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https://www.courtlistener.com/api/rest/v3/opinions/8485401/ | *842Plaintiff herein requests an injunction restraining enforcement of a compensation order issued by the Workmen’s Compensation Commission of American Samoa, dated May 2, 1975. Defendant Scanlan and Intervener Ma’amu Westerlund oppose the issuance of an injunction, asserting, among other arguments, that a proceeding taken under 24 A.S.C. 459 must abide with the statutory limitations period of 24 A.S.C. 458.
This Court agrees with Defendant and Intervener. 24 A.S.C. 458 specifies that a compensation order becomes final thirty days after it is filed in the commissioner’s office “. . . unless proceedings for the suspension or setting aside of such order are instituted____” (Emphasis ours.) Thus, § 458 is a statute of limitations which precludes an action for suspending, or setting aside a compensation order after the thirty day limit has expired.
While the statute does not extinguish the right that may exist, it does circumscribe and disallow the remedy. Campbell v. City of Haverhill (1895), 155 U.S. 610. As was stated in Chase Securities Corp. V. Donaldson (1945), 325 U.S. 304 at page 314,
Statutes of limitations find their justification in necessity and convenience rather than in logic . . . They are by definition arbitrary, and their operation does not discriminate between the just and the unjust claim, or the voidable, and unavoidable delay. They have come into the law not through the judicial process but *843through legislation [footnote omitted]. They represent a public policy about the privilege to litigate ....
The public policy in Workmen’s Compensation cases is that a compensation order should be settled and ready to be enforced thirty-one days after it was filed, so as to alleviate any prolonged hardship on the claimant.
Because plaintiff has requested an injunction pursuant to 24 A.S.C. 459 fully six months after the compensation order in this case was filed with the commissioner, this Court finds that it can afford no remedy to plaintiff. The thirty day statute of limitations as enunciated in 24 A.S.C. 458 expired on June 2,1975.
Wherefore, this complaint for injunction is ordered dismissed. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485402/ | *844Co-defendant Tobu Boeki K.K., a corporation (hereinafter Corporation), and Makoto Asano, an individual, were each charged with criminal violations of 12 A.S.C. 1839 and 15 A.S.C. 609(b), both violations pertaining to the conducting of business in American Samoa without a business license and/or the Governor’s permission. Both defendants have moved to dismiss on the basis that the summons served on each defendant was defective in form and that this Court has not acquired personal jurisdiction over defendants because they were not properly served with process. They maintain that defendant Corporation is not “doing business” in American Samoa sufficient to require it to appear and defend a suit in this jurisdiction, and that defendant Asano is not an agent appointed by defendant Corporation to receive service of process. Defendants have therefore moved to dismiss the action.
The first allegation of defendants’ motion, that the initial summons was defective in form, has been rendered moot by the service of amended summons which corrects the eomplained-of defects.
The second assertion of defendants, that this Court has no personal jurisdiction over defendants, is in error. Defendant Asano is physically within the Territory of American Samoa and thus is subject to service which can give the High Court of American Samoa authority to render a judgment against him personally. Because defendant Asano was personally served with a summons, the Court properly has jurisdiction to hear his case.
Criminal proceedings against a corporation, so far as notice, appearance, hearing and judgment, are just like in a civil case. Acme Poultry Corp. v. United States (CA 4 Md., 1944), 146 F.2d 738, cert. den. 324 U.S. 860, 89 L.Ed. 1417. In order for the High Court to acquire jurisdiction over defendant Corporation, it must be shown that the Corporation has appointed an agent to receive process or *845resides in the Territory or is “doing business” in the Territory. International Shoe v. State of Washington (1945), 326 U.S. 310, 90 L.Ed. 95. Defendants contend that Makoto Asano has not been appointed to receive process— the Court agrees with that contention. The Court also recognizes that defendant Corporation does not reside in American Samoa, in that it is incorporated under the laws of Japan, with its main office in that country. Therefore, it truly is a foreign corporation.
But the Court feels, contrary to defendants’ assertion, that defendant Corporation is engaged in sufficient amounts of business in American Samoa to render it liable to suit in the High Court. The Court finds that defendant Asano is an agent of defendant Corporation, located in American Samoa and authorized to act for defendant Corporation in transactions with local businesses. Under the theory of “respondeat superior”, the presence of defendant Corporation can be inferred from the presence of its agent in the Territory. As the United States Supreme Court stated in the International Shoe case, 326 U.S. at 319:
. . . [T]o the extent that a corporation exercises the privilege of conducting activities within a state, it enjoys the benefits and protection of the laws of that state. The exercise of that privilege may give rise to obligations, and so far as those obligations arise out of or are connected with the activities within the state, a procedure which requires the corporation to respond to a suit brought to enforce them can, in most instances, hardly be said to be undue.
Therefore, the Court holds that it has acquired personal jurisdiction over both defendant Makoto Asano, an individual, and defendant Tobu Boeki K.K., a corporation, in order to properly require them to respond to suit in the High Court of American Samoa.
WHEREFORE, the,Motion to Dismiss is denied. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485403/ | MORROW, Chief Justice.
This is an appeal from a judgment of the Trial Division ordering the appellants Lualemana and Leasiolagi (defendants in the Trial Division) to “vacate any parts of the lands Tafeata, Yaitai, and Leaveave occupied by them, or either of them, within 20 days from the date of” the order, which was January 16,1962.
Hereinafter we shall refer to .the appellants Lualemana and Leasiolagi as the defendants and the appellees as the plaintiffs, they having been such respectively in the trial court.
The plaintiffs instituted an action against the defendants on September 13, 1961 seeking an order evicting the defendants from the lands Tafeata, Vaitai, and Leaveave. The evidence showed that the part of the land Tafeata involved together with the lands Vaitai and Leaveave lies to the right of the highway (it was built by the U.S. Marines during World War II) going from Faleniu to Aoloau Fou. Hereinafter when we refer to the land Tafeata, we mean the part of Tafeata to the right of said highway.
*851Section 213 of Chapter 5 (Judiciary and Judicial Procedure) of Amendments, Nos. 11-59, 1952 to the A. S. Code provides that “The Appellate Division of the High Court on appeal.. . shall have power to affirm, modify, set aside, or reverse 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 he 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 ours)____”
The trial court found, in accordance with the testimony of the plaintiffs, that the land Tafeata was cleared from the bush in 1922 by the chiefs and young men of the Village of Faleniu and that it was divided up among the chiefs after the clearing, the part which each chief got by the division and his occupation becoming the communal land of his family in accordance with his claim of the ownership thereof.
And the trial court further found from the evidence that the lands Vaitai and Leaveave were cleared from the bush by the Faleniu people in 1928 and that after the clearing, these lands, like Tafeata, were divided up among the chiefs of Faleniu, the part which each chief got by the division and his occupation becoming the communal land of his family in accordance with his claim of the ownership thereof. The Court further found that any possible claim which the defendants may have had to the land involved was extinguished by adverse possession by the plaintiffs for 20 years. 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.”
While there was some conflict in the evidence, an examination of the record in the trial court convinces us that not only the weight of evidence but the great weight of *852the evidence was in favor of the plaintiffs. Under these circumstances, we cannot say that the findings of fact made by the trial court were “clearly erroneous” so as to permit us under Section 213, above quoted, to set aside the findings of the trial court and grant a new trial.
At the trial, the defendants claimed that these three lands were first cleared by the Lualemana people from the bush in 1946. However, Lualemana did not get around to putting in any plantations on Tafeata and Vaitai until 1960, which was 14 years later. And Leasiolagi, a member of the Lualemana Family, did not get around to putting in any plantations on Leaveave until 1951, which was 15 years after, as he testified, it was first cleared from the bush.
It is very, very difficult for us to believe that a Samoan would clear land from the virgin bush and then wait 14 or 15 years to put in a plantation on it. On the other hand, the evidence showed that the plaintiffs had cleared the land involved in 1922 and 1928 and had had plantations on it for many years prior to 1946. Furthermore, defendant Lualemana in the case of Filo of Faleniu v. Faoliu Lualemana, No. 43-1961, (an interrelated proceeding, the record of which the .trial court quite properly took judicial notice) testified that Tafeata was first cleared from the bush in 1918, whereas Leasiolagi, his co-defendant in this case, testified it was first cleared from the bush in 1946. Lualemana also testified in the interrelated case that he filed a war damage claim on Tafeata using the name Tuiapolima. This turned out to be false testimony. That the trial court could properly take judicial notice of the record in the interrelated proceeding is clear. 31 C.J.S. 625. And “An appellate court will take judicial notice of any matter of which the court of original jurisdiction may take notice.” 20 Am. Jur. 55.
*853The 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 of 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.
It is claimed by counsel for the defendants that in Samoa there is no such thing as village communal land. And that may be true. However, the claim if it is correct, has no application to the instant case, as the Court found that the lands involved after the clearings by the Faleniu people were divided up among the Faleniu chiefs, the various chiefs concerned getting separate pieces. While the chiefs and their young men acted together in clearing the land, yet each chief owned his own part separately after the division.
The chiefs could properly join in this action since there were common questions of law and fact affecting their several (separate) rights, although .their various properties are severally owned.
Paragraph (a) of Rule 23 of the Federal Rules of Civil Procedure provides that:
“Representation. If persons constituting a class are so numerous as to make it impracticable to bring them all before the court, such of them, one or more, as will fairly insure adequate representation for all may, on behalf of all, sue or be sued, when the character of the right sought to be enforced for or against the class is (3) several, and there is a common question of law or fact affecting their several rights and a common relief is sought.”
Section 251 of the A. S. Code as amended provides that:
“In the High Court and the District Courts, the civil practice shall conform, as closely as practicable, to the practice provided for in the Federal Rules of Civil Procedure.”
*854We think under Paragraph (a) of Rule 23, above quoted, that the other chiefs could properly join and also represent Savea. There were common questions of law and fact affecting several rights, and a common relief was sought, viz., the eviction of the defendants from the land involved.
Counsel for the defendants says in his argument that, “Savea is not mentioned in the petition submitted by the Faleniu people.” That is true, but counsel has overlooked the “and others” in the title of the case, which, we think, covers Savea, since his interest in getting the defendants off the land involved was identical with the interests of the chiefs named. And that Savea did have an interest along with the interests of the other Faleniu chiefs is very clear from the evidence before the trial court.
Siufanua testified that it was Savea, a Faleniu chief, who gave the Government permission to establish the prison farm on Vaitai. There was other testimony, as we have indicated, to the effect that the land involved was cleared from the bush by the chiefs and young men of the Village of Faleniu and that after it was cleared it was divided up among the chiefs of the village. The testimony for the plaintiffs was not to the effect that it was cleared and divided up among the chiefs of Faleniu, Savea excepted.
The Savea has been in Honolulu for a long time. A member of the Savea Family “acting on behalf of his father Savea Aupiu and the Savea Family in Faleniu” filed a petition on August 28, 1961 (16 days before this case was filed) in the Trial Division stating that “the land known as Vaitai and Tafeata” is “located within the jurisdiction area of Faleniu Village, County of Tualauta, American Samoa,” and praying for an order evicting Lualemana and Leasiolagi. The petition was sworn to before the Clerk of the High Court and the statement *855means nothing else than that these two lands belonged to Faleniu chiefs, of which Savea is one, and not to the defendants. The August 28, 1961 case is an interrelated proceeding, and we may properly take judicial notice of the petition. See quotation from 81 C.J.S. 625 and 20 Am.Jur. 55, supra.
It is also argued on appeal, since Savea is in Hawaii and did not sign the original petition to evict the defendants, that there should be a new trial. The fact is that Savea was represented in the original case by the Faleniu chiefs, who did sign the petition. The case is entitled “Magalei, Maiava, Malufau, Muasau, Maea, Tuiaana, Si’ufanua, Moea’i, Filo, Mua’ava, Tauauve’a, Ta’i, Nu’u, Mau’ava and others (emphasis ours), all and each of them represent their respective family in the Village of Faleniu, Tualauta County, American Samoa, Plaintiffs v. Lualemana and Leasiolagi of Asu, Leasina County, American Samoa.” Savea is properly included in the “others,” he and the named chiefs having the same interests and being similarly situated.
Furthermore, the first paragraph of the petition alleges “That the Plaintiffs are the matais of the Village Council of Faleniu, County of Tualauta, American Samoa.”
Savea is a title attached to the Village of Faleniu and its holder is entitled to sit in the Village Council; and, as we have indicated, the many Faleniu chiefs who did sign the petition could represent him under Rule 23 as above quoted. And the very fact that Siufanua, one of the plaintiffs (Faleniu chiefs), testified that it was Savea who gave permission to the Government to use a part of Vaitai as a prison farm indicates that the Faleniu chiefs who did sign the petition along with Siufanua were looking out after the interests of the Savea and representing him. Also, the testimony for the plaintiffs was that the chiefs of Faleniu and their young men cleared the land involved *856from the bush. The testimony was for the benefit of Savea as well as the other chiefs of Faleniu. He was represented.
On appeal it is claimed that the trial court erred in concluding that Leaveave is in Tualauta County and not Leasina County. The simple fact is that the map of Tutuila shows clearly that Leaveave as well as the remainder of the land involved in this case, viz., Tafeata and Vaitai, is in Tualauta County. We suppose that the claim is made upon the theory that Lualemana is the high title in Leasina County and that, therefore, this title has jurisdiction over Leaveave. However, the claim, regardless of what theory may be behind it, has no foundation in fact, because the truth is that the map clearly shows that all the land involved in this case is in Tualauta County, in which county is the Village of Faleniu.
It was also argued for the defendants that there might be future disputes between the various Faleniu chiefs as to the boundaries of their respective lands and, therefore, this case should be retried. What the future holds on this matter, the Court does, of course, not know. However, it is sufficient to say that whether such disputes do or do not arise between the true owners in the future does not give the defendants a right to occupy land that is not theirs.
It is further claimed by the defendants on appeal that all the members of the Savea Family are also members of the Lualemana Family, and that all members of the Lualemana Family are members of the Savea Family. It is sufficient to say that there was no such evidence in the case. There was evidence that two or three Lualemana people through intermarriage had connections with the Savea and the Malufau Families in Faleniu. However that may be, the fact is that the defendants are claiming that their occupancy rests upon the ownership of the land by the Lualemana title and not upon any claim that the Lualemana Family members are also members of the Savea *857Family. There is no connection between the Savea title and the Lualemana title. Since when a Samoan child is born, it is a member of its father’s family and also its mother’s family, and since the custom in Samoa is against the intermarriage of relatives, it follows that after a few generations a child when born is a member of many families. And it is no doubt true that some few members of the Lualemana Family in Asu are also members of the Savea Family in Faleniu, and that a few members of the Savea Family in Faleniu are also members of the Lualemana Family in Asu. However, we repeat that .there was no evidence to the effect that all members of the Savea Family are members of the Lualemana Family and all members of the Lualemana Family are members of the Savea Family. We also repeat that, as counsel for the defendants told the Court on appeal, there is no connection between the Lualemana title of Asu and the Savea title of Faleniu (emphasis added). And we repeat, too, .that the defendants are claiming a right of occupancy not on membership in the Savea Family but upon a claim of ownership of the land by Lualemana (emphasis added).
The findings of fact by the trial court are well supported by the evidence before it. No finding of fact was clearly erroneous so as to require a reversal of .the judgment and the granting of a new trial. See the quotation from Section 213, Chapter 5 (Judiciary and Judicial Procedure) of Amendments, Nos. 11-59, 1952, supra, permitting us to set aside a finding of fact only when it appears to be “clearly erroneous.”
It is our conclusion that the judgment rendered by the trial court is correct and that it should be affirmed.
ORDER
ACCORDINGLY, IT IS ORDERED that the judgment of the Trial Division in the case of Magalei, Maiava, *858Malufau, Muasau, Maea, Tuiaana, Si’ufanua, Moea’i, Filo, Mua’ava, Tauauve’a, Ta’i, Nu’u, Mau’ava and others, all and each of them represent their respective family in the Village of Faleniu, Tualauta County, American Samoa, Plaintiffs v. Lualemana and Leasiolagi of Asu, Leasina County, American Samoa, Defendants, No. 60-1961, be and the same is hereby affirmed.
Costs in the sum of $4.26 are hereby assessed against Lualemana and Leasiolagi, each of them to pay $2.13 within two weeks. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485404/ | MORROW, Chief Justice.
Iosefa F. Sunia filed his application with the Registrar of Titles to be registered as the holder of the matai name Fofo attached to the Village of Ta’u, Manua. Suega, Tuliau, and Teleai T. each filed an objection to the proposed registration, each of them becoming a candidate for the name. Suega withdrew as a candidate during the hearing in the trial court and ceased to be a party in the case.
The trial court awarded the Fofo name or title to Iosefa. Tuliau has appealed claiming that the court was in error in not awarding the title to him. And Teleai T. has also appealed claiming that the court erred in not awarding the title to him (Teleai T.). Both appeals are, in substance, grounded on the claim that the decision of the trial court in awarding the title to Iosefa was based upon findings of fact contrary to the evidence.
Section 933 of the A. S. Code, as amended, prescribes the law which the court shall follow in determining which one of opposing candidates fora matai name shall be registered as its holder. It reads as follows:
“Consideration Given by Court: 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;
*860“(b) The wish of the majority or plurality of those members of the family related by blood to the title;
“(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.”
Section 213 of Chapter 5 (Judiciary and Judicial Procedure) of Amendments, Nos. 11-59 to the A. S. Code provides that “The findings of the Trial and Probate Divisions of the High Court shall not be set aside by the Appellate Division of that court unless clearly erroneous. (Emphasis ours)____”
We shall consider the appeal of Teleai, first.
Teleai does not claim that the trial court was in error when it found that Teleai prevailed over Iosefa on the issue of hereditary right. We will, therefore, put the finding on that issue as respects Teleai and Iosefa to one side.
We do not believe in the light of the testimony of Teleai himself that there was any error in the trial court's finding that Iosefa prevailed over Teleai on the issue of the wish of the majority or plurality of those members of the family related by blood to the title. There were 530 signatures on the petition for Iosefa and 200 on the petition for Teleai.
The record of the testimony in the trial court shows that Teleai testified as follows:
“Q I hand you here Applicant’s Exhibit No. 2, which is the petition for Iosefa. Will you examine it and state if you have any objection to any of the names on it and, if so, what your objections are?
“A I object to only 83 signers in Iosefa’s petition.
“Q Then is the Court to conclude that the remaining 447 in Iosefa’s petition are blood members of the Fofo Family?
“A Yes.”
Iosefa testified that 150 of the 200 on Teleai’s petition were not blood members, while Tuliau testified that 140 of *861the 200 were not. When Teleai told the Court that 447 on Iosefa’s petition were blood members, it follows that if his testimony on this point is to be believed (and we do not question it), then granting (but without agreeing) that every one of the 200 on Teleai’s petition were blood members, it necessarily follows that as between Teleai and Iosefa that Iosefa prevailed over Teleai on the issue of the wish of the majority or plurality of those members related by blood to the title.
In the light of Teleai’s own testimony, it is clear that the trial court did not err when it found that Iosefa prevailed over Teleai on the second issue. The trial court found in accordance with Teleai’s own testimony, and we cannot say in view of that undisputed fact that the finding was clearly erroneous. We have no reason to believe that Teleai misled the court when he testified that 447 on Iosefa’s petition were blood members.
The evidence before the trial court was to the effect that Iosefa is 24 years old, a graduate of the Samoan High School, and that he holds a Bachelor of Arts degree from the University of Hawaii. The evidence showed that Iosefa is an industrious person and that he worked his way through the University of Hawaii. He did some graduate work after securing his degree and then returned to Samoa where he was appointed Administrative Assistant to the Director of Samoan Affairs at a salary of about $3,000 a year. He obviously made good in this position, since he has held it for more than a year. He is senior officer of the Boys’ Brigade in Fagatogo and teaches a Bible class in leadership. When the Director of Samoan Affairs recently went to Swains Island, Iosefa handled the affairs of the Director’s office. The evidence showed that Iosefa has about three acres of plantations in Tutuila and that he does not have to rely on financial help from aiga. Iosefa, *862being a graduate of the University of Hawaii, speaks English very well.
Teleai is 45 years old. He completed the 7th grade in school and speaks a little English. He served in the Samoan Marines during the war and after .the war was over he attended the vocational school for veterans for one-and-a-half years, but he did not graduate. He has rendered service to the Faumuina title in Manua. His plantations are on Faumuina land, but he has no plantations on Fofo land. He studied carpentry while in the vocational school. He occasionally, along with eight others, does some carpentry work in Manua, and he worked on a house in Masefau. According to his testimony, he sells from $170 to $200 worth of copra a year and received $50 and some fine mats and tapas for carpenter work in 1961; also .that he received about $10 for taro in 1961. He has some cocoa trees and will sell cocoa when the trees begin to bear. He gets a little financial help from his brother in the States — about $20 every .two months. He sold a pig for $40 in 1961.
It was argued by his counsel on appeal that the trial court should have awarded the title to Teleai because he lives in Manua, whereas Iosefa does not, although the evidence was to the effect that Iosefa does go to Manua occasionally.
A careful examination of Section 933, quoted supra, shows that there is no requirement that a matai live in the village to which his title is attached. It is common knowledge that a number of matais from Manua live in Tutuila, going to their villages in Manua only occasionally.
The trial court observed the personalities of the candidates during the trial, which lasted six days.
We cannot say, particularly in view of Iosefa’s very much superior education and the further fact that he holds *863a very responsible position in the Government, that the court’s finding that Iosefa prevailed over Teleai on the third issue was erroneous. We think the court could not, in the light of the evidence before it, have reached any other conclusion. The fact that Iosefa went to Honolulu, worked his way through the University of Hawaii, and returned to Samoa and made good in a responsible and important Government post is indicative of drive and force. And it takes more drive and force for a student to go to Honolulu, work his way through the University of Hawaii, return to Samoa and hold down a responsible Government position successfully than it does to go to a vocational school in Utulei with his way paid and quit before graduation, as did Teleai.
It is common knowledge that the President of the United States, the members of his Cabinet, the justices of the Supreme Court of the United States, and most of the members of the United States Congress are college graduates, while at the same time it is also a fact that only a small percentage of the whole population of the United States are college graduates.
While a college education is not a guaranty of capacity for leadership, yet it is not just an accident that a very large percentage of our leaders come from the relatively small group of our people who are college graduates. It is not just an accident that every governor of American Samoa since .the Department of the Interior took over the administration of American Samoa in 1951 has been a college graduate; and that all the prior governors since the establishment of the Government in 1900 were graduates of the United States Naval Academy, which provides a training for its graduates equivalent to a college education.
We think that the evidence showed that Iosefa has a much greater capacity for leadership than Teleai and *864primarily for that reason he will be of greater value to the Government as the holder of the Fofo title than will Teleai. We conclude that, in the light of the evidence, the Court did not commit error when it found that Iosefa prevails over Teleai on the issue of value to the Government.
We think that the evidence fully supported the finding of the trial court that Iosefa prevailed over Teleai on the second, third, and fourth issues, and that pursuant to the statute the trial court very properly gave more weight to the second, third, and fourth issues combined than it did to the first issue relating to hereditary right.
We shall now consider the appeal of Tuliau. It is claimed by Tuliau that Iosefa has no Fofo blood and that Tuliau prevails over Iosefa on the first issue. The trial court found that Tuliau’s claim of %2 Fofo blood was correct and that Iosefa had x/s Fofo blood and prevailed over Tuliau on this issue. We have reviewed the evidence on this issue, and it is our conclusion therefrom that the finding of the trial court to the effect that Iosefa has 1ls Fofo blood, being the great-grandson of Fofo Manu II, is supported by the weight of the evidence. Tuliau only claims x/32 Fofo blood.
In .the first place, it is unthinkable to anyone familiar with the matai system that 447 blood members of the Fofo Family would have signed the petition for Iosefa if he had had no Fofo blood and were a stranger to the title. Teleai testified that 447 of the signers on Iosefa’s petition were blood members.
Iosefa testified that he is the great-grandson. of Fofo Manu II. It was claimed in argument on appeal that Manu did not hold that Fofo title because page 37 of a family record produced by Iosefa did no.t show that Fa’ala’a held the title Fofo (Fa’ala’a and Manu were the same person). However, the trial record shows that counsel for Tuliau, when cross-examining Iosefa, made no effort to find out *865what was on page 40 of the family record in response to the witness’ statement to him that: “However, on page 40, I believe you will find it much more clearer and correct genealogy. I think it is easier to read than the material on page 37.” The fact that page 37 did not show that Fa’ala’a held .the Fofo title, does not prove at all that he did not. Some other page, such as page 40, might have shown that he did.
We now quote from the record in the trial court, Logo, counsel for Tuliau, questioning Iosefa:
“Q So when did the Fofo Manu hold the title Fofo; was it after the Government was established or before the Government was established?
“A Are you referring to Manu II ?
“Q Yes, the same man as Fa’ala’a?
“A He held the title before the Government came here.”
This cross-examination speaks for itself and indicates that even the cross-examiner himself considered that there was a Fofo Manu and that Fa’ala’a, the great-grandfather of Iosefa, and Fofo Manu were one and the same person.
It is true that Tuliau while on the witness stand asserted that Iosefa had no Fofo blood. However, in view of the fact that Tuliau filed a petition permeated with fraud (as will later appear), made contradictory statements on the witness stand as ,to the genuineness of his signature on some of the documents introduced in evidence, we do not believe that his testimony to the effect that Iosefa did not have Fofo blood is entitled to much weight. His credibility as a witness was greatly weakened by these two facts.
The trial court did not make any finding as to whether the majority or plurality of those members of the Fofo Family related by blood to the title favored Tuliau or Iosefa. The record shows that the petition filed by Tuliau contained the names of two. dead people, many forgeries, *866names of people in the United States who could not possibly have signed in Samoa where the petition was prepared. It contained names of children under 14 years of age, names of people who did not know what they were signing. In some instances, both husband and wife signed. There were 1684 signatures on Tuliau’s petition. However, the evidence clearly showed that many of them did not have Fofo blood although Tuliau testified that all of them did.
In view of the evidence with respect to the other issues, we agree with the trial court that it was not necessary for it to make a finding on the issue of the majority or plurality of the family as between Iosefa and Tuliau.
Tuliau is 45 years old. He completed the 6th grade in the faifeau’s school and graduated from the 9th grade in junior high school. He speaks English fairly well. He has worked on family plantations and rendered service both to his matai and the village. During the war he worked as a laborer in Tutuila. He worked as an agricultural extension agent in Manua in 1956-57. For a few days in 1960 he worked as a census enumerator. In 1961 he went to work again as an agricultural extension agent in Manua, for which he receives a salary of approximately $63.00 a month. He sells copra, bananas, cocoa, yams and taro for which he receives $175 to $200 a year. He received about $50 for carpenter work in 1961. Tuliau is helped some financially by aiga in the States who send him $15 to $20 a month. Tuliau received the Tuliau title in 1961.
In the consideration of the appeal of Teleai, we have already set out the evidence bearing upon the forcefulness, character, and capacity for leadership of Iosefa. It is not necessary to repeat it here. We think in the light of the evidence that the trial court was not in error when it held that Iosefa, a university graduate who holds a very responsible position in the Government, prevails over Tuliau on the third issue. We think that the weight of *867evidence on this issue was clearly in favor of Iosefa.
The High Court has frequently said that the value of the holder of a matai title to the Government depends in a large measure upon his capacity for leadership. Toatolu et al. v. Laumea, No. 51-1961 (H.C. of Am. S.). The very fact that Iosefa had the energy and drive necessary for him to work his way through the University of Hawaii, return to his homeland and successfully fill a responsible position with the Government as Administrative Assistant to the Director of Samoan Affairs is a clear indication of forcefulness and capacity for leadership.
Considering the evidence in favor of Tuliau on this fourth issue, it is our conclusion that the trial court was not in error when it found that Iosefa prevailed over Tuliau on the issue of value to the Government.
It is our conclusion that the trial court did not make any erroneous finding of fact when it found that Iosefa prevailed over Tuliau on the first, third, and fourth issues.
ORDER OF AFFIRMANCE
IT IS HEREBY ORDERED that the decree of the Trial Division awarding the matai name Fofo, attached to the Village of Ta’u, to Iosefa in the case of Suega, Teleai T. Fofo, and Tuliau v. Iosefa F. Sunia, No. 4-1962 (H.C. of Am. S.) be and the same is hereby affirmed.
The Registrar of Titles will be advised of this Order of Affirmance.
Costs in the sum of $10.50 are hereby assessed against Tuliau and Teleai, each of them to pay $5.25 within 30 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485405/ | ROEL, Associate Justice.
This is an appeal from the Decree rendered by the Trial Division of the High Court of American Samoa in the case of Masalosalo, Plaintiff v. Isumu Leapaga, Defendant [Civil Trial No. 23-1962]. The case was originally heard at Fagatogo, American Samoa, on September 27,1962. The decision of the Trial Court was rendered and the Decree entered on October 10, 1962. The Decree ordered the Defendant, Appellant herein, to discontinue the construction of his house on the land Taufusi and also ordered him ,to vacate such land within seven (7) days from the date of the Decree. From this decision the Defendant, Appellant herein, appealed.
In his notice of appeal the Appellant sets out five (5) grounds why the Decree of the Court below should be reexamined and reversed. Point No. 1 asserts that Appellant has lived 30 years in the Masalosalo Family land and that there is no custom of assigning lands to individuals in the Masalosalo Family, Point No. 2 asserts that Masalosalo did not assign the land Taufusi to Nofo and her children. In Point No. 3, Appellant strongly' objects to Nofo’s testimony in the trial below to the effect that she had been beaten up by Appellant’s wife, Mao. He states that Nofo’s testimony should be ignored and questions Nofo’s sanity. Appellant also denies that he used vile language against Nofo. In Point No. 4 Appellant asserts that the construction of the house should be continued because his wife, Mao, is a blood member of the Masalosalo Family and also Nofo’s adopted daughter. He says that since he is married to Mao and has eight children and has lived in the *870Masalosalo Family for 30 years, he should be considered a legal member of the family. Appellant’s fifth point deals with a request that this Court allow his wife, Mao, to testify before this Court during the hearing on appeal.
Appellant argued before this Court for one hour and fifteen minutes in making his presentation. Most of his argument was a repetition of the testimony which he had given in the trial below and made a part of the record. Appellee on the other hand took no more than three (3) minutes to present his answer to Appellant’s arguments.
The Court went to great lengths at .the beginning of the hearing to familiarize both parties with the Rules of Procedure to be followed at the hearing and with regard to .the fact that the Appellate Division was bound by the findings of fact of the Court below unless the Appellate Court was of the opinion that such findings of fact were clearly erroneous. Section 3.0503 of the Code of American Samoa, 1961 Edition, reads as follows:
“POWERS ON APPEAL OR REVIEW: The Appellate Division of the High Court on appeal . . . shall have power to affirm, modify, set aside, or reverse the judgment or order appealed from . . . 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 . . . Division of the High Court in cases tried by them shall not be set aside by the Appellate Division of that court unless clearly erroneous. . . .”
Nowhere did the Appellant, either in stating his grounds of appeal nor in his oral arguments, claim, much less prove, that the lower Court’s findings of fact were clearly erroneous, or that the evidence did not support the findings.
In reviewing appellant’s points of contention for reversal, let us consider appellant’s points one by one. With regard to Point No. 1, the evidence in the Court below was *871incontrovertible that Masalosalo had assigned the land Taufusi to Nofo and her children. In discussing this point with the Samoan judges, they say that the matai, as head of the family, has always had the “Pule” over the land of the family, and that he customarily assigns a certain piece of land to an individual member by showing him a certain area in the village and giving him permission to build his fale thereon. Appellant, while asserting that Taufusi was not assigned to Nofo and her children, has certainly not shown that the land was assigned to him. As a matter of fact he stated to this Court, as he did in the trial below, that he and his family have another house on Masalosalo land in the Village of Nu’uuli. The Court below made a finding that Taufusi had been assigned by Masalosalo to Nofo and her children, and nothing in this hearing convinces us otherwise.
Appellant’s Point No. 2 contends that Masalosalo did not assign the land Taufusi to Nofo and her children. We believe that nothing brought out by Appellant in the instant hearing even remotely indicates that the lower Court made any error at all, much less a clearly erroneous finding, when it found as a matter of fact that the land Taufusi had been assigned by Masalosalo to Nofo and her children.
Appellant’s Point No. 3 does not set out any error on the part of the Court below but merely quarrels with the record as to Nofo’s testimony that Appellant’s wife, Mao, had beaten her up and that he, the Appellant, had used vile language against Nofo. Nofo, testifying personally in the Court below, related the quarrel and the beating by Mao and the use of vile language by Appellant. Nofo’s testimony was corroborated by the testimony of Masalosalo who stated that Nofo after being beaten up had come to complain to him as matai of the family. According to the record, Appellant did not even bother to cross-examine *872Nofo at the- trial below after she gave her .testimony. We believe the Court below was in a much better position to make a finding of fact as to this point, and we are convinced that it decided it correctly. The Court below saw the witnesses testify and had a good opportunity to observe their demeanor.
In connection with Appellant’s Point No. 4 wherein he contends that he should be allowed to complete his house in Taufusi because his wife is a blood member of the Masalosalo Family - and Nofo’s adopted daughter and because after living for 30 years in the Masalosalo Family he, the Appellant, should be considered a legal member of the family, the Court finds that the decree of the Court below restraining Appellant from continuing construction of the house and evicting Appellant from Taufusi was sound. It was brought out in the trial below and again on appeal that although Appellant has lived in the Masalosalo Family for 30 years he has never rendered services to Masalosalo as the matai of' the family. The fact that Appellant has lived in the family 30 years does not per se make him a legal member of the family, and it certainly does not relieve him from rendering services to the matai, as is required under Samoan customs. He is a married man to the family under Samoan customs. As head of the family, a matai has the right to evict from the family land not only' a married man but even a blood member if such blood member, refuses to render services to .the matai in accordance with Samoan custom. As stated before, the evidence in the lower Court and the arguments before this Court indicate that Appellant and family have a house to live in on the Masalosalo family land in the Village of Nu’uuli.
In connection with Appellant’s Point No. 5, this Court disallowed Appellant’s request that his wife, Mao, be *873allowed .to testify at the hearing before this Court. This Court found that Appellant never called his wife as a witness in the trial below, nor did the Appellant request a continuance from the Court below so as to have his wife available as a witness. It would hardly seem advisable for this Court to allow either party to present witnesses to testify for the first time before this Appellate Court. If such a practice were allowed, what is to keep the other party from producing one or more or a whole village full of witnesses to testify before this Court after a decision by a trial court. Under these circumstances, a litigant or all parties to a controversy would be encouraged to present just the minimum evidence and testimony deemed necessary to prevail in the Trial Court and reserve the rest of the evidence in case of a necessary appeal from such a decision, at which hearing both the prevailing party below and appellant or appellants could then present the rest of their evidence. Such procedure appears to us to be untenable and intolerable. We believe that Appellant had ample opportunity to put on all the evidence or witnesses necessary at the trial below and that if he required more time to produce such evidence or witnesses, the Court below would have allowed such time upon a motion for continuance.
This Court, after considering the transcript of the trial below and the arguments of Appellant and Appellee before this tribunal, finds that there was no clearly erroneous finding of fact by the Trial Court. Neither did Appellant convince this Court that the evidence below did not support the finding or findings of the Court below. This Court is of the unanimous opinion that the findings- of the Court below are fully supported by the evidence, and finds no reason whatsoever for disturbing the Decree of the Trial Court.
*874It is ordered that the Decree of the Trial Court be, and the same is hereby, affirmed.
Court costs in the amount of $8.50 are hereby assessed against the Appellant, Isumu, the same to be paid within 30 days.
Decree affirmed. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485406/ | ROEL, Associate Justice.
This is an appeal from the Decree rendered by the Trial Division of the High Court of American Samoa in the case of Lago, Fuga Selega and Pogai and Faafia, Objectors v. Mageo, Applicant, and Government of American Samoa, Intervenor. The case was originally heard at Fagatogo, American Samoa on October 10, 11, and 12, 1962. The decision of the Trial Court was rendered and the Decree entered on November 19, 1962. The Trial Court held that neither the Applicant, Mageo, nor the objectors, nor any of them, were the owners of that part of Fusi seaward of the main East-West highway in the Village of Pago Pago. The Decree further held that Fusi, excluding the filled-in part thereof, was the property of the Government of American Samoa, and that the filled-in part of *877Fusi was the property of the United States. The Decree denied Mageo’s application to register the land Fusi (as shown in the survey accompanying the application to register) as the communal land of the Mageo Family. From this decision, the Applicant below, and Pogai and Faafia, Objectors below, appealed.
The hearing on appeal was originally set for February 27, 1963. At that time Appellants moved the Court for a continuance to allow them time to obtain new evidence in the form of “charts, maps, photographs, and correspondence.” The Court granted Appellants’ motion and continued the hearing on appeal to May 1, 1963. It is well to state here that at the hearing no such new evidence was presented by any of the appellants.
The record will reflect that this Court went to great detail at the beginning of the hearing to familiarize all the parties with the Rules of Procedure to be followed at the hearing and with regard to the fact that the Appellate Division was bound by the findings of fact of the Trial Court, unless the Appellate Court was of the opinion that such findings of fact were clearly erroneous (emphasis ours).
“POWERS ON APPEAL OR REVIEW: The Appellate Division of the High Court on appeal . . . shall have power to affirm, modify, set aside, or reverse the judgment or order appealed from . . . 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 . . . Division 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 Court also reviewed Rules 1, 2, 3, and 7 of the Rules of Procedure as enacted on January 19, 1953, and as amended on June 8,1962.
Counsel for both Mageo and Pogai and Faafia went beyond the scope of the grounds set out in their Notice of *878Appeal and outside of the record in presenting their arguments. The Court allowed these excursions over the objection of the Appellee, Intervenor below, in the interest of justice and considering the lack of formal legal training of counsel for Appellants.
Lolo, counsel for Mageo, argued 5 points why the decision of the Trial Court should be reversed. Point No. 1 was that there was no proof by the Government of American Samoa in the lower court to show ownership of Pusi in the Government of American Samoa; that Ordinance No. 15 did not include the property on the seaward side of the present road. Point No. 2 was that the Decree of the Trial Court was not justified. To reinforce this contention, counsel for Mageo referred the Court to the case of Dan Foster v. Olotoa, No. 15-1953, Trial Division, High Court of American Samoa. Mageo’s counsel based his Point No. 3 on the fact that Pogai had testified in the trial below that the foot path ran next to the water, and that Ordinance No. 15 referred to the foot path and not to the present main road. Point No. 4 was based on the premise that the Trial Court’s decision caused fear and worry among the Samoan people; that Governor (Commandant) Tilley did not intend to condemn the property of his friend Mauga on the seaward side, and that the Government of American Samoa “slept on its rights.” Mageo’s Point No. 5 was that the Decree of the Trial Court was against the promises by the United States and Secretary of the Interior to protect the interests and customs of the Samoan people. The points argued did not follow the grounds as set out in writing in Mageo’s notice of appeal.
Let us now consider Appellant Mageo’s arguments one by one. In connection with Point No. 1, Appellant Mageo failed to show this Court wherein the Trial Court’s findings were clearly erroneous, or where the evidence did not support the findings of the Trial Court. Ordinance No. *87915 and Regulation No. 16 were introduced into evidence by the Intervenor, Government of American Samoa, in the trial below. Paragraph 1 of Ordinance No. 15 of September 3, 1900, reads as follows: “1. A Public Highway or road is hereby declared and proclaimed from ‘Blunt’s Point’ on the Southern side of Pago Pago Harbor extending therefrom towards Observatory Point and around the Harbor to ‘Breaker Point’ on the Northern side of said Harbor, along the shore at High water mark, of a uniform width of fifteen feet distant inland from said shore, and the area of land included in said description is hereby condemned and appropriated for public uses.” (Emphasis ours.)
Ordinance No. 15 and Regulation No. 16 were later interpreted and adopted by the Legislative Branch of the Government of American Samoa as Section 1291 of the Code of American Samoa, 1949. Paragraph 1 of Section 1291 reads as follows: “1. Whereas by Regulations No. 15 and No. 16, 1900, enacted September 3, 1900, by B. F. Tilley, Commander, U.S.N., Commandant, and amended by W. Evans, Captain, U.S.N., on May 10, 1921, a public highway or road was declared and proclaimed from Blunt’s Point on the southern side of Pago Pago Harbor, extending therefrom toward Observatory Point and around the harbor to Breaker’s Point on the northern side of said harbor, along the shore at highwater mark, of a uniform width of 15 feet distant inland from said shore, and the area of land included in said description was thereby condemned and appropriated for public uses. Now, therefore, the said public highway or road so declared and proclaimed is hereby recognized as a public highway and the rights of the Government and the public thereto is hereby asserted.” (Emphasis ours.)
From reading Ordinance No. 15 and Section 1291 of the Code of American Samoa, this Court is. definitely con*880vinced that the interpretation given to Ordinance No. 15 by the Trial Court was the proper and correct one. In both Ordinance No. 15 and Sec. 1291 of the Code of American Samoa, the wording “of a uniform width of 15 feet” refers to the width the road was to be. Immediately following the above quoted words, both in Ordinance No. 15 and Section 1291 are the words, “distant inland from said shore.” The interpretation sought to be read by Appellants to Ordinance No. 15 is necessarily erroneous from the wording of Ordinance No. 13 and as adopted and interpreted by the Legislative Branch of the Government of American Samoa under Section 1291 of the Code of American Samoa as late as 1949. We therefore concur explicitly with the Trial Court’s interpretation of Ordinance No. 15.
We now pass to Point No. 2 offered for Appellant Mageo, that the Decree of the Trial Court was not justified. Appellant’s main contention was the holding of the Court in the case of Foster v. Olotoa, No. 15-1953, High Court of American Samoa, Trial Division. He cited this case to show that the Court had declared Poster owner of a parcel of land on the seaward side of the public highway. The important thing to remember is that in the cited case the Government of American Samoa was not a party to the action. The litigation was strictly between Foster and Olotoa. The Court held that as between .the two parties before the Court, Foster was the owner of the land in question. The decision of the Trial Court in that case is hot at all inconsistent or incompatible with the court’s decision in the instant case. The person in possession is the owner of the land as against anybody except the legal owner. In order to recover his land the legal owner must exercise his right of action as against the wrongful possessor. As between Foster and Olotoa, Foster was the owner of the land in question. The Court in that case did not decide the ownership as between Foster and the *881Government of American Samoa because it was not necessary to decide that question; that issue was not before the Court for consideration.
Appellant Mageo’s Point No. 3 was based on the allegation that Pogai had testified in the lower court that when the Government came in, the foot path ran right next to the water, and that Ordinance No. 15 referred to such foot path as the highway and not to the Pago Pago Village road. This poses a question of fact and we think that the Trial Court, who is the judge of the facts, was in a better position to ascertain or to make a decision as to the circumstances at the time Ordinance No. 15 was promulgated than this court is. The Trial Court, together and in the presence of all the parties to the action below, personally viewed the land in question and the surrounding premises. The Trial Court also heard testimony from witnesses as to the location of the main road when the American flag was first flown over Samoa, and heard the testimony of all the witnesses presented by all the parties to this action. We concur with the view of the Trial Court that the highway referred to in Ordinance No. 15 was the Pago Pago Village road and not the foot path at the edge of the water. Pogai, to whose testimony counsel for Mageo referred, at one point testified as follows in the Trial Court in answer to questions from her counsel, Tuaolo: “Question: Pogai, try to think and bring up the approximate date that the road or the foot path has shifted from the high water mark to where the present road is now of Pago Pago Village? Answer: The year the Government was first arrived.” (Page 53 of Transcript of record of Trial Court.)
The only part of Appellant’s Point No. 4 which merits consideration is that “the Government slept on its rights.” If by this Appellant means that the Government of American Samoa was guilty of laches or that the statute of *882limitations ran against the Government of American Samoa with the result that Appellant is entitled to Fusi by adverse possession, we must disallow this interpretation. Neither laches nor the statute of limitations ran against the Government of American Samoa. “Laches on the part of its officers cannot be imputed to the government and no period of delay on the part of the sovereign power will serve to bar its rights either in a court of law or equity when it sees fit to enforce it for the public benefit.” (9 Wheat. 720.) In connection with the statute of limitations, it is the basic law that the statute of limitation does not run against the sovereign, and in the present case it does not run against the Government of American Samoa with respect to land.
“Unless it is expressly or by necessary implication provided otherwise by constitution or statute, statutes of limitation do not run against the sovereign or the government, either against a state or, according to the decisions, against the United States, and do not operate to bar suits involving public or governmental rights, rights which are brought by, or on behalf of, the state or government in its sovereign capacity.
This rule is based on considerations of public policy and accords with the maxim, Nullum tempus occurrit regi.” 53 C.J.S. 940.
We hold that the Government of American Samoa comes within this rule.
Point 5 of Appellant’s argument merits no consideration, except to say that the decision of the Trial Court in awarding Fusi to the Government of American Samoa does not appear to be against the interest of the Samoan people, since it is all the people of American Samoa that make up the Government of American Samoa, and any property held by the Government of American Samoa is necessarily held for the use and benefit of all the people of American Samoa.
*883In his final argument counsel for Appellant Mageo asked for a new trial. We find nothing in the record or during the hearing on appeal to warrant a new trial, and Appellant’s request is hereby denied.
In résumé, let us say that none of the points argued by Appellant Mageo suggested to us, much less convinced us, that the findings of the Trial Court should be disturbed.
Appellants Pogai and Faafia based their appeal on 3 points and also asked for a new trial. In his argument Tuaolo, counsel for this Appellant, went outside the record and did not follow the grounds which were set out in this Appellant’s written notice of appeal. This Appellant failed to produce any of the evidence on which he claimed to base the appeal in the first place and for which purpose this Court had previously granted a continuance of 60 days. Point No. 1 as set out for Pogai and Faafia by counsel was based on the allegation that the decision of the Trial Court was based on the interpretation of the word “along” in Ordinance No. 15, and that the Trial Court erred in the interpretation of the word “along” in placing the location of the public highway. Counsel for this Appellant contended that “along” meant a distance of 15 feet from the high water mark. He talked about a Navy map setting out the place where the highway was meant to be and showing riparian, accretion and reclamation data, but produced no evidence of any such map or any other proof to convince the Court that the findings of fact of the Trial Court were clearly erroneous, or that the findings were contrary to the evidence or against the weight of the evidence in this connection. We reiterate here our view earlier expressed in this opinion as to the interpretation of Ordinance No. 15, and repeat that we find that the interpretation given to Ordinance No. 15 by the Trial Court was the proper and correct one. We could elaborate on the illogical, unreasonable and even absurd consequences which would result if *884the interpretation sought by this Appellant were applied to Ordinance No. 15, but we will dispense with this unnecessary verbosity.
In Point No. 2 counsel for Appellants Pogai and Faafia based his argument on “riparian rights.” There was no mention of riparian rights as grounds for appeal in Appellant’s notice of appeal. Counsel argued that the flood of 1912 (which was never mentioned in the trial below) deposited enough debris on the Bay to add 15 feet to Fusi, the land in question, and asserted that the land formed by accretion did not belong to the Government. We find nothing in this argument to merit or deserve our comment or to lead us to believe that the findings of the Trial Court were clearly erroneous or contrary to the evidence or against the weight of the evidence.
Counsel stated that he had no argument to offer in connection with the allegations in Point No. 3 in the notice of appeal. This was an assertion by Appellant that, “we will produce correspondence and other documentary evidence from sources in Washington, Honolulu and Apia that will prove the intent of the condemnation set forth in Ordinance No. 12. . . .” No effort was made to present or introduce any such evidence at the hearing on appeal.
Counsel for Pogai and Faafia asked for a new trial based on the following grounds: 1. That the presiding judge of the Trial Court testified regarding claims considered by the War Damage Claims Commission at the trial below; 2. That the Trial Court had rendered the wrong interpretation to Ordinance No. 15; 3. That there was no proof of any condemnation proceedings; and 4. “New Evidence.” We will consider these points in the order presented.
The fact that the Trial Court presiding judge was called on as a witness and testified in connection with *885claims considered by the War Damage Claims Commission, of which he was a member, regarding claims filed by people of American Samoa is not an error which would entitle Appellant to a new trial. The trial judge testified as to his official, ministerial duties more than sixteen (16) years ago. He testified only as to matters which are of record in the files of the War Damage Claims Commission, and in no way did his testimony prejudice Appellant’s case. There was no objection to his testifying by either of the Appellants. Counsel for both of the Appellants cross-examined the trial judge while on the witness stand after direct examination by the Intervenor, who had called the judge as a witness in the first place to identify a document of the War Damage Claims Commission. We find no reversible error whatsoever on this point to entitle Appellants to a new trial and we so hold. (58 Am. Jur., Witnesses, Sec. 149, pages 108,109.)
