to renew was part of the original lease of 1938 and that the lease in question between Plaintiff and Tiumalu of August 10, 1960, is merely an extension of the 1938 lease approved by Governor Hanson and that it does not require the approval of Defendant Governor. Counsel for Defendant argued that the lease now in question is a new lease unquestionably requiring the approval of the Defendant for its validity. We will not repeat the contentions of both sides in this connection set out in their argument and briefs.
There is no question that the lessor, Tiumalu Taimane, entered into the August 10, 1960, lease under protest and only after she had been ordered to execute the said lease by the High Court of American Samoa, Trial Division, on March 4, 1959, and again on September 8, 1959. Tiumalu appealed the decision of the Trial Division ordering specific performance of the lease. Plaintiff did not appeal 'the decision of the Trial Court.
The Plaintiff’s counsel made much of the fact that the Court had ordered specific performance of the lease against Tiumalu, the lessor. There is no question that if Tiumalu had not appealed the holding of the Trial Division, the Plaintiff would have been bound by the decision'of the Trial Division of March 4, 1959, in its entirety. Part of the decision of the Trial Division, already quoted on pages 529-531, *554is referred to here as if it were set out at this point in the opinion verbatim.
The Plaintiff cannot have his cake and eat it too. If he did not object to the part of the decision above quoted in five (5) years, he cannot now come and say that he was only relying on the opinion of the Appellate Division. The Appellate Division did not consider that part of the Trial Division’s decision dealing with the matters set out in pages 529-531. The Appellate Division considered only the points brought up on appeal by Tiumalu. Tiumalu did not challenge the right and duty or the necessity for approval by the Governor before the lease became valid. The Plaintiff is bound by the whole decision and should not use Tiumalu’s appeal for his own gain to the detriment of Tiumalu, nor can he use such appeal to restrict the opinion of the Court or thwart the power of the Governor to approve the lease before it becomes valid. The decree of the Court determined the rights as between the Plaintiff and the lessor; it did not and could not deprive the Governor of his authority conferred upon him by law under the police power.
Plaintiff’s counsel argued that the nature of the lease in question depended to a great deal on the intention of the parties thereto and of the findings of this Court as to their intention.
The covenant to renew in the 1938 lease reads in part as follows in the fifth paragraph of Page 1:
“. . . And the said party of the first part further covenants with the said party of the second part that he (the party of the first part) on demand of the said party of the second part, and, upon the expiration of this lease, will enter into and execute a new lease for a period of twenty years under the same terms as set forth herein except that the monthly rental shall be at the rate of thirty-five (35) dollars per month.” (Emphasis added.)
*555The underlined portion of the above provision reads, “upon the expiration of this lease” and “will enter into and execute a new lease” It does not say “after the first twenty (20) years of this lease,” or “at the beginning of the last twenty (20) years of this lease.” “Upon the expiration of this lease” means, we hold, at the end of .the lease. There is no intention to prolong the twenty (20) year lease, for at the end of the lease there is nothing left of it, and any prolongation must come through the whole mechanism of a new lease.
The second phrase reads, “will enter into and execute a new lease.” It does not read “after the first twenty (20) years this original lease will continue except for the increase in rent.” It does not provide “This lease shall extend for an additional twenty (20) years upon demand of the lessee.” The language appears to this Court very clear and unequivocal. The parties intended the entering into and the execution of a new lease. (Emphasis added.) This called for all the formalities and requirements of a lease separate and apart from the original lease for twenty (20) years. The parties did not recite that the additional term of twenty (20) years would attach to the original instrument except for the difference in rent. Neither did the original instrument recite that the lease was for a term of forty (40) years with the lessee having the right to terminate the lease after the first twenty (20) years. We do not believe that the underlined portion above was merely an “accident of words.” We believe that it represented the real intention of the parties as the description of the language indicates, in its normal, everyday meaning.
Counsel for Plaintiff implies that Governor Hanson gave his approval to a lease for a term of forty (40) years. We cannot accept this premise. We believe that Governor Hanson only approved a twenty (20) year lease in 1938. If he had wanted to change the wording of the lease to that *556effect he would have done so. Governor Hanson merely approved the lease as it was entered into by Plaintiff’s assignor and Tiumalu Male. Counsel for Defendant argued that perhaps Governor Hanson insisted on the provision for a “new lease” to make certain that the Governor twenty years later would examine and consider the new lease between the parties. This is only argumentative. We can only go by the provision of the 1938 lease itself, and from this we hold that Governor Hanson only approved a twenty (20) year lease.
Apart from the instrument itself and the possible intention of the parties, we have the decision of the trial court ,to consider, in determining whether the lease in question is a new lease. The first paragraph on page 529 of the Trial Division’s opinion reads,
“The renewal lease for 20 years from the expiration of the old lease on February 3, 1959, will be a new lease. After its execution it may be presented to the Land Commission for its recommendation to the Governor, pursuant to the provisions of Section 1281 of the Code of American Samoa.” (Emphasis added.)
The holding of the Court could not be clearer. There is no doubt that the Court considered this a new lease. Not only that, but it went on to uphold Sections 1281 and 1283, stating that it constituted a proper exercise of the police power of the Government to protect the owners of communal land from improvident disposition of their property.
In Paragraph 3, Plaintiff’s complaint reads in part:
“. . . Tiumalu Taimane executed and delivered on August 10, 1960 a new lease to Plaintiff.” (Emphasis added.)
We do not know whether Plaintiff used the word “new” in the context used by the Trial Division in its opinion or whether his use of the word was merely an “accident of language.”
*557We will not go into detail to determine whether the covenant to renew was an executory contract or a contract that ran with the original lease. The Trial Division of the High Court of American Samoa granted specific performance to Plaintiff as against Tiumalu Taimane. But we hold that the Court’s judgment extended only to the parties to the action and certainly did not bind the Governor or exempt the lease from the provisions of Sections 1281 and 1283. On the contrary, the Court specifically made the new lease subject to 1281 and 1283, including the necessity of its approval by the Governor before it became valid. We hold that the Court held properly in making the new lease subject to Sections 1281 and 1283. 16 C.J.S. 913 Constitutional Law, Section 179, reads in part:
“The police power is of such elasticity that the principle of stare decisis has no application to an exercise of this power; and the Courts cannot decide away that which the state itself cannot contract away.”
This Court will not consider the question whether the terms of the lease proposed by the Land Commission to the Governor (Exhibit C) are fair, reasonable or proper within Section 1281 of the Code, or whether said terms are unreasonable, unconscionable, arbitrary or harsh to the extent that they amount to confiscation or taking of Plaintiff’s property in violation of the Constitution of American Samoa or of the United States Constitution. There was no evidence offered by either party in this connection. We say that since the Legislature and the Constitution of American Samoa place this discretionary power of approving leases on the Governor, it is to be presumed that he is exercising his prerogative within legal limits without being capricious or arbitrary and that he is acting in good faith.
“In the absence of any proof to the contrary, there is a very strong presumption embodied in the maxim, ‘omnia praesumuntur rite esse acta,’ that public officers have properly discharged the *558duties of their office and performed faithfully those matters with which they are charged. Stated in another way, the Courts will presume, in the absence of evidence to the contrary, that public officers have not culpably neglected or violated their official duties and have not acted illegally in the doing of any official act.” (20 Am.Jur. 174-175, Sec. 170 and footnotes Evidence.)
After considering the complaint and answer, the argument of counsel, their briefs, and the exhibits introduced, it is hereby ORDERED, ADJUDGED AND DECREED by the Court as follows:
1. That Plaintiff’s request that the Court issue a declaratory judgment that the renewal lease as ordered in execution by the High Court of American Samoa on September 8, 1959, and signed in accordance by the Parties on August 10, 1960, is valid and binding in having received the requisite approval from Governor G. W. Hanson, and that the Defendant, Governor H. Rex Lee, acting alone or by his advisory Land Commission has no right to seek to interfere and set aside said lease, be and the same is hereby denied.
2. That Plaintiff’s demand that this Court issue an order in the nature of a Writ of Mandamus requiring the Governor, H. Rex Lee, to issue his approval of the renewal lease executed under the Order of the High Court of American Samoa of September 8, 1959, be and the same is hereby denied.
3. That Plaintiff’s demand that this Court issue judgment that the statute requiring the approval of the Governor in these circumstances is unconstitutional, be and the same is hereby denied.
4. That Plaintiff’s demand that this Court issue judgment that the statute requiring the Governor’s approval for validity of the lease was not meant to be construed and held applicable to a lease under the present circumstances, be and the same is hereby denied.
*5595. That Plaintiff’s complaint in its entirety, be and the same is hereby dismissed.
6. That the Defendant, H. Eex Lee, is properly authorized and charged to consider the lease between Plaintiff and Tiumalu Taimane under Sections 1281 and 1283, and that said lease is not valid until approved by the Governor.
7. That the rent on any lease entered into between the parties, Plaintiff and Tiumalu Taimane, and approved by the Governor, be made retroactive to February 1959, the date when the 1938 lease expired.
8. Court costs in the sum of $15.00 to be paid by Plaintiff, Max Haleck, within 30 days.
Done this 12th day of December, 1964. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485359/ | OPINION OF THE COURT
ROEL, Associate Justice.
Petitioner, Tuia, filed his original Petition on December 2, 1964, against the members of the Election Board. Subsequently, with leave of Court on December 8, 1964, Tuia filed an amended complaint in which he included Fofo Sunia, Election Commissioner, as Respondent, together with the three members of the Election Board. Petitioner sought to enjoin the Election Board and the Election Commissioner from holding a new election for the House of Representatives from Tualauta County.
In his complaint Petitioner sets out that Petitioner on the 13th day of October 1964 filed with the office of the Election Commissioner an application to become a candidate for the House of Representatives for Tualauta County, for the Ninth Session of the Legislature of American Samoa; that there were two other candidates besides the Petitioner for the same seat, namely Fonati Aufata and Otto Haleck; that an election for said House seat was held on the 3rd day of November 1964, under the supervision of the Election Commissioner and his staff; that the election was legally held in an orderly manner under the supervision of the *562Election Commissioner in accordance with Chapter 2.05, Code of American Samoa; that after the closing of the polls, the ballot boxes were taken to a central designated place for counting; that all three candidates for the House seat were present at the time of the counting of the ballots for Tualauta County; that after the counting of the ballots was completed, the result of the tabulation showed Fonati Aufata with 19 votes, Otto Haleck with 204 votes and Tuia, Petitioner, with 287 votes. That following the counting of the votes, an announcement was made by a representative of the Election Commissioner declaring Petitioner the winner of the election by a majority of all the votes in Tualauta County; that Respondents be enjoined from calling another election for the House of Representatives seat in Tualauta County for the following reasons: That an election was legally held in an orderly manner; that the witnesses called before the Election Board did not testify under oath, notwithstanding the fact that Petitioner requested that witnesses be required to testify under oath; that the decision of the Election Board regarding Otto Haleck’s complaint was based on unsworn testimony; that the Election Board has no authority under Section 2.0504 of the Code of American Samoa to nullify an election and call for a new election; that Respondents be compelled to make available a transcript of the hearing before the Election Board.
Respondents failed to file any answer in writing regarding Petitioner’s complaint.
At the beginning of the trial, the Acting Attorney General, on behalf of the Respondents, made a motion to the Court to dismiss Petitioner’s complaint on the ground that the Court did not have jurisdiction to consider the case. The Court denied the motion on the ground that Petitioner had nowhere else to go to appeal from the decision of the Election Board and the order of the Election Commissioner calling a new election in Tualauta County. The Assistant *563Attorney General stated that Petitioner should have the benefit of an appeal to the Courts, but that Petitioner’s action should have been in the nature of a Writ of Certiorari rather than a complaint seeking injunction. There being no legally trained counsel in American Samoa who Petitioner could consult in seeking to protect his rights, it would have been hardly equitable or fair to disregard Petitioner’s right to a hearing on a technicality.
The testimony and the evidence at the hearing indicated that a general election for members of the House of Representatives throughout American Samoa was called for November 3, 1964, in accordance with the provisions of the Constitution of American Samoa, the Code of American Samoa, 1961 Edition, and the Governor’s Memorandum No. 55-1964. Prior to the election date, candidates filed for their names to be included in the ballot, as provided by law, with the Election Commissioner. There were three candidates that filed to run as Representative from Tualauta County. These were the Petitioner, Muagututi’a F. Tuia, Otto Haleck, and Fonati Aufata. The testimony and evidence further revealed that poll lists of the qualified voters in each county were prepared by the office of the Election Commissioner and made available to each of the candidates from Tualauta County before and during the election date. Sample ballots were also made available. On November 3, 1964, the election was held in Tualauta County and throughout Tutuila. There appeared to have been four polling places for the Tualauta election situated at Pavaiai, Faleniu, Tafuna, and Iliili. After the polls closed at the time set by the Election Commissioner, all the ballots were taken to Iliili, the central place designated by the Election Commissioner for the counting and tabulating of the ballots for Tualauta County. The ballots were counted and tabulated under the supervision of Fiaui Mulitauopele, a duly appointed representative of the Election Commissioner, in *564the presence of all three candidates. The candidates had the opportunity to accept or to challenge the ballots as they were tabulated. According to the uncontradicted testimony there were a total of 522 votes cast at the election at Tualauta County, of which 12 of them were voided and the other 510 were accepted by all the three candidates. As tabulated and counted the accepted ballots were cast as follows: 287 for Tuia, 204 for Haleek, and 19 for Fonati. Following the completion of the tabulation of the votes on November 3, 1964, the representative of the Election Commissioner announced publicly that the Petitioner was the winner in the election for the House of Representatives seat for Tualauta County.
The Petitioner called five witnesses and introduced five exhibits. The Respondents presented no evidence on their own behalf except as it was testified to through Petitioner’s witnesses. The five witnesses called by the Petitioner were the Election Commissioner, Fofo Sunia; the Chairman of the Election Board, Leonard A. Yandall; Lauelo Taomua, election supervisor at Pavaiai; Luapo, election supervisor at Faleniu; and Otto Haleek who brought the original appeal before the Election Board.
Petitioner’s Exhibit No. 1 consisted of a photo-copy of the letter of appeal dated November 4, 1964, to the Election Board which Haleek addressed to “Board of Election Appeals.” Petitioner’s Exhibit No. 2 was a mimeograph copy of the original Public Notice issued by the Election Commissioner, dated December 1, 1964, calling a new election for Tualauta County. Petitioner’s Exhibit No. 3 was a photocopy of a letter dated November 27,196, [sic] and addressed to the Election Commissioner by the Chairman of the Election Board, requesting the Commissioner “... to re-run the election in the Tualauta County at the earliest date.” Petitioner’s Exhibit No. 4 consisted of a copy of Exhibit No. 1 and four photo-copy pages made up of a Bill of Particulars *565and alleged examples of election irregularities set out by Otto Haleck and addressed to the Chairman of the Election Board. Petitioner’s Exhibit No. 5 was entitled “Report, Findings of Fact, and Recommendations,” and signed by the Election Board and dated December 8,1964, eleven (11) days after the original letter from the Chairman of the Election Board to the Election Commissioner requesting a “re-run” of the election and dated seven (7) days after the Election Commissioner issued the Public Notice for the new election.
Fofo Sunia, the Election Commissioner, was the first witness. He testified that he had acted as Election Commissioner pursuant to Section 2.0508 of the Code of American Samoa and Governor’s Memorandum No. 55-1964; that he had supervised the elections of November 3,1964, including the election held in Tualauta County; that he had a staff to assist him in conducting the election; that he gave his staff members in all the counties the same general instructions; that there were three candidates for the House of Representatives from Tualauta; that Iliili had been designated as the place where the Tualauta ballots were to be tabulated and counted after closing of the polls; that he did not know if all three candidates were present at the counting since he, Fofo, was not there; that he had authorized and delegated one Fiaui Mulitauopele to count the ballots for Tualauta County; that he knew from Fiaui that Petitioner and Haleck were present at the counting; that his representative, Fiaui, had given him, Fofo, the results of the election as follows: 287 votes for the Petitioner, Tuia, 204 votes for Haleck and 19 votes for Fonoti, and that 12 votes were voided or discounted at the tabulating; that he had not received any complaints from any of the candidates from Tualauta County prior to or during election day; that he had received no complaint personally from any candidate in Tualauta; that he only received a copy of the complaint filed by *566Haleck after the election with the Election Board; that rosters of all the voters in Tualauta County were available to all three of the candidates; that he, Fofo, was not a member of the Election Board; that he was called to testify before the Election Board, the first time in the Senate Chambers with only members of the Election Board and the second time when Haleck, Lolo, and Tuia were present at an Election Board meeting; that he had testified mostly in Samoan, without being sworn, on both occasions; that he had testified regarding the Bill of Particulars filed by Haleck; that he didn’t know if there were other meetings of the Election Board; that he thought he was the only witness before the Board; that to his knowledge 35 aliens in total had voted in Tualauta County, 21 of these having voted in Faleniu; that about fifty aliens were registered as qualified voters in the Voters’ Rolls from Tualauta County because at first the Attorney General in the presence of the Acting Attorney General, Mr. Tindal, had advised him, the Election Commissioner, that aliens could be registered to vote unless they expressed allegiance to a foreign state; that later the Attorney General had issued another opinion saying that aliens should not be allowed to vote; that after receiving said opinion, he had stopped registering aliens as voters, but that the aliens who had already registered were not advised individually that they were disqualified to vote after receiving the second opinion from the Attorney General, and that the names of the aliens were not stricken as ineligible to vote on the rolls used in the election; that until he received the second opinion of the Attorney General aliens throughout Tualauta County had been allowed to register; that in the 1962 election — two years after the constitutional provision regarding the qualification of voters — all aliens were allowed to vote for candidates to the House of Representatives throughout American Samoa because the question of aliens voting did not arise; that at *567the first meeting with the Attorney General in 1964 it was decided that those aliens who did not make a declaration of allegiance to a foreign state could vote or those who had not sworn allegiance to a foreign state; that he did not know which of the three candidates the aliens who voted at Tualauta County had voted for.
Regarding the alleged violation of the voter not signing his name at the extreme right column of the Voters’ Roll at the time of voting, the Election Commissioner testified that he had given instructions to his staff workers to have the voters sign the rolls but that the failure of the voter to sign the rolls did not disqualify the vote; that another district in Sua County had not required the voters to sign the rolls and the votes had been counted as valid.
When asked where he got the authority to call a new election for Tualauta County, the Election Commissioner said he relied on Chapter 2.05 of the Code of American Samoa and on Governor’s Memorandum No. 55-1964, and upon the ruling of the Election Board; that he had received the letter from the Election Board November 27, 1964; that he had consulted with Mr. Tindal, Acting Attorney General, before making the announcement for the new election; that after Mr. Tindal explained the law to him, he, the Commissioner, made the decision to call a new election; that he did not know what would have happened if he had refused to call the new election at the request of the Election Board.
When asked how many votes Haleck had objected to, the Commissioner answered he did not know exactly, but that they were quite a few. When asked what would be the result of the tabulation if all objections made by Haleck were upheld, the Commissioner said he could not answer.
In answer to the Acting Attorney General’s leading question, Fofo stated he had declared the election of November 3 null and void in his capacity as Election Commissioner, after he received the statement from the Election Board *568saying the Board had reason to believe a new election should be called. When asked by Mr. Tindal if the election was conducted in accordance with proper procedure and .the law, Code and Constitution, the Election Commissioner said such had been his intention, but that after Haleck’s complaint was received it was found that certain aspects of the election had not been strictly in accordance with the election procedures. When asked by the Acting Attorney General if Haleck’s objections were sufficient to declare the election invalid, the Commissioner answered that it could not be determined if the election was invalid; that as of December 10, 1964, he would not have determined that the election was invalid if he had not received the ruling from the Election Board, but that he thought the Election Board had valid reason.
Again in answer to a question by Mr. Tindal, the Commissioner testified that on November 3, 1964, after the counting of the ballots for Tualauta County, Petitioner, Tuia, had been declared the winner. The Commissioner further testified that the rolls with the names of the qualified voters had been prepared by his office; that pursuant to the first consultation with the Attorney General, aliens were registered as qualified voters for a week or so; that the aliens were not contacted individually to be told they were not qualified to vote after the second opinion by the Attorney General was received.
When asked which procedures by the Commissioner were not followed, Fofo answered that the instruction to the supervisors to have the voters sign the rolls was not followed. When asked if the voters should have presented a registration receipt at the time of voting, the Commissioner answered in the affirmative, but that the Pulenu’us could identify the voter in lieu of a receipt; that he thought about 20 or more had not turned in receipts in Tualauta County and that he did not know for which candidate those electors *569had voted. When asked if ballots should be voided when the electors failed to sign the roll or surrender a receipt, the Commissioner said he did not know of any such provision in the law.
In answer to a question by the Acting Attorney General whether any other procedures had not been followed, the Commissioner testified that two or three underage persons had voted; that they were duly registered on the rolls. When asked why aliens were prohibited from voting, the Commissioner said it was done after he checked with the Attorney General’s office; that in 1962 there was no restriction whatsoever on aliens voting or registering and that no opinion was then sought from the Attorney General but that times have changed regarding the status of aliens; that aliens were disqualified from voting under Article II, Section 7, of the Constitution of American Samoa; that none of the aliens who voted was asked if he owed allegiance to a foreign state; when asked who the aliens referred to in Article II, Section 7, of the Constitution of American Samoa applied to, the Commissioner stated he did not know; that he did not know if the aliens who voted had passports from a foreign country; that to his understanding Section 2.0510 of the Code of American Samoa authorized the Board ,to nullify an election and order a new election; that if the Election Board so instructed him he would order a third election for the same seat. When asked who had the final say as to the qualifications of members of the House of Representatives, the Election Board or the members of ,the House, the Commissioner answered that the House had the final say as to the qualifications of its members.
In answer to questions by the Acting Attorney General, the Election Commissioner testified that the constitutional provision in Section 7 of Article II did not apply to alien voters; that it was possible for an individual to disclaim allegiance by certain acts, but that he did not know if that *570was possible in American Samoa or not; that he did not know if a disclaimer of allegiance could be accepted from an alien to qualify him to vote in American Samoa, after talking to the Attorney General.
Regarding the closing of the polls, the Commissioner testified that he had published the time for the opening and closing of the polls so that everyone would get a chance to vote; that the time for the closing of the polls at Pavaiai had been changed to one-half hour earlier and that such change had been announced to the villages according to Samoan Custom by the Pulenu’us yelling the information throughout the village; that the opening of the polls at Iliili had been extended one-half hour from 5:30 p.m. to 6:00 p.m.; that he had given instructions that if people were standing in line at the scheduled time for closing the polls, the polls were to remain open until all those in line had voted; that everyone was to be given an opportunity to vote; that the election had been held in accordance with Section 2.0503 as to procedure; that he did not know of even one alien who had voted for the Petitioner.
The next witness was Leonard Yandall, Chairman of the Election Board, who will henceforth be referred to as Yandall. Yandall testified that the Election Board was composed of himself as Chairman and two other members, High Chief Faiivae, father-in-law of Haleck’s brother, and H. T. C. Masaniai. That Haleck’s appeal had been filed with the Board on November 4,1964, and he had later submitted other papers dated November 14, 1964; that the first meeting of the Election Board was not called until November 24, 1964, 20 days after Haleck’s appeal was first received; that the pencil notations on Petitioner’s Exhibit No. 4 were his own, Yandall’s, notes; that he had asked Fofo .to contact Haleck and Tuia about the Board hearing because Fofo was responsible for the entire conduct of the election; that at the first hearing of the Election Board on November 24, *571only the Election Commissioner and Petitioner, Tuia, had testified; that Haleck had not testified even though he was present and that the Board did not call Haleck to give testimony; that the only testimony given on Haleck’s behalf was given by his counsel, Lolo; that there were only two members of the Board present, he and Faiivae, at the meeting; that the testimony had not been taken under oath because he as Chairman stated that the Board had no authority to administer oaths because there was no provision in the Code; that even though the Board could not administer oaths, it had the authority to investigate and render a decision to correct an election matter; that although the Board could have required Haleck to give testimony regarding his appeal, it did not ask for his testimony; that the Board’s public meeting had been tape-recorded from 10:00 a.m. to 3:58 p.m.; that the absent Board member who sat at a later executive meeting did not listen to all the testimony given at the open hearing, even though he had an opportunity.
Yandall further testified that Petitioner’s Exhibit No. 5 was the Election Board Report; that the findings of November 24,1964, were not based on evidence gathered at the public hearing or any other hearing; that it was from information gathered by Yandall personally. In connection with the patients at the Leprosarium, Yandall testified that they were not bona fide residents of Tualauta County where the hospital is situated even though the patients registered at Tafuna as voters in 1964 and voted at Tafuna in the 1962 elections, regardless hów many years the patients had been at the hospital; that he had an interpretation of a bona fide resident from the Acting Attorney General; that a person who was born in Nu’uuli but later moved permanently to Pavaiai where he ran a business was not a bona fide resident of Pavaiai to entitle him to vote there, but that if Haleck had moved from his county of birth he would be eligible to vote in Tualauta County because he was a farmer, but *572that patients at the Leprosarium could not vote in Tualauta County even if they had registered and appeared in the official rolls of Tualauta County.
Kegarding voting by aliens in Haleck’s Bill of Particulars, stated as “aliens who voted for my opponent,” Yandall was asked if Haleck had produced witnesses to that effect at the public hearing and he answered in the negative, and that Tuia had produced one witness at the hearing denying the allegation. Yandall testified that of the SO alleged to be aliens by Haleck, 14 were found not to be aliens; that even though the Board found 14 of the listed persons not to be aliens, Haleck’s allegations regarding the voting of the aliens he listed were true; that there were a total of 50 aliens registered in the roils of Tualauta County; that he did not know who the aliens that voted had voted for; that 35 aliens had voted in Tualauta County, a total of 20 of the 35 having voted in Faleniu, Mapusaga, and Malaemi; that no aliens had voted in the other districts of Tualauta County.
When asked if the Election Board had substantiated Haleck’s allegations in his Bill of Particulars of his supporters having been refused to register, Yandall said there was no such proof or evidence.
When asked if the extension of the voting time had prejudiced Haleck as he alleged, Yandall stated that the Board had found no evidence that Haleck had lost votes by the early closing of the polls at Pavaiai or by the later closing of the polls at the other villages.
When asked regarding Haleck’s allegation in his Bill of Particulars that 14 voters had crossed the county line to vote in Tualauta, Yandall testified that .the Board had found that all of these people were entitled to vote in Tualauta except for two families who were found to be nonresidents of Tualauta, one of .these being the caretakers of the Leprosarium who have resided in Tualauta County for *573years. That the Board could not determine definitely where the other 12 people should vote; that such boundaries should be determined by the Court or by the District Councils; that all but four of the 14 were registered as legal voters of Tualauta County in the Roll of Voters for the 1962 election.
Yandall testified that regarding the three minors alleged by Haleck in his Bill of Particulars as having voted, Haleck had not given any proof, all the information having come from Petitioner, Tuia, but that one of the three had not voted.
Regarding Haleck’s charges in his Bill of Particulars that one voter had registered and voted twice, Yandall testified that the person who appeared registered twice had voted only once.
Regarding Paragraph “E” of Haleck’s Bill of Particulars to the effect “that my opponent directly interfered with the election procedures by making several attempts to obtain ballots from election officials so that he could distribute them to his supporters,” Yandall testified that Tuia had not succeeded; that the charge was substantiated but the extent of Tuia’s interference could not be determined. On the copy of the Bill of Particulars, Yandall had written in his own hand, “No evidence. Did not take any voting ballots.” Yandall testified the Board had not bothered to question the election officials at the polls regarding Haleck’s allegations of Tuia’s interfering with the election. Yandall testified that at the open Board meeting Tuia had testified that he had gone to get blank ballots at the request of the election supervisor at Tafuna because they had run out of ballots, and that when the ballots were refused Tuia had returned to the supervisor at Tafuna to tell him that he could not get ballots, and that no attempt was made to get ballots by force or subterfuge. Yandall testified that notwithstanding the above testimony, the Board went by Haleck’s testimony, *574even though Haleck never testified before the Board; that it had been based on the Election Commissioner’s information. Yandall testified that only Tuia had testified on the matter of interference. When told that Tuia had requested the Board to call election officials to testify regarding this charge, Yandall testified he did not recall. When asked who the ballots were supposed to be for, Yandall testified the Board had not inquired.
Yandall further testified that he had sought the advice of the Attorney General’s office regarding the Board’s testimony being taken under oath. That Mr. Tindal had first advised that the Board could take testimony under oath and then had decided otherwise; that after the Acting Attorney General had said, “Yes,” he, Yandall had referred Mr. Tindal to Sections 2.08 and 2.04 of the Code of American Samoa.
Yandall testified that at first he did not think the Election Board had the power to declare the election null and void, but that after seeking Mr. Tindal’s advice there was no doubt that the Board had the power to hold the election void. Then he testified the Board had already decided on its power before it saw Mr. Tindal. Yandall testified that the Board presumed the power to hold an election null and void by the authority delegated by the Governor of American Samoa in Memorandum No. 55-1964 and Chapters 2.05 and 2.06 of the Code of American Samoa; that the phrase “appeals from Election Commissioner” gave the Board the authority to void an election. Yandall testified that if the Attorney General had advised the Board it did not have the authority to nullify an election the Board would have followed the Attorney General’s advice.
When asked if the Election Board had authority to “request” the Election Commissioner to call a new election, Yandall answered in the affirmative. Yandall said the Board’s letter did not direct the Commissioner to call a new *575election, but that if the Commissioner had refused to call a new election it was the opinion of the Attorney General that the Election Board had the power to order the Commissioner to order a new election.
When asked if Section 2.0509 of the Code of American Samoa regarding the counting of the ballots and determining the validity of the cast ballots was followed procedural-wise, Yandall .testified that the Board had not inquired whether such procedure called for in the Code was followed by the election officials. Yandall testified that he did not know if the three candidates were present at the counting of the Tualauta County ballots. Yandall further testified that even if all the three candidates were present and checked and accepted all the ballots except for the 12 voided, that did not mean that the three candidates had agreed to the results. Yandall testified that altogether, including aliens and the alleged non-residents of Tafuna and others, the Election Board had disallowed 40 votes. Asked if .the deducting of all those 40 votes from Tuia’s votes would make any difference in the election outcome, Yandall stated that perhaps it would reduce the number of votes received by Tuia. Yandall affirmed that at the public hearing of the Board he had stated that one error in the election was enough to declare the election null and void if it was a serious irregularity.
Yandall testified that the Board had not asked Haleck if he had had access to the Roll of Voters of Tualauta County or if Haleck had checked the same.
Yandall testified that the phrase “from the result of the election in Tualauta County” in Haleck’s letter referred to the outcome of the balloting, but not the final result.
Mr. Yandall was then cross-examined by the Acting Attorney General, Mr. Tindal. When asked how he had begun the investigation of Haleck’s complaint of November 4, 1964, Yandall stated he first cpmtacted [sic] Fofo, the Election Commissioner, by telephone, telling Fofo to contact *576Tuia and Haleck and tell them that the Board would meet some time to look into Haleck’s protest; that a letter was sent to Fofo on November 14, 1964; that the Board held its first meeting on November 24, 1964, and started by calling the Election Commissioner to testify. Yandall testified, again, that the notations in pencil in Haleck’s complaint and Bill of Particulars were Yandall’s personal notes.
Yandall testified that he had gone to the hospital at Tafuna regarding the residence of the patients there who voted in Tualauta County; that the Board had used the Code and Constitution to arrive at the definition of bona fide resident; that he had gone to the Attorney General’s office to discuss the definition of bona fide resident on November 27, 1964, after the Board had reached its decision but before the Board’s decision was announced; that the Attorney General said a farmer would be a bona fide resident if he had been there for over one year because it showed the farmer intended to make such residence permanent.
The Acting Attorney General repeated most of the questions already asked on direct from Mr. Yandall. We will refer to Mr. Yandall’s answers only when they differ from his answers previously.
Mr. Yandall repeated that the total number of votes that could have been disallowed was only 40.
When asked in what instances the election officials were careless, Yandall stated that in allowing aliens to register and vote; that the patients at the Leprosarium were allowed to vote without investigation by the election officials as to their residence; that some people registered twice, though none in Tualauta County were found to have voted twice; that two persons voted twice; that he, Yandall, did not know how many voters in Tualauta County had signed the rolls, but that the majority had not signed, but that he did not know what a majority of the 522 votes cast was; that 327 receipts had been surrendered and 195 receipts *577were unaccounted for; that he didn’t know the purpose of the signing, maybe it was a precaution.
Yandall testified that the Board’s finding that the registration by sons of Pulenu’u was irregular, was a wrong finding, that it should have been that voters had been registered by minor sons of the Pulenu’u; that there were no qualifications in the law set up for registrar of voters, that he did not think it was an unlawful act; that he did not know if the registrars were duly appointed by the Commissioner; that the Board had made no detailed investigation of the allegations that Tuia had interfered with the election, except for information from the Commissioner who had not been present and other people, not more than three; that the Board had ruled that there was no proof of Tula’s success in getting ballots; that the Board had never concluded that Tuia had interfered with the election; that Fofo had stated he was not present at the voting place at the Board hearing; that the supervisors of the election at the alleged polling place were not called to testify; that he, Yandall, had gotten information from Haleck and Schirmer outside of the Board’s public hearing, even though Schirmer had not been present at either of the two polling places; that only three people were invited to appear at the Election Board meeting —Fofo, Tuia, and Haleck; that the Board’s decision to nullify the election had been unanimous; that the failure of the candidates to object at the counting of the ballots did not estop them from filing an appeal with the Election Board, that he knew of no such requirement.
On re-direct Yandall testified that two of the voters found not to be bona fide residents of Tafuna were a couple who have lived there for years and are caretakers of the hospital for the Government of American Samoa; that the Board had failed to question Haleck regarding Tuia’s testimony at the Board meeting even though Haleck was present; that the Board believed it had the authority to change the results *578of an election; that Faiivae, a member of the Election Board, was related to Haleck, Faiivae’s daughter having married Haleck’s brother; that he did not know if Masaniai, the third member of the Board, was related to Haleck; that he did not know why Masaniai had refused to listen to the whole recording of the open meeting of the Board before going along with the Board in its decision; that he did not know if the voters had failed to sign the rolls in only one of the districts in Tualauta County, mainly Faleniu, that he did not remember; that the Board had not prepared and did not have available a transcript of the open hearing of the Board as asked for in the Petitioner’s complaint filed in Court.
When asked why the Board had waited 20 days after receiving Haleck’s letter to call its first meeting, Yandall answered that because he was one of the busiest souls in American Samoa. Yandall testified that up to the present the Election Board had certified no winner in any of the seats for the House of Representatives; that the Board had not looked into the Sua County election where it was alleged that .the voters did not sign the rolls; that the function of the Election Board in certifying candidates was largely ministerial, that of “O.K.’ing” the names sent to the Board by the Commissioner.
In answer to Judge Tauala’s question, Yandall testified that if the alleged 40 unqualified votes were deducted from Tuia’s total, Tuia would still have a majority of the votes in Tualauta County, but that there were discrepancies.
Yandall testified he did not know where the patients at the Leprosarium were originally from; that he did not know whom the patients had voted for. In answer to Judge Misa’s question, Yandall .testified that he believed Otto Haleck was a bona fide resident of Faleniu even though he did not know if Haleck had land in Faleniu.
*579Yandall testified that the carelessness or negligence of the election officials alone was sufficient for the Board to order a new election called; that technically a candidate could get a negligent person to act as supervisor at the polls and that if said candidate lost the election he could use the supervisor’s negligence as a basis to get the Election Board to order a new election.
Tuia next called Lauolo Taumua as a witness. Lauolo testified that he had conducted the election at Pavaiai;' that Tuia had tried to get blank ballots on election day for the purpose of taking the ballots to the Tafuna polling place where they were needed; that he had refused to give Tuia any ballots and Tuia had left without insisting or trying to grab any of the ballots; that Tuia did not want the ballots for his supporters; that Otto Haleck and the Pulenu’u, Galoia, were present when Tuia came and went; that he did not know if Tafuna was out of ballots and that he had not checked that fact.
Tuia next called Luapo as a witness. Luapo testified that he was appointed supervisor to conduct the election at Faleniu; that Tuia had come asking for ballots to be used at Tafuna where they were out of ballots; that he had refused to give Tuia any ballots; that Tuia had mentioned to him the name of the Tafuna supervisor who had sent him for the ballots; that later Tuia came back with some voters to vote in Faleniu, supposedly the ones that did not get to vote in Tafuna for lack of ballots; that the polls at Faleniu had closed after the time originally set for closing to allow people to vote. In answer to the Acting Attorney General’s question, Luapo testified that he did not know for a fact if Tafuna had run out of ballots; that no election official from Tafuna had come to get ballots; that Tuia had not tried to take the ballots by force or theft, and that neither Schirmer nor Haleck was present at Faleniu when Tuia came.
*580Tuia next called Otto Haleck as a witness. Haleck testified that he was one of the three candidates for the House of Representatives from Tualauta County on November 3, 1964; that he was present when all the votes were counted at the Iliili school; that 522 ballots had been cast in the election altogether; that he had personally examined each of the ballots for the purpose of accepting or rejecting them; that all the candidates examined the ballots and had agreed upon the acceptability of the votes; that following the tabulation and counting of all the votes for Tualauta County, the Election Commissioner’s representative had announced the results of the election and had announced Tuia as the winner of the election based on the votes counted and accepted by all three candidates.
When asked if he had checked the voter’s roster for Tualauta County before or during the election as to their qualification for voting, Haleck answered that he had checked the Roll of Voters at his home after the votes were counted; that at the time of the counting he had no idea there were any aliens in the voter’s roster.
In answer to a question from Mr. Tindal if he had firsthand knowledge of Tuia’s trying to get ballots at Faleniu and Pavaiai, Haleck answered that he had been at Pavaiai but had not been in Faleniu; that he did not know if Tuia was acting as messenger for the supervisor at Tafuna; that Schirmer was not at Pavaiai when Tuia came.
Tuia argued that the Election Commissioner had testified that the election had been held at Tualauta on November 3, 1964, and that the election had been conducted in the same method as in all other counties; that Fofo had appointed supervisors for the election and had designated a central place for the counting of the votes after closing of the polls; that Haleck testified he had been present at the counting of the ballots, that of the 522 ballots cast all three candidates had accepted 510 as valid and had rejected 12 as *581invalid; that in accordance with Section 2.0509 of the Code a public announcement had been made by the representative of the Election Commissioner after the ballots were counted, that Tuia was the winning candidate by a majority of all the votes in Tualauta County; that the Election Commissioner testified that the Voters’ Rolls were available to all three candidates before and during the election; that Haleck had testified he had accepted 510 ballots; that Haleck could have and should have checked the Voters’ Roster before and during the election; that Fofo had testified that out of 50 aliens duly registered as voters, 35 had voted in Tualauta County; that Haleck had accepted the 35 votes cast by aliens at the counting; that Haleck challenged only 20 alien votes in his appeal to the Election Board, having contested the alien votes only in Faleniu, Mapusaga, and Malaeimi; that the Election Commissioner had received no complaint from Haleck either before or during the election; that by his actions Haleck had lost any right to any appeal he might have had.
Tuia further argued that Haleck had only appealed the result of the election that showed Fonoti with 19 votes, Haleck with 204 and Tuia with 287 votes; that Haleck was not able to prove that disallowing the votes he challenged in his Bill of Particulars would change the results of the election; that the votes as announced on the night of the election still stood; that Haleck had not proven who the alleged unqualified voters had voted for; that the election results were provided by the voters of Tualauta County and not by the Election Commissioner, the Election Board, or the candidates; that all three candidates had run under the same basis and all materials were made available to all three of the candidates; that Haleck would certainly not have objected if the results had been in his favor; that the final count of the election takes place after the counting of all the votes; that the final tabulation and results of the *582election had been published in the DAILY BULLETIN by the OSI and that the Election Board should have been aware of the results; that Section 2.0510 states, “Upon completion of the elections . . . the Election Commissioner shall submit a list of the results of each election to the Election Board.”, that Yandall had testified that the Election Board had not yet certified even one candidate for the Legislature of American Samoa; that Section 2.0502 set a deadline for the end of the election three weeks after November 3, 1964; that the time for the certification of candidates for all seats in the House expired on November 24, 1964, and that not one election winner had been certified as late as December 11, 1964; that it was questionable whether the Election Board had any right to certify winners after the deadline set out in the Code.
Tuia further argued that the Election Board had acted improperly; that it took the Board 20 days after Haleck’s appeal to call the only open hearing it held and that the Board had taken only three days to make its decision, saying that further investigation was not necessary; that only three witnesses had appeared before the Board and only one had testified from firsthand knowledge, Tuia; that the Board had accepted hearsay testimony in reaching its decision while disregarding the testimony of Fofo, Lolo, and Tuia; that out of a list of 14 submitted by Haleck as nonresidents, the Board found only three who were non-residents and of these two live permanently in Tafuna at the Leprosarium; that the definition of bona fide resident used by the Board was wrong and arbitrary by saying that only a farmer can become a bona fide resident of a place other than where he was born; that the patients at the Leprosarium had been allowed to vote there in 1962 and were still bona fide residents of the hospital or Tafuna; that the Board was arbitrarily trying to disenfranchise the six sick people who had been in the hospital for years.
*583Tuia further argued that the Election Board had failed to substantiate Haleck’s charge of a “large number of aliens who voted for my opponent” (emphasis added); that in fact no one knew how the aliens had voted; that Haleck contested as aliens 14 voters who were American Samoans; that there was no proof that even one alien voted for Tuia; that the Election Board never called even one witness to testify regarding the matter of aliens or non-residents; that the Board failed to call any witnesses regarding the charge of three minors having voted, the only testimony having been the voluntary statement of Petitioner, Tuia; that the allegation regarding the registration receipts had no merit because the testimony showed that the Election Commissioner had instructed the supervisors that in lieu of the registration receipts the voters could be identified by the Pulenu’u as being the right person; that the Election Commissioner had the right to qualify or amend the instruction regarding registration receipts which he had also issued under Section 2.0503 of the Code; that regarding the allegation that Mrs. Westbrook was in Hawaii and appeared as having voted, that in fact Mrs. Westbrook was in American Samoa on November 3,1964, but left for Hawaii on November 4 and that he, Tuia, had a note from Pan American to prove it; that the Election Board refused to call Mr. West-brook or anyone else to testify regarding her whereabouts on November 3, 1964; that he, Tuia, had testified at the Board’s open meeting that Mrs. Westbrook had been in American Samoa on November 3, 1964; that although he, Tuia, had requested that all testimony be taken under oath, the Board had refused; that even though he had requested a written transcript of the Board’s hearing, the Board had not made it available.
Tuia argued that the Election Board did not call one single witness directly connected with ascertaining the validity of Haleck’s allegations, except for Tuia himself; *584that the Board’s substantiation of Haleck’s allegation of Tuia’s interfering with the election had not been proper; that neither of the supervisors at the polling places had been called to testify and that Yandall had testified that the Board had found no evidence or interference by Tuia; that Haleck’s accusation that Tuia was trying to get ballots to distribute them to his supporters had certainly not been proven; that if the Board had called two or three witnesses the damaging accusations of Haleck and the Board against Tuia would have been avoided; that based on such flimsy and inconclusive testimony and evidence, the Election Board found sufficient cause to declare the election null and void.