Appellant’s request for a new trial on the grounds that the Trial Court rendered the wrong interpretation to Ordinance No. 15 is also hereby denied. We have already covered this point fully elsewhere in this decision. Not only are we unable to find error, but we fully concur with the Trial Court’s interpretation of Ordinance No. 15.
Appellant’s third point for a new trial is based on the ground that there was no proof by the Intervenor of any condemnation of the land in question by the Government of American Samoa. We reject this contention by quoting the last clause of Paragraph 1 in Ordinance No. 15 which reads as follows: “and the area of land included in said description is hereby condemned and appropriated.” (Emphasis ours.) Paragraph 4 of said Ordinance No. 15 set out the method for filing for compensation. We held that the land covered by the Ordinance was condemned and appropriated with publication of Ordinance No. 15, said date being September 3,1900.
*886Appellant’s fourth point for a new trial is based on the grounds of “new evidence.” Appellants failed to produce or introduce any new evidence at the appeal hearing even though they had over five (5) months since the filing of their notice of appeal. The Appellate Court granted them a 60 day continuance last February 27, 1963 for the explicit purpose of gathering evidence, and no evidence was produced at the hearing on appeal. No good purpose would be served by any further delay. Appellant’s motion for a new trial on this ground is also hereby denied.
Counsel for Intervenor, Mr. Owen S. Aspinall, argued that neither of the Appellants nor their counsel had shown that the Trial Court made any error at the trial level. He stated Appellants’ case consisted only of argumentative remarks; that there was no evidence of failure of the Trial Court to consider the evidence or of making findings contrary to the evidence, and that there were no bases for reversing or setting aside the decision of the Trial Court or for granting a new trial.
In answer to Appellants’ counsel’s remarks questioning the motives of the Government of American Samoa, the Intervenor stated that his only interest and obligation was that the rights and interests of all the people of American Samoa were protected.
In commenting on Appellants’ citing of the Foster v. Olotoa case, counsel for Intervenor stated that the Government of American Samoa had not been a party to that suit; that the main point of that case was that the person in possession has a prior claim against everybody except the true owner. Intervenor cited the case of Pato Honey Bell Luce and Rev. Maurice Luce v. Pila Patu and Government of American Samoa, Intervenor, No. 6-1954, High Court of American Samoa (Trial Division). In that case the Government of American Samoa appeared as Inter*887venor claiming ownership of ,the land between the public highway and high water mark under Ordinance No. 15 of September 3, 1900, and sought to enjoin respondent, Pila Patu, from erecting a building under Regulation No. 16 of the same date. While the Court did not decide as to the ownership of the land, it enjoined respondent from erecting the said building, and the Court in its opinion said in part: “It is our opinion that this limitation upon the use of the land between the public highway and the high water mark in the harbor of Pago Pago is valid. Regulation No. 16 was enacted at the same time and in connection with Regulation No. 15 which provided for condemnation of land for a public highway around Pago Pago Bay. Such limitation as to the use of the land between the highway and the Bay was paid for by the Government when the land which now comprises the highway was condemned.”
In answering Appellants’ argument regarding the giving of testimony by the presiding judge in the Trial Court, Intervenor cited 97 C.J.S. 514 and 58 Am.Jur., page 108.
Intervenor further argued that all the judges of the Trial Court, together with all the parties to the litigation visited the land in question and that the lower court was the better judge of the facts from personal inspection, and that the lower court had made no error as to the position of the Village road and its interpretation of Ordinance No. 15. He also said the Trial Court had fully considered the question of reclaimed land. Intervenor answered Appellants’ argument that the “Government slept on its rights” by stating that the statute of limitations did not apply against the Government of American Samoa. Intervenor further alleged that there were no legal bases for a new trial as requested by Appellants. He argued that the decision of the Trial Court should be affirmed.
In conclusion, we will say that after considering the transcript of the trial below and after listening to the *888arguments of both Appellants and the Intervenor, this Court finds that there was no clearly erroneous finding or findings of fact by the Trial Court. Neither of the Appellants convinced this Court that the evidence below did not support the finding or findings of fact of the Trial Court. This Court is of the unanimous opinion that the findings of the Trial Court are fully supported by the evidence, and finds no reason whatsoever for disturbing the Decree of the Trial Court. We have also considered Appellants’ action for a new trial and find no basis for granting a new trial.
Therefore, It is Ordered and the Decree of the Trial Court be, and the same is hereby, Affirmed. The motion for a new trial is denied.
Court costs in the amount of $12.50 are hereby assessed against the Appellants, $6.25 to be paid by Appellant Mageo and $6.25 to be paid by Appellants Pogai and Faafia, the same to be paid within 30 days.
Decree affirmed. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485407/ | MORROW, Chief Justice.
This is an appeal from a judgment of the Trial Division for $1664.50 recovered by the appellee against the appellant in a motor vehicle collision case. In this opinion the appellant will be referred to as the defendant and the appellee as the plaintiff, as they were in the trial court.
The record shows that the defendant had a truck driven for him in his business by one Enosa at the defendant’s request, which truck collided with the plaintiff’s taxi driven by one Eti, a taxi driver for the plaintiff, with the result .that the taxi was badly damaged. The collision occurred about August 7, 1962, between Faganeanea and Nu’uuli.
The evidence was to the effect that the defendant’s driver was cutting a curve and was about five feet over on the taxi driver’s half of .the road when the accident occurred. The necessary finding of fact by the trial court that the proximate cause of the accident was the negligence of the defendant’s driver was clearly not error.
Before proceeding to the grounds of appeal, we quote the applicable part of Section 3.0503 of the Code, 1961, prescribing the powers of the Appellate Division on appeal:
“The Appellate Division of the High Court on appeal . . . shall have power to affirm, modify, set aside, or reverse the judgment or order appealed from ... 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 (emphasis added)____”
The first ground of appeal is “That the High Court was misled by the Respondent in relationship to the damages of .the taxi.” This assignment of error is not sufficient in that it does not specify the particulars wherein *891the Court was misled. It is clearly the law that “An assignment of error that the evidence was not sufficient to support the decision must show the particulars in which it is insufficient.” 5 American Jurisprudence 2d., Tit. Appeal and Error, Sec. 671 atp. 119.
Nevertheless, in order to avoid any possible injustice to the defendant, we shall consider, although we are not required to do so, wherein the defendant claimed that the trial court was misled by the plaintiff’s testimony. The defendant in his argument claimed that the plaintiff’s gross receipts for the taxi, excluding the cost of gasoline paid for from gross receipts, aggregated $250 a month while the expenses of operation, likewise excluding the cost of gasoline, totaled $92.10 a month, itemized as follows: $72.50 for the driver’s salary, $2.50 for oil, $10.50 for servicing and $6.60 for spark plugs, thereby leaving a monthly profit of $250 less $92.10 or $157.90. To establish that the Court was misled, the defendant cites the plaintiff’s testimony to the effect that his monthly profit was only $150.00.
We point out that if the Court was misled in considering that the monthly profit was only $150, as testified to by the plaintiff, instead of $157.90 as claimed by the defendant in his argument on appeal, it would follow that the trial court made an error of $7.90 per month in favor of the defendant during the period that the plaintiff was entitled to have profits from the taxi considered and that the judgment should have been for more than the $1664.50.
Since the plaintiff has not appealed, we will not modify the judgment by increasing it so as to reflect the additional $7.90 a month, which the defendant in his argument claimed that the Court did not consider through being misled by the plaintiff’s testimony that his profit was only $150 a month. The error, if any, was in favor of the defendant. It was, therefore, not prejudicial to him. That *892the judgment against the defendant was not as large as it should have been is hardly ground for reversal upon an appeal by the defendant.
The defendant in his argument claimed that the plaintiff was not qualified to testify as to the damages to the taxi and to the salvage value of the various parts that could be salvaged, because he had not been to a “mechanical school.” However, we think that the record shows that the plaintiff was qualified. He has 26 motor vehicles, buses and taxis together. He is an auto mechanic and can take cars apart and repair them. He has a garage where he has his buses and taxis serviced. He has been in the bus and taxi business for some years and, of necessity, has had to purchase many parts as well as keep parts on hand. He has repaired cars himself. He has purchased many buses and taxis. Through experience he was certainly qualified to give the testimony he did to the effect that the taxi was so badly wrecked that it was a total loss except for salvage purposes.
We think that the trial court did not commit error when it received the plaintiff’s testimony and considered it in reaching its decision. It is not necessary to attend a mechanical school in order to learn what a fender or a door and other parts going into a car sell for.
Certainly the Court’s conclusion as to the amount of damage suffered by the plaintiff as a result of the defendant’s driver’s negligence was not clearly erroneous. That was a matter of fact and there was substantial evidence in the record to support the Court’s finding.
In accordance with the statute above quoted, we cannot reverse the judgment on a finding of fact unless it is “clearly erroneous.” The finding as to the damage is well substantiated by the evidence in the record. The finding was not “clearly erroneous.”
*893The second ground of appeal is “That the Court failed to view the place of the accident and damages incurred by the car involved in the accident.” Viewing the road where the accident occurred and the damaged taxi was purely discretionary with the Court. There was no error here. Certainly it was not error to fail to view a highway at the place where an accident had occurred more than three months previously and from which the taxi and truck had been removed. Also, it was not error not to view the damaged taxi. Exhibit No. 1, a large photograph which the Court saw, showed the taxi and truck on the highway just after the accident. The picture showed the highway and the two vehicles.
The third ground of appeal is “That American Samoa does not have Public Liability and Damage Insurance.” Whether that is true or not is immaterial. Conceding that it is true, it does not follow that the defendant is not liable to compensate the plaintiff for the damage incurred by the plaintiff as a result of the negligence of the defendant’s driver.
The defendant as a fourth ground of appeal states that “Other or further evidence will be presented before or during the time of the hearing.” Suffice it to say that no such evidence was introduced, even if it had been admissible on appeal, which it was not. The function of the appellate court, in a damage case such as this, is not to take evidence but to determine whether the grounds of appeal are meritorious. True, the defendant did say in his argument on the appeal .that 90% of the damaged taxi could be salvaged. However, the plaintiff offered no evidence to substantiate such claim. Such statement was hearsay. Counsel for the plaintiff countered with the statement that only 20 % could be salvaged. His statement was likewise hearsay.
*894We find no merit in the grounds of appeal. There is abundant evidence in the record to support the finding of the Court that the proximate cause of the accident was the negligence of the defendant’s driver and that as a result of such negligence the plaintiff’s damage was $1664.50. The findings of fact were not clearly erroneous.
Accordingly, the judgment of the trial court must be and it is hereby AFFIRMED.
Costs in the amount of $3.00 are hereby assessed against the appellant Faatamala Tuia (Muagututi’a), the same to be paid within 15 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485408/ | MORROW, Chief Justice.
The appellant was convicted in the District Court for the First District of speeding, a violation of Sec. 25.0503 of the Code of 1961, and sentenced to 30 days in jail at ordinary labor. In addition, his driver’s license was suspended for 10 days. He has appealed from the judgment of conviction. Hereinafter the Appellant will be referred to as the defendant.
Section 3.0503, Code of 1961, 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 . . . and to remand the case with such directions for a new trial or for the entry of *896judgment 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 a criminal case the Appellate Division of the High Court may set aside the judgment of conviction and, if the defendant has appealed or requested a new trial, order a new trial, or may commute, reduce, (but not increase) or suspend the execution of the sentence.”
The ground of appeal is “That such conviction was unreasonable and could not be supported having regard to the evidence and in particular (a) that there was not sufficient corroboration of the evidence of Police Officer Fuimaono S. the witness.”
The police officer’s testimony was that he followed the defendant in a police car from the market area in Fagatogo to the intersection of the main highway around Pago Pago Bay and the road to Fagasa; that the speedometer on the witness’ car showed that he was travelling 35 miles an hour; that the defendant passed three cars while the witness was travelling at 35 miles an hour trying to overtake the defendant; .that there were people walking on the highway; that the defendant was travelling 35 miles an hour between the points above mentioned. The police officer also testified .that the time during which he followed the defendant was “maybe about five minutes.” The defendant admitted in his testimony that he told the policeman he was travelling 25 miles per hour.
Section 25.0503 of the Code specifying the speed limits reads as follows:
“MAXIMUM SPEED: No person shall operate a motor vehicle upon any highway in American Samoa at a greater rate of speed than is provided in the following schedule:
*897“1. Twenty five miles per hour between Blunt’s Point and Breaker’s Point, except as otherwise provided.
“2. Twenty miles per hour on all winding roads and within the limits of any village.
“3. Ten miles per hour when approaching, or driving around a sharp curve.
“4. Thirty miles per hour on straightway open roads.
“The speed limitations hereinabove set forth shall not apply to authorized emergency vehicles when responding to emergency calls.”
As a matter of fact much of the distance, if not all of it, between the market area and the intersection of the Fagasa road in Pago Pago, is through village area. There are a substantial number of houses as well as some stores along the highway between the two points; not only that but there are some curves, so as to make the road winding in places. It would follow, therefore, according to the defendant’s own admission that he was speeding by going through parts of a village at more than 20 miles per hour; also, that he was speeding when he drove more than 20 miles an hour on a winding road. It is a fact that part of the road between the market place and the intersection with the Fagasa road is not only curved in some places but very much curved beyond the Olotoa store in Pago Pago.
Defense counsel asks us not to consider the testimony of the police officer to the effect that the defendant was driving at 35 miles per hour because he also testified that the time that elapsed during which he followed the defendant was “maybe five minutes”. “Maybe five minutes” is not a statement .that it was five minutes. Also, the policeman did not have a watch. It did not purport to be an accurate statement since the “five minutes” was preceded by the word “maybe”. However, the statement that the defendant was travelling 35 miles per hour did purport to be an accurate statement since the policeman’s speedom*898eter showed a speed of 35 miles when he was following the defendant.
There is abundant evidence in the record to warrant a conviction in this case, the defendant’s own testimony-warrants a conviction, for in reply to a question the defendant, while on the witness stand, answered “He (meaning the policeman) ask me what was I doing and I ask him why and he ask me how fast I was going and I said to him I was going 25 miles.” He thereby admitted that he was travelling 25 miles per hour on a winding road and a road much of which is within the limits of a village where the speed limit is 20 miles.
The defendant’s own admission to the policeman that he was travelling 25 miles per hour corroborates the charge of the policeman that the defendant was speeding. We think that the appeal is without merit, there being substantial evidence in the record to support the finding of guilty by the Court.
However, we think that the sentence should be and it is hereby modified by suspending the last 15 days of the jail sentence during good behavior. This will result in one day’s imprisonment for each mile in excess of the speed limit, which we think is sufficient.
In view of the modification of the judgment of conviction, no costs will be assessed to the defendant.
The judgment of conviction is hereby affirmed as modified. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485412/ | ROEL, Associate Justice.
This is an appeal from the decree rendered by the Trial Division of the High Court of American Samoa. The case was originally heard at Fagatogo, American Samoa, on August 4 and 5, 1964. The decision of the Trial Court was rendered and the decree entered on August 10, 1964. The decree in eifect dismissed the petitions of both Mrs. Elizabeth Scanlan Ross, Appellant herein, and Sam Su’afaiga Scanlan, Appellee. In its decision the Trial Court held that the land Taufusi was the property of the Scanlan Family and not the property of Elizabeth Scanlan Ross.
In presenting his argument on appeal, counsel for Appellant referred the Court to the memorandums of authorities previously filed. These memorandums were received by the Court to supplement the grounds of appeal as originally set out by Mrs. Ross in her notice of appeal.
*916Commenting on the “Rules of Procedures in the Appellate Division of the High Court,” counsel for Appellant stated that he had reservations regarding Rule 7C which reads in part, “Unless timely and sufficient objection has been made to the introduction of inadmissible evidence, the question of the admission of such evidence will not be considered an appeal.” Counsel stated that this portion of the Rules was rather restrictive in that Appellant’s counsel in the Trial Division was not legally trained and also that counsel in the Trial Division may have been reluctant to object to some of the questions from the bench because of the fact that the questions, coming from the bench, gave the questions and answers thereto a color of legality.
Counsel for Appellant argued that two deeds were in question before the Court, one being the deed from Mailo to Charles Scanlan as trustee for Tásele for life, with a remainder to the oldest heir of Tásele; that the second deed was the one executed on September 3, 1962 by Charles Scanlan, son of Tásele, to Appellant, Mrs. Ross.
Counsel argued that the 1906 deed from Mailo to Scanlan, as trustee for Tásele, was subject to a 15-year lease which expired in 1922; that Charles Scanlan held the property under the lease as lessee and not as a trustee.
Counsel argued that the first point of error as set out in his written memorandums was that the Trial Division erred in permitting hearsay evidence. He stated that while the permitting of hearsay evidence, without objection, was normally no grounds for appeal, an exception should be made here because Appellant’s Samoan counsel at the trial was not legally trained. He argued that strict application of Rule 7C would not serve the best interest of justice, where questions asked by Court would restrain untrained counsel from objecting because the Court lent an air of legality to the questions. Counsel further argued that *917except for the evidence based on hearsay testimony, the 1906 deed was valid on its face and provided a good chain of title to the Appellant.
Counsel for Appellant further argued that even if no error were committed in connection with the admission of hearsay evidence, the Trial Division had erred because it had oversimplified the law of adverse possession. He argued .that the evidence did not support the ruling that the Scanlan Family and not the Appellant, through Charles Scanlan and Tásele, held the property in question by adverse possession. He claimed that from the date of the execution of the 1906 deed Charles Scanlan, as trustee for Tásele, held the property in question by adverse possession for the benefit of Tásele; that because of the 1906 deed Charles Scanlan could not be the adverse possessor himself because his possession as lessee would be consistent with title of owner; that Charles Scanlan became the holder of the land by adverse possession for Tásele and also as lessee, but that as lessee Charles Scanlan as .trustee for Tásele took property by adverse possession against the entire world, in the belief that the deed from Mailo was valid.
Counsel argued that when Charles Scanlan died in 1920 Tásele was 25 years old and he, Tásele, took over the adverse possession; that Tásele took over by adverse possession a life estate with remainder over to his eldest heir. Counsel then stated that Charles Scanlan could not claim land as adverse possessor from 1905 to 1920. Counsel argued that Tásele lived on the property and .that, even though he had left the property in question for some years, he, Tásele, had come to die on the property at the age of 66; that the rest of the Scanlan Family were permittees of Tásele on the property and not holders by adverse possession. Counsel argued that in connection with the evidence that Charles Scanlan had given Mailo money for the property in question, that it was not unusual in the *918Samoan custom for a father to buy property in the name of his eldest son. He argued that, whatever the reason, the intent of the deed was clear that the land was to go to Charles Scanlan for the benefit of Tásele as a minor; that when Tásele became an adult he took full possession as a life tenant.
Counsel for Appellant argued that the .testimony to the effect that the Scanlan Family has been in continuous possession of the land in question since 1906 does not support a finding that the Scanlan Family possessed the land by adverse possession as against Tasele’s interest.
Counsel for Appellant further argued that if the deed from Mailo to Charles Scanlan and Tásele was illegal but the grantee took with the belief that the deed was valid, then Tásele took by adverse possession and that no one else but Tásele could claim by adverse possession; that no one questioned the deed until 1964 as to its legality. Appellant’s counsel argued that the Appellee must show that the Scanlan Family took by adverse possession from Tásele if Appellee is to prevail. He set out the burden of proof necessary for a claim of adverse possession against a family member; he commented on the family relationship in Samoa where family members are invited to stay in each other’s houses.
Counsel argued that the fact that Appellee paid for the light and water bill and built or made repairs to the house is no indication of adverse possession on Appellee’s part; .that Tásele was owner by adverse possession after 20 years and that Tásele could claim only a life estate by adverse possession; that when Tasele’s son conveyed to Mrs. Ross in 1962 he transferred to her a good title in fee simple. Later counsel for Appellant corrected himself to say that the deed to Mrs. Ross conveyed only a life estate to her.
*919Appellant’s counsel argued that when the Trial Division Court voided the deed of 1906, it oversimplified the issue by saying that Tásele took nothing; that the deed had never been questioned in all these years; and that the Appellant was the true legal owner of the property in question. Counsel argued that the findings of fact and conclusions of law of the Trial Division be reversed and that judgment be entered in favor of the Appellant.
On rebuttal counsel for Appellant argued that the void deed from Mailo was no bar to the taking of the property by adverse possession by Tásele; that the color of title coupled with adverse possession gave Tásele the right to the property; that Tásele through the trustee, Charles Scanlan, acquired adverse possession title in 1905; that although the legal theory and the argument of Appellee was technically right, the oversimplification of the issues by the Trial Division would not carry out justice to give title of the property to the rightful owner.
Lolo, counsel for Appellee, argued that there were three documents relevant to the question before the court, as follows: the deed from Mailo to Charles Scanlan in 1906; the conveyance from Charles Scanlan, Jr. to Mrs. Ross on September 3, 1962, and lease between Charles Scanlan and Mailo. He argued that the deed from Mailo to Sca,nlan in trust for Tásele in 1906 was void; that it was executed against the provisions of .the law in 1906; that Mailo’s right to convey land was positively withheld and denied by statute; that Mailo and Charles Scanlan entered into the conveyance agreement in an attempt to evade the law; that the conveyance was invalid, void and criminal in that the regulation provided for a penalty in connection with the legal conveyance of land under Section 9 of the Land Regulations. Counsel for Appellee argued that .the Court below did not err in holding that the deed from Mailo to Scanlan and Tásele was void.
*920Counsel for Appellee further argued that when Charles Scanlan, Jr. executed the conveyance to Mrs. Eoss he was trying to convey something he did not have. He argued that the only legal document was the lease from Mailo to Charles Scanlan of January 7, 1905. Lolo asked the Court to take judicial notice of the land law in 1906.
Counsel for Appellee argued that the Court had the right to admit hearsay evidence under certain circumstances, citing several authorities. He argued that the Court could relax the rule regarding hearsay evidence in the interest of justice; that the only parties to the original deed, Mailo, Charles Scanlan, Sr. and Mrs. Scanlan were all dead, and that the Court was justified in allowing hearsay testimony. He further argued that hearsay testimony was admissible in connection with the proof of family history, relationship, pedigree, family tradition and declarations of deceased.
Counsel for Appellee argued that the history of the Scanlan Family in American Samoa began from the time of the lease from Mailo .to Scanlan; that the testimony of Sam Scanlan, though hearsay, was the best available evidence to arrive at justice in the case, and that Sam, being a member of the Scanlan Family, could give such testimony; that the Court below was not wrong either in admitting or considering the said evidence.
In connection with the issue of adverse possession, Appellee’s counsel argued that Charles Scanlan, Sr. did not have color of title for the benefit of Tásele as a result of the deed from Mailo. Counsel argued that a conveyance from one whose power to convey is withheld by statute does not convey a color of title; that Mailo did not have authority to convey to Charles Scanlan for Tásele because he was barred by statute at the time of the alleged conveyance; that Mailo had nothing to convey and that color of title could not be based on an illegal conveyance; that the only *921legal document was the lease from Mailo to Charles Scanlan, Sr.; that Charles Scanlan died in 1920, the year when the lease terminated; that from 1920 to the present, the Scanlan Family used the land openly and notoriously to create for them title by adverse possession against Mailo; that the statute of limitation regarding ownership by adverse possession began to run from 1920 after the term of the lease; that after Charles Scanlan died in 1920, his wife, Pipii, continued to live on the property until the time of her death very recently; that the Mailo Family residence is only a few feet from the property in question and that the Mailo Family for many years had known that the property was used by the Scanlans.
Counsel for Appellee argued that Tásele lived away from the property in question on other Scanlan land and had children born there; that even Mrs. Ross was born at a place other than the land in question; that Tásele built a home for his family on this other Scanlan property and did not live on .the property in question and came only to visit his mother there; that Tásele and his family had their home away from the land in question for more than 30 years; that Mrs. Ross left American Samoa for 14 years, and that most of the Scanlans left American Samoa except Sam, his mother and his sister Marie, who continued to occupy the property in question.
Counsel for Appellee concluded his argument by stating that the Court below was correct in holding the deed from Mailo to Charles Scanlan and Tásele void since it was illegal and did not even create a color of title; that the Appellant had failed to show that .the decision of the Trial Court was clearly erroneous.
This Court has considered Appellant’s counsel’s written memorandums of authorities on which the appeal was based as well as his oral arguments at the time of the hearing of this appeal. Appellant’s main grounds for *922appeal were as follows: 1. that the Trial Court was in error in admitting and considering hearsay testimony in arriving at its decision; 2. that the Trial Court erred in holding that the Scanlan Family were the adverse possessors of the property in question in that it should have held that the Appellant, Elizabeth Scanlan Ross, was the sole rightful owner of the property; 3. that the Trial Court erred in propounding leading questions to witnesses, and that consequently the decisions of the Trial Court should be reversed and award made in favor of Appellant. As we have already mentioned, Appellant’s counsel argued that Rule 7C of the Rules of Procedure should be released for the benefit of the Appellant.
In considering Appellant’s argument that the Court below erred in admitting and then considering hearsay testimony in arriving at its decision, we find that we cannot agree with him in this contention. We agree with the majority of authorities and the growing tendency of relaxing the hearsay rule and in upholding the exceptions to the hearsay rule thus far established. It has been held that “The modern tendency is to increase the number of exceptions; so, it has been said that exceptions to the hearsay rule have virtually swallowed the rule. . . .” (31A C.J.S., page 540, Evidence, Sec. 193.) Thus it has been held that “Necessity, as a prerequisite to exception to rule, exists when refusal to admit hearsay statement will cause facts brought out by statement to be lost because person whose assertion is offered is dead or unavailable, or because assertion is of such nature that evidence of same value for same person or other sources could not be expected to be obtained.” (31A C.J.S., page 540, Footnote, Meaning of necessity, Evidence.) “Such exceptions are based on necessity, public policy, practical common sense, and the trustworthiness which experience has taught, or the *923circumstances indicate. . . .” (31A C.J.S., pages 540-541, Evidence.)
“Declarations of deceased person are admissible against heirs claiming under deceased person, if they would be admissible against the deceased, if living.” (In re Pardee’s Estate, 240 Wis. 19, 1 NW-2d 803-Footnote, 31A C.J.S., page 575, Evidence.)
“And testimony as to the statement of a deceased has been held not hearsay where the testimony is not offered to prove the truth of the statement, but as relevant to a factual issue necessary to a determination of the case.” (31A C.J.S., page 576, Evidence.)
“A strong reason for the exclusion of hearsay is found in the distrust of the ability of a jury to give the proper weight to an unsworn statement, since only a well-trained mind can give such a statement any weight without grave danger of giving it undue weight. This reason is not present where the evidence is addressed solely to .the judge, to enable him to decide matters of fact, or to determine as to the exercise of discretion, and consequently the rule is considerably relaxed under such circumstances.” (31A C.J.S., page 579, Sec. 210, Evidence.) “In fact, the general rule to which only a small minority of jurisdictions take exception, is that hearsay testimony admitted without objection may properly be considered and given its natural probative effect.” (20 Am.Jur., Sec. 452, page 401.) To the same effect see 20 Am.Jur., Sec. 453, page 402; 31A C.J.S., Sec. 204, page 572, Evidence; 31A C.J.S., page 575, Evidence; 20 Am.Jur., Sec. 468, pages 409-410, and others.
In connection with the issue of adverse possession, it must be remembered that the Court below found the deed from Mailo to Charles Scanlan for the benefit of Tásele to be absolutely void. The Court, as the trier of the *924facts below, found that the transaction between Mailo and Charles Scanlan, Sr. had been a subterfuge arrangement to circumvent the restrictions on alienation of land of the then existing land law in 1906. We believe that the Court below was justified in making said determination from the record, and we so find. The fact that both Mailo and Charles Scanlan, Sr. knew that the transaction was being-made outside and contrary to the existing land law, the violation of which was made a crime and punishable as such, made such an instrument absolutely void and could not be used as color of title in conjunction with a claim of the land by adverse possession. Such a conveyance did not create color of title. The question is not whether the Scanlan Family could claim adversely as against Tásele, but whether the Scanlan Family as a whole, under the leadership of Charles Scanlan, Sr. and his wife, Pipii, could hold against Mailo by virtue of adverse possession after the expiration of the 15-year lease between Mailo and Charles Scanlan, Sr. The Court below found that the adverse possession against Mailo was effected for the-benefit of the whole Scanlan Family and not for the benefit of Tásele alone. We do not believe that such finding by the Trial Court was erroneous. We think the evidence in the record justified its findings. “Ordinarily, reliance upon limitations for title presents a fact question. However, adverse possession is usually a mixed question of law and fact. Whether the facts exist which constitute adverse possession is for a jury to determine, but whether the facts as delineated are sufficient to constitute adverse possession is a question of law for the court.” (3 Am.Jur.2d, Sec. 112, page 198.)
In connection with Appellant’s argument that the Court below committed error by propounding leading-questions to witnesses, we are of the opinion that Appel*925lant has failed to show that such conduct of the Court was in violation of its discretionary power or that it constituted error. “A trial judge has the right to propound such questions to witnesses as may be necessary to elicit pertinent facts, in order that the truth may be established, although some reviewing Courts have declared that the practice of so doing except when absolutely necessary should be discouraged. Accordingly that Trial Court has the power to recall a witness who has been examined, and propound questions to him. He may cross-examine a witness, or ask him leading questions. And he may elicit any relevant and material evidence, without regard to its effect, whether beneficial or prejudicial to one party or the other. Indeed, it has been declared to be the duty of the court to propound such questions to reluctant witnesses as will strip them of the subterfuges to which they resort to evade telling the truth. The extent to which such examination shall be conducted rests in the discretion of the judge, the exercise of which will not be controlled unless abused.” (58 Am.Jur., Sec. 557, page 310.)
The Court sees no reason to relax the provision of Paragraph 7C of the Rules of Procedure since there was nothing revealed to show that the Appellant was in any way prejudiced. Appellant was not in any way confined in his arguments before the Appellate Division, and any matters to which the Appellant failed to object below were included in Appellant’s counsel’s written memorandums or oral argument and have been disposed of by this Court.
In conclusion, after considering the transcript of the trial below, the written memorandums filed by Appellant’s counsel, and after listening to the arguments for Appellant and Appellee, it is the unanimous opinion of this Court that there was no clearly erroneous finding or findings of fact by the Trial Court. The Appellant failed to convince this Court that the evidence below did not support the *926finding or findings of fact of the Trial Court. We are of the unanimous opinion that the findings of the Trial Court are fully supported by the evidence, and we find no reason whatsoever for disturbing the Decree of the Trial Court.
Accordingly, it is hereby ORDERED that the Decree of the Trial Court be, and the same is hereby, Affirmed.
Court costs in the amount of $15.00 to be paid by Appellant, Mrs. Elizabeth Scanlan Ross within 30 day's.
DECREE AFFIRMED. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485413/ | ROEL, Associate Justice.
This is an appeal from the decree rendered by .the Trial Division of the High Court of American Samoa. The case was originally heard at Fagatogo, American Samoa on January 26, 1965. The decision of the Trial Court was rendered and the decree was entered on January 29, 1965. The decree in effect ordered that the portion of the land called Lugasami, containing 1.736 acres, more or less, as shown on the plat accompanying the application of the Government of American Samoa to register the same, and designated as the Consolidated School Site in the village of Afono, be registered as the property of the Government of American Samoa, subject to certain conditions set out in the deed from the Matagaono Family to the Government of American Samoa. From this decision Joseph Willis, as representative of the Willis Estate, appealed.
The record will reflect that this Court went to great detail at the beginning of the hearing on appeal to *928familiarize both parties with the Rules of Procedure to be followed at the hearing with regard to the fact that the Appellate Division was bound by the findings of fact of the Trial Court unless .the Appellate Court was of the opinion that such findings of fact were CLEARLY ERRONEOUS. (See Section 3.0503 of the Code of American Samoa, 1961 Edition and Rules of Procedure as enacted on January 10, 1953 and as amended on June 8,1962.)
We might mention that this hearing on appeal was set for 9 a.m. on May 27, 1965, but .that after appellant’s counsel failed to appear after waiting for him for an hour, the hearing was continued until 5:30 p.m. of the same day to allow appellant to locate his counsel and have the benefit of his presence at the hearing.
At the beginning of the hearing, counsel for the Appellee made a motion to the Court to dismiss the appeal. The Court did not rule on Appellee’s motion at .the time but kept it under advisement. We will not set out the grounds presented orally by counsel since they are in the record and also in the written motion to affirm and the brief filed by Appellee’s counsel prior to the hearing. We will say that counsel for the Appellee covered each and every paragraph in the Appellant’s “Petition for Appeal.”
Appellant’s “Petition for Appeal” reads as follows:
“Comes now the Petitioner, alleges and shows the Appellate Court the following:
I
That the Petitioner was defendant in a case heard before the High Court of American Samoa, Trial Division, at Fagatogo on January 26, 1965, to determine ownership of a certain parcel of land in the Village of Afono known as Samoutiu claims by Defendant to be inside of a parcel of land deeded by Matagaono and his family to the Government of American Samoa for the purpose of a village school site.
*929II
That the Petitioner believes that the High Court, Trial Division failed to take into consideration evidence presented by petitioner that an heir of Mary Williamson was present during the trial.
III
That the Court has failed to view the land before the trial.
IV
That the Court accepted the transfer of ownership with a map of a survey with description attached to from Paul H. Krause to Mary Williamson on April 18,1901.
V
That immediately after Mary Williamson purchased said parcel of land, she married Mr. Alex Willis thereby making Alex Willis part owner of said parcel of land.
VI
That Mr. Alex Willis knew exactly the location of Samoutiu and such knowledge was given to his children by taken them over to Afono where Samoutiu is locate and show it to them. And one of Mr. Alex Willis children who has that definite knowledge as to the location of said land is Joseph Willis himself the objector in this case.
VII
That Fred Saaga a witness by the Government is not even a registered surveyor and is not an expert in said field thereby he should not be allowed to express any professional opinion.
VIII
That Matagaono the present title holder was not present when his father gave permission to Timo, because he was young, he is now 60 years old. Seuvasi Matagaono testify that he is 69 years old, and that he saw Timo plant tobacco on the land in question ever since he got old enough to know things. Saofa’iga 49 years old son of Seuvasi Matagaono testify that he was present when Timo the first Catechist in Afono asked his father for permission to use said land for plantation purposes.
*930IX
That the Court has been mislead by these testimonies, how can Saofaiga be present when Seuvasi Matagaono 69 years of age testified that Timo used the land in question when he Seuvasi was only a very small boy.
X
That Mr. Fred Uhrle a Chairman of the Board of Appraisal went to Afono around 1954 or 1955 to appraise freehold land. The Pulenu’u of Afono showed him the land name Samoutiu, and while arriving on said parcel of land known as Samoutiu by the Pulenu’u of Afono, he was told that plantation on said land belongs to Timo the Catechist.
XI
That the present title holder Matagaono testified that this land which Timo used and his two successor Catechists is in a parcel of land he, Matagaono, deeded to the Government.
XII
That the Petitioner believes that the weight of evidence supports the claim Timo that he did not ask permission from Matagaono family to use the above land.
XIII
That this decision of the High Court of American Samoa jeopardized the foundation and future tenure of the freehold land system of the people of American Samoa.
XIV
Other and further evidences will be presented before the Court before or during the hearing.
WHEREFORE, Petitioner prays this Appellate Court to hear this petition in order to redress these grievances.”
Let vs consider Appellant’s grounds in detail.
Paragraph I fails to indicate any error on the part of the Court below which would justify a reversal.
*931Paragraph II also fails to show in what way the Court below erred, since the presence of the said heir of Mary Williamson, for whatever it was worth, was reflected in the transcript of the proceedings below and presumably was considered by the Trial Court. The record does not indicate that the Appellant at any time at the trial below attempted to call said heir as a witness, or that her testimony would, in any way, have been to the benefit of Appellant, if said testimony had been called for. Certainly there is no error on the part of the Court below in this connection.
Paragraph III fails to set out any error on the part of the Court below, as the failure on the part of the Court to view the land is not error per se. The viewing of the land is entirely within the Court’s discretion. There is no statutory requirement for such practice. Further there is nothing in the record to indicate that the Appellant at anytime during the trial below asked the Court to view the land, or that the Court did not fully consider the testimony of all the witnesses who claimed to be familiar with the land.
Paragraph IV does not assign any error by the Court below. Said conveyance was of record and duly considered by the Court below.
Paragraph V does not assign any specific error of the Court below, but appears .to be mere testimony on the part of the Appellant. The record below and the decision of the Trial Court indicate that the Court below gave consideration to the relationship between Mary Williamson and Alex Willis.
Paragraph VI again fails to assign any specific error on the part of the Court below. The information set out in this paragraph appears in the transcript and we presume was taken into consideration by the Trial Court.
*932Paragraph VII does not set out an assignment of error by the Trial Court. The record indicates that the witness Fred Saaga testified without any objection on the part of the Appellant after he was properly qualified as to his experience in surveying. Appellant had an opportunity and did cross-examine the witness Fred Saaga. Appellant placed a professional surveyor on the witness stand in his behalf in the person of James W. Darling. We presume that in arriving at its decision the Court considered the testimony of both Mr. Fred Saaga and Mr. James W. Darling.
Paragraph VIII sets out no error on the part of the Trial Court but repeats testimony in the transcript of the record of the trial below.
Paragraph IX deals with testimony given at the trial below and fails to set out clear error on the part of the Court below. The Court below had the testimony of 10 witnesses to consider, said testimony amounting to 82 pages, legal size single spaced.
Paragraph X again merely repeats testimony from the trial below and fails to assign any specific error on the part of the Court in arriving at its decision.
Paragraph XI also fails to assign error on the part of the Court below. It merely sets out alleged testimony at the trial below.
Paragraph XII fails to show that the decision of the Court below was clearly erroneous. The Trial Court is the judge of the facts and of the credibility of the witnesses as well as of the law, and we fail to see where the Court below committed reversible error, or any error for that matter, in believing the testimony of the witnesses on behalf of the Appellee as against the testimony of the witnesses on behalf of the Appellant.
*933Paragraph XIII does not set out any error on the part of the Court below. Said paragraph merely expresses an opinion on the part of the Appellant.
In connection with paragraph XIV of Appellant’s “Petition for Appeal” it may be said that the Appellant failed to present any evidence at all at the appeal hearing.
It might be well to try and clarify the decision of the Court below in awarding judgment for the Appellee. The Court held that the land sought to be registered by the Government of American Samoa was named LUGAS AMI and not SAMOUTIU, as claimed by the Appellant. The Court in its decision also held that no part of the land named SAMOUTIU was included in the parcel of land sought to be registered by the Government of American Samoa. The Court further held that the land SAMOUTIU as registered in the land records could not be located within the plat submitted by the Government of American Samoa from the metes and bounds description set out in the conveyance to Mary Williamson, and that said land Samoutiu, wherever it may be actually located, is outside the land deeded to the Government of American Samoa by the Matagaono family.
Though the Court below found that the land Samoutiu was not included in the land deeded to the Government of American Samoa, it nevertheless considered the possibility of any interest the heirs of Alex Willis as represented by Joseph Willis might had had [sic] in Samoutiu and held that Falesau, the second wife of Alex Willis and the 13 children from their marriage including Joseph Willis, would have no right to the land Samoutiu from Mary Williamson.
However, the main and foremost issue before the Court below was whether all or any part of Samoutiu was included in the parcel of land sought to be registered by the Government of American Samoa. The Court below held *934that neither Samoutiu nor any part of it was within the land deeded to the Government of American Samoa by Matagaono for the Afono School Site.
After considering the transcript of the trial below and the decision of the Trial Court, and the written and oral argument of Appellee and Appellant before the Appellate Division, this Court is of the unanimous opinion that there was no clearly erroneous finding of fact by the Trial Court. Neither did the Appellant convince the Court that the evidence below did not support the finding or findings of the Court below. This Court is of the unanimous opinion that the findings of the Court below are fully supported by the evidence, and finds no reason whatsoever for disturbing the decree of the Trial Court.
It is hereby ORDERED that the decree of the Trial Court be, and the same is hereby, AFFIRMED.
Court costs in the amount of $10.00 are hereby assessed against Appellant Joseph Willis, the same to be paid within 30 days.
DECREE AFFIRMED. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485415/ | REVERSAL OF TRIAL COURT DECREE AND RENDERING OF JUDGMENT FOR APPELLANT
This was an appeal by the Bottling Corporation of Samoa, Plaintiff below, from an Opinion and order rendered by the Trial Division of the High Court on December 11, 1964 whereby said Court dismissed a *940complaint filed by Appellant demanding that a Declaratory Judgment be issued that the Governor of American Samoa had an obligation to approve Appellant’s application for a tax exemption provided for under the Industrial Incentive Act, Chapter 26.01, Code of American Samoa, 1961 Edition, Public Law 7-37, and/or demanding that a Writ of Mandamus be issued requiring the Governor of American Samoa to grant the approval of Appellant’s application for such exemption under the referred-to act. It was the contention of the Appellant that it was entitled to a full exemption under the provisions of the Industrial Incentive Act.
Both the Appellant and Appellee waived oral argument on appeal and rested their case on this record and on the written briefs and authorities submitted by them.
The lower Court held that the Bottling Corporation was not entitled to a Declaratory Judgment on the issue or to the issuance of a Writ of Mandamus against the Governor. We agree with the Trial Court that Plaintiff below was not entitled to either the Declaratory Judgment or the Writ of Mandamus. We subscribe to the lower Court’s view that the general rule is that Courts have no right or power to interfere by mandamus with the Governor on questions involving his judgment or discretion and the [sic] cannot be compelled by mandamus to perform duties which are partly discretionary and partly ministerial.
However, the Trial Court went further and decided that the Bottling Corporation was not entitled either to the partial exemption granted to it by the Governor or to the full exemption granted to it by the Governor or to the full exemption allowed under the Industrial Incentive Act, Law 7-37. With this holding we are unable to agree with *941the Trial Court, and we hereby reverse said judgment and render our own decision in favor of the Appellant.
The pertinent portions of the Industrial Incentive Act are already set out in the decision of the Trial Court and we will not repeat them here. As we read the Act, Public Law 7-37, Chapter 26.01 of the Code of American Samoa, 1961 Edition, there are two main requisites for a new business in American Samoa when filing for a tax exemption under said law. The Tax Exemption Board must determine whether the applicant for exemption is a new business within the meaning of Chapter 26.01. After the determination by the Board is submitted to the Governor, the Governor himself must determine whether the business is a new business 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 other words, if the Board and the Governor find the applicant to be a new business as defined in the statute, and if the Governor does not determine that such new business is not in the public interest, then the new business is entitled to a full exemption under the law. Once the Governor determines such applicant is a new business and that said business is not against the public interest, “there shall be issued by the Attorney General within five (5) days following such approval, a certificate providing for such exemption.” The “exemption” referred to is a full exemption as set out in the statute.
In the present case the Governor found the applicant to be a new business and did not find that such business was not in the public interest. However, instead of giving his *942full approval to said application for full exemption, the Governor decided to allow the applicant only a partial exemption and not the whole exemption provided for under the law.
The lower Court held that the Bottling Corporation was not entitled to any exemption whatsoever. The Trial Court held that the Governor had no right under the law to grant a partial exemption; that he had to approve the whole exemption or deny the exemption completely. The lower Court went on to say that the granting of the partial exemption was a disapproval by the Governor of a full exemption under the Industrial Incentive Act. The Trial Court held that the Act was constitutional, but that the Governor had no legal right to grant a partial exemption. It held that the granting of a partial exemption by the Governor was a nullity because the statute did not specifically grant the Governor the authority to approve a partial exemption.
But the Trial Court was not too sure of its logic in denying the exemption on the sole ground that the Governor did not have the authority to grant the partial exemption, even after the Governor found that the Bottling Corporation was a new business and that the Governor had not found that said business was not in the public interest.
The Court below then undertook some wholly unjustifiable mental gymnastics and found that the Bottling Corporation was not intitled [sic] to any exemption because the Governor had found the new business not to be in the public interest. We hold that his assumption on the part of the Trial Court was without evidentiary basis and completely erroneous.
The decision of the lower Court in part states: “There is no evidence that the Governor ever said either orally or in writing what he determined with respect to the Plaintiff’s *943new business being or not being in the public interest. We must make our findings of fact from the circumstances in this case.”
The Trial Court then goes on, “It is true that the Governor said in his letter of October 23, 1962 that he was granting a partial exemption fin 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 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.
Further down in its opinion the Trial Court states: “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.”
The Trial Court goes on to say: “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.”
There were no witnesses or testimony at the lower trial. All the evidence before the Court was in the form of written documents, all of which are part of the record. We believe that the question before the Trial Court was one of law and not of fact. The only question was whether in view of the written evidence before the Court the applicant Bottling Corporation was entitled to an exemption under the provisions of Chapter 26.01, Code of American Samoa, 1961 Edition. There were no disputable issues of fact for the Court to determine.
*944“Where testimony is undisputed, the Trial Court’s finding of fact from such testimony is not entitled on appeal to the persuasive force which is accorded to a finding of fact from conflicting evidence.” 114 ALR 293. See also Am.Jur. “Appeal and Error,” Sec. 902.
“Where the findings of the Court below are completely upon agreed facts, the ultimate findings or conclusions of the judge are open for review, not only so far as they involve rulings of law, but also so far as they are conclusions or inferences of fact.” Garwood Industries v. Colonial Homes, 126 ALR 491. See also Am.Jur.2d “Appeal and Error.”
There was no testimony or evidence regarding the Governor’s finding that Plaintiff’s business was not in the public interest. The lower Court took it upon itself to interpolate and second-guess the thinking of the Governor. We do not intend to ascertain why the Trial Court went to such extend [sic] to manufacture evidence, but we hold that its finding that the Governor determined Plaintiff’s new business was not in the public interest is clearly erroneous and contrary to the evidence before it.
Nothing in the record indicates that the Governor ever considered the Plaintiff’s business not in the public interest. On the contrary, the Governor found the Bottling Corporation to be a new business and he wanted to get it going. Not only that, but the Governor saw fit to help the Bottling Corporation to secure land for its plant and approved a thirty (30) year lease in favor of the Bottling Corporation. The Governor well knows how precious a commodity land is in American Samoa. As much and as hard as the Governor has worked to preserve the land for American Samoans, it is inconceivable to think that he would offer to help to secure land for and approve a lease for a business which he considered to be against the public *945interest. Said lease, dated April 15, 1963, is of record in the office of the Registrar of Titles.
Not only are we convinced that the Trial Court’s finding was clearly erroneous, but we find that it also does great injustice to the Governor of American Samoa by holding that the Governor would give even partial exemption to a business which he considered to be against the public interest.
There is a legal presumption that a public officer, such as the Governor, acts in the exercise of a sound judgment, for the purposes of promoting the public good and protecting the public interest. The Court will also assume that the Governor intended only to do what he was authorized to do by the statute. But the presumption of regularity of official acts or duties is rebuttable and to the extend [sic] to which, it obtains.
We are satisfied from all the evidence that the Governor did not at any time find that Plaintiff’s business was not in the public interest. We believe that if the Governor had thought that the Bottling Corporation was in the least against the public interest of American Samoa he would have said so affirmatively and would have denied the exemption altogether. We cannot picture the Governor granting even a partial exemption even after he considered the business against the public interest is to do an injustice to the Governor’s judgment and his sense of duty to do only that which he deems to be in the best public interest of American Samoa.
We agree with the lower Court in saying that under the original Industrial Incentive Act the Governor did not have the authority to grant a partial exemption, and that his discretion extended to grant the total exemption only as set out by the Legislature, or to deny the exemption altogether if he found the business to be not in the public *946interest. The Legislature did not set out any yardstick that would allow the Governor to use his discretion to grant less than the full exemption.
As we read the Act, the only prerequisite for an applicant to get a full exemption under the Act was for the Governor to find that the applicant was a new business and that said business was not against the public interest.
We interpret the Act as meaning that unless the Governor affirmatively found that the new business was not in the public interest, the applicant was entitled to the full exemption'under the Industrial Incentive Act.
We are of the unanimous opinion that the Governor found the Bottling Corporation to be a new business under the provisions of the Industrial Incentive Act, and that the Governor did not find the new business to be not in the public interest.
The judgment of the Trial Court is reversed to the extent set out in this opinion, and judgment for Appellant is hereby rendered.
ACCORDINGLY, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the Appellant, Bottling Corporation of Samoa, is entitled to the full exemption as set out in the Industrial Incentive Act, Chapter 26.01, Code of American Samoa, 1961 Edition, Public Law 7-37.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that said full exemption is effective as of October 23, 1962, the date of the Governor’s letter granting the partial exemption. ACCORDINGLY, a certificate of full exemption in favor of Bottling Corporation of Samoa will be issued as provided for under the Act.
Done this 31st day of March, 1967. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485416/ | HYDEN, Chief Justice
This is an appeal from a decree entered by the Trial Division on March 1, 1965 in case No. 123-1963 styled Iulio M. Taufaasau et al. v. R. S. Manuma [sic], in which it was ordered that Iulio M. Taufaasau be registered as the holder of the matai title Mauga, attached to the village of Pago Pago.
The Mauga title must be seen in historical and qualitative perspective in order to dispose of this appeal. Historically, the Mauga is known to be among the oldest and most influential matai titles of American Samoa. Available historical records dating from the earliest contacts of the Europeans with eastern or American Samoa contain numerous references to the Mauga. Due to the strategic location of the village of Pago Pago in relation to Pago Pago harbor the successive Europeans and later Americans who lowered anchor at Tutuila would quite naturally be expected to be in contact with Mauga, the leading matai of the village of Pago Pago. And since these visitors to Samoa from the “outside” were usually interested in the commercial potential of Pago Pago harbor or other matters near at hand to the village of Pago Pago the Mauga influence was undoubtedly a very real thing. Indeed, history tells us that it was the High Chief Mauga of Pago Pago who entered into an agreement or “treaty” in 1872 with Commander Richard Meade, USN, by which the United States was conceded the right to maintain a naval station in Pago Pago bay in return for “the friendship and protection of the great government of the United States.” Although this “treaty” was never ratified by the United States Senate and therefore never achieved de jure status it nevertheless strengthened America’s position in eastern Samoa, with a corresponding weakening of the competitive positions of other nations pursuing their own national interests through Samoan contacts. *950More importantly, apropos the prestige and influence of the Mauga, the Samoan people regarded the agreement as binding. (See Amerika Samoa, by Capt. J. A. C. Gray, United States Naval Institute, 1960.) Although additional references could be cited the foregoing will suffice to suggest the Mauga’s position of relative importance in the Samoan way of life.
The record in this appeal shows that following the death on February 7, 1963 of Mauga Palepoi, the last holder of the title, the family met only once in a general meeting in August 1964 but that meeting failed to produce any agreement as to a successor to the title. In fact, that abortive meeting served largely to disclose how hopelesly unable the family members were at that time to make any progress toward harmony leading to the selection of a successor. As is unfortunately true when an important matai title remains vacant for an extended period the absence of a Mauga to speak for the family began to have a debilitating effect on the family interests. R. S. Manuma filed his application to be registered as the title holder. This application led to 15 separate objections by individuals claiming superior entitlement. These were the prevailing conditions under which the present litigation was commenced and it was against this historical background that the Trial Division undertook its formidable task.
One objector died before trial. During the period between a pre-trial conference and the close of the first day of trial, six of the fifteen candidates withdrew, leaving the applicant and eight objectors. The trial consumed ten days and required 260 pages of personal notes by the Court. The transcript of testimony covers 419 pages. Following the entry of the Trial Division’s decree which awarded the title to Iulio M. Taufaasau (hereafter referred to as Iulio), *951three of the eight unsuccessful candidates appealed. They are R. S. Manuma, referred to in this appeal decision as Ropati; Sialega P. Mauga, called Sialega hereafter; and S. P. Aumoeualogo, who will be referred to as Salanoa.
Because it is so pertinent to the disposition of the issues raised on appeal it is important to refer at the outset to the provisions of Section 6.0107 of the Code of American Samoa, 1961 Edition, which reads:
“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.”
None of the appellants says the Trial Division failed to abide by the quoted statutory guide lines. Indeed, a mere casual reading of the 25-page opinion would show the frivolity of such a contention. The thrust of each appellant’s attack on the decree is that the Trial Division did not accept the appellant’s own evaluation of his claimed superior qualifications.
Before turning to the specific points of the three appeals we refer now to the statutory provisions and the Rules of Court which must be applied in the Appellate Division. Section 3.0503 of the Code provides, in part:
“* * * 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, * * *”
*952Rule 7A of the Rules of Procedure in the Appellate Division, dated June 8,1962 provides, in part, as follows:
“If one of the grounds of appeal is that the evidence does not warrant the finding, the statement of grounds shall specify what essential element or elements it is claimed have not been satisfactorily proved. If a ground of appeal is that the finding or findings of fact are clearly erroneous or are contrary to the evidence, the statement of grounds shall specify wherein such finding or findings are clearly erroneous or against the weight of the evidence or contrary to the evidence, as the case may be.
No other grounds of appeal than those set out in the notice of appeal shall be considered unless the error is so manifest and prejudicial that the Court would be justified in taking notice of it on its own initiative. Issues, other than jurisdictional, not raised in the trial court will not be considered on appeal.”
The foregoing statutory and regulatory provisions sharply constrict the latitude of the Appellate Division and they impose a heavy burden on the appellant. Above all, they make it crystal clear that a trial de novo in the Appellate Division is not permitted. And the significance of this restriction on the Appellate Division is most apparent in that type of case, as is the present one, in which the personality, character, demeanor and credibility of the litigants are vital elements in the case.
We look now at each appeal. Sialega’s notice of appeal, in pertinent part, recites only:
“The Objection to the following in regard to the High Court concerning my qualifications, the Value to the Government of American Samoa and Forcefulness.
“I am therefore, requesting for an APPEAL of this same Trial of the Mauga Case.”
During his oral argument counsel for Sialega undertook to discredit a portion of the testimony given by Iulio at the trial. He did not even attempt to cure the fatal *953inadequacy of Sialega’s written notice of appeal as the same is measured against the statutory and regulatory requirements heretofore quoted. Sialega’s attack on a portion of Iulio’s testimony went into matters that were wholly outside the record, that were not raised in cross-examination at the trial, and were not specified in the notice of appeal. In the circumstances we hold that Sialega failed to shoulder his burden of showing any error — even slight error — in the decision from which the appeal is taken.
Ropati’s appeal in its pertinent portion, simply states:
“That the decision was rendered in favor of lulio based said decision on the opinion of the Court that lulio prevails over Manuma on the third and fourth issues.
“That petitioner believes that petitioner’s qualifications prevails over the defendant.”
Ropati’s notice of appeal, like that of Sialega, manifestly lacks that specificity in the assignment of error that is required. Despite its failure to contain a concise statement of grounds the gravamen of Ropati’s appeal is that the decision of the Trial Division is against the weight of the evidence. Ropati is saying, in effect that the evidence before the Trial Division, fairly construed, clearly showed that Ropati had qualifications superior to those of lulio in the matters of forcefulness, character, personality, knowledge of Samoan customs, and value to the family, the village, and the country.
As previously noted, the Appellate Division does not sit as a trial court trying the case de novo but is limited by the record and the appellant’s specifications of error. When, as here, the appellant fails to furnish a “statement of grounds [that] shall specify wherein such finding or findings are clearly erroneous or against the weight of the evidence” (as required by the Rules of Procedure) our search for *954reversible error leads us to take notice of how the Trial Division disposed of the comparative qualifications of Ropati and Iulio with respect to the third and fourth categories listed in the statute and quoted heretofore in this opinion.
Sixteen pages of the Trial Division’s 25-page opinion are devoted exclusively to a recitation and evaluation of pertinent testimony gleaned from the voluminous transcript dealing with the comparative qualifications of Ropati and Iulio in the matters of forcefulness, character, personality, knowledge of Samoan customs, and value to the family, the village, and the country. In summing up the Trial Division said:
“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.”
This quotation from the decision is hardly the language of a Trial Court bent on the mischief of erroneously disregarding compelling evidence. Instead, it shows that the Court was fully aware of the fact that the very nature of the issues, namely, comparative forcefulness, character, and the like, made it inescapable that the Court bottom its opinion in large measure upon the personal impressions made on the Court by the candidates during the course of the trial. Considering the Trial Division’s meticulous sifting of all the pertinent testimony we hold that Ropati has failed on appeal to demonstrate that the decision of the Trial Division is clearly against the weight of the evidence.
*955Salanoa’s notice of appeal is in a different form in that it is largely a presentation of written argument from which the reader is required to extract the appellant’s grounds of appeal.
Salanoa first says that the Court discriminated against him when it accepted a pre-trial stipulation agreed upon by the parties which fixed the respective degrees of Mauga blood of eight of the candidates while no stipulation was reached by the parties regarding the Mauga blood of three of the candidates, one of whom was Salanoa. Just how the Court’s acceptance of the parties’ stipulation operated to discriminate against the appellant has not been made clear. This was the parties’ stipulation — not that of the Court. The parties refused to stipulate concerning Salanoa having any Mauga blood, obviously not being persuaded to accept his claim of Mauga blood. And the Court, after all the evidence was in, was similarly not impressed with Salanoa’s claim because it held specifically on the basis of the evidence that he had no Mauga blood whatsoever.
Salanoa’s appeal consisted of over five typewritten pages of argument plus a supplement of eight pages containing mostly excerpts from various portions of the transcript of testimony. Central to all of Salanoa’s argument on appeal is his contention that the Trial Division erred in holding he had no Mauga blood. Somewhat collaterally he adds, without persuasive proof of its correctness, his contention that he would have unquestionably prevailed over all other candidates on the Third and Fourth categories that have been quoted above if the Court had accepted his contentions concerning, his alleged possession of Mauga blood. This collateral contention of Salanoa concerning his alleged superior qualifications under categories Three and Four rests upon an *956assumption on the part of the appellant and cannot be borne out by the record upon which this Court must rely in disposing of this appeal.
As to Salanoa’s claim of Mauga blood the record shows that he claims to have descended from Tulimalefoi, a child of Mauga Tamaalemalo. When questioned, Salanoa said that he was supported in his candidacy by one of the three clans in the Mauga family, the Tulimalefoi clan. When he was questioned as to his understanding of what the statute means (Section 6.0107) in referring to “clans of the family” Salanoa testified that he considered the clans as “the children of the founder of the title.” (TR. p. 283.) Elsewhere in his testimony Salanoa contended that Mauga Tamaalemalo was the first Mauga, this contention, of course being compatible with his contention that there was a Tulemalefoi clan.
Except for Salanoa’s evidence all the rest of the evidence in this case (as well as the record in an earlier Mauga title case, Case. No. 3-1935, Manuma et al. v. Afamasaga Sialega) is consistently to the effect that the first holder of the Mauga title was Mauga Mulivai and that Mauga Tamaalemalo was the second holder of the title. On appeal Salanoa is asking us to ignore this great mass of persuasive evidence and accept his unsupported statements of fact which were not concurred in by any of the other candidates. This we cannot do.
Not only is an appellant under a heavy burden of showing that the decision appealed from is clearly erroneous but he must also satisfy the Appellate Court that in the absence of such error the Trial Court would have reached a decision more favorable to the appellant. The case made by Salanoa on appeal falls far short of sustaining this heavy burden.
From what has been said it follows that the decree of the Trial Division should be affirmed.
*957ORDER
It is hereby ORDERED that the decree of the Trial Division awarding the title Mauga attached to the village of Pago Pago to Iulio M. Taufaasau be and it is hereby affirmed.
The Registrar of Titles will be informed of this order of affirmance. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485417/ | GOSS, Associate Justice.
On February 27, 1967 the Appellant was convicted of murder in the second degree under Code of American Samoa Section 4.0453 in Criminal Case No. 119 before the Trial Division of the High Court. On the same date he was sentenced to serve 30 years in prison at ordinary labor. The Appellant was represented during the trial by the Public Defender, Arthur A. Morrow. On August 1, 1967 George A. Wray, Esq. filed a Notice of Appeal on behalf of the Appellant.
On January 19, 1968 Mr. Wray filed an “Appeal from Decision Denying to Defendant a Transcript Without Cost Upon Petition and Affidavit of Indigency,” which decision was stated to have been made on August 25, 1967. The two appeals have been consolidated.
All proceedings on the two matters were delayed because of a question as to admission of Mr. Wray to represent the *960Appellant. On March 8,1968 that matter was resolved and the Appellate Division entered an Order permitting Mr. Wray to represent the Appellant on the initial questions to be determined. The Order further provided that Memoranda of Points and Authorities be submitted by Counsel as to whether the appeals should be dismissed for the reasons that (1) the filings were not made within the time permitted by Supreme Court of the United States Revised Rule 11, 2 and (2) no filing fee had been paid in connection therewith. The filing of the Memoranda was completed April 25, 1968 and arguments were heard the next day. Counsel waived attendance of Appellant at the hearing of arguments.
APPELLATE CASE NO. 5
Appellee has accepted proof of payment of a filing fee on August 26, 1967 in connection with Appellate Case No. 5. The first question at this stage of the proceedings is the jurisdiction of the Appellate Division of the High Court to proceed with Appellate Case No. 5, which jurisdiction depends upon proper filing of the Notice of Appeal.
The Assistant Attorney General had previously filed a Waiver of Right to Submit Authorities and Oral Arguments in which he stated that the Government “assumes no position as to whether Appellant’s Notice of Appeal and Appeal from Decision Denying to Defendant a Transcript Without Cost should be dismissed by reason of not being filed within the time limit imposed by United States Supreme Court Rule 11, 2 . . .” The authorities however are clear that where an appeal is not taken within the time fixed by statute, jurisdiction cannot be conferred upon the Appellate Court by consent of the parties or by waivers. (See 4 American Jurisprudence 2d 783, Appeal and Error, Section 292.)
*961C.A.S. 3.0502 as enacted in 1966 provided for incorporating into American Samoa procedure for appeals from the Trial Division to the Appellate Division of the High Court the Federal rules as to time and procedure:
“Section 3.0502 — APPEALS: Any appeal from the Trial or Probate Division of the High Court or from a district court to the Appellate Division of the High Court may be taken in accordance with the Federal Rules of Civil Procedure, contained in the United States Code Annotated as outlined therein, where it is applicable, as to rules of time and procedure. As promptly as possible after a notice of appeal from a District Court is filed with its clerk, he shall send a copy of the notice of appeal to the Clerk of the High Court together with a full written transcript of the record of the proceedings in the case in the district court.”
Appellant’s Counsel argued extensively that under the Revised Constitution of American Samoa of 1967, the Legislature had no power to enact C.A.S. 3.0502 or any laws governing the jurisdiction, operations or procedures of the Judiciary. It was later agreed that it was Section 3 of Article III of the Constitution of 1960 which applies to Appellate Case No. 5:
“SEC. 3. Continuance of laws: The laws of American Samoa respecting the courts, including their jurisdiction, organization and operation, the judicial system, and the judiciary shall continue in force until otherwise provided by law. No change in any such laws, whether by amendment, repeal, or by new statutory provision shall be effective unless the same shall have been enacted by the Legislature and approved by the Governor and by the Secretary of the Interior.”
When enacted in 1966, C.A.S. 3.0502 was clearly within the power of the Legislature, the Governor and the Secretary of Interior.
Besides the constitutional argument, Appellant contends that the 1966 Amendment of C.A.S. 3.0502 can only be construed as a legislative intent to do away with *962anytime limit'for filing criminal appeáls from the Trial Division to the Appellate Division. Neither Counsel nor the Court aré awaré of a jurisdiction anywhére which does not- impose a limitation as to the time for appeal. The desirability of some -time limit for the protection of society is obvious. When the 1966 Amendment of C.A.S. 3.0502 is construed in the context of the pre-1966 statute and the bills passed in, 1967 and 1968, a clear and continuing legislative intent is evident: in American Samoa the time for appeals should be limited in a manner similar to other jurisdictions. This legislative history is as follows:
Revised Code of American Samoa, 1961 Edition—
“Section 3.0502 — APPEALS: Any appeal from the Trial or Probate Division of the High Court or from a district court to the Appellate Division of the High Court may be taken by filing a notice of appeal with the clerk of the court from.which the appeal is taken within seven days after the imposition of sentence or entry of the judgment or order appealed from. As -promptly as possible after a notice of appeal from a District Court is filed with its clerk', he shall' send a copy of the notice of appeal to the Clerk of the High Court together with a full written transcript of the record of the proceedings in the case in the district court.” (Emphasis added.)
Proposed Amendment of 1967 (passed by the Legislature but never signed into law)—
“Section 3.0502 — APPEALS: The following procedure shall apply to appeals taken to the Appellate Division .of the High Court:
1. Before filing a notice of appeal, a motion for a new trial shall be filed within 10 days after the announcement of the judgment or sentence;
2. A notice of appeal shall be filed within 10 days after the denial of a motion for a new trial;
3. The appellant shall cause the record on appeal to be filed with the Appellate Division and the appeal to be docketed there within 30 days from the date the notice of appeal is filed.” (Emphasis added.)
*963Amendment of 19 68—
“Section 3.0502 — APPEALS:” (Identical to proposed amendment of 1967.)
During the period following February 27, 1967, C.A.S. 3.0502 provided for appeals to be taken in accordance with the Federal Rules of Civil Procedure “. . . where it is applicable, as to rules of time and procedure ...The Rules of Civil Procedure for the United States District Courts of course do not include any reference to the High Court of American Samoa. It seems clear that the Legislature intended for each Division of the High Court of American Samoa to be governed by those rules which apply to the particular Federal Court which is most similar in function to the particular High Court Division. The United States District Courts are trial courts and within the Federal Judiciary fulfill a function somewhat similar to that of our Trial Division. By C.A.S. 3.0502 the Legislature used abbreviated language to adopt by reference the Rules of Civil Procedure for the United States District Courts and to provide that where the words “district court” appear in Rule 72, Rules of Civil Procedure for the United States District Courts, a substitution of the words “Trial Division of the High Court of American Samoa” should be made. Likewise the Supreme Court of the United States is similar in function to this Appellate Division since both courts are primarily appellate and both are courts of last resort. Whenever the words “United States Supreme Court” are used in Rule 72 (other than where the Rules of the Supreme Court are referenced), the words “Appellate Division of the High Court of American Samoa” should be substituted therefor.
Making these substitutions, and placing the deleted words in parentheses, Rule 72 reads as follows:
*964“Rule 72. Appeal from (a District Court) the Trial Division of the High Court of American Samoa to the (Supreme Court) Appellate Division of the High Court of American Samoa. When an appeal is permitted by law from (a district court) the Trial Division of the High Court of American Samoa to the (Supreme Court of the United States) Appellate Division of the High Court of American Samoa, an appeal shall be taken, perfected, and prosecuted pursuant to law and the Rules of the Supreme Court of the United States governing such an appeal.”
Substitutions should be made in the Supreme Court of the United States Revised Rules in the same manner as the District Court Rules above. So altered, Rule 11 of the Supreme Court would read in part:
“2. An appeal permitted by law from (a District Court) the Trial Division of the High Court of American Samoa to (this Court) the Appellate Division of the High Court of American Samoa in a criminal case shall be in time when the Notice of Appeal prescribed by Rule 10 is filed with the Clerk of the (District Court) Trial Division of the High Court within thirty days after entry of the Judgment or Order appealed from.”
For this Court .to have jurisdiction under Rule 11, 2 (which was thus incorporated into the law of American Samoa), it would have been necessary for the Notice of Appeal from the Judgment and Sentence to have been filed within 30 days after February 27,1967.
In oral argument Counsel for the Appellant recited that C.A.S. 3.0606 of the Code of American Samoa applies:
“. . . the criminal procedure in the Courts of American Samoa shall conform as nearly as may be practical with the Federal Rules of Criminal Procedure.” (Emphasis added.)
He then suggested it would be within this Court’s power to rule that the special circumstances in this case make it impractical to apply the Rule of Federal Criminal Procedure 37 (b) which provides in effect that criminal appeals to *965the Supreme Court shall be taken in accordance with Supreme Court Rule 11, 2 above quoted. At the time in question appeals were clearly governed by C.A.S. 3.0502 rather than by C.A.S. 3.0606, and the Rules of Civil Procedure for the United States District Courts and the Supreme Court of the United States Revised Rules applied to criminal appeals to the Appellate Division rather than the Rules of Criminal Procedure for the United States District Courts. In C.A.S. 3.0606 the wording is “as nearly as may be practical.” The words “where applicable” were inserted to indicate that the Samoan Fono had no intention of adopting by reference those Federal Rules of Civil Procedure which have no application to American Samoa, such as the Rules for Appeals to United States Courts of Appeals. It is concluded that the language of C.A.S. 3.0502 does not confer upon the Appellate Division the jurisdiction to extend the time for appeal even if special circumstances did exist in the present case.
Appellant has not made a convincing case, even if it were legally possible to make a special exception. The Government of American Samoa is conscious of the need for making Counsel available to those accused of crimes, and the Government provides the services of a Public Defender and Assistant Public Defender for that purpose. Counsel has represented that the Public Defender declined to appeal the conviction; the Public Defender has represented that his client decided he did not desire to appeal. It was the Public Defender who was conversant with the evidence presented during the trial, and he undoubtedly discussed it with his client. This Court of course has no knowledge as to whether any grounds for appeal did or did not exist, but the Court is acquainted with the conscientious attitude and capabilities of the Public Defender and with his reputation as former Chief Justice of this Court. *966There is no indication in the record that prior to July 29, 1967, the Appellant attempted to communicate to the Court, or to his family, or to any other person, any desire that an appeal be taken. The Court takes Judicial notice of the informality existing in American Samoa, which informality permeates the jail as well as many other governmental operations. This informality provides ample opportunity for communications. Neither is there any indication in the record that Appellant did not have knowledge of the requirement that the filing of an appeal be timely. It would of course be unfair to other Samoans convicted since 1966 to accord the Appellant a special treatment not accorded to all.
So construed, the filing of a Notice of Appeal pursuant to C.A.S. 3.0502 is a matter of jurisdiction and mandatory, and it is beyond the power of the Appellate Division to hear Appellate Case No. 5. Hartford Accident & Indemnity Co. v. Bunn et at., 258 US 165, 177 (1932).
APPELLATE CASE NO. 6
As to the Court Transcript and Appellate Case No. 6, Counsel for Appellant argues in effect that there was no time limit on filing appeals in the period following August 25, 1967 because C.A.S. 3.0502 was automatically rescinded on July 1, 1967 upon the promulgation of the Kevised Constitution of American Samoa. He reasons (1) Section 3 of Article III of the 1960 Constitution, supra, which provides for the continuance of existing laws and approval of new legislation on judicial matters by the Secretary of the Interior, does not appear in the 1967 Constitution; and (2) the 1967 Constitution vests all judicial power in the High Court, District Courts and other Courts created by law:
*967ARTICLE III
“SECTION 1. JUDICIAL POWER: The judicial power shall be vested in the High Court, the District Courts, and such other courts as may from time to time be created by law.
SECTION 2. INDEPENDENCE OF THE COURTS: The judicial branch of the Government of American Samoa shall be independent of the executive and legislative branches.”
The issue is thus of the meaning of the independence from the Legislature set forth in Section 2. It is not necessary for this Court to rule on this question however, because in an appeal proceeding there is no right to a transcript without charge after the time for appeal has expired.
During the oral arguments the Counsel for Appellee volunteered that the Appellate Division might consider reduction of sentence or a recommendation to the Parole Board for such a reduction. The powers of the Appellate Division to commute, reduce or suspend the execution of sentence under C.A.S. 3.0503 are only present when a timely appeal has been filed. In the case before this Court, a recommendation to the Parole Board is also beyond the purview of the Appellate Division. No transcript of the evidence presented before the Trial Division has been prepared. The sentence imposed, 30 years at ordinary labor for second degree murder, is less than the maximum life imprisonment provided in C.A.S. 4.0453 and cannot be considered as a matter of law to be an unreasonable or excessive punishment for the murder of another. New C.A.S. 4.0203 provides that an employee of the Attorney General may make such a recommendation to the Parole Board, and in this case even an unofficial recommendation from the Appellate Division of the High Court would be most gratuitous.
*968It is therefore ORDERED that the two appeals, Appellate Cases No. 5 and 6, are dismissed. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485419/ | On February 28,1973, the decision of the Land and Titles Division awarding the title ALALAMUA to candidate Savini L. Siva was announced. Motions for a new trial by defeated candidate Savea’ena Moetoto and Uso Lagoo were denied on June 6,1973.
On June 14th and 15th, 1973, notices of appeal with requests for the estimated cost of the transcript were filed in writing by Uso Lagoo and Savea’ena Moetoto, respec*975tively. On June 26, 1973, Clerk of the Court Robert Cochran sent a letter to each of the appellants notifying them of the estimated cost of the total transcript, and informing them that each would be responsible for the payment of one-half of the total. Savea’ena Moetoto deposited one-half of the total estimated transcript cost with the High Court on July 19th. On August 1st, Uso Lagoo deposited the other half of the total estimated cost. The transcript was never prepared.
On March 5, 1974, appellee-Siva through his counsel Mariota Tuiasosopo moved to dismiss the appeal. On the same date the court issued a rule to show cause why the appeal should not be dismissed and scheduled a hearing on said rule for March 12,1974.
The hearing was held on March the 12th, and appellee argued that the appeal should be dismissed since appellants failed to perfect their appeal in that they had failed to file a transcript as required by the Rules of Practice.
Under the American Samoa Code, Title 11, Section 5122(3) (1973), the appellant must file the record on appeal within 30 days after filing his notice of appeal. Rule 55 (1) of the Rules of Practice specifies what items must be filed to compose the record. An appellant will be in compliance with Rule 55(1) when all the following items are transmitted to the Appellate Division file.
(a) All papers contained in the trial division file. The Clerk of Court normally transmits these items to the Appellate Division file at the appropriate time.
(b) A certified copy of the docket sheet. The docket is in the custody of the Clerk of Court and a certified copy should automatically be transmitted to the Appellate Division file by the Clerk at the appropriate time.
(c) Depending upon the nature of the appeal, the appellant’s basic responsibility is to see that one of the following are timely filed with the Clerk of Court for transmission to the Appellate Division file:
*976(1) Complete or partial reporter’s transcript — Rule 55(2).
(2) A statement of the evidence — Rule 57.
(3) An agreed statement of the case — Rule 58.
Since both appeals are based upon the grounds that the decision is at variance with the evidence, under Rule 55(2) the appellants were required to file either an entire or partial transcript of the proceedings. The latter rule also provides that if a transcript is to be included as part of the record, within 10 days after filing the notice of appeal the appellant shall order it from the reporter. The same rule further provides that at the time of ordering, a party must have prepaid the estimated cost of the transcript to the Clerk of the Court. Under Rule 56 a transcript order must be in writing.
The issue before the Court is whether this appeal was perfected. Under the Code the record must be filed within 30 days after the notice of appeal. Consistent with this statutory directive, Rule 55(2) requires that an order for a transcript must be placed within 10 days after the notice of appeal. Thereafter the Clerk of Court is directed by Rule 56 to prepare the transcript within 30 days from the notice of appeal. It would then be available for filing within the 30 day period.
In the instant action, whether or not the transcript was ordered within the 10 day period required by Rule 55 (2) depends upon the interpretation the court places upon the writings that were filed.
The notice of appeal was filed on June 6, 1973. Therefore, under Rule 55(2), the order for the transcript should have been placed with the Clerk of Court by June 16, 1973. No writing specifically ordering a transcript was ever filed.
On June 14th and June 15th, respectively, the appellants in their notice of appeal each requested an estimate of the cost of the transcript. It is questionable whether a written *977request for an estimate constitutes a written order for a transcript as required by Rules 55(2) and 56. If the Court considers a written request for an estimate as sufficient to satisfy the rule’s requirement for a written order then the appeal should be considered perfected insofar as a written order is concerned. The proportionate cost of the estimate was, in fact, paid by each of the parties after notice thereof. The fact of payment lends support to the conclusion that the written request for an estimate of the cost of preparing the transcript contained in each of their notices of appeal was sufficient to satisfy the rule’s requirement of a written order.
By virtue of the fact of actual payment of the estimated cost of the transcript by the parties, it appears to the Court that this is tantamount to an order for such transcript sufficient to satisfy Rule 55 (2). It is to be noted, however, that even if such payment were considered to be an order, this did not occur within the 10 day period specified by Rule 55(2).
When an appellant proceeds under Rule 55(2) on appeal (as opposed to proceeding under Rule 57), the appeal will be perfected when the appellant orders in writing a transcript and prepays the estimated cost of that transcript within 10 days after filing his notice of appeal. The rule requires order and prepayment within that 10 day period. Prepayment was not made within such period; in fact, it could not have been made since the estimate of the cost was not provided to the parties until June 26th, more than 10 days after the notice of appeal. After receipt of the estimate, Appellant Savea’ena Moetoto paid his proportionate share within two weeks thereafter; Appellant Uso Lago’o paid his proportionate share approximately five weeks later. The parties should not be penalized for the failure of the Clerk to provide an estimate of the cost of the transcript.
*978It is incumbent upon the Clerk of Courts, pursuant to Rule 56, to prepare the transcript within 30 days following the notice of appeal. If this is done, the appellant can then file the transcript and perfect his appeal.
If an appellant has ordered and prepaid the estimate within the 10 day period, where this is not precluded by some delay occasioned by the Court, itself, and the transcript is not thereafter prepared for filing by the Clerk of Courts within 30 days from the date of the notice of appeal, the appellant should not be penalized for not having the transcript filed within that period, as we have stated above.
By filing the written order and prepaying the estimated cost he has done all that he can reasonably be expected to do. At this point we would necessarily consider his appeal perfected. If the Clerk is unable to prepare the transcript within 30 days from the date of the notice of appeal, after a written order and prepayment has occurred within 10 days following the notice of appeal, then it would appear to the Court that it is the Clerk’s responsibility to file a writing enumerating the reasons why he would be unable to provide the transcript within that period, notifying the Court and all interested parties. Rule 56.
To dismiss an appeal on the basis of the sheerest hypertechnicalities would frequently defeat the ends of justice, and this is especially so where delays occur in the operation of the Court itself, whether or not such are prompted by actions or representations of counsel.
This case is distinguishable from In Re Fogagogo, App. 64-73 (1973) wherein a notice of appeal was filed on March 12, 1973, and during the following five months appellant took no further action in pursuit of his appeal. Thereafter a motion to dismiss the appeal for failure to comply with the Rules of Practice Governing Procedure in the High Court, namely Rules 55(2) and/or 58, was granted. *979Likewise, it is distinguishable from Mila v. Toilolo, App. 55-73 (1973), wherein the appellant filed a notice of appeal on March 15,1973, an estimate of the cost of the transcript was mailed on July 11, 1973, and a motion to dismiss for failure to perfect the record was filed on August 30, 1973. The Motion was granted since appellant had done nothing after receiving the estimate. Similarly, it is distinguishable from Eseroma v. Puapuaga Tuaua, App. 69-73 (1973) wherein after filing a notice of appeal appellant took no further action for some two months. Thereafter a motion to dismiss was granted for failure to comply with the Rules of Practice.
In the instant case, liberally construing the written request for an estimate as a written order in view of the subsequent payment of such estimate, the actions of the Appellants can be regarded as having substantially complied with the Rules of Court.
Strict compliance with the Rules of Court Governing Practice and Procedure in the High Court is generally required, exceptions and liberality being applied only in the most deserving of cases, and where it can be found that the alleged offenders have not been derelict in their responsibilities to pursue their remedies with dispatch and due diligence.
It is to be noted that in this case the transcript was never prepared even though seven months have elapsed since both parties paid their proportionate share of the estimated cost of the transcript. This does not appear to be the fault of the parties.
The Court is convinced that the Appellants have evidenced their willingness to pursue this appeal in that they have paid the estimated cost of this transcript and appeared at the hearing on March 12th, arguing that they were awaiting the transcript in order to prepare their briefs.
*980The instant problem arises, it would appear, as a result in part from a misunderstanding of the rules on the part of counsel and the courthouse staff, and it would be manifestly unjust to proscribe the Appellants under the particular facts of this case.
Accordingly, the Motion to Dismiss the Appeal is hereby denied. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485420/ | *981A motion regularly came on to be heard before me for an order to show cause why the Immigration Board’s decision ordering the above petitioner deported should not be stayed during the pendency of this appeal. At that time, the question of the authority of Mr. Tamalemalo Puailoa to prosecute this appeal as the representative of the petitioner was raised. I reach the following conclusion.
The High Court of American Samoa has four divisions, Trial, Land and Titles, Probate, and Appellate. See Title 5 A.S.C. § 402 (1973). The Code provides that the Chief Justice has the exclusive power either to admit a qualified person as an attorney-at-law to practice generally in any of these divisions or to admit a qualified person as an agent to represent parties in the courts in matai or land title or other special classes of cases only. Title 5 A.S.C. § 202(d) (1973). The latter provision of the Code provides that even though a person may not be qualified to be admitted as an attorney-at-law, the Chief Justice may admit the person as an agent to represent parties in land and title cases or other special classes of cases only if that person is qualified to adequately represent such parties.
Title 26 A.S.C. § 1 (1973) states, inter alia, that the Chief Justice has the power to adopt reasonable rules and regulations regarding admission. Rule 8 of the Rules of Admission promulgated by the Chief Justice gives effect to § 202(d), supra, by allowing limited licenses to persons, who meet the prescribed qualifications, to represent clients as “Practitioners” before the Family Law and Land and Titles Divisions of the High Court. Section 202(d) provides persons may be admitted as agents to represent parties in land and titles cases; Rule 8 allows Practitioners to practice in the Land and Titles Division. Section 202(d) provides persons may be admitted as agents to represent parties in “other special classes of cases only”; Rule 8 allows Practitioners to practice before the “Family Law” *982Division. There is no “Family Law” Division per se. Rather family law cases are brought in the Trial Division. Implicitly, Rule 8 therefore allows Practitioners to prosecute family law cases in the Trial Division, the term “family law cases” being strictly limited to matters of divorce and adoption, as has customarily been the case.
Mr. Puailoa has been admitted as a Practitioner. Rule 13 of the Rules of Practice provides, inter alia: “Only admitted and active members of the bar may practice law, and only in accordance with the general grant for Attorneys and Counselors at Law, or the limited license for Practitioners Before the Family Law, Land and Titles Divisions of the High Court.” Mr. Puailoa has filed this action in the Appellate Division whereas, as a Practitioner, he is licensed to practice only in the Land and Titles Division. This Court cannot countenance a violation of its own rules; nor can it or will make special exceptions for any person. To do so would be manifestly unfair to other members of the bar who must practice in conformance with the Rules of Admission and would render the Rules themselves meaningless.
The limited license of a Practitioner does not entitle or authorize him to practice in the Appellate Division. It is well settled that proceedings in a suit by a person not entitled to practice are a nullit37, and the suit may be dismissed. Niklaus v. Abel Construction Company, 83 N.W.2d 904, 911 (Neb. 1957) citing 7 C.J.S. Attorney and Client § 16, page 725. But latter court stated that dismissal of proceedings for such a cause is a drastic remedy and may not be required in all cases. The Court is going to give the petitioner in this case and the petitioners in App. No. 80-74 (wherein a similar infirmity exists — an appeal from the Immigration Board’s decision of deportation was filed in the Appellate Division by a Practitioner) to avoid dismissal. An order will immediately issue in both cases *983requiring the petitioners to substitute an Attorney as counsel of record or to show cause why they have not done so. Of course, if they choose, these petitioners may represent themselves since, unwise as it might be to do so, anyone may represent himself in a court. If that is their intention, it should be made known at the hearing of the order to show cause scheduled in the accompanying order for Wednesday, December 18, 1974 at 10:00 A.M. in the Courthouse at Fagatogo. But they cannot be represented by another person who is not licensed to practice in that Court or division. Such is the law. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485421/ | *984This is a petition for issuance of a writ of prohibition forbidding the respondent, the trial division of the High Court of American Samoa, from entertaining an in rem *985action against the motor vessel Fijian Swift (hereinafter sometimes referred to as petitioner). The trial division and Star Kist Samoa, the real party in interest and plaintiff below, were given notice of the filing of the petition and were served with an alternative writ of prohibition in which we scheduled a hearing to show cause why a peremptory writ should not issue. No return or answer was made by the respondent or the real party in interest and no briefs were submitted by them. Star Kist appeared at the hearing and, without contesting the facts, argued for denial of the petition.
Plaintiffs below filed a complaint in rem and in personam in the trial division against the petitioner alleging loss of and damage to cargo shipped on the Fijian Swift under a voyage charter party and pursuant to a bill of lading under which Star Kist was the ultimate consignee. The clerk of the High Court forthwith issued a warrant for the arrest of the vessel pursuant to the Federal Rules of Civil Procedure, Supplemental Admiralty and Maritime Rule C. The rules of practice promulgated by the High Court provide that “Admiralty rules are as published in the supplement to the Federal Rules of Civil Procedure.” H.C.R. 3. The petitioner filed a motion to dismiss the complaint on the ground that the trial division of the High Court does not possess the authority to sit as an admiralty court and exercise in rem jurisdiction and therefore never acquired jurisdiction over the cause. This motion was denied as was petitioner’s subsequent motion for leave to file an interlocutory appeal on the question of jurisdiction. Thereupon, the Fijian Swift presented to this Court its petition for a writ of prohibition.
The American Samoa Code directs that the High Court shall have authority “to issue all writs . . . not inconsistent with law or with the rules made by the Chief Justice of American Samoa, as may be required for the due *986administration of justice ... 5 A.S.C. 403 (1973). Under this provision, the appellate division of the High Court, being a tribunal superior to the trial division, has the power to grant a writ of prohibition. Neither our rules of practice nor the enactments of the Legislature of American Samoa, the Fono, prescribe the procedure to be followed by this court in its consideration of a petition such as that now before us. We are guided, therefore, by the common law practice.
As the court of last resort, the appellate division is responsible for securing order and regularity in judicial proceedings within its territorial and statutory jurisdiction. Thus, we may issue a writ of prohibition if to do so would be in aid of our appellate jurisdiction. Our authority in this respect is similar to that of the United States Supreme Court and Courts of Appeals as set out in the All Writs Statute of the Judicial Code of 1948. 28 U.S.C. § 1651(a) (1970). We consider the question of whether the trial division can sit as an admiralty court and acquire jurisdiction through issuance of in rem process to be so affected with the public interest as to merit determination at the earliest possible moment. See Ex parte Peru, 318 U.S. 578 (1943).
Congress has passed no recognized organic act providing for the civil government of American Samoa and has not incorporated this territory into the United States. There is no federal legislation creating a court system for American Samoa. When Congress “organizes” a particular territory under its power to “make all needful rules . . . respecting territory ... of the United States,” it usually institutes a general system of courts therefor. U.S. Const, art. IV, § 3. These are legislative rather than constitutional courts. The latter are created under the power of Congress to establish tribunals inferior to the Supreme Court. U.S. Const, art. Ill, § 1.
*987The only federal legislation regarding the operation of this territory is contained in the act wherebv the cessions of “the islands of Tutuila and Manua and certain other islands of the Samoan group” were “accepted, ratified, and confirmed” by the United States. 48 U.S.C. § 1661(a) (1970). Sometimes referred to as the Temporary Organic Act,1 this law states that
(c) Until Congress shall provide for the government of such islands, all civil, j'udicial, and military powers shall be vested in such person or persons and shall be exercised in such manner as the President of the United States shall direct....
Clearly, Congress intended by this statute to delegate its legislative power over this territory to the Chief Executive. The President, in turn, delegated this authority to the Secretary of the Interior2 who presently exercises it and who has delimited “the extent and nature of the authority of the Government of American Samoa, as it will be exercised under [his] jurisdiction... pending enactment of organic legislation by the Congress.”3 One act of the Secretary was to approve and ratify the Revised Constitution of American Samoa which specifies that “The judicial power shall be vested in the High Court, the District Courts, and such other courts as may from time to time be created by law.” Rev. Const. American Samoa, art. Ill, § 1. The Revised Constitution also provides for the vesting of legislative power in a locally elected Senate and House of Representatives, the Fono. It has broad authority “to pass legislation with respect to subjects of local application, except that: (a) No such legislation may be inconsistent with . . . the laws of the United States applicable in American Samoa; [or] (b) . . . conflict with treaties or *988international agreements of the United States. . . .” Rev. Const. American Samoa, art. II, § 1. Thus, the power which Congress usually delegates to a territorial legislature by means of an organic act, the Secretary of the Interior delegated to the Fono through ratification of the American Samoa Constitution. Presumably, the approval of the Secretary of the Interior, which was a necessary antecedent to the viability of the Constitution, could be revoked. The exercise of this legislative power is also subject to the authority of the Governor to veto bills passed by the Fono. The Governor functions under the “general supervision of the Secretary of the Interior and is not locally elected.” Rev. Const. American Samoa, art. IV, § 2. If his veto of a particular bill is overridden and he withholds his approval upon its resubmission, the proposed legislation must be approved by the Secretary of the Interior before it becomes law. Thus, when an enactment of the Legislature is signed into law, it is approved by the recipient of the delegated power of Congress and, we think, entitled to as much weight as the enactments of the Legislature in an organized territory.
The leading case concerning the jurisdiction which Congress may vest in courts created by a territorial legislature is American Insurance Company and Ocean Insurance Company v. 356 Bales of Colton, 1 Peters 511, 7 L.Ed. 242 (1828). In that case, Congress had passed an organic act for the territory of Florida which “creates a territorial Legislature which shall have legislative power over all rightful objects of legislation; but no law shall be valid which is inconsistent with the laws and Constitution of the United States.” 1 Peters 548. In dispute was the validity of a salvage decree issued by an inferior court which the local legislature had created and given jurisdiction over such claims. It being admitted that salvage is a “rightful object of legislation”, the Court stated that the *989local enactment was valid unless contrary to the laws and Constitution of the United States. Finding first that a territorial statute creating a court having admiralty jurisdiction was not inconsistent with the laws of the United States, particularly the provisions of the territory’s organic act, the Court proceeded to a consideration of the constitutional issue.
Chief Justice Marshall, writing for the Court, explained that territorial courts are legislative rather than constitutional because
The jurisdiction with which they are invested, is not a part of that judicial power which is defined in the 3d article of the Constitution, but is conferred by Congress, in the execution of those general powers which that body possesses over the territories of the United States. 1 Peters 546.
Thus,
Although admiralty jurisdiction can be exercised in the States in those courts only which are established in pursuance of the 3d article of the Constitution, the same limitation does not extend to the territories. Id.
It was concluded that Congress can vest admiralty jurisdiction in courts created by a territorial legislature. Subsequently, in The Steamship City of Panama v. Phelps, 11 Otto. 453, 25 L.Ed. 1061 (1880), the Supreme Court went on to state that
in organizing Territories Congress may establish tribunals for the exercise of [admiralty] jurisdiction, or they may leave it to the Legislature of the Territory to create such tribunals. Courts of the kind, whether created by an Act of Congress or by a territorial statute, are not, in strictness, courts of the United States; or, in other words, the jurisdiction with which they are invested is not a part of the judicial power defined by the 3d article of the Constitution, but is conferred by Congress, in the execution of the general power which the Legislative Department possesses to make all needful rules and regulations respecting the public territory and other public property. 25 L.Ed. 1064.
*990From these decisions, it is clear that territorial courts can be given the authority to sit in admiralty and, as a consequence, entertain in rem actions and provide procedures for arresting vessels or other property that is the subject of a maritime action. We do not think it essential that the power of a territorial legislature to create tribunals having this competence be directly conferred by Congress. It is our view that this power, albeit subject to supervision in its exercise, has been delegated without impairment to the Legislature in American Samoa through the Executive branch of the federal government by the process outlined above.
Before we determine whether the Fono has, in fact, created a court in this territory which may administer in rem proceedings, we must dispose of the contention that the judicial power vested in the High Court by the American Samoa Constitution is plenary and thus comprehends the authority to sit as a court of admiralty. To do so, we need only look to the opinion in 356 Bales of Cotton. The 7th section of the 1823 Organic Act for the territory of Florida provided
That the judicial power shall be vested in two Superior Courts, and in such inferior courts ... as the legislative council of the territory may from time to time establish . . . each court shall have . . . original jurisdiction in all civil cases of the value of one hundred dollars, arising under and cognizable by the laws of the territory, now in force therein, or which may, at any time, be enacted by the legislative council thereof.
If judicial power means plenary jurisdiction, the Court would not have had to look to the enactments of the territorial legislature to find that an in rem action for the enforcement of an admiralty claim could be brought in a territorial court. In fact, it would have taken a specific *991enactment of the territorial legislature to preclude a territorial court from sitting in admiralty and, under this constitutional theory, the power of the legislative branch to pass such a law would be in doubt.
The trial division misconceived the meaning of “judicial power.” It has been said to be the power to hear and determine controversies and declare what the law is. Rhode Island v. Massachusetts, 12 Peters 657, 9 L.Ed. 1233 (1838). As such, it serves to define the governmental responsibilities of a court system and separates the powers of the judiciary from those of the executive and legislative. Muskrat v. United States, 219 U.S. 346 (1911). The question of whether the courts of American Samoa have the authority to sit as courts of admiralty and thus administer in rem proceedings properly raises a question of “jurisdiction.” See, National Malleable & Steel Castings Co. v. Goodlet, 195 F.2d 8 (7th Cir. 1952). That term refers generally to the ability of a court to exercise its judicial power in cases of a certain class and particularly to the power of a court to hear and determine the cause before it. 20 Am. Jur.2d, Courts § 87. As the jurisdiction necessary to the maintenance of the cause before the trial division has not been conferred on any court in this territory by the American Samoa Constitution, its existence depends totally upon legislative grant.
A territorial statute conferring in rem admiralty jurisdiction on the High Court would be no more “inconsistent with the laws and Constitution of the United States” than was the statute considered in S56 Bales of Cotton. While the passage of such laws by the Florida territorial legislature was expressly prohibited by that territory’s organic act, the Constitution of American Samoa, as approved, only provides that no local legislation “may be *992inconsistent with . . . the laws of the United States applicable in American Samoa.” Rev. Const. American Samoa, art. II, § 1 (emphasis added). We express no opinion as to the validity of this narrow limitation but note that, generally and in point of fact, the exact status of the laws and Constitution of the United States in an unorganized and unincorporated territory such as American Samoa is uncertain.4
The American Samoa Code contains a comprehensive description of this territory’s court system. The High Court and the district courts in each village possess judicial power. 5 A.S.C. § 1. The High Court consists of a trial division, lands and titles division, probate division, appellate division, and public health court. 5 A.S.C. §§ 402, 801, et seq. The Pono has also created within the trial division a traffic department and small claims department. 5 A.S.C. § 402. The subject matter jurisdiction of each division and department is set out in the Code. Id. They are specifically authorized to exercise personal jurisdiction in civil cases and a “long arm” provision has been enacted to aid in the *993effectuation of this jurisdiction.5 In addition, service of process by publication is allowed in certain actions to enable the courts to obtain personal jurisdiction.6
There is simply no provision in this comprehensive statutory scheme which, either expressly or by implication, empowers the courts of this territory to entertain in rem proceedings in cases of admiralty and maritime jurisdiction. The legislature has not undertaken to create an admiralty division of the High Court or an admiralty court within the trial division. Moreover, it has expressly described the jurisdiction of American Samoa courts over civil cases as being personal and it is a general principle of statutory interpretation that the mention of one thing implies the exclusion of another; expressio unius est exclusio alterius. National R.R. Passenger Corp. v. National Assoc. of R.R. Passengers, 414 U.S. 453, 458 (1974).
*994The trial judge construed the statute which provides that the High Court “shall have power to issue all writs and other process... not inconsistent with law..as being all inclusive and therefore comprehending the power to issue a warrant for the arrest of a vessel. 5 A.S.C. § 408 (1973). This act is in pari materia with the aforementioned general jurisdictional statute and should be construed in harmony therewith and not be given any greater effect than its terms require. We note that service of process is merely the means by which the parties to an action are brought within the jurisdiction of a court. If the High Court had, in the first place, been given in rem jurisdiction over maritime causes of action, we would be in agreement with the trial division. However, as we concluded above, this has not been done. We hold that for the High Court to issue process for the arrest of a vessel would be “inconsistent with law” and therefore not within its power.
The trial division supported its reading of the “all writs” statute by citing High Court Rule 3 where it is stated that “Admiralty Rules are as published in the supplement to the Federal Rules of Civil Procedure.” That Rule also provides, however, that “Proceedings in the High Court will be conducted insofar as applicable, ... in accordance with the U.S. Federal Rules of Civil Procedure. . . .” and that “in cases of conflict” the Revised Code of American Samoa has precedence over the federal rules. Similar language appears in a statute concerning civil procedure in this court. 11 A.S.C. § 801 (1973). Because it would be inconsistent with the statutory jurisdiction of the High Court for it to issue process for the arrest of a vessel, we hold that insofar as the provisions of the “Supplemental Rules for Certain Admiralty and Maritime Claims” concern actions in rem, they are inapplicable in proceedings in the courts of American Samoa.