Tuia argued that he did not obtain a copy of the Board’s findings until December 9, 1964, the day before the hearing in Court, and only upon his request to the Board; that the Election Commissioner announced the new election on December 1, 1964; that the running of a new campaign would be a great personal and financial strain if a new election is allowed; that the Election Board and the Election Commissioner had failed to prove that they each or together have the authority under the law to nullify a properly held election and to order a new election; that Respondent’s basis for their authority has not been shown; that although Mr. Tindal compared the Election Board to a Court of Appeals, the witness Yandall contradicted him by saying the Board did not even have the power to take testimony under oath ; that the Board’s manner of investigation left much to be desired, especially in its accusation of Tuia’s interference without exhaustive search for the facts and contrary to the testimony produced by the only witness before the Board, Tuia himself; that the election was held in accordance with the procedures set up by the Election Commissioner; that the appeal by Haleck should not be recognized since the election was decided by the voters and not the Election Board, Election Commissioner or candidates; that even if the *585truthfulness of the allegations by Haleck were granted, the results of the election would not change; that the results of the election as announced on November 3,1964, must stand. That the Court should grant Petitioner’s request for an injunction against the calling of a new election.
Mr. Tindal, on behalf of Respondents, argued that he had had no opportunity to prepare even though he had access to the exhibits before the Petitioner; that the issue before the Court was contained in two questions, to wit:
1. Whether the Election Board was empowered by the statute to declare the election null and void and to call a new election, and
2. Whether the Election Board was empowered to exercise said authority.
At this point Mr. Tindal referred to the motion to dismiss which he had made at the opening of the trial and which the Court denied.
He further argued that while it was true that the statute did not specifically give the Board authority, the statute should be liberally construed; that the Board was qualified to hear Haleck’s appeal; that Section 2.0509 is only for the purpose of counting the ballots and does not estop a candidate from contesting an election; that the Board’s action in nullifying the election was justified from the hearing; that the Board was established to hear appeals and certify candidates ; that the winner declared by the Election Commissioner is a reflection of the will of the voters, but that the Board has the power to look into the election so that all the ballots accepted are qualified voters and results in a clear and unquestionable choice of a candidate; that if there is a doubt in the Board’s mind, it should not and cannot certify a winner.
Mr. Tindal argued that all the argument of the Board not calling witnesses was irrelevant; that the' Board could arrive at its decision in five (5) minutes; that the Board *586gathered enough evidence as to procedure, though evidence under oath would have been better; that there was no evidence that anyone was lying, even though some of the points did not require a result that the election was invalid; that among the questionable votes were 35 aliens, six patients at the Leprosarium, three Tafuna non-residents, Mrs. West-brook and one Kalone; that even if all the votes were deducted, Tuia would still have a plurality or majority, but that the decision was not based on that alone; that Tuia’s alleged obstruction of the election was of no concern or had any bearing on the Board’s decision; that the Board found that Tuia’s action had no effect on the outcome of the election.
Mr. Tindal argued that other points justified the Board’s action in nullifying the results of the election and calling a new election; that the closing of the polling places earlier or later contrary to the published time might have had an effect on the result of the election; that Haleck did not want to bother to vote at a polling place that was open; that the majority of the voters did not sign the roll at the time of voting; that the signature was necessary to make sure the voters would not lie; that only 327 registration receipts were collected at the polls; that on the basis of the evidence the Board rendered its decision that the winner in the election was doubtful; that the Board refused to certify Tuia as the winner; that the Acting Attorney General disagreed with the Court’s opinion that the case before the Court had nothing to do with certification; that the Election Board cannot say that the election resulted in a clear and unquestionable winner in the election; that the Board found that certain allegations in Haleck’s complaint were valid; that even if the investigation by the Board was done in a negligent, careless, reckless, and incompetent manner, the action of the Board is still justified; that if the investigation was prudent in part the Board had power to nullify the re-*587suits of the election of November 3, 1964, and to order the Election Commissioner to call a new election.
Tuia argued in rebuttal that the Board could not have come to a fair decision on the evidence it got; that the quality of the evidence obtained by the Board was insufficient; that the Board’s substantiation of Haleck’s charge that he, Tuia, had interfered with the election was reckless and had ruined Petitioner’s reputation; that any new election would necessarily be affected by the allegations of Haleck and findings by the Board in writing; that said allegations intimate he is a thief.
Regarding the early closing of the polls at Pavaiai, Tuia argued that the earlier time had been announced two days earlier by order of the Election Commissioner who is charged by law with setting the hours for the polls to be open and closed.
In connection with the allegation of people voting without surrendering their registration receipts, Tuia argued that the Election Commissioner had testified that he had instructed the election supervisors to allow people to vote without the receipt if the voter was identified by the Pulenu’u as a bona fide resident; that the law did not require the surrendering of the receipt and that the Election Commissioner had the authority under the law to set up procedures for voting.
In connection with the voter failing to sign the roll, Tuia argued that the Election Commissioner had testified that the signatures on the roll had not been taken only in Faleniu, one of the districts in Tualauta County; that the Commissioner had testified that the failure to sign the rolls would not invalidate the vote; that there was nothing in the law positively requiring the voter to sign .the roll.
Tuia concluded by arguing that the Acting Attorney General certainly had more time to prepare than the Petitioner since he had knowledge of the Board’s information and find*588ings way before he, Tuia, did; that the Election Board had been irresponsible, negligent and reckless in its investigation and Finadings [sic] of Fact which they published on December 8, 1964; that the Election Board’s report should not be considered.
Following the hearing of the case, the Court issued the following order on December 11,1964:
December 11,1964
“Now after considering the testimony, the evidence, the exhibits and the argument of counsel for plaintiff and defendant, and after consulting with the Samoan judges, it is hereby ORDERED, ADJUDGED AND DECREED by this Court that Plaintiff Muagututia F. Tuia be and he is hereby granted a temporary restraining order and that Defendants, the Election Board, consisting of Mr. L. A. Yandall, Chairman, High Chief Faiivae and High Chief Masaniai, as Member, and the Election Commiwwioner [sic], Mr. Fofo Sunia, in their official and individual capacities, be and they are each hereby restrained from calling an election for the House of Representatives’ seat at Tualauta County, American Samoa, on December the 12th, 1964 or at any time before December 25, 1964, pending the Court’s final decision on this matter; and provided that counsel for Plaintiff and Defendants will be allowed to submit written briefs to the Court in this matter up to not later than 9:00 o’clock in the morning, Tuesday, December the 15th, 1964.
“This Court will have rendered its final decision on this matter by Friday, December 18th at 4:00 P.M. If neither party appeals, the Court’s decision will dispense with the matter of the temporary restraining order. If there is an appeal, there will be proper time for one before December 25, 1964, the expiration date of this temporary restraining order.”
The Court received additional briefs from Tuia by 8:20 a.m., December 15, 1964. The Respondents’ brief was not received until after the deadline, at 9:20 a.m. on December 15,1964.
As we see it, the main issue before the Court is whether either the Election Commissioner and/or the Election Board have the authority and power under the Constitution *589of American Samoa, the Code of American Samoa or Governor’s Memorandum 55-1964, to nullify the results of a duly called and held and concluded election, and whether the Election Commissioner on his own or at the request of the Election Board has the authority to call a new election for the same seat in the House of Representatives of American Samoa.
It is the finding of the Court, after considering the testimony, the evidence and .the Exhibits, that the investigation into Haleck’s charges by the Election Board were held in a careless, negligent, irresponsible and reckless manner, without the slightest attempt to get at the truth of the charges or to call witnesses who could have had access to pertinent information in the matter before the Board, and in a manner repugnant to the ethics of fair play, resulting in improper and inconclusive findings and in great personal damage to the Petitioner.
Respondents ascertained that the power of the Election Board in nullifying and voiding an election and ordering the Election Commissioner to call a new election are derived specifically from Sections 2.0504 and 2.0510 of the Code of American Samoa and from the Governor’s Memorandum No. 55-1964. Respondents further claim that the authority of the Election Commissioner to call a new election is derived from Section 2.0503 of the Code and from Governor’s Memorandum 55-1964. Governor’s Memorandum No. 55-1964 was never introduced into evidence by the Respondents.
Section 2.0503 of the Code of American Samoa reads as follows:
“ELECTION COMMISSIONER: The Governor shall appoint an Election Commissioner on or before July 1 of each election year to supervise and administer each election. The Election Commissioner shall have the power to establish the time of election in each election district including the hours during which the polls shall be *590opened, and to establish such procedures and make such rulings, not inconsistent with law, as are necessary for the orderly conduct of the election.”
Section 2.0504 of the Code of American Samoa reads as follows:
“ELECTION BOARD: The Governor shall, on or before July of each election year, appoint an Election Board of three Members, two of whom must be permanent residents of American Samoa. The Election Board shall act as a board of appeals regarding any matters referred to it by the Election Commissioner or by any person aggrieved by a decision of the Election Commissioner. Appeals shall be taken by oral notice to any member of the Board.” (Emphasis added.)
Section 2.0510 of the Code of American Samoa reads as follows:
“CERTIFICATION OF ELECTION RESULTS: Upon completion of the elections in all of the election districts, the Election Commissioner shall submit a list of the results of each election to the Election Board. When the Board is satisfied that the elections have been conducted in accordance with this chapter and the established procedures of the Election Commissioner, it shall certify the election of the winning candidates in each election district to the Governor, the Chief Clerk of the House, and the Secretary of the Senate.” (Emphasis added.)
Section 2.0503 authorized the Election Commissioner to supervise and administer the election and .to establish election procedures and to make such rulings not inconsistent with the law. Under these powers the Commissioner has the power, as he did, to issue the hour for the opening and closing of the polls at Tualauta County, to authorize electors to vote without surrendering their registration receipts if identified by the Pulenu’u as legal voters in the district, and to make a ruling not invalidating any vote in the case where a voter failed to sign the rolls at the time of voting. All this and other matters of procedure the Commissioner can do under the law. But nowhere is the Corn-*591missioner given the power or authority to call a new election either on his own motion or at the request of the Election Board which would have the effect of voiding and nullifying the results of an election held in accordance with the law and the Constitution of American Samoa which sets out a specific date for the holding of general elections.
Section 2.0504 of the Code states in part, “The Election Board shall act as a board of appeals regarding any matters referred to it by the Election Commissioner or by any person aggrieved by a decision of the Election Commissioner” (Emphasis added.) It is obvious that the matter before this Court is neither a matter referred by the Election Commissioner to the Election Board nor an appeal by a person aggrieved by a decision of the Election Commissioner. The appeal here, if any, is one from the results of a mandate of the electorate, but it is not even this. The Election Board is seeking to overturn and nullify the results of a legally held election. We believe that this section was intended to take effect before an election as in a case where the Election Commissioner would refuse to certify a person as a candidate or refused to give or sell to a candidate a copy of the rolls of voters or any other pre-election grievance. But even if this section, by the stretch of the imagination, were .to be held applicable after election time, there is certainly nothing in this section of the Code that gives the Election Board the power or authority to make a properly held election null and void and to order or request the Election Commissioner to call a new election.
Section 2.0510 deals with the certification of election results. What results is the Board to certify? Obviously the results of the votes as announced by the Election Commissioner or his representative after the polls closed at which he announced a winner if any one received the majority of all the votes cast and counted. “When the Board is satisfied that the elections have been conducted in accord*592anee with this chapter and the established procedures of the Election Commissioner, it shall certify the election of the winning candidates in each election district to the Governor. ...” Under this section the Election Board is not set up to decide the winner of the election; it merely is there to certify the winning candidates as submitted to it by the Election Commissioner. As Mr. Yandall, Chairman of the Election Board, testified, this matter of certification is merely a ministerial function of the Board. But even if the task were not merely ministerial, we are not faced here with the problem of certification. Mr. Yandall testified that up to the date of the hearing the Election Commissioner had not forwarded to the Board the election returns on any of the elections for the House of Representatives, and that the Board had not yet certified one single winner of the 1964 elections from which the Ninth Legislature of American Samoa is to be organized. Again in the case before the Court, the Election Board is trying to set aside a duly held election and to call a new election for the same office. There is nothing in this section which directly or indirectly empowers the Election Board to do that which it seeks to do.
This Court is of the unanimous opinion that the above cited and discussed sections of the Code do not directly or by implication of law empower the Election Board to hold the election held on November 3, 1964, Null and Void and/or to request or order the Election Commissioner to call a new election for the House of Representatives seat for Tualauta County.
This Court is further of the unanimous opinion that the Election Commissioner has no power or authority under the law to call a new election as requested of him by the Election Board, or as announced in the “Public Notice” of December 1,1964.
In a democratic system of government the marrow of its success is that such government owes its existence and de*593rives its powers to govern from the consent of the people. In such a system the right of the individual to vote is sovereign, inviolate and, yes, even sacred. The vote is the only direct control which the individual has over his government and indirectly over his own well-being. This God-given but hard-won right of a free man is not to be lightly or hastily tampered with. After the voter has spoken his mind and contributed his efforts to the results of a free election, such a decision should not be disturbed unless he, the voter, through his duly elected representatives has set out a specific provision under the law.
This Court is not deciding who was the winner of the election in Tualauta County on November 3, 1964. We believe that the electorate have already spoken. We further believe that the election is a political matter and that once the election is held, the only Body that has the authority to look into the qualifications of the elected candidates is the Legislature of American Samoa. Article II, Section 22, of the Constitution of American Samoa reads as follows:
“Qualifications and Officers: Each House of the Legislature shall be the judge of the qualifications of its members and shall choose its own officers.”
It is hereby ORDERED, ADJUDGED AND DECREED by this Court that Petitioner, Muagututi’a F. Tuia be and he is hereby granted a permanent injunction and that the Respondents, the Election Board, consisting of Mr. L. A. Yandall, Chairman, High Chief Faiivai and High Talking Chief Masaniai, as members, and the Election Commissioner, Mr. Fofo Sunia, in their official and individual capacities, be and they are each hereby permanently restrained from calling an election for the House of Representatives seat for Tualauta County, American Samoa, for the Ninth Legislature of American Samoa.
Done this 18th day of December 1964. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485360/ | OPINION OF THE COURT
ROEL, Associate Justice.
Came on to be heard the above entitled and numbered case wherein Applicant, the Government of American Samoa, by and through the Office of the Attorney General, filed an application with the Office of the Registrar of Titles of American Samoa to register a certain surveyed parcel of land called “Aoloau,” containing 2.229 acres, more or less, as the property of the Government of American Samoa. *595Upon notice of the proposed registration of the land, objection was filed by Tuilefano as representative of the Aitulagi Family.
Applicant, the Government of American Samoa, sought to register the land on the basis that said land was conveyed in fee simple through a warranty deed dated June 12, 1964, for the purpose of building a government school thereon. Fuimaono, acting for the Village Council of Aoloau, appeared to defend the title to said land against Tuilefano as warrantors of said title to the Government of American Samoa. Tuilefano based his objection to the registration claiming that the land in question was the communal land of the Aitulagi Family. The Government of American Samoa did not actively partake in the litigation, except to the extent of making an opening statement that the Government had filed the application to register the land in reliance of the warranty deed from the Chiefs of the Village of Aoloau and that the purpose of securing said land was to erect a school thereon. The Acting Attorney General stated that it would abide by the decision of the Court as to the ownership of the land in question; that Fuimaono had retained Apelu to defend the title.
The day prior to the trial the Court, in the presence of all interested parties, viewed the land. It was noted that the Government school buildings were already erected thereon.
The warranty deed from the Village Council of Aoloau to the Government of American Samoa reads as follows:
“THIS DEED, made this 12 day of June, 1964, between the Council of the Village of Aoloau, represented by High Chief Asuemu U. Fuimaono, of the Village of Aoloau, County of Leasina, Western District, Island of Tutuila, American Samoa, of the first part, and the Government of American Samoa, of the second part:
“WITNESSETH, that the said parties of the first part, for and in consideration of the sum of One Dollar and Other Valuable Consideration to the said parties of the first part in hand paid by the *596said parties of the second part, the receipt whereof is hereby confessed and acknowledged, have granted, bargained, sold and conveyed, and by these presents do grant, bargain, sell, convey and confirm unto the said party of the second part, their successors and assigns, all the following described real property:
“All that certain real property situated in the Village of Aoloau, County of Leasina, Western District, Island of Tutuila, American Samoa, being a portion of the land known as ‘Aoloau’ claimed by the Council of the Village of Aoloau, represented by High Chief Asuemu U. Fuimaono, on behalf of the Village of Aoloau, and more particularly described as follows:
“Beginning at a Concrete monument located from an iron pin in the center of the road from Aoloau to Pava’ia’i running on azimuth 167°06'17" thereon 72.45 ft.; which has coordinates X=292640.13 and Y=228218.12, Plane coordinate system of American Samoa, 1962, thence running from said point of beginning on azimuth 168°17,10" a distance of 283.10 ft. to an iron pin; thence on azimuth 152°54'47" a distance of 50.00 ft. to an iron pin; thence on azimuth 255°27'10" a distance of 75.02 ft. to an iron pin; thence on azimuth 165°27'52" a distance of 200.00 ft. to an iron pin; thence on azimuth 75°28'00" a distance of 257.26 ft. to an iron pin; thence on azimuth 345°28'20" a distance of 200.00 ft. to an iron pin; thence on azimuth 255°27'10" a distance of 75.07 ft. to an iron pin; thence on azimuth 260° 31'39" a distance of 48.12 ft. to an iron pin; thence on azimuth 349°21'14" a distance of 139.35 ft. to an iron pin; thence on azimuth 80°21'14" a distance of 57.34 ft. to an iron pin; thence on azimuth 353°44'04" a distance of 103.95 ft. to a concrete monument; thence on azimuth 352°44/04// a distance of 132.70 ft. to an iron pin; thence on azimuth 266°59'09" a distance of 155.37 ft. to an iron pin;, thence on azimuth 167°06'17" a distance of 72.45 ft. to monument of beginning. Containing 2.229 acres more or less.
“TOGETHER with all and singular the hereditaments and appurtenances thereunto belonging, or anywise appertaining, and rents, issues and profits thereof; and all the estate, right, title, interest, claim and demand whatsoever of the said parties of the first part, either in law or equity, of, in and to the above bargained premises with the hereditaments and appurtenances.
*597“TO HAVE AND TO HOLD the said premises above bargained and described, with the appurtenances, unto the said party of the second part, their successors and assigns, forever, to them and their own proper use, benefit and behoof.
“The parties of the first part, for themselves, their heirs, executors and administrators do hereby convey, grant, bargain and agree to and with the said party of the second part, their successors or their assigns, that at the time of ensealing and delivery of this presents they are well seized of the premises above conveyed, as of good, sure, perfect, absolute and indefeasible estate of inheritance, either in fee simple or that the land is the communal land of their families and that they have good right, full power and lawful authority to grant, bargain, sell and convey the same in the manner and form aforesaid.
“The parties of the first part further declare in the event that any third party or parties contest the transfer of title as mentioned above they they [sic] shall warrant and defend and indemnify the party of the second part against any and all claims and expenses of any kind whatsoever that the party of the second part undergoes toward the perfection of its title. The parties of the first part hereby grant to the party of the second part, their successors or assigns, quiet and peaceable possession against all and every person or persons lawfully claiming the whole or any part thereof, the said parties of the first part shall and will WARRANT AND FOREVER DEFEND.
“IN WITNESS WHEREOF the said parties of the first part have hereunto set their hands and seals the day and year first above written.
“WITNESSES:
s/Alfred J. Gergely
VILLAGE COUNCIL OF AOLOAU
s/Mary Meredith
s/A. U. Fuimaono
HIGH CHIEF ASUEMU U. FUIMAONO
“TERRITORY OF AMERICAN SAMOA )
) ss.
“COUNTY OF MAUPUTASI) )
*598“On this 12 day of June, 1964, before me the undersigned officer, personally appeared High Chief Asuemu U. Fuimaono, known to me to be the person whose name is subscribed to the within instrument and acknowledged that he executed the same for the purposes therein contained.
“In witness whereof I hereunto set by hand and official seal.
s/ Alfred J. Gergely
ALFRED J. GERGELY
Attorney General
American Samoa”
We will not attempt to discuss all the testimony which amounted to more than fifty (50) pages in two days of trial, since it is all in the record. We will say that the evidence brought out by witnesses for the two parties was contradictory and at times irreconcilable, and even the testimony of witnesses for the same party was inconsistent. The credibility of the witnesses in many instances had to be measured in connection with their demeanor and the manner in which questions were answered.
Applicant’s grantors claimed ownership of the land in question by virtue of first occupancy coupled with a claim of ownership. They contended that the land in question had been in their active possession since 1943 when the people of Aoloau cleared this portion from the virgin bush, at the same time that they cleared the land to relocate their Village of Aoloau there from its previous location. Testimony indicated that ever since 1943 when the people came there from Old Aoloau, the land in question had been designated for school purposes, and there was uncontradicted evidence that at least two schools had previously been situated in the exact location as the land in question, dating back to 1943, before the present buildings were erected. Applicant’s grantors’ testimony further emphasized that the whole Village of Aoloau had been occupying the land adjacent to the land in question in what is now Aoloau Fou since 1943 and that there are scores of houses situated *599thereon belonging to the people of Aoloau, and that many people have built several houses on the same spot of land since 1943.
Grantors’ witnesses testified to the effect that since 1943 when the people cleared the land for the relocation of their Village and up to the present no member of the Aitulagi Family had either objected to the clearing or occupation of the land in question nor had they occupied or raised plantations on said land. They also testified that the people of Aoloau relocated to its present location without the permission of the Aitulagi people, and they emphatically denied that a delegation of Aoloau chiefs had secured permission for the relocation of the Village from the Aitulagi Family in 1946. Grantors’ witnesses further testified that the buildings for school purposes built on the land in question since 1943 had been put up without any objection of the Aitulagi Family, nor had the Aitulagi Family objected when a permanent church building was constructed immediately adjacent to the land in question and that the said church was used for the benefit of the people of Aoloau Fou.
Tuilefano, the Objector, did not deny that the Aoloau people were occupying the land immediately adjacent to the land in question. However, Tuilefano claimed ownership of the land in question for the Aitulagi Family on the grounds that the land was traditionally Aitulagi Family land from time immemorial, and on the fact that the Aoloau people had come to resettle their village in their new location only after permission was granted to the Aoloau people by Aitulagi. He testified that such permission had been granted by Aitulagi when a delegation of Aoloau chiefs went to Malaeloa in 1946 to seek permission to move their village from the old to the new site. Tuilefano testified there were no terms, conditions or limitations when the land was granted for the use of the people from Aoloau. He testified that no control *600was held over the land once this permission was granted, and that he was aware there were a great many houses of the Aoloau people immediately adjacent to the land in question and that all these houses had been built and rebuilt without permission of and without objection from Aitulagi. Tuilefano testified that he had been in the vicinity of the land in question only once since 1943. He testified he personally had no plantation in the land in question, but that Aitulagi people had plantations there before 1946.
Tuilefano also testified that on two occasions — in 1950 and 1962 — he had filed with the High Court of American Samoa affidavits seeking to arrest claim of the land in question by adverse possession. The unsworn-to-writing filed in 1962 contradicts the testimony given by the Aitulagi witnesses at the trial. Aitulagi witnesses testified that the meeting at which permission was given to the Aoloau people was friendly without any objections being voiced by any of the chiefs of Aitulagi present. One of the witnesses testified that the chiefs of Aitulagi never discussed the matter amongst themselves separately, but that permission was granted readily in the presence of the Aoloau and Aso people, and that the meeting had lasted only part of .the morning. Aitulagi’s testimony repeatedly was to the effect that there was no condition or limitation set regarding the use of the land or cultivation of plantations thereon. The instrument filed in 1962 reads in part as follows:
“After a heated debate on the request, the Matuas of Aitulagi, by virtue of their political office, granted the request voiced by the above named chiefs under certain conditions, one of which denied to the people of the new village the rights to start on any new cultivation without prior approval of the Matuas of Aitulagi.”
Counsel for Objector stated that if the Court found that the land in question was the property of Objector, Aitulagi would be glad to convey the land to the Govern*601ment of American Samoa on the same conditions as included in the warranty deed now in question.
The uncontradicted testimony was that the Aoloau people had houses and plantations on the land in question, as well as adjacent thereto at least as early as 1946 and very possibly as far back as 1943 and that said planting and building were done without permission from or objection of the Aitulagi people. Neither were there any legal actions ever filed by Aitulagi to keep the Aoloau people from cultivating the land or building thereon.
It may be explained here that affidavits or other instruments filed to arrest the statute of limitations against claim by adverse possession are so filed without general notice to the public or to the party which such affidavit may affect. In other words, anyone can file such an affidavit claiming any land which he may or may not own without the persons affected being notified, and such affidavits are not even sworn to. Under the statute it is very easy for anyone to make a false claim regarding the ownership of land and putting a cloud on the title of as much land as he may want to include in his instrument filed in Court. We think this is dangerous and unfair to the occupants and owners of the land covered by said claim.
After considering the testimony, the evidence and the argument of counsel, it is the unanimous opinion of this Court that the 1946 meeting alleged by the Objector at which Aitulagi supposedly granted the Aoloau people permission to occupy the land in question and adjacent thereto never took place, and, certainly that no chief of the Aoloau people requested said permission from Aitulagi. Objector failed to produce any unbiased testimony regarding said meeting. He could have called to the stand as his own witness either Lualemaga or any of the living chiefs of Aoloau Village which he claimed were present at said meeting.
*602It is further the unanimous opinion of this Court that the land in question was originally cleared from the virgin bush by the people from the Village of Aoloau in 1943, and that they had complete, continuous, uninterrupted possession of said land in question from 1943 to the present; that the people of Aoloau were the owners of the land in question by virtue of first occupancy coupled with a claim of ownership at the time they executed the warranty deed to the land in question in favor of the Government of American Samoa, and that the Government of American Samoa is the present owner of the land in question.
“Mere claim of ownership of bush land will not establish an original title to it. Occupation coupled with a claim of ownership will establish ownership of that bush land before such Occupation. Sec. II Blackstone 8. The view that the occupant who first takes possession of land with the intention of having it as his own thereby becomes the owner of it is approved in Maine’s Ancient Law (3rd. Am. Ed.) at Page 238. This doctrine of acquisition of an original title by first occupant, accompanied by claim of ownership, was approved by this Court in the case of Faataliga v. Fano, No. 80-1948 (Am. Samoa).” Soliai v. Lagafua, No. 5-1949, High Court of American Samoa.
In conclusion, it is the unanimous decision of this Court, and it is hereby ORDERED, ADJUDGED AND DECREED by the Court as follows:
1. That the application filed by the Government of American Samoa to register the land “Aoloau” as reflected in the survey, consisting of 2.229 acres, more or less, as the property of the Government of American Samoa be and the same is hereby granted, and that the said land be registered in the Office of the Registrar of Titles as the property of .the Government of American Samoa.
2. That the claim filed by the Objector, Tuilefano, on behalf of the Aitulagi Family be and the same is hereby disallowed and dismissed.
*6033. Court costs in the amount of $50.00 to be paid by Objector, Tuilefano, within 30 days.
The Registrar of Titles will be advised of this decision. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485361/ | *604OPINION OF THE COURT
MORROW, Chief Justice.
Fanene Filo was registered as the holder of the Fanene title on November 2, 1932, pursuant to a decision of the High Court in case No. 8-1932. The Fanene title is attached to the Village of Pago Pago. He is still holding the title. Vaoalii K. Fanene filed his application to be registered as the holder of the same title, claiming that the Fanene title is a split title and that there can be two holders of the title at the same time. Fanene Filo filed an objection to the proposed registration of Vaoalii as a co-holder of the title with him. He claimed that the Fanene title was not a split title and that, therefore, there could not be two holders of the title at the same time.
The matai name register shows that Pulu Saofetalai was registered as the holder of the Fanene title on October 10, 1906, and that on October 30, 1906, Vaomaolo was also registered as a Fanene. We conclude from these facts from the matai name register that the Fanene title is a split title.
Our conclusion that the Fanene title is a split title is buttressed by certain statements of the Court in its decision in No. 8-1932 in which Filo was awarded the title. In the course of its opinion in that case, the Court said:
“From all the testimony it appears reasonably certain that the last lineal descendant from Leulua’ialii was Fanene Mose and that this Fanene was deprived of his name by a Mauga because he did not embrace the religion of the London Missionary Society.
“At that time there were two Maugas, Manuma and Lei. After the name Fanene was taken from Mose, Manuma gave the name to Tavai and Lei gave the name to Mataumu. Fanene Tavai died first and Fanene Mataumu later resigned the name in favor of Fanene Tili. As there had been two holders of the name in the persons of *605Tavai and Mataumu, so now another Fanene was appointed to hold the name with Fanene Pulu. This man’s name was Vaomaolo.”
This quotation from the decision in No. 8-1932 shows that prior to the .time Pulu Saofetalai and Vaomaolo held the title jointly it was also held jointly by Tavai and Mataumu. Courts may take judicial notice of their own records for all proper purposes. 31 C.J.S. 1018-1028.
Vaoalii K. Fanene, the applicant, has the qualifications for holding a matai title as prescribed by Sec. 6.0101 of the Code of American Samoa, 1961 Edition.
Vaoalii informed the Court that if he should be registered to hold the title along with Fanene Filo he would serve Fanene Filo.
DECREE
It is hereby ORDERED, ADJUDGED AND DECREED that Vaoalii K. Fanene shall be registered as a holder of the matai title Fanene attached to the Village of Pago Pago.
Costs in the sum of $14.00 are hereby assessed against Fanene Filo, the same to be paid within 20 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485362/ | OPINION OF THE COURT
MORROW, Chief Justice.
Tauala Maui filed his application to have certain land named Papatea in the Village of Luma on the Island of Ta’u registered as the communal family land of the Maui Family of the Island of Ta’u. Tauala Maui is a member of the Maui Family and a former holder of the matai title Maui. A survey of the land accompanied the application. Tauese S. of Nu’uuli filed an objection to the proposed registration claiming that Papatea was the communal property of the Tauese Family. Tuuaimau Alapati filed a similar objection claiming that the land was “a communal land of Tauala Sailiata and his heirs.”
Prior to the hearing, Tuuaimau Alapati withdrew his objection and was dismissed as a party in the case.
There was testimony that coconut plantations were put in on the land Papatea by Tauala’s ancestors and that when he was a boy he and the Maui planted coconuts on it. Tauala is 74 years old now. There was also testimony that the Maui people have had undisturbed possession of the property al*607most from the time the Government was established in Manua and that they had given permission to a faifeau to put up a school building on the land at least as early as the establishment of the Government there. Also there was testimony that about 1925 the Maui people gave permission to the Government to erect Papatea School on the property, the land to revert to the Maui Family if the land used for the school building should cease to be so used.
There was evidence also to the effect that only Maui people put in coconut and breadfruit plantations on the disputed land. Mailo testified that he got copra from the land, having been sent by the Maui for that purpose, and that he and Maui went to the land together and got copra from it. He also testified that he did not see any Tauese people on the land in dispute nor did he see them planting on it. Mailo attended the faifeau’s school on the land. Tauala testified that he himself planted coconut and breadfruit on the land and that the Maui people got the copra from trees planted by him. He, as above stated, is 74 years old. He testified that the Maui people got coconuts from the land prior to the establishment of the Government.
Tauala testified that only Maui people had had continuous possession of the land in dispute ever since he got old enough to know things and that no one objected when the Maui people gave permission to the Government to put up Papatea School on the property. He also testified that the Tauese people had never disturbed the possession of the Maui people and that the first objection to the ownership of the Maui people was made when Tauese filed his objection in this case (that was on February 24, 1964, according to the record).
Tauese who is 54 years old was born in Utulei on the Island of Tutuila. He got the Tauese title, attached to the Village of Ta’u, in 1938. The first time he was in Ta’u was in 1936. He is living at Tafuna now. He has lived *608on and off in Manua since he got the title Tauese. He testified that the Tauese people had coconut plantations on the land in dispute before the school buildings were erected; that he never saw anyone putting in plantations on the land or getting any copra from it. He also testified that if the Maui people planted coconuts and got the copra it was through force. Much of Tauese’s testimony was based on hearsay as he did not go to Manua until 1936.
District Governor Lefiti of Manua testified that Maui gave land to the Government for the Papatea School and that he, when County Chief, had ordered the Maui, So,toa and Tauala people to clear Papatea. He also testified that the Maui people had possession of the land in dispute when he was County Chief in 1935 and gave the order; and that the Maui people got copra from Papatea. He also testified that the Maui people had had possession of the disputed land ever since he was County Chief in 1935.
The weight of evidence is clearly to the effect that the land Papatea, as shown on the survey accompanying Tauala’s application to have it registered as the communal family land of the Maui Family, is the communal family land of the Maui Family. We find that the land offered for registration in this case is the communal family land of the Maui Family.
DECREE
Accordingly, it is ORDERED, ADJUDGED AND DECREED that the land Papatea, as shown on the survey accompanying the application to register it as the communal family land of the Maui Family, shall be registered as the communal family land of the Maui Family.
The Registrar of Titles will be advised of this decree.
Costs in the sum of $14.00 are hereby assessed against Tauese, the same to be paid within 20 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485363/ | OPINION OF THE COURT
MORROW, Chief Justice.
The Government of American Samoa filed its application to have a portion of the land named Lugasami in Sua County and designated as the Consolidated School Site in *610the Village of Afono, registered as the land of the Government subject to certain contingent reversionary rights in the Matagaono Family of Afono. A survey of the tract proposed to be registered accompanied the application. Joseph Willis, as representative of the Willis Estate, filed an objection to the proposed registration claiming that approximately one acre of the land sought to be registered was the freehold land of the Willis Estate and that said freehold land was called Samoutiu and not Lugasami.
The Government claims the land under a warranty deed dated September 4, 1964, from Chief Matagaono M. The area of the deeded land is 1.736 ± acres. Objector Willis, as a representative of the Willis Estate, claims the land Samoutiu through Mary Williamson to whom it was deeded by the administrator of the estate of Paul H. Krause on June 11,1901. The Supreme Court of Samoa on January 21, 1897, declared Paul H. Krause to be the “proprietor of all that parcel of land situate in Afono Bay in Tutuila in Samoa being land claim No. 60 and being called ‘Samoutiu’ and commencing at highwater mark on the seabeach and go along the highwater mark 106 feet then go inland to a marked coconut tree 150 feet then go to the east to another marked coconut tree 146 feet then go to the beach at the point of starting 142 feet subject to public rights over roads.” This declaration of proprietorship by the Supreme Court of Samoa is known as Court Grant # 644.
Mary Williamson is described as a spinster in the deed to her. Mary married Alex Willis and had 10 children by him. She died and later, about 1912, Alex married Falesau by whom he had 13 children, one of whom is Joseph Willis, the objector. Joseph is 49 years old.
There was no evidence that Mary Williamson ever made a will. At her death her children inherited Samoutiu. If Alex derived any interest in Samoutiu from Mary, it was at most an estate for his life known to the corn*611mon law as courtesy. He could have had no interest that would have survived his life which came to an end in 1943. None of the 13 children that Falesau had by Alex got any interest in Samoutiu. Also Falesau got no interest in Samoutiu. As before indicated the ownership of Samoutiu vested in the 10 children of Mary Williamson upon her death, subject to a possible life estate in Alex. Falesau did not marry Alex until after Mary’s death; and at that time the ownership of Samoutiu had already vested in her 10 children, subject to a possible life estate in Alex. She and her 13 children got nothing from Mary. They have nothing to do with Samoutiu.
The basic issue in this case is whether all or any part of Samoutiu is included in the deed from Matagaono to the Government.
There is a plat of the land Samoutiu attached to the deed to Mary Williamson. (The deed and plat and Court Grant # 644 are in Folio 142 of the records of the Registrar of Titles.) Fred Saaga, the first witness, spent three years in New Zealand in training to become a surveyor and then engaged in surveying in Western Samoa from 1955 to 1962 and is now attached to the Land and Survey Division of the American Samoan Department of Public Works. He examined the plat of Samoutiu attached to the deed (Ex. 2) .to Mary Williamson and the plat of the land deeded to the Government by Matagaono for the Afono School site (Ex. 1). He testified that it wiould be impossible today to locate Samoutiu from the description in the deed to Mary and the plat attached thereto. He also testified after his examination of Exhibits 1 and 2 that the land Samoutiu deeded to Mary Williamson in 1901 is not in the Afono School site area deeded to the Government by Matagaono.
Surveyor James Darling examined the plat of Samoutiu attached to the deed to Mary. He testified that he had no way of knowing whether the North-South direction line on *612the plat was correct or not. Mr. Darling was not asked in court to examine the deed itself and the description of the boundaries of the land as they appear in the deed nor did he examine in court the Court Grant # 644 of Samoutiu from which the boundaries in the deed to Mary were taken.
We note that the third boundary in the Court Grant reads “then go to the east to another marked coconut tree 146 feet.” This third boundary to the east as shown on the plat in Exhibit 2 is at right angles to the North-South direction line as shown on the plat in Exhibit 2. This being the fact, it follows that if the third boundary is correct, then the North-South direction line is correct, too. The objector claims that the North-South direction line is not correct. If it isn’t then the third boundary is incorrect, too, and is it obvious that the plat is incorrect. It is no wonder to us that Fred Saaga who has had three years in training as a surveyor and nine years of practical experience as such testified that today Samoutiu could not be located.
There was no testimony from any of the witnesses for the objector that the marked coconut trees referred to in the description of Samoutiu in the deed to Mary had ever been located nor did any witness tell the court just what part of the seabeach comprised the 106 feet along the beach. The seabeach in Afono is several hundred feet long. The description in the deed does not identify where the 106 feet of the first boundary of Samoutiu begins or where it ends. Of course, if the marked coconut trees could be located, possibly the 106 feet of the seabeach could be located, too. But there was no evidence whatever that the marked coconut trees could be located. Presumably they were at two corners of Samoutiu when the Court Grant of Samoutiu was made in 1897, but from 1897 to 1965 is 68 years. Those coconut trees could well have disappeared years ago.
*613There was evidence that the Matagaono Family had used the land deeded to the Government before the Government was established in 1900 and since 1900; that they cleared it from the virgin bush and put in plantations on it. It was used for plantations and the family had a cookhouse on it. The Matagaono gave permission to the L.M.S. faifeau to put up his house on the deeded land. Marines put up gun emplacements on the school site land during the war and damaged plantations thereon. The Matagaono filed a war damage claim on the deeded school site land and was paid about $200 or $220. There was no evidence that the Willis Family filed any war damage claim on the deeded land or any part of it. The present Matagaono, who is 60 years old, testified that his family had had plantations on the land deeded to the Government ever since he got old enough to know things and that no one during all of that time ever interfered with their possession. Laupola, 63 years old, testified that he has lived in Afono all his life and, that since he was old enough to know things, the Matagaono Family has used the school site land for plantations. He is the High Chief of Afono, and his family has land adjacent to the school site land.
We believe from the evidence that three Catholic catechists, viz. Timo, Sivelio, and Petek), have used in succession a part of the school site land through permission first granted to Timo by Matagaono Taise. The present Matagaono testified that such permission was granted to Timo. Saofaiga Matagaono testified to the same effect.
Seuvaai Matagaono, 69 years old, testified that he and his father and Timo planted tobacco together on a part of the land deeded to the Government and that the Matagaono had used the land for plantations ever since he (the witness) got old enough to know things.
Catechist Timo testified that when he went to Afono Father Bellwell told him to cultivate freehold land for the *614church and that it was owned by the husband of Mary Williamson. He also testified that Falesau (Alex Willis’ wife after the death of Mary) gave him permission to use some land later. He also testified that Matagaono objected to his use of the land. The last time Timo was in Afono was eight or nine years ago. He does not know whether Sivelio took over his plantations after he left Afono about 1955. It should be stated here that Falesau had no interest in Samoutiu and her permission to Timo, if it was given, was a nullity. She is a first cousin of Timo. Timo was in Afono from 1924 to 1955.
Fred Uhrle testified that he was on an appraisal board that went to Afono around 1954 or 1955 .to appraise freehold land for the purpose of taxation. Joseph Willis, the objector, was along. Fred saw some land that was shown to him by the pulenu’u, which he supposed was Samoutiu. He saw some marks on coconut trees, but he did not know whether .they were the coconut trees referred to in the description of Samoutiu in the deed to Mary Williamson nor did he know whether the land the appraisal board saw was in the land deeded by Matagaono to the Government. He has not been in Afono since 1955. It was stipulated that the Willis Family has paid taxes on Samoutiu.
Joseph Willis, the objector, testified. He did not know whether the two coconut trees on the supposed land Samoutiu had marks on them or not. He claimed that the land Samoutiu, or part of it, is within the school site area.
Matagaono, recalled as a witness for the objector, testified that Timo, and after him Petelo, used land that was within the school site area. He again testified the permission for such use was given by Matagaono Taiese.
Both Samoan judges believe that the weight of evidence is to the effect that permission was given to Timo by Matagaono Taiese as testified to by the present holder of *615the title and Saofaiga Matagaono. The writer of this opinion agrees that such is the weight of evidence.
We also believe from the evidence that the Matagaono Family has had plantations on the land deeded to the Government, the school site area, from the time the Government was established, and probably before, and that upon the evidence their possession has been adverse to any other possible claimant or claimants.
We believe, especially from the testimony of surveyor Fred Saaga and the plat of Samoutiu as it appears in the attachment to the 1901 deed to Mary Williamson, that Samoutiu, wherever it may be located, is outside the land deeded to the Government by Matagaono.
In our opinion, considering all the evidence, the weight of evidence is to the effect that neither Samoutiu nor any part of it is within the land deeded to the Government by Matagaono for the Afono school site, and we so find.
DECREE
Accordingly, it is ORDERED, ADJUDGED AND DECREED that the portion of the land Lugasami, containing 1.736 ± acres, as shown on the plat accompanying the application of the Government to register the same, and designated as the Consolidated School Site in the Village of Afono, shall be registered as the property of the Government of American Samoa, subject to the condition that if at any time after thirty (30) years the Government ceases to use such land for educational school purposes, it shall revert after one (1) year of non-use for educational purposes to the Matagaono Family of the Village of Afono.
The Registrar of Titles will be advised of this decree.
Costs in the sum of $25.00 are hereby assessed against Joseph Willis, the same to be paid within 20 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485364/ | OPINION OF THE COURT
ROEL, Associate Justice.
On August 20, 1963, R. S. Manuma, hereinafter referred to as Ropati, filed his application with the Registrar of Titles to be registered as the holder of the matai title Mauga, attached to the Village of Pago Pago. Each of the objectors listed above filed his objection to said registration by Ropati within the statutory period for submitting such objection and each of them became a candidate for the title Mauga, together with Ropati, hence this litigation. (See Section 6.0106, Code of American Samoa, 1961 Edition.)
Previous to the trial of the case, a pre-trial conference was held on January 25, 1965, at which all the candidates and their counsel were present. The record will reflect that the following stipulations were agreed to amongst the parties, to which stipulations each party agreed to be bound at the trial of the case:
1. That there was no objection to any of the judges sitting.
2. That the title Mauga became vacant on February 7, 1963, through the death of the then title holder, Mauga Palepoi Afamasaga.
3. That since the title became vacant there had been only one general meeting of the Mauga Family, said meeting having been held on August 12,1964.
4. That at the only meeting of the Mauga Family on August 12, 1964, there was no one selected to hold the title Mauga.
*6195. Regarding the pedigree or hereditary right of the candidates, the following stipulations were agreed upon:
a. That the Applicant Manuma has 14 Mauga blood.
b. That Toali’i Asuega has 1h6 Mauga blood.
c. That Lei has 14 Mauga blood.
d. That Iulio M. Taufaasau has 14 Mauga blood.
e. That Sialega P. Mauga has % Mauga blood.
f. That R. S. Tago has 1h¿ Mauga blood.
g. That Sami Mauga has 1h6 Mauga blood.
h. That Leulua’i has 1h¿ Mauga blood.
NOTE: No stipulation regarding hereditary right was reached on the following:
i. Te’o, who claimed 14 Mauga blood.
j. S. P. Aumoeualogo, who claimed i/256 Mauga blood.
k. Folausaua, who claimed ]-/256 Mauga blood.
6. That there be only one argument for each candidate, provided that the Applicant, Ropati, waived his right to an opening argument and would argue and rebut after the conclusion of argument by all the objectors.
7. That each candidate would be allowed not more than one (1) hour for his argument, the one hour to include the time necessary for interpreting.