*995Nothing we have said herein detracts from the authority of the High Court to exercise in personam jurisdiction over admiralty and maritime causes of action. The federal Judiciary Code exempts this common law remedy from the exclusive jurisdiction of the federal courts over such cases. 28 U.S.C. § 1333. See Tialigo v. Steffany, High Court Civil Action No. 2766 (1974). Thus, complaints filed in the High Court may
With respect to any admiralty or maritime claim in personam . . . contain a prayer for process to attach the defendant’s goods and chattels, or credits and affects in the hands of garnishees named in the complaint to the amounts sued for, if the defendant shall not be found within the [territory]. Fed. R. Civ. P., Supplemental Rule B(l).
In the enforcement of this personal liability, a vessel “may be seized, attached [and] levied upon by ordinary process like any of the debtor’s assets____” Gilmore and Black, Law of Admiralty § 9-2 (1974). The supplemental federal rules for maritime claims, are, therefore, at least on their face, applicable in the High Court insofar as they are consistent with our statutory jurisdiction.7 We note, however, that under the requirements established by the Supreme Court most recently in North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601, 42 L.Ed.2d 751 (1975), the procedure required by the federal rules governing maritime actions in rent and in personam with process of maritime attachment appear to fail to meet due process requirements.8 We *996recognize, of course, that in rem maritime actions are different from attachments and garnishments of the type considered by the Court in North Georgia Finishing v. Di-Chem,9 but we can see no compelling basis for distinguishing between them insofar as the requirements of due process under both the United States and American Samoa Constitutions are concerned. The same is true, a fortiori, as to actions brought in personam with process of maritime attachment. We do not, however, decide this constitutional issue or examine it further at this time, as to do so is not necessary for the disposition of the case before us.
Lastly, the trial division concluded that its finding of jurisdiction in the cause before it was supported by the necessity and importance of “in rem Admiralty jurisdiction ... in the orderly administration of justice in this maritime territory.” The case it cited as having recognized this principle, Pago Pago Charterers, Inc. v. Motorship Chen Chin, et al., High Court Civil Action No. 1266 (1970), does not appear to have actually done so and certainly does not constitute precedent for the exercise of in rem jurisdiction by the trial division over maritime claims. There, a libel in rem was filed in the High Court and the clerk issued a warrant for the arrest of the Chen Chin. The only judicial action taken before the suit was settled and voluntarily dismissed was the holding of a “Prehearing Conference upon the Libel” at which the presiding judge granted the defendant additional time to obtain counsel and endeavored to preserve the status quo until representation was secured by ordering the vessel, which presumably had already been seized, to be held.
It may well be, as the trial judge in the instant ease stated, that “the power to sit as an Admiralty court and issue process in rem is ‘required for the due administration *997of justice . . .’ [because] the general welfare of American Samoa, an insular territory, is inextricably bound to maritime commerce, and merits and demands the enforcement of the rights and duties applicable thereto.” However, this is a determination which should be left to the local legislature and, if made, acted upon in such manner as it sees fit through the exercise of its constitutional powers. See, H. K. Porter Co., Inc. v. N.L.R.B., 397 U.S. 99 (1970).
We hold that under existing provisions of the American Samoa Code the courts of this territory cannot exercise in rem jurisdiction over admiralty and maritime claims. It is therefore ORDERED that the trial division of the High Court of American Samoa is prohibited from exercising in rem jurisdiction in the case of Star Kist Samoa, Inc. v. The Vessel M.V. Fijian Swift and Reef Shipping Co., Ltd., High Court Civil Action 3082 (1975).
It is further ORDERED that the complaint in rem in said action is hereby dismissed for want of jurisdiction and that all acts of the clerk of court and trial division done therein without jurisdiction, including those relating to the arrest, seizure and release of the M.V. Fijian Swift, and actions taken by the parties in said case in reliance upon the in rem jurisdiction of the High Court, including bonds and undertakings and stipulations entered into, are dissolved, discharged or returned.
Study Mission to Eastern Samoa, S. Doc. No. 38, 87th Cong., 1st Sess. 163 (1961).
Exec. Order No. 10264,16 F.R. 6419, June 29,1971.
Order No. 2657, F.R. Doc. 51-10655, August 29,1951.
That the entire spectrum of federal constitutional guarantees is not applicable here has been demonstrated in recent federal legislation. Public Law 93-435, which places “certain submerged lands within the jurisdiction of the governments of ... American Samoa.. ..,” provides
“Sec. 6. No person shall be denied access to, or any of the benefits accruing from, the lands conveyed by this Act, or by the amendment made by this Act, on the basis of race, religion, creed, color, sex, national origin, or ancestry: Provided, however, That this section shall not be construed in derogation of any of the provisions of the April 17, 1900 cession of Tutuila and Aunuu or the July 16, 1904 cession of Manu’a Islands, as ratified by the Act of February 20, 1929 (45 Stat. 1253) and the Act of May 22, 1929 (45 Stat. 4).”
The Senate report accompanying this legislation explained that the proviso was added in order that
the civil rights provisions shall not conflict with the terms of the American Samoa cession. The Committee is aware that land in American Samoa is held communally and of their concern over the possible alienation of their land. The purpose of the proviso is to assure that there will be no conflict between this legislation and the American Samoan land policy to the degree that the ratification of the cession guaranteed this policy. S. Rep. No. 93-1152, 93d Cong., 2d Sess. (1974).
5 A.S.C. § 3 (1973) provides as follows:
“Jurisdiction.
“(a) A court may exercise personal jurisdiction in civil cases over persons residing or found in American Samoa, or who have been duly summoned or voluntarily appear.
“(b) Any person, firm or corporation, whether or not a citizen or resident of this territory, who in person or through an agent, takes any of the following actions, thereby submits, and if a corporation, submits its personal representative, to the jurisdiction of the courts of this territory, as to any cause of action, suit or proceeding arising out of such action;
“(1) The transactions of any business within this territory;
“(2) The commission of a tortious act within this territory;
“(3) The ownership, use or possession of any real estate in this territory;
“(4) Contracting to insure any person, property or risk within this territory at the time of contracting.
“(c) Criminal cases shall be prosecuted and tried only in a court having territorial jurisdiction over the place where the crime was committed.”
11 A.S.C. 2001 (1973) provides in part as follows:
“Service by publication — When allowed
“When an affidavit is filed that personal service cannot be made upon the defendant within American Samoa, service may be made by publication in any of the following cases:
“(2) An action brought against a nonresident of American Samoa or a foreign corporation, having in American Samoa property or debts owing to such defendants and sought to be appropriated in any way.”
The American Samoa Code provides a complete basis for instituting an in personam action with process of maritime attachment in the High Court. 5 A.S.C. § 3 (1973), supra note 5; 11 A.S.C. §§ 2001-2004 (1973), in part supra note 6; 11 A.S.C. §§ 6201-6220 (1973).
The Georgia garnishment statute under consideration by the Court was found constitutionally insufficient because under it “a bank account, surely a form of property, was empounded and, absent a bond, put totally beyond use during the pendency of the litigation on the alleged debt, all by a writ of garnishment issued by a court clerk without notice or opportunity for an early hearing and without participation by a judicial officer.” 42 L.Ed.2d 751, 757. There is a marked similarity between the procedures allowed under the Georgia statute and those required by the Federal Supplemental Rules for Certain Admiralty and Maritime Claims.
Citing Fuentes v. Shevin, 407 U.S., at 89-90, the Court in Di-Chem stated “We are no more inclined now than we have been in the past to distinguish among different kinds of property in applying the Due Process Clause.” | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485422/ | The present matter arises on a motion to dismiss the appeal filed by appellant-employer following a decision of the Workmen’s Compensation Board awarding benefits to appellee-claimant.
Appellant appealed under the provisions of 3 A.S.C. 2101, part of the Administrative Procedure Act of American Samoa. However, subsection 2101(b) specifically provides that “. .. judicial review may not be sought *999under this subchapter of any proceedings for which ... the law specifically provides other adequate means of judicial review.” The American Samoa Workmen’s Compensation Act specifically provides a procedure to review a decision of the Workmen’s Compensation Board. 24 A.S.C. 459 provides in part that “(i)f not in accordance with law, a compensation order may be suspended or set aside, in whole or in part, through injunction proceedings, brought . . . against the commissioner, and instituted in the High Court of American Samoa.” (Italics ours.) It follows by legislative fiat that the general appeal provisions of the Administrative Procedure Act above referred are inapplicable, and that the only permissible review in Workmen’s Compensation matters is by injunction. The document filed by appellant is not, and cannot be interpreted as an injunction action in the trial division of the High Court. Appellant’s contention that 24 A.S.C. 459 and 460 are fatally ambiguous, is without merit.
The file reflects the filing of a document on May 29,1975, entitled “Petition for Reconsideration.” An order denying same was filed by the Commission June 19,1975. 24 A.S.C. 458 provides a thirty day period from the date the compensation order is filed in the office of the commissioner in which proceedings for the suspension or setting aside of such order may be instituted. It is unnecessary to rule whether a “Petition for Reconsideration” tolls the statutory period above-referred. Under the most generous time frame encompassed in the filing of documents herein, no authorized proceedings under 24 A.S.C. 459 were filed under any statutory period. The compensation order is final.
No sum or sums of any kind have been paid under the commission award, and no stay was ever granted appellant.
Appellant claims that appellee has no standing before this court. Because of appellant’s choice of procedure by *1000filing a general type of appeal, any party in interest is qualified to make the present motion.
IT IS ORDERED, ADJUDGED and DECREED that the motion to dismiss appeal is granted.
Fees and cost are prayed for, alleging the appeal to be “frivolous.” The following applies only to this contention.
24 A.S.C. 449 provides that “If the court having jurisdiction . . . determines that the proceedings . . . have been ... continued without reasonable ground, the costs of such proceedings shall be assessed against the party who has instituted or continued such proceedings.” Costs do not include fees and/or penalties inferentially.
However, Rule 63, Rules of the High Court, provides that “if the Court shall determine that an appeal is frivolous ... reasonable attorney’s fees.” The following is cogent:
1. Date of death was April 17, 1974. The exact timé employer gained knowledge of the injury is not stated; however, the police report dated the same day shows that the employer was contacted and acknowledged that decedent was driving employer’s truck for bread delivery. The records show that at no time did employer controvert entitlement. He did not comply with 24 A.S.C. 464; hence, a right to compensation was established before May 2, 1974.
2. Notice of claim was filed and receipted for by employer September' 27, 1974. Late filing does not excuse non-compliance with 24 A.S.C. 464.
3. Three of the five continuances were granted because employer’s attorney was either “off-island” or failed to appear without explanation. Affidavits are conflicting, but the sixth continuance to February 13,1975 from February 11th was made by the Commissioner without notice. On February 13,1975, employer’s counsel was notified person*1001ally, appeared at the hearing, objected to same, and left for other “commitments.” He did not claim that he had to be in another court that morning. He elected on his own motion to leave a hearing which in his presence was ordered to proceed. Because of the failure to controvert, only one problem remained, i.e., the factual question of the extent, if any, of the dependency of Ma’amu Westerlund. His departure without examining the witnesses there available on the subject was, in this court’s opinion, inexcusably daring and capricious.
4. A “Petition for Reconsideration” was made and denied. Another six weeks had elapsed and appellant had full reason to know at that time that judicial review was his only last resort.
5. There was no valid reason and/or explanation why the clear provisions of 24 A.S.C. 459 were not followed. Refusing to utilize an unambiguous section (24 A.S.C. 459) proscribing the exact and only method of Judicial Review because of an alleged inadequate wording in a section (24 A.S.C. 460) pertaining only to Enforcement Proceedings is completely unconscionable. Under the American Samoa Code, the “appeal” was, on its face, fatally defective when filed. It served only to forestall claimants for another three months.
For all reasons above, the selection of the abortive “appeal,” the background of the litigation indicating the time-consuming procedures utilized, and the fact that no one has ever denied the rights to compensation, all combine to qualify this appeal as frivolous.
IT IS FURTHER ORDERED, ADJUDGED and DECREED that appellants pay to appellees the sum of $575.00 fees and costs reasonably incurred in combating the appeal, under Rule 63 of the Rules of the High Court of American Samoa. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/9350253/ | Hall v New York Cent. Mut. Fire Ins. Co. (2022 NY Slip Op 07368)
Hall v New York Cent. Mut. Fire Ins. Co.
2022 NY Slip Op 07368
Decided on December 23, 2022
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on December 23, 2022
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
PRESENT: SMITH, J.P., PERADOTTO, CURRAN, WINSLOW, AND MONTOUR, JJ.
864 CA 21-01168
[*1]MICHAEL HALL AND MELISSA HALL, PLAINTIFFS-RESPONDENTS,
vNEW YORK CENTRAL MUTUAL FIRE INSURANCE COMPANY, DEFENDANT-APPELLANT. (APPEAL NO. 1.)
RUPP BAASE PFALZGRAF CUNNINGHAM LLC, BUFFALO (GREGORY S. GAGLIONE, JR., OF COUNSEL), FOR DEFENDANT-APPELLANT.
DUKE, HOLZMAN, PHOTIADIS & GRESENS LLP, BUFFALO (CHRISTOPHER M. BERLOTH OF COUNSEL), FOR PLAINTIFFS-RESPONDENTS.
Appeal from an order of the Supreme Court, Monroe County (Gail Donofrio, J.), entered August 11, 2021. The order denied defendant's motion for summary judgment dismissing the complaint and granted plaintiffs' cross motion for summary judgment.
It is hereby ORDERED that said appeal is unanimously dismissed without costs.
Memorandum: Plaintiffs commenced this breach of contract action alleging, inter alia, that defendant breached its insurance policy with them by refusing to provide the full amount of coverage under the policy for fire damage to their home. Plaintiffs submitted a claim for that damage prior to making any repairs, and defendant paid the actual cash value pursuant to the policy. Defendant later denied certain parts of plaintiffs' claim for replacement costs, however, on the ground that plaintiffs failed to complete certain repairs and replacements with respect to items for which defendant had paid the actual cash value. In addition, defendant asserted that plaintiffs were not entitled to replacement cost proceeds for the costs that plaintiffs incurred to partially finish their basement, which had not been partially finished prior to the fire, and to upgrade the insulation in their house. Defendant moved for summary judgment dismissing the complaint, and plaintiffs cross-moved for summary judgment on the complaint. In appeal No. 1, defendant appeals from an order denying the motion and granting the cross motion. In appeal No. 2, defendant appeals from a subsequent order and judgment.
Initially, we note that the appeal from the order in appeal No. 1 must be dismissed inasmuch as the order in that appeal is subsumed in the final order and judgment in appeal No. 2 (see Hughes v Nussbaumer, Clarke & Velzy, 140 AD2d 988, 988 [4th Dept 1988]; see generally CPLR 5501 [a] [1]). The appeal from the order and judgment brings up for review the propriety of the order in appeal No. 1 (see CPLR 5501 [a] [1]).
The clear and unambiguous terms of the insurance policy required defendant to pay plaintiffs the "actual cash value" of the damage to plaintiffs' house, and further provided that defendant would not pay for repair or replacement costs above the actual cash value until such repairs or replacements were complete (see D.R. Watson Holdings, LLC v Caliber One Indem. Co., 15 AD3d 969, 969 [4th Dept 2005], lv dismissed 4 NY3d 882 [2005], lv dismissed 5 NY3d 842 [2005]). In addition, the policy provided that replacement cost proceeds would be limited to the cost of replacements "with material of like kind and quality and for like use."
"Replacement cost coverage inherently requires a replacement (a substitute structure for the insured) and costs (expenses incurred by the insured in obtaining the replacement); without [*2]them, the replacement cost provision becomes a mere wager" (Harrington v Amica Mut. Ins. Co., 223 AD2d 222, 228 [4th Dept 1996], lv denied 89 NY2d 808 [1997]). Here, with respect to the coverage that plaintiffs seek, plaintiffs have not incurred costs, above the actual cash value, for repairs and replacements with material of like kind and quality and for like use and, thus, their loss is defined by the actual cash value of the damaged parts of the building (see generally Cushing v Allstate Fire & Cas. Ins. Co., 173 AD3d 1819, 1820-1821 [4th Dept 2019]; Bartholomew v Sterling Ins. Co., 34 AD3d 1157, 1158 [3d Dept 2006]; Harrington, 223 AD2d at 228). Consequently, defendant met its initial burden on the motion by establishing that it paid plaintiffs the actual cash value of the damage to the house and that plaintiffs are not entitled to recover the additional replacement or repair costs they seek, and the burden shifted to plaintiffs to raise a triable issue of fact (see generally Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Plaintiffs failed to meet that burden. Furthermore, plaintiffs failed to meet their burden on the cross motion of demonstrating their entitlement to the additional payments they seek under the policy. Therefore, Supreme Court should have denied plaintiff's cross motion, granted defendant's motion, and dismissed the complaint.
Entered: December 23, 2022
Ann Dillon Flynn
Clerk of the Court | 01-04-2023 | 12-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/9350254/ | Halaby v Denzak (2022 NY Slip Op 07344)
Halaby v Denzak
2022 NY Slip Op 07344
Decided on December 23, 2022
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on December 23, 2022
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
PRESENT: LINDLEY, J.P., NEMOYER, WINSLOW, BANNISTER, AND MONTOUR, JJ.
794.1 CA 21-01120
[*1]SAMUEL A. HALABY, JR., PLAINTIFF-APPELLANT-RESPONDENT,
vJAMES M. DENZAK AND SARA J. DENZAK, DEFENDANTS-RESPONDENTS-APPELLANTS.
FRANK A. ALOI, ROCHESTER, FOR PLAINTIFF-APPELLANT-RESPONDENT.
FINUCANE AND HARTZELL, PITTSFORD (THOMAS CARROLL HARTZELL JR OF COUNSEL), FOR DEFENDANTS-RESPONDENTS-APPELLANTS.
Appeal and cross appeal from an order and judgment (one paper) of the Supreme Court, Monroe County (Gail Donofrio, J.), dated May 7, 2021. The order and judgment, among other things, granted in part and denied in part the motion of defendants for a directed verdict dismissing the complaint, and granted plaintiff judgment prohibiting defendants from constructing certain structures on their property.
It is hereby ORDERED that the order and judgment so appealed from is unanimously modified on the law by vacating the fourth decretal paragraph, granting that part of defendants' motion for a directed verdict with respect to plaintiff's request for injunctive relief enjoining defendants from "constructing, placing, or maintaining any outbuildings such as steel tool sheds, lean-tos, portable or detached garages or the like except as may be permitted by the Uniform Plan of Restrictions" and dismissing the complaint to that extent and as modified the order and judgment is affirmed without costs.
Memorandum: In this action pursuant to RPAPL article 15 seeking enforcement of restrictive covenants, plaintiff appeals and defendants cross-appeal from an order and judgment that, inter alia, denied plaintiff's request for injunctive relief requiring defendants to remove a garden and surrounding fencing from their property, granted plaintiff a judgment barring defendants from "constructing, placing, or maintaining any structure/outbuilding other than pool cabanas and architecturally compatible gazebos" on their property, and denied defendants' motion for a directed verdict with respect to that relief.
Plaintiff and defendants live in the University Park subdivision in Mendon, New York. There are 10 lots in the University Park neighborhood. Each lot consists of approximately three acres of land on the south side of Tennyson Way, where the dwellings are located, and approximately two acres of land on the north side of Tennyson Way. Plaintiff and defendants own adjacent lots. In 1992, Smith-McCall Development, Inc. recorded a Uniform Plan of Restrictions (UPR) relating to the neighborhood, with the stated purpose "to encourage development and maintenance of a fine, suburban residential development in order to promote and provide collective individual ownership benefits." Plaintiff commenced this action to enforce the UPR, claiming that defendants' installation of a fenced garden on the northern portion of their lot and their intended erection of a shed on the southern portion violated the provisions of the UPR.
"Generally, 'restrictive covenants will be enforced when the intention of the parties is clear and the limitation is reasonable and not offensive to public policy' " (Dodge v Baker, 194 AD3d 1348, 1349 [4th Dept 2021], quoting Chambers v Old Stone Hill Rd. Assoc., 1 NY3d 424, 431 [2004]; see Kleist v Stern, 174 AD3d 1451, 1453 [4th Dept 2019]). "[T]he party seeking to [*2]enforce such a restriction 'must prove, by clear and convincing evidence, the scope, as well as the existence, of the restriction' " (Dodge, 194 AD3d at 1349, quoting Greek Peak v Grodner, 75 NY2d 981, 982 [1990]; see Kleist, 174 AD3d at 1453). Inasmuch as "the law has long favored free and unencumbered use of real property, . . . covenants restricting use are strictly construed against those seeking to enforce them" (Witter v Taggart, 78 NY2d 234, 237 [1991]; see Kleist, 174 AD3d at 1453; Ludwig v Chautauqua Shores Improvement Assn., 5 AD3d 1119, 1120 [4th Dept 2004], lv denied 3 NY3d 601 [2004]).
Defendants contend on their cross appeal that Supreme Court erred in concluding that plaintiff established that the restrictive covenant bars defendants from placing any shed on their lot. We agree. With respect to outbuildings, section six of the UPR states that "[n]o structures such as steel tool sheds, lean-to's or mini-barns will be permitted, excepting pool cabanas and/or such architecturally compatible gazebos or such other structure as may be permitted by the undersigned." Here, the court erroneously concluded that section six "does not permit any structure except pool cabanas and/or such architecturally compatible gazebos." In reaching that conclusion, the court relied on the language of section 1 (A) providing that "[n]o structure shall be erected, altered, placed, or permitted to remain on any of said lots other than one single-family dwelling[]." The court's interpretation ignores the language of section six "excepting pool cabanas and/or such architecturally compatible gazebos or such other structure as may be permitted by the undersigned" (emphasis added) from its general prohibition against "structures such as steel tool sheds, lean-to's or mini-barns." There is no basis for interpreting the term "structure" in such a limited manner, particularly considering the use of the word "other," i.e., something differing from either a pool cabana or gazebo. Rather, "a contract must be read as a whole to give effect and meaning to every term" (Maven Tech., LLC v Vasile, 147 AD3d 1377, 1378 [4th Dept 2017] [internal quotation marks omitted]; see Rautenstrauch v Bakhru, 64 AD3d 554, 556 [2d Dept 2009]). Inasmuch as plaintiff did not establish that the restrictions contained in the UPR prohibited defendants from erecting an outbuilding other than a pool cabana or gazebo, plaintiff is not entitled to equitable relief enjoining that action and the court erred in denying defendants' motion for a directed verdict with respect to plaintiff's request to enjoin defendants from erecting such a structure (see Single v Whitmore, 307 NY 575, 582 [1954]; Kleist, 174 AD3d at 1452-1453; cf. Dodge, 194 AD3d at 1349). We therefore modify the order and judgment accordingly.
Further, although we agree with plaintiff that the UPR unambiguously prohibits the fencing surrounding defendants' garden, we reject plaintiff's contention on his appeal that the court erred in granting defendants' motion to dismiss that portion of the complaint seeking injunctive relief requiring defendants to remove the fencing. "[A] party is not automatically entitled to equitable relief when a violation of a restrictive covenant is established" (Kleist v Stern, 187 AD3d 1666, 1667 [4th Dept 2020]). Entitlement to equitable relief "depends on the particular circumstances of each case," and of particular importance is "whether enforcing [a] covenant and restriction would substantially harm the defendant without any substantial benefit to the plaintiff" (id.). The plaintiff must establish irreparable injury and that the balance of the equities weighs in his or her favor (see DiMarzo v Fast Trak Structures, 298 AD2d 909, 910-911 [4th Dept 2002]). Ultimately, "[t]he court has discretion whether to grant an equitable remedy after balancing the equities" (Kleist, 187 AD3d at 1667; see DiMarzo, 298 AD2d at 911). Here, the court properly concluded that the balance of the equities weighed in defendants' favor inasmuch as the record at trial established that defendants were not aware of the restrictions under the UPR, there is no express mention of the UPR in defendants' deed, other lots in the subdivision contained similarly fenced gardens on the north side of Tennyson Way, and "enforcement of the restriction would have little benefit to plaintiff" (Kleist, 187 AD3d at 1668).
We have considered the remaining contentions on plaintiff's appeal and defendants' cross appeal and conclude that none warrants further modification or reversal of the order and judgment.
Entered: December 23, 2022
Ann Dillon Flynn
Clerk of the Court | 01-04-2023 | 12-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/9350364/ | Appeal Reinstated; Motion Granted; Appeal Dismissed and Memorandum
Majority and Concurring and Dissenting Opinions filed December 22, 2022.
In The
Fourteenth Court of Appeals
NO. 14-21-00413-CV
34TH S&S, LLC D/B/A CONCRETE COWBOY AND DANIEL JOSEPH
WIERCK, Appellants
V.
KACY CLEMENS AND CONNER CAPEL, Appellees
On Appeal from the 113 District Court
Harris County, Texas
Trial Court Cause No. 2019-07278
CONCURRING AND DISSENTING MEMORANDUM OPINION
While I concur with granting appellants’ unopposed motion to dismiss
appeal, I do not agree that a statement in a certificate of conference that appellees
are “not opposed” to the motion means that appellees “agree” to the motion. Every
lawyer understands that difference.
The Texas Rules of Appellate Procedure state, “Absent agreement of the
parties, the court will tax costs against the appellant.” Tex. R. App. P. 42.1(d).
That’s unambiguous, and the court should follow the rule.1
In addition, the court in its opinion states that the trial court’s final judgment
was signed on April 26, 2021. On appeal, the parties disputed whether the April
26, 2021 judgment was modified and therefore not the trial court’s final judgment.
The statement in the majority opinion declaring the trial court’s final judgment to
have been signed on April 26, 2021 appears to agree with appellants’ argument
that the final judgment was not modified by the July 19, 2021 signed order
granting a motion to modify the judgment in which the trial court stated, “IT IS,
FURTHER, ORDERED, ADJUDGED, AND DECREED that the Final Judgment
will reflect actual damages for Plaintiff Conner Capel to include ‘past physical
disfigurement’ and ‘physical disfigurement that, in reasonable probability, Conner
Capel will incur in the future’ while omitting ‘physical pain that, in reasonable
probability will incur in the future’ from Plaintiff Capel’s actual damages.”
I do not join the court’s opinion that the April 26, 2021 is the final judgment.
That is a disputed legal issue which we cannot determine when the appeal is moot,
and I express no opinion on what constitutes the trial court’s final judgment. I
dissent to the court’s failure to follow a mandatory rule on taxation of costs.
Finally, I concur in granting appellants’ motion for a voluntary dismissal of the
appeal.
/s/ Charles A. Spain
Justice
Panel consists of Chief Justice Christopher and Justices Spain and Wilson (Spain,
J., concurring and dissenting).
1
The fact that the appellees’ costs are minimal doesn’t mean the court gets to treat “not
opposed” as “agreed.”
2 | 01-04-2023 | 12-26-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485438/ | PER CURIAM.
This is a direct appeal from the District Court on the issue of whether the defendant in a traffic case may be tried upon an unsworn complaint. Pursuant to law, the police officers of the Government of American Samoa utilize a Uniform Traffic Ticket and Complaint which must be sworn to by the citing officer before a person authorized to administer oaths.
22 ASC 2409 (b) provides in part:
Before any offense shall be heard 'by the court, or any plea taken, there shall be filed with the clerk of the court a complaint signed and sworn to by a police officer of American Samoa which shall set forth the particulars of the alleged offense.
The law is clear. The requirement of a sworn complaint is jurisdictional. The District Court, in this case, had no jurisdiction to proceed with the trial and to sentence the Defendant.
Accordingly, the conviction of the Appellant-defendant is reversed. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485439/ | PER CURIAM.
This matter comes before us upon a most confused record. It appears to be an appeal under 9 ASC 552 from a decision of the Immigration Board of American Samoa. We are able to glean the following facts from the documents filed in this case:
Thomas French is a U.S. citizen who came to American Samoa with his wife. His' wife is employed under contract with the American Samoa Government and her contract prohibits her from engaging in business in this territory during its term. Mr. French is a marine mechanic. He joined another man in a motor repair business. When the other man decided to drop out Mr. French applied ^to the American Samoa Government for a business license under 12 ASC 1346,1 apparently to continue the business on his own. His application was favorably endorsed by the Territorial Planning Commission of American Samoa (Commission). The application then went to the Immigration Board who disapproved it on two grounds: The provision discussed above in his wife's contract, and the existence of other similar businesses presently operating here.
The Immigration Board took the additional step of directing or ordering Mr. French to leave this territory. Presumably, if he did leave, it would-be . without his wife, since her contract requires her to remain until at least August 12, 1981. The constitutional and public policy questions thereby, raised by this result are intriguing and perhaps someday will need to be address.ed. Curiously, the order to deport tells Mr. French he must leave within "_"days.
*45•The Government has moved to dismiss this appeal since it was not filed within '15 days as provided in 9 ASC 552. The Government contends this requirement is jurisdictional; the appellant contends it is discretionary. This point is interesting, but need not be ruled upon since we find the order or orders entered by the Immigration Board are not final orders. The Federal courts, including the U.S. Supreme Court have adopted essentially practical tests for identifying those judgments which are, and those which are not, to be considered "final". A pragmatic approach to the question of what is a final judgment being essential to the achievement of the just, speedy, and inexpensive determination of every action. Brown Shoe Co. v. U.S. (1962) 370 U.S. 294, 306. Applying that standard to this case, we note the granting of rehearings and the re-issuing of orders of the Board after meetings between Appellant and the Chairman of the Board, and we find it impossible for anyone to tell exactly which order is supposed to be the final, and therefore appealable, order.
As previously stated, in the matter of business license applications it appears that it would be proper to determine the immigration status of an applicant. The Immigration Board found that he is' an American citizen, legally in this territory. That is all it needed to do. The wisdom of the issuance of a business license is more appropriately within the province of the Planning Commission. There is no showing that French is a person to be excluded and subject to deportation under 9 ASC 377.
* -x- -x-
. That section presupposes license applications going to the Governor, who refers the application to the Territorial Planning Commission, which then refers the matter back to the Governor. Just how the Immigration Board gets into the picture, let alone, apparently, makes the final decision as to who gets a business license is unclear. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485440/ | PER CURIAM.
The Appellant was convicted of trespass in violation of 15 ASC 1413(a). The Appellant was seen on the porch of a home peeping through a wire mesh into the house, then occupied by a woman. He fled and when capturd a few minutes later was unclothed. We are of the view that by being on the porch, with eaves extending over the porch, the appellant had made an entry into the house within the meaning of the statute. In the Samoan culture, where houses are more open than would ordinarily be the case, it is considered very wrong to spy on a neighbor.
Samoa does not have a "Peeping Tom" statute to cover situations such as this. The Attorney General may wish to recommend such a statute to the ¡Samoan legislature. 15 ASC 1413 provides:
(a) A person commits the crime of trespass if he knowingly enters unlawfully or knowingly remains unlawfully in a building or inhabitable structure or upon real property. (Emphasis supplied)
(b) A person does not commit the crime of trespass by entering or remaining upon real property unless the real property is fenced or otherwise enclosed in a manner designed to exclude intruders or as to which notice against trespass is given by:
1. actual communication to the actor, or
2. posting in a manner reasonably likely to come to the attention of intruders.
We must first consider what we are not dealing with here. We are not dealing with a Samoan house open on all sides except when the weather requires closure. We are concerned here with a palagi style house with a front door which must be opened to permit entry. The evidence does not indicate that the appellant either entered or attempted to enter the house through the door. The occupant of the house at no time knew of the defenant’s presence looking into the living room.
Trespass is well known to the law from the earliest days of the common law and Roman law. 87 CJS 1102. The general trespass provisions were noted by Justice Black in Martin v. City of Struthers (1943) 319 U.S. 141, 147:
Traditionally the American law punished persons who enter onto the property of another after having been warned by the owner to keep off. General trespass after warning statutes exist in at least twenty states while similar statutes of narrower scope are on the books of at least twelve states more (footnotes ommited).
The instant statute clearly requires an intent to trespass. The person charged must have entered knowingly and unlawfuly.
We must now determine what "enter" means in the context of the statute. We conclude in this case that we are justified in applying the construction that the Appellant entered the house when he passed under the eaves with the criminal intent of viewing the occupant for possible sexual purposes. Ordinarily, such conduct would lead to a breach of the peace if discovered at the time. The general principle is stated in 75 Am.Jur. 2d section 87:
Criminal intent is an essential element of the statutory offense of trespass, even though the statute is silent as to intent, and if the act prohibited is committed in good faith under claim of right or color of title, although the accused is mistaken as to his right, unless it is committed with force or violence or a breach of *47the peace, no conviction will lie, since it will not be presumed that the legislature intended to punish criminal acts committed in ignorance, by accident or under claim of right, and in the bona fide belief that the land is the property of the trespasser, unless the terms of the statute forbid any other construction. A statute penalizing every trespass upon the property of another committed with a malicious and mischievous intent is not void on the ground of vagueness, there being no lack of notice and nothing to entrap the unwary; the requirement of "a malicious and mischievous intent," narrowing rather than broadening the scope of the offense, makes its meaning more understandable and clear (footnotes omitted).
The judgment of the District Court is AFFIRMED. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485442/ | MURPHY, Associate Justice.
STATEMENT OF THE CASE
This action arose in 1979 when Defendant, Tony Willis, began construction of a house on a portion of the land claimed by Plaintiffs. Plaintiff Eve Leuma, Tavita Avegalio and Joseph Avegalio claim to be the individual owners of certain real property located on or near the land known as "Legn'oa." They claim that their father, Avegalio Eseese, gained individual ownership of the land by originally clearing, planting, and occupying said land. The father died in 1973 and Plaintiffs claim title by intestate succession.
Defendant Tony Willis claims he is the owner of the disputed land, that it is a portion of a much larger parcel of land he and others own, which they refer to as "Lega'oa." He does not dispute that Eseese cleared and planted on the subject property, but contends that the clearing and planting was by virtue of an oral license granted by Willis' mother, Defendant's predecessor in interest.
Willis also contends that whatever interest Eseese may have had in the property has been abandoned. Willis' claim of ownership is founded entirely upon a deed referred to in a judgment entered by the High Court on May 4, 1906, To’omata v. People of Leone (CA No. 5-1906), and further construed in Falesau v. Tuitele (CA No. 19-1918).
'Plaintiffs, inter alia, seek to restrain defendant from continuing construction of the house. Defendant seeks to enjoin Plaintiffs from use or *49possession of the subject property.
FINDINGS OF FACT
Based upon the testimony and evidence presented in Trial September 16, 17, & 18, 1980, as well as an inspection of the property by the court we make the following findings of fact:
1. The subject property consists of broken land, slopes rising to ridges, and sheer cliffs. It is at the end of a large valley which runs from the sea and ends at the waterfall. No part of the property in dispute appears to be flat land of the valley; although the site for the house is level, it is considerably higher than the valley floor.
2. During the 1940's, the Government (Territorial or United States) constructed a road through the subject property to a waterfall where it constructed a catchment and a pipe system, a modification of which is still in use by the village of Leone. The area around the waterfall consists of virgin jungle, cliffs, and a stream bed which runs through Leone and into the sea.
3. At least some portions of the subject property were cleared and planted by Eseese approximately 40 years ago.
4. In 1966 most of the crops planted by Eseese were destroyed by hurricane. Since then, Plaintiffs have had little or nothing to do with the land. Some other people, with Plaintiffs' permission, have planted and harvested crops (mostly bananas) on portions of the disputed land. Some of these banana plants were destroyed by Defendant in preparing the foundation for the house.
5. Defendant began clearing and planting some portions of the subject property in 1975.
6. The Court takes judicial notice of the proceedings in 5-1906 and 19-1918.
7. • None of the parties has constructed a house or lived on the subject land until 1979 when Defendant began construction.
8. Some of the plaintiffs reside in California and resided there at the time of their father's death.
OPINION
Since both parties claim individual ownership of this property, a review of the history of the concept of individual ownership in American Samoa is useful.
HISTORY OF LAND OWNERSHIP IN AMERICAN SAMOA
I. General Trends
Prior to 1899, land in American Samoa was subject to similar laws and customs as in that which is now Western Samoa, for as most readers of this opinion know, for many thousands of years, there was only one Samoa. It has only been in recent history that the people from other countries have come to the Samoan islands, exerting their foreign laws and customs on the descendants of the original inhabitants of these islands.
Of the total area of that which is now American Samoa (excluding Swain's island and the uninhabited Rose Island), or about 45,500 acres, approximately 550-600 acres were acquired by papalag^s before 1889, the freehold title being confirmed by the Land Commission.1 This land commission *50was created in the Berlin Act of 1889. One of the purposes of the Berlin Act was that Samoans might "keep their lands for cultivation by themselves and by their children after them." The Act declared that all further alienation of native lands to non-natives should be prohibited, with two exceptions. The land commission and the Apia Court heard all land matters for all of the Samoan Islands until 1899 when Tutuila and Manu'a islands were ceded to the United States. At that time, there was only freehold land created by the Apia Court, and native or communal land. With the cession of Tutuila and Aunu'u the High Court of American Samoa commenced hearing disputes as to title to land, and it was at this point that land law in American Samoa began diverging from land law in what is now Western Samoa.
Although not well documented, it seems that previous and present custom in Western Samoa was not to separate title to land from a matai title. When a village was established, the land in that valley belonged to the people of that village. A matai could claim land for his family or clan by clearing and then working. Any land that was not under the direct "pule" of a matai remained belonging to the people of the village. Paramount chiefs would have a more general control of larger areas. It is important to keep in mind that the power of a matai was really defined not by title name, but by the land over which he had control. Through this system, ownership of land from the mountain peak to the reef defined among the various families, villages, and districts. Under the present Western Samoa Constitution there are three types of Land in Western Samoa: Government, freehold, and customary ( i'e: communal).
II. History of Individually Owned Land in American Samoa
"Can't you stop thinking about 'owning things,' said Vai. How many times have I told you that no one owns things in Samoa. We only 'use' them. If we clear and plant this land it is ours. If we stop using it someone else can have it." Calkins, My Samoan Chief, The University Press of Hawaii (1962), at 92.
Given the scanty number of statutes in this territory covering the subject of alienation and title to real property,2 the quagmire we find ourselves in presently has developed through 80 years of case law. While succession to matai titles was originally governed by custom and tradition, it was soon changed so it was determined by statute.3 Succession to land seems to have been governed by possession and control. See Sapela v, Veevalu (1905) 1 ASR 124, 129, and Siopitu v. Faiivae (date unknown) 1 ASR 138, in which this court was already trying to apply the common law concept *51of adverse possession to the Samoan land system, the foreign concept of adverse, possession being based on possession and control.
A review of these early land title cases leads us to believe that the reasoning behind the decisions was that title to native or communal land (these terms will be used synonymously throughout this opinion) was never legally bound to the matai titles. As mentioned previously, the two titles have remained in tact in Western Samoa. The Court then began securing claims to title to land by means of surveys and registration of title. See Vili v. Faiivae (date unknown) 1 ASR 138, 139; Maloata v. Leoso (1938) 2 ASR 26, 28. As lands were surveyed and registered, the remaining areas (most of the land on the island), primarily virgin forest, remained unclaimed arid unregistered. We can find nothing in the cases or early statutes in which the Court recognized the superior claim of a paramount chief or the people of a village to all the lands extending from the ocean to the mountain peaks. In fact, the Court specifically rejected claims to land title made by Tuimanu’a on the grounds that the title was political. Alesana v. Siupolu (1922) 1 ASR 346, 351. This is another example of the court limiting the title to the land to the cultivator or user of the land. As we look back at these cases in general, and the Tuimanu'a case in particular, we note that the court constantly refers to English common law, Tiffiny of Real Property, Maine Ancient Law, or tries to compare the King of Manu’a to the King of England, and this was the rationale on which the Court limited land title to the cultivator or user.
In the years from the cession of the eastern Samoan islands to the United States until the beginning of World War II, the Court, unwittingly we think, laid the precedents necessary to file a claim of individual ownership by leaving virgin land unregistered and by favoring the user or cultivator in land disputes.
It is clear from early decisions that all surveyed and registered native land vested a fee in someone or something. Maloata v. Leoso (1905) 1 ASR 134, 138. But in the same case, the court also said:
It was well known custom in Samoa that the individual owner of property, not withstanding his well established rights to it, was subject to the will of the community and upon the commission of any act contrary to the desire of the community he would be banished or have to submit to gross degradation imposed by the people (underscoring added). Id. at 137.
The Court seems to be talking about some form of ownership different from the traditional papalagi concept of fee simple. Five years later, the court held:
...It would be a disastrous shock to the social system of Samoa under which it has progressed already so far towards civilization to permit a member of a family to withdraw entirely and grant him a fee-simple title of land which he had previously occupied and cultivated under the control of the head of the family. Sapela v. Mageo (1910) 1 ASR 223, 224.
And even as late as 1932 we see:
The Court does not favor the holding of large tracts of land by individual Samoans, —it is manifestly better for the interests of all the Samoans that land be more or less equally distributed among the respective matais in Samoa. Satele v. Afoa (1932) 1 ASR 467, 471.
*52While in 1900 there had been only two types of land, freehold and native land, the decisions cited above unwittingly recognized two divisions of native land: native land in which a trust is imposed on the matai, and another form of land not specifically defined, but having some of the qualities of fa'a Samoa and some of the qualities of fa'a papalagi.
World War II seems to have brought on an awareness of the potential in these decisions cited above. In Tiumalu v. Simaile (1945) 2 ASR 222, 224, the court recognized specifically the ownership of land other than freehold as personal. The presumption of individual ownership in absence of evidence of communal ownership was established in this case, as well as the right of the estate being inheritable.
In 1947, in a case involving the Defendant in this action, the court belatedly recognized problems of alienation caused by its prior decisions, and supported a statute prohibiting alienation of land on the basis of blood. Willis v. Willis (1947) 2 ASR 276, 278-279. This decision was based on blood lines and was a departure from the court's previous decisions in which they supported those who cultivated and used the land. This departure may be reconciled because it was descendents of the first users who received the land. Also in 1947, the Court held that virgin bush cleared by a matai could be individually — owned and could be inherited. Tago v. Mauga (1947) 2 ASR 285.
In Letele Family v. Lagoga (1949) 2 ASR 466, the Court adopted a rebuttable presumption that when a matai or his family clears bush land, he does so for the communal family. 2 ASR 466, 469. This case again focused on the use and cultivation as the key to ownership. Accord, Toomata v. Ve'a, (H.C.T.D. 1950) 2 A.S.R. 564, 571; Soliai v. Levu (1949) 2 ASR 440, 442-443.
These decisions suffer from a lack of consistency. When reviewing the lot, we sence the Court was improvising decisions ad hoc to fit the equities of each case. Having established individual ownership, the court then had to prevent alienation of land to non-Samoans; thus the Willis case cited above, which upheld racial classifications for purposes of ownership. Although the 3/4 blood requirement has been modified by subsequent statutes, it remains a racial classification which controls the ownership of land in this Territory. Such a constitutionally suspicious vehicle would not be necessary if the concept of communal land had been faithfully embraced.
In 1948 Justice Morrow started defining individually-owned land by attributing certain characteristics to it. Justice Miyamoto provides an excellent collection of these cases in his opinion in Fanene v. Talio (1977) LT No. 64-77. We draw heavily on the citations in his opinion here, but come to a different conclusion because of a different perception of Samoan custom.
One of the first decisions in which the words "individually-owned land" are used, is the case of Taatiatia v. Misi (1948) 2 ASR 46, in which the Court stated that which the Defendant did to justify his claim to individual ownership of the land, and enunciated the legal basis for the conclusion he reached:
It is our conclusion from the evidence, which in some respects is conflicting, that Misi entered upon the land in 1919 while it was bush and cut the large trees thereon and that after letting the trees lie for a year he burned them and proceeded to put in plantations, and and that he has used the land ever since for plantation purposes. The land being bush and not occupied by anyone was res nullius, the property of no one (sic). When *53Misi -entered upon it and cut down the trees and put in his plantations and claimed the land as his own, it became his in accordance with the customs of the Samoans, which customs, when not in conflict with the laws of American Samoa or the laws of the United States concerning American Samoa, are preserved. Sec. 2 of the A.S. code. There is no law of American Samoa or of the United States concerning American Samoa in conflict with the customs of the Samoans with respect to the acquisition of title to bush land.
Blackstone considered that an original title to property was acquired by the first occupant under a claim of ownership. II Blackstone's Commentaries, pp.8-10. See also Maine on Ancient Law, 5th Ed. pp.242-246. We think Misi was such an occupant. Taatiatia v. Misi (1948) 2 ASR 346, 347.
It seems to us that Justice Morrow misstated Samoan custom (that the virgin bush belonged to no one), and then applied the law of old England (Blackstone and Maine) to a land system and culture completely different. It is no wonder he got such a result as the concept of homesteading individually-owned land.
Six months later, Justice Morrow decided individually-owned land may be acquired if a matai gives it away as such. His citation of authority for this is his judicial knowledge that it has been done in the past:
...We know judicially that some matais in American Samoa have, with the consent of their family members, given family lands outright to certain members of their families. Taetafea testified that she was present and heard old Gi in 1905 make a gift of this land to her and her husband and that such gift was a reward for splended service rendered by her husband and herself to the then Gi; also that such gift was followed by possession by the donees. Gi v. Taetafea (1948) 2 ASR 401, 403.
It is hard for us to "judicially know" that the old Gi, by giving away the land "outright" intended to give a fee simple, a concept we "judicially know" existed then only through a few-prior decisions of Samoan courts. Maybe what the old Gi intended when he gave away the land outright was to designate that communal land for a particular family's use. From the authorities we have cited above, that seems more in keeping with the Samoan tradition than does a gift in fee.
Two weeks later, Justice Morrow stated if virgin, unclaimed'land is cleared and occupied for individual benefit, the Court will find this sufficient to support a claim of individual ownership. His citations of authority for this are again Maine and Blackstone. Muli v. Ofoia (1948) 2 ASR 408, 410.
More recently, in a landmark case in individually-owned land, the Court decided portions of a large parcel of land near the airport were individually-owned. The justification for this was:
This court has ruled many times that Samoans may acquire title to land through first occupancy accompanied by claim of ownership. Soliai v. Lagafua, No. 5-1949 (H.C. of Am. S.); Faatiliga v. Fano, No. 89-1948 (H.C. of Am. S.); Gi v. Te'o, No. 35-1961 (H.C. of Am. S.); Magalei et. al., v. Lualemaga et. al., No.60-1961 (H.C. of Am. S.). This doctrine of the acquisition of title by first occupancy coupled with a claim of ownership is approved in Main's Ancient Law (3rd Am. Ed.) 238. See also 2 Black*54stone 8. The most common way for a Samoan to acquire title to land is to clear a portion of the virgin bush, put in plantations on the cleared area, and claim it as his own land or the communal land of his family. This is a recognized way of acquiring land according to Samoan customs. Government v. Letuli (1963) LT No. 016-63.
In Haleck v. Tuia (1974) LT No. 1386-74, the Court found:
The Plaintiff entered upon the land in 1947 and began to clear it and use it. At the time of entry it was virgin bush land. That no other person ever worked upon this land. That after viewing the property the Court is satisfied that the plaintiff has substantially cleared the entire tract and a considerable plantation was developed. That no objections were ever made by anyone during the entire period from 1947 to the time of filing the petition for registration. The Court further finds that the plaintiff went upon the land as an individual and not under the directioon of a matai; that the work done was entirely at his individual expense, and not as a communal effort.
Based on these findings of fact, the Court reached the following conclusion of law:
When an individual goes upon virgin bush land, clears it and develops a plantation, using his own personal resources, and it is done without direction of the matai of the family, and without communal family funds or donated help of the members of the family, the property becomes the individually owned land of the developer, and he is entitled to have the land registered as his individually owned property.
Having reviewed these cases, in Fanene v. Talio (1977) LT No. 64-77, Justice Miyamoto described individually owned land as that land:
...(1) cleared in its entirety or substantially so from the virgin bush by an individual through his own initiative and not by, for or under the direction of his aiga or the senior matai, (2) cultivated in its entirety or substantially so by him, and (3) occupied by him or his family or agents continously from the time of the clearing of the bush.
In trying to define individually-owned land, it would be helpful to have been provided guidance by the Fono, for after all, the legislators are the elected representatives of the people, and if policy decisions are to be made which will affect all or almost all of the people, it is better to have the duly elected representatives make these decisions than it is to have judges make them as appears to have been done in the past.