8. That each candidate would be entitled to one witness only at the trial, the witness to be the candidate himself.
Section 6.0101 of the Code sets out the basic qualifications which a person must have to be eligible to succeed to a matai title. The three subsections relevant herein read as follows:
“1. He must have at least one-half Samoan blood.
“2. He must live with Samoans as a Samoan.
“3. He must be a descendant of a Samoan family and chosen by his family for the title.”
Section 6.0104 of the Code reads as follows:
“CLAIM OF SUCCESSION TO TITLE: Every person claiming succession to a matai title shall file with the Clerk of the High Court a written claim of succession to the title. Such claim shall be accompanied by a certificate from the chiefs of the village in which the claimant lives to the effect that such matai name is an old matai *620title of the Samoan people and a petition signed by three-fourths of the members of the claimant’s family over 20 years of age asking that the claimant be registered for the matai title.” (Emphasis added.)
At the beginning of the trial Usu, Counsel for Objector Leulua’i, made a motion to the Court to dismiss the applicant’s petition and the case as a whole on two grounds, mainly that neither the applicant nor any of the objectors had been “chosen by his family for the title” as set out in subparagraph 3 of Section 6.0101 of the Code, since there was a stipulation agreed to by all the candidates that no one candidate had been chosen for the title at the only meeting of the Mauga family on August 12,1964, and on the further ground that the applicant’s petition was not signed by three-fourths of the family members of the Mauga Family as required under Section 6.0104 of the Code.
Counsel Usu was joined in his motion by counsel for some candidates, and the motion was opposed by counsel for other candidates on the grounds that the application as presented by Ropati had been accepted by the Clerk of the High Court and that it would serve no purpose to dismiss the case since the Mauga Family had had almost two years to settle the matter and had been unable to do so, and a dismissal would only serve to delay an inevitable trial after the family failed to agree on any one person. The Court did not rule on the motion one way or the other but kept it under advisement throughout the trial. We will now consider said motion.
Usu’s motion, if granted, would have had the effect of denying or dismissing the application of Ropati. If this were done, all the objections by the other candidates would also have to be dismissed since once the application is dismissed there would be nothing to object to. The natural sequence to this would be to throw the ball back at the Mauga Family to agree on one candidate. The Mauga Family had two years to pick a candidate favorable to all and failed *621miserably in this task. There is no reason to believe that the Mauga Family could agree on any one person if they had five more years to contemplate the issue.
Paragraph 3 of Section 6.0101 reads: “He must be a descendant of a Samoan family and chosen by his family for the title.” As is the case with other parts of Title VI— MATAI TITLE PROVISIONS — this section of the Code leaves much to be desired in the way of clarification. This section does not specify whether the word “family” refers to the immediate “family” of the candidate or to the “family” as composed by all the people in all the clans included in the matai title. If it includes more than just the immediate family of the candidate, it does not specify whether the candidate must be chosen by 100% of .the members of the whole matai title family, or by the majority or any given percentage. It is obvious that if the candidate were chosen by 100% of all the members of all the clans in the matai title family, then there would be no case in Court since he would have been chosen without any opposition from anyone, and there would be no objectors to the application to register the title. We think this provision needs clarification. While we would not hesitate to give our own interpretation if it were absolutely necessary, we believe this is a task within the sphere of the Legislature.
As quoted before, Section 6.0104 makes Every candidate for a matai title subject to its provisions. In other words the provision that “such claim shall be accompanied by a certificate from the chiefs of the village in which the claimant lives to the effect that such matai name is an old matai title of the Samoan people and a petition signed by three-fourths of the members of the claimant’s family over 20 years of age asking that the claimant be registered for the matai title,” appears to apply not only to the original applicant for the title but to each of the objectors as well since, once a person objects to the application to register a *622matai title he himself becomes a claimant. As is the case with Section 6.0101 and other sections under Title VI, Section 6.0104 leaves much to be desired in the way of clarification or legislative intent.
How is it possible that one original applicant and 15 objectors in a matai title case can each get “three-fourths of the members of the claimant’s family over 20 years of age asking that the claimant be registered for the matai title” ? Does the word “family” refer to the immediate family of the candidate or to every person in every clan or family of the candidate or to every person in every clan or family under the matai title? If it refers to every person in the whole family of the matai title, it is obvious that not even two, much less 16, candidates can get three-fourths of the members of said family to sign his application, unless the great majority of signatures are of the same persons. In the instant case we have candidates from Pago Pago, Fatamafuti, Nu’uuli, and Tula. Does the statute mean that the chiefs of Tula are to certify that the title Mauga is an old matai title in Pago Pago when it says, “such claim shall be accompanied by a certificate of the chiefs of the village in which the claimant lives to the effect that such matai name is an old matai title of the Samoan people” or does it refer to the chiefs of the village to which the title is attached? Here again we believe that this section is crying out for clarification, and that the Legislature should say what it means without delay.
After considering the motion to dismiss by counsel for Leulua’i and after considering the pertinent sections in the Code in their present confused state, it is the unanimous opinion of this Court that the motion to dismiss should be and the same is hereby denied. We believe that the intention of the Legislature is not and should not be to frustrate or make impossible the selection of a matai when a title becomes vacant, since it is obvious that a family should have *623a head or a matai when no such head exists because of the death of the previous holder. Here the Mauga family members had nearly two years to select a head after the last Mauga died. To send the matter back to the family would not guarantee the selection of a matai, but would only contribute further to the disagreements and disintegration of that family unit. It was obvious from the testimony at the trial that even at the clan level the members of one clan could not agree on any one from their own clan to support for the candidacy. The Court is of the opinion that considering the widespread clash and conflict within the clans and between the different clans of the Mauga title, it would be almost an impossibility for any one candidate to obtain the backing and the signatures of three-fourths of all persons over 20 years of age in the Mauga Family. The figures on the total number of persons in the Mauga Family as expressed at the pre-trial conference by the different candidates ranged from 300 to 5,000.
This Court is of the opinion that it has jurisdiction in this matter and that each of the candidates at the trial was eligible under the basic qualifications as set out in Section 6.0101 of the Code of American Samoa. Counsel Usu’s motion to dismiss is hereby denied. To do otherwise would only lead to chaotic and confusing conditions in the selection of a matai by judicial determination.
Section 6.0107 of the Code sets out the considerations which shall guide .the Court in determining which of the candidates shall be registered as the holder of a matai title. It reads as follows:
“CONSIDERATION GIVEN BY COURT: In the trial of matai title cases, the High Court shall be guided by the following considerations, in the priority listed:
“First: The best hereditary right in which the male and female descendants shall be equal in families where this has been customary, otherwise the male clan shall prevail over the female.
*624“Second: The wish of the majority or plurality of those clans of the family as customary in that family.
“Third: The forcefulness, character, personality, and knowledge of Samoan customs.
“Fourth: The value of the holder of the matai title to the family, the village, and the country.”
Based on the stipulation as before set out, the Court finds that the hereditary right of the different candidates is as follows:
R. S. Manuma — V4 Mauga blood;
Lei — V4 Mauga blood;
Iulio M. Taufaasau — V4 Mauga blood;
Sialega P. Mauga — V2 Mauga blood;
Sami Mauga — Vi6 Mauga blood;
Leulua’i — Vie Mauga blood.
In connection with the candidates as to whom there was no stipulation as to their hereditary rights, the Court, after considering the testimony and the evidence, finds that candidate Te’o has Vm Mauga blood; that candidate S. P. Aumoeualogo has no Mauga blood whatsoever; and that candidate Folausaua has V4096 Mauga blood if, as we believe, he traces his nearest Mauga blood connection to twelve generations back.
Accordingly, this Court is of the opinion that candidate Sialega P. Mauga, with V2 Mauga blood, prevails over all the candidates on the issue of best hereditary right. This Court is further of the opinion that candidates R. S. Manuma, Lei, and Iulio M. Taufaasau each have V4 Mauga blood and each ranks second on the issue of hereditary right. The Court further finds that candidates Sami Mauga, Leulua’i, and Te’o each have Vi6 Mauga blood and that each ranks third on the issue of hereditary right. Candidate Folausaua with V4096 Mauga blood ranks fourth on this issue.
*625We now pass on to the second issue under Section 6.0107, “The wish of the majority or plurality of those clans of the family as customary in that family.”
Each of the candidates testified that there were only three (3) clans in the Mauga Family. Considering that the Legislature has not as yet furnished a clear or any definition of the word “clan,” the agreement from testimony at the trial that there were three clans in the Mauga Family was a pleasant surprise, since no such agreement was possible at the pre-trial or in pedigrees in writing submitted by the different candidates. The great majority of the candidates testified at the trial that the three clans of the Mauga Family were the Sai, Pulumataala, and the Manuma clans. Applicant Ropati disagreed with the grat [sic] majority and testified that the three clans were the Viavia, Manuma, and the Sai clans.
Applicant Ropati testified that he had the support of two clans in the Mauga family, the Viavia clan and the Manuma clan. It was obvious from the evidence that the Viavia clan and the Manuma clan are one and the same, and that Ropati either did not know or did not agree with the tradition of the Mauga Family or he purposely set them out as two distinct clans. Of all the nine candidates that remained to the conclusion of the case, Ropati was the only candidate that did not mention the Pulumataala clan as one of the clans in the Mauga Family, and he testified that he did not know that Mauga Pulumataala was the Mauga that first brought dignity to the Mauga title. It was also clear from the testimony that Ropati did not have the undivided support of even the Manuma clan when it was alleged, without objection, that at least one person from the Manuma clan, Mageo, was backing a candidate other than Ropati.
Candidate Lei testified that he was supported by the Feaumalosi clan or the Sai clan. However, since two other candidates, Palepoi Mauga and Sami Mauga, were admit*626tedly also members of the Sai clan, it was obvious that Lei did not have the full support of the clan Sai.
Candidate Iulio testified that he was supported by all the three clans in the Mauga Family, the Sai clan, the Manuma clan, and the Pulumataala clan. Since there were two other candidates admittedly from the Pulumataala clan from whom Iuliu [sic] descends, mainly Te’o and Leulua’i, and three candidates from the Sai clan, and Ropati was a candidate from the Manuma clan, it was obvious that Iulio did not have the undivided support of the three clans. He might have meant to convey the idea that he had supporters from each of the three clans, since the testimony reflected that Mageo from the Manuma clan was backing him and that R. S. Tago from the Sai clan was also individually backing him. But a small part of a clan is certainly not a whole clan.
Candidate Te’o testified that he was supported by no clan.
Candidate Sialega testified that he had the support of the Fue clan and support from some of the Pulumataala clan. The Fue clan is the same as the Sai clan. Since there were two other candidates admittedly from the Sai clan, Lei and Sami, it was obvious that Sialega did not have the full support of the Sai clan. Certainly he did not have the full support of the Pulumataala clan since Iulio, Te’o and Leulua’i were candidates from the Pulumataala clan.
Candidate Logo testified that he was supported by one of the three clans in the Mauga family, the Tulimalefoi clan. This Court is of the opinion, and we so hold, that there is no such clan as the Tulimalefoi clan in the Mauga Family, and that, accordingly, Logo is not supported by any clan or by any fraction or portion of any of the three clans in the Mauga Family. As we have stated before, this Court finds that candidate S. P. Aumoeualogo has no Mauga blood whatsoever.
*627Candidate Folausaua testified that he was supported by Mulivai clan, one of the three clans in the Mauga Family. The Mulivai clan is supposedly one and the same as the Sai clan. Since there were three other candidates who were admittedly members of the Sai clan, it is obvious that Folausaua did not have the full support of the Sai or Mulivai clan. As a matter of fact, this Court is of the opinion, and we so hold, that candidate Folausaua did not have the support of any portion of the Sai clan.
Candidate Sami Mauga testified that two clans supported her candidacy, the Fue-Faanoa and the Pulumataala clans. The Fue-Faanoa clan is the same as the Sai clan. Since there were two other candidates from the Sai clan, of which Sami is a member, it is obvious that Sami did not have the full support of the Sai clan. Since there were three members of the Pulumataala clan as candidates, including Sami’s husband Leulua’i, it is obvious that Sami did not have quite the full support of the Pulumataala clan. If she claimed any individuals of that clan as her supporters, she did not mention them.
Candidate Leulua’i testified there were three clans in the Mauga Family and that he had the support of two clans, the Fue-Faanoa clan and the Pulumataala clan. These two clans are the same two clans who Sami, Leulua’i’s wife, claimed were supporting her. Since there were two other members of the Pulumataala clan as candidates, Iuliu and Te’o, it is obvious that Leulua’i did not have the full support of the Pulumataala clan from which he claims to descend. Since there were three candidates from the Fue-Faanoa or Sai clan as candidates, including Leulua’i’s wife Sami, it is obvious that Leulua’i did not have the full support of the Fue-Faanoa clan.
After considering the testimony and the evidence, the Court unanimously finds that there are three (3) clans in the Mauga Family, to wit: (1) Feaumalosi clan also *628known as the Sai clan, Lei clan, and Fue-Faanoa clan, (2) the Pulumataala clan, and (3) the Manuma clan. The Court further finds that none of the candidates before the Court had the support of the majority or plurality of those clans of the family as customary in the Mauga Family. Since we find that none of the candidates had the support of the majority or plurality of the clans in the Mauga Family, the Court will disregard this issue in arriving at our selection of the next holder of the Mauga title. The statute does not say “the wish of the majority of the members of each clan” or “the plurality of each individual clan.” As we read the statute, in a case where there are three clans in the family, a candidate must show that he has the full support of at least two of those three clans to prevail on this issue against the other candidates. Here again, we feel that if the legislative intent is not clearly set out as the statute appears in the Code, it is the responsibility of the Legislature and not the Court to clarify the issue. If and when it becomes necessary, this Court will furnish its own definition if the Legislature fails to act on the matter.
We now come to the consideration of the third and fourth issues under Section 6.0107 of the Code, to wit: “The forcefulness, character, personality, and knowledge of Samoan customs” and “The value of the holder of the matai title to the family, the village, and the country.” It is certainly not the easiest of tasks for anybody to make a selection regarding the above qualities when there are nine candidates involved and ten days of evidence and testimony to consider. This Court spent many, many hours weighing the individual qualities of each of the nine candidates under the third and fourth issues under Section 6.0107. We have considered the evidence, the testimony, the arguments, and the exhibits; we have taken into specific account the forcefulness, the character, personality, knowledge of Samoan customs, the value to the family, village and country, *629the personal demeanor, presence of mind, the clarity, speed and correctness with which answers were given, candidness, the ability to stand up to thorough and rigorous cross-examination, the education, the self-confidence, and other qualities which are reflected from the speech and behavior of the candidates, matters which can be assessed only from the personal observation of each individual candidate in arriving at our decision under the third and fourth issues under Section 6.0107.
We have considered going into the direct testimony and answers to questions on cross-examination of each of the nine candidates in this opinion, but we feel that such a detailed opinion would not be in the best interest since it would take a great many pages to set all this out. The Court’s personal notes alone amounted to 260 pages. At any rate the whole proceedings are fully reflected in the record. What we will do is to set out in some detail the testimony and answers to questions on cross-examination by the candidates which this Court ranks in the first and second place under the third and fourth issues of Section 6.0107.
On the third issue, “The forcefulness, character, personality and knowledge of Samoan customs,” the Court ranks the candidates as follows:
First — Iulio M. Taufaasau
Second — R. S. Manuma
Third — S. P. Aumoeualogo (While this candidate displayed adequate forcefulness and knowledge of Samoan customs, this Court feels that it was in bad taste for him to apply as a candidate for the Mauga title when he should have known that he had no Mauga blood whatsoever. In the eyes of the Court, his action greatly diminished his character and personality.)
Fourth — Sami Mauga
Fifth — Leulua’i
*630Sixth — Sialega P. Mauga and Lei
Seventh — Te’o
Eighth — Folausaua
Accordingly, after considering all the factors above set out, the Court finds that candidate Iulio M. Taufaasau prevails over each of the other candidates on the issue of forcefulness, character, personality, and knowledge of Samoan customs. The Court further finds that the other eight candidates rank in the order set out above on this same issue.
On the fourth issue, “The value of the holder of the matai title to the family, the village, and the country,” the Court ranks the candidates as follows:
First — Iulio M. Taufaasau
Second — R. S. Manuma
Third — Sami Mauga
Fourth — Leulua’i
Fifth — Lei
Sixth — Sialega P. Mauga
Seventh — Te’o
Eighth — Folausaua
Ninth — S. P. Aumoeualogo (Here, while this candidate may possess some outstanding personal qualifications, this Court feels that the imposition by a non-member of a family as matai of that family would only serve to create dissatisfaction, chaos and general resentment in the whole family, that such a candidate rather than be of any value to the family would be a great detriment. It follows that as a matai of such family such a person would be of no value either to the village or to the country.)
We will now go into the matter of setting out the testimony on direct examination and cross-examination of candidates Iulio M. Taufaasau and R. S. Manuma whom we have rated first and second, respectively, on the third and *631fourth issues of Section 6.0107 of .the Code, and other points concerning each of the two candidates.
Ropati Manuma testified that he was 56 years of age and lived at Pago Pago. He testified he had lived at Pago Pago all his life, but later testimony showed that he was away for long periods. He .testified at first he had 100% Samoan blood, but later changed it to 87 %; that he lived with Samoans as a Samoan, and that he was a descendant of a Samoan family.
Ropati’s application to be registered as the holder of the title Mauga as submitted to the Clerk of the High Court on August 20, 1963, was introduced into evidence as applicant’s Exhibit No. 1. When asked why page 2 of the application blank was not filled out but left blank, Ropati did not give a responsive answer. Page two of said application blank is headed: “WE COMPOSING (3/4ths) OF THE MEMBERS OF ‘MAUGA’ FAMILY OVER 20 YEARS OF AGE APPROVE THE PETITION OF Manuma, R. S. EACH PERSON APPROVING THIS PETITION MUST SIGN PERSONALLY. NO ONE ELSE CAN SIGN FOR YOU.” Immediately underneath is the translation into the Samoan language.
When asked if the 18 names on the third page of the application represented all the members of the Mauga Family, Ropati testified that there were another six people who had given him their support via mail from the United States. He further stated that the signatures on page 3 should have been on page 2 of the application. When asked if the 18 names made up three-fourths of the people over 20 in the Mauga Family he answered that they made up three-fourths of his own immediate Manuma Family. When asked if the 18 were all members of his family, he answered that only 18 had approved his petition. In answer to another question, Ropati stated that there were about 600 members in the Mauga Family, but that he did not know how many of *632them were over 20 years old. He later stated that there were about 30 members over 20 years old in his immediate family, and that altogether there were about 200 people in his immediate family.
In answer to his counsel’s questions, Ropati stated he had only 87x/2 % Samoan blood and not 100 %. He also changed or modified the answers he had previously given the Court regarding the time he had been away from American Samoa. He had first stated he had been away from American Samoa only twice; now he testified he had been out of American Samoa eight or nine times for different periods of duration.
When asked by his counsel, Tuia, if he had approached any members of the Mauga Family outside of his clan before he filed his application, Ropati answered that he had approached Sialega and Iulio six times and that neither of them told him he would object, and that he thought they both agreed to his filing. Ropati later stated he had approached Te’o, too, but that Te’o had given him no answer. Ropati also claimed to have approached Leulua’i. Ropati answered that he had not contacted the rest of the objectors because they descended from the same clans as the people he had approached. When his counsel asked him if any member of the Manuma Family objected to him, Ropati answered in the negative.
When asked by Fofo, counsel for Lei, if the agreement of Sialega and Iulio represented the wish of the Mauga Family, Ropati answered that it was his belief that they were involved in the other Mauga trial; .that he had not consulted Lei because Sialega and Lei were the same thing, that they would take the same side. Again in answer to Fofo’s question, Ropati stated he was also related to Mauga Viavia, Mauga Titilupe and Mauga Mulivai.
Under questioning by Mageo, counsel for Iulio, Ropati testified he had not included a trip to Tonga in his previous *633testimony; that he had forgotten. He also stated that he had 12lh% Tonganblood.
Under questioning from Ta’a, counsel for Te’o, Ropati answered in the affirmative when asked if he had complied with Sections 6.0101 and 6.0104 of the Code. Ropati answered that out of about 200 members in his immediate family, 24 had agreed for him to register for the title.
In answer to questions by Lolo, counsel for Sialega, Ropati testified that he had registered for the title before the only meeting of ,the Mauga Family; that his application was in accordance with the fa’a Samoa regarding matai titles; that it would not have been possible to settle the title problem within the family if he had consulted all the members of the family before filing the application for the title; that he, Ropati, had tried for three months and that no family settlement was possible.
Ropati testified that Te’o did not have one-fourth Mauga blood as he claimed; that as far as he, Ropati, was concerned, Te’o had no Mauga blood. He also testified that Aumoeualogo and Folausaua had no Mauga blood at all.
Ropati testified that there were three clans in the Mauga Family: the Viavia clan, the Manuma clan, and the Sai or Tei clan, and that of these three the Viavia and the Manuma clans favored his candidacy.
In connection with the third issue regarding forcefulness, character, personality and knowledge of Samoan customs and the fourth issue regarding the value to the family, the village and the country under Section 6.0107 of the Code, Ropati testified that he was a true Samoan, lived as a Samoan and had rendered services; that he was known as the son of Mauga Palepoi; that he had served Mauga Palepoi under his, Ropati’s, title of Utaifeau; that his services to Mauga set a good example for the rest of the family; that he presented Mauga with food daily, including Sundays; that he served and supported Mauga in everything Mauga *634•asked; that at Mauga’s Fiftieth Jubilee he, his family and others not related did everything for the celebration which was widely attended; that he gaye fine mats, a keg of beef and other food on Mauga’s birthday; that when Mauga wanted to enter a boat for the village on Flag Day, there was no money, and that his, Ropati’s, own money had been used to buy everything for the boat, 70 feet long with 18 seats, called CENTIPEDE; that when Mauga didn’t like the boat and wanted another one built two weeks before Flag Day, he offered to build it in one week; that he, Ropati, furnished most of the materials for this second boat and paid the carpenters; that the other families donated only one board and he donated all the rest; that he had to spend $300 for ordering oars from Hawaii after the boat was finished; that the boat was used to race in Western Samoa and that no boat has been built since; that if he got the Mauga title he would build three or four more boats.
Ropati testified that he was responsible, almost single-handed, for building Mauga’s guest house at Gagamoe; that he had furnished his own materials for the guest house. He testified that when Mauga wanted a vacation he, Ropati, paid for his and Mauga’s fare both ways to Hawaii and to the Mainland and also paid all the expenses; that when he, Ropati, built Darden Hall, he reserved a free seat for Mauga for life, even after he leased the building to Haleck. Ropati further testified that when Mauga Palepoi was taken sick to Honolulu, he, Ropati, went to stay at his bedside with him, and that he asked all the chiefs in Samoa to pray for Mauga’s recovery; that when Mauga came back to the Hospital of American Samoa and was later released, Mauga went to Ropati’s and his brother’s house; that only he, his brother and Lei were with the sick Mauga; that he nursed Mauga personally until Mauga went back to Gagamoe in good health; that when Mauga died he, Ropati, arranged for his funeral and contributed 21 cases of mackerel, 3 *635fine mats, 60 loaves of bread, sugar, etc. Ropati further testified that he had objected in Court when Mauga tried to sell Fatumafuti, a communal land of the Mauga Family, and that in the end the land was only leased instead of sold.
Ropati testified that in Pago Pago the young men get drunk and fight; that when he was the leading young man in the village everything was well; that he used to gather the young men and plant a communal taro patch to get food for the village and that no one in Pago Pago had to buy taro at the market place; that he alone presented food for the village of Pago Pago, and that he used to supply taro and taamu even for people of other villages; that he had received a prize for being top-farmer.
Ropati testified that young people must develop talents and education; that he had tried to get a low-fare airline so that young people could leave Samoa to get an education and come back; that he mortgaged his theater to Haleck for $400 to go to Honolulu where he dealt with Transocean Air Lines, and that the fare from American Samoa to Honolulu had been cut from $340 to $149; that after awhile Trans-ocean Air Lines discontinued service to American Samoa because of bankruptcy.
Ropati testified that he had helped the people of Manu’a by going to buy and getting the MANU’A TELE from Honolulu; that before bringing the boat down a lot of work had to be done on it and that he was in charge of the cleaning group; that he had to ask the Navy for a crew to bring the boat down to Samoa; that he did all this as a service to his people in Samoa.
Ropati testified that he was retired from the Armed Forces after 20 years of service; that in 1941 he had 30 men under him to man the three-inch guns here in Samoa; that he was also an instructor for the Fita Fita, as well as an instructor on radio and the Morse code; that after the war he worked on carriers transporting things to and from *636the Pacific Islands; that he had fought for allotments for the dependents of servicemen and so that the members of the Fita Fita could wear pants; that he helped in securing dependency affidavits resulting in a lot of money to the people here in American Samoa. He also testified he had been awarded five medals and other certificates while in the Service; all these are included in applicant’s Exhibit No. 5.
Ropati further testified that he had taken a course in surveying by correspondence when there were no surveyors in American Samoa; that the Department of Public Works let him train as a surveyor, though he started working as a “hard labor”; that he re-traced the airport to see if it was long enough for a jet runway; that he had checked on the site for the Marine Railway to see if it was suitable; that he reset some pins at the main dock for the building of the new dock, but left the job when it was only half done to get further education; that he was sent to Swains Island to set a bench mark; that he had surveyed and set the positions for the reservoir at Pago Pago to transfer water to the Fagatogo reservoir; that he was sent to Manu’a to check on a location for a wharf and that he recommended against the building of the wharf because the sea was too rough.
In connection with his formal education, Ropati testified that he had left Poyer School at the age of 18 to join the Fita Fita; that he had taken courses in fingerprinting, salesmanship, and a course at Blackstone School of Law; that he had not finished any of the courses; that he was presently studying surveying by correspondence; that he could strip a transit.
Ropati testified he helped the economy of Manu’a by advertising floor mats to the outside world and selling mats; that he had women at Aoloau and A’asu weave mats to sell; that before that no one was exporting mats.
In answer to questions by his counsel, Tuia, Ropati testified that Manuma was a matai title; that said title was *637second to Mauga in importance. He testified that he was also holding the leading young man title of Utaifeau, which title had been given to him by Mauga Palepoi; that none of the other candidates ever held the Utaifeau title; that his sister Titilupe had held the title of Tulimalefoi as village virgin for Pago Pago.
On direct testimony Ropati further testified that he had served two Maugas, Moimoi and Palepoi; that his father had served the same two Maugas and had held the title Utaifeau; that neither Iulio nor Lei had served Mauga Palepoi; that Sialega was not recognized as a young man in Pago Pago because he did not live there; that recently Polausaua and Sialega had served when Palepoi died and that he had seen Iulio at Palepoi’s funeral; that Sami and Leulua’i also served Mauga; that he, Ropati, had written down his services to Mauga Palepoi and had letters from Mauga recognizing said services. The list of services and letters was introduced into evidence as applicant’s Exhibits No. 2 and 3. He testified that he, Ropati, had sponsored a professional boxer and had taken him to San Francisco; that after two wins and two losses, his fighter had retired and joined the army.
Ropati testified that when the Mauga Family members tried to remove the title from Mauga Palepoi, he, Ropati, sided with Mauga Palepoi against such move; that ultimately Palepoi was not removed as Mauga.
Still under questioning by his counsel, Tuia, Ropati testified that none of the other candidates contributed to the building of the guest house; that he and his family had contributed for the dedication of the guest house; that he was familiar with the Mauga lands, and named them as Gagamoe, Lemoli, Lesolo, Laloata, Levaga, and Fatumafuti; that he was familiar with the boundaries of said lands and knew who occupied what land; that the theater, Darden Hall, is on the land Gagamoe; that four Maugas from his *638clan were buried at Gagamoe, namely, Viavia, Mulivai, Titilupe, and Manuma. Applicant’s Exhibit No. 4 was introduced into evidence in connection with Ropati’s dealings with Transocean Air Lines.
Ropati testified that he had never been arrested; that he did not use liquor, though later Te’o testified Ropati had slapped him when Ropati was drunk. Ropati testified that he had served in the Armed Forces and had some medals and letters in connection with his service, these being introduced into evidence as applicant’s Exhibit No. 5; that he was getting retirement from his military service in in the amount of $134.56 per month and that he had Government insurance in the amount of $10,000 payable to his family upon his death; that he derived from $30 to $150 per month from products from his plantation and also gave produce free to members of his family; that every Friday he would serve Mauga with a basket of taros and bananas from his plantation all during the time he was recognized as Mauga’s son from 1949 to 1957; that after March 1965, he would again get $55 per month rent from Haleck for the theater.
Ropati testified that when the .title Manuma was presented to the Village of Pago Pago, none of the candidates had contributed; that when Sialega was presented with his title in Nu’uuli, he, Ropati, had contributed $10.
Ropati testified that if he were selected as Mauga he would bring the objectors and the family together; that he would be strong himself so that members of the family would look up to him and respect him; that he would support himself; that he would try to get the young men together and lead them to maintain fa’a Samoa customs and traditions; that he would encourage parents to educate the' youngsters.
In connection with his value to the village, Ropati. testified that he would lead the Village Council to clean *639up the village, which now looks very bad, especially on the seaward side; that he would work with the chiefs in Pago Pago to use and cultivate the land for the benefit of the village; that he would have families survey their lands by metes and bounds to avoid future quarrels regarding the ownership of land; that the land should be registered; that he would try to set up a playground for the children of the village to give them something to do instead of using beer and fighting; that he would try to develop talent of youth as athletes.
Ropati testified that he would support the Government’s program for education if given the Mauga title; that he would encourage villages to give land for school use; that he would try to see that Samoan customs and traditions be maintained under the matai system; that he would try and protect the Samoan land; that he would suggest to the Government to grant scholarships and have the students come back and help survey all of the Samoan lands; that he would set up a program to encourage agriculture to try and solve the shortage of food; that he had enough quality as a leader to lead the family, the village, the county, and the country.
On cross-examination Fofo, counsel for Lei, read one of the letters from Mauga Palepoi to Ropati, which Ropati had introduced into evidence, and read in part, “My son, Ropati, even though you have turned away from me many times, I still love you.” When Fofo asked Ropati if, why, and when he had turned against Mauga, Ropati said he had refused to obey Mauga when asked to dance at some affair; that he had refused to dance like Mickey Mouse in front of everyone leading the parade. When Fofo asked him why he would object as the Utaifeau to perform such an honorable Samoan custom such as dancing, Ropati then stated he was sick at the hospital at the time. Ropati testified there were many other small instances when he disagreed with Mauga, such as the using of other titles in the family, as when Ro*640pati unsuccessfully objected in Court to the registration of the title Tamaalemalo; that he had heard from Sialega and Mauga there was a lease on Fatumafuti.
Ropati answered on cross-examination that he had mortgaged Darden Hall to the Halecks twice, the last time for $3,000. Ropati testified that as Utaifeau it was his duty to serve Mauga, whether he liked it or not. When asked when he last held a steady job, Ropati answered it was in 1955; when asked why he had abandoned the mat business, Ropati said because there was not enough money in it when the price dropped from 17 cents to 11 cents per square foot; that Transocean had gone bankrupt when it couldn’t pay its pilot and navigator any longer; that he received a seven percent commission as agent of Transocean while in operation. Ropati answered that he did not know of the poor condition of the MANU’A TELE; that he would serve Lei if Lei were selected to hold the Mauga title.
On cross-examination from Mageo, counsel for Iulio, Ropati did not answer when asked if he had gained or lost in all his businesses; he said he had done jobs for the benefit of the public and not for his own personal benefit. When asked whether the Yiavia and the Manuma clans were one and the same, Ropati answered that Manuma was the son of Viavia, but that Mulivai was the father of Viavia. When asked if there had ever been two persons holding the title Mauga at the same time, Ropati stated there was only one Mauga from Gagamoe. When asked if Mauga Manuma and Mauga Lei held the title at the same time, Ropati stated they had not held the title at the same time; that Lei had taken the title over from Manuma when Manuma was exiled to the Marshall Islands, and that when Manuma returned from exile, he took the title back from Lei; that Mauga Manuma had been exiled because of political activity against the Government of Western Samoa, at that time under the Germans.
*641When Mageo asked Ropati who had helped Mauga Manuma get to Gagamoe, Ropati broke down crying and then answered it had been Mageo and Usuiali’i. (At this point counsel for Ropati requested a recess from the Court so that Ropati could compose himself. The Court, fearing that an altercation might result between Ropati and Mageo if Ropati left the witness stand at that moment, refused the recess then, but granted it a few minutes later. After a couple of more questions, Ropati composed himself on the witness stand.)
Ropati testified that he had seen Mauga Moimoi but had not seen Mauga Taufaasau, even though it was alleged that Mauga Moimoi and Mauga Taufaasau had held the Mauga title at the same time from 1900 to 1913.
When asked if he had ever slapped Mauga Palepoi, Ropati answered in the negative; that it was taboo for him to touch a Mauga. When asked if his family had objected to the selection of Palepoi as Mauga and had moved to Fusi, Ropati answered that there had been a disagreement.
When questioned by Ta’a, counsel for Te’o, when he last held the title of Utaifeau, Ropati stated he still held the title Utaifeau; that he knew of no other Utaifeau at Pago Pago at this time.
Lolo, counsel for Sialega, asked Ropati if he knew what instrument was used to determine magnetic direction, and 'Ropati answered it was the transit. Lolo then corrected him, saying it was a compass and not a transit that was used. When Lolo asked Ropati how much he had contributed for the building of the guest house, Ropati answered he had spent $2,500 or more. When reminded that his, Ropati’s, Exhibit No. 2 gave his contribution as $1,000, Ropati answered the figure in the paper was right.
Ropati testified that Tulimalefoi was not a clan in the Mauga Family. When asked again if Mauga Vi'avia and Mauga Manuma belonged to different clans, Ropati an*642swered that Manuma was the son of Viavia. When asked again, he stated they both belonged to the same clan. When Lolo reminded Ropati that he, Ropati, had testified earlier that the three clans in the Mauga Family were Viavia, Manuma and Sai, and asked him if Ropati now claimed there were only two clans in the Mauga Family since he stated that Viavia and Manuma were from the same clan, Ropati gave a lengthy but completely irresponsive answer and left the question unanswered.
When Lolo asked Ropati if he was qualified to get the men in Pago Pago to clean up the village and work in the plantation and stop the men from drinking beer, Ropati answered that that was his program for the future, if he got the title. Ropati answered that Mauga could name anyone Utaifeau, whether the person had Mauga blood or not; that he had given some land for the chlorination station for the reservoir. When asked where Mauga Manuma lived, Ropati answered he had not seen him but heard he had lived at Gagamoe; that at Mauga Palepoi’s funeral, Folausaua had taken care of the body.
When Apelu, counsel for Logo, asked Ropati how he knew Logo had no Mauga blood, Ropati answered that he was raised in the Mauga Family and that he knew. When asked if he had been present at the trial of the last Mauga title in 1935, Ropati answered no. When asked if Mauga Tamaalemalo had a son Mauga Ili, Ropati answered he did not know. When asked if Mauga Tamaalemalo was also the father of Tulimalefoi, Ropati answered he did not know. Ropati testified that he was in Tutuila when Mauga Moimoi died, but that he had not attended the funeral because he was on duty in the service, but that his father had attended; that he did not know who had looked after Mauga Moimofs body.
When Apelu asked Ropati why he had not put his plan to work in Pago Pago before, Ropati answered that a person *643had to hold the title Mauga to have a voice in the village. When Apelu reminded him that he, Ropati, had testified that Manuma was second to Mauga, Ropati testified he couldn’t get things done without the Mauga title. When Apelu further questioned Ropati why he had not advised the last Mauga about his, Ropati’s, plans to improve the village, Ropati testified that Mauga Palepoi was too old and too ill to lead the village; that the chiefs would not show up when Mauga called meetings of the council.
When Folausaua questioned Ropati as to why he, Folausaua, had taken care of Mauga Pelepoi’s [sic] body if he was not an heir of Tulimalefoi, Ropati stated he did not know; that it was up to Folausaua’s branch to select a person for the honor, that the position had nothing to it except wave over the dead body. When Folausaua asked Ropati why Logo had no Mauga or Tulimalefoi blood, Ropati answered that he did not know about Tulimalefoi blood, but that Logo certainly had no Mauga blood. Ropati testified that he had never seen Logo participate in Mauga Family matters at Gagamoe before the last Mauga died. When asked by Folausaua if Mauga Viavia was the eighth holder of the Mauga title, Ropati answered that he did not know. When asked to name all the holders of the Mauga title, Ropati set them out as Mulivai, Viavia, Titilupe, Manuma, Lei, Manuma, Moi-moi, and Palepoi; eight in all. Ropati testified that he did not agree that there were 15 Maugas from the beginning.
When asked by Folausaua to name the three clans in the Mauga Family, Ropati named them as Viavia, Manuma, and Sai. When asked if the heirs of Mauga Pulumataala descended from a clan in the Mauga Family, Ropati answered no. Asked if he understood Samoan culture and customs, Ropati answered, “Not very well, but I understand it; I know it.”
When Usu, counsel for Leulua’i, asked Ropati if he had ever been present at a council meeting in the Village of *644Pago Pago since lie acquired the title Manuma, Ropati answered that he had not. When asked why, Ropati answered that it was because he wanted peace; that since Mauga died he did not want to take advantage; that he would go back when another Mauga was selected. When Usu asked Ropati if the village chiefs refused to let him enter the council meeting because Manuma was a young man’s title, Ropati said that was not so.
In answer to Usu’s question, Ropati again stated that he still held the Utaifeau title at present. When asked if he knew what title Tutuila Histake was holding presently, Ropati answered that he did not know if Tutuila now held the Utaifeau title. Ropati further testified that Mauga had shaken hands with him and told him he was the Utaifeau. When asked by Usu if Pulumataala ever held the title Mauga, Ropati answered that he did not know. When Usu challenged Ropati’s knowledge of Samoan customs and told him he did not know anything, Ropati said it was nothing hard; that he could pick up the salutations from the other villages fast; that he only had to show them respect; that it was the Talking Chief’s duty to do the talking. When Usu asked whether it was Mauga Mulivai or Mauga Pulumataala that first lent great dignity to the title, Ropati answered it was Mauga Mulivai.
On re-direct Ropati testified that the $1,000 he had listed in his exhibits as contributions to the building of the guest house did not include food and other contributions, only materials. Ropati also testified that he had a compass attached to the transit to find the magnetic North.
Candidate Iulio testified that he was 60 years old; that he lived in Pago Pago; that he had 100% Samoan blood; that he had been out of American Samoa on five different occasions, once on a church trip and four trips as an employee of the Government of American Samoa when he was Sanitary Inspector; that he lived as a Samoan with Sa*645moans, and that he was a descendant of a Samoan family. None of the counsel for the other candidates cross-examined Iulio as to his qualifications under Section 6.0101 of the Code.
Iulio testified that he did not agree with Te’o’s claim to having one-fourth Mauga blood, but that he thought Te’o had one-eighth Mauga blood. He stated that he did not agree with either Logo or Folausaua that each had 1/256 Mauga blood, but that, in fact, neither of them had any Mauga blood whatsoever.
Iulio testified that there were three clans in the Mauga Family, namely, the Sai clan, the Manuma clan, and the Pulumataala clan, and that all three clans favored him.
In connection with issue number three regarding forcefulness, character, personality, and knowledge of Samoan customs, and the fourth issue regarding the value to the family, the village, and the country under Section 6.0107 of the Code, Iulio testified that the different heads of the Mauga Family have not been in very good relationship since the time Mauga Palepoi held the title; that he had at one time advised Mauga Palepoi to vacate the title to keep the title from falling into disgrace; that the matters within the family had gone bad because of the last matai; that he had tried to improve things for the family for a long time after he finished school, but it was not possible.
He testified that he had graduated from the Marist Brothers’ School and later attended a Catholic college for four years; that he had taught at the Brothers’ School for three years; that among his students were Peter Coleman and Eric Scanlan, who later became Governor and Secretary of American Samoa, respectively, and others; that he was made assistant school principal and later was selected by the Bishop to represent all the church’s schools in Western Samoa in relation with the Government schools, and that he represented all the church’s schools and all Samoan *646members of the Catholic Church at the dedication of the Government school at Malipa, Western Samoa.
Iulio further testified that he worked for the Public Health Division of American Samoa in 1981; that in 1933 he was made Chief Sanitary Inspector and also handled all the office work at the Sanitation Department and helped the Accounting and Personnel Service; that on request of a Navy officer he was sent to lecture on health and sanitation at Poyer School and also was in charge of inspecting restaurants and other places where food was sold.
Iulio testified that during the last war he worked with the Government in the Fingerprinting Division; that he drove the only vehicle on the Island for the head of the 7th Defense Command, Mr. Isaacs; that he served as interpreter at a secret meeting at which General Eisenhower, General Brown, Governor Tate of Western Samoa and other English generals met with the Chiefs of the Eastern and Western Districts to explain to the Samoans .the importance of the presence of United States Forces on the Island; that he was named Quarantine Officer and worked in that position until he left the hospital during the war; .that he helped in inspecting to see if food was fit for consumption after a hurricane; that he helped the Attorney General’s Department under Colonel Baraco in controlling venereal disease; that he helped compile the annual report for the hospital at the request of Governor Hanson; that while working at the hospital he replaced a Palagi employee and took over the job of Statistician; that he was in charge of inspecting ships arriving in American Samoa; that he was sent to Swains Island several times while Sanitarian and sampled water in the lagoon; that he later went back to teaching.
Iulio testified that he had served three Maugas — Mauga Taufassau [sic], Mauga Moimoi, and Mauga Palepoi; that he was very young at the time of Mauga Taufassau [sic], but served him by getting fire for him and Ifiifi from a tree *647to have his hair stick up, and that he took care of his horse; that he only served Taufassau [sic] for about a year and then he died. Iulio testified that he served Mauga Moimoi as a young man; that his, Iulio’s, father, Taelase, applied to be named • Mauga when Taufassau [sic] died, but that Mauga Moimoi had appealed to the Government not to name a second Mauga and that the Government had decided not to fill Mauga Taufassau’s [sic] vacancy but to allow only one person to hold the title Mauga; that after this decision his, lulio’s, father started serving Mauga Moimoi; that when he, Iulio, was about 20 years old his father sent him to Gagamoe to serve Mauga Moimoi and his wife two or three times a week; that Letuli and Palepoi (later Mauga) were at Gagamoe with him, because of clan relationship to Moi-moi, but that they both slacked off in their jobs and he, Iulio, had to do most of the work; that in 1924 he went with Palepoi, before he became Mauga, to Western Samoa, when Mauga Moimoi wanted to enter a boat in the race, and came back after the race; that they went and returned on the U.S.S. ONTARIO; that while in Western Samoa they lived with Iulio’s family; that he later went with Mauga Moimoi for Mauga to preside at a meeting of the L.M.S. Church in Western Samoa; that he helped in getting Moimoi the things necessary for the trip; that when Mauga Moimoi died he, Iulio, and his family had to take care of the funeral, and that .they contributed 15 fine mats, 2 pigs, cases of mackerel, 100 loaves of bread, etc.
Iulio testified that when the Mauga title became vacant following the death of Moimoi, Palepoi came back from Western Samoa and applied for the title, and that Palepoi was given the title by the Court; that at the ceremony for the official investment of the Mauga title on Palepoi only his, Iulio’s, branch of the family was at the saofa’i; that neither Te’o, nor Lei, nor Ropati nor any of the others were present; that even though he had been approached by the *648others to boycott the ceremony for Mauga Palepoi, he had attended even though the rest of the people didn’t show up; that he had good relations with Mauga Palepoi and served him with money and other things.
Iulio further testified that he had been against the move of the Mauga Family to oust Mauga Palepoi from the title; that he had received a telegram at Western Samoa from the Governor of American Samoa to come back; that when he, Iulio, got back, the Governor told him of the family’s attempt to have Palepoi ousted as Mauga for some infraction he had committed and that he had expressed an objection to the removal of Mauga; that he had testified at the trial of Mauga Palepoi in Court and had again stated that he was against the ouster of Mauga Palepoi; that the Court had fined Mauga Palepoi for the offense but had not taken the title away from him.
Iulio testified that if he was selected for the title he would work to bring the family together; that he would give the family understanding by organizing the family and improve the status and standards of the youngsters and instruct them to become good citizens; that at present the young people of Pago Pago were involved in smoking, drinking and other bad activities; that he would make sure that all the youngsters attended school; that he would encourage the people to be good Christians and make them proud of belonging to the Mauga Family; that he would advise the people when they had problems and visit them when they were sick; that he would encourage the family to work in their plantations and raise their own food.
Iulio continued by saying that, if selected, he would call the Village Council together and discuss matters of benefit and concern to the whole village, to beautify and improve the conditions of the village and get the village to back the Government programs; that he would work to improve the problem of pigs running loose, keep people from throw*649ing rocks at passing vehicles, and enforce the village regulations; that he would try to help the traffic problem in the village in connection with automobiles, motor bicycles, etc.; that he would work to protect the new school buildings being constructed and have the village take some responsibility for looking after the schools; that he would work to improve the education of the village and teach people to preserve the water and not waste it; that he would have the Village Council adopt a program to control the young people from drinking, fighting and using profanity; that to improve the bad food situation in the bay area, he would get the Village Council to get young men of the village to work on plantations.
Iulio testified that he would work for the betterment of the county; that, if selected, he would call all the matais from the different villages in Mauputasi County to Gagamoe to set up programs for the improvement of the villages and their lands; to get the Pulenuus to do their jobs well; to see that villages were kept clean for their own benefit and for the tourists; that he would try to get some of the roads in the county paved and have schools for the youngsters to attend; that he would get together with the other High Chiefs to fully support the Government programs; to encourage villages to give their land for the building of schools; that if he were to hold a Government position, he would try to do his best; that he would encourage the villages to cooperate in the protection of coconuts and bananas from diseases; that the chiefs together could work to improve the general situation by discussing and influencing the Governor to take certain actions.
In answer to questions from his counsel, Mageo, Iulio testified that the three clans in the Mauga Family were the Sai clan, the Manuma clan, and the Pulumataala clan; that he, Iulio, descended from the Pulumataala clan; that members of the Manuma clan were also supporting him, in-*650eluding Mageo, and that Tago of the Sai clan was supporting him, too, and that he was also supported by the Pulumataala clan, from which he descended; that Lei and Pale-poi were supported by .the Sai clan, but that Lei had already testified he would support any one selected.
In answer to Mageo’s question, Iulio testified that after four years in college he had become a catechist and a teacher; that his studies gave him the forcefulness and character to lead people.
Iulio testified, in answer to Mageo’s questions, that he had a good knowledge of Samoan customs and that he knew the Mauga Family traditions and the history of Pago Pago Village; that he knew the Samoa traditions of Mauputasi County, the whole of Tutuila and Manu’a, and also the Western Samoan traditions. Mageo asked Iulio to correct certain salutations uttered by Ropati and Lei, and Iulio did it without hesitation, and his corrections were never refuted. He also answered other questions regarding Samoan customs with great assurance and apparent complete knowledge.
When Mageo asked Iulio what other things he might do for the family, Iulio testified that he would get the other candidates and their families together, have them greet each other and forget about previous differences; that he felt he was able to get the family together, even though it would not be an easy matter after all the dissension and hate created when Ropati had filed for the title.
Again in answer to questions from Mageo, Iulio testified that he knew the lands of the Mauga Family well and mentioned some names; that he was not in favor of having all the land of Mauga surveyed because he thought the surveying of the land might cause fights amongst the different families and perhaps bloodshed; that he feared that once the communal lands were surveyed, it would make it easier for a matai to dispose of the land belonging to his *651particular family, and that this might deprive the others of their land.
In answer to Mageo’s questions, Iulio testified that “Manuma” was not an old matai title in Pago; that it was a young man’s name; that Ropati had gone to Mauga Pale-poi to have him approve the name “Manuma” as a matai title; that Mauga and Ropati went to Court and had “Manuma” registered as a matai name; that the title Manuma was not recognized in Pago Pago at present; that Manuma was not second in rank to Mauga; that the second in rank to Mauga is Sa’ofetalai also known as Fanene.
When questioned about his income, Iulio testified that at present he had no money because the church forbade catechists to enter into business or hold other jobs; that he depended on what people in the village gave him. Iulio testified that if awarded the title he would resign his present position and that he could then make more money than any of the other candidates; that other districts such as Sua and Vaifanua, Ituau and Alataua, and Fofo and Aitulagi also supported Mauga. Later he testified that the support of these last-mentioned districts was not material but merely honorific.
Iulio testified he had been a candidate for the Mauga title in 1935 and that not one of the present candidates had been in the case in 1935, except Te’o; that Ropati’s father and uncle had been candidates, as had the father and uncle of Lei; that he was the only loser to render services to Mauga Palepoi after he got the title Mauga; that the rest of the losers were dissatisfied and had gone .to set up their own village — B—in Pago Pago in opposition to Mauga for a long time, and .that there were some difficulties even at present as a result of that split; that Mauga Moimoi and Mauga Taufaasau had held the title at the same time; that Mauga Pulumataala was the first Mauga to raise the dig*652nity of the Mauga title; that he descended from Pulumataala*
Iulio, in answer to Mageo’s question, testified that the ownership of the land Vaitafe, which Ropati claimed he had given to the Government for a water tank, was still pending in Court, four people all claiming to own it: Mageo, Manuma, Vaivao, and Tuisooga.
In answer to questions by Tuia, counsel for Ropati, Iulio testified that differences between the Mauga Family members still existed; that those differences could not have been settled before this trial; that he had tried to settle the difficulties but that no agreement could be reached.
When Tuia asked Iulio who had been the original Mauga, he answered it had been Mauga Mulivai; when Tuia tried to press Iulio for the relationship between Mauga Pulumataala and Mauga Mulivai, Iulio answered that there was a relationship but that he did not want to disgrace the Maugas before Pulumataala by talking about them; that Pulumataala was the holder of the title Mauga when Christianity came to American Samoa and that previous to that the holders were referred, to as the Maugas of the dark days because very little was known for certainty about them; that Mauga Pulumataala resided in Gagamoe and was buried at Gagamoe; that Gagamoe was the name of the general area and also the seat for Mauga’s guest house; that Mauga Paniani had been to Gagamoe, but he did not know where he was buried; that Mauga Taufaasau resided at Gagamoe and was buried next to Mauga Palepoi; that Mauga Taufaasau succeeded Mauga Paniani; that he did not know if Ropati descended from the Manuma clan; that he had not heard of a woman by the name of Titilupe holding the title Mauga; that he knew of a Mauga Manuma but had not personally seen him; that Mageo claimed he descended from Manuma; that Te’o and Leulua’i also descended from Mauga Pulumataala; that the Maugas from *653Pulumataala to Palepoi were: Pulumataala, Paniani, Taufaasau, Viavia, Manuma, Sai, Moimoi and Palepoi; that when Moimoi and Taufaasau held the title at the same time, Moimoi lived at Gagamoe and Taufaasau lived at Lesolo, which is included in the general area of Gagamoe; that Mauga Palepoi came from the Sai clan, .the same as Moimoi; that the candidates from the Pulumataala clan had met to try to agree on one candidate but that no agreement was reached; that Ropati never discussed the title with him.
Still in answer to Tuia’s questions on cross-examination, Iulio testified that he had met with the Pulumataala clan between the pretrial'conference and the trial date, but that no agreement was reached; that between 400 and 500 people in the Pulumataala clan claimed Mauga blood and that of these about 300, all residents of American Samoa, were supporting him, Iulio; that these included the majority of the clan members living in Pago Pago, thosé living in Siufaga, Aua, Leloaloa, and Leone, and that he also had the support of the Mageo Family.
Iulio answered Tuia that he had taught at the Brothers’ School for three years; that he was then paid $35 per month; that he stayed teaching at that salary as a service to his church; that when he started working for the Government he was making $15 per month and that when he resigned from .the Government after 12 years he was making $150 per month as Chief Statistician in the Medical Department; that he had trained his successor, Pele, for the job he left; that while working for the Government, he was present at Mauga Family meetings whenever it was possible; that he, Iulio, did not always wear a necktie and coat; that Mauga did not wear a tie at family meetings, but always wore a tie when attending to Government business; that he served Mauga Taufaasau when he was seven or eight years old; that he served Mauga Moimoi from the age of 18 until Moimoi’s death in 1935; that-he served Mauga Pale-*654poi from his installation until his death; that the Utaifeau under Mauga Taufaasau was Polo; that Ropati’s uncle was Utaifeau under Mauga Moimoi; that he, Iulio, had never been Utaifeau nor had any of his five sisters ever been Tulimalefoi; that at Moimoi’s funeral he, Iulio, had personally contributed 8 fine mats, 1 case, bread, and other things; that Mauga Palepoi lived in Western Samoa before given the title; that it was possible Ropati ahd [sic] held the Utaifeau title while he, Iulio, was away; that Ropati’s sister held the title Tulimalefoi; that when Mauga wanted to sell the' land in Fatumafuti he, Iulio, went to object to the sale five different times to Judge Wood and that the judge would chase him away; that the last time he went to object to the sale of Fatumafuti, Judge Wood threatened to put him in jail.
In answer to Tuia’s question, Iulio testified he had some plantations; that at one time he supplied the hospital with papaya for three weeks and received $85, but that generally he derived very little income from his plantations; that because he could not himself engage in business, an old lady in the family sold the products at the market place.
When asked if he had helped build Mauga’s guest house, Iulio testified that all the posts for the previous guest house had come from his land; that he had last visited the present guest house on the previous Saturday, January 30, 1965, and on February 1 and February 3, 1965; that the condition of the guest house was bad, that it leaked; that he had served Mauga during his, lulio’s, years at Western Samoa through his family and also personally, when Mauga went to Western Samoa, by furnishing a vehicle for him and by selling him tobacco and mangoes from Western Samoa.
When asked how he would accomplish getting the roads fixed, Iulio testified he would first go to the chiefs of the village and discuss how to get the road paved; that, if neces*655sary, they would go to the Governor and tell him of the bad situation the roads were in and that if the Government decided it was up to the villages to pay for the road repairs, attempts would be made to raise the money by the village. When asked several questions about the Government, he answered that he did not know as he was presently a catechist and not active in Government matters.
Iulio answered that he had been present at the Mauga Family meeting of August 12,1964; that there was no definite decision; that Leiato said that .there would be another meeting in two or three weeks, at which second meeting the applicant and the objectors were to withdraw, but that said meeting was never called; that Leiato, Tuitele and Letuli were supposed to have called the second meeting; that he, Iulio, was not present when Mauga Palepoi presented Ropati to the village as matai; that Mauga could have made Ropati a matai if it was in good taste, but that this was not usually done. When asked if Ropati was a matai of Pago Pago, Iulio answered that the village had always been against it and that up to the present the Village of Pago Pago has not accepted the Manuma title.
Iulio correctly answered Tuia’s questions regarding the names of chiefs in the different districts. When asked if these chiefs rendered services to Mauga, Iulio stated that the words “render service” were too strong; that the High Chiefs could never render services to another chief, but that the support was in salutation and the Samoan tradition.
When asked if he objected to Ropati’s exhibits, Iulio answered that he believed Ropati received the medals, but that he, Iulio, did not know who had actually done the writing on the other exhibits; that he would support Ropati if selected for the title.
In answer to questions on cross-examination by Fofo, counsel for Lei, Iulio stated that he would serve Lei, if *656selected; that the Lei and Sai clans were one and the same; that he first became Sanitation Officer in 1931 and Chief Statistician about 1938; that the statistician’s job consisted of keeping track of births, deaths, people treated at the hospital, visitors, slaries [sic] of nurses and other employees, total money spent for maintenance and other work in the hospital, the cost of medicine, and other matters.
In answer to Fofo’s question whether he would attempt to change the law regarding matais if elected to the Legislature, Iulio answered that before he attempted to change any law, he would have to make a study of the Code. Fofo next asked questions regarding Samoan customs, which Iulio answered; he stated that if the county chiefs refused to get together with him for a meeting, he would try and try again. Fofo then asked Iulio about his knowledge of theology and his work as catechist.
When asked who of the Sai clan supported him, Iulio answered that he had the support of Chief Tago, and that Lei had testified he would support Iulio, if selected.
When Fofo asked him if he had a staff working under him at the hospital, Iulio answered that he was next to the palagi boss and that he, Iulio, had supervision over the palagi nurses and others.
Asked why he had lost the Mauga title case in 1935, Iulio answered that such had been the Court’s decision, and that he had not questioned it; that he was 30 or 31 years of age when he applied for the title in 1935; that he, Iulio, would give up his present job if selected for the title.
Again under questioning by Ta’a, counsel for Te’o, Iulio stated that before Mauga Pulumataala there was no record of the doings of the previous Maugas; that Poumale was older that Paniani; that Pulumataala had three children.
Under questioning by Lolo, counsel for Sialega, Iulio testified that he derived very little money from his plantations; that he used that money to support his family; that as cate*657chist he got very little; that he had to make his own living because sometimes he got nothing from his congregation throughout the year. In answer to Lolo as to how he supported his family, Iulio testified, with great dignity and character, that sometimes in the morning his family could not afford tea and that they had to cook with coconut juice and ate mostly Samoan food, and that at night sometimes they did not eat a full meal; that he had supported the last Mauga with money, fine mats, food, clothing, transportation, etc. When asked if he expected the family to support him if he became Mauga, Iulio answered that he would force no one to help him, except when expected under Samoan customs, as in fa’alavelaves; that he only expected support from the other districts in matters of salutation and in the traditional way; that once he resigned from his present job he could make more money than any . of the other candidates; that he now lived in Pago Pago on the communal land of the Taufaasau Family, but that Taufaasau also had rights to other Mauga lands; that he had heard that Mauga once had land in Amouli but that the land had been left to Gogo and Gaea.
Still answering Lolo’s questions, Iulio stated that members of the Sai clan were presently at Gagamoe; that there were no members of the Pulumataala or Manuma clans now living at Gagamoe. Again, rather than bring disgrace on the early Maugas, Iulio stated that Pulumataala was holding .the title Mauga when the church arrived in Samoa; that Pulumataala had been bestowed with the title Mauga, not for services as such but for his heroic deeds and actions; that in those days Tutuila was under the rule of Western Samoa; that the main leader in American Samoa was Leiato Tafilele; that Leiato turned to Pulumataala to help the people of Tutuila; that both Leiato and Pulumataala worked together to defeat a common enemy, and that the *658throne was given to Leiato who had rewarded Pulumataala with the Mauga .title, including certain salutations.
In answer to Lolo’s question, lulio testified that Tago, á member of the Sai clan, was supporting him; that he would support Sialega loyally if Sialega were to be awarded the title. When Lolo asked lulio if he wanted to give up his job as catechist for the Mauga title, lulio answered him that the Bible said that all jobs come from God.
In answer to cross-examination by Folausaua as to the descendants of Pulumataala, lulio again answered that the Maugas before Pulumataala were known as the Maugas of the dark days, and that they should not be talked about, lulio agreed with Folausaua that Lei was from the Sai clan. When Folausaua questioned lulio as to the names of the Kava cups for Le’alaifuaneva and Tamaalemalo, lulio answered without hesitation, and his answer was not challenged.
In answer to questions by Muasau, counsel for Sami, lulio repeated that he had graduated from the Brothers’ School; that he had not attended Government school; that he had gone to college for four years; that he had worked for the Government of American Samoa; and that he was presently a catechist. When Muasau asked lulio whether he liked better to work for the Government or as a catechist, lulio answered that every job was a job done for God, whether as catechist, as Government employee or as a matai; that, if selected, he would like to hold the Mauga title.
In answer to a question by Usu, counsel for Leulua’i, as to how long the Village of Pago Pago was split after the trial of 1935, lulio answered that it stayed split for a long time, close .to 20 years; that Leulua’i had taken Mauga’s side; that Leulua’i was with lulio and others when Mauga Palepoi had his saofa’i; that the title of Utaifeau in Pago Pago was presently held by Tutuila. Again, when Usu asked *659Iulio which was the more importánt job, that of a catechist or as a matai, Iulio answered that every job is a job for God in its own way and that all were important to God. In answer to Usu’s question, Iulio again stated that he would resign from his present position if awarded the title Mauga.
On re-direct from Mageo, Iulio testified .that Mauga Lei and Mauga Manuma held the Mauga title at the same time; that Fanene was the second in rank after Mauga in Pago Pago; that Mauga had a right to give the .titles of Utaifeau and Tulimalefoi to anyone he wanted; that when he, Iulio, came back from Western Samoa, he asked Mauga if his, Iulio’s, family had served him while he was away, and that Mauga Palepoi told him that Iulio’s family was serving him very well in many ways, and that Mauga had shown him what Iulio’s family had taken to him at the hospital on that Sunday; that he did not know how many favored his candidacy in the Sai and Manuma clans; that he would swear to support the one chosen for the title, and that his family had a clean record of always supporting the Mauga.
We have tried to set out at length the pertinent testimony of the candidates we have ranked first and second. To be sure, we have not covered all the testimony that is on the record for that is very voluminous, but yet after all this review of the evidence and testimony, there is one point which cannot fully be set down in words, namely, the individual personal demeanor, class and character of the persons as they testified and the impressions they left with the Court.
Candidate Iulio was without any doubt the individual with the most character, poise, self-assurance, education, clarity of speech and content, the most dignified looking, and inspired respect and confidence. Yet all this he reflected not through volume of speech or cockiness, but with a well-modulated blend of forcefulness and restraint, dignity and humility.
*660Never at any time did Iulio try through his testimony to emphasize the deficiencies of other candidates or to twist his testimony for self-aggrandizement. He never appeared to compromise the veracity of his testimony by uttering untruths to serve his best interests, and only seldom did he change an answer, except when it appeared that he might have misunderstood the question previously. To be sure his testimony was subjected to thorough and extensive cross-examination and challenged by counsel for the other candidates. On several occasions, Iulio tempered his testimony at the risk of appearing not to know the answer to questions. This was most obvious when on cross-examination he was repeatedly asked to talk about the Maugas prior to Pulumataala and he demurred on the ground that he did not wish to disgrace the holders of the Mauga title during the period known as the dark days before Pulumataala. Certainly he, Iulio, had the intelligence, imagination and the knowledge to have discussed those matters. The fact that he restrained himself showed great character and courage.
lulio’s wisdom in taking the risk of showing ignorance was emphasized when High Chief Leiato stood up from the audience to object strenuously to the disgracing of sacred matters when candidate Te’o was testifying on cross-examination to certain events which allegedly took place before the arrival of Christianity in Samoa. Such testimony is at best very inaccurate tradition passed from mouth to mouth and from generation to generation over the centuries, but the average candidate, fearful of being thought ignorant, will go to any lengths to relate such tradition or make up his own. Iulio showed good taste and candidness in restricting his testimony about the Mauga title holders’ tradition from Pulumataala to the present.
Iulio also showed moral courage and character in his answers when he was repeatedly, almost mockingly, questioned on cross-examination regarding his present position *661and his finances. He always kept a cool head and to a great extent gave relevant, responsive answers.
Ropati’s demeanor on the witness stand ranked him high enough to he rated second, after Iulio. He appeared impressive as the only candidate dressed in the Samoan native dress with the traditional Paogo Ulafala worn by matais. Without considering the weight of the testimony, Ropati’s impression on the witness stand as to demeanor, forcefulness, character and personality was not as favorable as Iulio’s. Ropati’s testimony appeared at first to be candid and straightforward, but the force and weight of his testimony was greatly weakened on cross-examination and by the testimony of other candidates. Some of his answers appeared to reflect not a desire to give a truthful answer but seemed prompted by what would be in his best interest to bolster his candidacy. Certainly there is nothing wrong in a person’s helping his own cause, but in the case of Ropati .too many inconsistencies appear. This and other matters tend to detract from Ropati in connection with the third and fourth issues under Section 6.0107 of the Code.
Ropati insisted throughout the trial that he still held the title Utaifeau and that he did not know of any other Utaifeau at present when all the other eight candidates testified that the title was held presently by Tutuila Hisatake and not Ropati, and others testified that Ropati had been ousted from the title. Ropati testified that the title Manuma was second in rank only to Mauga, but that hé had never attended a council meeting since he, Ropati, obtained the title Manuma, while other candidates testified that “Manuma” was not a recognized title in the Village of Pago Pago and that Ropati had never been accepted as a matai by the village.
Ropati tried to deny that anyone but himself served Mauga and .tried to detract from the services rendered by others. While there is no question that Ropati served *662Mauga Palepoi well, there is also no question that in some cases he exaggerated or misrepresented the extent of the services, as when he testified that he had spent $2,500 on the guest house and his own exhibit showed only $1,000, or when he testified as to his good relations with Mauga Pale-poi and a letter in his own exhibits reflected otherwise. Further, there was testimony that Ropati, together with many others, had split from the rest of the Mauga Family after Palepoi was awarded the title Mauga by the Court.
Ropati testified that he did not use liquor, yet Te’o testified that Ropati had slapped him while Ropati was drunk. Again, in one breath Ropati testified that he had refused to lead the dances at the request of Mauga because he did not want to appear like Mickey Mouse, and then in the next breath stated he had refused to dance because he was sick in the hospital.
Ropati testified that the title Mauga was never held by two persons at the same time, while most of the candidates agreed the title was held jointly twice, once by Lei and Manuma and also by Taufaasau and Moimoi. This Ropati claimed either because he did not know .the recent tradition of the Mauga Family, because he did not want to agree with the rest of the candidates, or for some reason did not want to reveal or accept the truth.
Ropati at different times insisted that the only three clans in the Mauga Family were the Yiavia, the Manuma, and the Sai clans, and only after several irresponsive answers did he say that the Viavia and Manuma clans were one and the same. Though he always claimed there were three clans in the Mauga Family, he never accepted that there was a Pulumataala clan or that Pulumataala had ever held the title Mauga, while the great majority of the candidates agreed that the three clans were the Sai, Manuma, and Pulumataala clans, and that Pulumataala had been the outstanding holder of the Mauga title. Ropati even denied that members of the Pulumataala clan *663were members of the Mauga Family. Here again, Ropati’s testimony reflects either that he does not know or agree with the generally accepted tradition of the Mauga title or that he was purposely being evasive and misleading in his answers. There is no doubt that there is a Pulumataala clan and that said clan has many members in the Village of Pago Pago. For a holder of the title Mauga to deny the existence of such a clan or its descendants would only lead to a great difficulty and division within the whole Mauga Family. To deny the existence of Mauga Pulumataala would be to insult the thinking and tradition of the people in all the three clans of the Mauga Family. If a matai cannot make peace within the family, he certainly will be of little value to the family, the village, or the country.
There are other discrepancies or weaknesses we could set out on the part of Ropati, such as his testimony that he had given some land to the Government, when the title to said land is still in dispute in Court, but we believe we have already said enough.
In conclusion, it is the opinion of this Court that candidate Sialega ranks first on the issue of hereditary right with one-half Mauga blood. As we have stated before, we also find that candidates Iulio, Ropati, and Lei rank second on this issue.
The Court finds that none of the candidates had the support of the majority or plurality of the clans in the Mauga Family, and we are hereby disregarding this issue in determining this issue. None of the candidates proved that he had the full support of even one of the three clans, much less a majority or plurality of them. Rather than saying we are disregarding the issue of clans, it could also be said that each of the candidates, except Aumoeualogo and Folausaua, rank equally on this issue. We hold that Aumoeualogo and Folausaua do not have the support of any portion of either of the three clans.
*664It is the finding of the Court that candidate Iulio ranks first on the third and fourth issues under Section
6.0107 of the Code, and that candidate Ropati ranks second in these same two issues. The rank of each of the candidates and the issues are already set out on pages 629, 630. This Court is of the opinion that a candidate who ranks first on the third and fourth issues under Section
6.0107 greatly prevails over a candidate who ranks highest on the first issue of hereditary right under the same section. Taking all this into consideration, this Court is of the opinion that Iulio M. Taufaasau should be registered as the holder of the matai title Mauga attached to the Village of Pago Pago.
Accordingly, it is the decision of this Court, and it is hereby ORDERED, ADJUDGED AND DECREED that Iulio M. Taufaasau be registered as the holder of the matai title Mauga, attached to the Village of Pago Pago.
The Registrar of Titles will be advised of this decree.
Court costs in the total amount of $250.00 are hereby assessed against candidates Ropati, Lei, Te’o, Sialega, Aumoeualogo, Folausaua, - Sami, and Leulua’i, each to pay $31.25 within thirty days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485365/ | OPINION OF THE COURT
MORROW, Chief Justice.
The plaintiff filed his petition claiming that the defendant was building his house on the land Si’asiaga, the communal land of the Salemeana’i Family without the plaintiff’s permission. The plaintiff prayed for “an order of injunction and eviction against the defendant” and also *666for a temporary restraining order pending hearing. The Court issued a temporary restraining order.
At the conclusion of the hearing on March 9, 1965, the Court issued the following judgment from the bench:
“Upon hearing had, both parties participating therein, the Court finds for the defendant and hereby dismisses this petition and also dissolves the temporary restraining order heretofore issued in this case. Costs in the sum of $12.50 are hereby assessed against the plaintiff to be paid within 15 days. Done Mar. 9, 1965.”
This opinion is to inform the parties as to the reasons for the judgment.
Autualevao is the matai of the Lemeana’i Family. The land Si’asiaga, according to the evidence, is the communal family land of the Lemeana’i Family. The defendant Sualua Masaniai is a member of the Lemeana’i Family. He claimed that the matai had assigned to him, as a family member, a portion of the land Si’asiaga upon which to put up a house, the assignment being in accordance with Samoan customs. The plaintiff matai denied that he had assigned such portion of the land to Sualua.
It appeared that the plaintiff, as land owner, and defendant, as building owner, had entered into a separation-of-structures-from-communal-land agreement dated August 18, 1964, and recorded October 6, 1964, in Volume 4, Register of Miscellaneous at Page 276. The defendant introduced in evidence Exhibit A which is designated a lease dated January 6, 1965, between Sualua and Fesili Masaniai, lessors, and the Bank of American Samoa, Lessee. The purpose of the separation-of-structures agreement and the lease was obviously to enable him to build his house. This lease was signed by the plaintiff as “Land Owner,” by the manager of the bank, and by the lessors. The defendant started to put up his house.
The land on which the house was to be built was described in the lease. However, shortly after the hearing *667began the Court arranged for a registered surveyor to retrace the land described in the lease and continued the hearing to March 9,1965.
Mulivanu Tuaolo, a registered surveyor, retraced the land described in the lease. He testified that Sualua’s house was started within the area retraced.
It appeared that after Sualua and Fesili had signed the lease (Exhibit A), Sualua took it to the plaintiff who was working at the Star-Kist tuna cannery and asked his matai Atualevao to sign it. Atualevao did not want to sign it without first giving it some study. Sualua left the lease with him so that he could study it. The next day he got the lease back from the plaintiff who in the meantime had signed it.
The very fact that Sualua and his matai had entered into the separation-of-structures-from-communal-lands agreement hereinbefore referred to indicates quite clearly that the plaintiff had assigned some communal land to the defendant. Otherwise, entering into this agreement by the parties thereto was a useless thing. We think the agreement signed by both parties was intended by them to be what it purported to be and not a useless thing. The signing of the separation-of-structures-from-communal-lands agreement followed by the lease agreement signed by the matai shows clearly that the land described in the lease agreement had been assigned to Sualua by the matai. Otherwise, there would have been no point in the matai’s signingthese documents.
The suggestion by counsel for Atualevao that Atualevao did not realize the effect of signing the lease agreement must be rejected. Atualevao had the agreement overnight to study. He refused to sign it when it was first presented to him in order that he could study it.
The fact of the matter is that Atualevao is a High Chief and a very intelligent man. We are convinced that he knew *668exactly what he was doing when he signed the separation agreement and the lease. His counsel cannot plead ignorance for him. As we have said, Atualevao is a very intelligent man.
Since Sualua’s house was started within the area described in the lease, as the surveyor testified, the Court concluded that the land described in the lease had been assigned by Atualevao to Sualua pursuant to Samoan customs.
This conclusion required the Court to dismiss the plaintiff’s petition, dissolve the temporary injunction and assess costs to the plaintiff. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485366/ | OPINION OF THE COURT
MORROW, Chief Justice.
On July 30, 1964, Talo, Taamai and Talaeai deeded certain land in the village of Masefau to the Government of American Samoa for a consolidated school site. On August 10, 1964, the Government filed its application to have the deeded land registered as the property of the Government “with the condition that if at any time after thirty (30) years the Government ceases to use the real property for educational school purposes the property shall revert after one (1) year of non-use for educational purposes to the original grantors.” A similar condition was in the deed to the Government. Faiumu Mana filed an objection to the proposed registration, claiming that the deeded land was the property of the Mana Family. Sialo’i Fesili also filed an objection claiming that part of his land was included in the deeded property.
The Government filed a survey of the deeded land with the application to register. Prior to the hearing the Court viewed the land involved in the presence of the Samoan parties.
The evidence is very clearly to the effect that the part of the land deeded by Talaeai had been in the possession of his family for many, many years prior to the execution of the deed (certainly since about 1920 at which time Mana testified that the Mana had given the land to the Talaeai), that his family had had plantations on it during that time and had taken the fruits from it without objection from the Mana Family. The evidence also showed that in 1929 *670the Talaeai had given permission to Masefau Village to have its school house on part of the land deeded by Talaeai, and that the school house was used by the village up to 1964 when it was taken down, the village agreeing that Talaeai could have the lumber from the building because it had been on his family’s land.
The evidence also clearly established that the part of the land deeded to the Government by Taamai had been in the possession of his family for many, many years prior to the execution of the deed and that his family had used the fruits of such land during all of that time.
The evidence also clearly established that the part of the land deeded by Talo had been in the possession of his family for many, many years and that during that time the Talo Family had used the fruits of the land.
The evidence also clearly established that the Talo people had cleaned the land deeded by the Talo for many years; that likewise the Taamai people had cleaned the land deeded by Taamai for many years; that likewise the Talaeai people had cleaned the land deeded by Talaeai for many years.
The evidence indicated clearly that when the survey of the deeded land was being made, Fesili objected to a line being run by the surveyor and that the surveyor moved the line back so that Fesili had no objection.
The testimony of Mana himself clearly establishes that the deeded land was the property of the grantors when they made their deed to the Government. He testified that the parts deeded by Talo and Taamai had been given to their predecessors in .title by his predecessor in title long before the Government was established which was in 1900. He further testified that another of his predecessors in title had given the part deeded by Talaeai to Talaeai’s predecessor in title about 1920. Mana also testified that Talo and Taamai had used the land given to them since *671before the Government was established and that Talaeai had used the land given to him after the Government was established.
Mana further testified that after the gifts were made, the Mana people (Faiumu Mana and Sialo’i Fesili are both members of the Mana Family) never made any claim of ownership of the property so given until the deed to the Government was executed.
If we were to consider the testimony of Mana alone we could come to no other conclusion than that the land conveyed to the Government was the property of the three grantors. As before indicated Mana testified that this land had been given to the grantors’ predecessors in title by his predecessors in title. If it was so given, it became the property of the donees and they could convey it to the Government. The donor had no right to reclaim ownership of the land merely because of disapproval of the deed given by the donees to the Government.
The testimony of the witnesses for the three grantors and the Government leads to only one conclusion and that is that this deeded property was the property of the grantors at the time of the execution of the deed to the Government. It follows, therefore, that the deeded land should be registered as the property of the Government subject to the condition contained in the deed to it.
DECREE
Accordingly it is hereby ORDERED, ADJUDGED AND DECREED that the following land be registered as the property of the Government of American Samoa:
Beginning at a concrete monument which has coordinates Y=314,477.03 and X=277,238.65, American Samoa Datum 1962; thence running from said point of beginning on azimuth 342°29'47" a distance of 277.30 feet; thence on azimuth 238°29'30" a distance of 199.81 feet; thence on azimuth *672221°55'33" a distance of 129.05 feet; thence on azimuth 154°20T8" a distance of 64.62 feet; thence on azimuth 66°18'35" a distance of 121.53 feet; thence on azimuth 153°17'31" a distance of 24.53 feet; thence on azimuth 153°26'58" a distance of 107.47 feet; thence on azimuth 153°26'58" a distance of 30.00 feet; thence on azimuth 65°48'10" a distance of 150.46 feet; thence on azimuth 342°29'47" a distance of 30.00 feet to the point of beginning. Containing 1.419 acres or less.
subject to the condition that if at any time after thirty (30) years the Government ceases to use the above described property for educational school purposes, such property shall revert after one (1) year on non-use for educational purposes to the Talo, Taamai and Talaeai titles.
Costs in the sum of $10.00 are hereby assessed against Faiumu Mana and Sialo’i Fesili, each to pay $5.00 within thirty (30) days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485367/ | OPINION OF THE COURT
MORROW, Chief Justice.
On October 8, 1964, Muliufi filed his application with the Registrar of Titles to have the land described as Yaitafe in the village of Pago Pago registered as the individually owned land of “Muliufi, Lusia and Heirs.” The application was accompanied by a survey of the land offered for registration.
On October 13, 1964, Komiti Puluti of Pago Pago filed an objection to the proposed registration claiming that the land Yaitafe was the individually owned land of Pisa’s children. Komiti is the widow of Puluti Pisa who died in 1959, leaving Komiti and their nine children surviving him. The records of the Probate Court show that Pisa, Puluti Pisa’s father, left a will (recorded in Vol. 4, Miscellaneous, page 166) by which he devised all of his property to his son Puluti. Pisa died on October 18,1950.
*674On December 7, 1964, Leulu Malaga filed an objection to the proposed registration claiming the land offered for registration was “the communal land of Tua’olo So’o and his sister,” and stating that she was a member of the Tua’olo family.
By letter dated December 15,1964, Robert F. Porter, as counsel for Mrs. Katelina Ilaoa of San Francisco, wrote the Chief Justice claiming that the land Vaitafe was Katelina’s, having been inherited by her from her father Tua’olo (deceased). This letter was filed with the Clerk of the High Court on December 22, 1964. Katelina’s objection not having been filed within 60 days from October 8, 1964, the date the application to register was filed, cannot be considered, such objection having been made too late. See Section 10.0112 of the A. S. Code, 1961 Edition.
The evidence in this case is in serious conflict. However, we believe that the weight of evidence is clearly to the effect that the land in dispute is not the property of Muliufi, Lusia and heirs. Certain property adjoining the land in dispute and lying on the southwest side of it was registered in the name of Muliufi and Lusia in July, 1947 in Vol. 1, Native Titles, Pages 410-411. Muliufi claims that the land so registered together with the land in dispute was given to him and Lusia, his wife, by Tua’olo So’o in return for service by them to Tua’olo So’o. We believe from the evidence that the land so registered was given to Muliufi and Lusia by Tua’olo So’o in return for service but that .the land given did not include the land in dispute.
Komiti claims that the land in dispute has been occupied by herself and her children for many years and that during that time they have cleaned it. We believe from the evidence that this is true. Possession of real property creates a presumption of ownership. I Jones on Evidence (4th Ed.) 133.
We also believe that the weight of evidence is to the effect that Siautau, who was So’o’s brother, sold the dis*675puted land ,to Fa’atuiese for a cow and that Pisa who was married to Molitiu, derived ownership thereof from Fa’atuiese, who was his mother-in-law. We think that the testimony of witnesses Leulu Malaga and Sesepasara indicates that. As we have already stated Pisa died in 1950 leaving all of his property to Puluti Pisa who died in 1959, leaving objector Komiti, his wife, and nine children surviving him.
It is our conclusion that the weight of evidence is to the effect that the land in dispute is the property of Komiti and her nine children, she having an undivided one third interest therein by way of dower (see section 8.0103 of the A. S. Code, 1961 Edition) and each of her nine children having an undivided 2Í27ths interest therein.
DECREE
Accordingly it is ORDERED, ADJUDGED AND DECREED that the application to register the land Yaitafe as the individually owned land of Muliufi, Lusia and Heirs be and the same is hereby denied. And it is further ORDERED, ADJUDGED AND DECREED that the land Vaitafe, as shown on the survey accompanying such application and described as follows:
“Beginning at a concrete monument having coordinates X=251,021.36 and Y=307,464.73, American Samoa Datum of 1962, thence leaving said point of beginning on azimuth 220° 43'56" a distance of 73.16 feet to a concrete monument flush with the ground having coordinates X=250,973.64 and Y=307,409.30, leaving said monument on azimuth 132°25'15" a distance of 116.50 feet to an iron pin 2 feet from edge of the existing Fagasa Road, thence on azimuth 246°34/10" a distance of 17.40 feet to a concrete monument having coordinates X=251,943.67 and Y=307,323.79, leaving said monument on azimuth 318°24'25" a distance of 171.32 feet to a concrete monument having coordinates X=250,942.94 and Y=307,451.92 thence continuing along the said azimuth a distance of 6 feet to a point in the center of the stream, thence leaving said point *676on azimuth 55°49'26" a distance of 16.68 feet to a point center of the stream thence leaving said point on azimuth 89°00'04" a distance of 28.68 feet to a point center of the stream thence leaving said point on azimuth 70°20'15" a distance of 18.01 feet to a point center of stream, thence leaving said point on azimuth 112°21'20" a distance of 25.16 feet to a point center of the stream, thence on azimuth 88°09'09" a distance of 16.44 feet to a point center of the stream, thence leaving said point in the center of the stream on azimuth 220°43/56// a distance of 9.00 feet to the concrete monument, point of beginning.
containing 9.116 acres more or less, shall be registered as follows: one undivided one third interest in such land as the individually owned land of Komiti Puluti and an undivided 2b7th interest in such land as the individually owned land of each of Komiti Pulitf s nine children, viz. Molitui, Simau, Julie, Annie, Puluti Jr., Magalo, Aukuso, Tinolepaia, and Sai’aemoe.
Costs in the sum of $20.00 are hereby assessed against Muliufi, the same to be paid within 20 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485368/ | OPINION OF THE COURT
ROEL, Associate Justice.
On September 25,1963, Poutoa Ape, hereinafter referred to as Applicant, filed his application with the Registrar of Titles to be registered as the holder of the matai title Ape, attached to the village of Olosega in Manua. Three objections were initially filed to the registration by Poutoa Ape, by Laitiiti To’oto’o on October 10, 1963, by Tupulua Tagaloa on October 23, 1963 and by Vave A. Ape on November 4, 1963, each of the three objectors claiming to have a better right to the title than the Applicant. This resulted in each of the Objectors and the Applicant becoming candidates for the Ape title.
Objector Vave A. Ape by letter dated April 5, 1965 addressed to the Clerk of the High Court asked that his objection be withdrawn. Before the start of the case on the day of trial, Objector Tupulua Tagaloa asked leave of the Court to withdraw his objection. The withdrawing by two of the original objectors left only Poutoa Ape, Applicant and Laitiiti To’oto’o, Objector, as candidates for the Ape title.
Section 6.0101 of the Code of American Samoa sets out the basic qualifications which a person must have to be eligible to succeed to a matai title.
It is clearly established from the evidence that each of the two candidates herein is eligible to be registered as the holder of a matai title.
Section 6.0107 of the Code sets out the considerations which shall guide the Court in determining which of the candidates shall be registered as the holder of a matai title. It reads as follows:
*678“Sec. 6.0107 — CONSIDERATION GIVEN BY COURT:
In the trial of matai title cases, the High Court shall be guided by the following considerations, in the priority listed:
First: The best hereditary right in which the male and female descendants shall be equal in families where this has been customary, otherwise the male descendant shall prevail over the female.
Second: The wish of the majority or plurality of those clans of the family as customary in that family.
Third: The forcefulness, character, personality, and knowledge of Samoan customs.
Fourth: The value of the holder of the matai title to the family, the village, and the country.”
After considering the testimony and the evidence it is the opinion of this Court, and we so find, that both the Applicant and the Objector rank equally on the issue of hereditary right, each of them having one-fourth Ape blood.
In connection with the issue of the wish of the majority or plurality of the clans, it is the opinion of this Court, from the testimony and the evidence, that there are three (3) clans in the Ape family, the same being the Auvasa, the Ulufanua and Siomia clans. The Court further finds that the Applicant is favored by two whole clans and one-half of the third clan. Accordingly, it is the opinion of this Court that applicant Poutoa Ape prevails over the objector Laitiiti To’oto’o on the issue of the wish of the majority or plurality of those clans of the family as customary in the Ape family.
After considering the testimony, evidence and argument, and taking into specific account the demeanor, personality, presence of mind, the clarity, speed and correctness with which the answers were given, the self-confidence and other qualities reflected from the speech and behavior of the candidates, this Court is of the unanimous opinion that *679candidate Poutoa Ape, applicant, prevails over candidate Laitiiti To’oto’o, objector, in the third consideration under Section 6.0107 in the issue of forcefulness, character, personality, and knowledge of Samoan customs.
It is further the unanimous opinion of this Court, after considering the testimony and the evidence, that the applicant Poutoa Ape, prevails over objector Laitiiti To’oto’o in connection with the value of the holder of the maitai [sic] title to the family, the village, and the country, as set out in the forth [sic] issue in Section 6.0107 of the Code of American Samoa.
Since we find that applicant, Poutoa Ape, prevails over objector Laitiiti To’oto’o in the second, third and forth [sic] issues under Section 6.0107 and that each of the two candidates rank equally in the issue of hereditary right, it follows that the applicant, Poutoa Ape, should be registered as the holder of the matai name Ape attached to the village of Olosega, Manua.
Accordingly, it is the unanimous decision of this Court, and it is hereby ORDERED, ADJUDGED AND DECREED that Poutoa Ape be registered as the holder of the matai title Ape, attached to the village of Olosega, Manua.
The Registrar of Titles will be advised of this decree.
Court costs, in the amount of $25.00 to be paid by objector Laitiiti To’oto’o within 30 days.
Done this 7th day of May, 1965. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485369/ | OPINION OF THE COURT
MORROW, Chief Justice.
On April 14, 1965 Aumavae T. as land owner and Togiva Striplin as building owner entered into a separation-of-structure agreement pursuant to Chapter 12.02, Section 12.0201 of the American Samoa Code, 1961 Ed. The parties to the agreement described the land on which the building was .to be erected as the communal family land of Aumavae T. “generally known as Pua Pua (Toefisia) .”
In the case of Aumavae, Magalei and Satele v. Tolouma of Iliili, No. 4-1927 (H.C. of Am. S.), heard at Fagatogo on July 30 and 31 and August 8, 1930 it was “Ordered, Adjudged and Decreed that the title to the land . . . Toefisia” was in Toloumu of Iliili. Toefisia was thus the individually owned land of Toloumu. He died in 1931. It appears that he left surviving him 3 children by his first wife, viz. Aumavae T., Malama, and Fetuia’i and three children by his second wife, viz. Saimaalili, Paileulu and Esi. His second wife Fale also survived Toloumu. The children by Fale were minors. Fepuleai was appointed guardian for them and he was authorized, as guardian, to execute for them a deed to Toefisia to Saiselu Meredith “if in his judgment as guardian” it was in their interest to dispose of Toefisia. Fepuleai, as guardian of the three minors, and Fale, their mother, deeded Toefisia to Saiselu Meredith by deed dated September 1, 1932 and recorded in Vol. II, Register of Transfers at pp. 180-190. Toefisia is registered in Vol. I, Native Titles at pp. 200-202.
Saiselu Meredith passed away some years ago leaving a number of children surviving her of whom objector David Meredith is one.