Unfortunately, neither the Fono nor the preceding governors appointed by the Secretary of Interior have been of much help. The definitions o| Native land and freehold land^appeared in the American Samoa Code of 1949,4 and remain unchanged today.5 In 1962, the legislature passed laws *55recognizing the concept of individually-owned lan^,6 and actually did define indivicjuially-owned lnnd in Public Law 7-19 (1962)7 as follows:
Sec. 9.0103 - INDIVIDUALLY OWNED LAND: Individually owned land means land that is owned by a person in one of the first two categories named in Sec. 9.0102, or that is owned by an individual or individuals, except lands included in court grants prior to 1900. Such land may be conveyed only to a person or family in the categories mentioned in Sec. 9.0102f except that it may be inherited by devise or descent under the laws of intestate succession, by natural lineal descendants of the owner. If no person is qualified to inherit, the title shall revert to the family from which the title was derived.
As originally enacted,the categories of individuals referred to in Sec. 9.0102 were (1) full blood American Samoan, and (2) a person who is of at least one-half Samoan blood, was born in American Samoa, is a descendant of an American Samoan family, lives with Samoans as a Samoan, has lived in American Samoaofor mope than five years, and has .officially declared his home for life.8 There is no indication that Secs. 9.0102 and 9.0103 were passed by- two successive legislatures as required by Article I, Section 3, and Article II, Section 9, Const. Am. Samoa. (1960). In the last four years, there have been seven attempts tq define individually-owned land, none of which has passed both houses.9
We are left then, with little legislative guidance, and case law founded on English common law, Blackstone's Commentaries, Maine’s Ancient Law, and customs previous high court justices have judicially known.
CONCLUSIONS OF LAW
1. Plaintiffs’ father abandoned the land in 1966. In order to maintain an action based upon original occupancy and use, there must be a present use of the land. The evidence shows that Plaintiffs have not used or otherwise occupied the land since 1966. Ilaoa v. Toilolo, 1 ASR 602, 606; Fanene v. Talio (1977) LT No. 64-77. So even if individually-owned land is that which Justice Morrow may have partially defined, this land is not that.
2. The land is not the individually-owned land of Defendant. We make this conclusion without deciding the validity of the deed through which Willis claims the land. We have found that Willis and his co-tenants were deeded only the flat land of the valley. Since we have found that the land in question is not part of the flat land of the valley, Willis cannot claim this land by the deed, whether or not the deed is valid.
«■ # #
. Kessing, Modern Samoa, its government and changing life, 268 (1978 reprint of 1934 ed.).
. We find it interesting that a culture founded upon its communal, land system has approximately 17 pages of laws covering the entire area of real property, while the juvenile act of 1980 consists of 58 pages and has been applied less than ten times this year.
. While it is unclear how the High Court became the arbitrar of matai titles, the first law we can find giving the court the power was Regulation No. 8-1906, enacted September 14, 1906 by C.B.T. Moore, Commander, U.S.N., Governor. When the court became involved with disputes as to matai titles, it also became involved with disputes as to land titles.
. A.S. Code 1280 states in part"... The term 'native land' shall mean communal land. The term 'freehold lands' shall mean all those lands included in court grants prior to 1900 which have not, at the request of the owner, been returned to the status of other land in American Samoa surrendering its freehold characteristic.
. 27 A.S.C. 201.
. 27 A.S.C. 402(a) and 27 A.S.C. 1202(c).
. Act of April 7, 1962, Pub. L. 7-19, codified IX Code American Samoa, section 9.0103 (1961).
. See note 7, supra.
. S.107, 15thFono, 3d Sess. (1978); H.157, 15thFono, 3d Sess. (1978); H.220, 15thFono, 4th Sess. (1978); S.2, 16thFono, 1st Sess. (1979); S.59 , 16thFono, 2nd Sess. (1979); H.119, 16thFono, 2nd Sess. (1979); S.97, 16thFono, 3d Sess. (1980). | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485443/ | MURPHY, Associate Justice.*
This cause came before the Court on an expedited hearing on November 28th, 1980. Both parties were given five days to file proposed orders which the Court could then issue. Neither party has filed a proposed order and I take it upon myself to issue the following:
The Immigration Board of American Samoa is restrained from taking any further action to deport Appellants without further order of this court. The record before the Court consists of a "petition for stay pending appeal," an "order allowing voluntary departure from American Samoa," and an "Authorization to remain in American Samoa." The petition rambles and the order allowing voluntary departure makes so little sense as to be void on its face. If the American Samoa Government expects to have its orders enforced it is going to have to make findings of fact and state the authority upon which it is deporting these American Citizens which it refers to as aliens. In general, once the Board has made its findings and stated the authority under which it intends to deport any person, the individual who will be deported can then file a brief with the Appellate Division of this court stating the facts as he understands them and citing the law he believes applicable to the deportation. Without those two steps, it is impossible for any court to make a final determination of cases such as thepe.
If there were a hearing in this case at which notes were taken, a transcript should be filed within 60 days of this date. If no reporter was present at the hearings, or if there were no hearings in this matter, Appellee has 60 days to file findings upon which it intends to deport Appellants, and the authority upon which it relies to do so. If the Government does not file these pleadings within 60 days, it will be deemed to have reconsidered its decision to deport Appellants, and the Court will consider, ex parte, the relief prayed for in Appellant’s prayer.
Upon the filing of the pleadings above, Appellants will have 21 days to file a coherent opening brief conforming to the requirements of the Rules of Practice of the High Court of American Samoa. . Should such brief not be filed within the prescribed time, Appellants will be deemed to have waived their right to appeal the decision of the Immigration Board, and the Court will dissolve the restraining order presently in effect against Appellee.
Sitting alone pursuant to 5 ASC 409(d). | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485444/ | PER CURIAM.
This case concerns a claim for Workmen's Compensation benefits by the survivors of an employee of the American Samoan Government who died of a heart attack while at work during his normal working hours. The Workmen's Compensation Commission awarded benefits to his wife and children. Appellant appealed this decision to the Trial Divisin of this Court on the basis that an insufficient causal connection was shown between decendant's death and any work-related cause. In fact, no evidence was introduced about the cause of the heart attack by either side. The trial court affirmed the decision of the Comission, holding that the presumption codified in 24 ASC 452 operated to shift the burden of proof on the issue of causation to Appellant, and required Appellant to meet that burden by substantial evidence. As Appellant had made no showing that the heart attack was caused by other than work-related factors, the Chief Justice held that it must be presumed to have been caused by a work-related accident. We affirm.
The section in question here was taken verbatim from a provision of the Longshoremen's and Harbor Workers’ Compensation Act (18 USC section 901 et.seq.), 18 USC section 920. Thus, any law on that section must be afforded great persuasive weight in interpreting the section at issue here. Of the cases cited by Chief Justice Miyamoto in his decision below, Wheatly v. Adler, 407 F.2d 307 (D.C. Cir en banc 1968) is particularly close to the facts in the case at bar. In Wheatley, another worker died of a heart attack of indeterminate cause. The circuit court held the presumption to be effective in that situation (see opinion below at p.5).
For the above reasons, and for the others stated by Chief Justice Miyamoto in his decisions, the judgment is AFFIRMED. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485445/ | MURPHY, Associate Justice.
Petitioners A.P. Lutali and Paopaoailua M. Mulitauopele, through their counsel have petitioned this court to issue a criminal information under Rule 15 of the Rules of Practice of the High Court of American Samoa to be brought against the defendants. The question of law before this court can be stated as follows: Can the Chief Justice of the High Court of American Samoa issue a rule under statutory authority that permits a private citizen to institute a prosecution if the Attorney General will not prosecute the case? This court has determined that Rule 15 is invalid and for the reasons given below, we grant the defendants’ motion to dismiss.
STATEMENT OF THE CASE
On April 30, 1981 A.P. Lutali and Paopaoailua M. Mulitauopele brought a petition under High Court Rule 15 to issue a criminal information against Joseph M. Pereira, Aleki Sene and Ace Tago. This petition alleged that on October 30, 1980 these defendnats, in violation of Title 3, section 1511 of the American Samoa Code (1973 Edition) did use their public office to influence the election of a political candidate. Lutali then sought an investigation and ensuing information from the Attorney General. The Attorney General refused to file an information against defendants.
Under authority of the provisions of High Court Rule 15, A.P. Lutali and Paopaoailua M. Mulitauopele have petitioned this court to issue a criminal information, as the Attorney General has specifically refused to prosecute the case.
CONSTITUTIONAL GUARANTEES TO TERRITORIAL GOVERNMENTS
vc -it
In an unincorporated territory there is a rebuttable presumption *59favoring the appliation of the constitution which may be overcome by proof that the application of a specific provision in that territory would be impractical or anomalous. It is established that where the right is crucial to the individual, the territory has a heavy burden to justify non-application. Constitutional protections may not be defeated by mere inconvenience or expediency. See Laughlin, The Application of the Constitution in United States Territories; American Samoa, A. Case Study, 2 U. Haw. L. Rev. 313 (1980). The Appellate Division of the High Court of American Samoa, in Craddick vs. Territorial Registrar, AP No. 010-79 (1980), stated: "(T)he constitutional guarantees of due process and equal protection are fundamental rights which do apply in the Territory of American Samoa."
THE CONSTITUTIONAL GUARANTEE OF SEPARATION OF POWER
One of the aspects of the United States Constitution that the framers of the Samoan Constitution incorporated was that of separation of powers. Rev. Const, of Am. Samoa, art. II, art. Ill, art. IV. The importance of the tripartite structure is well established in cases arising in the United States. See, e.g., Rescue Army v. Municipal Court of Los Angeles, 331 U.S. 549 (1947); Laisne v. Cal State Board of Optometry, 19 Cal 2d 831, 123 P.2d 457 (1942). The American Samoan people incorporated this framework into their constitution and underscored its importance, since the U.S. Constitution does not impose the doctrine of separation of powers upon the states. Mayor of Philadelphia v. Educational Equality League, 415 U.S. 605 (1974).
In performing judicial functions, the courts must be careful to keep within the constitutional limits of their own powers and to proceed by due process of law. Dillman vs. Tedder, 123 Fla. 188, 166 So. 590 ( ). The guarantee of a judiciary separate from the executive branch is necessary and appropriate.
The Constitutioon specifies a separate judiciary. Revised Constitution of American Samoa, articles II, III, and IV. In maintaining its separate identity, the judiciary should cautiously abstain from an invasion or usurpation of the powers' which are properly exercisable by any other departments of the government. State ex rel. Davis vs. Stuart, 97 Fla. 69, 120 So. 335 (1939).
AUTHORITY AND DISCRETION TO PROSECUTE LIES WITH THE EXECUTIVE BRANCH
The Revised Constitution of American Samoa is modelled after .the federal constitution. By article 30 of the Declaration of Rights of the Constitution, the government is divided into three departments and it is provided that "the legislative department shall never exercise the executive and judicial powers, or either of them: The executive shall never exercise the legislative and judicial powers, or either of them: the judiciary shall never exercise the legislative and executive powers, or either of them..." (emphasis added).
*35* *3í- *3£*
The prosecutorial duties in this territory have been vested in the office of the Attorny General. "All criminal prosecution shall be brought in the name of the Government of American Samoa. The Attorney General shall prosecute all criminal cases before the High Court." Section 46.1220, . ASC (1963). Although there is no law in this territory on this specific . issue we are persuaded by the rationale of the court in Kansas v. Galen Finch, 128 Kan 665, 280 P. 910, 911 (1929), which stated: "[A]s a rule, the attorney *60general has power both under the common law and by statute to make any disposition of the state’s litigation that he deems for its best interests, for instance, he may abandon, discontinue, dismiss, or compromise it." In U.S. vs. Cox, 342 F.2d 167, the Fifth Circuit stated that "the Attorney for the United States is an executive officer of the executive department that exercises discretion as to whether or not there shall be a prosecution in' a particular case."
In a more recent case, the Second Circuit stated guidelines for the federal and state courts which can serve as a model for our territorial court. Quoting Inmates of Attica Correctional Facility v. Rockefeller, 477 F.2d 375 (1973): "Substitution of a court's decision to compel prosecution for the United States Attorney’s decision not to prosecute, even on an abuse of discretion standard even if limited to directing that prosecution be undertaken in good faith, would be unwise." Id. at 380-81. "Federal Courts have traditionally and, to our knowledge, uniformly refrained from overturning, at the instance of a private person, discretionary decisions of federal prosecuting authorities not to prosecute persons regarding whom a complaint of criminal conduct is made." Id. at 379. Judicial regulation of prosecutorial discretion "would place the reviewing court in' an undesirable and injudicious posture of becoming superprosecutors." Ibid.
REVIEWABILITY OF PROSECUTORIAL DISCRETION
* * *
In almost every jurisdiction, there have been numerous attempts to employ a writ of mandamus issued by the judiciary to compel an executive to act. This remedy has obvious problems inherent in it, due to the separation of powers doctrine. The courts are always reluctant to award or sustain a writ of mandamus against an executive officer. Lane v. Hoglund, 244 U.S. 174 (1917). All courts agree that the separation of powers doctrine was to insure a system of checks and balances. Therefore in order to keep the checks balanced, the state courts, at any rate, have universally recognized that mandamus will not lie if the act of a state executive officer, the performance of which is sought to be enforced, is not ministerial merely, but involves the exercise of judgment and discretion. See Bryant & Chapman, Co. v. Lowell, 129 Conn. 321, 27 A.2d 637, 639 (1942); State ex rel. Burnquist v. District Ct., 141 Minn. 1, 168 NW 634 (1918); Blalock v. Johnson, 180 SC 40, 185 SE 51 (1936).
It is clear to this court that a writ of mandamus is not readily available to a petitioner who seeks to compel an executive officer to act in a capacity that involves discretion. * * * We agree with the Ninth Circuit Court of Appeals, which stated:. "(W)e will not interfere with the Attorney General's prosecutorial discretion unless it is abused to such an extent as to be arbitrary and capricious and violative of due process. United States v. Welch, 572 F.2d 1359, 1360 (1978).
HIGH COURT RULE 15
This court acknowledges the authority from which High Court Rule 15 was promulgated. Section 3.0202 ASCA (1981). However, Section 3.1002 which delineates the .powers and duties of the judiciary, states: "(c) Chief Justice shall have administrative supervision over all the courts of American Samoa and their Judges, Magistrates, Clients and other officers. He may make rules regulating the pleadings, practice, procedure and all conduct of business in the appellate, trial, probate, land and titles division of the High Court and District Court."
We recognize that the High Court must, in an administrative *61'capacity, issue rules to effect a procedurally efficient court. However, these rules cannot usurp or "exercise powers exclusively delegated to another" department. State ex rel Bryant v. Akron Metropolitan Park Dist., 120 Ohio 464, 166 NE 407, 410 (1929), affd. 281 U.S. 74 (1930). The Fono has charged the Attorney General with the authority to exercise his prosecutorial discretion. This discretion lies solely within the executive branch. "Matters of policy effecting the prosecution of a criminal case are not within the province of the courts but are for the determination of the district attorney". Re-Application of Berman, 105 Cal. App. 270, 287 P 373, 375 (1930). This court cannot by rule authorize a person, unfettered by the due process limitations on the government, to issue a petition accusing another and subjecting the accused to the criminal processes of the court. See, e.g., Bolln vs. Nebraska, 176 U.S. 83 (1900); Jordan vs. Massachusetts, 225 U.S. 167, (1912), Crowley vs. United States, 194 U.S. 461, (1904);
•31- *$$•, ■}£
As additional support for this decision, we notte that there is a conflict between High Court Rule 15 and Section 46.1002 A.S.C.A. (1981). High Court Rule 3 states that in case of conflict,- • resolution of such a conflict shall be in the following order:
1. Revised Code of American Samoa
2.- Rules of High Court of American Samoa
3. Federal Rules of Civil and Criminal Procedure.
A conflict between High Court Rule 15 and Section 46.1002 is apprent to this Court. Under High Court Rule 3, Section 46.1002 has precedence. This Court confirms the prosecutorial authority of the Attorney General.
IT IS ORDERED that the defendants’ motions for dismissal are hereby granted. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485446/ | GARDNER, Chief Justice.
■St -5Í-
MOTION TO DISMISS THE INFORMATION
The basis for the motion was that the magistrate erred under Rule 5.1 of the Rules of the Criminal Procedures of American Samoa in refusing to consider defendant’s motion to suppress under Fourth Amendment grounds. That section provides: "Objections to the evidence on the ground that it was *62acquired by unlawful means are not properly, made at the preliminary examination» Motion to suppress must be made to the High Court..."'
This Rule, of course, is simply an adoption of the Federal Rule as set forth in the Federal Rules of Criminal Procedures, Rule 5.1. This tule has never ben a subject of a direct attack, but has been approved, albeit obliquely, in a series of cases. See Giordenello v. U.S., 357 U.S. 480; Costello v. U.S., 350 U.S. 359; U.S. v. Blue, 384 U.S. 251.
However, the defendants contend that American Samoa has a peculiar situation which would distinguish it from the Federal Rule since the Exclusionary Rule here exists by constitutional mandate and is not court imposed as in the Federal system.
Section 5 of the American Samoa Revised Constitution, after setting forth the provisions of the Fourth Amendment of the United States Constitution provides: "Evidence obtained in violation of this section shall not be admitted in any court." As indicated, it is the defendants' contention that since the Federal Exclusionary Rule is court mandated and the American Samoa Rule is expressly set forth in the constitution, the approval by the courts of the Federal Rule has no application and that under this constitutional mandate, they were entitled to press ■their Fourth Amendment claims in the District Court. They contend that the District Court is a "court," and therefore they have a right under this section to present and litigate their Fourth Amendment contentions in that court as well as in this court. Thus, they demand two bites of the apple, one before the magistrate and one before the High Court. While this procedure is approved by statute in some state jurisdictions, we decline to apply it to this jurisdiction under some kind of constitutional interpretation ploy. Insofar as this argument is concerned, we are singularly unimpressed and equally unpersuaded.
A constitution is not a document etched in steel. It is a flexible, vital living document drafted for the operation and perpetuation of government and able to accommodate itself to changes in the lives of those who must live under it. A constitution is designed to meet new conditions that may arise in the progress of a community. It must be interpreted in such a flexible way as to bring it in accord with the public interest. Ullman v. U.S., 350 U.S. 422. Such is the'history of the United States Constitution. For example:
The first amendment prohibits any abridgment of the freedom of speech. This is in absolute terms, yet one only has to remember the words of Justice Holmes that that amendment gives no one the right to shout "fire" in a crowded theater. Additionally, assaultive language and pornography are subject to control inspite of the seemingly absolute language of the amendment.
So too, the right of the people to bear arms (amendment II) is being infringed daily and no one contends that this is a violation of the constitution.
The Fifth Amendment provides that no one shall be held to answer for a serious crime except upon a presentation or indictment of a grand jury. Obviously, this seemingly absolute command is nothing of the kind. Perhaps 90 percent of all criminal prosecutions in the United States are by the complaint-preliminary information manner. As a matter of fact, as we all know, there is no such thing as a grand jury in American Samoa and if Article 5 were to be applied, literally, a criminal could never be tried here. (See American Samoa vs. Willis, 1 ASR 675.)
We point out these rather obvious items because they reflect the concept that a constitution, to exist throughout the years and centuries, *63must be able to adapt itself to contemporary situations and must be interpreted in a flexible way for the reasonably efficient operation of the community.
The fact that this language appears in this constitution as contrasted with the existence of the Exclusionary Rule by court fiat is, in our opinion, immaterial.
The United States Supreme Court has long since held that the Exclusionary Rule need not cover all proceedings or all persons. "As with any remedial device, the application of the Rule has ben restricted to those areas where its remedial objectives are thought most efficaciously served." U.S. v. Calandra, 94 S.Ct. 613, 620. In dealing with grand jury proceedings, the court held that an extension of the Exclusionary Rule would seriously impede the grand jury. "Because the grand jury does not finally adjudicate guilt or innocense, it has traditionally been allowed to pursue its investigative and accusatorial functions unimpeded by the evidentary and procedural restrictions applicable to a .criminal. Permitting witnesses .to invoke the Exclusionary Rule before a grand jury would precipitate adjudications of issues hitherto reserved for trial.on the merits and -would delay and disrupt grand jury proceedings. Suppression hearings would halt the orderly progress of an investigation and might necessitate extended litigation of issues only tangentially related to the grand jury's primary objective." U.S. vs. Calandra, 94 S.Ct. 613, 620. The court went on to explain that while suppression might be an important method of effectuating the Fourth Amendment, it does not follow that the Fourth Amendment requires adoption of every proposal that might deter police misconduct. The court felt that it would be unrealistic to assume that application of the Exclusionary Rule to grand jury proceedings would significantly further the goal of that rule.
Calandra dealt with the grand jury. As far as we are concerned, the rationale of Calandra is equally applicable to preliminary proceedings before a magistrate. We see nothing to be obtained by imposing the Exclusionary Rule on those proceedings. This would do nothing to deter illegal police conduct and would seriously impair the magistrate's ability to carry out his responsibilities in winnowing out needless prosecutions and seeing to it that only those against whom the prosecution could show probable cause be brought to trial.
A magistrate does not sit as a tribunal which is empowered to' conduct a trial. The District Court may, as a District- Court, conduct trials of misdemeanors and certain civil matters. However, when the District Court Judge becomes a magistrate for the purpose of conducting a preliminary examination, he merely decides whether or not a defendant should be held for trial. Courts have jurisdiction to try cases. A magistrate does not. A magistrate is not a court. Therefore, the word "court" in Section 5 of the American Samoa Revised Constitution does not apply to a magistrate conducting a preliminary examination. A magistrate exercises no trial jurisdiction when conducting a preliminary examination. This is not simply a matter of semantics. It is basic and fundamental. The magistrate, in short, acts as an arm of the High Court in winnowing groundless and needless cases that would otherwise appear before the High Court and ascertains that only those against whom probable cause has been shown should be held for trial. The magistrate acts as a substitute for a constitutionally mandated grand jury. The only distinction is one which inures to the benefit of the defendant inasmuch as he is allowed to cross examine witnesses at a preliminary and is not allowed to do so before a grand jury.
In short, we can find no distinction between the Exclusionary Rule as *64mandated by- the Supreme Court of the United States and that mandated by the Constitution of American Samoa and find no constitutional flaw in Rule 5.1, Criminal Court Rules of American Samoa.
Therefore, the motion to dismiss the information will be denied. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485449/ | GARDNER, Chief Justice.
In this case we hold that the electronic recording device used in the District Court suffices for compliance with section 3.0309 ASCA.
Section 3.0309 reflects a common judicial practice involving appeals from inferior courts to Appellate tribunals. If there is an adequate record, normal appellate practices prevail, with a review of the record for correctness or in some cases for institutional or precedential purposes. If there is no adequate record, then of course, a trial de novo is essential because without an adequate record there is nothing to review. So much for the obvious.
To carry out this concept, section 3.0309 provides that where there is a "stenographic record" the appellate division of the High Court reviews the record. If there is no such record a trial de novo is mandated in the trial division of the High Court. Defendant contends that since the phrase "stenographic record" is used, an electronically produced record does not comply with the section. We disagree. The operational word is "record." "Stenographic" is merely descriptive.
Appellant Tuilefano Vaela’a was charged with disturbing the peace in violation of ASCA 46.4501. He was found guilty in a bench trial in the District Court. There was a stenotype operator present taking notes for part of the proceedings. Part of the proceeding was recorded by means of an *71electronic recording device maintained and operated by a court employee. Notice of Appeal was filed and the defendant’s motion for a trial de_ novo was made. We deny that motion.
At one time in our judicial history, stenographers were used as court reporters and a few doddering oldsters (including the author of this opinion) can remember when stenographic court reporters squiggled madly with either Pittman or Gregg hieroglyphics on stenographic pads to maintain a record of all testimony. This practice fit the literal description of a stenographic reporter as the word "stenographic" is defined by Webster as writing in shorthand, stenography being the art or process of writing in shorthand. Shorthand notes were taken which were subsequently transcribed into typewriten records. Then, during the late 1930's or early 1940's, these stenographers were replaced by the more effective stenotype operators using machines to record speech by means of phonograms, by which a typed symbol is used to represent a word, syllable or single speech sound. After the operator takes down the "code" it is. transcribed into a typed written' record like that of the early stenographic court reporters. The "record" is non-existent until the reporter transcribes, types, . and certifies it.. The point of all this is that long before the enactment of section 3.0309 in 1979, when the District Court was established, stenographic reporters were a thing of the past.
Now, over the violent protest of court reporters (who face loss of employment) some jurisdictions are using electronic recording devices. These were pioneered in the military and adopted for the first time for civilian use in the then territory of Alaska. Other jurisdictions, for example Hawaii, have followed. Under this process the electronic recorder actually reproduces the oral statement of the individual which is then reduced to a written record. The system employed by the District Court is an electronic recording device designed specifically for use in the courtroom. (Model Lanier). It utilizes a four track system with a separate erasure mechanism, thereby insuring against an accidental destruction of the tape material.* The court personnel are trained in the system's maintenance and operation. For additional accuracy the reviewing court can, if it wishes, actually listen to the spoken words.
The point of all this, is that the phrase "stenographic record" is a phrase of art which realisticaly can only mean a process by which an accurate record may be made. Literally construed, no record since the late 1940's could be classified as one by a "stenographic reporter" since that process had long since given a way to the stenotype operator. The key word is "record" not "stenographic".
Legislation is enacted in broad strokes and interpreted and applied by courts and administrative agencies in a realistic manner in order to adjust to changing conditions, at the same time keeping intact the basic purpose of the Legislation. Here, the basic purpose is the preservation of a record. This is done by the use of the electronic recording device. It appears to us that the basic purpose of the section is the preservation of a record, a record that may be produced by any of several methods but results in the same product -a typewritten, certified transcript of the court proceedings.
Therefore, the defendant's request for a trial de novo is denied. The appellant is given twenty days to obtain a transcript of the proceedings in *72the District Court, thereafter the' appeal is to follow normal appellate process.
If Nixon had used one he might still be president. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485727/ | We find the facts to be as follows:
(1) In 1946 the children of Sekio Avegalio (Rita, Fa'asau, Failautusi, Fuapopo, Su'e, Fiapito, and Ve'a) registered land called Vaosa near the village of Pava'ia'i.
(2) The land had been purchased from a person named Pouli sometime after 1930. A survey and a map had been prepared in 1930 by B.F. Kneubuhl. The description of the land defines its point of beginning as a point on the boundary of land belonging to Uo. This Uo land is depicted on the southern boundary of Vaosa. The accompanying map identifies other boundaries as a stone wall to the *97southwest, property of Tua to the north, and property of Leatumauga to the southeast.
(3)Members of the Avegalio family now occupy a piece of land which they call Vaosa, and which they claim to be the same land they registered in 1946.
(4) For at least thirteen years Leatumauga and members of his family have also been using part of the tract which the Avegalios call Vaosa. They claim this is part of their land called Talifia'ai.
(5) In 1975 Leatumauga attempted to register a survey of Talifia'ai. Failautusi Avegalio objected on the ground that the survey encroached on Vaosa. The Court initially ruled for Leatumauga on the ground that a resurvey of Vaosa commissioned by Avegalio had failed to close and therefore could not be considered as evidence.
(6) On rehearing, however, the Court reversed itself, stating that "[ajrguments at the hearing indicate that: (1) if the plaintiff is allowed to register land 'Talifia'ai,’ then 'Talifia'ai’ will encroach upon the adjacent registered land known as 'Vaosa’; (2) the old survey of 'Vaosa’ does close. . . . Further, it appears that matters involving retracing and closing of survey are readily explainable by competent evidence . . . ." Leatumauga v. Avegalio, LT No. 1514-75, Decision on Motion for New Trial at 2. The Court appears to have been referring to counsel’s argument in his motion for reconsideration that a sight was missing in the 1930 map and that the 1975 surveyor had merely added this sight so that the map would close. The 1930 map does appear to be missing a sight that is contained in the 1930 description of the land.
(7) The 1975 case was set for retrial but was dismissed without prejudice when Leatumauga and his counsel failed to appear for the scheduled trial.
(8) A subsequent resurvey commissioned by Avegalio in 1978 does close and does conform to the written description of the registered land, with adjustments from magnetic to true north. The 1978 map shows an overlap between the land Vaosa registered by Failautusi Avegalio and his brothers and sisters, and the land called Talifia'ai which Leatumauga had attempted to register in 1975.
*98(9) Failautusi Avegalio then brought an action to quiet title against Leatumauga. That case, LT No. 35-78, was dismissed after plaintiffs and their counsel failed to appear at a scheduled hearing on a motion to set a trial date.
(10) Both the 1930 map and the 1978 map show a 203 foot course along a stone wall on the southwest boundary of Vaosa.
(11) The 1978 map also shows a stone wall on the northwest boundary at a right angle to the other stone wall. This stone wall is depicted as the boundary between Vaosa and land occupied by Tuana'itau, who is sometimes called Tua. This land corresponds to the area designated "Tua" on the 1930 map.
(12) The tract presently occupied by the Avegalios which they call Vaosa is bounded on the southwest and the northwest by stone walls at right angles to each other. The land on the other side of the northwest stone wall is occupied by Tuana'itau.
(13) The 1978 survey also shows land designated "Pele" slightly to the northeast of Vaosa. There is a small tract occupied by a Mr. and Mrs. Pele, relatives of Avegalio, slightly to the northeast of the tract now occupied by the Avegalios as Vaosa.
(14) To the south and southwest of the tract claimed by the Avegalios as Vaosa is land also occupied by the Avegalios which they call Ulutolu. Much of the land in the neighborhood is known as Ulutolu. The land called Ulutolu and occupied by Failautusi Avegalio was once claimed by Uo. See Kuki v. Heirs of Avegalio, LT No. 190-1963. This land is in roughly the same place relative to the tract claimed by the Avegalios to be Vaosa as the land designated "Uo" is relative to Vaosa on the 1930 map.
(15) There also appears to be a house within the tract claimed by Avegalio which is occupied by a man named Nelesoni.
The only issue in the case is whether the land now claimed by Avegalio is the same land he and his brothers and sisters registered in 1946. *99Defendants admit that Avegalio and his brothers and sisters did register some land called Vaosa in the vicinity, but say it must be elsewhere, probably further back from the road.
Aside from the testimony of Mrs. Leatumauga that her husband’s family has long occupied this land, the only evidence adduced by defendants is the testimony of Tuana'itau (who was both counsel and a witness for Leatumauga) that as a young man he used to buy pancakes from a Mrs. Ava who lived in a house on this land. Tuana'itau testified that Mrs. Ava was not related to Avegalio but was related to Nelesoni. He argues that the Avegalio tract must therefore be further back from the road than the Nelesoni house, which would also put it further back than the Leatumauga claim.
If the Court were to hold, however, that Vaosa must be further back from the road than Avegalio says it is, it would be necessary to find some place further back from the road bounded by (1) land once owned or claimed by Uo on the south; (2) a stone wall on the southwest; (3) another stone wall, at a right angle to the first, on the northwest, with land occupied by Tuana'itau on the other side; (4) land occupied by Pele slightly to the east; and (5) land occupied by Leatumauga on the southeast. It seems highly unlikely that there could be two such places; Tuana'itau, who is quite familiar with the neighborhood, was unable to suggest any.
We must conclude either that Tuana'itau was mistaken about the exact location of the house from which he once bought pancakes, or that there is some explanation for these purchases other than this not being the same land registered by the Avegalios in 1946.
Accordingly, Leatumauga and members of his family are enjoined from going on any part of the land called Vaosa as depicted in the 1978 survey commissioned by Avegalio (Drawing No. 6-040, Oct. 6, 1978) and from disturbing the peaceful possession thereof by Rita, Fa'asau, Failautusi, Fuapopo, Su'e, Fiapito, and Ve'a Avegalio, their heirs, successors, and assigns.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485728/ | On Order to Show Cause, Motion to Dismiss or in the Alternative for Joint Liability, and Motion for Relief From Judgment:
I. Facts and Procedure History
In 1980 the Bank of Hawaii filed this action in interpleader. As a result of a disagreement between the two principal parties, Congregational Christian Church in Samoa (CCCS) and Congregational Christian Church in American Samoa (CCCAS), the *102Bank claimed that it did not know the true owner of certain funds it held on deposit.
The Bank deposited certain funds with the Court and sought an order compelling the defendants to interplead and discharging the Bank from further liability. On June 16, 1980, the Court ordered that certain other funds in the amount of $29,607, held by the Bank of Hawaii at its Waikiki branch "be held as part of the money entity." On June 26 this order was put in writing. The funds in Waikiki were ordered "to be included in the sums of moneys herein litigated between the Church in American Samoa and the Church in Western Samoa. The said amount of $29,607.09 plus any interest earned therefrom shall not be dispursed [sic] by anyone in any manner or form unless ordered by the Court."
At the June 16 hearing the Court also granted a motion to dismiss Rev. Faagau Tulafono, then the assistant treasurer of CCCS and the named holder of the Waikiki bank account, as a defendant in his individual capacity, since he "disclaims and has no personal interests" in any of the funds.
On June 27, 1980, the Court signed an order discharging the Bank of Hawaii from further liability. The Court noted that it retained jurisdiction for the purpose of determining the rights of the respective defendants "in and to the funds on deposit in the registry of this Court."
Four years later, on June 27, 1984, counsel for CCCAS moved that the Court order Rev. Tulafono and CCCS to withdraw the $29,607 on deposit in Waikiki, plus accumulated interest, and to deposit the money in the registry of the Court. On July 9 the motion was denied. Although a transcript of that hearing is unavailable, the notes of counsel for CCCS reflect that the motion was denied on the ground that the money would earn a higher rate of interest in Waikiki than in American Samoa. No other party disputes this.
On November 27, 1987, CCCS and CCCAS agreed to a stipulated judgment. The stipulation provided in pertinent part that “[a]11 funds remaining with the Court registry in this matter, to wit, $19,579.72 and the $29,607.90 deposited with the Waikiki Branch of the Bank of Hawaii ... by Elder Rev. Tulafono Fa'agau plus interest accumulated since *103deposit shall be paid over to the CCCAS." On November 30 the Court signed this judgment.
Shortly thereafter CCCAS presented the Bank of Hawaii with a copy of the judgment and requested the $29,607 plus interest. The Bank responded that the money was not in the Bank and had not been there for some time. The Court later learned that Rev. Tulafono had moved the money from the Waikiki Branch to the American Samoa branch of the Bank of Hawaii, and had subsequently withdrawn and spent it. No party disputes Rev. Tulafono’s contention that he spent the money for church (CCCS) purposes.
II. The Order to Show Cause
Counsel for CCCAS then moved for an order to show cause why the Bank of Hawaii should not be held in contempt of the Court’s orders of June 27, 1980, and November 27, 1987. The first of these orders provided that the funds in Waikiki were to be included in the funds litigated and were not to be disbursed by anyone. The second order provided that the funds should be disbursed to CCCAS in accordance with the stipulated judgment.
III. The Bank’s Motion "to Dismiss or for Joint Liability"
The Bank has moved to dismiss the order to show cause on several grounds. The Bank’s primary contention is that the Court’s June 26, 1980, order was a clumsily drafted attempt to order the Waikiki money deposited in the registry of the Court. This contention is contrary to the clear language of the order and to the most obvious inference from the circumstances surrounding it. It is clear that the Court wished the Waikiki money to be "included" in the interpleaded funds only in the sense that it was to be left right where it was pending the ultimate outcome of the case. Indeed, in 1984 the Court denied a motion by CCCAS to deposit the funds in the registry of the' Court. The denial of such an order makes no sense if it was, as counsel for the Bank now contends, exactly what the Court had already ordered back in 1980. The Court minutes reflect that counsel for the Bank, as well as for CCCAS and CCCS, were present at the 1984 hearing. It is obvious that all counsel agreed with the obvious premise of the CCCAS motion: that the money was still safely in the Waikiki branch of the Bank of Hawaii.
*104The Bank also maintains that the Court’s 1987 judgment implicitly incorporated a July 1987 stipulation between the CCCS and the CCCAS according to which CCCAS would receive "the funds in the Bank of Hawaii" as of that date. Since the Waikiki funds had already been withdrawn by then, the Bank argues that CCCAS lost any right to them when it agreed to this stipulation. This argument ignores the fact that CCCAS had a right to rely on compliance by all parties with the Court’s 1980 order that the Waikiki funds not be disbursed.
The record reflects that these funds were a continuing source of interest and concern to CCCAS from 1980 through 1987. It is unrealistic to assume that CCCAS meant to waive its claim to these funds merely because it agreed to accept "the funds in the Bank of Hawaii" instead of “the funds that are in the Bank of Hawaii assuming the Bank has not wrongfully disbursed them." Moreover, the November 1987 stipulated agreement on which the judgment is explicitly based does specifically refer to the $29,607 that had been on deposit in Waikiki.
Finally, although the Bank does not raise this as a ground for its motion, we note that the Bank’s discharge from further liability in connection with the interpleaded funds (signed by the Court on June 27, 1980) was obviously not intended to discharge the Bank from continuing compliance with the order the Court had signed the day before (June 26) prohibiting the disbursal of the Waikiki funds until further notice.
In the alternative the Bank argues that it is jointly liable with CCCS, and should be indemnified by CCCS for any money it is required to pay to CCCAS. This seems obviously correct. The Court order prohibiting the Bank from disbursing the funds also prohibited CCCS or Rev. Tulafono from withdrawing them. It is undisputed that the funds were received by Rev. Tulafono and used for CCCS expenses. Both parties who violated the order thereby obligated themselves to compensate the party for whose protection the order was made--that is, the party ultimately held entitled to the funds. As between the two parties who violated the order, the party who received and spent the money must indemnify the party who merely released it.
*105IV. The CCCS Motion for Relief from Judgment
CCCS has moved for relief from the judgment awarding the Waikiki funds to CCCAS, on the ground that when the parties stipulated to this judgment they did so under a mutual mistake. But there was no mutual mistake. It is true that CCCAS and some representatives of CCCS seem to have assumed that Rev. Tulafono had not violated the Court’s order. Rev. Tulafono was an officer of CCCS, its chief agent in connection with the safekeeping and disposition of the Waikiki funds, and a participant in the negotiations leading up to the stipulation. An institutional party is chargeable with the knowledge (and responsible for the actions) of the agents who conduct the transactions that become the subject of litigation. See Development Bank v. Ilalio, 5 A.S.R.2d 110, 124 (1987). CCCAS is the only party who can claim the benefit of a mistake with regard to facts within the sole knowledge of CCCS and its officers, and CCCAS does not wish to disturb the judgment.
CCCS also argues that it agreed to the November 1987 stipulation under a unilateral mistake, not understanding that the stipulation would entitle CCCAS to the Waikiki funds. The only evidence for this is (1) an affidavit from Rev. Tulafono, saying that he had always regarded the Waikiki funds (contrary to the clear language of the 1980 order) as outside the scope of this litigation; and (2) an affidavit from the current General Secretary of CCCS stating that "my predecessor reviewed [the November 1987 stipulation] together with members of the Committee that agreement and approved its execution by then counsel Aitofele Sunia," but that "my predecessor was not fully aware of all previous agreements between CCCS and CCCAS when the stipulated agreement was approved."
CCCS submits neither an affidavit from the General Secretary who actually conducted the negotiations, and whose awareness CCCS wishes to put at issue, nor an explanation of why it is unable to present such an affidavit. Counsel for CCCAS, on the other hand, submits an affidavit that he specifically apprised the then General Secretary that the Waikiki funds were subject to the stipulation. Moreover, the language of the stipulation itself clearly and prominently refers to the Waikiki money.
*106If the wrongful removal of the funds had been discovered prior to the entry of judgment and CCCAS had moved to require CCCS to replace them, it would have been difficult to construct an argument for the denial of the motion. The position of CCCS at present, after agreeing to a stipulated judgment with the advice of counsel, would appear to be weaker rather than stronger than before. Relief from a judgment is an equitable remedy, and it would be grossly inequitable to allow CCCS such relief (to the corresponding detriment of an innocent opposing party) on the sole ground of its own violation of an unequivocal court order.
Conclusion
The Court finds the failure of the Bank of Hawaii to comply with the Court’s orders owing to confusion rather than wilfulness, and therefore declines to find the Bank in contempt. The Bank is, however, obliged by the Court’s 1980 and 1987 orders to surrender to CCCAS an amount equal to $29,607.90 plus the interest that would have accrued on a certificate of the type in which the funds were held, and further denial of this obligation would constitute contempt.
The primary obligor, however, is CCCS, which received the benefit of the funds in question. CCCS and the Bank are jointly and severally liable to CCCAS, and CCCS must indemnify the Bank for any amounts it is required to pay CCCAS.
CCCS has not raised the issue of its rights, if any, against Rev. Tulafono, and we express no opinion on this question.
The order to show cause is dismissed. The motion for relief from judgment is denied.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485729/ | On Motions for Reconsideration and Relief From Judgment:
Moea'i moves for reconsideration of our decision rejecting most of his claim to the land called Mapusaga. [8 A.S.R. 85 (1988).] Tuia'ana also moves for reconsideration, although our decision awarded him all of the land he claimed within the Moea'i survey. Moea'i also makes a motion for relief from the judgment on the ground of new evidence.
We deal first with the two Moea'i motions, then with the Tuia'ana motion.
*109I. The Moea'i Motion for New Trial
Moea'i first asserts that the Court erred "in its judgment that Moea'i failed to prove his family’s claim." This is an objection to the trial court’s findings of fact. In this case our finding was based on our judgment of the credibility of the claimant’s witnesses. Although Moea'i witness Valoaga Moananu provided a helpful summary of the general history of the area, the remainder of the testamentary evidence offered by Moea'i was either irrelevant or unbelievable or both.
The heart of Moea'i’s claim was that all nine of the tracts leased to the Church in 1902 or 1903,1 which the lease identified as belonging to *110the chiefs of Faleniu, were in fact the property of Moea'i. This claim would require us not only to adopt a strained interpretation of the language of the lease itself, but also to disbelieve the testimony of every other witness on matters such as the circumstances of the signing of the lease and who received the money when the land was sold in 1944. As we pointed out in our original opinion, this position is also inconsistent with the testimony of a former Moea'i titleholder in a 1949 High Court case and with the claims made by the present Moea'i himself in 1966.
To cite just one other example of what seemed like a deliberate attempt to mislead the Court, Moea'i put on an elderly witness to testify that his mother and another female relative were buried on the land. Samoans have traditionally been buried on their family’s communal land, and the importance of discussing family gravesites in a Samoan land case is to establish long occupancy and a tradition that the land belongs to the family whose members are buried there. On cross-examination, however, it was revealed that the two people in question were buried in the Mormon cemetery along with scores of other people with no claim to ownership of the land.
Moea'i also observes that the Court’s opinion, in contrast to Moea'i’s testimony, does not account for each and every one of the nine names of land listed in the 1903 lease --- or, as it now appears, in the 1903 copy of the 1902 lease.
This was a matter that disturbed the Court, and on which the judges themselves asked some questions to witnesses at trial. We believe the disparity between the names by which the various parts of land were called in 1902 and the names used by most parties to the present litigation is due partly to competing traditions within different branches of family groupings. For instance, the grouping containing the Alai'a and Seigafo families was represented in 1902 by Seigafo, in 1944 by Alai'a and Seigafo, and in this litigation by Alai'a. Similarly, the family grouping including Tuia'ana and Magalei was represented in 1902 only *111by Magalei, in 1944 by Tuia'ana and Magalei, and in this lawsuit by Tuia'ana alone. At the hearing on this motion Magalei testified that he and other chiefs of his family who might have had claims to parts of Mapusaga chose instead to defer to Tuia'ana. And yet he also testified that part of the land known to Tuia'ana as "Luale'a" was known within his branch of the family as "Mauga o le Sea." Other similar divergences of opinion within the family groupings that include the four parties to this case could well account for the remaining 1902 names. (We note that, in response to an objection from neighboring landowners, the lessors agreed in 1902 to delete the name of one tract of land from the list of those wholly or partly included in Mapusaga. And yet they did not delete any land area or change the metes and bounds of the area to be leased. See note 1, supra. This suggests that there must have been some difference of opinion even then about the names of the tracts composing Mapusaga.)
It is also possible that other families with historic claims to parts of Mapusaga chose not to press those claims in the present litigation, and that their lands (along with the names thereof) were subsumed within the lands awarded to the four parties herein. Such a result is certainly possible under our land registration statutes, which require land claimants to object within sixty days to the filing of a rival registration or forever hold their peace. If this did happen, it almost certainly had the effect of enlarging rather than reducing the amount of land awarded to Moea'i.
The Court was bound to weigh the evidence and arguments that were actually presented to it by the four parties before the Court. Nobody’s case was free from doubt, but Moea'i’s was the weakest of the four. In our judgment, the way in which he used all nine of the 1903 names weakened rather than strengthened his credibility.
Finally, Moea'i urges that Tuia'ana "is not capable of owning land under Samoan customs" and that Alai'a "failed to prove by a preponderance of evidence ... a capacity to own land under Samoan customs." These issues were not raised in the pleadings, although Moea'i knew at the time he filed his pleading that Tuia'ana and Alai'a were among the objectors to his survey. Nor are they mentioned in Moea'i’s pre-trial memorandum, despite *112the Court’s clear admonition to counsel to include any disputed issues of law or fact in their pretrial memoranda. As far as the Court can recall, Alai'a’s capacity to own land was not even raised at trial.
Tuia'ana is the bearer of the ava cup for the village council. In some villages the bearer of the ava cup is regarded as a matai, in some not. Tuia'ana was among the matai of Faleniu listed when the matai register was established in 1906; he is listed in the 1944 deed as a chief of Faleniu; and Magalei, the leading matai of Faleniu, testified that he is regarded as a matai and sits as such in the village council. We do not believe the merits of this issue are properly before the Court, but if they were we would hold that Tuia'ana is a matai and can therefore own communal land.
II. The Motion for Relief from Judgment
Moea'i has also filed a motion for relief from the judgment under Rule 60(b) of the Territorial Court Rules of Civil Procedure. The motion is grounded in the discovery after trial of a Samoan language version of the 1902 lease. See note 1, supra. Whereas the English version of the lease refers to Mapusaga as including "parts of" Toa and certain other lands, the Samoan version speaks of "vaega itiiti" or "small parts" of these lands. Since the Court’s decision appears to include as part of Mapusaga a rather large tract designated Toa, Moea'i argues that it is inconsistent with the Samoan version of the lease.
We assume for the purpose of this motion that the evidence could not have been discovered with due diligence prior to trial. Nevertheless, we deny the motion.
First, it is not clear that "vaega itiiti" necessarily means a small part in an absolute rather than a comparative sense. The Samoan language contains no comparative adjectives. Although the gradual influence of the structure of the English language has resulted in the adoption of phrases roughly equivalent to comparatives, it is probable that the signers of the 1902 lease would have said "Mount Everest is larger than the Matterhorn" by saying: "Mount Everest is large, the Matterhorn is small." (E tele le Mauga Everest, e *113la'itiiti le Matterhorn.) The term "vaega itiiti" may well have meant not "small parts" but "smaller parts".2 It is beyond dispute that the 1902 lease describes Mapusaga as including all of five tracts of land and smaller parts --- that is, less than all --- of five other tracts. This is fully consistent with the Court’s holding in the present case.
Moreover, the exact wording of the Samoan version is of dubious importance in light of the fact that the original version of the lease was almost certainly the English version. The English *114document abounds with standard Anglo-American legal terminology and does not bear the earmarks of a translation from the Samoan; the Samoan version contains what seem to be awkward and sometimes incorrect attempts to convey English legal terms. The original English version says "parts of Toa," not "small parts" or even "smaller parts."
Moea'i’s point in bringing this motion seems to be that "vaega itiiti" was mistranslated in the English version as “parts," It seems more likely,' however, that “parts" was just the word the drafter had in mind and that the newly discovered evidence is itself the mistranslation. Although even an incorrect Samoan translation might be relevant to determining the intentions of the parties, in this case the primary definition of the land is by reference to its exterior boundaries. The lessors would have known what land they were leasing by virtue of having seen and probably walked these boundaries rather than by reference to the description of certain parts of it as "small” or "large" in a legal document. See note 1, supra. Moreover, the revised (1903) English version contains a certificate by Secretary Gurr that he had explained it in Samoan to the lessors, who understood and agreed to it. This version, like the 1902 English version, speaks of "parts" of Toa and other lands with no reference to whether the parts are small or large.
Even more important, the Court never made a finding with reference to how much of Toa was inside the 1902 lease and how much was outside. It seems beyond dispute that Toa extended for some distance beyond the lease boundaries on the mountain side. Alai'a testified that the land had also traditionally extended further toward the sea than was reflected in his survey. Nothing in the Court’s opinion is inconsistent with the proposition that the Alai'a/Seigafo family in 1902 regarded the land they were leasing to the Church as but a small part of their rightful holdings.