*682From the foregoing it is apparent that the land Toefisia is the individually owned land of the children of Saiselu and the children of Toloumu by his first wife. There was no evidence that either Toloumu or Saiselu left wills.
We cannot order the separation-of-structure agreement executed by Aumavae T. and Togiva Striplin recorded pursuant to Section 12.0204 of the American Samoa Code, 1961 Ed. for two reasons. The first is that the land Toefisia is not communal land as it is described in the separation agreement. The second is that Aumavae T. is not the owner, but only one of a number of owners of Toefisia. Section 12.0202 of the American Samoa Code, 1961 Ed. provides that “if the person seeking to separate a structure from individually owned lands or freehold lands is the owner of the lands upon which the structure is or is to be erected, the agreement shall be executed by such owner.”
As we have said Aumavae T. is not the owner of Toefisia. He is only one of a number of owners of the land. The owners, who are tenants in common of the property, have not signed the agreement, only one of them has, viz. Aumavae T.
ORDER
Accordingly it is ORDERED that the Registrar of Titles shall NOT record the separation-of-structure agreement executed by Aumavae T. and Togiva Striplin on April 14, 1965. Pursuant to Section 12.0204 of the American Samoa Code, 1961 Ed., such agreement is null and void.
Costs in the amount of $8.00 are hereby assessed against Aumavae T., the same to be paid within 20 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485371/ | *689OPINION OF THE COURT
ROEL, Associate Justice.
On February 24, 1965, Ativalu Tago, hereinafter referred to as Applicant, filed his application with the Clerk of the High Court to be registered as the holder of the matai title Maga, attached to the village of Masefau. Fesili Sialo’i and Ailua Maga filed their objections on March 16, 1965 and March 17, 1965, respectively. Each of these two objectors claimed to have a better right to the title than the Applicant. This resulted in the Applicant and each of the Objectors becoming candidates for the Maga title.
After considering the testimony and the evidence regarding the basic qualifications under Section 6.0101 of the Code, it is the unanimous opinion of this Court that the Applicant and Objector Ailua are eligible under said section to be registered as the holder of a matai title. It is further the unanimous opinion of this Court that Objector Fesili Sialo’i does not meet the basic qualifications to be considered to be registered for the Maga title. This is evident from Fesili’s own testimony and other irrefutable evidence that Fesili was never selected by his family as a candidate for the title as required under paragraph 3 of Section 6.0101. Accordingly, Fesili will not be considered by this Court for the Maga title. That leaves the Court with the choice between the Applicant and Objector Ailua.
After considering the testimony and the evidence, it is the unanimous opinion of this Court, and we so find, that Objector Ailua has 100 % Maga hereditary right and that the Applicant has one-fourth hereditary right, and that Objector Ailua prevails over the Applicant on the issue of hereditary right. It was argued by counsel for the Applicant that Ailua at most had one-half hereditary right, even though Ailua had himself held the title Maga, for the reason that Ailua had been deprived of his title as a result *690of a Court action arising from a petition by members of the family for his removal. The evidence was irrefutable and uncontroverted that immediately after the Court proceedings removing Ailua as the holder of the Maga title, the Maga family undeniably nominated Ailua and the Applicant for the title, and that a choice was to be selected only between the two of them. After being unable to agree on which of the two was to hold the title, it was agreed between the two of them that Ativalu was to make application to register the title and that Ailua was to file as an Objector. In effect they both agree to let the Court make the decision between the two of them.
Even though this may be the first time any candidate for a title has been found to hold 100% hereditary right, nevertheless we believe Objector Ailua is entitled to such a finding. Here was a first instance where a candidate who filed for a title had once previously held that same title and registered it. The fact that he was later on removed by petition of the family cannot change the fact that he once held the title. There is nothing in the statute that makes a removal from holding a title a crime. At any rate Title VI of the Code is silent on this point.
In connection with the second issue regarding the wish of the majority or plurality of the clans as customary in the family, it is the opinion of this Court that the testimony and .the evidence failed to establish clearly which of the two eligible candidates had the support of the majority or plurality of the clans, or which were the customary clans in the family. Each of the two eligible candidates claimed there were four clans in the family, but each had different names for the clans. It is the opinion of this Court, and we so hold, that neither of the two eligible candidates herein had the support of the majority or plurality of the clans as customary in the Maga Family. Accordingly, the Court is disregarding this issue in arriving at its decision, *691which has the effect of holding that both candidates rank equally on this issue.
After considering the testimony, evidence, and argument, and taking into consideration the demeanor, personality, presence of mind, the clarity, speed and correctness with which the answers were given, the self-confidence and other qualities reflected from the speech and behavior of the candidates, this Court is of the unanimous opinion that each of the two candidates, Ativalu and Ailua, rank equally on the third consideration under Section 6.0107 of the Code on the issue of forcefulness, character, personality and knowledge of Samoan customs. Accordingly, we hold that both Ativalu and Ailua rank equally on this third issue.
It is further the unanimous opinion of the Court, after considering the testimony and the evidence, that each of the two candidates, Ativalu and Ailua, rank equally on the fourth consideration under Section 6.0107 of the Code on the issue of the value of the holder of the title to the family, the vallage [sic] and the country.
Since we find that the Objector, Ailua, prevails over the Applicant on the issue of hereditary right, and that both Ativalu and Ailua rank equally on the third and fourth issues, it follows that the Objector, Ailua Maga, should be registered as the holder of the matai title Maga, attached to the village of Masefau.
Accordingly, it is the unanimous decision of this Court, and it is hereby ORDERED, ADJUDGED AND DECREED that Ailua Maga be registered as the holder of the matai title Maga attached to the village of Masefau.
The Registrar of Titles will be advised of this decree.
Court costs in the amount of $25.00 to be paid by Applicant Ativalu and Objector Fesili each to pay $12.50 within 30 days.
Done this 19th day of July, 1965. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485372/ | ORDER OF PAYMENT OF ARBITRATION AWARD and ORDER MAKING THE GOVERNMENT OF AMERICAN SAMOA THE LAWFUL OWNER OF PARCEL NO. 1 CONSISTING OF 49.253 ACRES, MORE OR LESS, UPON PAYMENT OF ARBITRATION AWARD.
Pursuant to the Opinion and Decree of this Court in Case No. 132-1962, dated February 19, 1964, establishing and determining the ownership of the land included in Parcel No. 1, consisting of 49.253 acres, more or less, and further;
Pursuant to the findings of the Arbitration Board to determine the value of said land, filed with this Court on June 9,1965, and;
*693The Court finding that there was no appeal to the finding of the Arbitration Board as to the value of the land and other property taken within the statutory period or up to two months after the Arbitration Award was filed, except an appeal filed by the Government of American Samoa, which appeal was later dismissed on August 5, 1965, it is hereby ORDERED, ADJUDGED AND DECREED as follows:
1. That the Arbitration Award setting out the value of the land and reading as follows:
The Board of Arbitrators by unanimous vote has agreed to award the following sums to the landowners, in acquisition of land for site for the Department of Public Works and necessary buildings, functions and installation at Tafuna.
“cultivated plantation land acres $ 650.00 per acre
“compensation for house of Niue which was torn down 2,900.00
“uncultivated land areas 300.00 per acre
and filed in this Court on June 9, 1965 is hereby accepted by the Court as reflecting the true value of the land and property thereon as of the date of the Arbitration Award. The Court further finds that no appeal from said award exists.
2. That the total amount of land in Parcel No. 1, consisting of 49.253 acres, more or less, is the jointly owned property of the four (4) families comprising the Leusoali’i, mainly the Lavatai Family, the Fagaina Family, the Leapaga Family, and the Maluia Family. It is ordered by the Court that the said four families jointly be paid for 49.253 acres of land at the rate of $300. per acre, the value awarded by the Arbitration Board for uncultivated land areas, as of the date the Award was filed. That the said four families shall be paid the amount of $14,775.90, *694the total value being the value set for said land by the Arbitration Board as of the date of the filing of the Award.
3. That Niue is the owner of the house situated in Parcel No. 1 and later torn down, and that Niue should be paid the amount of $2,900. for said house, this value set by the Arbitration Board as of the date the award was filed.
4. That Niue is the individual owner of five (5) acres of the plantations only, situated in Parcel No. 1, and that he shall be compensated therefor at the rate of $350. per acre, said value being arrived at by subtracting the value of uncultivated land acres ($300. per acre) from the value of cultivated plantation land acres ($650. per acre), as set out by the Arbitration Board as of the date the Award was filed. That Niue shall be paid the amount of $1,750. for his five (5) acres of plantations.
5. That Isumu Leapaga is the individual owner of three (3) acres of the plantations only, situated in Parcel No. 1, and that he shall be compensated therefor at the rate of $350. per acre. That Isumu Leapaga is to be paid the amount of $1,050. for his three (3) acres of plantations.
6. That Elisaia is the individual owner of one (1) acre of the plantations only situated in Parcel No. 1, and that he shall be compensated therefor at the rate of $350. per acre. That Elisaia is to be paid the amount of $350. for his one (1) acre of plantations.
It is further ORDERED, ADJUDGED AND DECREED by the Court that the Government of American Samoa shall be the lawful owner in fee simple of all the land included in Parcel No. 1, as reflected by the plat and metes and bounds survey thereof, as filed with the papers of cause No. 132-1962, High Court of American Samoa, upon payment of the required sums to the parties as set out in paragraph 2 through 6 of this Order, and filing of receipts of *695payment by the Government with the Clerk of the High Court of American Samoa.
Payment by the Government of American Samoa is to be completed and made to the parties within thirty (30) days of the date of this order, provided that the Government of American Samoa may deposit all or part of said money in trust in the Bank of American Samoa within said 30 days for the benefit of the parties to be compensated, and that .the depositing of said money for the benefit of said parties shall constitute payment for the purpose of passing title of said 49.233 acres to the Government of American Samoa. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485373/ | *696OPINION OF THE COURT
ROEL, Associate Justice.
On July 12, 1965, Maui’a Aumoeualogo, hereinafter referred to as Applicant, filed his application with the Clerk of the High Court to be registered as the holder of the matai title Aumoeualogo, attached to the village of Aoa. Sualua, Sefulu, and Keniseli filed their objections on August 12, 1965, August 12, 1965, and August 13, 1965, respectively. Each of these three objectors claimed to have a better right to the title than the Applicant. This resulted in the Applicant and each of the three objectors becoming candidates for the Aumoeualogo title.
After considering the testimony and the evidence regarding the basic qualification under Section 6.0101 of the Code, it is the unanimous opinion of this Court that the Applicant and each of the three objectors are eligible under said section to be considered as the holder of a matai title.
After considering the testimony and the evidence, it is the unanimous opinion of this Court, and we so hold, that Objector Sefulu and Applicant Maui’a each have V2 Aumoeualogo hereditary right, and that Objectors Sualua and Keniseli each have Vs Aumoeualogo hereditary right. Accordingly we hold that Sefulu and Maui’a, each having V2 hereditary right prevail over Sualua and Keniseli on this issue, and that Sefulu and Maui’a rank equally on the issue of hereditary right.
In connection with the second issue regarding the wish of the majority or plurality of the clans as customary in the family, it is the opinion of this Court that the testimony and the evidence failed to clearly establish which of the four candidates had the support of the majority or plurality of the clans, or even which were the customary clans in the family. Each candidate variously placed the number of *697clans at 1, 5, 6, and 2. Aside from differing on the number of clans in the family they also had different names for the clans. It is the opinion of this Court, and we so hold, that none of the four candidates herein had the support of the majority or plurality of the clans as customary in the Aumoeualogo Family. At any rate the Court can clearly arrive at the candidate best qualified to hold the title without deciding this issue of elans. Accordingly, the Court is disregarding this second issue in arriving at its decision. Nevertheless, this is only one more instance where the statute dealing with Matai Titles has for a long time cried out for a definition and clarification of the word “clan” on the part of the legislature.
After considering the testimony, evidence, and argument, and taking into consideration the demeanor, personality, presence of mind, the clarity, speed, and correctness with which the answers were given, the self-assurance and other qualities reflected from the speech and behavior of the candidates, this Court is of the unanimous opinion that Applicant Maui’a ranks first on the third consideration under Section 6.0107 of the Code on the issue of forcefulness, character, personality, and knowledge of Samoan customs. It is the opinion of the Court that candidate Sefulu ranks second, candidate Keniseli ranks third, and candidate Sualua ranks fourth in this same issue. Accordingly, we hold that Maui’a prevails over each of the other three candidates on the issue of forcefulness, character, personality, and knowledge of Samoan customs.
It is further the unanimous opinion of this Court, after considering the testimony and the evidence, that Applicant, Maui’a, ranks first on the fourth consideration under Section 6.0107 of the Code on the issue of the value of the holder of the title to the family, the village, and the country. The Court further finds that candidates Sefulu, Keniseli, and Sualua, rank second, third, and fourth respec*698tively on this issue. Accordingly, we hold that Applicant, Maui’a, prevails over the other three candidates on the fourth issue regarding the value of the title holder to the family, the village, and the country.
Since we find that Applicant Maui’a ranks first in the third and fourth issues, and that he ranks equally with Sefulu on the 1st issue of hereditary right, it follows that the Applicant, Maui’a Aumoeualogo should be registered as the holder of the matai title Aumoeualogo, attached to the village of Aoa.
Accordingly, it is the unanimous decision of this Court, and it is hereby ORDERED, ADJUDGED AND DECREED that Maui’a Aumoeualogo be registered as the holder of the matai title Aumoeualogo attached to the village of Aoa, upon his resignation from any matai title he may presently hold within three weeks from the date of this decree, which is September 24,1965.
The Registrar of Titles will be advised of this decree.
Court costs in the amount of $27.00 are hereby assessed against the three objectors, Sualua, Sefulu, and Keniseli, each to pay the amount of $9.00 within 30 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485374/ | OPINION OF THE COURT
ROEL, Associate Justice.
Came on to be heard the above-entitled and numbered cause wherein Plaintiff, Moananu Liuone, on September 13, 1965 filed a petition for mandatory injunction against the Defendant Tauvale, seeking to prevent the Defendant from planting flowers and coconut trees which the Plaintiff claimed could block his way of ingress and egress into his house.
All the three Judges of the Court viewed the land in question in the presence of the interested parties on September 27,1965.
We will not set out in detail all the testimony and the evidence brought to light at the time since it is all a part of the record.
The testimony of the Plaintiff revealed that he had lived behind Defendant’s property since 1960; that before he built his house he, the Plaintiff, sought permission from the Defendant to have four loads of materials to build his house, and that the Defendant granted said permission; *700that the Plaintiff is living in Tua land and not the Defendant’s land; that the Plaintiff has never owned a car since living behind Defendant’s property and does not own one now; that the Plaintiff’s house is situated between 100 and 200 feet from the edge of the highway; that over the past five years the Defendant on a few occasions has permitted Plaintiff to be driven over her land to Plaintiff’s house.
The Plaintiff testified that he has driven over Defendant’s land only very seldom. Plaintiff insists that the flowers and trees the Defendant has planted all along her yard facing the road should be removed because he is old and blind and it interferes with his right to get to his house from the road in an automobile. The Plaintiff admits that the land in question is definitely the property of the Defendant.
The only witness other than himself produced by the Plaintiff testified that the Defendant had given Plaintiff permission to go over her land only to carry the four loads of building materials for Plaintiff’s house.
The Defendant testified that she was the owner of the land in question and had lived there all her life, 53 years, and that her parents lived there before her. She further testified that in 1960 she had given the Plaintiff permission to have vehicles go through her land only to carry the four loads of building materials; that there was an access public road to Plaintiff’s house other than through her land; that until recently cars going to Plaintiff’s house used Haleck’s land west of the theater, but that a fence had recently been erected by Haleck to prevent passage of vehicles.
The Defendant testified that she was trying to beautify her property facing the highway; that all her property is planted with a grass lawn; that there were some family graves on the land through which plaintiff wanted to drive vehicles; that in order ,to keep her property looking nice *701she allows no behicles [sic], not even her own family’s, on the land in question; that there is ample room between the edge of the highway and her garden — about 25 to 30 feet — for vehicles to park; and that she has never refused Plaintiff permission to walk over her property to get to his house, and that she is always willing to consent to passage of vehicles over her property in case of emergency.
In viewing the land the Court observed that the front lawn of Defendant’s property is well kept and that the additional flowers and trees she has recently planted will greatly enhance the beauty of the property. Further, the Court found no signs that there were any vehicle tracks to indicate that the Plaintiff had created a permissive or prescriptive easement to operate vehicles over the Defendant’s land. The Court further finds that the walking distance from the edge of the road to the Plaintiff’s house is very short and is of no or little inconvenience to the Plaintiff, and that the allowing of vehicles to run over Defendant’s land would greatly damage and detract from the beauty of Defendant’s property and desecrate the burial places thereon.
After considering the testimony, the evidence, and the argument of counsel for both sides, as well as the information gained by the Court when he viewed the land, it is the unanimous opinion of this Court that the Plaintiff, Moananu Liuone, failed to prove by the preponderance or the greater weight of the evidence that he was entitled to the mandatory injunction he sought against the Defendant. It is further the unanimous opinion of this Court that Plaintiff’s petition for injunction be and the same is hereby denied and dismissed.
Accordingly, it is hereby OEDEEED, ADJUDGED AND DECEEED that the plaintiff’s petition be, and the same is hereby denied and dismissed.
*702Court costs in the amount of $10.00 to be paid by Plaintiff, Moananu Liuone within 30 days.
Done this 1st day of October, 1965. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485375/ | OPINION OF THE COURT
ROEL, Associate Justice.
On August 31, 1965, Tapu Taylor, hereinafter referred to as Applicant, filed his application with the Clerk of the High Court to be registered as the holder of the matai title “Avalogo,” attached to the Village of Tafuna. On September 29, 1965, Soia Solaita, hereinafter referred to as Objector, filed her objection to the registration of the title by the Applicant on the grounds that she, the Objector, had a better right to the title. This resulted in both the Applicant and the Objector becoming candidates for the *703title Avalogo. We will not go into detail into the testimony and the evidence since it is all in the record.
After considering the testimony and the evidence, it is the opinion of this Court that the Applicant is eligible to be registered as the holder of a matai title in connection with the basic qualifications as set out in Section 6.0101 of the Code. In this connection we are satisfied that the Applicant was chosen by the members of the Avalogo Family living in Tafuna, the village to which said title is attached. We question whether the Objector was chosen by the Ava-logo Family and are satisfied, from her own testimony, that none of the family members living in Tafuna selected her for the title. However, in view of the ambiguity of the statute, and in the best interest of the Avalogo Family in filing a title vacancy that has existed for many years, we are holding that both the Applicant and the Objector are eligible under the basic qualifications as set out in Section 6.0101 of the Code.
After considering the testimony and the evidence, it is the unanimous opinion of this Court and we so find, that the Applicant, Tapu Taylor, has one-half 0/2) hereditary right. Objector, Soia, claimed she guessed she had 20% hereditary right, which is an impossible title blood percentage. We find that the Objector presented no evidence as to her hereditary right. Accordingly, we find that the Applicant prevails over the Objector on the issue of hereditary right.
In connection with the second issue regarding the wish of the majority or plurality of the clans, we find that there are six (6) clans in the Avalogo Family. We further find that neither the Applicant nor the Objector were favored by the wish of the majority or plurality of the clans in the family. Accordingly, we are disregarding this issue of clans in the selection of the title holder.
After considering the testimony, evidence and argument, and taking into specific account the demeanor, personality, *704presence of mind, the clarity, speed and correctness with which the answers were given, the self-confidence and other qualities reflected from the speech and behavior of the candidates, this Court is of the unanimous opinion that Applicant Tapu Taylor prevails over Objector Soia in the third consideration under Section 6.0107 on the issue of forcefulness, character, personality, and knowledge of Samoan customs.
It is further the unanimous opinion of this Court, after considering the testimony and the evidence, that the Applicant, Tapu Taylor, prevails over the Objector, Soia, in connection with the value of the holder of the matai title to the family, the village, and the country, as set out in the fourth issue in Section 6.0107 of the Code of American Samoa.
Since we find that the Applicant, Tapu Taylor, prevails over Soia on the first, third and fourth issues, it follows that the Applicant, Tapu Taylor, should be registered as the holder of the matai title Avalogo, attached to the Village of Tafuna.
Accordingly, it is the unanimous decision of this Court, and it is hereby ORDERED, ADJUDGED AND DECREED that Tapu Taylor be registered as the holder of the matai title Avalogo attached to the Village of Tafuna.
The Registrar of Titles will be advised of this decree.
Court costs in the amount of $12.50 to be paid by Objector Soia Solaita within 30 days.
Done this 19th day of November, 1965. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485376/ | OPINION OF THE COURT
ROEL, Associate Justice.
This hearing grew out of two objections made to the application to register a certain instrument with the Registrar of Titles. The notice posted in front of the Adminis*706tration Building by the Registrar of Titles from August 18, 1965 to September 24, 1965 identified the instrument sought to be recorded as a Separation of Structure Agreement, and names James M. Betham, Mere T. Betham, and Bank of American Samoa as the applicants for the recordation of said instrument.
On August 20, 1965, Paopaoailua, Lafoa’i Brown and Fiapapalagi filed an objection which reads as follows:
“We, the undersigned are members of Tufono Family of Fagatogo, American Samoa do hereby file and [sic] objection on the Lease made by and between Tufono as one party and Mr. & Mrs. Mere Betham as the other party on the ground that we have better rights to this land than these two parties.”
On September 17, 1965, a second objection was filed by Toamalama Tufono. It reads as follows:
“I, Toamalama Tufono hereby files an objection to the lease between James M. Betham, Mere T. Betham and the Bank of American Samoa and Tufono which lease is now on file with the Office of the Registrar of Titles. I file this objection for myself, and for the heirs of Tufono Selusi who is my father.
“The instrument on file is both a lease and separation agreement, the two should be separated.
“In paragraph Ten (x) of the lease, it treats the instrument as a separation agreement and there it does not say how long the Tufono Family should be bind by this agreement. Further I object to the recording of this instrument because it does not say whether the parties to the separation are members of the Tufono Family.
“I am forwarding a copy of this to the Land Commission where I ask to be heard and I intend to prove to the Commission of how our family communal land will be improperly alienated if this lease is approved.”
We will first consider the nature of the instrument which is now in question and the subject of this litigation. Said instrument is on file herein and part of the record.
Though the instrument is titled “Lease” we hold it is not a lease. It is a hybrid between a Separation of *707Structure Agreement and a conditional, negative or contingent lease. It could also be interpreted as a cross between a Separation of Structure Agreement and a contingent lease or a chattel mortgage. The conditional, negative or contingent lease is operative, under the instrument in question, only upon the failure on the part of Mr. and Mrs. Betham to make payments to the Bank of American Samoa on a loan of $12,500. which is to be used to build a house upon the land in question. There is no time limit or rental agreement set out in the instrument.
The last paragraph of the instrument reads as follows:
“This agreement is made in accordance with the provisions of Chapter 12.02 of the Code of American Samoa (Section 12.0201) and shall be binding upon the parties hereto and his heirs, devises, legatees, legal representatives and assigns as soon as it is recorded in accordance with the law.”
For the purposes of arriving at a decision on this matter, the Court will consider the instrument in question as creating two separate relationships between the parties thereto. We believe that the instrument reflects a separation of structure agreement between James and Mere Betham as owners of the house to be constructed on the land in question and Kisi T. Tufono, matai of the Tufono Family as the owner of the land.
The second relationship reflected in the instrument is a chattel mortgage by James and Mere Betham on the house to be constructed in favor of the Bank of American Samoa to secure a loan obtained by the Bethams from the Bank. The fact that the instrument is titled a lease or gives the Bank the right to sub-lease the house in case of default by the Bethams does not change the fact that all the Bank has is a chattel mortgage. Under the instrument in question the Bank acquires no interest whatsoever in the land. There is no alienation of land or interest thereon contemplated in the agreement between the Bethams and the Bank.
*708“A paper cannot be considered as a ‘lease’ where it does not identify the premises or state when the term is to begin or upon what dates the rent is payable.” (Huntz v. Mohrenholz, 88 N.Y.S. 1002 — W & P, Vol. 24, p. 413.)
“No particular words are necessary to create a ‘lease’ but whatever is sufficient to show that one party shall divest himself of possession and the other party shall come into it for a determinate time and for a fixed rental amount to a lease.” (Metler v. Gordon, 129 N.E. 809 — W & P, Vol. 24, p. 466.)
“So the words ‘demise’, ‘lease’, ‘lessors’, ‘lessees’, and like words, specially appropriate to a contract between the owner and tenant for years, have no bearing, if the contract is in fact not a lease.” (Lehigh & Wilkes-Barre Coal Co. v. Wright, 177 Pa. 387 — W & P, Vol. 24, p. 466.)
Section 12.0201 of the Code of American Samoa, 1961 Edition, referred to in the last paragraph of the instrument in question reads as follows:
“Section 12.0201 — Agreement: The matai in charge of communal lands belonging to his family or the male members of the family owning and residing on communal lands, as the case may be, or the owner of individually owned lands or freehold lands, shall have the power and authority, as hereinafter limited, to agree with any person that any structure now existing or hereinafter erected on such lands shall not be or become a part of the real estate, but shall remain separate and distinct therefrom subject to ownership separate from the land, and also subject to the right of removal by the owner of the structure. Any agreement made under the authority of this section shall be reduced to writing and offered to the Registrar of Titles for recording. After the recording has been completed in accordance with the terms of this chapter and subject to the restrictions provided by law, any person may obtain a lien or encumbrance on the structure which may be foreclosed or enforced as though the structure were personal property.”
Paopaoailua, Lafoa’i Brown and Fiapapalagi filed an objection on the lease made by and between Tufono as one party and Mr. and Mrs. Mere Betham as the other party “on the ground that we have better rights to this land than these two parties.”
*709Toamalama’s main objection is that the instrument is both a lease and a separation agreement and that the two should be separated, and that the instrument does not specify the period of the agreement, or whether the Bethams are members of the Tufono Family.
Everyone agreed that the land on which the Bethams’ house is being constructed is the communal land of the Tufono family.
Objector Paopaoailua, who is 78 and lives in Aua testified that he objected to the agreement because it was not proper without the consent of the family. He testified that the Bethams were not blood members of the Tufono Family, even though he admitted that Mere’s father, Tuiasosopo, resided on Tufono land for many years, conducted the affairs for the Tufono Family and had his children born on the land; that no one ever objected to Tuiasosopo’s living on the Tufono land; that he, Paopao, brought fine mats when Tuiasosopo died on the land; that before the Tufono was selected Tuiasosopo spoke on behalf of the Tufono Family; that Tuiasosopo had been adopted by Paopao’s aunt, the sister of his father. Paopaoailua further testified that the Tufono title holder had sole authority over Tufono land; that under Samoan customs the children of an adopted member of the family were recognized as family members; that Matimatu, Mere’s grandfather, also lived- on Tufono land; that he did not know if Tuiasosopo, Mere’s father, was born on Tufono land.
Mere Betham testified that the land in question was Tufono Family land, that she had been born on said land and had lived there all her life, except while away in school; that her father always had a house on the land but was not sure if he had been born on Tufono land; that in her 33 years she had never seen Paopaoailua living in Fagatogo; that he would only come to visit with her father,, *710Tuiasosopo, and then return to Aua; that her father ran the Tufono Family affairs.
Mere testified that she had first consulted the matai Tufono for permission to build the present house on the land through her brother Mariota while Tufono was in the States; Mere further testified that the members of the family agreed to the survey of the land where the hoüse was to be built; [sic] That the Matai Tufono, and Brown, Paopaoailua and Mariota agreed to the building of her house; that Tufono had signed the instrument purported to be the Separation of Structure Agreement, and the house was begun with the authority of the matai Tufono.
Lauvale, counsel for himself, and the rest of the objectors called Tufono as a witness. Tufono testified that he was the matai of the Tufono Family; that he had a meeting with Paopao, Lauvale and Mariota, that Mere’s house was built under his, Tufono’s, authority; that he had signed the instrument in question but that Mariota had promised to have the instrument in both the English and Samoan languages, but at the time of the signing only the English version was available; that he had understood all the provisions of the instrument and had signed the same, but that he still did not have the Samoan translation of the agreement; that he had not been the victim of misrepresentation if the instrument said what he understood it to say from the explanation by Mariota; that the agreement was alright if he had not been lied to; that the signature on the agreement was his; that he understood that James and Mere Betham wanted to have the agreement executed; that James and Mere Betham wanted to have the agreement executed so that they could borrow money from the bank to build the house.
In arriving at a decision we will restrict our determination to whether or not there was a separation of structure agreement between the Bethams and Kisi P. Tufono as *711matai and representative of the Tufono Family, and secondly if such agreement was entered into, whether it should be recorded as a separation of structure agreement. We will not go into the matter of the “Lease” since we are holding that the instrument does not set out a lease in legal form. If the parties wish to read a lease into the agreement, they must follow the statutory prerequisite of going through the Land Commission and the Governor’s Office for approval.
After considering the testimony and the evidence, the Court is of the unanimous opinion that Mere Betham is a member of the Tufono Family; that a separation of structure agreement was agreed to, and entered and executed between Kisi P. Tufono as head of the Tufono Family and Mr. and Mrs. Betham; and that said separation of structure agreement as regards Tufono and the Bethams should be recorded.
The two Samoan Judges agreed, and the writer is of the same opinion, that the agreement between Tufono and the Bethams was in good faith arrived to orally at first and then executed in writing. Whereas the main contention of the objectors — and Tufono — was that the agreement was signed by Tufono without first having a copy of the instrument in the Samoan language, nevertheless, the Court unanimously holds that at the time of the execution of the written agreement in the English language, Tufono knew what he was signing. Tufono himself testified as to what he thought he was signing from the translation of the instrument by Mariota. The interpretation of the instrument as made by Mariota and as understood and testified to by Tufono was in essence what the instrument reflected. It is clear under the statute and Samoan customs that the matai may enter into a separation agreement without consulting the members of the family, especially where all the parties to the agreement are members of the family as is the *712case here. In this case we are satisfied that all the objectors, except Toamalama, knew of the agreement between Tufono and the Bethams.
One of the main objections by counsel for the objectors was that Tufono had been promised a Samoan translation of the agreement by Mariota for showing to certain members of the family and that the translation had never been delivered by Mariota. We do not .think that the failure to deliver the Samoan translation voided the instrument signed by the Bethams and Tufono since we are satisfied that Tufono fully understood the contents of the instrument he signed. We believe, however, that if a translation of the instrument was promised to Tufono, the same should be made available and delivered to him.
Accordingly, it is hereby ORDERED, ADJUDGED AND DECREED as follows:
1. That Mere Betham is a member of the Tufono Family.
2. That a separation of structure agreement was agreed to, entered, and executed between Kisi P. Tufono as matai of the Tufono Family and James and Mere Betham, allowing the Bethams to construct a house on the communal family land of the Tufono Family under the provisions of Section 12.0201 of the Code of American Samoa, 1961 Edition.
3. That the instrument in question be recorded, only to the extent that it reflects a separation of structure agreement between Tufono and the Bethams, and as being binding only between these two parties.
4. That the Bethams deliver to Tufono a Samoan translation of the instrument in question within two weeks after the filing of this decision.
5. That Court costs in the amount of $12.50 should be paid within two weeks, as follows: $6.25 by James and Mere *713Betham, $3.13 by Paopaoailua, and $3.12 by Toamalama Tufono.
Done this 30th day of November, 1965. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485378/ | OPINION OF THE COURT
ROEL, Associate Justice.
On October 26,1965 applicant Toilolo filed an application with the Office of the Registrar of Titles of American Sá*720moa to register a certain surveyed parcel of land called “FANU ATELE,” containing 2.113 acres, more or less, situated in the village of Pavaia’i. Toilolo sought to register the land in question as the communal land of the Toilolo Family.
Upon notice of the proposed registration of the land, Galoia, on 12/20/65, filed an objection on behalf of the Galoia Family, claiming that the greater part of the land in question was the communal property of the Galoia Family.
On May 25, 1966, Counsel for Applicant filed an answer to Galoia’s objection.
Previous to the time of trial, all three judges viewed the land in question in the presence of the Applicant and Objector and their Counsel.
The Court will not go into detail on the testimony and the evidence as it is all in the record, except to say that the evidence was contradictory, confused, and inconsistent to the point that neither Applicant or the Objector proved title to the land in question to the satisfaction of the Court by a preponderance of the evidence.
In arriving at a decision the Court must consider three possible determinations; 1. Whether the Applicant, by a preponderance of the evidence, proved sufficient title to the land in question to entitle him to have the land registered in his name; 2. Whether the Objector proved not only that the Applicant had no right to the property, but that he, the Objector, was the true owner by a preponderance of the evidence; or, 3. Whether neither Objector or Applicant proved their claim and title to the property to the satisfaction of the Court, and so being the case, to deny and dismiss the the [sic] Applicant’s application to register the land in his family’s name.
To arrive at our decision we are faced with a procedural dilemma regarding the burden of proof in registration of *721land cases such as this one. If statutory procedural requirements are followed under Section 10.112 of the Code, 1961 Edition, and no notice of adverse claim is filed against the application to register the land, the Registrar of Titles shall register the title to such land in the name of the applicant or applicants.
Once an objection to the registration is filed as was the case here, it becomes the duty of the court to adjudicate the issue. It cannot be said that, in view of the provision of Section 10.112 in the case where there is no objection, the Applicant at the trial need not prove his title or that it is only up to the Objector to disprove the Applicant’s title. Neither can it be said that an Objector should have the land registered in his name if all the Objector does is disprove or put in doubt Applicant’s title to the land. If this were the case it might give rise to professional objectors who would file their objection to any and all applications for registration of land in the hope of defeating Applicant’s claim to the title to land. And if once the question of title was in issue before the Court it cannot be said that the Applicant need not positively prove his title, but merely overcome the Objector’s claim. If this were the case a person could try to survey and register all the land he could, even if he knew he did not own it, in the hope that no one would object to the registration, and if an objection were raised, take a chance that the Objector could not prove a better title.
This Court is of the unanimous opinion that in a contested trial for registration of land the Applicant has the burden of proof to show the Court that he is entitled to have the land registered in his name whether the Objector disproves Applicant’s .title or not, where the Objector fails to prove by the preponderance of the evidence that he is in fact the owner of the land in question. Once the Objector challenges the Applicant’s title, the Objector in turn must *722prove by the preponderance of the evidence that he and not the Applicant is the owner of the land in question.
After considering the testimony and the evidence, it is the unanimous opinion of this Court that neither the Applicant nor the Objector conclusively proved to this Court that either of them was the owner of the land in question to be entitled to have said land registered in their family name. Neither party proved ownership or title either by purchase, inheritance, gift, cleaning and occupation of the land, nor by adverse possession. It follows that the status of the ownership of the land in question remains unsettled and in the same condition as it was at the time the application for registration was made and the objection filed thereto. We can only suggest to the parties that they try to get together and delineate their rights to the property in an amicable way if possible. If such settlement is reached, they might each get a survey of the land as agreed between them and then try to register their individual family’s share. Wanting this, the parties may continue to file suit against each other until one party or the other convinces the Court by a preponderance of the evidence that he is the owner of the said land and entitled to have it registered.
Accordingly, it is hereby ORDERED, ADJUDGED AND DECREED that Tiololo Filipo’s application to register the parcel of land known as “FANUATELE” as the communal land of the Toilolo Family be and the same is hereby denied and dismissed.
Court costs in the amount of $25.00 to be paid by Toilolo Filipo and Galoia Upuese, each to pay the amount of $12.50 within 30 days.
Done this 10th day of June, 1966. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485380/ | OPINION OF THE COURT
ROEL, Associate Justice.
On November 22, 1965, William A. Reed, hereinafter referred to as Applicant, filed his application with the Clerk of the High Court to be registered as the holder of the matai title Le’aeno, attached to the villages of Matu’u and Faganeanea. On December 16, 1965, Savea Polone, hereinafter referred to as Objector, filed his objection to the registration of the title by the Applicant on the grounds that he, the Objector, had a better right to the title. This resulted in both the Applicant and Objector becoming candidates for the title Le’aeno.
After considering the testimony and the evidence, it is the unanimous opinion of this Court that the Applicant is eligible to be registered as the holder of a matai title in connection with the basic qualifications as set out in Section 6.0101 of the Code. It is further clear to this Court, from the evidence presented by both Applicant and Ob*728jeetor, that the Objector, Savea Polone, does not meet the qualifications under Section 6.0101 in that by his own admission he was not chosen to be the holder of the title at the only meeting held by the members of the Le’aeno Family in October, 1965. The evidence showed that the Applicant was chosen for the title at the Family meeting, that he was presented with his kava cup as a symbol of his being chosen, and that he presented a “lafo” or money gifts to members of the family after his selection.
After considering the testimony and the evidence, it is the unanimous opinion of this Court, and we so find, that the Applicant has one-fourth hereditary right, and that the Objector has no Le’aeno hereditary right whatsoever. The Objector claimed his hereditary right by virtue of his uncle having held the title. Even if this were so, the Objector cannot attain any hereditary right from an uncle. In order to prove the one-fourth hereditary right he was claiming, he would have to show that his grandfather once held the title Le’aeno. This he failed to do. Accordingly, we hold that the Applicant prevails over the Objector on the issue of hereditary right.
In connection with the second issue, regarding the wish of the majority or plurality of the clans, this Court is of the opinion, after considering the testimony and the evidence, that there are two (2) customary clans in the Le’aeno Family, these being the Ugaloto clan and the Amio clan. We further find that each of the said two (2) clans favor the candidacy of the Applicant, William A. Reed. Accordingly, we find that the Applicant prevails over the Objector on the second issue.
After considering the testimony and the evidence, and taking into consideration the demeanor, personality, forcefulness, character, presence of mind, the clarity, speed and correctness with which the answers were given, the self-*729confidence, and other qualities reflected from the speech and behavior of the candidates, this Court is of the unanimous opinion that the Applicant prevails over the Objector on the third consideration under Section 6.0107 of the Code on the issue of forcefulness, character, personality and knowledge of Samoan customs.
It is the unanimous opinion of this Court, and we so find, after considering the testimony and the evidence, that the Applicant prevails over the Objector on the fourth issue under Section 6.0107 regarding the value of the holder of the title to the Family, the Village, and the Country.
Since we find that the Applicant was the only one of the two candidates to be chosen by the Le’aeno Family for the title under Section 6.0101 of the Code, and we further find that the Applicant prevails over the Objector on the first, second, third and fourth issues under Section 6.0107 of the Code, it follows that the Applicant, William A. Reed, should be registered as the holder of the matai title Le’aeno, attached to the villages of Matu’u and Faganeanea.
The Registrar of Titles will be advised of this decree.
Court costs in the amount of $25.00 to be paid by Savea Polone within 30 days.
Done this 21st day of July, 1966. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485381/ | OPINION OF THE COURT
ROEL, Associate Justice.
This action grew out of a Petition for Injunction filed by the Plaintiff on July 5, 1966, alleging that the Plaintiff was acting for himself and on behalf of the Maloata and Tuilefano Families, that the Defendant was going to build his living house on the land, Aniutea, which has been the traditional site of the guest house of the Maloata and Tuilefano Families; that the type of house the Defendant was to build was of the Government disaster housing type. The Petition further alleged that the matter had previously been referred to the Secretary of Samoan Affairs and that pursuant to Section 9.0113 of the Code of American Samoa, the Secretary of Samoan Affairs had issued a cease and desist order against the Defendant enjoining him from tearing down the existing guest house then located on said land, and ordering the Defendant not to erect a “hurricane *731type house” thereon until the matter was discussed at the office of Samoan Affairs on July 5, 1966, at 10:00 a.m., and advising the Defendant that said order would remain in effect until further notice from the Office of Samoan Affairs, or until an order was issued by the Courts. Plaintiff and Defendant are brothers.
At the time the Petition for Injunction was filed, it was ascertained that the guest house had already been torn down on July 4, 1966. So the only remaining issue was the building of the house on the land in question.
Both the Plaintiff and Defendant testified at the trial. The Plaintiff, Fa’aleaoga, also known as Vitale, contended that the land on which the Defendant was to build his house under the Government grant program for hurricane housing was the traditional site of the guest house of the Tuilefano-Maloata Families; that he was 44 years old and that the guest house had always been on said land for as long as he knew and many years before that; that the house which was partially damaged by the hurricane had been built as a guest house of the Tuilefano-Maloata Families.
Counsel for Plaintiff introduced into evidence a copy of the lease executed in connection with the erection of a grant house to replace the previous house on the land in question which had been damaged or destroyed by the hurricane of January, 1966. The lease shows the Defendant as both lessor and lessee, and reads in part as follows: “That the Lessor hereby leases to the Lessee and the Lessee hires from the Lessor, for the purpose of constructing a private residence for the lessee and his Family, (emphasis supplied) those certain premises in Land Square 32, Unit B, situated in Malaeloa Village, Tualauta County, Western District, American Samoa, and more particularly described as follows, to wit. . . .” Said lease is shown as recorded in Volume 3B, Register of Native Leases, Page 96. Plaintiff’s *732signature appears with eight (8) others on the lease as Family members, but the Plaintiff testified that he was not told that the house would be built on the traditional site of the Tuilefano-Maloata guest house.
Defendant Tuilefano testified that he was 67 years old; that he previously held the title Maloata; that he and his wife lived in the house that was damaged by the hurricane and were living in it at the time the hurricane struck; that the matai of the family had a right to live in the guest house; that his father had erected the guest house which was destroyed; that there were other guest houses located at the same site before the last one was built; that the Committee had gone to check the house and had approved the grant; that other members of the Family had signed with him the request for the grant, including Vitale. Tuilefano also stated that he was now building another house in the back of the guest house site, a palagi-style house not yet completed.
Tuilefano testified that the house to be built on the traditional site of the guest house was to be used to receive guests of the Tuilefano-Maloata Families; that if he ever relinquished the matai title, the new matai would be entitled to occupy the house to be built on the land in question; that he agreed with the Plaintiff that the land where the replacement house was to be built is the communal land of the Tuilefano-Maloata Families; that if he, Tuilefano died, the ownership of the house to be built on the traditional site of the guest house would pass to the next holder of the title; that it was understood by the Family that the ownership of the house would pass to the next title holder ; that if he, Tuilefano, died, his wife and children would move out of the guest house to allow the next title holder to have it. He also testified that Chief Le’iato had given him oral authority to tear down the old guest house after the Cease and Desist Order of June 28, 1966. Tuilefano tes*733tified that he would be agreeable to a change in the lease form executed in connection with the erection of a guest house so that it would reflect that the house to be erected on the land in question would be the guest house of the Tuilefano-Maloata Families, even though he, Tuilefano, and his family were going to live in it while he held the title Tuilefano.
At the end of the trial it appeared .that there was unanimous agreement between the Parties that the land on which the new house was to be built was the .traditional site of the guest house of the Tuilefano-Maloata Families. Further the Defendant had admitted in open court that he recognized the house to be built would be considered as .the guest house of the two families, with the understanding that he, the Defendant, and his family were to live in said house and receive guests in it, and with the further understanding .that the Defendant and his family were to vacate said house when he no longer held the matai title, the house to pass to the next title holder.
In view of the evidence, and the admission and agreement by the Plaintiff and Defendant that .the land in question is the communal land of the Tuilefano-Maloata Families, and the traditional site of the guest house of said Families, and the further assurance of the Defendant that said house when built would be considered the guest house of the Tuilefano-Maloata Families, the Court, at the close of the trial withheld final judgment to give the Defendant an opportunity to have the lease agreement related to the building of a house with grant money amended to read that the said house built on said land would be the guest house of the Tuilefano-Maloata Families, even though he, Tuilefano and his family were to live in said house. The Court gave the Defendant until Friday, July 22, 1966, at 4:00 p.m. to present to the Court the said amended lease, in which case, the objection of the Plaintiff having been cured, the petition *734for injunction, would be dismissed. If the Defendant failed to produce the said amended lease agreement, then the Court was to issue a written decree disposing of the case.