Finally, even if Alai'a’s version of Toa were too large to be described under any circumstances as a "vaega itiiti" it would not follow that Moea'i should receive more of Mapusaga than he already has. As we noted in our discussion of Moea'i’s motion for reconsideration, it is possible that parts of the land Alai'a now calls Toa were once called other things by various branches of the *115Alai'a/Seigafo family group. It is also possible that parts of the Court’s award to Alai'a belonged before 1902 to chiefs whose successors in title did not choose to appear in this litigation. We observed in our original opinion that some of the evidence submitted by Alai'a with reference to the southern boundary of Toa,
although plausible, is rather thin. Yet it is thicker than the evidence put on by . . . Moea'i .... Moea'i concentrated on his claim to own all Mapusaga and therefore put on no convincing evidence in what is essentially a boundary dispute between the strong claim of Alai'a in the north and west and Moea'i’s own claim (comprising at least Avalúa) in the south.
Slip Opinion at 12, 8 A.S.R.2d at 93.
The injection of the vaega itiiti issue does not cause us to change our opinion on this point.3
III. The Tuia'ana Motion
Curiously, Tuia'ana also moves for reconsideration. He objects to the award to Moea'i of a small piece of land on the mountainside behind the tract awarded to Tuia'ana. Moea'i was the only claimant to this piece of land. Counsel for Tuia'ana informs us that neither he nor his client knew that the Moea'i survey extended to the mountainside and that this is why Tuia'ana did not submit his own claim in that area.
This is shocking. It was the lawyer’s job--the most basic and obvious part of the lawyer’s job --- to know what land was being litigated in the case and to explain this to his client well before trial. Nothing in the evidence or arguments adduced by counsel for Tuia'ana suggested that he had any quarrel with the claim of Moea'i to the tract of land in question.
*116If Tuia'ana has a remedy, it does not consist of a motion for new trial, since such a motion for new trial must be based on the evidence that was before the Court. Under certain circumstances a party may move for relief from a judgment, as Moea'i has already done in this case. It seems quite possible, however, that the pursuit of such relief by Tuia'ana will give rise to a conflict between his interests and those of his present attorney.
We strongly urge Tuia'ana to consult another attorney about his rights in this matter.
Conclusion
The motions to reconsider and the motion for relief from judgment are denied.
It is so ordered.
. The copy of the lease introduced at trial is an unsigned typewritten version in English that appears to have been prepared by the Church, the Territorial Registrar, or the Secretary of Native Affairs not too long after the lease was made. It is certified as a true copy by the Registrar of Titles, and also contains a certificate by E.M. Gurr, then Secretary of Native Affairs, to the effect that he "faithfully interpreted and explained the terms, conditions and covenants therein contained to the lessors therein named, who stated that they thoroughly understand the same . . . ." It names nine tracts of land as included within Mapusaga and is dated March 17, 1903. Two signed handwritten versions, one in English and one in Samoan, were admitted into evidence after trial without objection. These name ten (not nine) tracts of land and are dated March 6, 1902.
After the lease was signed it was presented to the commandant of the Naval Station for his approval. Certain neighboring chiefs objected, and on April 17, 1902 the chiefs of Faleniu agreed to delete the name of the land called "Sinasina." The typewritten and unsigned 1903 version deletes Sinasina from the list of lands composing Mapusaga. The metes and bounds and the total acreage of Mapusaga (22 acres), however, are identical in both 1902 versions and in the 1903 version. The land the chiefs of Faleniu eventually leased to the Church, in other words, was the *110same land they originally agreed to lease in 1902.
See Pratt’s Grammar and Dictionary of the Samoan Language at 68 (4th ed. 1911):
The language has in recent years, owing to the influence of foreign languages, undergone some modification in regard to the comparison of adjectives.
Compare id. at 50:
More usually, and more in accordance with pure Samoan idiom is the use of two adjectives pointing a contrast, which however is only implied; as E lelei lenei. a e leaaa lena. This is good but that is bad, not in itself, but in comparison with the other; E 'umi lenei. a e pu'upu'u lena. This is longer than that. [This is long, but that is short.]
See also C.C. Marsack, Samoan, at 66 (1962):
The comparative and superlative forms of adjective do not exist in Samoan; there are no forms equivalent to "longer", "longest", or "fatter", "fattest". The effect of adjectival comparison has to be obtained in a roundabout way. . . . Even in the case of giant vessels like the Queen Mary- and the Aquitania ... a Samoan of the old school would say: Ua tele le Queen Mary, ua la’itiiti le Aquitania. Literally the Queen Mary is big, the Aquitania is small.
Moea’i has also introduced as newly discovered evidence a map, not to scale, of Mapusaga showing certain landmarks including church buildings. This map is in no way inconsistent with our original opinion. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486169/ | [1] Plaintiff judgment creditor seeks to hold the American Samoa Government (ASG) liable as garnishee for the full amount of its judgment, entered against the defendants, citing ASG’s failure to respond to interrogatories propounded pursuant to A.S.C.A. §§ 43.1-801 et seq. Plaintiff moves the Court to issue an order directed to ASG to show cause why it should not be held liable for the full amount of plaintiffs judgment, in the amount of $54,177.50. The application, however, is ■unsupported; it fails to show that the Governor has given his "prior approval" to the garnishment of ASG, in accordance with the mandatory requirements of § 43.1803(b). The motion is, therefore, DENIED.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486170/ | Order Granting Motions for Summary Judgment:
This matter is now before the court on the motions for summary judgment by defendant Southwest Marine of Samoa, Inc. ("SWM”), and defendants McConnell Dowell Company ("MDC") and McConnell Dowell Company Pontoon Raft Vessel ("MDC Pontoon Raft").
Both motions are based primarily upon the defense of act of God. This defense is not available in the aftermath of every natural occurrence, but is reserved for occasions rising to the level of an unexpected natural catastrophe. While plaintiffs have correctly pointed out that American Samoa has experienced damaging hurricanes in the past, that fact alone does not exclude Hurricane Val, the central event underlying this action, from being an act of God. An act of God need not be unprecedented in a particular locality, if the event is extraordinary and unexpected. As SWM correctly points out, Hurricane Val was a storm fitting Schoenbaum’s definition of an act of God as a natural event "catastrophic enopgh as to triumph over safeguards usually [employed] by skillful and vigilant seamen" (SWM brief, p. 11).
*20Plaintiffs’ response failed to advance any counterarguments directly disputing the characterization of Hurricane Val as an act of God. Instead, plaintiffs rely on the fact that the Fiji Meteorological Service bulletin (Tropical Cyclone Report 91/2) may be subject to correction. However, plaintiffs have not indicated where the bulletin may be mistaken, or even if they plan to challenge the bulletin at a later date. As non-moving parties, plaintiffs cannot prevail on this contention merely by asserting that a genuine issue exists for trial. Plaintiffs are not entitled to a trial upon the "unsubstantiated hope that [they] can produce such evidence at trial." Chapman v. Rudd Paint & Varnish Co., 409 F.2d 635, 643 (9th Cir. 1969).
Plaintiffs also urge that the reasonableness of precautions employed by SWM, MDC and MDC Pontoon Raft is a genuine issue of fact, despite the characterization of Hurricane Val as an act of God and as a proximate cause of their damage, In this respect, plaintiffs advanced only Silila Patene’s affidavit to create an issue of fact. T.C.R.C.P. Rule 56(e) states clearly that "affidavits shall be made on personal knowledge, . . . [containing] facts as would be admissible..., and shall show affirmatively that the witness is competent to testify to the matters therein. ” Evidence necessary to defeat a motion for summary judgment may depend on the quality of the moving party’s offering. Thus, "if the proof in support of the motion ... has a high degree of credibility the opponent must produce convincing proof." See, Wright, et al., Federal Practice and Procedure, §2727 at 143 (2d ed. 1983).
A non-moving party’s single affidavit, if inadequate, may be insufficient opposition. Ashwell & Company, Inc., v. Transamerica Insurance Company, 407 F.2d 762 (7th Cir. 1969). Patane’s affidavit is inadequate, and cannot defeat the evidence amply presented by the moving parties. His affidavit contradicts his own, earlier deposition testimony. Even on Patane’s version of the facts, SWM, MDC and MDC Pontoon Raft are entitled to prevail. He does not dispute the characterization of Hurricane Val as an act of God. He does not assert that such a characterization, in fact, still made the actions of any or all of the defendants unreasonable, or that they should have anticipated an act of God. Patane only states that hurricanes are not uncommon in the territory, and that the tying up of the crane barge was inadequate as such.
SWM, MDC and MDC Pontoon Raft were under no legal obligation to the longline fishing vessels moored at SWM’s facility. They do not have a novel obligation to protect another’s boats in the face of an act of *21God. They did not possess particular information regarding docking conditions, about which they were obliged to inform plaintiffs. Contrary to plaintiffs’ assumption, an act of God defense does not per se require this court to conduct a further in-depth review of the situation.
For the reasons discussed above, the motions for summary judgments are granted, This decision necessarily extends to Korea Wonyang Fisheries Co., Ltd., Korean Tuna Ventures, S.A., StarKist Samoa, Inc., StarKist Foods, Inc., and the American Samoa Government. Therefore, all causes of action are dismissed with prejudice.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485450/ | GARDNER, Chief Justice.
In this case the prosecution offered evidence by way of a forensic chemist that the substance found in the possession of the defendant was Marijuana. The defendant then offered evidence by an agronomist that marijuana is Cannabis and there are three recongnized types of Cannabis of which Cannabis Sativa L. is but one. Then, based on the fact that 13.1001 ASCA defines Marijuana as "all parts of the plant Cannabis Sativa L.," he moved for a dismissal on the grounds that there was no proof that the substance identified by the chemist as Marijuana was Cannabis Sativa L. That motion was denied and a proposed instruction to the same effect refused. I observed that the matter had been litigated thoroughly and that the contention was without substance. However, I chose not to delay a jury trial to research the matter. Nevertheless, counsel are entitled to an explanation of the basis for the court's ruling. That explanation follows.
The phrase Cannabis Sativa L. has uniformly been held to have the same popular or common meaning as Marijuana. Some botanical taxonomists consider Marijuana a polytypical plant and recognize as many as four species of Marijuana other than Cannabis Sativa L. Others hold that Marijuana is purely monotypic in species but with several varieties. Regardless of the merits of this scientific controversy, the United States Supreme Court has flatly held that there is only one species of Marijuana. Leary v. U.S., 395 U.S. 689, 77 S.Ct. 1532 (1957). Serious constitutional Due Process and Equal Protection problems arise with any other interpretation (People v. Van Alstyne, 46 Ca(3) 917, 121 Cal.Rep. 363). Therefore, the proper holding is that the term Cannabis Sativa L, must be contrued as a general' term which includes all plants popularly known as Marijuana that contain the toxic agent THC (People v. Van Alstyne, supra, 46 Ca(3) 917, 121 Cal.Rep. 363; People v. Hamilton, 105 Ca(3) 117, 166 Cal.Rep. 153; People v. Spurlock, 112 Ca(3) 326, 169 Cal Rep. 320). Federal cases dealing with this subject reach the same conclusion (U.S. v. Walton, 514 F(2) 201, U.S. v. Honneus, 508 F(2) 566, and cases from other Federal circuits listed at page 155 of People v. Hamilton, supra, 166 Cal.Rep. 153).
In enacting 13.1001 ASCA the Legislature intended to proscribe *73possession of all species of Marijuana. ' The evidence of the agronomist was irrelevant and should have seen objected to by the prosecution on that ground. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485452/ | PER CURIAM.
Talamoa Tupuola appeals from a judgment permanently enjoying him from entering onto land claimed by plaintiff/appellee Moali’itele Tu’ufuli but cleared and used by defendant/appellant.
Appellee, without good cause, failed to file his brief within the prescribed time of 30 days (the brief was four months late). The court has ruled that his brief not be filed. Under these conditions we approach this matter as a default. Thus, we are under no duty to look up the law for appellee nor make any search of the evidence in an effort to uphold the judgment.
We therefore accept as true the statement of facts in appellant's opening brief and assume that the points made by appellant are meritorious (Roth v. Keene 64 Cal. Re. 399; Mann v. Andrus 169 C(2) 455, 337 P(2) 673, Berry v. Ryan, 97 C(2) 493, 217 P(2) 1019).
Actually, had the matter been heard on the merits the result would have been the same. Appellant presented direct' evidence of original clearing and cultivation of the land from World War II to the present. Appellee offered only family history and tradition that his family had 'always owned the land. While family history and tradition is admissible to prove title it hardly, without more, affords substantial evidence in the face of direct evidence to the contrary. On retrial, appellee must offer something more substantial than history and tradition.
Judgment reversed. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485453/ | PER CURIAM.
Kalaea Jennings appeals a judgment filed on June 28th, 1982 respecting certain communal lands known as Gataivai in the village of Utulei, a portion of Fagatogo. Tavai Kaleopa is a senior Matai having pule over several lesser Matai's and over substantial parcels of land, at least including the land "Gataivai." See Nomaaea and Tavai Esera v. Lauulusa, 2 ASR 619 (1951).
This case began with an action for eviction filed by Plaintiff/Appellee on March 7, 1981. A hearing was held on March 29, 1982. The pertinent facts were not in dispute. Defendant/Appellant was at one time, in the absence of the Tavai senior Matai, given permission to use and build on the Tavai communal land by a lesser Matai of the Tavai family:
The Court: Number 2 being received. Apparently, there's no dispute that the land is Gataivai: Iá there any dispute that Gataivai is communal land of the Tavai family?
Mr. Tuinei: To tell you the truth, your honor- ' '
The Court ■: It's always a good policy.
Mr. Tuinei: My clients have been led all along - all these years that' land was Laulusa land and they served that Matai and he executed the separation agreement.
The Court : But there's no dispute that this communal land of - that Gataivai is communal land of the Tavai family. You're claiming he has a separation and valid reasons to construct his house and it is with the permission of Matai Laulusa, is that right?
Mr. Tuinei: Yes.
Transcript of Trial Proceedings at 17.
It became apparent that the dispute at trial turned essentially upon whether defendant was abiding by the terms which authorized his use of the communal land. After more testimony the court recessed and directed counsel to chambers. The court did not reconvene as the matter was settled at that time. Transcript at 23. By minute entry of March 29, 1982, counsel were to meet and prepare a stipulated judgment to be filed by April 2, 1982. On April 2, the court signed the "stipulated judgment" which had been submitted by Plaintiff/Appellee. On April 5, 1982, the Court granted Defendant/Appellant's motion to set aside the judgment on the asserted grounds that it was not stipulated and did not represent the settlement agreement. By order of April 6, 1982, Defendant/Appellant was to submit an alternative judgment if counsel were unable to stipulate. On May 27, 1982, Defendant/Appellants filed their proposed judgement. By order of June 28, 1982, the court below rejected that judgment as being inconsistent with matters agreed upon by counsel at trial and entered judgment in accordance with the Judgment submitted by Plaintiff/Appellee on April 2, 1982.
Defendant/Appellant's Motions for a new trial or Judgement notwithstanding the verdict were denied on August 2, 1982. Defendant/Appellant noticed this appeal on August 10, 1982. It was timely prosecuted thereafter.
The issue on appeal is whether the court may properly enter judgement where the parties allege that they have settled the matter and therefter submit separate proposed findings.
Trial had begun and was recessed at the request of couunsel. Transcript at p. 23. Because counsel thereupon indicated to the court that *83the matter had been settled it was not reconvened. At all times thereafter, until the entry of final judgment, neither party asserted that the settlement agreement had failed. Instead, counsel each submitted a proposed findings and judgment. It was an inherent implication of this procedure that the court would enter judgment that was consistant with the facts previously found and fair to the parties. It would have been impossible for the court to enter judgment consistant with both submissions.
We note that the pertinent aspects of the judgment appealed from are favorable to Defendant/Appellant. That judgment provides that the Jennings family will retain use of the land with all rights and privileges so long as they serve the Matai and refrain from conducting themselves in a disrespectful manner. Those requirements, and all other provisions of the judgment having legal significance were not disputed. It must be presumed that any conflicts that were presented were resolved in favor of the judgment. The record does not support a claim that it was clearly erroneous.
It is apparent, however, that this .case does not present an appeal from a stipulated judgment. The court below had before it the pleadings of the parties. Both counsels indicated that the matter- had been settled in accordance with facts elicited in the partial trial and oral representations made in chambers. Counsel, however, submitted separate proposed judgments. At that point, the court was actually considering cross motions for judgment on the pleadings which had been supplemented by matters outside the pleadings, hence, crossmotions for summary judgment. See Rule 56, Federal Rules of Civil Procedure. We find no error in the judgment thus entered.
Affirmed. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485454/ | PER CURIAM.
Plaintiff/Appellant HTC Meauta 0. Atufili Mageo is the senior Matai of the Mageo Family land known as ’’Vaitafi" or "Vailutu" in Pago Pago. Defendant/Appelle is the daughter of a former pastor, now deceased, who was permitted to reside on said land and conduct church services on an adjacent parcel.
In 1942, a church and a pastor's home were built on the Mageo Communal land. The pastor, defendant/Appellee's father (Ueligitone), used his own funds to build the home. Consent for the use of said land was granted by the Mageo Matai, a predecessor of Plaintiff/Appellant, and extended beyond use for church purposes to the children of the pastor. The wife of the pastor resided alone in the home after his death and the marriage of defendant/appellee. Following the death of the pastor's wife, Defendant/Appellee permitted her husband's relatives from Western Samoa to reside in the home. Thereafter, the present Matai of thé Mageo family brought an action to evict Defendant/Appellee and her agents from the home. The court. below concluded that the Mageo Matai had granted the pastor and his family use of the land, in the form of an "extended license," so long as a member of the Pastor's family served the Matai and maintained a continual presence thereon. The court further concluded that Defendant/Appellee constructively met those requirements, and entered an order protecting her interests.
Plaintiff/Appellant Mageo challenges the factual findings of the trial court, and also alleges error as a matter of law, asserting that his predecessor was without authority to permit use of the Mageo family communal land for church purposes beyond the period of pastorage.
Although it is of considerable merit, See Talagu v. Te'o, 4 ASR 121 (1974), we need not consider plaintiff/appellant's assignment of error as to the factual findings regarding service and possession because the instant case may be resolved as a matter of law. The occupancy of communal land for church purposes is valid so long as the use of the land is consistant with that purpose. See, e.q., Leiato v. Satele, 2 ASR 341 (1948); Tagoai v. Aaumua, 3 ASR 3 (1951). It is not disputed that use of the land presently in question was originally granted for church purposes and that it is no longer used there for. Any attempt by the former Mageo Matai to permit the pastor's children to use the land beyond the term of pastorage ws in excess of his authority and cannot be enforced against the succeeding Matai. It is thus elementary that the grant cease and the land revert to the family for reassignment by the Matai.
Some question remains, however, as to whether and to what extent Defendant/Appellee should be compensated by plaintiff/appellant for the value of the dwelling constructed by her father. The question shall be considered by the court on remand. Any valuation of the dwelling should be reduced by the fair rental value of the property accruing subsequent to the first eviction notice. Defendant/Appellee shall vacate the disputed parcel within a reasonable time.
Reversed and remanded. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485455/ | PER CURIAM.
STATEMENT OF THE CASE
Plaintiff-Appellant Reid commenced twp separate actions in the Trial division of the High Court of American Samoa on behalf of the Church of Jesus Christ of Latter Day Saints (the Mormons) to evict apd enjoin two separate families from land knoypi as "Malaeimi.P ( LT No. 007-79 and LT No. 41-79), The cases, having common issues of fact and law, were eventually consolidated for trial. ’ Each family filed responsive' pleadings. Though inartfully pleaded, the defendant families below asserted a claim of communal ownership and superior right to possession of- the lands upon which the plaintiff church claimed they had tresspassed. fha trial court apparently construed their assertions as affirmative defenses or counterclaims and thereupon determined the rights of th^ parties to the slightly more thap 313 acres in dispute, pud another 60 acre contiguous parcel. The record' indicates that other interested parties attempted to intervene but no ruling was made on their motions. Some of these persons have filed an Amicus Curiae bpief in this appeal. Their arguments will be addressed herein.
*86FACTS
The pertinent facts ' in this case began when the disputed land was leased by the Matai Puailoa to the representative óf’ the ' Mormóh Mission around the turn of the century. The lease is mentioned 'in a décision published in 1909 by the High Court, Alo Taisi v. Puailoa, 1 ASR 194 (1909). That decision indicates that the Mormons leased communal ■•’■l'and'' from the senior matai of the Puailoa family: ' '
"The defendant's claim of ownership arises from the undisputed overlordship of the name Puailoa over all Malaeimi. not controlled by Fanene, a Malaeimi chief of equal rank." Id. at 195.
The court further described various other indicia of the communal nature of Malaeimi, giving a brief history of its cultivation and defense by Puailoa and Fanene.
The subject properties next came before the High Court in 1931 in the matai case of Nouata of Nu'uuli v. Pasene of Nu'uuli (LT No. 18-1931). Apparently, Puailoa Vaiuli, the matai who had leased the land to the Mormons, had died in 1929. The church was uneért,ain to whojn it should make rental payments. ... ...
The court, in awarding the matai title tó Nouata, mentioned that Malaeimi was land of the Puailoa family, but' also ordered that the widow of the late Puailoa should have, during her life time, the rents from that part of Malaeimi leased tp the Mormons-($10.00 per month). - The lease expired and in the mid 1940's was re-negotiated with the widow for $360.00 par year ($1 per’ acre). In 1953, in exchange for' $30,-000, the widow executed a Common Law Fee Simple deed to the Mormons.
in 197$, the Puailoa family sought to renew the’ matter via a motion for new trial in the- 1931 decision (The widow had died in the interim). The trial court denied the motion. That denial was upheld by this court on different grounds. Nouata of Nu'uuli vs. Pasene of Nu'uuli (AP No. 007.-79, July 11, 1980). That decision contains a 'rehash of most of the facts above stated. In the instant case, the trial court undertook to finally resolve the status of the subject property on the merits.' •
HOLDING OF THE TRIAL COURT
Trial of the matter commenced on March 2, 1982 and on April 19, 1982 the trial court entered its decision and order. It held that the land Malaeimi is communal land of the Puailoa family; that the 1953 deed was void ab initio, that the survey prepared in 1981 by Meko Aiumu, Chief of the Lands and Survey in American Samoa’, establishes the exact location of the 313.61 acre -subject property, and that the Fanene family has no interest in or right to the subject land. The court further ordered that any leases that the church may have given are cancelled, that a historical wall on the property be preserved and ■ the order of' preservation enforced by the Historical Site Preservation Council, that a 60 acre parcel contiguous to the property is communal land, and that a lease on a portion of that proprety, given to 'Burns Philp, be cancelled.
QUESTIONS PRESENTED
1. Was the'trial' court's conclusion that the disputed land ' is communal supported by the evidence?
2. Did the trial court act arbitrarily in' determining the' rights of the parties in the disputed land? ' ■ '
3. Did the trial court err in its conclusion regarding the extent and nature of the interest acquired by the church? ■
*874. Did the trial court exceed its jurisdiction in determining1 the rights and liabilities of persons not before the court?
CHARACTER OF THE LAND
At the outset, though clearly not within the contemplation of the triel court, we are compelled to note certain aspects of the treaty obligations still possessing force and effect greater than all law but the United States Constitution, by which the Samoan way of life is protected. We begin with the General Act — Samoan Islands, Treaty of Berlin (June 14, 1889), Fourth Declaraction:
A declaration respecting titles to land in Samoa, restraining the disposition thereof by claims thereto and for the registration of valid titles.
The particulars of the fourth declaration are embodied in Article IV wherein lies the restriction against the alienation of native land. The first declaration and Article I grants Samoans the right to governance in accordance with their customs. ...
These protections were later embodied in the Treaties by which Eastern Samoa was ceded to the United States and the revised Constitution of American Samoa as approved by the President's delegate. The Cession of Tutuila and Aunu'u, (April 17, 1900) guarantees "preservation of the rights and property of the inhabitants of said island.., their lands and other property..,," and respects the authority of the chiefs. The Cession of Manu'a Islands (Feb. 14, 1904) states that "the rights of the chiefs in each village and of all people concerning their property according to their customs shall be recognized". Article I, section 3 of the revised Constitution of American Samoa grants authority to legislate against the alienation of land and the destruction of the Samoan way of life, and to enact measures to protect "lands, customs, culture, and traditional Samoan family organizations." Seui v. Mata'afa, 4 ASR 33 (1963); Mulitauopele v. Paleafei, 3 ASR 93 (1953); To'omata v. Vea, 2 ASR 564, (1950).
These provisions, fairly read, do not carve "Fa'a Samoa" into stone. Rather, they insulate the same from erosion due to'any influence other- than the natural progression of time. They are not intended to force the retention of custom, culture, and tradition upon Samoans, but'instead to assure that the Samoan way of life is allowed to follow its own path. As such, these provisions establish a presumptin.in favor of the customs and traditions prevailing in the Territory,
The hallmark of the Samoan way of life is the communal land system. Without communal land, a Matai has little purpose. There is nothing new about communal land. It is the original form, the essence of what all the afformentioned provisions sought to protect. Since all land was once communal land, there is a presumption that all land still is. It is this presumption that any entity asserting that; a given parcel is anything other than communal land must inevitably overcome.
The conclusion of the trial court that the land in dispute was the communal land of the Puailoa family at the time the widow attempted to deed it to the Mormon Church is affirmed.
PUAILOA FAMILY'S RIGHT TO THE LAND
Having concluded that the disputed land was communal at the time of the purported sale, it was incumbent upon the court to determine that it belonged to one or more families, or had instead been alienated by operation of law, See ASCA section 37.0120, or by the appropriate matai in accordance *88with the strict procedures relating thereto that were in effect in 1953. See, e.g., Mata v. Soliai, 3 ASR 108 (1954); Satele v. Afoa, 1 ASR 424 (1930); Sione v. Tiuali'i, 3 ASR 66 (1953); Mulitauaopele v. Paleafei, 3 ASR 93 (1953).
There being no evidence whatsoever before the court to indicate that a transfer by a matai with the consent of the family and the approval of the governor had occurred, the trial court properly concluded that it had not. Since a family member cannot adversely possess communal land, there could be no tacking and the operation of law could not vest title in the less than thirty years involved in the instant jase regardless of the manner of possession (see ASCA section 37.0120(a).1
By implication, the court could not then have concluded that title to the disputed land had passed to the Mormons. The land was communal and the families claiming the right thereto were before the court. It was therefore properly within the province of the court below to determine their respective interests. Title was vested without discussion; "We further hold that Malaeimi is and always had been the communal property of the Puailoa family,"
We thus conclude that the lower court was not "clearly erroneous" in vesting title to the communal land before it in the Puailoa faipily.
CHURCH’S INTEREST
ASCA section 37..0204(D) provides in part:
This section does not prohibit the coneyance and transfer of native land [for governmental purposes, to the U.S. or American Samoa Government or an agent thereof, upon approval of the governor] to an authorized, recognized religious society, of sufficient land for erection thereon of a church, a dwelling house for the pastor, or both; provided, that the conveyance and retransfer of such land shall be to native Samoans only and in the discretion and upon the approval of the governor.
This law does not contravene the aforementioned treaty in that it is consistant with the Samoan custom by which the matai may assign a parcel ■of communal ' land for use by an assignee so long as the the assignee exists and serves the matai. Such service may consist of the provision of a religious program. ASCA section 37.0204(d) alone provides the authority by which the Mormon, Church may continue to hold that land necessary for the continuation of its religious enterprise. Togia v. Aumua, 3 ASR 3 (1951), had previously authorized the dedication of that much communal land as is necessary for church service. We note that the record amply establishes the donative intent of the Puailoa Matai, commencing with the original lease, and all pertinent Governmental approvals. The interest thus held continues so long as the church continues and need not be labeled in any way. However, if the contemplation of the statute is to be given a name, it would be an easement in gross.
*89JURISDICTION
The judgment of the trial court purported not only to affect the status of the land claimed by the Mormon church, but also the status of an additional 60 acres to which the church had no connection, and, as well, addressed the rights and liabilities of several persons who were not parties to the action. The trial court eventually terminated the property rights of several individuals without their knowledge and without granting them an opportunity to defend their interests.
Elementary concepts of due process require notice and a hearing prior to the deprivation of property rights. Fuentes v. Shevin, 407 U.S. 67, 80, 40 L.Ed. 2d 558 (1972); Armstrong v. Manzo, 380 U.S. 545, 547, 14 L.Ed. 2d 62 (1965). One is not bound by a judgment resulting from litigation in which he is not designated as a party and to which he has not been made a party by service of process. Hansberry v. Lee, 311 U.S. 32, 40, 85 L.Ed. 22 (1940); Eb. Elliot Adv. Co. v. Metropolitan Dade County, 425 F2d 1141, 1148 (5th Cir.), cert. denied 400 U.S. 805 (1970).
Those portions of the decision of the trial court attempting to dispose of property not claimed by the Mormons and affect the rights of individuals who were not parties to the litigations were erroneous and are reversed.
CONCLUSIONS
The decision of the trial court is afirmed in part, modified, and reversed in part. As to the right of possessin of the disputed land set forth in the pleadings and described by the trial court as the 1981 survey by Meko Aiumu, Chief of Lands and survey of American Samoa, the decision of the trial court is affirmed and such land is the communal property of the Puailoa family.
This land consists of 313.61 acres and shall be registered in the name of the Puailoa title holder. It contains the land upon which the Mormon Church has constructed buildings for Church services and pastorage. The Mormons . may continue to use so much land as is necessary to maintain and employ these buildings in their religious programs so long as this use continues. All other portions of the judgment, involving matters that were not raised by the'pleadings, and indispensable parties that were not joined in the action, are reversed. The reversed portions of the judgment are:
(1) that portion vesting a fee simple interest to- the land occupied by the American Samoa Community College in the Government of American Samoa,
*90(2) that portion vesting a fee simple interest in the land upon which church buildings have been constructed in the Mormon church,
(3) that portion requiring the Puailoa family to reimburse the Mormon church for buildings constructed on the Puailoa communal land,
(4) that portion decreeing the rights and obligations occassioned by the payment of $30,000 by the Mormon church to the Pqailoa widow,
(5) that portion purporting to affect unknown leases which may have been entered into by the Mormon church with unknown persons,
(6) that portion purporting to affect the rights and liabilities of persons living on the land by "license" of the Mormon church,
(7) that portion enjoining the Puailoa family from damaging the Tongan wall and ordering the Historical Site Preservation Council to ensure its preservation, and
(8) that portion affecting rights and liabilities as to the 60 acres which was originally leased by but not a part of the purported 1953 conveyance to the Mormon church.
Except for number 2, above, we intend no intimation as to the ultimate correctness of these holdings. It is our opinion that the matter pleaded before the court involved only the right to possession and ownership of the 313.61 acres purportedly conveyed to the Mormons in 1953. The court had no jurisdictin to decide the peculiar issues and equities raised by its vesting of title; nor did it possess jurisdiction as to parties not joined and matters not pleaded.
We are aware that a multiplicity of lawsuits may be occassioned by the reversals. However, the would-be parties should all be mindful that failure to reach an amicable accord amongst themselves may ultimately result in a cpupt judgment far less favorable than they could negotiate.
. Although we have addressed the merits of Appellant Reid's adverse possession claim, in order to expose the weakness thereof, we are also compelled to consider the adverse possession statute itself. Adverse possession is a method by which land may be alienated .and acquired.
*89Accordingly, its intent and effect is limited by the numerous protective provisions discussed at length above. Since under the present law anyone may own freehold land, anyone may acquire it by adverse possessesion. It follows that a matai may acquire communal land for and on behalf of his extended family, and that an individual of 50 per cent or greater Samoan blood may acquire "individually owned" land, by adverse possession. Further, since there are particularly restrictive procedures governing the conversion of communal land into individually owned land [citations omitted], even a person of 50 per cent or greater Samoan blood may not acquire communal- land by adverse possession. We do not believe the legislature intended any other result in enacting ASCA section 37.0120. Finally, one might also inquire whether the adverse posession statute has been passed by 2/3 of two successive legislatures. See Article I, Section 3, Revised Constitution of American Samoa. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485456/ | PER CURIAM. -
Police obtained permission to go upon certain communal land from the son' in law of the senior matai who controlled that communal land. From there they observed marijuana plants in plain sight on Defendant's land. The question presented is whether the officers had the right to be on the land from which they made their observations. The trial court held they did not. We agree.
Under Samoan custom, the senior matai controls the use of communal land. Whether such a matai could have given the police permission to go upon that land is a question we need not answer; Clearly, the son in law of a matai has no such authority. If we place the -badge of authority on a son in law, where do we stop? A fourth cousin twice removed? A matai may possibly give such permission. A member of his family cannot. - ■ •
Judgement affirmed. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485457/ | MURPHY, Associate Justice.
Petitioner was informed against at a preliminary hearing and was thereafter convicted of murder in a jury trial. He seeks release by writ of habeas corpus on the ground that he is entitled to indictment by a grand jury. On appeal, the case was remanded to determine whether indictment by grand jury would be anomolous to the culture and conditions prevailing in *92American Samoa. The Court finds that grand jury proceedings would not be anomolous and will thereof consider the merits of the petition.
The Constitution bars prosecution by the United States for a capital or infamous crime except upon indictment by a grand jury (Amend. V). The states are not bound by that provision, and may subject an accused to prosecution in any manner consistant with due process and fundamental fairness. Petitioner asserts that because American Samoa is an unincorporated United States territory, rather than a state, he could not be prosecuted except upon indictment and that therefore his conviction upon charges brought by information must be reversed. Petitioner does not claim that his preliminary hearing was unfair or that it denied him due process of law.
United States sovereignty over its territories vests Congress with the powers of both a local and a national government and it can do for a territory whatever a state can do for itself or one of its political subdivisions. Cincinatti Soap Co. v. U.S., 301 U.S. 208 (1937); American Insurance Co. v. 356 Bales of Cotton, 26 U.S. 511 (1828). Governance of a territory rests primarily with Congress and secondarily with such agencies as Congress may establish for that purpose. Snow v. U.S., 85 U.S. 317 (1873). The power which Congress may thus delegate, subject to subsequent revision or revocation, includes all matters which could be regulated by the laws of a state. District of Columbia v. John R. Thompson Co., 346 U.S. 100 (1953). Congress nevertheless retains all legal authority over the people of this territory and all departments of its government, and may legislate directly for the territory, abrogate its laws, void a valid act, or validate a-void act. Inter-Island Steam Nav.Co., v. Territory of Hawaii, 305 U.S. 306 (1938); First Nat. Bank v. Yankton County, 101 U.S. 129 (1879).
Through delegation of its authority, Congress has ' entrusted the governance of American Samoa with the Department of the Interior. The Department of the Interior has approved the adoption of a constitution, the formation of a local government, and the promulgation of laws for American Samoa. This approval could be rescinded at any time. The Govrnment of American Samoa, its policies and departments, in other words, exist solely because Congress or the Department of the Interior has not yet said that they do not exist. ASCA 46.1220 is among the laws which have, by silence, been endorsed by Congress and the Department of the Interior. It provides for preliminary determinations of probable cause by information in all felony prosecutions. The procedure is fair and consistant with due process guarantees. It regulates prosecutions for violations of the American Samoa Code Annotated only and has no impact beyond the territory. It is clear that Congress or any authorized agent thereof may enact any provision in regard to a territory that could otherwise have been enacted by a state.
ASCA 46.1220, providing for prosecution by information, is not unconstitutional as applied in American Samoa. The petition is dismissed. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485459/ | PER CURIAM. ,
HTC. Meauta 0. Atufili Mageo, plaintiff/appellee, brought suit to recover a small'portion of communal land previously conveyed to Burns Philp though the Government of American Samoa. Burns Philp and the Government of American Samoa, defendants below, appeal from an order and judgment denying its motion for a new trial.
The facts of this case are not disputed. Burns Philp is a business enterprise located on a small plot of freehold land. Prior to 1968, the building was in a•dilapidated and unsafe condition, and was located too near *96the road-, Plans to tear down and rebuild the fixture were made, and ultimately approved by the government. The new building was to be set back; from the road except that it would encroach on slightly less than 1/4 of an acre of Mageo family land.
The governor consulted with the Attorney General to determine a method by which the communal land could be alienated so that the new building could be constructed. The Attorney General concluded that the government should purchase the land and reconvey it to Burns Philp. A sale price of $7,500 was negotiated for the .236 acres. A lone dissenter relented and approval of the Mageo family became unanimous. The governor inspected thp land, which has an 80 degree slope, determined that it was of no use to the Mageo family, and approved the transaction as recommended by the Land Cqmmission. Burns Philp tendered the sum, and the land was deeded to the government then to Burns Philp.
.On March 20, 1979, Plaintiff/Appellee brought suit alleging that the transactions were illegal and seeking to cancel the instruments and recover the land. Burns Philp raised certain affirmative and equitable defenses, asking the Court for summary judgment and dismissal.
Written memoranda were submitted to the Court, After a hearing, the Court, per Chief Justice Richard Miyamoto, denied the motions. Defendant's motiops for reconsideration o.r certification pursuant to Rule 54(b) of the Federal Rules of Civil Procedure were also denied. The Appellate Division affirmed the trial court and remaned the case for trial.
Trial was held on March 18 and 19, 1980. After submission, fhe court Issued a judgment nullifying the deeds and returning title in the property to the Plaintiff. The judgment was based upon a finding that the deeds were void and the transaction illegal because the laqd was not purchased for a proper governmental purpose and because the statupe authorizing corporations to own' land had not at that time been passed by two successive legislatures by a two thirds majority vote. A similar statute, properly promulgated, became effective in February 1982.
The issues presented by this appeal have not .been precisely stated by Counsel. A proper determination requires consideration of the following questions:
1. May communal land be transfered to the government upon, tepms fair to and unanimously approved by the family?
2-, Is the purchase of land for resale to a corporation in order to advance safety, economic, and esthetic interests pursuant to a proper government purpose?
3. May the Government of American Samoa sell communal land which it has acquired to a corporation which is not owned exclusively by native Samoans?
4. What is the legal effect of and who may challenge the government's attempt to convey land in a manner incqnsistant with statute?
ASCA section 37.0204, Restrictions on alienation of land, formerly ASC section 1282 (1949) provides in pertinent part:
(d) This section does not prohibit the conveyance and transfer of native land for governmental purposes to the United Stapes Government or to the government of American Samoa or to p lawful agent qr trustee thereof, or the coneyance and transfer, in the discretion and upon the approval of the governor, to an authorized, recognized religious society, of sufficient land for erection thereon of a church, or dwelling house for the pastor, or both; provided that the reconveyance and retransfer of *97such land shall be to native Samoans only and in the discretion and upon the approval of the governor.
The first issue is thus answered in the affirmative. The government of American Samoa may purchase communal land. The second issue must also be answered in the affirmative.
The- government may purchase land to resell it where the resale would further valid policy interests in promoting safety, economic development, and esthetic improvement. See Hawley v. South Bend Dept. of Redevelopment, 383 N.E. 2d 333, 340-41 (Ind. 1978); Anderson v. O'Brien, 524 P. 2d 390, 394 (Wash. 1974); Carman v. Hickman, 215 S.W. 408, 411 (KY. 1919). This does not mean however, that the government may actually resell the land that it has purchase for resale to any person.
As ASCA section 37.0204(d), and its predecessor, ASC section 1282 (1949) makes clear, communal land acquired by the government may not be alienated to other than native Samoans. Regardless of the wisdom of the statute, it dictates a negative response to the third issue. ' The government could not lawfully resell the land in question to Burns Philp. The last issue raised in this appeal is determinative of the rights and liabilities of the parties.
When a government acts in a manner which is barred by statute, the action is ultra vires. Generally, a fully executed, not otherwise illegal, ultra vires contract will be enforced, and a party who has benefited therefrom will be estopped from asserting its ultra vires nature, See generally Henn, Law of Corporations, section 184 at 352 (ultra vires doctrine). The instant case, however, involves government action proscribed by statute. Certainly, the party from whom the land was originally acquired has a sufficient nexus with the subsequent illegal transaction to raise the issue in a lawsuit in that the original transaction may not have been entered into had the government's intent been known. The facts and circumstances of the instant case, however, demonstrate that Plaintiff/Appelle's privies were aware of the intended disposition by the government. As such, the government's illegal transfer may not be asserted as a basis for rescinding the transfer of Mageo family land to the Government of American Samoa.
In determining the present status of the disputed land, it is incumbent upon the court to uphold, as much as possible, the legitimate objectives of valid government policy. Cf. Alston Studios, Inc. v. Lloyd V. Gress & Assoc., 492 F. 2d 279, 285 (4th Cir. 1977); School Dist. No. 37, Clerk County Wash. v. Isackson, 92 F. 2d 768 (9th Cir.), Cert. denied 303 U.S. 636 (1937). It is apparent that in the case at bar, the government intended’ to transfer all the interest in the land that it was capable of conveying in order to advance economic, safety, and esthetic interests. While the government may not sell native land which it has acquired, the same may be leased. When the government and Burns Philp attempted to transfer as much interest as possible in the land they were actually entering into a lease agreement for the maximum term then applicable.
ASC section 1283 (1949) provides that native land may be leased to any person for any term not exceeding 30 years. In 1978, ' that statute was amended to proscribe a lease exceeding 55 years. See ASCA section 37.0221(a). But the amendment cannot apply to a prior transaction. The attempted . sale thus resulted in a 30 years lease of native land to Buns Philps by the Government of American Samoa.
The decision of the Court below is modified. The disputed land will revert back to the Government of American Samoa after 30 years from the, date of execution of the quitclaim deed to Burns Philp. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485460/ | MURPHY, Associate Justice,
specially concurring.
At the expiration of the 30 year lease (approximately 1998) if the reason for the original taking is no longer valid, the property must revert to the Mageo family. In the event, this occurs sooner, the property should also revert to the family. If the Government re-negotiates the lease, any rental received thereunder should be paid to the Mageo family. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485461/ | GARDNER, Chief Justice.
Defendant moves for an order dismissing this action brought by the Government of American Samoa against a Fijian Corporation. The Government alleges the Defendant was transacting business in the Territory in violation of ASCA section 30.0305, which provides:
No foreign Corporation may transact any business in American Samoa without first procuring a permit from the Governor to do so.
Defendant seems to contend, first, that it performed a single salvage operation at the behest of a Korean customer (ie: re-floating a partially sunken fishing boat in Pago Pago harbor). That its work was completed within 8 weeks, and it never intended nor did it in fact undertake any other business in the Territory. That it, in fact only had minimal contact. Defendant argues that ASCA section 30.0305 is intended to regulate businesses which are transacted on a more permanent or regular basis. Furthermore, Defendant contends ASCA section 30.0314 is a penal statute, which therefore should be strictly construed, and it provides only for a violation of the terms of the permit, not for operation without any permit *99at all.
First then, we must determine whether Defendant was "transacting business" within the meaning of the statute. The term "transacting business" is not susceptible of precise definition automatically resolving every case; each case must be dealt with on its own circumstances to determine if a foreign corporation has engaged in local activity or only in interstate commence. Materials Research Corp. v. Mertron, Inc, 64 N.J. 74, 312 A.2d 147. The concept of minimal contacts for jurisdictional purposes' was explored in International Shoe Co. v. State of Washington, 326 U.S. 310. Certainly in the case before us, the Defendant has submitted itself to the jurisdiction of the Courts of this Territory, but was it "doing business?" It would seem not to us and we so hold. In order to require a foreign corporation to qualify under our statute it must do more than perform a single act for a customer within the territory. For additional support the definition of "business" contained in ASCA section 27.0202 specifically exempts casual sales or personal service contracts. Engaging in or carrying on a business" in that same statute is defined as follows: "...on. a cpntinuing basis although one act may be sufficient if circumstances show a purpose to continue..." (emphasis added).
This is not to say that while the Defendant is not required to have obtained a permit under ASCA section 30.0305 it may not have incurred liability as to taxation. The standards there are likely to be quite different. Therefore, the Court will not dismiss the Government's complaint, but will strike those portions alleging a penalty for violation of Title 30 Chapter 03 ASCA and allow the Government 10 days to amend its complaint to state a claim for taxes due on income earned in the Territory. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485462/ | PER CURIAM.
FACTS
Petitioner, Mrs. Tu’uga Ki was born in American Samoa. Presumably she is either a U.S. National or a U.S. Citizen. Her husband is Korean. She *100operates a variety store in Atu'u. Its customers are mainly Korean or Chinese fishermen. It is necessary that she employ a clerk who speaks Korean as she does not and her husband is engaged in other enterprises.
Hyun Lee is a Korean Citizen who came to American Samoa to work for Korea Marine Industry Development Corporation. In 1980 Mrs. Ki hired Mr. Lee to work in her store. She filed a request to sponsor Mr. Lee with the Immigration Board. The board granted the request and Mr. Lee was given a one year permit to remain in the Territory. She later again applied to the board and a second one year permit was issued which contained a provision that no further permits would be granted after 1982. In December 1981 Mr. Lee married a Korean citizen. She came into the territory on a tourist permit for 30 days, sponsored by Mrs. Ki. Mrs. Ki then filed petitions to sponsor Mr. & Mrs. Lee. The Immigration Board denied both petitions. The matter is before the appellate division for review of that decision.
Testimony before the Court showed that (1) Mr. & Mrs. Lee are law abiding people and will not become a public -charge (2) Mrs. Ki wants to sponsor Mr. & Mrs. Lee as well as other members of Mr. Ki's family (3) Mrs. Ki has advertised for Korean speaking clerks but only Mr. Lee applied.
ISSUES
Did the Immigration Board abuse its discretion or otherwise violate the test set forth in ASCA section 41.0649 by failing to grant Mrs. Ki's petitions to sponsor Mr. & Mrs. Lee?
DISCUSSION
At the outset it might be helpful to make some rather elementary observations: American Samoa is an unincorporated territory of the United States. Cession of Tutuila and Aunuu (April 17, 1900); Cession of Manu'a Islands (July 14, 1904); 48 USCA 1661. As such, only U.S. citizens and U.S. Nationals (i.e. American Samoans) are in the Territory as a matter of right. See ASCA section 41.0201 ("alien means all persons who are not nationals or citizens of the United States of American"). All others are aliens and are here by sufference of the U.S. ex rel the Secretary of the Interior or its designated progeny, the Government of American Samoa.
The Island of Tutuila has a total area of 56 square miles, much of which is jungle covered cliffs, rugged and uninhabitable (Coastal Zone Management Atlas of American Samoa (1981)). Water, power, housing, food and space are all limited. The environment is .fragile and it is the responsibility of the Government to carefully protect it. To do so requires rules regarding aliens. As such, the Fono has passed legislation attempting to address these matters. (ASCA Title 41, Citizenship, Alienage, and Immigration.) This opinion will examine the rules to determine whether they accomplish their legitimate purpose.
Mrs. Ki seeks to sponsor Mr. & Mrs. Lee under ASCA section 41.0606. If she is not allowed to sponsor the Lees they will be excluded pursuant to ASCA section 41.0601(3). The Immigration Board has, apparently, denied Mrs. Ki's sponsorship and issued an oxymoronic "Order allowing Voluntary Departure." In passing the court again notes that the form is not helpful. It is confusing and its use is disapproved.
There appears no reason why Mrs. Ki cannot act as a sponsor under ASCA section 41.0606. Further, section 606 sets no limits or quotas and a resident is therefore entitled to sponsor as many aliens qualifying under ASCA section 41.0601 as he pleases, so long as they are not agricultural or domestic workers. The statute obviously benefits the canneries, but is a potential disaster to American Samoa. If the Fono wishes to enact a statute *101restricting the number of aliens that a resident may sponsor it may do so. Until it has, the Immigration board may not say "its alright for resident A to sponsor 50 aliens, but resident B cannot sponsor anyone." Clear guidelines must be established so that the legitimate purpose of the Immigration act, i.e. limiting aliens in the territory, may be carried out on an evenhanded basis, affording due process to all and affording all so entitled an equal right to sponsorship.
Presumably, the Board's tenuous section 606 decision was an indirect attempt to avoid consideration of the petition under section 603. That section, however, sets forth the statutory test for the admission or exclusion of all aliens, and the Immigration Board is bound by its terms. ASCA section 41.0601 authorizes the board to exclude an alien unless ho establishes that:
1. he is of good moral character (there is no showing that the Lees fail this test; to the contrary, Mrs. Ki testified they were of good moral character),
2. he offers a skill or expertise not readily available in American Samoa (Mrs. Ki testified that she needed Mr. Lee's services in her business and that no Samoan is available who possesses Mr. Lee's ability to speak Korean; no showing was made on behalf of Mrs. Lee.),
3. he has a local sponsor (there is no question but that Mrs. Ki wants to sponsor Mr. & Mrs. Lee), and
4. he will not become a financial burden (this is not the case here).
The thrust of ASCA section 41.0601 is readily apparent. The board must admit any person, regardless of nationality, who meets the four specified criteria. It has discretion to admit or exclude any other person who is not an American Samoan. The Fono may have intended to grant the board discretion to admit persons who are not American Samoans but who meet the designated requirements, and require exclusion of all other persons who are not American Samoans. However, the Court cannot interpret a statute in a manner clearly opposite to its plain meaning just because that is what the legislature probably intended.
Nevertheless, the statute has a fatal defect both in its present form and in the form which may have been intended. The Legislature simply cannot have admission or exclusion rest upon the whim of another branch of government. Delegation of legislative authority is proscribed by the separation of powers doctrine (See Tribe, American Constitutional Law sections 5-17.) It would, however, be permissable for the Fono to establish some general rules, as it has arguably done, so long as the administrative agency is required to and does promulgate specific, objective guidelines. Id. That has not occurred. Without such guidance, moreover, immigration determinations may constitute special legislation prohibited by 48 USCA 1471, regardless of whether the Fono or its delegate is making the decisions.
Since the statute in its present form improperly delegates excess discretion only where the applicant does not meet the specified criteria, it is only partially invalid. To the extent that the statute requires admission of any person who meets the criteria, it is valid. ASCA section 42.0601, until altered by'the Fono, therefore operates to entitle any person within its terms to immigration status, and to deny all others except as provided by law.
Mr. Lee, who meets the enumerated criteria of ASCA section 41.0601, is entitled to remain in American Samoa. No evidence, however, was presented *102on Mrs. Lee's behalf in regard to the second criterion. She is not therefore entitled to admission under section 601, but that does not end the inquiry.
ASCA section 41.0615 provides that an otherwise excludable alien may be issued permission to remain in American Samoa if his or her spouse is lawfully admitted for permanent residency and will otherwise suffer extreme hardship, so long as the permission will not endanger the safety or security of American Samoa. A person is entitled to apply for permanent resident status after residing in American Samoa for ten years (ASCA section 41.0603).
Mr. Lee is obviously not a permanent resident, and his wife cannot therefore avoid excusión under section 615. Although the statute is harsh, it is within the authority of the Fono to provide for the admission of an alien and the excusión of his wife.
For the reasons foregoing, the Immigration Board is ordered to allow sponsorship of Mr. Lee, but may exclude Mrs. Lee. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485472/ | Appellant was convicted by a jury of second degree murder.
Appellant argued with the victim; the argument escalated into a fight with knives and a club. Appellant killed the victim by hitting him over the head with a club.
Appellant contends there was instructional error.
Some trial judges thoroughly confuse even the most astute jurors by reading involved and convoluted instructions covering the most arcane of legal theories. On the other hand some judges attempt to aid the jury by reducing instructions to simple, conversational, easily understood concepts which will aid them in their deliberations. This trial judge fits the latter category.
Voluminous instructions were submitted, some from a simply dreadful set of instructions found in a book entitled "Jury Instructions, High Court of American Samoa" printed in 1978 — the year before most of the present penal code was adopted. Its use is discouraged.
This book of instructions is full of redundancies, irrelevancies and downright inaccuracies. For example, instruction 4.04 says that specific intent means that the person does an act which the law forbids, "intending with bad purpose either to disobey or disregard the law." Nonsense. For criminal intent a person intentionally does that which the' law declares to be a crime and for specific intent the person merely has the specific intent to commit that certain crime.
*9The most common example is burglary in which one enters a structure with the intent to commit a crime. The specific intent is to commit that crime. Thus, a proper instruction simply is that the crime of burglary requires entry with the specific intent to commit a particular crime. Nothing more is needed. Here the specific intent is to cause the death of another person. This the court said. In each case the appropriate instruction is labeled "given" but was not read verbatum. Instead the gist was given in simple, understandable terms.
Judgment affirmed. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485473/ | After the denial of a request that the matter be presented to a grand jury for indictment rather than by information, defendant was convicted of murder. On appeal the appellate division remanded for a determination as to whether indictments in this territory would be impractical and anomalous. On remand the trial court handled the matter as habeas corpus and held that the fifth amendment requirement of an indictment in federal courts did not apply to the territory. It has since been stipulated that indictments by grand jury are not impractical and anomalous. The question remaining is whether the right of prosecution by indictment is a fundamental constitutional right. It is not.
Inhabitants of territories are entitled to fundamental constitutional rights. King v. Morton (D.C. Cir. 1975) 520 F.2d 1140. This does not mean that they are entitled to all constitutional rights. Craddick v. Territorial Registrar (1980) 1 A.S.R.2d 10. Indictment by grand jury is not *10a fundamental right.
As far back as 1884, the Supreme Court, in Hurtado v. California, 110 U.S. 510, held that the substitution of an information for an indictment in state court was not a denial of due process of law. The Court held that both are merely preliminary proceedings which can result in no final judgment except as the consequences of a regular judicial trial conducted precisely the same regardless of which procedure was followed.
Certainly, the information procedures are more fair, with open preliminary hearings, confrontation of witnesses and representation by counsel — all of which are denied before the grand jury. The attacks on the grand jury system became so intense stateside that the supreme courts of several states have now ruled, on the basis of equal protection, that the defendants are entitled to a post indictment preliminary hearing. See, e.g., Hawkins v. Superior Court (1978) 22 Cal. 3d 584, 150 Cal. Rptr. 435; People v. Duncan (Mich. 1972) 201 N.W.2d 629. Indeed, it is odd to find any defendant in a criminal case who wants to go back to the secrecy of a grand jury as against an open preliminary examination.
Be that as it may, this defendant, relying on the undisputed fact that the fifth amendment requires an indictment in federal courts demands a similar right in this territorial court. No way.
The right of presentment by grand jury is merely a procedural right and not a fundamental right. Rivera v. Government of Virgin Islands (3d Cir. 1967) 375 F.2d 988; Soto v. United States (3d Cir. 1921) 273 F. 628. In Government of Canal Zone v. Griffith (5th Cir. 1972) 459 F.2d 1036, the court held that article IV, section 3 of the Constitution empowers Congress t'o make all needful rules and regulations respecting a territory. This provision has been expressly held to authorize Congress to dispense with grand jury indictment in territories. Government of Virgin Islands v. Bell (3d Cir. 1970) 423 F.2d 692; People of Guam v. Inglett (9th Cir. 1969) 417 F.2d 123. It is true that the Guam, Canal Zone and Virgin Island cases refer to specific grants of authority by Congress to the territories but the principle is the same as to this unorganized territory. In this respect we cannot improve on the language of the trial court in his opinion denying the petition for writ of habeas corpus.
United States sovereignty over its territories vests Congress with the powers of both a local and national government and it can do for a territory whatever a state can do for itself or one of its political subdivisions. Cincinnati Soap Co. v. United States (1937) 301 U.S. 308; American Insurance Co. v. 356 Bales of Cotton (1828) 26 U.S. 511. Governance of a territory rests primarily with Congress and secondarily with such agencies as Congress may establish for that purpose. Snow v. United States (1873) 85 U.S. 317. The power which Congress may thus delegate, subject to subsequent revision or revocation, includes all matters which could be regulated by the laws of a state. District of Columbia v. John R. Thompson Co. (1953) 346 U.S. 100. Congress nevertheless retains all legal authority over the people of this territory and all departments of its government, and may legislate directly for the territory, abrogate its laws, void a valid act, or validate a void act. Inter-Island Steam Navigation Co. v. Territory of Hawaii (1938) 305 U.S. 306; First National Bank v. Yankton County (1879) 101 U.S. 129.
Through delegation of its authority, Congress has entrusted the Department of the Interior with governance of American Samoa. The Department of the Interior has approved the adoption of a constitution, the formation of a local government, and the promulgation of laws for American Samoa. This approval could be rescinded at any time. The Government of American Samoa, its policies and departments, in other words, exist solely *11because Congress or the Department of the Interior has not yet said that they do not exist.
A.S.C.A. section 46.1220 is among the laws which have, by silence, been endorsed by Congress and the Department of the Interior. It provides for preliminary determinations of probable cause by information in all felony prosecutions. The procedure is fair and consistent with due process guarantees. It regulates prosecutions for violations of the American Samoa Code only and has no impact beyond the territory. It is clear that Congress or any authorized agent of Congress may enact any provision in regard to a territory that could otherwise have been enacted by a state.
The right of a defendant to prosecution by grand jury indictment rather than by information is not a fundamental right under the United States Constitution.
But, says the appellant, this whole question of fundamental vs. non-fundamental rights is now academic because King v. Morton (D.C. Cir. 1975) 520 F.2d 1146., imposed a new test, i.e., whether indictment by grand jury would be impractical and anomalous. Thus, fundamental vs. non-fundamental goes out the window. We do not agree.
King was talking about the right to a jury, not a grand jury. The two are light .years apart. One has to do only with a non-fundamental procedural right — an instrumentality by which a case is processed to trial. The other is clearly a fundamental right in which the jury makes the vital distinction between guilt and innocence. King itself warned of the danger of a decision based on bare general principles enunciated in other cases. King does not stand for the principle that the only test is practicality. King said, at 1147, "In short, the question is whether in American Samoa 'circumstances are such that trial by jury would be impractical and anomalous.' Reid v. Covert, 354 U.S. at 75" (quoting the concurring opinion of Justice Harlan)(emphasis added).
The first question is whether the right is fundamental and only when it is found to be fundamental do we proceed to the question as to whether it is impractical or anomalous. Any other analysis would result in chaos. There are numerous rights which are not fundamental which may not be impractical or anomalous. It would be getting the cart before the horse to elevate these to the stature of fundamental rights just because they are not impractical or anomalous.
Judgment affirmed. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485474/ | KING, Acting Associate Justice,
concurring.
I concur in the result so long as the Government of American Samoa provides a judicial hearing on probable cause before a defendant may be placed on trial. I do not agree that the constitutional provision for indictment does not give the defendant more protection than a probable cause hearing. The latter procedure subjects a defendant to a public judicial proceeding which he must attend and at which testimony is adduced which could be used against him later even in the absence of the witness. However, I agree that King v. Morton does not require a different result than that reached here. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485475/ | FACTS
Appellee sued appellant and others in the United States District Court, Northern District of California, for money damages arising out of a business transaction. Appellant, through counsel, moved to dismiss for lack of personal jurisdiction. This motion was denied and appellant made a personal appearance. Extensive procedures followed and the matter was eventually set for trial. Three days before trial counsel for appellant mo.ved to withdraw for lack of cooperation by his client and non-payment of fees. The motion was granted and an accompanying motion for continuance was denied. Appellant failed to appear for trial and a substantial money judgment was obtained against him. The judgment was then filed as a foreign judgment in this court. Appellant attacked the foreign judgment by a rule 60(b) motion which was denied. This appeal followed.
DISCUSSION
The judgment of the United States District Court is valid on its face. It has been properly certified and attested. It is entitled to full faith and credit under article IV, section 1, United States Constitution. This constitutional provision is supplemented by 28 U.S.C. section 1738 which states:
Such Acts, records and judicial procedings or copies thereof . . . shall have the same full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of such State, Territory or Possession from which they are taken.
(Emphasis added.)
The law of this territory acknowledges and accepts, as indeed it must, the principle of full faith and credit. A.S.C.A. section 43.1701, et seq., incorporates the Uniform Enforcement of Foreign Judgments Act and defines a "foreign judgment" as "any judgment, decree or order of a court of the United States or of any other court which is entitled to. full faith and credit in this territory." A.S.C.A. sec. 43.1702. (Emphasis added.)
In spite of this plain language, appellant insists that this territory *13is a "foreign state." This is nonsense. This is a territory of the United States of American and in no way a foreign state. Appellant•.then invites our attention to the California Code of Civil Procedure which now distinguishes between "sister state money judgments" (section 1713 et seq.) and "foreign money judgments" (section 1713 .et seq.). Needless to say, the "foreign" as used in the California law means foreign in its usual layman context, i.e., a foreign nation — Bolivia or Japan. In the California Code "foreign state" is defined as any governmental unit other than the United States, or any state, district, commonwealth, territory, insular possession, thereof or the Panama Canal Zone, or the Trust Territory of the Pacific Islands.
We terminate this portion of the discussion repeating the obvious: American Samoa is a Territory of the United States of America, not a foreign nation, and a judgment of a court of the United States is entitled to full faith and credit in this territory. We cannot remove the territory of American Samoa from the United States and make it a foreign jurisdiction in order that appellant may retry his case in this court.
Appellant next tries, as he has at every stage of these proceedings, to go back of that judgment and argue that case on its merits. This he cannot do.
The Supreme Court of the United States has spoken quite directly on the subject.
[I]f the judgment on its face appears to be a "record of a court of general jurisdiction, such jurisdiction over the cause and the parties is to be presumed unless disproved by extrinsic evidence, or by the record itself." [Citation.] In such case the full faith and credit clause of the Constitution precludes any inquiry into the merits of the cause of action, the logic or consistency of the decision, or the validity of the legal principles on which the judgment is based.
Milliken v. Meyer (1940) 311 U.S. 457, 462.
Appellant relies on the last sentence of A.S.C.A. section 43.1703 which reads "a [foreign] judgment so filed has the same effect and is subject to the same procedures, defenses and proceedings for reopening, vacating or staying as a judgment of the High Court of American Samoa and may be enforced or satisfied in like manner." From this appellant contends he can go back and relitigate the case out of which this judgment arose. No way.
To read that sentence in the manner suggested would be to read into it a meaning inconsistent with the Constitution of the United States. We obviously decline to interpret that provision in such a way as to render it unconstitutional.
This provision is a common one in statutes pertaining to the enforcement of foreign judgments. It means that the foreign judgment may be attacked on the basis of jurisdiction in the same manner as any judgment of this court. Common defenses to the enforcement of a foreign judgment include lack of jurisdiction, lack of finality, judgment rendered in excess of jurisdiction, judgments not enforceable in the state of rendition, judgment already paid, suit on the judgment barred by the statute of limitations in the state where enforcement is sought. See 5 B. Witkin, California Procedure, Enforcement of Judgments secs. 194-195, at 3549-50. See also Durfee v. Duke (1963) 375 U.S. 106; New York v. Halvey (1947) 330 U.S. 610; Williams v. North Carolina (1945) 325 U.S. 226; Riley v. New York Trust Co. (1942) 315 U.S. 343.
Also an attack may be made on a foreign judgment if that judgment was *14obtained by extrinsic fraud. See 55 A.L.R.2d 674. Again this is an attack on jurisdiction. That type of fraud means some intentional act or conduct by which the prevailing party has prevented the unsuccessful party from having a fair submission of the controversy. Farley v. Davis (Wash. 1941) 116 P.2d 263, 268. This, of course, has nothing to do with intrinsic fraud, which pertains to issues involved in the original action, or to acts constituting fraud that were or could have been litigated therein.
However, there is nothing in this voluminous file that even hints at extrinsic fraud. Appellant insists he has been the victim of a great injustice in the district court in California. However, none of this goes to the jurisdiction of that court to render this judgment. Appellant simply has to go back to California, re-open the case and try it on its merits. As the trial court said, "unfortunately for the defendant we must hold that his remedies lie in the forum in which the judgment was rendered." We agree.
The most recent guideline on this issue is found in Thomas v. Washington Gas Light Co. (1980) 448 U.S. 261, 270. A divided United States Supreme Court set forth the basic application of the law. It stated:
It has long been the law that "the judgment of a state court should have the same credit, validity, and effect in every other court in the United States, which it had in the state where it was pronounced." [Citations] This rule, if not compelled by the Full Faith and Credit Clause itself ... is surely required by 28 USC sec. 1738 .... Thus, in effect, . . . a State is permitted to determine the extraterritorial effect of its judgments; but it may only do so indirectly, by prescribing the effect of its judgments within the State.
Id. at 270. As to the power to determine the effect of the forum's own law, the'Court stated:
To vest the power of determining the extraterritorial effect of a State's own laws and judgments in the State itself risks the very kind of parochial entrenchment on the interests of other States that it was the purpose of the Full Faith and Credit Clause and other provisions of Art IV of the Constitution to prevent.
Id. at 272. The rare exceptions to the application of the full faith and credit clause arise only when there is a violation of some fundamental state public policy. As noted in Magnolia Petroleum v. Hunt (1943) 320 U.S. 430, there is no precedent for an exception in the case of a money judgment in a civil suit. The permissible scope of inquiry in a sister state is limited to the ascertainment of jurisdiction over the person and subject matter. Durfee v. Duke (1963) 375 U.S. 106.
Judgment affirmed. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485476/ | In this matter we are concerned with the claims of Leifitele Sinapati Sotoa (hereinafter "Sinapati") and Muasau So'oso'oali'i Savali (hereinafter "Muasau") to the matai title "Sotoa."
I
A.S.C.A. section 1.0409(c) provides,-
In the trial of title cases, the High Court shall be guided by the following considerations, in the priority listed: (1) The best hereditary right, as to which the male and female descendants are equal in families where this has been customary; otherwise, the male descendant prevails over the female.
In this case, by tracing back to a common ancestor (the daughter of a holder of the title) Muasau has 1/32 hereditary right and-Sinapati has 1/64. However, Sinapati, son of the last title holder, claims 50% hereditary right based on this fact. We do not agree.
A conflict of opinion seems to have arisen as to the meaning of the phrase "hereditary right." It is the opinion of this court, the members of which are well familiar with Samoan customs and traditions, that "hereditary right" is to be traced back to the blood line of the original title holder, not to any subsequent title holder. Every new title holder does not start a new line of heredity. One must always return to the blood line of the original title holder for the purpose of determining "hereditary right."
Thus, on this issue, Muasau prevails.
II
The next consideration established by section 1.0409(c) is "the wish of the majority or plurality of those clans of the family as customarty in that family."
Just what constitutes a clan has baffled the courts of this territory for some time. As the court said in Reid v. Talalele (1964) 4 A.S.R. 458, 461-62,
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 *16the 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 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.
Justice Morrow, in Filipo v. Maiava (1962) 4 A.S.R. 313, stated that the first theory was more in accordance with Samoan custom than the others and points out that one family in Manu’a claimed that it had 47 holders of the title and that any other holding would be chaotic.
We agree with Justice Morrow. It is our opinion that, based on Samoan custom and tradition, the number of clans is determined by the number of offspring of the original title holder and that each of the children of the original title holder who gets married and has children constitutes a clan.
However, it has been our experience that attempting to define and identify a clan in a particular family is a most troublesome and unrewarding task. No one ever seems to agree on the number of clans in a family no matter what standard is used. This is understandable when one deals with the oral history or genealogy of a family that may go back hundreds of years. It appears to us that the Fono would render a distinct service to the people of American Samoa by removing this requirement from the law. .
In this case Sinapati claimed there were four clans, Muasau claimed there was only one, and both claimed support. We need not decide who was correct on the actual number. We find that neither has the full support of any clan and thus that neither prevails on this • consideration. This, historically, seems to be the usual result in these cases. All claimants seem to claim support of certain clans but the proof is almost invariably inconclusive.
Ill
The next issue to be decided is "the forcefulness, character and personality of the persons under consideration for the title, and their knowledge of Samoan customs." A.S.C.A. sec. 1.0409(c).
While admitting that this standard does not readily lend itself to objective criteria, the court finds that claimant Muasau prevails. His long and distinguished public service career reflects favorably on his forcefulness, character and personality. His testimony at this trial showed his knowledge of Samoan customs.
IV
The last issue presented is "the value of the holder of the title to the family, village and country." A.S.C.A. sec. 1.0409(c).
Here, claimant Muasau clearly prevails. His history as a member of the legislature from Manu’a (the site of this title) reflects great potential value to the family and the village. His value to the country (territory) has been established. His many other activities on boards, commissions and conferences indicate a sincere desire to serve his fellow man. Particularly noteworthy are his contributions to the betterment of Manu'a.
The court finds that Muasau So'oso'oali'i Savali qualifies for the title Sotoa and the Territorial Registrar is directed to so register the title. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485477/ | GARDNER, C.J.
Winston Churchill once said that golf was a game in which one attempted to put a small ball into a small hole using "woefully inadequate tools." In the immigration- law of this territory the Fono has given the attorney general a woefully inadequate tool to- carry out his duties.
THE FACTS
Mr. 0, a citizen of Korea, has been in .this territory over ten years on successive two-year employment contracts, in each of which he agreed to return to Korea upon completion of that contract. In each case the contract was renegotiated prior to its termination. He has applied for permanent resident status and been rejected. This appeal followed.
THE PROBLEM
Of all the departments of the American Samoa Government, that branch of the attorney general's office devoted to enforcement of the immigration laws is at once the most important and the most controversial.
As we have pointed out in previous decisions, this is a small territory. Its economy, its ecology and its environment are fragile. Space and resources are limited; obviously its capacity to absorb population is limited. Yet its population is geometrically expanding. In 1908 the population was about 6,800. In 1959 it was about 20,000. It is now estimated at approximately 33,000. Statistical Tables, Atlas of American Samoa.1981. It seems manifest that a high birth rate and a constant influx of immigrants from Western Samoa are the principal cause of the expansion. The growth would be more spectacular except for a constant departure of young American Samoans seeking employment opportunities in the United States.
*18American Samoans are, of couse, Samoan Polynesians. A noticeable percentage have American, European (chiefly German), Chinese and Japanese ancestors.
Western Samoa is 83 miles away. It has a population of nearly 200,000. It is a much less economically endowed country. A number of Western Samoans have immigrated to New Zealand, the United States and, as previously stated, to American Samoa. American and Westerm Samoans share a common cultural and racial background. Many families are interrelated. It is clear that the major immigration pressure will continue to come from Western Samoans. (This will be particularly true if the Simpson-Mazzoli or some similar act of Congress naturalizes the Western Samoans in the United States.) People immigrate here from the United States mainland. It seems highly questionable that this territory could exclude any United States citizen, especially one of Samoan ancestry. In addition to the above there are Tongans, Korean's and others living and working in the territory as well as a handful of American expatriates.
While no one seems to know with any degree of certainty it seems that native born American Samoans may already be a minority group in their own territory. It is generally agreed that of a total population of 33,000, only 30,000 are Samoans. Of these it is said that one half are Western Samoans. The rest- are, as indicated, a mixed bag of Asians, Tongans and whites.
It is the task of the attorney general to control this unwieldy mass and to address the problems that lay ahead, using as we have said the woefully inadequate and constitutionally suspect (See Ki v. Immigration Board (1983) 1 A.S.R.2d 99.) immigration law. The question of who qualifies as a permanent resident then becomes of vital importance.
THE LAW
That phase of the immigration law with which we are here concerned is A.S.C.A. section 41.0603(2), which provides that one who has continuously resided in American Samoa for ten years may apply for permanent resident status. Petitioner contends that since he has continuously resided in American Samoa for ten years he is entitled to permanent resident status. Under the statute as written he is. We doubt that was the legislative intent but as Justice Holmes was wont to say, it isn't what the legislature intended that counts, it is what it said.
Commonly understood, reside means to live, dwell, sojourn, lodge or stay someplace. Webster's Third International Dictionary. Petitioner has continuously resided in the territory for ten years. Under this law as written he qualifies for permanent resident status.
But how about someone who enters the territory'illegally and hides out from the authorities for ten years or spends his ten years engaged in a life of crime. Can he qualify for permanent resident status? Unfortunately, under the law as now written, he can. To avoid this, the attorney general has, by executive fiat, unilaterally amended the law to provide that one must be in the territory legally to attain permanent resident status. This is a worthwhile and commendable qualification but not one appearing in the law as written.
By a stroke of the legislative pen the Fono can amend this law, end the attorney general's dilemma and give him a viable weapon to use in evaluating and controlling those seeking permanent resident status. The United States Immigration Law, 8 U.S.C. sec. 1254, provides in substance that the attorney general may adjust the status of an otherwise deportable alien who has (1) *19been physically present in the United States for a continuous period of not less than seven years, (2) is a person of good moral character and (3) is a person whose deportation would cause a hardship.
The use of the phrase "continuous physical presence" is not a legislative accident. The prior law used the phrase "continuous residence." Problems arising from the use of the word "residence" had resulted in "lax practices" and "abuses." Immigration & Naturalization Service v. Phinpathya (1984) _ U.S. _, 52 U.S.L.W. 4027. This was because the word "residence" has often become, in contemplation of law, a word of art, synonymous with the word "domicile," which has a mixed connotation of fact and intent. Thus, one can physically reside in one place but keep' his "residence" or "domicile" in another. Military service is the most common example. "Continuous physical presence" brooks no hair-splitting ambiguity.
To avoid the plain language of this statute (A.S.C.A. sec. 41.0603(2) the attorney general how contends that Mr. 0 cannot gain permanent resident status because of A.S.C.A, section 41.0605, which provides that when one loses the status on which entry or stay was based (in this case Mr. 0’s employment status), he is. deemed a person entering from that. date.
There' are four factors that militate against that contention. First, Mr. 0's employment contracts were renegotiated before termination. ‘ Second, this smacks of intentional discriminatory enforcement of the law since at least one other alien received permanent resdient status under identical successive contract conditions. Third, just before these proceedings the attorney general signed a document entitled, "Certificate of eligibility for permanent resident status" in which he stated that Mr. 0 had resided continuously in the territory for more than ten years and "is eligible under the law for permanent residency status." Fourth, this seems to be a last gasp effort -to avoid the inevitable. Nowhere in the immigration board decision or in the appellee's brief was section 41.0605 mentioned. It first surfaced at the evidenciary hearing.
Reliance cannot be had on A.S.C.A section 41.0605.
It appears to us that a wholesale revision of the immigration law is in order. The Fono is.going to have to make some tough decisions. Should they impose a quota on aliens and if so, on what aliens? Should there even be a continuous physical presence provision? Why? What is to be done about Western Samoans who by reason of the extended family concept are actually a part of American Samoan families? Are Western Samoans to be treated in a different manner than other aliens? Are there inequities and abuses in the present sponsorship program? What is the effect of the American Samoan citizen concept as contained in the proposed revisions to the American Samoan Constitution? What is the status of non-Polynesians, or part Polynesians, who are United States citizens? And, in a broad sense, what are immigration prohlems of the territory, their size and complexity? The whole field cries for Fono action. We have made this suggestion before — all to no avail. See Ki v. Immigration Board (1983) 1 A.S.R.2d 99.
THE ATTORNEY GENERAL
The present statutory scheme places the attorney general in an indefensible position — policeman, prosecutor and judge.
The United States Supreme Court, recognizing the complexity and prevalence of administrative tribunals exercising quasi-judicial powers, has not seen fit to rule that in all cases the investigating agency may not also be the judging agency. Nevertheless, in Withrow v. Larkin (1975) 421 U.S. 35, 43 L. Ed. 2d 712, the Court warned against situations in which the risk of *20unfairness is "intolerabl-y high."
It is an integral part of the American judicial system of justice that an impartial magistrate or judge be interposed between a zealous police officer or prosecutor and the individual. Failure to do so constitutes a denial of due process of law guaranteed by both the United States Constitution and the Constitution of American Samoa. Further, as the Winthrow Court said at page 15, "Not only is a biased decisionmaker constitutionally unacceptable but 'our system of law has always endeavored to prevent even the probability of unfairness.'" See also Gibson v. Berryhill (1973) 411 U.S. 564, 36 L. Ed. 2d 488; Ward v. Village of Monroeville (1972) 409 U.S. 57, 34 L. Ed. 2d 267; Tumey v. Ohio (1927) 273 U.S. 510.
As constituted at present, does the position of the attorney general as chairman of the immigration board raise the risk of unfairness to-an 'intolerably high" level? We hold it does. In the average case the attorney general arrests the alien, prosecutes him and judges him. Even when, as in this case, there is no charge of an immigration violation and the board sits merely to determine status, -the same aura of lack of impartiality exists.
While we cannot change the law, we must, consistent with our constitutional mandate, insist that due process be observed. Thus, we hold that in this case Mr. 0's constitutional right to due process was violated when the attorney general sat as a member of the immigration Board. We suggest that hereafter, pending Fono action, he disqualify himself from sitting on that board.
Again, the federal practice is informative. Under 8 U.S.C. section 1103(a) the responsibility for enforcement of immigration and naturalization laws is vested in the attorney general. Nevertheless, with a realization that the attorney general will be prosecuting those charged with violations of those laws the office of the Commissioner of Immigration and Naturalization (a presidential appointee) is established (8 U.S.C. sec.1103(b))'. That commissioner has delegated special hearing officers to hear these matters. These rulings are subject to review by the Board of Immigration Appeals (8 C.F.R. secs. 282.8 & 242.21). Thus, while the attorney'general has over-all responsibility for enforcement of the immigration and naturalization laws, others handle the judging function.
The Fono has removed the attorney general from the tax exemption board in a recent amendment to A.S.C.A. section 11.1603, advising in the reviser's comments that the attorney general's membership on boards and commissions raised potential conflicts of interest, particularly when the board or commission is conducting adjudicatory hearings and the government is represented by legal counsel. "Further, it curtails his role as legal advisor to these hoards and commissions. Accordingly, this legislation is intended to eliminate these problems in the' future."
The Fono should do the same with the immigration board.
MR. 0
At long last we return to Mr. O.
While in complete sympathy with the attorney general's efforts to apply a . sensible interpretation to this unworkable law, we must rule that anyone who has resided continuously in the territory for ten years is entitled to permanent resident status. Mr. 0 qualifies. Further, Mr. 0 was denied due process of law because the attorney general sat on the immigration board. Therefore, we order the immigration board to issue him a certificate of permanent resident status. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485479/ | GARDNER, C.J.,
Concurring.
To me the lack of access by the residents of this territory to a courl with federal jurisdiction is troublesome. I think this is the onF territory of the United States which is not within the jurisdiction of e United States District Court.
At one time, when the territory was young and undeveloped, this wa; probably unimportant but as the territory becomes more and more a part oJ the commercial world the lack of access to a federal court denies th< residents of the territory important rights and protections. This case is i good example. Another is the recent case of Matter of Interocean Ship; (1984) 2 A.S.R.2d 21, in which the high court held it had no jurisdictioi over the limitation of vessel owner's liability provision of 46 U.S.C section 183.
Whether this represents indifference or reluctance on the part of thi residents of the territory or of Congress I do not know. However, if eithei or both are interested, three avenues of relief are available.
First, Congress could extend federal jurisdiction to the high court a: it has done in other territories by providing that the high court have the jurisdiction of a United States District Court. This can be done under the so-called territorial exception to the rule that only United States Distrid Courts can exercise the jurisdiction of an Article III court. See Northern Pipeline Construction Co. v. Marathon Pipe Line Co. (1984) 458 U.S. 5, 73 L. Ed. 2d 598; American Insurance Co. v. 356 Bales of Cotton (1828) 26 U.S. ( Pet.) 511, 7 L. Ed. 242.
This would be the most simple solution.
Second, it could place American Samoa under the jurisdiction of ; United States District Court, such as the United States District Court o: *25Hawaii. This would involve geographical problems for the court and the residents.
Third, it could create a United States District , Court for the territory. This, of course, would be the height of ' fiscal irresponsibility — a United States District Court serving only 32,000 people.
Thus, propositions 1 and 2 are the only viable alternatives. However, whether either Congress or the Territory is interested I do not know.
In the meantime a resident of American Samoa can rob a 'federally insured bank in American Samoa and not worry about the F.B.I. On the other hand, he can't go into bankruptcy. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485480/ | GARDNER, C.J.
Interocean Ships, Inc., the vessel owner, filed a petition in the High Court of American Samoa for a limitation of liability pursuant to 46 U.S.C. section 183.
Title 46 U.S.C. section 185 allows a vessel owner to "petition a district court of the United States of competent jurisdiction . . . ."
The High Court of American Samoa is not a district court of the 'United States. This court has no jurisdiction over this matter. Matter dismissed. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485481/ | BACKGROUND
On May 26 defendant, while serving a term of imprisonment for felony at the'Tafuna Correctional Facility, escaped. He was captured and returned two days later. At trial defendant testified in his own defense as follows: The prison imposes a religious fast every Wednesday. This is accompanied by chapel attendance and bible study. Defendant,did not want to participate. He was told to return to his cell. Later a guard informed him he was to be placed in maximum security and denied visitors and the use of a telephone. He asked to see the warden; this request was refused. Disturbed by the treatment he was receiving he then escaped. One can infer from the testimony that defendant has been a peaceful and cooperative prisoner since his conviction and sentencing in March 1980.
*26DISCUSSION
Since defendant's testimony was uncontroverted and believable we accept it as true. Certain of his constitutional rights were violated. The government cannot compel its prisoners to participate in religious observances.
Religious services may be made available, but prisoners cannot be punished for refusing or rewarded for joining in. See U.S. Const, amend. I; Rev. Const, of Am. Samoa, Art. I, sec. 1. Also, administrative punishment cannot be imposed without some semblance of due process. A.S.C.A. sec. 46.2503; Benton v. Maryland (1969) 395 U.S. 784, 23 L. Ed. 2d 707; Bernard v, Te'o (1984) CA No. 18-84. Furthermore, the prisoners are entitled to reasonable access to their legal counsel, U.S. Const., amend. VI, in most cases the public defender.
DECISION
Having determined that defendant was given the dirty end of the stick we now ask if the defense of necessity obtained. The answer is no. If escape is a remedy for every violation of a prisoner's rights they would need a revolving door instead of a gate at the prison. (As it is, it appears to be a fairly simple task to take French leave from the prison.)
The modern doctrine of the defense of necessity was fashioned by none other than our own Chief Justice Gardner in People v. Lovercamp (1974) 43 Cal. App. 3d 823, 118 Cal. Rptr. 110.
In a scholarly review of cases beginning in 1 Hale P.C. 611 (1736), in which the court found that departure from a burning jail "excuseth the felony," he follwos the somewhat convoluted trail of judicial encounters with penal mismanagement. He concludes with a humane and sensible holding that a limited defense is available under certain circumstances.* The first rule seems to require a specific threat of substantial bodily injury. This element was not present in defendant's case. While we condemn the treatment he received and hereby give the government notice that it must revise or discontinue its religious practices the defendant must stand convicted as charged.
ORDER
Under the circumstances, since the prisoner has about six more months to serve before he is eligible for parole, imposition of sentence will be suspended. Should defendant peacefully complete his sentence this court would be inclined to dismiss this case without sentencing defendant. Should he, however, fail to conduct himself as a law abiding prisoner (i.e., follow the rules) then, upon motion of the attorney general, sentence will be imposed.
Justice Gardner announces five essential elements to the defense of necessity:
1. Specific threat of death, sexual attack or substantial bodily injury;
2. No time to complain to authorities or a history of futile complaints;
3. No time or opportunity to resort to the courts;
4. No use of violence in the escape; and
5. A report to proper authority after safety has been attained. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485482/ | This matter came on for trial before the undersigned court on August 31. The action was initiated when plainfiff filed a complaint seeking a permanent injunction against defendant to restrain him from interfering with her peaceful possession and enjoyment of, and ingress and egress to, certain land upon which she and her children dwell. The defendant answered and counterclaimed seeking an order of eviction. Testimony and evidence was received by the court and the matter was taken under advisement. From the testimony and evidence the court makes the following findings of fact.
The land Mali'o, upon which the plaintiff resides, is communal land of the Fau family. The Plaintiff Atofa'i Olive claims a relationship to the Fau family through her mother. Her mother's father was a Fau title holder. She was born in 1913 and from 1925 until 1961 lived in Western Samoa. In 1961 she received permission from Fau Fa'avae, the title holder, to build a house and dwell on the property.
She has resided upon the land until the present time. Fau Fa'avae was the father of the present title holder, Defendant Fau Pulemau. It is undisputed that the defendant is a senior matai of the Fau Family. Plaintiff and five of her daughters eventually constructed five Samoan fales on the subject property at a total cost of approximately $4,500. She rendered service to Fau Fa'avae during his lifetime and has attempted to render service to the present Fau. He has rejected her service and contends that she has no blood relationship to the Fau Family. In his capacity as senior matai he now seeks to evict her and her family from the subject property.
We must in this case consider two factors in reaching a decision.
I. The powers of a matai and limitation of his power.
II. The rights of the family members.
In the past the high court has addressed these issues with varying results. In Tali v. Tupeona (1961) 4 A.S.R. 199 the court held that the matai has pule over family lands but that it must be exercised fairly and justly for the benefit of the family. The court rejected the matai's effort to evict family members. The court cited its own previous decisions as authority. See also Tuanaitau v. Paogofie (1963) 4 A.S.R. 375 and Fuga v. Olive (1962) 4 A.S.R. 283.
In addition, the power of the matai to have control over family lands to assign pieces of family land to family members is recognized in such *28cases as Tiumalu v. Scanlan (1961) 4 A.S.R. 194 and Masalosalo v. Isumu (1962) 4 A.S.R. 309. This court recognized that under Samoan custom, a matai of the family has jurisdiction over the land of his family. Lutu v. Fuimaono (1964) 4 A.S.R. 450. The court in the past has taken upon itself the authority to review decisions of the matai in the management of the family affairs. The result is a series of ad hoc decisions which provide no useful guidelines at all for any future management of the trust res.
It seems to us that if the action of the matai is lawful, statutorily permissible, and not calculated to destroy or impair the assets of the family with which he is entrusted, the court should not attempt to exercise supervisory control over the assignment of living space, or indeed the denial of such space, to members of the family.
Due to the series of ad hoc decisions in this area this court is left without any consistent guidelines to direct it in future cases. In the past, the court has vacillated with decisions appearing to vary with the changes in the weather. Therefore, the court today seeks to state some guidelines for the people involved in this case but also for those in the future.
The Samoan people acquired title to their land through first occupancy coupled with claim of ownership, and this was true before the establishment of the government in 1900. This court recognizes that under Samoan custom communal family land is owned by the family and each member has a right to use a portion. Tuana'itau v. Paogofie (1963) 4 A.S.R. 375. Use of this portion is limited by the judgment of the matai as shown in the findings that evidence sustained that clearing of the land from bush and cultivation of the land established its ownership in the family and not the individual, who occupied with permission of the matai. Fialoa v. Meredith (1941) 2 A.S.R. 129.
We agree with the past high court decision of Fialea v. Meredith, above, which ' stated that permission to use family lands given to family members by a matai continues as long as the family member lives on and uses the land, subject to changes by the succeeding matai. Id. at 132-33. Additionally, the court said that an oral gift of interest in land by a matai to a family member which is relied upon by construction of a fale and plantations on land cannot be-terminated by mere whim of the matai, but .continues as long as the donee abides by the terms of the gift and continues to live on and use the land, or until the death of the present' matai, who did not intend to bind his successors. Id. at 134-35.
As we stated above, this administration by the matai cannot be so capricious as to be unjust to the family or wasteful of the land. Therefore, within these guidelines a succeeding matai, in fairness, can change property apportionments made by the previous matai without interference from the'courts.
It should be noted here that the Fono has recognized that there may arise an occasion to remove a matai. Therefore we have a provision in the statutes to remove a matai for cause and the family always has this avenue of redress available to them outside the courts. Sagapolu v. Tanielu (1922) 1 A.S.R. 331.
This court does recognize that under common law it has a duty to protect everyone, property holder or not, from abuses of their rights. Therefore a person in possession of land is presumed to have certain rights and this court, in equity, will protect them.
Although there are no Samoan cases on this point, some American state courts have recognized a private condemnation action, although it is very limited in its force. Blackwell Lumber Co. v. Empire Mill Co. (1916) 28 *29Idaho 556, 155 P. 680. A person may condemn a private easement if necessary for proper use and enjoyment of his property. However, this person must pay for the private condemnation and it must be a just compensation. City of Dothan v. Wilkes (1959) 269 Ala. 44, 114 So. 2d 237.
Therefore we hold that a matai is the administrator of family lands, that the court will not interfere if the administration is fair, that a succeeding matai cannot be bound by a previous matai's decisions, that expelled family members may be compensated for their investments/contribution to the land rather than be given the land in question.
CONCLUSION
This court states its desire to observe fa'a Samoa which may not have been done in the past but is required by the Treaty of Cession. 48 U.S.C. sec. 1661. Furthermore, we recognize the authority of the matai who has pule over the communal lands.
Therefore, it is the judgment of this court that the plaintiff be denied her prayer for a permanent injunction and the defendant be allowed to legally evict the plaintiff from the land in question. Although this may appear to be a harsh result, evicting an elderly woman from a home she has occupied for over 20 years, the court "will not get itself into the position of substituting its judgment for that of the matai in the administration of familial affairs." A'au v. Falealili (1980) LT 33-79, at 2.
However, equity must be done. This woman must be compensated for the loss of her home and the other fales that she built. This court will authorize an appraisal for the property upon petition and determine the amount due the plaintiff at that time.
ORDER
It is ordered that the plaintiff's complaint for permanent injunction be denied and that the plaintiff vacate the premises upon payment to her by defendant of just compensation as determined by the court. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485484/ | This matter comes before the court pursuant to a writ of habeas corpus. The court held an evidentiary hearing at which both petitioners and respondents were given an opportunity to offer testimony and evidence. Both sides having rested the court took the matter under advisement.
FACTS
The facts of the case are fairly straightforward and more or less undisputed. Following what appears to be a standard operating procedure, several immigration officers descended upon the villages of Pago Pago and Aua on Wednesday, September 28. The idea was to pick up individuals who appeared, to be aliens and who were suspected of being in the territory illegally.1
In any event, 10 or 12 Tongans were picked up, i.e., arrested, and taken to the immigration office. There they were identified and warrants issued for their arrests. They were not informed of any rights they might have, but were told that they could depart the territory voluntarily (The next boat for Tonga was leaving Saturday morning.) or be held for deportation heaings. Most opted to "voluntarily" board the boat. Nevertheless they appear to have been held in jail until the boat was ready to sail to make sure no one changed his mind.
Caught up in this particular dragnet were two extraordinary cases which probably brought the matter before the court, unlike the previous undertakings. One of the Tongans, Amini Taivai, had previously engaged a lawyer and was suing the government. The court had entered an order temporarily restraining his deportation. He was able to call his lawyer. When the lawyer appeared and explained the situation the immigration officers backed down and released Amini. Another individual, Tofua Ioane, was arrested and *34despite his protest that he was a United States citizen he was incarcerated pending voluntary departure or deportation. Unfortunately, Tofua was telling the truth and in fact is a naturalized U.S. citizen.
The next day, Thursday, he was allowed to make a phone call from jail. He called a friend who took Tofua's proof of citizenship to the Immigration Office. The officers were convinced and issued an order for his release. The prison doors swung open — but slowly. No one at Immigration had a car so the release order did not reach the prison until the next afternoon. At that time Tofua was released, having served two days' imprisonment for the crime of being of Tongan ancestry.
STATEMENT OF THE CASE
The relief petitioners seek is set forth in their points and authorities, page 4: "If the court finds that they were subjected to an unlawful detention the court can fashion a remedy which should prevent such an incident in the future."
CONCLUSION AND ORDER
The fact that the attorney general, cum chairman of the Immigration Board, has frog-marched most of the petitioners off island does not necessarily render their petition moot. Under Hensely v. Municipal Court (1973) 411 U.S. 345, 36 L. Ed. 2d 294, actual cu.stody is not required for federal habeas relief if the petitioner is subject to restraints not shared by the public generally. In the case before us the two unnamed petitioners appear to be under some threat of incarceration or coerced departure from the territory. The named petitioners are probably under restraint from attempted return.
We strongly disapprove of the attorney general's sharp practice of pushing the petitioners aboard a ship knowing that a habeas petition was pending. They were entitled to their day in court, regardless of whether or not they were ultimately entitled to remain in the territory. To slyly contend that their departure was voluntary is to completely ignore reality. Similar conduct in the future should be met with sanctions.
As to the original arrests, this procedure also merits disapproval. A.S.C.A. section 41.0533, covering arrests without a warrant, provides as follows:
(a) Any immigration officer may arrest without a warrant any alien who in his presence or view is entering or attempting to enter American Samoa in violation of any law or regulation made in pursuance of law regulating the admission, exclusion or expulsion of aliens, and may arrest any alien in American Samoa if he has reason to believe that the alien is in American Samoa in violation of the law or a regulation and is likely to escape before a warrant can be obtained for his arrest. [Emphasis added.]
(b) The person making the arrest without a warrant in accordance with this section shall immediately thereafter make an affidavit and apply to the Attorney General for an order of arrest and commitment, until the board's next meeting, of the person under arrest.
Warrantless arrests should be the exception, not the rule.
*35Aliens are not entirely without rights. For example, upon arrest they are entitled to bail. A.S.C.A. section 41.0630. They should be meaningfully informed of their rights.
A far better procedure to meet the problem of aliens unlawfully in the territory would be to follow the lead of other government departments and embrace the computer age. The traffic court is but one example of a brilliant use of a relatively simple computer system. The immigration board could computerize all aliens (and all residents for that matter). When the alien's period of stay passes, the computer would automatically furnish that information and a warrant would issue. Then after the warrant issued the alien could be located and appropriate action taken.
In addition to preventing wrongful arrests the computer would, for the first time, allow the immigration board to have an accurate census of who is living here and each person's status. In other cases before the court we have seen examples of entire families living here for years. The immigration board has been oblivious to their existence until they apply for permanent status — which they are entitled to after ten years' residency. Hopefully these suggestions if followed will reduce future litigation and assist the board in an admittédly difficult task.
However', these are suggestions, not orders. The case before us does not appear to be .the proper vehicle for a judicial overhaul of the modus operandi of the immigration board.
Therefore, the petition is granted as to Amini Taivai and Tofua Ioane. The immigration board is to take no further action against Amini pending outcome of his litigation and is permanently enjoined from such action as to Tofua Ioane.
As to all other petitioners the matter is dismissed.
It is common knowledge that a large percentage (perhaps as much as 50%) of the local population are aliens: mostly Western Samoans, Tongans or Orientals. Most appear to enter legally under some sort of temporary permit and then overstay. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485485/ | This matter came on for trial on May 23rd and May 24th, 1984, before this court. The case being fully submitted was taken under advisement. The court finds, concludes and orders as follows:
STATEMENT OF THE CASE
Article 1, section 4, of the Revised Constitution of American Samoa provides for respect for the dignity of the individual. Because this concept is obviously at issue in this case and because counsel have devoted much time and attention to the matter, the court has undertaken to address this case in somewhat more detail than perhaps would normally be expected.
Plaintiff filed a multi-count complaint alleging violation of rights pursuant to 42 U.S.C. sections 1983, 1985 and 1986, and a claim for tort. He also sought injunctive relief, mandamus and a declaration that A.S.C.A. section 41.0606 is unconstitutional.
Defendants are plaintiff's uncle, Maka- Tuihalamaka ("Maka"), Suiava Pele aka Alamoana ("Suiava"). American Samoa Government ("A.S.G."), Immigration Board ("board") and Aviata Fa'alevao ("attorney general"). Contemporaneously with the commencement of this lawsuit, plaintiff with others filed a habeas corpus petition (CA No. 116-83). The decision and order entered therein on October 19, 1983, are germane to this case. Judicial notice is taken of them and a copy of them is appended.
FACTS
The following facts are more or less undisputed. Plaintiff is a 23-year-old native citizen of the Kingdom of Tonga. He is talented and ambitious. Maka resides in the territory of American Samoa where he operates a variety of businesses including a farm, a sewing shop, an auto repair shop and a curio manufactory. He also operates a passenger boat between American Samoa and Tonga. In September of 1981 plaintiff came to this territory, sponsored by Maka.
In October 1982, after a hearing, the board granted plaintiff, along with 25 other Tongans (a total of 26) permission to remain in the territory for one year "for private employment and farm work for the sponsor's company only." Plaintiff did some work for Maka but in fact spent a good deal of time out of the territory and in the United States. Plaintiff also went into business for himself as a commercial artist. He applied for and received a business license for 1982-1983.
Through his uncle he met and became acquainted with Suiava, Suiava is a local businessman. He owns and operates snack shops. He was also employed by American Samoa Community College ("college") as a counselor. Plaintiff wanted to attend the college. Plaintiff did some painting on one of Suiava's mobile snack bars for which he neither asked for nor received payment. From time to time plaintiff would eat at Suiava's shop, sometimes on credit and occasionally borrow money from Suiava. Apparently he paid for what he ate and paid back what he borrowed.
In January 1983 plaintiff registered at the college and began to attend classes. He successfully completed the semester and registered for the summer session in June. His troubles began when he registered for the fall semester. The college pays close attention to the immigration status of its students. Officers are invited to attend registration and the registration *37forms require immigration information. Everyone seems to be under the impression that "clearance" is required from the board for a student to attend the college. Apparently this ".clearance" is often granted, as a number of aliens, mostly Western Samoans, attend the college.