On July 22, 1966, the Defendant came to the Office of the Clerk of the High Court and reported not only that it had not been possible to get the authorities handling the grant house program to amend the lease agreement to reflect the fact that the land in question was the traditional site of the guest house of the Tuilefano-Maloata Families and that the house to be built was to be considered as the Families’ guest house, but at the same time the Defendant reported that the house had already been completely built on the land in question since the hearing on this case on July 18, four days before.
After considering the testimony and the evidence, and the agreed testimony of Plaintiff and Defendant, this Court is of the unanimous opinion that the house built on the land in question was built on the traditional site of the guest house of the Tuilefano-Maloata Families of Malaeloa.
The Court is further of the unanimous opinion that the house blown down or damaged by the hurricane of January, 1966 in place of which grant house was authorized and built was the guest house of the Tuilefano-Maloata Families.
The Court is further of the unanimous opinion that the new grant house built on the traditional site of the Tuilefano-Maloata guest house is now the guest house of the said two families, even though Tuilefano and his family will live therein while he holds the Tuilefano title. Once Tuilefano, the Defendant, ceases to hold the title, either through resignation or death, the right of control of said house passes to the next title holder and the Defendant and/or his family will vacate the said premises.
While .the original request for injunction becomes moot by the fact that the building of the house is a fait accompli, the Court will nevertheless issue the following Decree:
*735It is hereby ORDERED, ADJUDGED AND DECREED as follows:
1. That the land in question in this case is the traditional site of the guest house of the Tuilefano-Maloata Families.
2. That the house destroyed or damaged on said site by the hurricane of January, 1966, was the guest house of said two families, and had been so for many years.
3. That the house built to replace the destroyed or damaged house on said site is the guest house of the Tuilefano-Maloata Families.
4. That although the Defendant and his family may occupy said house as their living quarters, once the Defendant resigns or otherwise relinquishes the title, the said house will be under the control and authority of the matai of the Tuilefano-Maloata Families.
Court costs in the amount of $12.50 to be paid by Tuilefano within 30 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485382/ | OPINION OF THE COURT
HYDEN, Chief Justice.
On October 12,1965, the Plaintiff filed a petition for eviction against the Defendant herein and service of a copy of the petition upon the Defendant was had on October 12, 1965. The Defendant filed no answer.
On Wednesday, August 17, 1966, the Court viewed the land in question in the presence of the parties to this suit.
On Thursday, August 18, 1966, this cause came on regularly for hearing.
In this action the Plaintiff prayed the Court for an Order of Eviction against the Defendant to evict him from the communal family land of the Patea Family.
All of the parties were in substantial agreement as to the facts of this case.
The evidence disclosed that the Defendant entered into occupancy of the Patea Family land at the request of the *737holder of the Patea title in approximately 1953 and has constructed his fales on that land and has continuously resided there since that time.
The evidence further disclosed that the Patea who assigned the subject land to the use of the Defendant is now deceased and that the title Patea is at this moment vacant.
It is also clear from the evidence that the Defendant has engaged in a course of conduct that the Plaintiff and other members of the Patea Family have found offensive to them. This conduct is said to consist of actions that appear to claim supernatural powers and include predictions as to the deaths of members of the Patea Family. The Plaintiff has said that it is this course of conduct alone that has given rise to this law suit. There is no other basis than this course of conduct for the request that the Defendant be evicted.
The Defendant recognizes, as he would have to as a matter of law, that his permission to occupy Patea Family land depends upon the decision of the person in charge of those lands.
In these circumstances with all of the material facts being largely agreed upon, we view this case as one raising the comparatively simple question arising under the matai system of “Who can act as a matai?” The law of American Samoa is quite clear on this point in that only a matai has the powers, the authority, the pule of a matai. (Title VI, Code of American Samoa, 1961 Edition.) The Plaintiff Leulu Patea Malaga admittedly does not hold the matai title. As her counsel ably brought to the attention of the Court, as a member of the family, she or her sister Mama or other members of the immediate family, of course, can act for the Patea Family. But this authority extends only to taking those actions designed to preserve and conserve the family properties. Only the matai is recognized, under the matai system, as the person having the author*738ity to assign occupancy rights to individuals. The same, obviously, must hold true with respect to the termination of occupancy rights; only the matai would have this power.
The Court views the statutory requirements that a person must have his claim to succession to the matai title registered before he can act as a matai as the very strength of the matai system. It keeps unauthorized persons from exercising these powers. In this connection the Court recognizes that the Defendant’s occupancy of Patea Family lands could never ripen into title by adverse possession because it originated in the consent of a matai and therefore his occupancy is not adverse to that of the family but is at its will or sufferance and governed by the decision of the matai of the family. The Patea Family need have no fear that Alaga’s continued occupancy of Patea Family land can ripen into title by adverse possession for the reasons stated above.
The Defendant in his testimony has stated that he would not leave the land in question unless he was paid for his services rendered under Samoan custom, to the matai and the Patea Family. The Court finds and we so hold that the Defendant cannot convert these services into a contractual obligation to compensate his [sic] for these services. These services did not originate as a contractual obligation and the Defendant’s claim in this regard is not enforceable by law.
Accordingly, it is hereby ORDERED, ADJUDGED AND DECREED that Leulu Patea Malaga or any other blood member of the Patea Family while having authority to sue to protect, preserve or conserve Patea Family lands, does not have authority, under the laws of American Samoa, to act as a matai and withdraw or revoke occupancy rights of the Defendant herein, that right being the exclusive authority of the matai of the family. This Court *739unanimously returns a verdict in favor of the Defendant and against the Plaintiff herein.
Court costs of $20.00 to be paid by the Plaintiff within 30 days of ,the filing of this opinion and decree.
Done this 18th day of August, 1966. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485383/ | OPINION OF THE COURT
On September 9,1965, Applicant Patea filed his Application with .the Office of the Registrar of Titles of American Samoa to register a certain surveyed parcel of land called “Laloulu,” containing 0.581 acres, more or less, situated in the Village of Vatia. The metes and bounds description of the land is set out in the plat of the survey which is filed *740with the papers in this case. Patea sought to register the land in question as the communal land of the Patea Family.
Upon Notice of the proposed registration of the land, Taulaga, on September 28,1965, filed an objection claiming that he had a better right to the land than Patea. On September 29, 1965, Masaniai filed an objection to the registration on the ground that he had better right “to a part” of the land in question than did the Applicant.
We will not go into detail regarding the testimony and the evidence presented in Court since it is very lengthy and it is all in the record, except to say that both the Applicant Patea and Taulaga, represented by Marasala, agreed that Masaniai owned a small part of the land inside the plat, to wit: a strip of land starting at a point four (4) feet to the east of the northwest corner of the survey plat, running therefrom south about fifty (50) feet parallel to the west boundary of the plat and then narrowing down at that point to three (3) feet from the same west boundary of the plat and running alongside said line for forty-two point fifteen (42.15) feet, to the northern edge of the hedge as marked in the plat, totalling an area of about three hundred twenty-six (326) square feet, more or less.
As the record will indicate, the evidence presented by Applicant Patea and Objector Taulaga was confused, contradictory and inconsistent. Masaniai’s case was limited to his claim that he owned a small portion of the land, to which claim both Patea and Taulaga agreed. Patea and Utu were called on to testify on behalf of Applicant’s claim. Taulaga called as his witnesses Manono, Masaniai, Gogo, and Marasala.
The record will further show that the testimony of Masaniai, who was called as a witness for Taulaga, was in fact favorable to Patea’s claim to the land in question. Masaniai’s testimony lent weight to Patea’s claim when we consider the fact that the immediate last holder of the Tau*741laga title was the blood uncle of Masaniai and lived with Masaniai and is buried in Masaniai land, and the additional fact that Marasala, who represented Taulaga as objector, is also a member of the Masaniai Family and has lived in and planted his crops on Masaniai land. It was also ascertained that Masaniai and Patea are not related.
The Court in weighing the testimony and the evidence looked into the matter of registration of matai titles in the Register of Matai Titles and found that since 1906 the title “Taulaga” was registered only once and that was in November 13, 1964. The Court found that the title “Patea” was registered in 1906,1932,1955 and 1960.
After considering the testimony and the evidence, this Court is of the unanimous opinion that the application filed by Patea to register the land Laloulu as the communal land of the Patea Family should be granted, and that said registration should be ordered. Provided that the area within said survey above described, agreed to be Masaniai land shall be recognized as such. We are satisfied from the evidence that the land in question has been under the actual, open, notorious, hostile, exclusive and continuous control, use and cultivation of the Patea Family for more than forty (40) years, a period greatly in excess of the twenty (20) years required under Section 10.0115 of the Code of American Samoa, 1961 Edition. We thus hold that the Patea Family acquired ownership of the land in question by adverse possession.
Accordingly, it is the unanimous opinion of the Court, and it is hereby ORDERED, ADJUDGED AND DECREED by the Court as follows:.
1. That the application filed by Patea to register the land Laloulu as shown in the survey, consisting of 0.581 acres, more or less, as the communal land of the Patea Family of Vatia be and the same is hereby granted, and that said land be registered in the Office of the Registrar *742of Titles as the communal land of the Patea Family. Provided .that the portion of land within the survey agreed by Patea to be Masaniai land shall be recognized as such.
2. That the claim filed by Masaniai to the part of the land in question is hereby granted, the description of said portion being as follows: A strip of land starting at a point four (4) feet east of the northwest corner of the survey plat, running therefrom south a distance of fifty (50) feet parallel to the west boundary of the plat and then narrowing down from that point to three (3) feet from the west boundary of the plat and running alongside said line for a distance of forty-two point fifteen (42.15) feet, to the northern edge of the hedge as marked in the plat, total-ling an area of about three hundred twenty-six (326) square feet, more or less.
3. That the claim filed by the Objector Taulaga be and the same is hereby denied and dismissed.
The Registrar of Titles will be advised of this decree.
Court costs in the amount of $25.00 to be paid by Marasala for Objector Taulaga within thirty (30) days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485384/ | OPINION OF THE COURT
HYDEN, Chief Justice.
In this action the plaintiff, Salanoa S. P. Aumoeualogo, (hereinafter called Salanoa) seeks to enjoin the three defendants, Lesolo Haro Mamoe and his wife Vita and her sister Faatoesega from interfering with the plaintiff’s proposed survey and construction of a house under the Gov*744ernment’s Hurricane or Disaster Houseing [sic] Program. The plaintiff alleges that he is the owner of a land located in the village of Tula, Vaifanua County, American Samoa and that the defendants, without lawful authority have interfered with the surveyors and have ignored a cease and desist order issued by the Secretary of Samoan Affairs pursuant to Section 9.0113 of the Code of American Samoa, 1961 Edition.
The plaintiff avers that the continuation of these actions by the defendants will, if not enjoined by this Court, result in irreparable damage to the plaintiff.
The initial proceedings in this matter consisted of viewing the premises and taking testimony in Tula on December 21, 1966. Following this the Court issued a temporary restraining order restraining the three named defendants from interfering with the survey of the site. Simultaneously, the Court fixed December 28, 1966 for further proceedings. Accordingly, the matter came on for hearing on December 28, 1966 and posed the issue of whether the temporary restraining order should be dissolved or whether the plaintiff was entitled to a permanent injunction.
At the outset, it should be observed that the Government’s Disaster or Hurricane Housing Program is scheduled for completion in February, 1967, it being understood by the Court that all such construction must be completed by that time. It is thus clear that the instant case presents a question of some urgency to the parties and we find that the equity powers of this Court have been properly invoked.
The plaintiff testified in his own behalf. He claimed that the land was the individual property of his mother, Sarona and that he was her heir. Alternatively, the plaintiff claimed that the land was part of the communal family land of the Salanoa Family and that he is the Salanoa, the senior matai in the village of Tula. In support of the plaintiff’s claim of ownership as heir of Sarona the plaintiff brought *745to the attention of the Court the transcript in case No. 8-1920 in which testimony was taken on June 28, 1921. In that case, styled Salanoa v. Sarona, Faleauto and Leatapo, the plaintiff, Salanoa Va’a, sought to restrain and enjoin the defendants from interfering with the plaintiff’s rights to two different tracts of land, known as Tuluiga and Saleva’a. Although the official record in that case includes a transcript of the testimony taken, no judgment, order or decree based on the evidence in the case can be found. The plaintiff, therefore, was unable to establish that the proceedings in case No. 8-1920 served to adjudicate anything, but he did allude to testimony in that case in an effort to establish, through that testimony, that his mother, Sarona, who was one of the defendants in that case and other defendants all disputed Salanoa’s claim with respect to a portion of the land called Saleva’a and which portion those defendants referred to by the name of Sinavevela. The plaintiff in the present case also claims that the land now in dispute is properly known as Sinavevela. The defendants in the present case all claim, as did the plaintiff in case No. 8-1920, that the land now in dispute is a portion of a larger tract bearing the name Saleva’a.
Upon consideration of the evidence in this case the Court is convinced that the matter of the proper nomenclature of the land is not of controlling consequence. A finding by this Court on that point at this time would not serve to resolve the issues presented by this case.
As previously stated, in the earlier case (8-1920) the three defendants all denied that the land was part of the communal or family land of the Salanoa Family. In that case Sarona claimed title through Salanoa Leatapo who was the father of her co-defendant, Leatapo. Leatapo, on the other hand, claimed title through Tapopo, a matai of Alao. The plaintiff in that case presented evidence that the pule or authority over the lands was originally in Taua of Alao *746who gave the lands to Salanoa Togiai following the latter’s marriage to Taua’s sister, Siuli. The plaintiff’s evidence was to the further effect that members of the Salanoa Family started cultivating the property and building structures thereon and that such exercise of ownership and control by the Salanoa Family continued from the days of Salanoa Togiai down through the tenure of his successor, Salanoa Leatapo and was still continuing at the time of the proceedings while the title was held by the plaintiff, Salanoa Va’a.
Since no person has been able to show the Court .that any judgment, order or decree was entered in case No. 8-1920, we must conclude that those proceedings do not constitute res judicata against any of the parties in the present case. However, the testimony in that case is properly before the Court and serves to illuminate the history of the use of the land and the origins of the claims now being considered. Our reading of the evidence in the prior case indicates that the preponderance of that evidence f avors the plaintiff, Salanoa Va’a. The various defendants in that case all rested their claims on an alleged parcelling out or distribution of communal lands throughout earlier years. It will suffice to observe that a systematic and steady diminution and deterioration of the family land base is hardly in keeping with the Samoan custom of retention of land in the family for the support and maintenance of the family and under the control of the head of the family.
The two defendants Lesolo Haro Mamoe and Vita are husband and wife. The third defendant Faatoesega is Vita’s sister. The only evidence presented by the defendants was the testimony of Vita. She claimed that the land in question is a part of the tract known as Saleva’a. She further claimed that her grandfather Salanoa Leatapo gave the land to her father Leatapo and that he in turn gave it to her. Although she conceded that she and her sister were mem*747bers of the Salanoa Family she claimed that the land in question was no longer Salanoa Family land but had been carved out of the family holdings and given to her ancestors in the manner described above.
The defendants conceded that their claim and their predecessor’s claim to individual ownership of the land had never been surveyed and registered in accordance with the laws of American Samoa. Indeed, the defendants offered no evidence that would tend to corroborate the claim that their ancestors had given them the land.
In support of his contention the plaintiff offered proof of three leases executed by himself, Salanoa S. P. Aumoeualogo, in his capacity as “matai of the Salanoa Family,” as lessor, in favor of Faatoesega and Lesolo Haro Mamoe (defendants in this case) and Porotesano Lesolo (brother of defendants Vita and Faatoesega), as lessees. These three leases were entered into in accordance with the procedures and requirements set up by the Government of American Samoa for the prosecution of its Disaster or Hurricane Housing Program. All of the leases were executed in both the English and Samoan languages and were approved by the Governor of American Samoa. All of these leases were entered into by the parties upon the express understanding that the leased premises were a part of the communal or family lands under the control of the lessor and the lessees all covenanted to render service to the lessor according to the Samoan custom as part of the consideration for the lease. These leases, in our judgment, conclusively resolve the issue presented by the pleadings and evidence in this case.
First, it must be noted that one of the most firmly fixed rules in Anglo-American jurisprudence is that a lessee of land cannot be heard to dispute his lessor’s title. Secondly, these leases, taken together with the rest of the evidence in this case serves to buttress the proof that these *748lands have historically been treated as communal or family lands of the Salanoa Family.
On the basis of a preponderance of the evidence it is concluded that the plaintiff, Salanoa S. P. Aumoeualogo is fully authorized as the senior matai of the Salanoa Family to proceed without interference from the defendants in the projected survey and construction of a Disaster or Hurricane house under the procedures established by the Government of American Samoa. It is further concluded, conversely, that ,the defendants have no legal justification or right to interfere with the plaintiff’s survey of the site or with the construction of the house.
Accordingly, an appropriate order will be entered permanently enjoining the three named defendants, Lesolo Haro Mamoe and his wife Vita and Faatoesega and all persons acting by, through or under them from interfering with the plaintiff, his agents and persons acting by, through and under him in surveying the site and constructing the house.
Court costs in the amount of $45 are hereby assessed against the three defendants to be borne by them in equal amounts of $15 each to be paid within 30 days.
Done this 6th day of January, 1967. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485385/ | OPINION OF THE COURT
ROEL, Associate Justice.
On November 30, 1966 Plaintiff, Leapaga Kesi, filed Ms petition seeking to evict the Defendant from a certain palagi-type house situated on the land “Le Pine” in the village of Nu’uuli, claiming that the house is situated on the communal land of the Leapaga Family, and that the house itself belonged to the Leapaga Family based on an alleged agreement with one Reverend Anderson.
At the trial there was an admission on the part of the Defendant that the land where the house in question is situated is the communal land of the Leapaga Family.
Plaintiff testified that his claim to the house was based on the fact that the house was built by one Reverend Anderson while he, Leapaga, was away and that he understood there was an agreement to the effect that after five (5) years of living in said house the Reverend would move out and the house would remain as the communal property *750of the Leapaga Family in lieu of rent for the use of the land. The Plaintiff insisted that being the matai of the Leapaga Family he had the pule over Leapaga communal land and that under the alleged agreement he was entitled to the control of the house after the Faifeau moved out. Plaintiff admitted he was in the United States for an extended period when the house was built. When asked if he could produce or prove the agreement to which he was referring, he answered in the negative.
The Defendant testified that she was a blood sister to Plaintiff Kesi and that she was a member of the Leapaga Family. She stated that she had been occupying the land in question for twenty (20) years, having been assigned that portion of the land to live on by her father, a previous holder of the Leapaga title. She further testified that she had paid to hire 10 men to clear the land from the bush and had since that time maintained plantations on said land.
The Defendant testified that she had built the house in question with the money earned by herself and her husband and that she had spent $3,000 to build said house, and that she had built this house because the previous house was not large enough to accommodate the eleven children born to her on said land.
The Defendant introduced into evidence two building permits, No. 4-1963 and No. 166-1963. The Defendant testified that the house in question was built upon the authority of Permit No. 166-1963. Said permit is dated October 18, 1963 and lists the owner of the house to be built as Mrs. Paeuli Westbrook and is signed by the Governor of American Samoa.
The Defendant testified that while the Plaintiff, the matai of the Family, was in the mainland for about two years, she secured permission to build the house from Laupua, whom she alleged was the last immediate holder of the *751Leapaga title, and Isumu, who were acting as caretakers of Leapaga Family matters while Kesi was in the United States. Defendant further testified that because there were no churches near the Leapaga bush land, she invited Reverend Anderson to come and serve as pastor for the family living there on the land and allowed him and his family to live in the house; that the Palagi Faifeau had left the house in August, 1966. Paeuli also testified that Reverend Anderson had lent Kesi about $1,000 over a period of time and Kesi had never paid him back. She stated the Defendant, her husband and all their children have been living in the house in question since the Faifeau moved out.
After considering the testimony and the evidence, the Court is of the unanimous opinion that the house in question, where the Defendant and her family are living, is situated in the land called “Le Pine”, said land being the communal land of the Leapaga Family.
It is further the unanimous opinion of the Court that the Defendant, Paeuli Westbrook has been occupying the land where the house is situated for a period of twenty years and that she was assigned the use of said land by her father when he held the Leapaga title. We are also of the opinion that the Defendant cleared that portion of Leapaga land from the bush, having paid for said clearing, and that she has continually had plantations on said land.
It is further the unanimous opinion of the Court that the house in question was built with the money and the joint efforts of the Defendant and her husband, and that said house is the individually owned house of the Defendant and her husband.
The Court reiterates the principle that the matai of the family has the “pule” over the family communal lands. We find that in the present case the land where the house in question was situated had been assigned by a previous *752matai and that the Defendant has a right to the occupancy of said land.
The Court is also of the opinion that a member of a matai family should be charged with the Samoan customs and tradition of serving the matai of the family in the Samoan way. Whereas we are convinced that the Defendant failed to serve the Plaintiff as matai for the last few months because of pending litigation, the Court feels that the Defendant should now render the traditional service to the Plaintiff while he remains the matai of the family.
Accordingly, it is hereby ORDERED, ADJUDGED AND DECREED that the Plaintiff’s petition for eviction be, and the same is hereby denied and dismissed.
Court costs in the sum of $12.50 are to be paid by Plaintiff Kesi Leapaga within 30 days.
Done this 6th day of February, 1967. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485693/ | This case concerns a large tract of land called Mapusaga or Mesepa, in or adjacent to the village of Faleniu. Parts of the land have also been known as Niuolosega, Alalaga, Aumalagamai, Mauga o le Sea, Vaivai, Avalúa, Mulivai, Toa, Vanu, and Luale'a.
In 1903 a number of chiefs of Faleniu executed a lease of Mapusaga in favor of the Corporation of the Presiding Bishop, Church of Jesus Christ of Latter Day Saints. In 1944 a somewhat larger number of chiefs including the then holders of the Alai'a, Moea'i, Si'ufanua, and Tuia'ana titles conveyed the same land outright to the same corporation (hereinafter "the Church"). This conveyance was subject to a right of reversion in the event the land should ever cease to be used for school and church purposes.
In 1984 the Church stipulated that Mapusaga should revert to its former owners except that the Church would retain three designated parcels used for church and school purposes. This stipulation resulted in the settlement of a lawsuit brought against the Church by four chiefs of Faleniu. (Three of the plaintiffs in that case are also parties to this one; the fourth is a talking chief for the remaining party to this case.)
A few months later Moea'i, one of the chiefs whose family was entitled according to the stipulation to part of Mapusaga, surveyed virtually the whole tract and attempted to register it as Moea'i communal land. That survey and related incidents gave rise to the present litigation.
*87At the outset we must observe that this is perhaps the most difficult land case to confront the Court in recent years. For parties to rely almost exclusively on radically conflicting family histories, as did the parties to this case, is the rule rather than the exception in the Land and Titles Division. In the overwhelming majority of cases, however, one party can support its claim by proof of long occupation or by convincing evidence of how and when it was deprived of occupation.
Although some members of the four families involved in the present dispute apparently did live on Mapusaga at various times between 1903 and 1984, it is not at all clear that they were continuing to live on their families’ former lands despite the lease and subsequent conveyance to the Church. Many members of these four families are or have been Church members, and many Church members have resided on Mapusaga whether or not they belonged to a family of Faleniu. For instance, in 1983 the Church identified 36 households on Mapusaga whose members were in some way affiliated with the Church; one such household was headed by a member of the Moea'i family who was a witness in the present case. If the evidence had established so much as a distinct pattern of residence during the Church occupation --- Moea'is in one part of Mapusaga, Alai'as in another, Si'ufanuas and Tuia'anas someplace else --- we might infer a similar pattern prior to 1903. Since no such pattern emerged, evidence that family members were among the people who lived on Mapusaga during Church times is of little probative value. Even less useful is the evidence presented by some of the parties to the effect that they asserted ownership of parts of Mapusaga during the 1980s when the rush to share in the pending reversion was underway.
We are left with several kinds of evidence on which to sort out the parties’ claims as best we can:
--- First, we are bound by the result in one High Court case, Siufanua v. Uele, 2 A.S.R. 462 (1949), which resolved conflicting claims of ownership to a small part of the land now in dispute.
--- Second, at trial we noted without objection our intention to take judicial notice of *88the proceedings in the 1949 case cited above and in other cases involving Mapusaga or adjacent lands. These include Alai'a v. Talanoa, LT No. 93-1948; Moea'i v. Corporation of the Presiding Bishop, 4 A.S.R. 36 (1971) (LT No. 1151- 70, formerly CA No. 91-66); and Tuia'ana v. Corporation of the Presiding Bishop, CA No. 108-83. Although testimony and exhibits in former cases can be presumed to have been as self-serving as those in the present case, they are sometimes helpful in providing historical context, prior consistent or inconsistent statements by a current party or his predecessor in title, and occasional bits of evidence that are highly credible because offered by a party who had no reason to lie about the point they tend to establish.
--- Finally, however, we must choose among the sharply conflicting testimonies offered at trial by reference wherever possible to relatively objective factors such as the internal coherence and consistency of a witness’s testimony, the strength or weakness of his apparent motives to tell anything but the whole truth, and conflict or absence of conflict of a witness’s testimony with the relatively objective sources of evidence recounted above. When these factors are not present we must hazard our own estimates of the witnesses’ demeanor and of the inherent plausibility or implausibility of their testimonies.
Of the several versions of the history of Mapusaga the least plausible is that offered by Moea'i. His family history holds that all nine tracts named as parts of Mapusaga in the 1903 lease were Moea'i lands, and that other chiefs were mentioned in the deed and in the 1944 conveyance only because the Church wanted an endorsement or guaranty from the whole village. There is some tension, if not absolute contradiction, between this version of the documents in question and the words of the documents themselves. Although the 1903 lease does speak of the "parties of the first part" as "Chiefs and Rulers of the town of Faleniu," it goes on to refer to them as "the said lessors" and to provide that at the end of the term of the lease they may "have again, retain, repossess and enjoy, as in their former estate." This strongly implies that more than one of "the said lessors" was more than just a guarantor, possessed of an estate in Mapusaga. The 1944 deed *89again names a number of chiefs as parties of the first part and provides that if the land ceases being used for church and school purposes it will immediately revert "to the first parties, their heirs or assigns." If the contracting parties in 1903 or 1944 regarded Moea'i as the sole owner of all Mapusaga they chose singularly misleading ways to say it.
The testimony of Moea'i that the $1000 given by the Church to "the parties of the first part" was in fact given to and retained by the then Moea'i was contradicted by other witnesses, including Tuia'ana whose testimony on this point did not seem designed to help his own case. Moreover, Moea'i’s current claim to own all of Mapusaga is considerably more ambitious than his and his predecessors’ position in prior lawsuits dealing with the same issue. In the 1949 case the then Moea'i testified that Si'ufanua and Tuia'ana owned certain tracts; in this case the current Moea'i has surveyed parts of these tracts and claims them as his own. In 1966 Moea'i brought an action against the Church attempting to enforce the reversionary clause; in the course of that action he asserted his claim to ownership of "approximately ten acres" of the land included in the deed to the Church, and filed a survey of his claim. The survey includes land called Vanu, Avalúa, and part or all of Niuolosega and Vaivai; it makes no mention of the other five tracts and excludes large areas of Mapusaga that Moea'i now claims to own. Again in the 1983 case, Moea'i joined with other parties to this case in asserting that until 1944 “[p]laintiffs’ predecessors in matai title were lawfully seized and in possession of various contiguous parcels of communal land, collectively described as" the tract called Mapusaga set forth in the deed.
Moea'i’s insistence that he owns all of Mapusaga leaves the court with scant evidence on which to determine what part his family actually does own. In addition to the family history recounted above, Moea'i proved that he had objected to some building permits during the 1980s, that a few members of his family are among the people living on various parts of Mapusaga, and that a member of his family is buried in the Church cemetery along with other Church members. The only parts of Mapusaga to which he made a more convincing claim of ownership than any other party *90were the parts not claimed by any other party. These are the areas designated on Moea'i Exhibit 8 as "Vanu" and "Avalúa," and the area in the northeast corner of the Moea'i survey that is beyond the boundaries of the Tuia'ana survey. The latter area is on a mountainside and corresponds roughly to the tract designated “Mauga o le Sea" in Moea'i Exhibits 12 and 14. Although it is outside of the area claimed by Moea'i in the 1966 case, no one else now claims it and other parties acknowledged at trial that Moea'i has plantations there. Moea'i therefore has the right to register these tracts insofar as they are within his survey.
The claim of Tuia'ana is also problematic. Tuia'ana was not one of the chiefs named in the 1903 lease. He calls his land Luale'a and insists that it has never been called by any other name, yet no land Luale'a is mentioned in the lease or in the subsequent deed. It is of course possible that the present Tuia'ana was mistaken about Luale'a never being called by another name. It is also possible that some other chief or talking chief represented Tuia'ana in 1903, just as Seigafo and Alai'a seem to have represented each other from time to time. Without more, however, Tuia'ana’s family history and personal recollections would be insufficient to rebut the implication that Tuia'ana and Luale'a had nothing to do with Mapusaga before 1903.
Tuia'ana is, however, a signatory to the 1944 deed and is named therein as a co-owner of Mapusaga. His case is further strengthened by the 1949 proceedings, in which everyone present including Si'ufanua and Moea'i acknowledged Tuia'ana to be the owner of a tract called Luale'a to the east of Aumalaga and Toa. At the conclusion of the case the Court held Luale'a to include at least part of the land now in dispute. (This is clear from a comparison of Exhibits 21 and 23, depicting the tract disputed in 1949, with the western portion of Exhibits 9 and 20, depicting the Tuia'ana survey. The southern portion of the 1949 survey is clearly within the northern boundary of the Moea'i survey as depicted in Exhibit 8.) We are bound by the rule of res judicata to observe and enforce that holding.
The Court and all the witnesses in the 1949 case were clearly of the opinion, moreover, that the tract surveyed in that case comprised only a *91part of Luale'a, which extended some distance to the east of the surveyed portion. This comports closely with Tuia'ana’s survey, whose southern and western boundary is the stream that was also the southern and western boundary of the tract surveyed in 1949, and which extends to the east about 1100 feet further than the tract surveyed in 1949.
Alai'a acknowledges that Tuia'ana owns the land on the northeast side of this stream. Si'ufanua, who began by claiming this land as his own, at the time of trial withdrew his claim to the land on the northeast side of the stream and acknowledged Tuia'ana as the owner. Only Moea'i opposes Tuia'ana’s claim; yet Moea'i in 1966 drew his own northeastern boundary at the stream and claimed none of the land now claimed by Tuia'ana. Accordingly, Tuia'ana has the right to register the land contained in his survey and also in the Moea'i survey, with the exception of lands designated in Exhibit 8 as retained by the Church.1
Proceeding to the claim of the Alai'a or Alai'asa family, we accept for the purposes of this opinion the unrebutted testimony of Alai'a that Seigafo is a talking chief of the Alai'a family and that the terms "Alai'a land" and "Seigafo land" can be used interchangeably. We express no opinion on the details of the relationship or on the relative rights of Alai'a and Seigafo to communal land held to belong to one or the other.
It seems clear beyond peradventure that Mapusaga included part of an Alai'a or Seigafo tract called Toa. The 1903 lease includes on its face "part of Toa," Seigafo is one of the 1903 *92signatories; both Seigafo and Alai'a signed the 1944 deed. In the 1949 case all parties acknowledged that Toa was Seigafo land. Si'ufanua identified this land as "to the west of the creek toward Leone" from the land then in dispute. This corresponds exactly to its location in the present survey of Alai'a. It is also consistent with the objection by Alai'a in 1948 to an attempted registration of land called Maugasa which apparently overlapped the northwestern corner of the land now in dispute. Alai'a complained that the Maugasa survey was "not right and it is overbounded," encroaching on land called Toa which is "the land of Alai'a and Seigafo." (Exhibit 16; See LT 93-1948. )
Although Si'ufanua now claims to own Toa, the earliest evidence of such a claim is the 1979 conveyance of a tract outside the boundaries of the land presently in dispute purporting to be part of Toa. In 1949, however, the then Si'ufanua was certain that Toa was Seigafo land and that his own land in the vicinity was on the opposite side of the stream and was called Aumalaga (also referred to as Aumalagasa, Aumalagava, and possibly Aumalagamai) and Matavai.
Similarly, Moea'i more or less agrees with Alai'a and with the late Si'ufanua about the location of Toa (see Exhibits 12 and 14) but seems never to have claimed land called Toa until he commissioned his present survey in 1985. In 1966 he did assert ownership of much of what Alai'a now claims, apparently under the names Niuolosega and Vaivai. To the northwest of the 1966 Moea'i survey, in an area apparently within the boundaries of the land now in dispute and also within the boundaries of what other parties have regarded as Toa, is the notation "claimed by Seigafo."
The Alai'a claim to a tract called Toa bounded on the northeast by the aforementioned stream seems also to have been recognized at one time by Tuia'ana. Asked at trial by counsel for Alai'a whether he had given Alai'a to understand that he recognized the stream as a boundary between their respective properties, Tuia'ana responded, "I would like to say that no matter how many conversations do people have they are not formal and recorded conversations." The inescapable conclusion is that he did make such a statement but wished to avoid taking sides at trial.
*93It is clear that the northwestern boundary of Toa extended somewhat beyond the boundary of the area conveyed to the Church. (See Exhibits 1, 12, and 16; see also the testimony of Si'ufanua in the 1949 case to the effect that the homes in Toa just across the creek from his land were occupied by "school people," but that Seigafo people have plantations on Toa "underneath the mountain.") The southern and eastern boundaries are far less clear. Alai'a testified to the effect that his family history establishes the southern/southwestern boundary at a second stream, about 500 feet toward Leone from the first stream, and that the southeastern boundary extended at least as far as the government road. Another witness testified that these boundaries had been pointed out to him by the then Alai'a during the Second World War as boundaries of the portion of Toa that had been leased to the Church. A third witness testified that even during the term of the Church lease his immediate family had served Alai'a and lived on what they regarded as Alai'a communal land within Mapusaga; the locations in which members of this witness’s family resided lend some support to the southern and eastern boundaries claimed by Alai'a. It was also observed by counsel that people in Samoa and elsewhere often establish their boundaries along streams and thoroughfares.
This evidence, although plausible, is rather thin. Yet it is thicker than the evidence put on by either of the other two claimants to this area, Moea'i and Si'ufanua. Moea'i concentrated on his claim to own all Mapusaga and therefore put on no convincing evidence in what is essentially a boundary dispute between the strong claim of Alai'a in the north and west and Moea'i’s own claim (comprising at least Avalúa) in the south. Si'ufanua initially claimed almost as much as Moea'i and apparently decided on or shortly before the day of trial to concede about half of his claim to Tuia'ana. He inexplicably devoted much of his own testimony to a discussion of the chiefly ranks of the various parties, and never got very specific about boundaries. (He seemed confused even about the location of the area he had won in 1949.) The evidence, such as it is, preponderates in favor of the boundaries asserted by Alai'a. Alai'a therefore has the right to register that portion of his survey which is also within the Moea'i survey, with the exception of the tracts retained by the *94Church and without prejudice to whatever rights Seigafo may have.
Two portions of the land in dispute belong, according to the preponderance of the evidence, to Si'ufanua. One of these parcels is part of the larger tract held to be Si'ufanua property in 1949. It is bounded on the south and west by a stream (of the two streams discussed above, the one toward the northeast or Fagatogo); on the east by a line bearing S 6° 20’ E (the western boundary of the Tuia'ana survey); and on the north, for the purposes of the present case, by the northern boundary of the Moea'i survey. Si'ufanua may of course register this tract if he has not done so already.
The other Si'ufanua tract is on the Leone side of the other stream, the one toward the southwest or Leone. This land was claimed only by Si'ufanua and Moea'i. Moea'i did not claim it in 1966 but designated it on his survey that year as "claimed by Si'ufanua"; witnesses for other parties testified that Si'ufanua has a house and plantations in this area. Therefore Si'ufanua may register the area within the Moea'i survey on the southern side of the stream that marks the southern boundary of the Alai'a survey.
We note that the parties or their representatives have stipulated that the head of any household residing on Mapusaga as of November •12, 1984, may choose either to render tautua to the matai on whose land the residence is located or to enter into a leasehold agreement, the householders in either case to retain title to their improvements to the real property. Tuia'ana, the owner of the land on which the Church cemetery is located, also stipulated that the cemetery would be maintained as such in perpetuity. Interim Stipulation and Stipulation for Dismissal, CA 108-83.
ORDER
Each party may register the portions of Mapusaga described in the opinion as his family’s communal land.
It is so ordered.
At one of the pre-trial conferences the parties stipulated that all of Tuia'ana’s survey would be tried in this case. Assuming that Tuia'ana’s survey has been offered for registration and that no one who is not a party to this case has objected to it, Tuia'ana may register it except insofar as it encroaches on land retained by the Church. If, however, it has not been offered for registration, or if anyone not a party to this case has objected, then Tuia'ana may not register any portion outside the Moea'i survey and the portion already registered pursuant to the 1949 decision. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485386/ | DECREE SUSTAINING DEFENDANT’S MOTION TO DISMISS AND DISMISSING PLAINTIFFS’ PETITION
On this, the 6th day of March, 1967, came on for hearing the Defendant’s motion to dismiss the above cited and numbered cause, wherein counsel for Defendant and Plaintiffs presented oral argument before the Court to explain and emphasize their pleadings in writing on the matter, and ,to cite relevant law or authorities not included in their pleadings filed in the case.
In addition to studying the citations and authorities submitted in writing by both sides for and against the motion to dismiss, the Court undertook independent extensive legal research into the matter.
After considering the pleadings, the cited authorities, the Court’s independent research, and the argument of counsel, it is the unanimous opinion of this Court that the Defendant’s motion to dismiss should be sustained and granted.
*754The Court specifically undertook to consider the four reasons argued by counsel for Plaintiffs why the motion should be denied. The reasons given were as follows: 1. That Lord Campbell’s Act of 1846 was part of the common law; 2. That the word “property” as used in certain citations should include recovery as damages to heirs of the deceased; 3. That the Court should reject the common law altogether where it does not allow damages for wrongful death; and 4. That under the Samoan custom .the heirs of a deceased wrongfully killed are compensated in the form of the traditional “Ifoga.”
In considering each of the above four points the Court found as follows: 1. That Lord Campbell’s Act was a Parliamentary statute and not part of the common law; 2. That the word “property” in the cases cited by counsel for Plaintiffs did not and should not be interpreted as including recovery of damages by the heirs of a deceased; 3. That the Court in this case need not and would not reject the common law regarding wrongful death; and 4. The Court denies counsel for the Plaintiffs’ contention that under Samoan custom the survivors of the deceased are compensated for their loss. Both of the Samoan Judges emphatically agreed that the traditional Samoan “Ifoga” presented to the family of the deceased by the family of the wrongdoer is not meant to compensate the family of the deceased at all, but merely an expression of sorrow and apology. The Court is unanimous in this interpretation.
The Court is convinced from the great weight of authority that the right for recovery for wrongful death is dependent wholly upon statutory authority.
This Court — no matter how harsh the result may seem — does not deem it proper to usurp the prerogatives of the Legislature of American Samoa by legislating from the bench upon a subject which is solely within the province and function of the Legislature.
*755Accordingly, it is hereby ORDERED, ADJUDGED AND DECREED that the Defendant’s Motion to Dismiss is hereby granted and that Plaintiffs’ petition be, and the same is hereby dismissed.
Done this 6th day of March, 1967. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485387/ | DENIAL OF PETITION WITHOUT PREJUDICE
Valelia Gi filed a petition to have the name of her 8 year old natural son Paulo Sikalea changed to Paulo Gi. Paulo was born in American Samoa on Nov. 17, 1958 to Valelia and her first husband, Sikalea, who died when Paulo was less than one (1) year old. Valelia then married Onosai Gi. Before the filing of this Petition, Onosai Gi filed a Petition for the adoption of Paulo joined therein by his *756wife Valelia claiming .that the child had been in the custody of him and his wife Valelia for eight years, and asking that after the adoption Paulo be known as Paulo Gi. At the time set for the hearing on the adoption proceeding, it was related to the Court by Valelia that Onosai had died between the filing of the petition for adoption and the time of the hearing. As a result of the death of the Petitioner the Court had to dismiss the petition for adoption.
It is evident that following Onosai’s death Valelia filed this petition for changing the name of Paulo to show the Gi Family and the Public in general that she and Paulo considered themselves as part of the Gi Family and to honor Onosai’s wish to have this boy bear his name. It appears to us that Valelia’s action both in the Adoption petition and the petition to change Paulo’s name, would clearly indicate that Valelia wanted for her and her son Paulo to be considered and accepted as members of the Gi Family.
After considering the Petition, the testimony, and the evidence, and the tender age of the subject for changing of name, it is the opinion of the Court that Valelia’s petition to change the name of Paulo Sikalea to Paulo Gi should be denied and dismissed without prejudice to a renewal of the Petition at a later date when the child is of sufficient age to understand the nature of the Proceeding.
Accordingly, it is hereby ORDERED, ADJUDGED AND DECREED that the Petition be, and the same is hereby denied and dismissed without prejudice.
Done this 23rd day of March, 1967. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485389/ | ORDER OF THE COURT
Now on this the 4th day of August, 1967, this cause comes on regularly for hearing.
After considering the petition and the testimony and consulting with the Samoan Judges, and considering also the evidence presented to this Court, the Court is satisfied that the Registrar of Vital Statistics has no authority to issue a corrected birth certificate under the present statute; that the changing of such information in birth certificates would entail more than just a discretionary power of the Registrar of Vital Statistics. Accordingly, the Court hereby denies and dismisses the injunction against the Registrar of Vital Statistics. However, the Court finds that the Petitioner and the child at issue have exhausted all the administrative remedies available to them and the Court further finds that the refusal of this petition to have the birth certificate corrected as prayed for would serve to do great damage to both the Plaintiff and the child involved, and this Court finds that it should invoke its equity powers to correct this matter.
Accordingly, it is hereby ORDERED, ADJUDGED AND DECREED, that this Court hereby invokes its equity powers and instructs the Registrar of Vital Statistics to issue a corrected birth certificate to reflect the true facts in the birth certificate of Sarah Teuila Utu as set forth in plaintiff’s petition and it is further the Order of this Court that the corrected birth certificate shall be filed as an *764official record in the office of the Registrar of Vital Statistics.
Done this 4th day of August, 1967. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485390/ | FINDINGS & CONCLUSIONS DELIVERED FOR THE COURT
GOSS, Presiding Judge.
This matter came before the Court on a complaint for damages for injuries to Plaintiff. To facilitate trial, Loke Ioane, an unrepresented prisoner from Western Samoa, was dismissed as a Defendant upon stipulation of parties. After consideration of the evidence herein and the law, Judgment was entered February 12, 1971. Upon request of Defendant, the Court makes it Findings of Fact and Conclusions of Law as follows:
FINDINGS OF FACT
1. Plaintiff is a resident of Taiwan, Republic of China, and on March 5,1968, he was working in American Samoa as Engineer of a fishing vessel, Shing Fu Chen No. 3.
*7662. On March 5, 1968, Defendant Siauni Ah Sam operated the Black Ace Taxi Service, a common carrier.
3. Defendant American Home Assurance Co., a stock insurance company doing business in the Territory of American Samoa, was insurer of the Defendant Ah Sam’s taxicab at the times herein concerned.
4. Loke Ioane, the brother of the Defendant Siauni Ah Sam, was an employee of Ah Sam as driver and operator of a taxi engaged for transportation by Plaintiff and others on March 5, 1968. Plaintiff and his companions were taken from the cannery area to the Pago Bar, where Ioane procured Tali Hunkin. The group then proceeded by taxi to Lauli’i Falls for the purpose of illegal prostitution. Some of the group engaged in intercourse with Miss Hunkin. Plaintiff did not.
5. An argument ensued over fare and over the fact that some of the group declined Miss Hunkin. Ioane drove the group to the village of Aumi, and without legal justification, while Plaintiff was within the taxi, Ioane struck Plaintiff about the head and shoulders with a metal object. Ioane forced the Plaintiff from the taxi, and continued beating him about the head and shoulders. He caused severe injuries — scalp laceration, and contusions to left shoulder, forearm and left side of neck, herein designated Battery # 1.
Shortly thereafter, on the outskirts of the same village, Ioane wilfully drove the said taxicab against the Plaintiff causing him severe injuries including fracture of the rami on the left ischium as well as pubis, subacute cervical strain, left lateral without radiculitis, and chronic and sub-acute left lumbar muscle strain, hereinafter designated Battery # 2.
7. Use of the taxicab herein was with Defendant Ah Sam’s implied permission and was in furtherance of his business. Defendant Ah Sam was given the opportunity to *767prove .the use of the taxicab by his brother in connection with prostitution was not with his implied permission.
8. At the times herein concerned, Ioane was acting within the scope of his employment.
9. The Court takes judicial notice that Plaintiff was not required to use crutches during the earlier criminal trial against Loke Ioane in connection with the incident, but did use crutches during the first portions of the trial of this civil matter.
10. Plaintiff’s condition was to a degree aggravated by his delay in seeking medical attention following discharge from the hospital and his failure to follow a program of physiotherapy.
11. The sum of $400 will reasonably compensate the Plaintiff for the pain suffered by him as a proximate result of Battery # 1, for which Plaintiff has prayed relief.
12. The sum of $2,800 will reasonably compensate the Plaintiff for the pain suffered by him as a proximate result of Battery # 2, for which Plaintiff has prayed for relief.
13. The sum of $3,000 will reasonably compensate the Plaintiff for proven loss of earnings and earning power as a proximate result of the injuries above described, for which Plaintiff has prayed for relief.
14. The sum of $1,000 will reasonably compensate the Plaintiff for the cost to Plaintiff of medical examinations, care and treatment reasonably required and given and reasonably certain to be required, as a result of the injuries above-described and for which Plaintiff has prayed for relief.
CONCLUSIONS OF LAW
1. Section 1.0101, 3, Code of American Samoa, adopts so much of the common law of England as is suitable to conditions in American Samoa and not inconsistent *768with the section. In this sense the common law of England means that body of jurisprudence as applied and modified by the courts of the United States at the time the statute was adopted and as since construed. Fletcher v. Los Angeles Trust and Savings Bank, 182 Cal. 177, 187 P. 425, 427.
2. In defining the common law, and where not bound otherwise by prior decision of this Court, it is ordinarily appropriate that the Restatement of the Law be followed in order to more nearly effect uniformity of decision. Smith et al. v. Normart, 51 Ariz. 134, 75 P.2d 38. This is in accord with the object for which the Restatement was adopted by the American Law Institute. Restatement of the Law, 4 Torts x.
3. The Court has considered and rejected that the Plaintiff should be barred from bringing his action because of his connection with a group engaged in illegal prostitution. A person is not barred from recovery for an interferance with legally protected interests by the fact that at the time of the interference he was committing a tort or a crime. A person does not become an outlaw and lose all of his rights by doing an illegal act. Kapson v. Kubath, 165 F.Supp. 542, 550-51. Restatement of the Law, 4 Torts 471,473; See. 889,889 c.
A rogue does not appeal to the conscience of the Court; yet even a rogue may have a cause of action. Manning v. Noa, 345 Mich. 130, 76 N.W.2d 75, 77 A.L.R.2d 955-963.
4. Common carriers, by reason of the duty owed their passengers to protect them against acts of personal violence upon the part of their employees, are liable for the acts of assault and battery by their employees upon passengers, without inquiry into whether the employee was acting within the scope of his authority or in line of duty, for the carrier is practically an insurer against injury .to passengers from this cause. O’Brien v. Public Service Taxi *769Co. (C.A. 3 Pa.) 178 F.2d 211. 14 Am.Jur.2d 483-84, Carriers Sec. 1061.
5. Chapter 25.20, Revised Code of American Samoa, was enacted to provide for the safety of the members of the general public and to permit them to recover for damages arising out of the ownership, maintenance or use of taxicabs in American Samoa. The sections constitute conditions under which the Ah Sam taxicab was permitted to operate and should be liberally construed.
Sec. 25.2001 — PROOF REQUIRED FOR EACH REGISTERED VEHICLE: In order to control and regulate travel on the public highways and to provide for the public safety, effective July 1, 1967, no vehicle shall be or continue to be registered in the name of any person unless that person files with the Director of Administrative Services a certificate of insurance, or in lieu thereof a bond as provided by Section 25.2007.
Sec. 25.2003 — MOTOR VEHICLE LIABILITY POLICY; DEFINED:
# ❖ *
(b) OWNER’S POLICY — Such owner’s policy of liability insurance:
3. shall, if the vehicle is used in the transportation of passengers for hire, including taxicabs, insure the person named therein and any other person as insured, using such vehicle or vehicles with the express or implied permission of such named insured, against loss from the liability imposed by law for damages arising out of the ownership, maintenance, or use of such vehicle or vehicles subject to limits exclusive of interest and costs, with respect to each such vehicles, as follows: $25,000 because of bodily injury to or death of one person in any one accident and, subject to said limit for one person, $50,000 because of bodily injury to or death of two or more persons in any one accident and $10,000 because of injury to or destruction of property of others in any one accident.
Sec. 25.2009 — DIRECT ACTION AGAINST INSURER: Notwithstanding any provision in the policy to the contrary, on any motor vehicle liability policy the injured person or his heirs or representatives shall have a right of direct action against the in*770surer within the terms and limits of the policy, whether or not the policy of insurance sued upon was written or delivered in American Samoa, and whether or not such policy contains a provision forbidding such direct action, provided that the cause of action arose in American Samoa. Such action may be brought against the insurer alone, or against both the insured and insurer. Leonard v. Murdock, 147 Ohio St. 103, 68 N.E.2d 86. 7 Am.Jur.2d 299-302, Automobile Insurance, Sec. 7.
6. Under R.C.A.S. 25.2003(d) and within the limits of the mandatory coverage, each compulsory motor vehicle insurance policy written in American Samoa is subject to all the provisions of Chapter 25.20 of the Revised Code.
Sec. 25.2003(d) — REQUIRED STATEMENTS IN POLICIES —Such motor vehicles liability policy shall state the name and address of the named insured, the coverage afforded by the policy, the premium charged therefor, the policy period, and the limits of liability and shall contain an agreement or be endorsed that insurance is provided thereunder in accordance with the coverage defined in this chapter as respects bodily injury and death or property damage, or both, and is subject to all the provisions of this chapter.
7. The language of the policy (including the mandatory and incorporated provisions) admits of more than one construction; therefore the one most favorable to the insured must be adopted.
Even were we to conclude that the terms used by the insurance company to spell out its liability were susceptible of more than the simple meaning we have already indicated, this would, of course be of no benefit to the appellant. This is so because all must agree that one perfectly permissible construction of the words would be such as would comprehend the acts resulting in this injury. Thus, there would come into play the rule which appellant recognizes as applicable in Texas: That if the language of an insurance policy admits of more than one construction, that most favorable to the insured must be adopted. McCaleb v. Continental Casualty Co., 132 Tex. 65, 116 S.W.2d 679; Red Ball Motor Freight v. Employers Mutual Liability Insurance Co., supra. Fidelity & Casualty Co. v. Lott, 273 F.2d 500, 502.
*7718. The word “accident” as used in R.C.A.S. 25.2003 (b)3, of the Compulsory Liability Insurance Statute was intended to include a battery where (a) the occurrence is accidental from the standpoint of the injured person and (b) where the battery was not authorized or consented to by the Defendant owner.
The question arises not infrequently whether a personal injury intentionally inflicted may be considered to be the result of an accident within the meaning of a liability policy. The answer to the question depends on whose standpoint is the basis of consideration. From the standpoint of an aggressor an injury willfully inflicted upon another is not an accident; but from that of the victim of an uninvited and unprovoked aggression, the injury is accidental. His right to redress does not depend upon the state of mind of the one who injured him. Georgia Casualty Co. v. Alden Mills, 156 Miss. 853, 127 So. 555, 73 A.L.R. 408; Hartford Accident & Indemnity Co. v. Wolbarst, 95 N.H. 40, 57 A.2d 151; Fox Wisconsin Corporation v. Century Indemnity Co., 219 Wis. 549, 263 N.W. 567; Tedesco v. Maryland Casualty Co., 127 Conn. 533, 18 A.2d 357, 132 A.L.R. 1259; Pettit Grain & Potato Co. v. Northern Pacific Ry. Co., 227 Minn. 225, 35 N.W.2d 127; Appleman’s Insurance Law and Practice, Section 4252; 33 A.L.R.2d 1025. Haser v. Maryland Casualty Co., 78 N.D. 893, 53 N.W.2d 508; 33 A.L.R.2d 1018. 7 Am.Jur.2d 388, Automobile Insurance Sec. 83-84.
9. The policy specifies that the purpose for which the automobile was to be used is as a taxi. Batteries #1 and #2 are liabilities imposed by law arising out of the ownership and use of the taxicab. Green Bus Lines Inc. v. Ocean Accident & Guaranty Corp., 287 N.Y. 309, 39 N.E.2d 251. See discussion of Green Bus Lines Case in 162 A.L.R. 241-248.
10. The driver of the taxi, Loke Ioane, who used the taxi with the permission of the insured, is within the definition of “insured” as set forth in the statute and in the policy. R.C.A.S. 25.2003(b) (3), supra.
*772
Insuring Agreement IV:
DEFINITION OF INSURED: With respect to the insurance for bodily injury liability and for property damage liability the unqualified word “insured” includes the named insured and also includes any person while using the automobile and any person or organization legally responsible for the use thereof, provided the actual use of the automobile is by the named insured or with his permission. The insurance with respect to any person or organization other than the named insured does not apply:
a. to any person or organization, or to any agent or employee thereof, operating an automobile repair shop, public garage, sales agency, service station or public parking place, with respect to any accident arising out of the operation thereof;
b. to any employee with respect to injury to or sickness, disease or death of another employee of the same employer injured in the course of such employment in an accident arising out of the maintenance or use of the automobile in the business of such employer. Haser v. Maryland Casualty Co., supra.
11. No public policy is violated by protecting the insured Ah Sam against unauthorized acts of his servant. Haser v. Maryland Casualty Co., supra, 7 Am.Jur.2d 299-300, Automobile Insurance Sec. 7.
12. Defendants are liable under the statute despite the language of Policy Condition 9 that “assault and battery shall be deemed an accident unless committed by or at the direction of the insured.”
Plaintiff, the named insured, would obviously not be excluded from coverage for the wilful acts of his son if the clause defining additional insured persons did not appear in the policy. That clause was intended to benefit plaintiff by broadening coverage, and its purpose would be defeated if coverage were restricted by using the clause to construe the exclusion provision favorably to defendant company. Cf. Western Casualty & Surety Co. v. Aponaug Mfg. Co., 5 Cir., 197 F.2d 673, 674; Morgan v. Greater New York Taxpayers Mut. Ins. Ass’n, 305 N.Y. 243, 112 N.E.2d 273, 275. Arenson v. National Automobile and Casualty Co., 45 Cal.2d 81, 286 P.2d 816, 818, 2 A.L.R.3rd 1238, 1247.
*77313. The medical expense evidence submitted by Plaintiff and received into evidence should be considered regardless of whether an amendment was offered at the proper .time. Federal Eules of Civil Procedure 15.
14. Plaintiff is entitled to recover from Defendants the amount of $7,200 plus costs of suit. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485391/ | *774This matter comes before us on a complaint for declaratory relief and petition for mandatory injunction. Petitioner is a candidate for the seat of Senator from Lealataua County. He prays for a declaration that he is the duly elected Senator from Lealataua; alternatively, he seeks an order compelling Respondent to submit his name and that of his rival, Noa Lafi, to the Senate for election by that body.
*775Lealataua County consists of the villages of Fagamalo, Fagalii, Poloa, Amanave, Fa’ilolo, Agugulu, Seetaga, Nua, Atauloma, Afao, Amaluia and Asili.1 As it constitutes the twelfth district, it is entitled to seat one senator.2 According to custom, it is divided into two divisions: Tapua’iga and Samatua.3 Prior to the previous senatorial election, all the matais from the County agreed to alternate the seat between the two divisions.4 The former Senator, Tuveve Ameperosa, is a titleholder from Tapua’iga; therefore, according to the agreement, the Senator for this term must be titleholder from Samatua.
Petitioner and Noa Lafi are both registered matais from Lealataua County, Samatua Division, and are fulfilling their obligations required by Samoan custom therein. Both are candidates for Senator. A number of meetings were conducted by the matais of Samatua; however, a decision as to which of these two candidates would be Senator was not reached. It was decided that both names be submitted to the Senate for a decision. Respondent attempted to certify the name of Noa Lafi; however, after investigation initiated by the President of the Senate, both names were submitted to the Senate uncertified by the Election Commissioner. Tuveve Ameperosa, a declared candidate from Tapua’iga, filed objection with the Senate as to both candidates on January 4, 1973.
The matter came on originally for hearing on January 9, 1973. To enable Respondent to obtain assistance of counsel, we continued the hearing until January 17. An order temporarily restraining any candidate from taking the seat was issued, and the parties were advised to attempt further to resolve the dispute according to Samoan custom *776without the necessity of judicial ruling. Prior to the hearing on January 17, the matais of Lealataua County, present in the courtroom, requested time to confer for the purposes of settling the dispute. A short period therefor was granted; however, it proved unavailing. Testimony and evidence were then presented. At the close of Petitioner’s case, we ordered the matter continued until January 26, and suggested that Respondent conduct, after timely notice, a meeting of the County Council to select between the two candidates. Further, we suggested that Respondent keep a written record of the meeting; that he note the absence of any matai; that he keep a written list of the votes for each candidate; and that he request the presence of a representative of the Election Board during the meeting. He failed to call such a meeting.5 Further evidence and argument were submitted on January 26. An order restraining certification and seating of a Senator from Lealataua County until conclusion of these proceedings was issued on January 29, 1973.
We take jurisdiction of this matter pursuant to Constitution of American Samoa, Art. Ill, § 1: “The judicial power shall be vested in the High Court . . . ,” and Revised Code of American Samoa, § 3.0304: “The Trial Division of the High Court shall have original jurisdiction in all civil cases, controversies, and matters....” Although the exercise of jurisdiction here went unchallenged, the Court considered and ruled to so exercise on its own motion. The criteria for subject matter jurisdiction are set forth in Baker v. Carr, 396 U.S. 186 (1962) and approved in Powell v. McCormack, 395 U.S. 486 (1969). They are:
*7771. The case must arise under the Constitution, laws or treaties; 2. it must involve a case or controversy; 3. the cause must be described in a jurisdictional statute. Beyond question, these are met in the instant matter. The cause arises under the Constitution of American Samoa, Art. II, § 4.6 A case arises under the Constitution, according to no lesser authority than the United States Supreme Court, when Petitioner’s claim will be sustained if the Constitution is given one construction and fails if given another. Powell v. McCormack, supra; Bell v. Hood, 327 U.S. 678 (1946). Here, Petitioner’s claim for relief rests on the construction given Art. II, § 4. See Powell v. McCormack, supra, Baker v. Carr, supra. It was decided sub silentio in Bond v. Floyd, 385 U.S. 116 (1966), that a claim to a seat in a legislature is a case and controversy. Accord, Powell v. McCormack, supra. The cause is described in the statutes, heretofore referred, under which we take jurisdiction. The contention that a claim to a seat in the legislature is without the jurisdiction of the Courts even where these criteria are met when faced with a constitutional provision assigning to the legislature the power to judge the elections and qualifications of its members has been rejected squarely in Powell v. McCormack, supra. Presented with such a statute here,7 we find Powell controlling and hold accordingly.8
Art. II, § 22, although not relevant as a jurisdictional consideration, is most significant in determining whether the cause is justiciable or a “political question” requiring resolution by the legislature. See Bond v. Floyd, supra; Powell v. McCormack, supra. In deciding this question, we *778must determine: 1. whether the relief sought is of the type which admits of judicial resolution; 2. whether the cause presents a “political question.”
Although, justiciability was not challenged here, we briefly pass on the question. First, the relief sought, although not clearly pleaded in the complaint, does admit of judicial resolution. We cannot, as Petitioner would have us do, authorize submission of the two names to the Senate for election, for such action would be in violation of the Constitution. See Faliu v. Fofo, Civ. 2504 (1972). Art. II, § 4, requires election by county council, not the Senate. Art. II, § 22, does not alter or provide exemption from that requirement. Further, we cannot render a declaration, also requested by Petitioner, that he is the duly elected Senator, for that would encroach, and critically so, on the power vested in the Senate by Art. II, § 22, and such is not substantiated by a preponderance of the evidence. However, insofar as liberality exists in permitting relief if the facts support such on any theory,9 we have decided to treat this action as seeking a declaratory judgment of the construction of Art. II, § 4, and a mandatory injunction compelling Respondent to comply with that construction in the selection of the Senator from Lealataua County.
A declaration of the construction of a statute is, most positively, within the judicial realm of relief when there is a dispute between the parties, as there exists here, involving the meaning thereof. See Revised Code of American Samoa, § 3.1801; Golden v. Zwickler, 394 U.S. 103 (1969); United Public Workers v. Mitchell, 330 U.S. 75 (1947). Since the county chief’s functions in conducting the meeting of the county council and certifying the suc*779eessful candidate involve “no discretion whatsoever” and are “purely . . . ministerial”, Faliu v. Fofo, supra, a mandatory injunction will lie to compel proper performance of these duties. See Patu v. Uhrle, supra; Sleeth v. Dairy Products Company of Uniontown, 228 F.2d 165 (4th Cir. 1955), cert. denied, 352 U.S. 966 (1956).
The questions presented here are not “political,” but judicial. “The mere fact that the suit seeks protection of a political right does not mean it presents a political question.” Baker v. Carr, supra at 681. Chief Justice Warren, writing for the Court in Powell v. McCormack, delineated the formulations found in the analysis of cases involving potential “political questions.” Id. at 518-519. Brevity compels us to forego that listing. However, the primary consideration here is whether Art. II, § 22,10 is a “textually demonstrated constitutional commitment” to the Senate of the “adjudicatory power” to determine the issues now before us. We think not. The Court in Powell, presented with a similar statute,11 concluded that the statute merely provides that Congress is the judge of whether its members meet the qualifications set forth specifically in the Constitution. In the Constitution of American Samoa, these qualifications are set forth in Art. II, § 3.12 Additionally, the Senate is the judge when “all that is at stake is a determination of which candidates attracted a greater number of lawful ballots.” Roudebush v. Hartke, 405 U.S. 15, 31 *780L.Ed.2d 1, 15 (1972) (Douglas, J., concurring and dissenting) .13 The issues of what need be done for the selection of a senator to conform to Art. II, § 4, and whether those requirements were met in the matter at bar are matters of constitutional interpretation. Such a determination falls within the traditional role accorded courts to interpret the law, and does not encroach on the Senate’s power to judge specific qualifications or determine plurality of votes. The Court, in ordering Respondent to gear his procedures to conform with Art. II, § 4, is simply compelling this administrator to conform his ministerial actions to constitutional dictates which it, as constitutional interpreter, has translated. After these ministerial acts are performed, it is then up to the Senate to rule on any objections to the enumerated qualifications of the candidate so certified by the county chief, including whether he obtained a plurality of votes.
Briefly, the absence of the other formulations articulated in Powell favor justiciability in the case at bar. Insofar as the resolution here involves constitutional interpretation, and not an expression of our own opinion, it does not present a “potentially embarrassing confrontation between coordinate branches.” 395 U.S. at 549. The fact that this Court’s construction may conflict with the construction given by the Senate does not justify us in avoiding our constitutional responsibility. United States v. Brown, 381 U.S. 437 (1965); Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579 (1952) (Frankfurter, J., concurring) .
Art. II, § 4, literally requires that Senators “be elected” by the county councils, and that election is to accord with Samoan custom. “Election is defined as a choice or selection by a body of electors. Board of Educa*781tion of Boyle County v. McChesney, 235 Ky. 692, 32 S.W.2d 26 (1930); see also Black’s Law Dictionary, 609 (Rev. 4th Ed. 1968). In this context, that body of electors is the county councils. Under no reasonable interpretation can it be said that Art. II, § 4, permits appointment of a senator, for “appointment” connotes a “choice or selection by an individual.” Id. at 27. Thus, the choice of senator, lies solely with the county council. Admittedly, by Samoan custom or personal prestige, some matais and Government officials wield great power in the various counties; however, in the election of a senator, this power must be exercised indirectly through the county councils by influence and persuasion, not through the medium of personal appointments, whether that person be county chief, district governor, or governor. In Faliu v. Fofo, supra, we decided that a county chief had no discretion to inject his own selection as senator, and we required him to certify the selection of the county council. Moreover, Art. II, § 22, supports this interpretation, for it empowers the Senate to judge the “elections ... of its own members(,)” without reference to any form of appointment thereof. If the council succumbs to the influence and bidding of a certain chief and decides accordingly, it is a valid exercise of suffrage, for the decision, albeit tainted, is still that of the authorized electoral body. The manner of this election is determined by Samoan custom of the various counties e.g., voice vote, written ballot, computation of number of speakers for each candidate, and consensual agreement. Samoan custom in this context does not transform election into appointment, for that would run afoul of the Constitution.
The evidence before us is incomplete, vague, and contradictory. Both Petitioner and Noa Lafi claim majority support in the County Council; however, the evidence submitted is based on hearsay and merits little, if any, weight. Hearsay evidence is evidence of a statement that *782was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated. E.g., Cal. Evid. Code § 1200(b); United States v. Williamson, 450 F.2d 585 (5th Cir. 1971); United States v. Butler, 446 F.2d 975 (10th Cir. 1971). Both parties attempted to substantiate plurality of support by submitting their own testimony, and that of other witnesses, to statements made out of court by a substantial number of other matais as to support of a particular candidate. This testimony, unless covered by an exception, is barred from consideration by this Court by the hearsay rule and, therefore, fails to substantiate those allegations for which it was offered. Similarly, both parties attempted to prove various agreements and statements, including statements of Paramount Chief Tuitele, allegedly made during this dispute; however, in most cases, the makers thereof, including Chief Tuitele, were not brought before the Court to testify. Since the only evidence thereon was testimony of third persons as to out of court statements, the Court finds that evidence likewise insufficient to prove these agreements and statements, including those of Chief Tuitele, were in fact made.
We find from the evidence before us that the County Council has not chosen, under any view of Samoan custom, the Senator from Lealataua County for this term. The numerous meetings have been unavailing; no action conducted therein can be deemed an election under any stretch of the term. The certification by Respondent was that of his own, individual selection, which, as we pointed out earlier, patently runs afoul of Art. II, § 4. The submission of both names, although uncertified, to the Senate for election likewise collides with the Constitutional mandate of Art. II, § 4. Accordingly, we must remand the election of this senatorial seat to the County Council *783through a grant of injunctive relief, thereby assuring that the selection thereof conforms to the Constitution.
In light of the numerous failures to elect a Senator according to Samoan custom and the division and intempererance created thereby, this Court, in order to insure compliance with Art. II, § 4, and to protect against further strife, must enjoin this election to be conducted according to strict procedures and under the supervision of a neutral official. We find this distasteful. We prefer that these matters be settled by the county councils according to the prevailing custom without litigation. When the Court is compelled to intervene, as in this proceeding, county harmony is dashed and disunity further fueled. It can only be said that the election of a senator in this situation is a. pyrrhic victory.
Testimony was presented, and we so credit, that verbal agreement between the matais of a county council to alternate the senate seat between traditional divisions of a county is Samoan custom in a number of counties. As such, we find such agreements in compliance with Art. II, § 4, and enforceable. We, therefore, hold that the Senator of Lealataua for this term must be a matai from Samatua. The election thereof, however, must be by all the matais of the County Council, irrespective of which division they represent. Art. II, § 4, does not permit election by any less electoral body than the entire county council, nor do we find such in Samoan custom. Accordingly, matais from Tapua’iga may cast votes in this election.
In light of the foregoing, WE HEREBY ORDER AND ENJOIN AS FOLLOWS:
1. That respondent shall conduct an election for the position of Senator from Lealataua County, twelfth Senatorial District, on Saturday, February 3, 1973, commencing at 9:00 A.M. and ending at 1:00 P.M., in the village of Amanave at the house of the pulenuu thereof, Vaielua;
*7842. That said election shall be by secret ballot;
3. That Respondent shall give notice of the time and place of said election by radio or television at least once per day for three days prior to said election;
4. That all members of the County Council holding matai titles from Lealataua County, including those of Tapua’iga District, which are registered in the records of the Territorial Registrar, (a certified copy of those records is incorporated as part of this order and appended hereto as Appendix A) are eligible to cast one vote each in said election;
5. That all votes shall be cast in person at the polling location by the person eligible to cast said vote during the time period prescribed for said election;
6. That any votes cast in violation of this order shall be automatically voided, and disregarded in computing the results of said election;
7. That the candidate from the Samatua Division with the largest number of votes cast in his favor shall be declared the duly elected Senator of Lealataua County and certified as such;
8. That Palauni Tuiasosopo shall be supervisor of said election; that he shall be authorized to make all arrangements for the proper operation of said election, including, but not limited to, the procurement of ballots and a ballot box; that he shall be authorized to be physically present at the polling location during said election; that he shall be authorized to count all ballots and tally the totals thereof; that he shall be authorized to direct Respondent to certify to the Election Commissioner the name of the candidate elected according to the terms of this order as the duly elected Senator of Lealataua County; and that he shall be authorized to perform any other actions which are reasonable and necessary to enforce compliance with the terms of this order; and
*7859. That Respondent shall certify to the Election Commissioner as directed by Palauni Tuiasosopo.
Dated this 29th day of January, 1973.
Constitution of American Samoa, Art. II, § 2.
Revised Code of American Samoa, § 2.0602.
Tapua’iga division: Agugulu, Fa’ilolo, Amanave, Poloa, Fagalii, Maloata, and Fagamalo; Samatua division: Amaluia, Asili, Afao, Nua, and Seetaga.
All parties and witnesses acknowledged the existence of this agreement before the Court. We entertain no conclusions as to its existence or terms.
We find the failure of the County Chief to call a meeting during the continuance an appalling breach of his responsibility to the County. Instead of using his good office to restore harmony, something which is exigently needed at this time, his inaction forces this Court to order the County to so act. The bitterness resulting from his obduracy will last long past the drying of the ink of this decision.
“MANNER OP ELECTION: Senators shall be elected in accordance with Samoan custom by the county councils of the counties they are to represent.”
Constitution of American Samoa, Art. II, § 22.
We expressly disapprove of Moananu v. Sotoa, Civ. 25 (1963) and Sumalevai v. Aso’au Ofisa, Civ. 39 (1965) as contrary to Powell v. McCormack and our holding today.
See, e.g., Falls Industries, Inc. v. Consolidated Chemical Industries, Inc., 258 F.2d 277 (5th Cir. 1958); United States v. White County Bridge Commission, 275 F.2d 529 (7th Cir. 1960); Cf. Patu v. Uhrle, Civ. 2299 (1972).
“QUALIFICATIONS AND OFFICERS: Each House . . . shall be the judge of the elections, returns, and qualifications of its own members. . . .”
U.S. Const. Art. 1, § 5.
“QUALIFICATION OF MEMBERS:
A Senator shall—
(a) be a United States National;
(b) be at least 30 years of age at the time of his election;
(c) have lived in American Samoa at least 5 years and have been a bona fide resident thereof for at least 1 year next preceding his election; and
(d) be the registered matai of a Samoan family who fulfills his obligations as required' by Samoan custom in the county from which he is elected.”
Faliu v. Fono, supra, is not to the contrary, in that the Court only ordered a certain candidate certified by the County Chief; it did not order the Senate to seat that candidate. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485392/ | MEMORANDUM, FINDINGS OF FACT, CONCLUSIONS OF LAW, AND JUDGMENT
Defendant is charged with willful failure to pay his 1969 American Samoa personal income tax and willful failure to file his 1970 American Samoa personal income tax return in violation of the Internal Revenue Code of 1954, § 7203, 26 U.S.C.A. § 7203, as adopted, Revised Code of American Samoa, § 18.0405. § 7203 provides:
“Any person required under this title to pay an estimated tax or tax, or required by this title or by regulations made under authority thereof to make a return . . . keep any records, or supply any information, who willfully fails to pay such estimated tax or tax, make such return, keep such records, or supply such information, at the time or times required by law or regulations, shall, in addition to other penalties provided by law, be guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $10,000 or imprisoned not more than 1 year, or both, together with the cost of prosecution.”
The case came on for trial on October 11, 1972, and continued through October 12, 1972. After the Government rested, Defendant moved the Court for judgment of ac*787quittal. The motion was denied. Defendant again moved the Court for judgment of acquittal after presentation of all the evidence. We deferred ruling thereon pending further submission of points and authorities.
We are again faced with the task of defining “willful” in context of a tax statute. No court in this jurisdiction has previously been called to pass on the term as used in § 7203. As our ruling is one of first impression, we have more than carefully scrutinized the excellent and exhaustive points and authorities submitted by counsel and the foregoing decisions of the various courts of the United States. However, as counsel correctly points out, the various courts which have considered this question are steeped in disagreement. Defendant contends that “willful” in this context requires “bad purpose” or “evil motive,” proffering Spies v. United States, 317 U.S. 492 (1943); United States v. Vitiello, 363 F.2d 240 (3rd Cir. 1966) (2-1 decision); and United States v. Palermo, 259 F.2d 872 (3rd Cir. 1958) as authority. We accept this view in part and reject it in part. Spies v. United States, supra, recognized that “willful” is a word of many different meanings and its construction is influenced by the context in which it is used. “It may well mean something more as applied to nonpayment of a tax than when applied to failure to make a return.” Id. at 497. We read Spies, then, as acknowledging that a different standard applies for failure to file a return than for failure to pay. See United States v. Jannuzzio, 184 F.Supp. 460 (D.C. Del. 1960). With respect to failure to file a return, we think that the definition articulated in United States v. Matosky, 421 F.2d 410 (7th Cir. 1970), cert. denied 398 U.S. 904 (1970) is a correct interpretation, and we hereby adopt it. That case involved a failure to timely file. The Court expressly approved a jury instruction defining “willful” in that context to mean “voluntary, purposeful, deliberate and inten*788tional conduct as distinguished from accidental, inadvertent, or negligent conduct, and that the only bad purpose or bad motive necessary for the Government to prove was a deliberate intention not to file returns which the defendant knew ought to have been filed.” Id. at 412. Accord, United States v. Schipani, 362 F.2d 825 (2nd Cir. 1966), cert. denied, 385 U.S. 934 (1966) (“ ‘Willfully’ under § 7203 calls only for proof that the taxpayer failed to file his return intentionally and knowingly and not through accident or mistake or other innocent cause.” Id. at 831.) See also United States v. Fahey, 411 F.2d 1213 (9th Cir. 1969). We find support in dictum from Spies: “Mere voluntary and purposeful, as distinguished from accidental, omission to make a timely return might meet the test of willfulness.” Id. at 497 and 498. To the extent that the language in United States v. Vitiello, supra, is contrary to this ruling, with all due deference to the eminent and distinguished jurist, Judge William Hastie, we expressly reject that decision. Thus, we define “willful” in this context to mean knowledgeable, and intentional, and not accidental, inadvertent, or negligent.
Failure to pay a tax, on the other hand, partakes of a different standard. Here, we accept Defendant’s definition of “willful” to mean, “bad purpose” or “evil motive.” We again find support in the language of Spies:
“But in view of our traditional adversión to imprisonment for debt, we would not without the clearest manifestation of Congressional intent assume that mere knowing and intentional default in payment of a tax, where there had been no willful failure to disclose the liability, is intended to constitute a criminal offense of any degree. We would expect willfulness in such a case to include some elements of evil motive and want of justification in view of all the financial circumstances of the taxpayer.” Id. at 498.
Palermo v. United States, supra, a landmark decision construing “willful” for failure to pay under the Internal *789Revenue Code of 1939, § 145(a), a predecessor to § 7203, held that the proper standard requires the existence of a specific wrongful intent — an evil motive or bad purpose. We agree and hereby adopt that construction for failure to pay under § 7203.
Applying the foregoing standards to the evidence before us, we find, conclude, and adjudge as follows:
FINDINGS OF FACT
a. Failure to Pay 1969 Income Tax.
1. On August 18, 1970, Defendant Jake King filed a 1969 American Samoa individual income tax return jointly for him and his wife, J. Rae King. The return was timely filed within the extended period granted by the Tax Division. Attached thereto was a United States individual income tax return for 1969 similarly filed by Defendant. Defendant accumulated a gross income of $12,834.57 which, after adjustments, totaled $11,694.57. $1,286.90 in federal income tax had been withheld from his wages. Defendant owed a federal income tax of $274.57; therefore, he was entitled to a refund of $1,022.33, the difference of his withheld wages from the tax. The total American Samoa income tax was $1,372.82; however, Defendant received a credit of $274.57; thus, the actual tax liability was $1,098.26.
2. Sometime during the first week of October, 1970, Defendant received a refund check from the Treasury of the United States in the amount of $1,022.33. He cashed this check on February 12, 1971 and used the money for investment in Samoa News, a newspaper of which Defendant was editor, and for personal living expenses. We discredit Defendant’s testimony that he also used funds therefrom to pay his attorney for representation in deportation proceedings, for his attorney testified, and we so *790credit, that he received no payments of any nature from Defendant during 1971.
3. Defendant was required to pay the entire tax of $1,098.26 by October 17, 1970, at the latest. Defendant received no extension of time in which to pay this tax.
4. Defendant was cognizant of his duty to pay this tax by October 17, 1970; however, he failed to do so. He did make partial payments of $100 respectively on the following dates:
August 30,1971;
November 29,1971;
August 8,1972; and
October 4,1972.
5. Defendant, in part, refused to pay his 1969 American Samoa income tax during the prescribed period to protest deportation proceedings instituted by the Government of American Samoa against him and to coerce the Government into paying him $375.00 for return air fare to the United States, which according .to Defendant, the Government owed him after termination of an employment contract. If he had been deported, Defendant intended to permanently refuse payment of the tax.
6. The United States tax refund check was cashed prior to conclusion of the deportation proceedings and final decision on his $375.00 claim against the Government.
7. Additionally, Defendant failed to pay his 1969 American Samoa income tax during the prescribed period to acquire funds derived from the United States tax refund check for personal financial gain.
8. Defendant’s failure to pay his 1969 income tax within the prescribed period was knowledgeable, intentional, and prompted by the bad purpose of depriving the Government of a tax payment at the time required by law; thus it was willful.
*791b. Failure to File 1970 Income Tax Return.
1. Defendant et ux. filed an American Samoa individual tax return for the year 1970 on May 15, 1972. In addition, on that same date, he filed an amended United States individual tax return for 1970. Both returns were prepared by Arthur Westervelt of the Tax Division of the Government of American Samoa.
2. Defendant timely filed his initial United States return in May of 1971, which had been prepared by H & R Block, a tax consultant firm. This firm had prepared his United States returns for many years. He sent his 1970 Wage and Tax Statement (Form W-2) for American Samoa to H & R Block with the intention of having it prepare his American Samoa tax return, as well as his United States tax return.
3. On April 15, 1971, Defendant requested and received an extension to file his American Samoa tax return from H & R Block, he requested a further extension of time until July 15,1971. The request was submitted and granted on June 14, 1971. Defendant then wrote his wife in the United States and requested the tax information which he had forwarded.
4. In mid-July of 1971, after receipt of the tax information from the United States, Defendant attempted to see Arthur Westervelt for assistance in preparation of his American Samoa tax return. He was informed that Westervelt would not be available for appointment until August 28, 1971. On September 3, 1971, Defendant brought his 1970 United States tax return and his 1970 Form W-2 to Westervelt and requested that he prepare his American Samoa tax return. He agreed to do so, since Defendant’s United States tax return did not properly reflect his foreign tax credit. No date was set for the preparation and filing of either return.
*7925. Neither the Form W-2 nor the United States tax return reflected Defendant’s total income acquired in American Samoa for 1970. Defendant received $1,107.00 additional income for service to Samoa News, which was disclosed to the Government in records of Samoa News submitted by Defendant to the Tax Division, without the issuance of a subpoena, during the first week of July, 1971.
6. Between September 3, 1971 and May 15, 1972, the date the return was filed, Defendant made a number of appointments with Westervelt to discuss the preparation of his tax return; however, Westervelt was frequently unavailable. Westervelt was away from American Samoa for substantial periods of time between those two dates. Whenever Defendant inquired as to the status of his 1970 tax return, Westervelt reassured him that there would be no problem. Defendant frequently discussed his tax situation with officials of the Tax Division during this period.
7.' Defendant was required to file his 1970 American Samoa tax return by July 15, 1971. He was never notified of delinquency; however, he was aware that he was required to file within the prescribed period. He had properly filed individual tax returns in 1967, 1968, 1969 and a 1970 corporate tax return for Samoa News on August 23, 1971.
8. Defendant’s failure to file his 1970 tax return was not willful; although knowledgeable, it was not deliberate and intentional, but was the result of inadvertence and a negligent reliance upon Arthur Westervelt to prepare and file his return, while protecting his time for filing during the process thereof.
CONCLUSIONS OF LAW
a. Failure to Pay the 1969 Income Tax.
1. Defendant was a person required to pay personal income tax to the Government of American Samoa. Internal *793Revenue Code of 1954, 26 U.S.C.A. § 1, incorporated by reference, Revised Code of American Samoa, § 18.0401.
2. Defendant owed $1,098.26 in income tax for the year 1969. This amount was due the Government of American Samoa within 10 days after receipt of the income tax refund check from the United States Treasury. Revised Code of American Samoa, § 18.0409 (b).
3. “Willful” as used in § 7203 for failure to pay a tax requires an intentional and deliberate omission prompted by a bad purpose or evil motive.
4. Defendant’s intentional and deliberate failure to pay his 1969 income tax motivated by the bad purpose of depriving the Government of tax payment at the time required by law is sufficient to constitute “willful” under § 7203. See United States v. Litman, 246 F.2d 206 (3rd Cir. 1957) (Hastie, J.), cert. denied 355 U.S. 869 (1957). “Punctuality is important to the fiscal system, and these are sanctions to assure punctual as well as faithful performance of these duties.” Spies v. United States, supra, at 496. Though Defendant’s refusal to pay was assertedly for the purpose of coercing the Government to pay him $375.00 return air fare to the United States and to protest the institution of deportation proceedings, the intent to deprive the Government of payment at .the time required by law to accomplish these ends is sufficient to constitute “bad purpose.” Cf. People of City of Detroit v. Pillon, 18 Mich. App. 373, 171 N.W.2d 484 (1959). It is no defense that Defendant objects to the operation of the Government or detests its activities. See United States v. Porth, 426 F.2d 519 (10th Cir. 1970), cert. denied 400 U.S. 824 (1970); Ward v. United States, 344 F.2d 316 (10th Cir. 1965), cert. denied, 385 U.S. 1014 (1965); Swallow v. United States, 325 F.2d 97 (10th Cir. 1963), cert. denied, 371 U.S. 950 (1963), reh. denied 372 U.S. 925 (1963). Although the *794purpose is to only deprive the Government of payment temporarily, it is sufficient to constitute “willfulness.” Sansone v. United States, 380 U.S. 343 (1965). Nevertheless, Defendant avowed to never pay the tax in the event he was deported from American Samoa, which, obviously, shows more than an intent to temporarily deprive the Government of payment. Moreover, the intent to so deprive the Government does not have to be the predominant motivation; “If the tax-evasion motive plays any part in such conduct the offense may be made out. . .” Spies v. United States, supra, at 498. See Gennaro v. United States, 369 F.2d 106 (8th Cir. 1966), cert. granted on other grounds, United States v. Magliano, 336 F.2d 817 (4th Cir. 1964). The sincerity to which Defendant held his asserted purposes in refusing to pay the tax is discounted by the cashing and use of funds from the United States tax refund check for personal purposes prior to the outcome of the deportation proceedings and final decision on his $375.00 claim. Thus, we think that apart from the purposes so enumerated, Defendant had the purpose of evading payment of the tax at the time acquired in order to use the funds to invest in Samoa News in hopes of future financial gain. At the conclusion of the deportation proceedings, Defendant would have been able to virtually pay his tax liability with that refund check. By way of observation, it is noted that two years have expired since Defendant’s tax obligation arose, and he has not yet discharged that responsibility to his Government.
5. Although Defendant did make partial payment, discharge of a tax liability by voluntary payment does not constitute a bar to criminal liability. United States v. Ross, 135 F.Supp. 842 (D.C. Md. 1955); United States v. Sabourin, 157 F.2d 820 (2nd Cir. 1946), cert. denied, 329 U.S. 800 (1946).
*7956. Defendant’s failure to pay his 1969 income tax constitutes a violation of § 7203, as adopted, Revised Code of American Samoa, §18.0405.
b. Failure to File 1970 Tax Return.
1. Defendant was a person required to file a 1970 income tax return with the Government of American Samoa. Internal Revenue Code of 1954, § 6011, 26 U.S.C.A. § 6011, incorporated by reference, Revised Code of American Samoa, § 18.0401.
2. Defendant was required to file his 1970 American Samoa tax return by July 15,1971.
3. “Willful” as used in § 7203 for failure to file a return means voluntary, purposeful, deliberate and intentional conduct as distinguished from accidental, inadvertent, or negligent conduct.
4. The Government failed to prove the essential element of willfulness. Despite Defendant’s knowledge of the time requirements for filing and his failure to comply therewith, this failure was not shown to be intentional or deliberate. Conversely, the evidence presented establishes a pattern of affirmative acts designed to comply with that requirement: Defendant promptly obtained extensions of time and wrote for his tax materials when it became apparent H & R Block had not prepared his return; he attempted to make an appointment with Arthur Westervelt prior to expiration of the time for filing; he submitted his tax information and requested assistance as soon as Westervelt became available for consultation; and he frequently inquired at the Tax Division as to the progress in preparing his return during the period in which he was in default. Admittedly, Defendant went astray in failing to obtain extensions of time and in neglecting to aggressively pursue the preparation of his return; however, these omissions, at best, amount to inadvertence and a negligent reliance on a tax official to protect his time and file his re*796turn. Defendant’s reliance on Westervelt’s assurances that there was no problem and the absence of notification of delinquency are not characteristics one would ascribe to a model taxpayer, for such a person would examine the records at the Tax Division to insure that he was not in default; however, such conduct falls short of culpability. Defendant’s failure to include his personal tax information does not divine, as the Government contends, an intentional failure to disclose; any such though [sic] is disspelled [sic] by the fact that Defendant voluntarily submitted that information in the records of Samoa News provided the Tax Division without the issuance of a subpoena. Defendant’s failure to timely file his 1970 tax return, although unfortunate, resulted from a bizarre combination of Defendant’s negligence and the Tax Division’s inadvertence in failing to notify Defendant of his default, and as such, we think that it squarely falls within the “negligent conduct” and “innocent cause” distinguished from willfulness by United States v. Matosky, supra, and United States v. Schipani, supra.
5. Defendant’s failure to file his 1970 tax return did not constitute a violation of § 7203, as adopted, Revised Code of American Samoa, § 18.0405.
It is hereby ORDERED AND ADJUDGED that Defendant’s motion for judgment of acquittal of willful failure to file his 1970 income tax return be granted; of failure to pay his 1969 income tax be denied; and that Defendant is guilty of willful failure to pay his 1969 income tax in violation of § 7203, as adopted, Revised Code of American Samoa, § 18.0405.
The Defendant is ordered to present himself for imposition of sentence on December 15, 1972 at 9:00 A.M. DATED: December 8,1972.
*797JUDGMENT OF COURT
The Defendant having been convicted of a violation of Section 18.0405 of the Revised Code of American Samoa, and the Defendant being present in Court:
(1) It is ordered that the imposition of sentence is hereby suspended for a period of 12 months, and the Defendant is hereby placed on probation for said period and shall report to the Probation Officer as directed.
This probation is subject to the following terms and conditions:
1. Report to the Probation Officer once every month.
2. Be of good conduct and obey all laws applicable to American Samoa.
3. Report any change of address.
4. Pay the balance of any income tax due the Government of American Samoa, plus interest to date, within a period of six months from the date hereof. Such payments shall be made through the Probation Officer in such amount or installments as the Probation Officer shall direct.
5. Pay a fine in the amount of $250.00, plus court costs in the amount of $25.00, through the Probation Officer, at the rate of $75.00 per month, the first of which payment shall be made on or before the 3rd day of March, 1973, and a like amount on or before the 3rd of each consecutive calendar month thereafter, until the full amount of $275.00 has been paid in full.
Dated this 2nd day of February, 1973. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485393/ | *799Dated this 7th day of November, 1973.
The dispute in this case arose out of the senatorial elections of 1972. After a meeting, and election of the Leasina County Council on November 18, 1973, the County Chief (Fofo) certified Tuitasi Faamasani (hereinafter Tuitasi) to the Election Commissioner. Lualemaga Faliu filed an objection to the certification with the Commissioner and also petitioned the High Court to order Fofo to certify his name (Lualemaga Faliu). CA 2504-72. Tuitasi was sworn in on January 3, 1973 assuming all the rights, duties, privileges, and trappings of a duly elected Senator, and acquiring the honor and prestige that go with such a high position.
Pursuant to a court order of January 8, 1973, on February 5, 1973, Fofo certified the name of Lualemaga Faliu to the Election Commissioner. Fofo’s certification of Lualemaga Faliu purported to void his original certification of Tuitasi. CA 2504-72.
Meanwhile, with papers dated February 7 but not filed until February 14, 1973, Tuitasi moved to intervene and have the Court set aside its order in CA 2504-72. The *800Petition was supported by affidavits of Tuitasi, Fofo as County Chief, and six other chiefs of Leasina County. All averred that the majority of the matais at the November 18th elections supported Tuitasi, that Lualemaga Faliu was not so supported, and some additionally swore that Lualemaga Faliu had only arrived in Samoa during November of 1972 (in effect, that he did not meet the Constitutional residency requirement. Constitution of American Samoa Article II, § 3). By order dated February 9, 1973, the Court refused untimely intervention, declined to overturn its order (requiring Fofo to certify Lualemaga Faliu) for lack of standing, and added that nevertheless the issues raised were not justiciable. The Court stated: “Our judgment in this case only operated to compel the County Chief to certify petitioner to the Election Commissioner, challenges to his seating on the grounds alleged here must be directed to the Senate.” CA 2504-72.
Meanwhile, following a meeting of the Senate on February 4, 1973, Lualemaga Faliu was approved by that Body to be the Senator from Leasina County; he was sworn in on February 15,1973.
The present action for declaratory relief, CA 2561-73, was commenced by complaint filed May 29,1973. Petitioner Tuitasi seeks an affirmative declaration of his right to the Senate seat currently held by Lualemaga Faliu, the Respondent. In his brief, Petitioner asserts that CA 2504-72 is not res judicata of the present action and, that the Court has a duty to demand and to require compliance with the Constitution and the laws of American Samoa. In his answer to the complaint, Respondent, in effect, moved to dismiss for lack of jurisdiction.
We find that although the matters in issue are not controlled by principles of res judicata, the claim is not justiciable, and the Respondent’s motion to dismiss is hereby granted.
*801It should he noted at the outset that a plea of res judicata is an affirmative defense which must be pleaded and proved by the party asserting it unless it appears affirmatively in the pleadings of the party against whom it is asserted. See Hayles v. Randall Motor Co., 455 F.2d 169 (10th Cir. 1972); National Lead Co. v. Nuisen, 131 F.2d 51 (6th Cir. 1942).
A liberal reading of Respondent’s answer in the instant action reveals, in essence, a motion to dismiss based in part upon the court’s previous adjudication of lack of jurisdiction. A motion to dismiss is the proper procedure by which to raise the defense of res judicata. Connelly Foundation v. School District of Haverford Township, 326 F.Supp. 241 (D. Pa. 1971). Since Petitioner has also briefed the matter, arguing that CA 2504 (1972) is not res judicata in the instant action in his Memorandum of Law filed September 12, 1973, the Court will address that issue.
The doctrine of res judicata concerns the effect accorded a prior judgment in a later, related action. There are two main rules embodied in the doctrine: the first covers the effect of a judgment in a subsequent controversy involving the same cause of action, the second covering later controversies involving a different cause of action. See Jefferson School of Social Science v. Subversive Activities Control Board, 331 F.2d 76 (D.C. Cir. 1963); Henderson v. United States Radiator Corp., 78 F.2d 674 (10th Cir. 1935); Scott, “Collateral Estoppel By Judgment,” 56 Harv. L. Rev. 1 (1942).
The classic statement of the distinction between the effect of a judgment on a subsequent action involving the same or a different cause of action appears in Cromwell v. Sac County, 94 U.S. 351, 24 L.Ed. 195, 197-198 (1877): A judgment upon the merits constitutes an absolute bar to a subsequent action upon the same claim between the same *802parties or those in privity with them; but if the second action between the same parties is upon a different claim or cause of action, the judgment in the prior action operates as an estoppel only as to those matters in issue or points controverted, upon the determination of which the finding or verdict was rendered. Accord, Partmar Corp. v. Paramount Theatres Corp., 347 U.S. 89, 74 S.Ct. 414, 98 L.Ed. 532 (1954). See Scott, “Collateral Estoppel By Judgment,” 56 Harv. L. Rev. 1 (1942).
The first rule embodied in the doctrine of res judicata, that which deals with repetitious suits involving the same cause of action, is usually referred to as the general rule of res judicata. See e.g., Commissioner v. Sunnen, 333 U.S. 591, 68 S.Ct. 715, 92 L.Ed. 898 (1948). The scope of the conclusiveness accorded the prior judgment in the subsequent action is quite broad. When a court of competent jurisdiction has rendered a final judgment on the merits of a cause of action it concludes “parties and those in privity with them, not only as to every matter which was offered and received to sustain or defeat the claim or demand, but as to any other admissible matter which might have been offered for that purpose.” Cromwell v. Sac County, 94 U.S. 351, 24 L.Ed. 195, 197 (1877) (Emphasis supplied). In other words, parties and their privies are forever barred from relitigating the same cause of action since entry of the judgment in the first action conclusively settles all matters that were or might have been determined therein. Partmar Corp. v. Paramount Theatres Corp., 347 U.S. 89, 74 S.Ct. 414, 98 L.Ed. 532 (1954). Accord, Tutt v. Doby, 459 F.2d 1195 (D.C. Cir. 1972); Flynn v. State Board, 418 F.2d 668 (9th Cir. 1969) (per curiam). “The judgment puts an end to the cause of action, which cannot again be brought into litigation between the parties on any ground whatever, absent fraud or some other factor *803invalidating the judgment.” Commissioner v. Sunnen, 333 U.S. 591, 68 S.Ct. 715, 92 L.Ed. 898, 906 (1948).
The second rule embodied in the doctrine of res judicata comes into play when the subsequent suit involves a different cause of action; it is more precisely referred to as the doctrine of collateral estoppel. Tutt v. Doby, 459 F.2d 1195, 1197 (D.C. Cir. 1972). See Commissioner v. Sunnen, 333 U.S. 591, 68 S.Ct. 715, 92 L.Ed. 898, 906 (1948); Scott, “Collateral Estoppel By Judgment,” 56 Harv. L. Rev. 1 (1942). Collateral estoppel also binds both parties and privies to the earlier action. Southern Pacific R.R. v. United States, 168 U.S. 1, 18 S.Ct. 18, 42 L.Ed. 355 (1897); V & S Ice Machine Co. v. Eastex Poultry Co., 437 F.2d 422 (5th Cir. 1971); Jefferson School v. Subversive Activities Control Board, 331 F.2d 76 (D.C. Cir. 1963). But the scope of the conclusiveness accorded the prior judgment is much narrower when collateral estoppel, as opposed to the first or general rule of res judicata, applies. The parties and their privies “are free to litigate points which were not at issue in the first proceeding, even though such points might have been tendered and decided at that time” and are only estopped in the second proceeding from relitigating “matters which were actually litigated and determined in the first proceeding.” Commissioner v. Sunnen, 333 U.S. 591, 68 S.Ct. 715, 92 L.Ed. 898, 906 (1948). Accord, Lawlor v. National Screen Service Corp., 349 U.S. 322, 75 S.Ct. 865, 99 L.Ed. 1122 (1955); Partmar Corp. v. Paramount Theatres Corp., 347 U.S. 89, 74 S.Ct. 414, 98 L.Ed. 532 (1954). See Scott, “Collateral Estoppel By Judgment,” 56 Harv. L. Rev. 1 (1942). The doctrine of collateral estoppel, then, only stops parties or privies from relitigating a right, question, or fact, actually litigated and determined in the prior action.
Of the two rules embodied in the doctrine of res judicata, the first is a broad and the second a narrow application* of *804the general principle underlying the doctrine; namely, that matters already adjudicated should not be relitigated. “The purpose of the res judicata and estoppel doctrines is to avoid repetitious trials, to end litigation, to make a final determination of controversies and to avoid conflicting adjudication.” Wittenberg v. United States, 304 F.Supp. 744 (D. Minn. 1969).
Requisite to the operation of either rule under the doctrine is the requirement of privity. The plea of res judicata does not apply against one who was neither a party or in privity with a party in the prior proceeding. Mid-Continent Casualty Co. v. Everett, 340 F.2d 65 (10th Cir. 1965); Hughes v. Sun Life Assurance Co., 159 F.2d 110 (7th Cir. 1946); McGhee v. United States, 437 F.2d 995, 194 Ct. Cl. 86 (1971). See Jefferson School of Social Science v. Subversive Activities Control Bd., 331 F.2d 76 (D.C. Cir. 1963); Teitelbaun Furs, Inc. v. Dominion Insurance Co., 59 Cal.2d 601, 375 P.2d 439, 25 Cal. Rptr. 559 (1962). One who is neither a party or a privy is, in the eyes of the law, a stranger to the action. To hold that a judgment in a prior action was binding upon a stranger to that action in a subsequent proceeding would be a denial of due process. The doctrine of res judicata must conform to the mandate of due process that no person can be deprived of personal or property rights by a judgment without notice and an opportunity to be heard. Bernhard v. Bank of America, 19 Cal.2d 807, 122 P.2d 892, 894 (1942). “The doctrine of res judicata rests at the bottom upon the ground that the party to be affected, or some other with whom he is in privity, has litigated or had the opportunity to litigate the same matter in a former action in a court of competent jurisdiction.... The opportunity to be heard is an essential requisite of due process of law in judicial proceedings.” Postal Telegraph Cable Co. v. Newport, 247 U.S. 464, 476 (1918) (Citations omitted).
*805Tuitasi was not a party to CA 2504. After the Court had issued its order requiring Fofo to certify Faliu, Tuitasi did in fact try to intervene; but the Court expressly ruled that since Tuitasi was not a party at the time of judgment he had no standing to appeal its judgment. See Opinion dated February 9,1973.
Nor was Tuitasi in privity with a party to CA 2504. To be in “privity” the nonparty must be so identified in interest with a party to the former litigation that he represents the same legal right in respect to the subject matter involved. Jefferson School of Social Science v. Subversive Activities Control Board, 331 F.2d 76 (D.C. Cir. 1963). Accord, Mpiliris v. Hellenic Lines Limited, 323 F.Supp. 865 (D. Tex.) Affirmed, 440 F.2d 1163 (5th Cir. 1971). See also, Restatement of Judgments § 83, Comment a (1942). Tuitasi was not “identified in interest” with either of the parties to the prior litigation. It cannot be gainsaid that the interests of Faliu the party and Tuitasi the nonparty were actually adverse. Faliu sought the very seat Tuitasi occupied. Nor was there an identity of interest between Tuitasi and the other party, Fofo. Fofo was being sued in his official capacity, as County Chief. His position was, constitutionally, one of exalted neutrality: he was merely to certify the election results. In CA 2504 the question was whether he had performed this ministerial duty. The legal right he represented was the right of the county chief to certify the election results. It cannot now be held that in the former litigation Fofo represented the same legal right as Tuitasi with respect to the senate seat from Leasina County. Tuitasi’s right with respect to the senate seat as candidate was to be certified if duly elected. Fofo’s right was to do the certifying. There was therefore no privity between Fofo and Tuitasi in CA 2504.
Tuitasi, therefore, not being a party or privy is a stranger to CA 2504. To allow respondent in the present *806action to assert a plea of res judicata based upon the earlier action against petitioner-Tuitasi, a stranger to the earlier action, would be a denial of due process. To be carefully distinguished, however, is the case where a stranger to the earlier action seeks to assert the judgment therein against a party or privy to the earlier action.
Of course, whenever the effect of a prior judgment upon a stranger’s rights in a later action is spoken of, any effect accorded the prior judgment must arise through the operation of collateral estoppel. Since a different party is involved in the second action (the stranger to the first action), the “cause of action” must be different. Comment, “Developments in the Law of Res Judicata,” 65 Harv. L. Rev. 818, 861-862 (1952). When we speak of the effect accorded an earlier judgment in a later proceeding involving a different cause of action, we are speaking of the second rule embodied in the doctrine of res judicata; that is, the doctrine of collateral estoppel. Because of the notice and opportunity to be heard requirements of due process a party or privy to a prior action cannot bind a stranger to any determination made in reaching the judgment. “Courts long assumed that the corollary must be true — if strangers are not bound by a judgment, they cannot obtain the benefit of it. This conclusion has been frequently expressed as the requirement of mutuality of estoppel.” Id. For years the requirement of mutuality of estoppel was invoked to limit the scope of operation of the doctrine to parties and privies to the earlier. The mutuality limitation was rejected in the landmark decision by Chief Justice (then Justice) Tray-nor) in Bernhard v. Bank of America, 19 Cal.2d 807, 122 P.2d at 894-895, with quotations omitted and emphasis supplied:
The criteria for determining who may assert a plea of res judicata differ fundamentally from the criteria for determining against whom a plea of res judicata may be asserted. The requirements of *807due process of law forbid the assertion of a plea of res judicata against a party unless he was bound by the earlier litigation in which the matter was decided. ... He is bound by that litigation only if he has been a party thereto or in privity with a party thereto. . . . There is no compelling reason, however, for requiring that the party asserting the plea of res judicata must have been a party, or in privity with a party, to the earlier litigation.
No satisfactory rationalization has been advanced for the requirement of mutuality. Just why a party who was not bound by a previous action should be precluded from asserting it as res judicata against a party who was bound by it is difficult to comprehend. . . .
In determining the validity of a plea of res judicata three questions are pertinent: Was the issue decided in the prior adjudication identical with the one presented in the action in question? Was there a final judgment on the merits? Was the party against whom the plea is asserted a party or in privity with a party to the prior adjudication?
There is no denial of due process when a stranger to an earlier action invokes it against a party or privy to the proceeding in a later action since that party or privy has had his day in court.
It has been recognized that rigid adherence to the mutuality requirement would actually defeat the policy underlying the doctrine of res judicata; namely, that there ought to be an end to litigation. See Isreal v. Wood Dolson Co., 1 N.Y.2d 116, 134 N.E.2d 97 (1956). To preclude a stranger from estopping a relitigation of an issue by a person who has previously had a full opportunity to litigate it “would be to allow repeated litigation of identical questions, expressly adjudicated, and to allow a litigant having lost on a question of fact to re-open and re-try all the old issues each time he can obtain a new adversary not in privity with his former one.” Lober v. Moore, 417 F.2d 714 (D.C. Cir. 1969).
To summarize. This is not a case of a stranger to an earlier action seeking to assert the judgment therein, in a *808subsequent action, against one who was a party or privy to the prior proceeding. Rather, it is the converse. The question presented here is whether Respondent-Faliu, a party to CA 2504-72, can bind Petitioner-Tuitasi, a stranger to the previous proceeding, by the judgment rendered in that prior action. The answer is in the negative since to do so would be to deny petitioner due process of law.
Since Tuitasi is not bound under the doctrine of res judicata by the High Court’s ruling in CA 2504 (1972) that his claim is not justiciable, the Court will proceed to consider this jurisdictional issue.
Resolution of the jurisdictional issue raised in the case requires a two step analysis. On the one hand, the Court must determine whether it has subject matter jurisdiction. On the other hand, the Court must determine whether, even having jurisdiction over the subject matter, it will exercise that jurisdiction, i.e., whether the claim is justiciable. See Powell v. McCormack, 395 U.S. 486, 89 S.Ct. 1944, 23 L.Ed. 491 (1969).
An extended analysis of subject matter jurisdiction in contests over legislative seats will be found in Meredith v. Mola, 4 A.S.R. 773 (1973) and Powell v. McCormack, 395 U.S. 486, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969). In Meredith the High Court outlined the three criteria necessary to give the Court subject matter jurisdiction: “1. the case must arise under the Constitution, laws or treaties; 2. it must involve a case or controversy; 3. the cause must be described in a jurisdictional statute.” Meredith v. Mola, supra.
Applying these criteria to the instant action, it is apparent that the Court has subject matter jurisdiction. In Meredith the Court ruled that a case arises under the Constitution when petitioner’s claim will be sustained if the Constitution is given one construction and fails if given *809another. Id. at page 4. In this action petitioner’s claim for relief rests upon the construction given both Article II, § 3 (Qualifications) and Article II, § 4 (Manner of Election), Constitution of American Samoa. Petitioner claims that he was duly elected and qualified, whereas respondent was not so elected or qualified. The Court also ruled in Meredith that a claim to a legislative seat is a “case or controversy.” Id. And finally, this cause is described in a jurisdictional statute. “The judicial power of American Samoa shall be vested in a High Court of American Samoa....” 5 A.S.C. § 1 (1973). “The trial division of the High Court shall have original jurisdiction in all civil cases, controversies, and matters. ...” 5 A.S.C. § 402(a) (1973). All of the criteria for subject matter jurisdiction are, therefore, present.
Having concluded that there is subject matter jurisdiction, the question of whether or not the Court will exercise that jurisdiction must now be addressed. In deciding whether the claim is “justiciable” the Court must determine: 1. whether the claim presented and the relief sought are of the type that admit of judicial resolution; 2. whether because of the structure of the Government of American Samoa the cause presents a “political question” — that is, a question which should not be decided by the High Court because of the separation of powers. See Meredith v. Mola, supra; Powell v. McCormack, 395 U.S. 486, 89 S.Ct. 1944, 23 L.Ed.2d 491, 514 (1969).
The relief sought by the petitioner in his complaint is a declaratory judgment, pursuant to Ch. 3.18 et seq., R.C.A.S. (1961) which is 11 A.S.C. § 6671 et seq. in the 1973 edition, that he (Petitioner-Tuitasi) is the duly elected and qualified senator from Leasina County, whereas his opponent (Respondent-Faliu) was not so elected or qualified. Article II, § 22 of the Constitution of American Samoa expressly reserves to each House of the Legislature *810the right to judge the elections and qualifications of its “members.” Respondent-Faliu was sworn in as the senator from Leasina County on February 15, 1973, and is presently still serving in that capacity. For the Court to now render a declaration, as petitioner would have it do, that Petitioner-Tuitasi was elected and qualified, and that Respondent-Senator Faliu was neither duly elected nor qualified would be a clear usurpation of the Legislature’s constitutional right. See Meredith v. Mola, supra. At this point, Respondent-Faliu is clearly a “member” of the Senate; and, consequently, it is the Senate that has the express constitutional right to adjudicate any dispute over his election or qualifications. Meredith v. Mola, is not inopposite to this conclusion. This is not simply a matter of constitutional interpretation, falling “within the traditional role accorded the courts to interpret the law,” as was the case in Meredith. Rather, petitioner would have the Court go beyond interpretation and render an affirmative declaration that certain clear and unambiguous constitutional provisions have not been complied with. This he requests the Court to do in the face of an express constitutional delegation to the Senate to adjudicate such noncompliance, if any. In short, the claim presented and relief sought are of the type that admit of legislative adjudication rather than judicial resolution at this point.
An examination of the second criteria of “justiciability” renders a similar result. The issues raised by petitioner’s complaint present the High Court with “political questions” and a “political question” is not justiciable because of the separation of powers within the Government of American Samoa. Here, as in Meredith, the primary consideration in determining whether the issue presented is a “political question” is whether Article II, § 22 of the Constitution of American Samoa is a “textually demonstrated constitutional commitment” to the Senate of the *811“adjudicatory power” to determine the issue now before the Court. Meredith v. Mola, supra. In this case there is such a commitment.
One of the issues raised by petitioner is whether he or respondent received the most votes at the election. It is well settled that the Senate is sole judge when “all that is at stake is a determination of which candidates attracted the greater number of lawful ballots.” Meredith v. Mola, supra citing Roudebush v. Hartke, 31 L.Ed.2d 1, 15 (1972). Since Article II, § 22 is a “textually demonstrated constitutional commitment” to the Senate to judge the issue of whether petitioner or respondent received the most votes, the issue presented is a “political question” and not justiciable.
The other issue raised in petitioner’s complaint concerns the alleged failure of Senator Faliu to meet the qualifications set forth in Article II, § 3 of the Constitution of American Samoa. Obviously, Respondent-Faliu is a “member” of the Senate, having been sworn in on February 15,1973, and presently serving. Article II, § 22, vests in the Senate the right to judge the qualifications of its members. As such, Article II, § 22, is a “textually demonstrated constitutional commitment” to the Senate to judge the qualifications expressly set forth in Article II, § 3. See Meredith v. Mola, supra; Powell v. McCormack, 395 U.S. 486, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969). Since the issue raised is respondent’s alleged failure to meet the standing qualifications of Article II, § 3, and the power to adjudicate that point is vested in the Senate by Article II, § 22, the issue presents a “political question” and, hence, is not justiciable.
Copies of this Decision shall be served upon both parties or their counsel and affidavit of service filed by the person effecting such service. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485394/ | I
FINDINGS OF FACTS
1. Peter J. Brennan, Ine. is a corporation incorporated under the laws of the State of North Carolina with its principle [sic] place of. business in Charlotte, North Carolina.
*8132. Peter J. Brennan, Inc. of American Samoa is a corporation incorporated under the laws of the State of North Carolina with its principle [sic] place of business in the Territory of American Samoa.
3. At all relevant times herein, both Peter J. Brennan, Inc. and Peter J. Brennan, Inc. of American Samoa (“the Brennan corporations”) were doing business in the Territory of American Samoa.
4. Peter J. Brennan is the President of the Brennan corporations. At all relevant times herein Peter Bruder had the business position of Vice President of these corporations and was responsible for manufacturing and production for the Brennan corporations.
5. Joint Holdings and Trading Company, Ltd. (“Joint Holdings”), is a company duly registered in the Crown Colony of Hong Kong, and at all times relevant herein was doing business in Taiwan, Republic of China. Tristate Trading and Investment Company, Ltd. (“Tristate”), is a company associated with Joint Holdings.
6. Thomas C. Hood is the Director of Tristate and Joint Holdings. During the relevant times herein he was responsible for the business operations of these companies. Jack Tang is the President of Tristate and of Joint Holdings, and was so at all relevant times herein.
7. In early 1972 the Brennan corporations began obtaining partially assembled men’s trousers from a non-party corporation in Taiwan, and then completing those trousers in their American Samoa plant for importation and sale in the United States. During July of 1972, Peter J. Brennan, representing the Brennan corporations, began discussions with representatives of Joint Holdings concerning the possibilities of those concerns working together to provide trousers for the American market. In particular, representatives of the Brennan corporations and Joint Holdings discussed the possibility of Joint Holdings selling the *814Brennan corporations trousers that had been partially assembled in Taiwan by Joint Holdings. The Brennan corporations were to finally assemble the trousers in the American Samoa plant for importation and sale in the United States.
8. Joint Holdings was interested in this arrangement because it would allow them to enter what they felt would be a highly profitable new field. The fact that the trousers could enter the United States duty free if half of their value was added in American Samoa was a very important consideration to Joint Holdings in deciding to make these arrangements.
9. Brennan corporations were primarily interested in dealing with Joint Holdings because they expected rapid growth and expansion and needed credit terms more favorable than they were able to receive elsewhere. In particular, the Brennan corporations wanted to purchase their partially assembled trousers without the obligation of providing an immediate letter of credit.
10. After several meetings, it was agreed by representatives of both parties that Joint Holdings would provide partially assembled trousers for the Brennan corporations’ plant in American Samoa. These trousers were to be provided at the same price that was offered to the Brennan corporations by an alternative source of supply, Marubeni Corporation. Joint Holdings agreed that the terms of payment would be that the full invoice price would be due 120 days after shipment of the goods, although the shipment did not have to be secured by letters of credit. It was also agreed that the trouser manufacturing plant would be installed in a building owned by Tristate which laid vacant at Kaoshiung, Taiwan.
11. Since Joint Holdings had no experience in this type of operation, it was agreed that Mr. Bruder, a representa*815tive of the Brennan corporations, would work with Joint Holdings in establishing the plant at Kaoshiung.
12. In establishing the plant, it was agreed that some of the needed equipment would be ordered and provided by Joint Holdings while other such equipment would be ordered and provided by the Brennan Corporation.
13. In late 1972 Mr. Bruder, with representatives of Joint Holdings, worked out a tentative production schedule that called for the first pairs of partially assembled trousers to be ready in November of 1972. This schedule was not viewed by either party as being more than an estimate or a goal for the operation.
14. All parties attempted to obtain that equipment which they had agreed to obtain for the plant. Due to shipping problems, customs problems, production problems, and other problems not the fault of any party, much of the equipment necessary to begin production of the partially assembled trousers arrived in Kaoshiung much later than had been expected.
15. As a result of the late start up of the plant, trouser production was greatly delayed and the production goals referred to in Finding number 13 above were not met.
16. Throughout all of the discussions and agreements mentioned above Mr. Brennan and Mr. Bruder acted as representatives of the Brennan corporations and they never acted in a personal capacity.
17. The shipment of the partially assembled trousers from the Joint Holdings plant in Kaoshiung to the Brennan facility in American Samoa began in April of 1973 when 29,978 pair were shipped via air to Pago Pago.
18. The shipment referred to in Finding number 17 was released to the Brennan corporations with an invoice price F.O.B. Kaoshiung. Each subsequent shipment was also provided to the Brennan corporations F.O.B. Kaoshiung, and the Brennan corporations did not object to this form of *816billing until the commencement of this action. Transportation for each shipment from Kaoshiung to Pago Pago was arranged by and paid for by the Brennan corporations.
19. While the original credit terms between Joint Holdings and the Brennan corporations did riot provide for any letter of credit to support the shipments, there was no agreement that the line of credit extended by Joint Holdings to the Brennan corporations would be infinite. While no definite limit was set on the credit to be extended by Joint Holdings to the Brennan corporations, the course of conduct throughout all of the negotiations indicated that only a reasonable amount of credit was to be extended. By August of 1973 Joint Holdings had good reasons to question the financial stability of the Brennan corporations because Joint Holdings had not received the audited statements which they had constantly requested from the Brennan corporations, and because they had been made aware of difficulties the Brennan corporations were having in moving the American Samoa trousers into the United States without payment of duty. It was thus reasonable for Joint Holdings to restrict the line of credit extended to the Brennan corporations at that time, and the limit amount of $350,000 that was imposed was reasonable.
20. On August 16, 1973 Joint Holdings shipped, via Korean Airlines, 56,084 pair of trousers from Kaoshiung to Brennan in American Samoa, and these trousers had a value in excess of $180,000.
21. The Brennan corporations did not, and have not to this day, paid Joint Holdings for these trousers, although payment became due in December of 1973.
22. During the time Joint Holdings prepared and sold partially assembled trousers to the Brennan corporations the price charged to the Brennan corporations and fabric usage at the Kaoshiung plant were reasonably close to the original estimates for such, and were reasonable.
*817II
CONCLUSIONS OF LAW
1. There is now due, owing, and unpaid from defendants Peter J. Brennan, Incorporated and Peter J. Brennan, Incorporated, of American Samoa, to the plaintiff, for partially assembled trousers delivered to the Brennan corporations, a sum in excess of $180,000.
2. Mr. Peter J. Brennan and Mr. Peter Bruder, at all relevant times, represented the Brennan corporations and not themselves personally, and thus are not personally liable for any debts that have arisen as a consequence of the agreements referred to above.
3. The hopes, expectations, and goals of the parties to this action, insofar as they included the production schedule discussed in Finding of Fact number 14 above, and the credit terms discussed in Finding of Fact number 19 above, were never part of any binding contract between the parties. Thus, Joint Holdings’ failure to meet the production expectations and its modification of the credit terms cannot constitute the breach of any contract.
4. Any failure to meet the expectations of the parties was not a consequence of the negligence of any of the parties to the arrangements discussed above.
5. If Mr. Peter Bruder did provide a service to Joint Holdings in assisting the set-up of the Kaoshiung pants plant, the defendants have failed to offer any evidence whatsoever to establish the reasonable value of this service, and thus the Court cannot calculate the quantum of benefit, if any, derived by Joint Holdings from such services.
6. Plaintiffs did not and have not committed any acts that constitute fraud, corporate libel and slander, malicious attachment, abuse of process and malicious prosecution, or any other acts that are in reckless and wanton disregard of *818and indifference to the right of the defendants to this action.
Ill
JUDGMENT
WHEREFORE, Defendants Peter J. Brennan and Peter Brnder are dismissed from this action, and JUDGMENT IS RENDERED for the plaintiff Joint Holdings and Trading Co., Ltd., and against defendants Peter J. Brennan, Inc., and Peter J. Brennan, Inc. of Samoa, in the full amount prayed for in the complaint, $180,000. Further, pursuant to 11 A.S.C. 6213 (1973), judgment is hereby entered against Peter J. Brennan, Inc., Peter J. Brennan, Inc. of Samoa, and the Insurance Company of North America.
It is FURTHER ORDERED AND ADJUDGED that each and every counterclaim submitted by each defendant should be, and hereby is, denied. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485395/ | *819These tax cases came on for hearing upon respondent’s motion to dismiss. The motion was based upon the fact that the petition had named “Arthur H. Westervelt, Director of the Tax Office, Government of American Samoa” as respondent whereas a suit of this nature should have been brought against the Governor. This is because the Internal Revenue Code as adopted by American Samoa must be read so as to substitute “Governor” for “Commissioner of Internal Revenue”, Title 23 A.S.C. Section 201 (1973), and the Tax Court rules provide that the Commissioner shall be named the respondent in suits for a review of an alleged deficiency. Tax Court Rule 60(b). The second basis for the motion to dismiss was the fact that the petition when filed was unverified. This second ground was dropped at oral arguments since counsel for the Government acknowledged that under the current Tax Court rule verification is no longer necessary. The motion to dismiss was filed on November 22,1974.
On December 2, 1974 the petitioners, through counsel, filed a motion to amend their petitions as of course pursuant to Tax Court Rule 41(a). The latter rule provides:
(a) AMENDMENTS. A party may amend his pleading once as a matter of course at any time before a responsive pleading is served. If the pleading is one to which no response of pleading is permitted *820and the case has not been placed on the trial calendar, he may-so amend it at any time within 80 days after it is served;
Otherwise a party may amend his pleading only by leave of court or by written consent of the adverse party; and leave shall be given freely when justice so requires. No amendment shall be allowed after expiration of the time for filing the petition', however, which would involve conferring jurisdiction on the Court over a matter which otherwise would not come within its jurisdiction under the petition as then on file. A motion for leave to amend the pleading shall state the reasons for the amendment and shall be accompanied by the proposed amendment. See Rules 36(a) and 37(a) for time for responding to amend the pleadings. (Emphasis supplied.)
The new Tax Court Rules, effective January 1, 1974, may be found in Supplement for use in 1974 of Title 26 U.S.C.A.
A petition with the Tax Court for review of an assessed deficiency must be filed within 90 days after the notice of the deficiency is mailed. I.R.C. Section 6213. See generally, 34 Am.Jur.2d Federal Taxation, para. 9310 et seq. (1973).
Counsel for the Government has resisted petitioner’s motion to amend the petition on the ground that if it is allowed this will be a direct violation of that portion of Rule 41(a) emphasized above. That is, since more than 90 days have elapsed following the notice of the deficiency (the latter notice is on file and dated August 9,1974) petitioners could not now file a petition naming the Governor respondent; therefore to allow them to bring the suit against the Governor by way of amendment would involve conferring jurisdiction on the court over a matter which otherwise would not come within its jurisdiction.
Ordinarily, tax court litigation takes one of two routes. The Tax Court is available only when a deficiency is claimed and a timely tax court petition is filed before the deficiency is paid. If a deficiency is paid after a petition is filed the Tax Court still retains jurisdiction. If the deficiency is paid but no petition is filed with the Tax Court *821within the time prescribed then the suit must be brought in the District Court for a refund. In short, if the taxpayer doesn’t file a timely Tax Court petition or if he claims a refund, his choice is limited to a U.S. District Court or the Court of Claims. But before he can bring suit in either a U.S. District Court or the Court of Claims, the tax assessed must have been paid in full and the timely refund claim must have been filed with the District Director. 34 Am. Jur. 2d Federal Taxation, para. 9303 at 974 (1973).
Under Title 34 A.S.C. Section 201 we find the following substitution of terms:
Except where it is clearly otherwise required, the applicable provisions of the United States Internal Revenue Code of 1954 shall be read so as to substitute “High Court” for “District Court” and “Tax Court”.
There is no mention of a Court of Claims in the latter section. However the Court of Claims would serve the same basic function as the District Court, that is, a forum to litigate claims for refund. So, in American Samoa, the High Court is going to sit as either the Tax Court or as a District Court. It would sit as a Tax Court when a notice of deficiency is issued and the petition timely filed. It would sit as a District Court if the taxpayer doesn’t file a timely tax court petition or if he has already paid the tax and files a claim for a refund. A taxpayer can sue for a refund only after paying the assessed tax in full. Therefore, the practical effect of denying the present amendments of the petitions would be as follows: The petitions would be dismissed since not brought against the proper party; since more than 90 days have expired since the notice of the deficiency, a new petition naming the Governor as respondent would be untimely; consequently, the taxpayer would have to pay the assessment then sue for a refund in the High Court which would sit as a District Court.
*822Whether the motion to amend is granted or denied the actual judicial forms will be the same. That is, if the motion to amend is granted the High Court will review the assessment sitting as Tax Court. If denied, the High Court will review the claim for a refund sitting as a District Court after the taxpayer has paid the alleged deficiency.
As stated above, the current Tax Court rules became effective only last January. Consequently, there are no reported cases construing the present Rule 41(a), specifically, the part thereof that states no amendment shall be allowed after expiration of the time for filing the petition, however, which would involve conferring jurisdiction on the Court over the matter which otherwise would not come within its jurisdiction under the petition which is then on file. Specific judicial precedent is not therefore available.
In construing Rule 40(a) it should be noted that Tax Court Rule 1(b) states “these rules shall be construed to secure the just, speedy, and inexpensive determination of every case.” Therefore, a construction that would be consonant with Rule 1(b)’s directive should be preferred. We now turn to Rule 41(a).
The issue is whether allowing the amendment to the petition so as to substitute Frank C. Mockler, Acting Governor of the Territory of American Samoa, Government of American Samoa for the name of Arthur H. Westervelt, will involve conferring jurisdiction on the Court over a matter which otherwise would not come within its jurisdiction under the petition that is then on file. As discussed above, the High Court is going to have jurisdiction of this controversy either sitting as a Tax Court or sitting as a District Court in a suit for a refund. In a sense, granting the amendment would not result in conferring jurisdiction. It would simply involve allowing the Court to continue sitting as a Tax Court and not require the taxpayer to pay the assessment and then sue for *823a refund with the Tax Court switching hats to sit as a District Court. This construction of Rule 41(a) will secure the just, speedy, and inexpensive determination of this case as directed by Rule 1(b).
To allow the amendment would be just. As stated by counsel for the petitioner in his affidavit in support of his motion to amend, when he filed the action he inadvertently understood that the action should be brought against the Tax Director, Arthur H. Westervelt, under the mistaken belief that the Tax Director serves in the capacity of the Commissioner of Internal Revenue. This is surely an excusable mistake. The Court can take judicial notice of the fact that all tax matters are handled by Mr. Westervelt as Director of the Tax Office. Whether the Court grants the motion to amend or denies it and the petitioners then come in, after having paid the assessment, seeking a refund with Tax Court sitting as a High Court, the person who ultimately will sit at respondent’s bench will be Mr. Westervelt. He has a technical expertise and complete administrative control over tax matters in the Territory.
To allow the amendment would secure a speedy determination on this case. If the amendment is allowed the case can proceed on its merits. If disallowed, the taxpayers will have to pay the assessment then proceed to pursue a refund claim through Administrative channels before being allowed to commence the suit in the High Court sitting as a District Court. See generally, 34 Am.Jur.2d Federal Taxation at page 939 with related textual discussion (1973).
To allow the amendment would secure an inexpensive determination of this case. If the amendment is disallowed the taxpayers will have to pay the assessed deficiency then sue in the High Court sitting as a District Court for a refund, after going through the above mentioned Administrative refund claim process. Moreover, when such a refund-*824suit would be filed they would have to pay a new filing fee for each case filed with the High Court.
In view of the foregoing conclusions it would seem that such proposed amendment be logically permitted, and it is accordingly so Ordered.
Petitioner in the above-captioned matter later filed an additional motion to amend the petition by adding a paragraph raising the statute of limitations as a defense. Although there was no argument thereon, and none had been scheduled therefor, counsel for the Government has indicated a willingness to allow such amendment and that, too, is therefore allowed in this case. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485396/ | *825In an equitable action for specific performance of an oral agreement relating to real property, defendant denied generally and affirmatively. The latter defense is noted first.
Defendant asserts the agreement to be unenforceable in that (1) it was not written, (2) the survey was illegal and (3) the registration was illegal. The following is pertinent:
American Samoa has not provided a Statute of Frauds in its code. Were it otherwise, the facts of this case would provide an exception, namely, full performance on one side in reliance. on the agreement, resulting in detriment to the promisee. The survey was performed without consent of the defendant; however, as plaintiff concedes that its validity entirely depends upon the decision of the Court, the problem is moot. Likewise, the registration is abortive. However, the defendant is not prejudiced for the reason that plaintiff seeks relief in this Court which will render the alleged invalidity moot.
There remains the general denial. For years the family of plaintiff had with the knowledge of defendant and under claim of ownership, utilized and developed the land in question. Defendant acknowledged the construction and existence of a stone fence proceeding along most of the northerly confines of subject property where plaintiff caused his survey to be made. The remaining lines of said survey consist of lines created by defendant. In addition, an animal sty and certain farm outbuildings were maintained by plaintiff on said property. Despite some conflicting *826evidence, the clear preponderance of evidence supports plaintiff’s continuous usage of said property.
During a time when plaintiff was off-island, defendant commenced litigation to register a parcel of land referred herein as the “45 acre parcel”, which parcel included the land now claimed by plaintiff. When plaintiff returned the litigation was at the trial stage, and during the court inspection of the 45 acre parcel, plaintiff remonstrated to defendant. Testimony is habitually conflicting in these matters, but its preponderance supports plaintiff’s contention that an agreement was reached whereby plaintiff would not object and hamper defendant’s litigation in return for defendant’s promise that if he won the case he would return plaintiff’s portion of the land to him. Defendant won that litigation. Defendant conceded that he promised to “settle our differences”, and upon questioning by the Court acknowledged that the differences consisted of disagreement in the location of the easterly most northeast corner of the disputed description. The corner as set by plaintiff coincides with the lines following and prolongation of the stone fence. Defendant now claims that said point should coincide with the point created by himself as the easterly most southeast corner of the 45 acre parcel. In such event, there could be no differences he promised to adjust. Defendant’s Exhibit III, shows the disputed area contained in a survey utilized by himself in prior litigation.
From the foregoing, it is clear that plaintiff did forego objecting in defendant’s litigation in re the 45 acre parcel, that plaintiff thereupon suffered detriment to himself in reliance upon the oral agreement to restore his land, and is entitled to relief, unless other considerations forbid.
Is the agreement definite enough to be enforced? Yes. The southerly, easterly and southwesterly lines were set by defendant. The northwesterly, northerly and north*827easterly lines follow the confines as established by the evidence and exhibits. The terms of the agreement are clear.
Is plaintiff barred by lack of “clean hands”? No. An agreement to forbear prosecution of a Civil claim is valid consideration. Plaintiff gave no legal evidence in any trial which would or could defraud a third person. The only prejudice was to himself.
The Court concludes that plaintiff is entitled to a decree of specific performance of said oral agreement; further that defendant shall be ordered to convey to plaintiff by good and sufficient deed the property within ten days after plaintiff shall deposit same in the office of the Attorney for defendant. In the event defendant shall fail and/or refuse to comply with the terms of this order, the Court reserves jurisdiction on ex parte application of plaintiff to appoint a commissioner to execute said deed. Plaintiff is entitled to recover his costs as provided by law.
The Court notes that plaintiff’s Exhibit 1, the description contained in the complaint, the description proposed and filed as part of the complaint, and defendant’s Exhibit 1 are all different.
It is ordered that, before the Court renders final judgment, and within 30 days of this date, plaintiff, at his own expense, shall have prepared by a Licensed Surveyor a legal description which shall be based upon the outline contained on Defendant’s Exhibit No. 1, and shown to be the same property as attempted to be shown on Plaintiff’s Exhibit No. 1.
Plaintiff is then directed to prepare judgment in accordance with the views expressed herein. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485397/ | On July 14, 1975, the defendant, acting through her attorney, the Public Defender, changed her plea to guilty on Count I at which time the people dismissed Count II in the interest of justice. Following the sentence of the court it was brought to the attention of all that the defendant was seventeen (17) years of age at the time the offense was allegedly committed. The court thereupon withdrew the plea and sentence and set the 28th day of July for the arguing of the matter, and thereupon the entire matter was continued to August 4,1975.
Both parties submitted a brief, and the court after due consideration of same orders as follows:
IT IS ORDERED, ADJUDGED AND DECREED that the defendant in this matter will be tried as a juvenile. It is the opinion of this court that with varying statutes of limitations applying to misdemeanor and felony matters, it would be possible for the prosecuting authorities to wait an unconscionable time before bringing a criminal prosecution in the event that they elected to wait until a juvenile arrived *829at the age of 18 years. Also, island population is transient in nature, and it is not at all unusual for young people to leave the island for the United States or elsewhere to live or to go to school. Therefore, if the prosecution can wait for periods of time before bringing the criminal prosecution, the practical effect would be to lose the power of summoning witnesses, the jurisdiction over the witnesses and in fact the jurisdiction over the defendant, and the net result would be a loss to the community of common justice and the speedy prosecution and trial of those accused of public offenses. Additionally there are provisions of the American Samoa Code which assign to the court the responsibility and authority to determine whether a juvenile should be tried as an adult. If we adopt the position of the prosecution in this matter the prosecuting authorities could make that decision for the court by simply waiting until the juvenile arrived at the age of 18 years before bringing the criminal prosecution. The net result is that the purpose of this worthwhile statute above referred would be subverted.
There are several other reasons for the court’s decision including the fact that if the prosecution is allowed the option of bringing the case of the juvenile case or waiting and bringing same as an adult case, we are faced with a possibility that the prosecution might select those cases it wished to be tried in each category. It is this court’s opinion that that is far too much unintended power to give to any prosecuting authority. The virtue of this court’s ruling is that there is no possibility of favoritism and the rule is definite. | 01-04-2023 | 11-18-2022 |
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