At any rate, Suiava called to the attention of the college authorities plaintiff's immigration status. It was eventually determined that he had not received "clearance" from the board to attend college. He was suspended pending clarification of his immigration status.
About that time plaintiff went to the attorney general to complain that Suiava was attempting to coerce him into doing free painting in exchange for silence as to plaintiff's immigration status. A complaint to the attorney general about Suiava proved as helpful to plaintiff as would have been ah appeal by Custer to the A.I.M. Political Action Committee aboout his treatment at Little Big Horn.
The attorney general immediately ordered plaintiff and Maka to appear before the board.. Maka, undoubtedly sensing his nephew had committed a gaffe, quickly revoked his sponsorship and offered to send his nephew back to Tonga on his boat. By the time the boat wa-s ready to leave, however, plaintiff had obtained .counsel and filed the habeas corpus action referrred to above, which resulted in. a stay of board action. Since then other board hearings have been'conducted. Plaintiff has a new sponsor and has official .board permission to remain in the territory until April 1985. Suiava, embarrassed by the- uproar, resigned his position at the college.
DISPUTED FACTS
As might be expected the testimony of plaintiff and 'Suiava differed sharply., Plaintiff.claimed that Suiava promised to use his position at the college to help him get in. In return .he wa,nted plaintiff to do free painting for him. When plaintiff made it clear he expected, to be paid Suiava exposed him as not having immigration "clearance" to attend college.
Suiava denies all this. He says plaintiff was in college before he even met-, him. He ^volunteered to do a painting, job for Suiava in, April 1983. Suiava- treated him as a member of. his family and did not need him to do any painting, Suiava being.;a.good artist himself. Even if be did' point out .¡plaintiff's immigration statu.s, which resulted in suspension from college and near deportation, he was only doing his duty as a conscientious college counselor. He ivants damages against plaintiff on a counter-claim for loss of his job. ,
DISCUSSION
The truth may be somewhere between the two versions. No matter. Neither theory is actionable. l?Ven if- Suiava reported plaintiff out of spite rather than a sense of duty we know of no theory to hold Suiava liable for reporting a. fact.-. Even if Suiava is right, he resigned voluntarilyi Arty loss he suffered was due to his own choice. Not every quarrel is subject to judicial resolution.
We turn now to matters perhaps of broader interest.
A curious aspect of this case is how the immigration board gets into the business of deciding who gets into college. Certainly no one should be permitted to attend the college who is not legally in the territory. But once that determination is made it is up to the college to admit or reject applicants. True, one's immigration status determines the scope of employment one may undertake in the territory. But other activities are not sub*38ject to board approval. The alien may apply to the hospital for treatment, the library for books and the college for admission. It is up to those institutions, not the immigration board, to determine whether or not he qualified for their services. (Notwithstanding that, the board has granted itself such authority at A.S.A.C. section 41.0213. Apparently it embraces Robert Browning's idea that one's reach should exceed one's grasp.)
Turning at long last to the specific issues of this case, we first note that plaintiff did not comply with the Government Tort- Liability Act' (A.S.C.A. title 43, chapter 12) by filing the required claim as a prerequisite to litigation. A.S.G. correctly points out that such failure defects the count for tort. Such a filing, however, is not required for civil rights claims under 42 U.S.C. section 1983 et seq.
The attorney general concedes', as indeed he must, that those statutes apply to the Territory of American Samoa.
Every person who, under color of any statute, ordinance, regulation, custom or usage, of any State or Territory . subjects- . . . any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights . . . secured by the Constitution and laws, shall be liable .... [Emphases supplied.!
The question then is of what rights was plaintiff deprived? His right to remain in .the territory? He is still here. He violated the terms of his authorization to remain-, not by attending the college, but by engaging in employment beyond the scope of the authorization, to wit: going into business for hirnself. True, Maka revoked his sponsorship because he perceived'
that the revocation was in his own best interests. But this was not under an order from the attorney general. The efforts of the attorney general to remove plaintiff were examined and condemned in CA No. 116-83. They amounted to an attempt, rather than an actual deprivation. At any event it is difficult.to see what right plaintiff had to remain in the territory once the sponsor withdrew.
This brings us to-plaintiff's next claim, to wit: the sponsorship statute is unconstitutional. A.S.C.A. section 41.0606 simply provides that aliens remaining here must have a sponsor. Clearly the original intention of- the statute was to provide financial responsibility for the maintenance and potential return of aliens. The potential for abuse is obvious. In the first place, there is no Limitation on the number of persons one may sponsor. Once here, the alien is virtually at the mercy of his sponsor, since apparently a sponsor can withdraw his sponsorship at any time, without cause, and the result will be deportation of the alien. However, potential for abuse does not necessarily render a statute unconstitutional. The entire immigration act is suspect. (See Ki v. Immigration Board (1983) 1 A.S.R.2d 99 and other decisions of the high court.) One can only express the hope that sooner or later the legislature will address this matter.
As to the plaintiff's prayers for mandamus and injunctive relief, they seem to have been resolved by the board's grant of permission to remain in the territory.
CONCLUSIONS
1. Title 42 U.S.C. sections 1983 et seq. apply in the Territory of American Samoa. In order to proceed under those statutes it is not necessary to file administrative claims under the government tort liability act.
*392. Plaintiff failed to sustain his burden of proof in that there is insufficient showing that he was deprived of any rights, privileges or immunities secured by the Constitution and laws.
3. Plaintiff failed to sustain his burden of proof as to tortious conduct on the part of' any defendant. Furthermore, plaintiff failed to comply with the government tort claims act.
4. Plaintiff's claims for mandamus and injunction were abandoned. Also, they are rendered moot by the board's grant to plaintiff of permission to remain in the territory.
5. Plaintiff has failed to demonstrate that A.S.C.A. section 41.0606 violates the United States Constitution.
ORDER
Plaintiff's prayers for relief are denied. Parties to bear their own costs. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485486/ | The interpleading plaintiff having been discharged, the above-entitled matter came on for trial on the cross-claims.
FACTS
The interested parties stipulated to the following facts: the Afo family leased a portion of its communal land to Burns Philp for $300 per month. The lease was entered into by the matai Tema. Afo on behalf of the family. In 1983 Tema died. Aimiti Afo is his widow. The family has not yet selected a successor titleholder.
*40ISSUE
The widow claims she is entitled to one-third of the rental pursuant to her right of dower. A.S.C.A. section 40.0103 provides a right of dower of one-third of a decedant's real or personal property. Other members of the A’fo family contend succession rights in general and dower rights in particular do not apply to communal property.
CONCLUSION
We hold that the statutes pertaining to estates do hot apply to communal land. A.S.C.A. section 40.0206 states that the provisions of the chapter do not apply to communal land. None of the chapters of the estate statutes can logically be applied to communal land. It is true, as able counsel for the widow points out, in the past this court has ordered the proceeds of communal land paid to a widow. See Nouata v. Pasene LT No. 18-1931. That decision was clearly wrong and this court will not perpetuate that error. The affairs of the family, including collection of rent from communal property are administered by the matai. Hence, the funds in this case must be deposited in trust for the family until a successor matai is named.
ORDER
It is decreed and ordered that all rental funds be deposited in an interest bearing account for the benefit of the Afo family until selection of a titléholder or further order of the'court. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485487/ | GARDNER, C.J.
On December 5; 1984, I made a ruling in an order denying plaintiff's motion for summary judgment. 'That ruling contained a serious flaw. It was wrong.
*41At issue was the meaning of a sentence contained in 46 U.S.C. 951, which reads, "Original jurisdiction of all such suits [foreclosure of preferred ship mortgages] is granted to the district courts of the United States exclusively." I held that since this court is not a United States district court it has no such jurisdiction. The ruling was succinct, simple, direct, straightforward — and erroneous. This unfortunate result was obtained by the simple expedient of extracting that one sentence from the statute and construing its meaning without reference to the entire statutory scheme. However, each part or section should be construed in connection with every other part or section so as to produce a harmonious whole. The law favors a rational and sensible interpretation which will reach a reasonable result consistent with the statutory scheme. Therein lay my error. I failed to consider the entire statute and the purpose behind the statute in making my ruling.
A statute is passed as a whole and not in parts, sentences and sections. It is animated by one general intent or purpose. Here, the intent of the ship mortgage act was to stimulate private investment in the shipping industry by affording substantial security to investors. Detroit Trust Co. v. The Thomas Barlum (1934) 293 U.S. 21, 39. That purpose is hardly advanced by a ruling which limits ship mortgage foreclosures to United States district courts at all times and all places. Obviously, there must be a United States district court available or the sentence doesn't make any sense. Lacking a United States district court to exercise its "exclusive," "original" jurisdiction, the mortgage can be foreclosed in any court exercising valid admiralty jurisdiction.
That is the only interpretation that is consistent with the statutory purpose and scheme. Otherwise, all a ship owner has to do is keep his ship in a port not within the jurisdiction of a United States district court (American Samoa) and thumb his nose at his creditors. This would hardly "stimulate private investment in the shipping industry by affording substantial security to investors."
The fact of the matter is that this one sentence was put into the stdtute for the sole-purpose of insuring that no state court would attempt to exercise jurisdiction over a ship mortgage. This was so obvious to admiralty expert J. Bond Smith that in his article entitled "Ship Mortgages" in 47 Tulane Law Review 608 he disposes of it in a curt footnote at page 611, "The grant of exclusive jurisdiction in the district court should not be interpreted as meaning a preferred mortgage may not be foreclosed in the court of a foreign nation. The legislative intent in the exclusive grant was to preclude state court jurisdiction." Called upon to substantiate this statement, Mr. Smith has filed an affidavit containing a legislative history of the act which clearly indicates such was the legislative intent. See H. Bond Smith affidavit of December 20, 1984.
Admiralty lawyer Richard Barnett (See Barnett affidavit of December 11, 1984.) advises us that he has been involved in preferred ship mortgage proceedings against United States flag vessels in Egypt, India, Singapore and Aden. (Mr. Smith adds Japan.) I would presume that such proceedings were a matter of comity or treaty. Rather obviously, no United States district court had jurisdiction in any of these locales. The United States government was involved in most of these proceedings and, according to Mr. Barnett, "no suggestion was even made that the foreign courts lacked jurisdiction to foreclose the preferred mortgages on those vessels given pursuant to the U.S. Ship Mortgage Act." Apparently, the first such suggestion came as a result of a temporary — I hope — aberration on the part of the Chief Justice of the High Court of American Samoa.
*42Additionally, it would appear that such mortgages have been foreclosed in United States territorial courts, although admittedly this precise issue was not raised. (See Ares v. S.S. Colon (D.C.Z. 1967) 269 F. Supp. 763; Northern Commercial Co. v. The Puffin (D. Alaska 1959) 170 F. Supp. 28. Arguably, these cases are distinguishable since those courts had congressional grants of district court jurisdiction under the so-called ."territorial exception" to the rule that only United States district courts can exercise the jurisdiction of an article III court. See Northern Pipeline Construction Co. v. Marathon Pipeline Co. (1982) 458 U.S. 5, 73 L. Ed. 2d 598; American Insurance Co. v. 356 Bales of Cotton (1828) 26 U.S. 510. (Of course, one could split hairs and contend that a court with a congressional grant of district court jurisdiction is still not a district court.)
Thus, the proper interpretation of that sentence, when viewed in the statutory scheme, is that the United States district court has exclusive jurisdiction in all cases in which such a court is available. Otherwise it doesn't make sense. Thus, at the present time all fifty states, our two commonwealths (Guam and the Virgin Islands) are within the jurisdiction of United States district courts and all preferred ship mortgages in those states, commonwealths and territories must be foreclosed in United States district courts to the exclusion of state, commonwealth or territorial courts.
That leaves American Samoa. American Samoa is not within the jurisdiction of a United States district court. Therefore, no such court can entertain "exclusive" jurisdiction of the foreclosure of ship, mortgages in this territory.
Neither is the High Court of American Samoa a federal court, Vessel Pacific Princess v. Trial Division, High Court (1984) 2 A.S.R.2d 21, nor has it been granted district court jurisdiction by congress. See Northern Pipeline and 356 Bales of Cotton.
Tt is a territorial court of a territory of the United States. As such it gives full faith and credit to the laws of the United States. See U.S. Constitution, article IV, sections 1 and 2; 28 U.S.C. section 1738; Hazen Research, Inc. v. Omega Minerals, Inc. (5th Cir. 1974) 497 F.2d 151.
Thus, the principles I distill from all of the above:
1. If there exists in a political entity a United States district court having geographical jurisdiction (the fifty states plus all commonwealths, territories and possessions except American Samoa), United States preferred ship mortgages can be foreclosed only in the appropriate United States district court.
2. If there exists a political entity which has a court with admiralty jurisdiction and which gives full faith and credit to United States laws but which is not within the geographic jurisdiction of a United States district court (American Samoa) the admiralty court in that entity (the High Court of American Samoa) has jurisdiction to foreclose preferred ship mortgages.
3. In all other political entities (foreign nations, their territories and possessions) the foreclosure of preferred ship mortgages is a matter of treaty or comity. (Such foreclosures would probably by chancy in Havana, Shanghai or Vladivostok.)
Thus, I conclude, belatedly, that the High Court of American Samoa has jurisdiction to enforce a ship mortgage.
The holding of the court in Interocean Ships, Inc. (1984) 2 A.S.R.2d 21 is not to the contrary. There, on the basis that this court was not g United States district court, the court granted a motion to dismiss a limitation of liability proceeding under U.S.C. section 184. Proceedings under that section were far beyond the jurisdiction of this court since the) *43involve the injunction of proceedings in United States district courts or state courts and the marshalling of claims of creditors.
Parenthetically, I would observe that my original ruling would have a devastating impact- on the tuna fishing industry and the economy of American Samoa which depends on that industry for a major part of its economy. Lenders simply wouldn't lend money on a purse seiner knowing it might go to American Samoa and avoid foreclosure. While not purporting to be an expert in the field of tuna boat financing, I have observed that most of these boats are in- hock up to their eyeballs and if this source of financing were cut off, there soon wouldn't be any such boats plying the waters of the South Pacific and selling their wares to the canneries of American Samoa. I don't think that was quite the intent of the ship mortgage law.
The order of December 5, 1984, denying plaintiff's motion for partial summary judgment is vacated. The court holds that plaintiff has a preferred ship mortgage on the motor vessel Conquest under 46 U.S.C. sections 921 et seq. and that it may be foreclosed under 46 U.S.C. section 951 in this court in the sum of $1,600,000 plus interest, attorney fees and costs. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485488/ | KING, J.
FACTS
Appellant contracted an ailment which resulted in partial blindness. The first symptoms occurred while she was at work at the Star-Kist cannery. Her claim for Workers' Compensation payments was denied by the commission; the denial was upheld by the trial division of the high court. This appeal followed.
DISCUSSION
Appellant contends that the commission and the trial court failed to give' proper weight to the A.S.C.A. section 32.0642 presumption that "in the *44absence of substantial evidence to the contrary . . . the claim comes within" the workers' compensation statutes. Appellant argues that this statute requires that the commission and the trial court find her claim was covered because the employer failed to produce any evidence that it was not. Appellees argue that they may rely on the claimant's evidence to rebut this statutory presumption.
The State of Hawaii has a similar statute which was discussed at some length in Akamine v. Hawaiian Packing & Crating Co. (Hawaii 1972) 495 P.2d 1164. What the Hawaiian Supreme Court said there is relevant here.
The presumption is not a mere procedural device that disappears upon the introduction of contrary evidence. ... It imposes upon the employer the burden of going forward with the evidence and the burden of persuasion. It may be rebutted only by substantial evidence that it [the claim] is unrelated to the employment. . . . Substantial evidence is relevant and credible evidence of a quality and quantity sufficient to jusfify a conclusion by a reasonable man that an injury or death is not work-conqected. . . . The presumption is further strengthened by a finding that the death or injury occurred in the course of employment. ... If the employer fails to adduce substantial evidence to the contrary, the presumption mandates that the claimant must prevail.
Id. at 1166.
The appellees did not put on any evidence at the hearing before the commission or at the trial before the high court. Instead the appellees relied on the evidence adduced during the appellant's presentation at the hearing and trial.
The appellees also argue that this statutory presumption "does not take the place of competent evidence, and once evidence is introduced that tends to controvert the work-related nature of the injury, the presumption must fall out of the case and the claimant has the burden of proving all elements of his claim." Brief of appellees AIU and Star-Kist Samoa at 4.
Appellees further argue that "[i]t is necessary for Appellant to establish some kind of preliminary link with the employment before the presumption can attach." Brief of Appellee Workmen's Compensation Commission (WCC) at 2.
There is a sufficient preliminary link to claimant's employment by a showing that some aspect of the injury occurred while the claimant was on the job. See Hartford Fire Insurance Co. v. Workmen's Compensation Commission (1979) AP No. 15-79.
If the claimant were required to show that the injury in question was work-related in order for the presumption to come into play, there would be no need for the presumption.
The Hartford Fire Insurance case makes it clear that the statutory presumption did "shift the burden of proof on the issue of causation to Appellant [employer], and required Appellant to meet that burden by substantial evidence." Id. at 1.
The Workmen's Compensation Commission considered "the central issue in this particular case" to be "whether Appellant's injury was the result of her employment with Starkist cannery that Friday morning on 18 July, 1980." Brief of Appellee WCC at 5. This misstates the issue.
The employer likewise misstates the issue. "In the present case, if there was any relevant evidence which tended to indicate Appellant's illness was not related to her work, then the presumption contained in A.S.C.A. 32.0642 falls from the case and the burden is upon the Appellant to demon*45strate the connection between her illness and her employment." Brief of Appellees AIU and Star-Kist Samoa at 4-5.
The correct question is whether, once the statutory presumption applies, the employer has met the employer's burden of proof that the injury in question was not work-related, by substantial evidence.
The employer did not offer any evidence, but argues from evidence adduced during Appellant's case.
We agree that the employer may meet his burden of proof in reliance upon the evidence introduced during the claimant's presentation before the Workmen's Compensation Commission. The only evidence relied upon by the appellees in this case is certain testimony by Dr. Iotamo Saleapaga, an internist called by claimant as an expert as to claimant's injury, both as to cause and extent.
Dr. Saleapaga assumed that claimant had an attack of pneumococcal meningitis because that was the diagnosis of Dr. Hess who was the admitting physician at L.B.J. Hospital when claimant was admitted on July 23, 1980. He testified that this particular ailment is caused by a pneumococcus that is found normally in the throat area of 40 to 60 percent of people, that it is not contagious, and that the organisms just "get mad" and invade the bloodstream causing infections, sometimes in the brain, sometimes in the lung. He testified that he was depending upon Dr. Hess' microscopic observations and that a laboratory report on a culture did not confirm Dr. Hess' diagnosis. There was no testimony as to what conditions or influences — for example, work-related or nonwork-related conditions — would cause the pneumococcus to "get mad."
We are of the opinion that the evidence relied upon by appellees does not constitute the substantial evidence necessary to overcome the statutory presumption of A.S.C.A. section 32.0642.
The denial of coverage by the Workmen's Compensation Commission and the affirmance thereof by the trial division of the high court are reversed.
The case is remanded to the Workmen's Compensation Commission with instructions to enter an order that appellant's claim comes within the provisions of A.S.C.A. chapters 32.05 and 32.06. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485489/ | MURPHY, J.
This litigation involves a three-acre parcel of land which both parties contend is the communal land of their respective parties. The seeds of this lawsuit were sown during the war, when in 1942, the navy constructed an airstrip in the western district of the island. It preempted land claimed by several Samoan families. Under the emergency conditions then prevailing little attention was paid to the niceties of land titles. Some sums of money were handed out by the naval administrators to various matais, thus giving the matais the impression that their claims were being recognized by officialdom and leading to later confusion. After the war the navy abandoned the facility and much of it reverted to bush. As the population grew various families have moved into the area and inevitably their claims came into conflict. It is out of this background that the present case arose.
Atofau Punaloa is the holder of the matai title Atofau. Before him his father was the title holder. Sometime in 1975 Atofau's father assigned him the subject land. He started to clear the jungle in preparation for constructing a house. Lopa, plaintiff-appellee, brought an action in 1977 to restrain the clearing and construction. A temporary restraining order was issued by Justice Miyamoto on January 14, 1977, and was continued on April 28, 1977. Other interested parties intervened. A pre-trial order issued but nothing was done to take the case forward and on April 21, 1981, Justice Miyamoto ordered the case dismissed, without prejudice, for lack of prosecution .
Atofau apparently went ahead and built a four-bedroom home and a retail store. In the meantime, Lopa filed a new case on June 10, 1981. He asked for a temporary restraining order. On June 22, 1981, the court (Justice Murphy presiding) denied the application for a temporary restraining order. A pre-trial order was entered on April 2, 1982. Nothing was done by Atofau and a default judgment was entered on September 28, 1982. On motion to set aside the judgment the court (Murphy) found Atofau had not been properly represented and set aside the default on April 4, 1983. On June 29, 1983, Lopa filed yet another action seeking, inter alia, another temporary restraining order. On July 13, 1983, Justice Gardner found no adequate showing of irreparable harm or a substantial likelihood Lopa would prevail and denied the temporary restraining order and consolidated all cases for trial.
Trial was held August 18, 1983, and resulted in a finding on August 22, 1983, that the subject land is communal land of the Lopa family and directing counsel for plaintiff to prepare findings, conclusions and judgment which were approved on September 1, 1983.* This appeal followed.
The trial court's holding is straightforward. Lopa owns the land; Atofau doesn't. But while the litigation was going on, Atofau built houses on the land. What happens now? The judgment infers, but does not state, *47that Atofau can remove the houses. This might have made sense when Samoan houses consisted of posts and a thatched roof. When one is dealing with modern American-style structures removal constitutes great economic waste. On the other hand a family should not be deprived of its land because someone, even acting in good faith, builds a structure upon it.
As stated earlier this situation is not unique. Sometimes a matai will give a non-family member permission to build on family land. A successor matai may rescind that permission, saying, and rightly so, the previousmatai did not have authority to alienate communal land. Some equitable solution should be fashioned by the court.
Some state courts have addressed a similar problem in the field of economic waste. This usually occurs when an architect or contractor makes a mistake that would cost so much to correct that some alternative must be fashioned. County of Maricopa v. Walsh & Oberg Architects, Inc. (Ariz. App. 1972) 494 P.2d 44; Blecick v. School District No. 18 (Ariz. App. 1965) 406 P.2d 750.
In this case a party acting in good faith at the direction of his matai has built.his home and store on another family's land. The land owner did not respond with diligence. He filed a lawsuit in 1977. It was dismissed four years later for lack of prosecution. To suggest now, as does the judgment entered,- that the structures be removed makes no sense.
The judgment as entered should be vacated. The matter is remanded to the trial court to find some solution which would avoid economic waste. Suggested alternatives would be to determine the value of the land and the structures 'and to set a reasonable sum to compensate the land owner for the loss of his land or to compensate the builder for the loss of his structures. Any other solution which will avoid economic waste or unjust enrichment will be consistent with this decision.
The findings, conclusions and judgment were prepared by prevailing counsel and went beyond the announced decision of the trial court. The judgment is conditional.
Honorable Samuel P. King, United States District Judge, District of Hawaii, sitting by designation of the Secretary of Interior. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485491/ | MURPHY, J.
The court made findings and conceded that the title Lualemaga should be awarded to one of three claimants. A.S.C.A. section 1.0409 provides, inter alia, for determination of disputed claims by the high court. The statute provides that the court shall be guided by consideration of four factors. The statute, as amended in 1982, provides that the court shall issue a written- decision that must contain findings and conclusions on each of the four issues.
This was done by the trial court. One of the .findings (and conclusion, although they were not so designated) was that appellant "has not established to the satisfaction of the court that he has any blood relation to the title."
Appellant complains about the result on several grounds. First, he contends the finding was not supported by sufficient evidence. (He concedes that the testimony of the other claimants supports the court's findings.)
Second, he contends the court erred in dismissing appellant's claim on the above grounds, and third, he contends the court erred by failing to consider his other qualifications.
As to the evidentiary complaint, there is sufficient testimony in the record to support the court's finding, not only from the testimony of the other candidates (The other unsuccessful claimant did not join in this appeal.) but from the appellant's own testimony.
However, that finding is mere surplusage and need not have been made. The findings and conclusions to be made on the issues relate to the successful claimant. Negative findings are never required. Inter-Island Resorts, Ltd. v. Akahane (Hawaii 1960) 352 P.2d 856, 859. The trial court need make *50only brief, definite, pertinent findings and conclusions upon contested matters. There is no necessity for over-elaboration^of detail or particularization of facts. United States v. Forness (2d Cir. 1942) 125 F.2d 928, cert. denied 316 U.S. 694; see also Findings of Fact, 1 F.R.D. 25.
* The court did not dismiss appellant's claim. At the conclusion of the evidentiary portion of the trial the presiding justice stated: "The court has now heard from the three candidates who have been examined and cross examined. The matter remaining would be the arguments of the counsel to the court on the merits of their respective candidates and the demerits of the others."
At no time up to final deliberation by the court was the appellant precluded from putting forth his claim. The court simply did not embrace his theory as to his hereditary connection with the title. The court made findings as to the prevailing claimant's claim to the title. The mere fact that the court compared the qualifications of the prevailing candidate with Fagasoaia Leasiolagi and not with appellant does not render the decision defective. The record discloses that appellant was given every opportunity to assert his claim. The judges considered the matter, employed the statutory guidelines and awarded the title to the claimant they found most qualified .
Appellant may be concerned that the dicta he complains of will affect future claims to the title asserted by him or his descendants. Not so. That finding, being surplusage, is ordered stricken. The decision of the trial court, as modified, is affirmed. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485492/ | HEEN, J.
Defendants John and Ulutolu Tiumalu appeal from the judgment below granting injunctive relief to Plaintiff Douglas O. Craddick.
The action had its genesis in a complaint for temporary and permanent injunction against Vaivao M. Fruean (Vaivao) and members of the Vaivao family. Vaivao is the matai of the Vaivao family. The complaint requested (1) that Vaivao and members of his family be enjoined from continuing to construct a building on a portion of the land Lotopesega in the village of Pago Pago; (2) that^defendants be required to remove that portion of tihe building which is on the land in question; (3) that defendants be permanently enjoined from further trespassing and building on the land. Craddick claims ownership of the land in fee simple under a quitclaim deed executed in California. Vaivao's motion to dismiss was denied and an amended complaint was filed joining the Tiumalus as defendants. The trial court permanently enjoined all defendants from trespassing on Craddick's land and ordered them to remove the construction within thirty days. Vaivao took no active part in the defense of this case and is not a party to this appeal.
The dispositive question is whether the Tiumalus can defend against Craddick's claim of ownership on the ground that the land is the communal or aiga land of the Vaivao family. We answer rio and affirm.
The matter of "standing" is normally discussed in regard to an individual's right to bring legal action, although it is also related to a party's right to appeal. We see no reason, however, why that concept should not apply to the Tiumalus' defense. We hold that the unique relationship between the matai and the aiga land, together with A.S.C.A. section 43.1309, deprive the Tiumalus of the defense they seek to make. If the disputed land is aiga land of the ^aivao family, and Tiumalu does not claim' otherwise, then pule over it is Vested in Vaivao.
By tradition the matai is vested with pule over the aiga land for the general welfare of the aiga members. See Poumele v. Ma'ae 1 A.S.R.2d 5 (1980). In Poumele, however, the high court held that a matai could delegate certain of his functions to be performed by family members, including in that case, authority to survey portions of the aiga land and to bring an action to try its title.
In 1981, presumably in response to Associate Justice Murphy's stirring and scholarly dissent in Poumele, thé Fono enacted legislation stating that the sa'o is the only person authorized to bring a suit for injunction in a dispute over communal or aiga land. A.S.C.A. sec. 43.1309.
It follows from the traditional authority of the matai over the aiga land and from A.S.C.A. section 43.1309 that, in any case in which title to land is disputed, a claim that the land is aiga land may only be made, whether offensively or defensively, by the sa'o of the family'in whose name the claim is made.
As stated above, the Tiumalus' defense is that the land in question is aiga land of the Vaivao family. That claim may be made only by Vaivao. Vaivao has not interposed that defense and has not appealed from the judgment below. Tiumalu has not presented this court with any other valid basis for overturning the judgment.
Affirmed. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485493/ | The facts of the case are simple. They could well constitute a chapter of Joseph Wambaugh’s Choir Boys,
One night after work plaintiff, a policeman, decided to celebrate his birthday by getting drunk with two fellow offduty officers under the banyan tree-in front of the police station. He (they) did. Plaintiff not only got drunk, he got obnoxiously drunk'. Defendant Petelo Mikaele, plaintiff’s long suffering senior officer, was on duty. He told plaintiff not to bring beer into the station. He did and was evicted. Defendant told plaintiff to go home. He didn’t. Finally Defendant went on patrol. Somehow plaintiff got on the police radio and broadcast, "Sgt. 1-14 (defendant) I’m waiting for you at the police department. Come back and I’ll put you down." Defendant returned to the station. Plaintiff grabbed him by his shirt and said, "Go ahead. Hit me." He repeated this statement, two or three times.
By this time defendant was out of patience with the plaintiff. He didn’t want to arrest him because it would cost him, the plaintiff, his job. So, he acceded to the plaintiffs request and hit him. Unfortunately, when plaintiff hit the ground he suffered head injuries for which he sued defendant (otherwise he probably would be thanking the defendant for noi arresting him,)
*53Plaintiff filed a civil rights action for this alleged battery against defendant, the Commissioner of Public Safety and ASG. He also alleges a conspiracy of the authorities in not criminally prosecuting defendant. This contention is frivolous. It is settled doctrine that the exercise of prosecutorial discretion cannot be challenged by one who himself is neither prosecuted nor threatened with prosecution. Linda R.S. v. Richard D., 410 US 615, 619 (1973); Simon vs Eastern Kentucky Welfare Rights Organization, 426 US 26 (1976). There is no equal protection issue. We return to the basic battery.
The issue is, can one consent to an intentional tort? Can someone say, "I dare you to hit me," then sue when he gets hit?
Preliminarily, the court holds that while plaintiff was drunk, he wasn’t too drunk to give consent. "The question of whether the plaintiff was in such an advanced state of intoxication that he was incapable of consenting to the alleged assault and battery presents a genuine issue of material fact." Hollerund v. Malamis, 174 N.W.2d 626, 635 (Mich. App. 1970). We hold plaintiff was capable of giving consent
According to Prosser "[c]onsent ordinarily bars recovery," not because it is a defense, but because it "goes to negative the existence of any tort in the first place." Prosser & Keeton, Torts 112 (5th ed. 1984). Prosser quotes Lord Dehman in Christopherson v. Bare (1848) 11 Q.B. 473: "To say that the defendant assaulted the plaintiff by his permission . . . is a manifest contradiction in terms.") Most of the cases, though, speak in terms of consent as a defense.
The general rule is that a plaintiff who consents has no claim upon the defendant, unless there is public interest involved. Therefore there may be a different analysis if the consent is to a crime
Prosser finds that the "considerable majority of the courts" (e.g., Iowa, Kansas, North Carolina, West Virginia, Wyoming), in cases of mutual combat, have used a public policy concept to hold that the plaintiff’s consent will not protect the defendant if the tort is a crime. -The -rationale is that a civil action helps protect the state’s interest and "the parties will be deterred from fighting by the fear of liability." Prosser at 122. Prosser points out that these decisions have been widely criticized. The criticisms are that no one should be rewarded for his own part in a wrong, the state can protect its interests through the criminal law, and that the parties are likely to be encouraged by the prospects of winning in court if they are injured. A minority (e.g. Kentucky, Michigan, Nevada, Texas, Washington) accepts the view that the plaintiff may not recover if he consents to a tort that is a crime.
That’s the view of the Restatement, which says "consent is effective to bar recovery in a tort action although the conduct *54consented to is a crime." Restatement 2d, Torts, sec. 892C (1979). An example in the Restatement comes close to our case: "A and B, after an altercation, agree to a fist fight. A gives B a black eye. A is not liable to B." Restatement 2d, Torts, sec. 60, Illustration 2 (1965). It seems that in most battery cases the courts ignore the issue of the tort being a crime.
Even the courts that allow a bellicose plaintiff to collect damages usually accept consent as á fact in mitigating or disallowing punitive damages.
There are many cases saying that mere words do not excuse a battery. As absolute as their language is they are not persuasive here because they involve abusive words such as personal insults and foul language, not “hit me" type language. An exception is Nsauful v. Milligan, 187 S.E.2d 511 (S.C. 1972). The plaintiff made an insulting remark about the defendant’s children. He later apologized to the defendant’s wife. A few days later the defendant learned of the incident and went to the plaintiff’s house. He told him he wasn’t putting up with that kind of statement and put a hand on his shirt. The. plaintiff threw his hands up and' said, "Hit me." The court held for the plaintiff, saying that neither the comment about the defendant’s children nor the words "hit me" constituted justification for the attack since there was no "accompanying offer of physical violence." Words alone cannot justify assault and battery.
In this, as in so many of these cases, the court wound up punishing the party who was in the wrong rather than following any consistent set of rules. The plaintiff may have said "hit me" but it was the defendant who was being obnoxious, the reverse of our case. And Fetui’s behavior would qualify as an "accompanying offer of physical violence."
Another "hit me" case, the one most similar to ours, is O’Connor v. Western Freight Association, 202 F. Supp. 561 (S.D.N.Y. 1962). The defendant, .an employee of a freight-forwarding company, asked the plaintiff, an employee of a railroad, to check a shipment. The plaintiff disregarded the request and the defendant became angry. Later the defendant invited the plaintiff to fight. The plaintiff refused, but said he would at noon, off the company’s premises. The defendant persisted and the plaintiff said "All right, let’s fight," putting up his fists. The plaintiff was injured. The court held that under New York law if the plaintiff consents to the fight he is without a remedy for his injuries. Since the plaintiff accepted the defendant’s invitation to fight his consent constituted a complete defense.
It appears to us that the better rule is that one may, by his words and actions’, consent to an intentional tort. There is something basically unjust in daring someone to hit, then, demanding recourse through the courts when hit.
*55As applied to the facts of this case, plaintiff consented to be battery and may not recover--either from Petelo Mikaele, the ommissioner of Public Safety or ASG.
Judgment for the defendant. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485494/ | If Government expects the individual to obey the law, government itself must obey the law. In this case it did not.
Starkist filed for an amendment to its tax exemption. The law demands a public hearing in these matters. A.S.C.A. sec. 11.1605. The reason is clear. If government is going to allow one taxpayer to pay only a fraction of normal tax, other taxpayers have a right to know why that taxpayer is receiving preferential treatment. The public will never know if part of the so-called public hearing is public and part is private. All the cards should be on the table. However, in this case only part of the hearing was public.
The people nave a right to Know about the workings of their government and the activities of public officials in the performance of their official duties. This is the purpose of Section 11.1605 which provides for public hearing. That purpose cannot be fulfilled unless all of the public hearing is public.
As one writer has put it, "Freedom of information about governmental affairs is an inherent and necessary part of our political system. Ours is a system of self government — and self government can work effectively only where the people have full access to information about what their government is doing." (Hennings, Constitutional Law: The People's Right to Know (1959) 45 A.B.A.J. 667, 668).
We would add — that which is not known and understood is likely to be distrusted.
*57This matter is remanded to the tax exemption board with instructions to conduct public hearings in compliance with the law. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485499/ | On June 1, 1983 Plaintiff had a public liability insuranc policy with Defendant. This policy had a $10,000 limitation. 0 that date Plaintiff had an accident with Nicholas Leoso -in whic Leoso suffered substantial bodily injuries.
Plaintiff contends he reported the matter to Defendan immediately. However, this ' testimony is suspect since hi written accident report to Defendant was dated September 12, 198 which was shortly after Defendant had been alerted to this clai by a letter from Leoso’s attorney dated September 8, 1983 we fin that Plaintiff did not report this matter promptly. His hand aren’t entirely clean.
On September 12, 1983 Defendant responded to the Leos letter with a request for police and medical reports. Counse responded promptly, Samoan time, (six months later) with a polic report, medical consent and an offer to negotiate.
Then, on March 27, 1984 Leoso’s counsel offered to settl for the policy limits--$10,000--the offer to be good for 30 days On March 28, 1985 Defendant acknowledged the demand an apparently forwarded the file to the head office in Sydney. B letter of April 3, 1984 (delivered April 23, 1984 --- speed postal service, Samoan style) the claims manager gave Defendan "the policy limit with which to negotiate" but in view o Defendant’s "tough negotiating practices" he expected settlemen *73'at a substantially reduced figure." On April 19, 1984 Leoso’s :ounsel extended the time to settle for the policy limits 21 lays. There was no response. On May 23, 1984 Leoso filed suit, 'he trial court gave judgment for $12,000 in October 1984, the tppellate court double this award. Plaintiff now owes $15,000- on she judgment.
Every insurance contract contains an implied covenant or jood faith and fair dealing. Communale v. Traders and General Insurance Co., 50 Cal. 2d 654, 328 P.2d 198. This includes a luty to effect reasonable settlement of a claim against the .nsured within its policy limits when there is a substantial .ikelihood of recovery in excess of those limits. Upon breach of shat duty by the insurer, the insured has a right of action igainst the insurer for damages proximately caused thereby. Northwestern Mut. Ins. Co. v. Farmers Ins. Co., 76 Cal. App. 3d 03. 143 Cal. Rptr. 415 (Gardner, P.J., concurring).
Here, once counsel got into the case Plaintiff was advised >f. his right to secure counsel and at trial (Oct. 1984.) and >ffer was made to settle for the full policy limit. This came a .ittle late. Almost six months earlier the time to accept the sffer had run out.
The local manager of Defendant company had evaluated the jase as a policy limit case. So had the claims manager at the lome office. With clear liability and serious injuries there was i substantial likelihood of recovery in excess of the $10,000 Limit. Of course Defendant wanted to bargain but it could not do so at plaintiff’s expense. It knew it was on the hook for |>10,000 (which eventually went for $25,000) so it lost nothing by stalling. It did and it cost Plaintiff $15,000. This, Defendant uould have avoided by settling. They took a chance and lost.
Defendant’s story that it tried unsuccessfully to contact Plaintiff falls a little flat. All they had to do was pick up she telephone. He is listed. He has been in business for several years.
Plaintiff did not receive the fair treatment his Insurance Company owed him. However, the facts of this case afford no jasis for an award of damages for emotional distress nor of punitive damages.
Judgment is for $15,000 plus interest. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485500/ | Petitioner has moved for declaratory judgment on the authority of A.S.G. to lay and collect an income tax on an employee of D.O.I. whose salary is paid from Washington for services rendered in this territory. He contends that A.S.G. lacks authority to tax such income. His contentions may be summarized as follows: The power to tax in a Territory must be delegated by Congress by an organic act. The Territory has nc such Act. Instead is administered by the Executive Branch of the U.S. Government. Thus, it has no independent authority to tax incomes.
The answer is, of course, that Congress has delegated full powers of governance, Legislative, Executive, and Judicial, tc the President of the United States acting through the Secretary of the Interior. 48 U.S.C. sec. 1661 (c) provides that "until Congress shall provide for the Government of this Territory all civil, judicial and military powers shall be vested in sucb person or persons and shall be exercised in such manner as the President of all United States shall direct." Congress need not pass an Organic Act. It has delegated all powers of governance, without reservation, to the President. Rather obviously this must include the power to tax because without such powei Government cannot exist.
As the court noted in William vs. A.S.G.. 2 A.S.R. 2d 9 *75(1984), Congress has entrusted the governance of this Territory to the Department of the Interior which has approved the constitution and all laws promulgated under that constitution.
There is no" need for a special congressional authorization. The general authorization suffices.
Actually, this exact issue has been before the Appellate Division of this court in Butler vs. G.A.S., App. 45-72 which held that "the Secretary of the Interior through the President, as the lawful delegate of legislative power for American Samoa, stands in the shoes of Congress and similarly, has authority to impose such a tax scheme." Butler, page 9.
Butler held that although the Fono does legislate in accordance with our constitution, it legislates subject to the direct control of the Secretary of the Interior and that "all legislative power is vested in the Secretary of the Interior.'"
Congress having delegated all legislative power to the Secretary of the Interior via the President. That being so there is no need for an organic act authorizing legislation. This legislation is valid.1
Motion for declaratory judgment denied.
. For an interesting discussion see The Validity of the Incorporation by Reference of the United States Tax Laws. Including Those To Be Passed In The Future. By the Legislature of American Samoa by Eni Hunkin which appears in Volume 3, number 3, October 1975, the Samoan Pacific Law Journal. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485502/ | MURPHY, Acting Chief Justice,
concurring.
At the outset I note that both the Trial and Appellate Division are quite correct in pointing out that the High Court of American Samoa is not a United States District Court. The vessel Pacific Princess v. Trial Division, 2 A.S.R. 2d 21 (1984). It‘is a territorial court duly constituted under Articles IV of the United States Constitution. This fact has cause problems for the Territory and the Court. As Chief Justice Gardner pointed out in his concurring opinion in Pacific Princess. "To me the lack of access by the residents of this territory to a court with federal jurisdiction is troublesome. I think this is the only territory of the United States which is not within the jurisdiction of a United States District Court." Id. at 24. American Samoa has a United States Post Office, F.D.I.C. insured banks, a Social security Office, F.A.A. .installations and numerous other federal *82contacts. When legal problems arise concerning these enterprises the appropriate forum would usually be a United States district court.
Some federal legislation affecting American Samoa specifically provides for enforcement by the High Court. The Wholesome Poultry Products Act (21 U.S.C. secs. 451 et seq.) and the Wholesome Meat Act (21 U.S.C. secs. 601 et sec.). for example, provide that "The United States district courts, the District Court of Guam, the District Court of the Virgin Islands, the 'highest court of American Samoa, and the United States courts of the other Territories, are vested with jurisdiction specifically to enforce, and to prevent and restrain violating of, this Act." 21 U.S.C. secs. 467(c), 674. A few Acts allow enforcement of claims arising in American Samoa in a particular district court. The Federal Water Pollution Control Act (33 U.S.C. secs. 1251 et sea.) and the Marine Protection, Research, and Sanctuaries Act ('33 U.S.C. secs. 1401 et seo. ) provide that "in the case of American Samoa and the Trust Territory of the Pacific Islands [actions may be brought in] the District Court of the United Sates for the District of Hawaii.” 33 U.S.C. secs. 1321(n), 13 2 2(m), 1402(g).
The most common approach, however, is that typified by the Right to Financial Privacy Act (12 U.S.C. secs. 3401 et seq.) which defines financial institution as a particular type of business "located in any State or territory of the United States, the District of Columbia, Puerto Rico, Guam, American Samoa, or the Virgin Islands." 12 U.S.C. secs. 3401(1). The Act goes on to provide that certain remedies are to be pursued "in the appropriate United States district court." 12 U.S.C. secs. 3410(a). The Surface Mining Control and Reclamation Act (30 U.S.C. secs. 1201 et sea.). as another example, defines state as "a State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, American Samoa, and Guam," (30 U.S.C. sec. 1291(24) and further provides that an action by the Secretary of the Interior approving or disapproving a state surface mining program "shall be subject to judicial review by the United States District Court for the District which includes the capital of the State whose program is a issue." 30 U.S.C. sec. 1276(a). Clearly in such cases it was the intent of Congress to make available a federal court in Which to adjudicate all disputes which arise under the Act. Only in American Samoa is this not possible.
One is strongly tempted to believe that the lack of access to such a court is the result of Congressional oversight and inattention rather than a deliberate attempt to exclude American Samoa.
American Samoa came under the jurisdiction of the United States through treaties of cession executed on April 10, 1900 and July 16, 1904. The treaties were not ratified by Congress until 1929. 48 U.S.C. secs. 1661, 1662. In. that Act, Congress *83delegated to the President all civil and judicial power necessary to administer the territory. In 1951 administration was transferred by the President from the Secretary of the Navy to the Secretary of the Interior. Congress has never passed an organic act but the Department of Interior did approve the adoption of a constitution in 1960 that provides for executive, legislative and judicial branches. In 1977 a provision for an elected Governor and Lieutenant Governor was promulgated by the Department of the Interior. Finally, in 1983 Congress enacted legislation providing that amendments to the American Samoa Constitution can be made only by Act of Congress. 48 U.S.C. sec. 1662(a).
The High Court has stated that "Congress nevertheless retains all legal authority over the people of this territory and all departments of its government, and may legislate directly for the territory, abrogate its laws, void a valid act, or validate a void act." Simoa v. American Samoa Government, 2 A.S.R. 2d 9, 10 (1984), citing Inter-Island Steam Navigation Co. v. Territory of Hawaii, 305 U.S. 306 (1938). This legal authority extends to the High Court.
This does not, however, mean that the High Court can act only where specifically empowered to do so by Congress. In 1975 the Fono (Legislature of American Samoa) passed a bill conferring in rem and in personam admiralty -jurisdiction on the High Court. A.S.C.A. sec. 3.0208(a)(3). This was held to be a proper grant of admiralty jurisdiction in Meaamaile v. American Samoa, 550 F. Supp. 1227 (D.Haw. 1982). In that case a Samoan sailor injured aboard a Western Samoa vessel under charter to the government of American Samoa brought an action in the United States District Court for the District of Hawaii. Judge King, in dismissing the action, referred the plaintiff to the High Court. He held that it is not necessary for admiralty jurisdiction to be directly and specifically conferred upon territorial courts by Congress. "Rather, Congress may properly delegate plenary authority, including judicial authority, to govern a territory to the Executive. That is exactly what Congress has done in the case of American Samoa. Pursuant to its grant of plenary judicial power over American Samoa, the Executive has 'properly conferred in rem admiralty competence upon the High Court by approving the act of the American Samoa legislature set forth above." Id. at 1237-1238.
So the High Court can exercise at least some authority not specifically granted it by Congress. To carry out its admiralty jurisdiction to the High Court adopted admiralty rules, including rules for the conduct of this type of limitation action. American Samoa Trial Court Rules, Supplemental Rules for Certain Admiralty and Maritime Claims, Rule (3). The question faced by the court in this case is whether the High Court’s admiralty jurisdiction properly extends to the limitation of liability and the issuance of an injunction to protect the validity of such a limitation, if proper.
*84I agree with the reasoning of the majority opinion regarding the power of this court to limit a shipowner’s liability as part of its inherent authority as an admiralty court. The question of the power of the High Court to enjoin proceedings in other jurisdictions is more troubling. A limitation action without injunctive relief is a right without a remedy.
Chief Justice Gardner faced a similar problem in a Trial Division case, Security Pacific Bank v. M/V Conquest, 2 A.S.R. 2d 40 (1985). In that case the plaintiff brought an action under 46 U.S.C. section 951 to foreclose a preferred ship mortgage. That section of the Act ‘provides "original jurisdiction of all such suits is granted to the district courts of the United States exclusively." Justice Gardner held that the purpose of that phrase was to ensure that no state court would attempt to exercise jurisdiction over a ship mortgage. Lacking a United States District Court to exercise 'its "exclusively, original" jurisdiction a mortgage can be foreclosed in any court exercising valid admiralty jurisdiction, the court held.
The Chief Justice distinguished his holding in Conquest from the case before us as follows: "Proceedings under [46 U.S.C. 195 are] far beyond the jurisdiction of this court since they involve the injunction of proceedings in United States district courts or state courts and the marshalling of claims of creditors." id. at 42-43.
Chief Justice Gardner also .looked to the purpose of the Ship Mortgage Act in deciding that the High Court could exercise the jurisdiction granted "exclusively" to the United States district courts. He found that the Act’s intent to stimulate private investment in the shipping industry would be thwarted if security interests in financed ship could be avoided simply by taking a ship beyond the jurisdiction of any district court, id. at 41.
It has been held that the purpose of 46 U.S.C. section 185 is to permit all actions to be consolidated in one action which will dispose of all claims against a vessel owner. Complaint of Caldas, 350 F. Supp. 566 (D.Penn. 1972). Proceedings under section 185 have also been said to be designed to marshal all claims against a vessel and owner. Petition of Canada S.S. Lines, Ltd., 93 F. Supp. 549 (D. Ohio 1950). Certainly these purposes are not promoted by denying the High Court the power to enjoin proceedings in other forums.
"The bottom line" as economists and accountants are fond of saying is as follows: owners of vessels entering Pago Pago harbor have fewer substantive rights than in any other American harbor, and perhaps fewer rights than afforded by Commonwealths having free association compacts with the United States.
The Government of American Samoa and much of the local business community seem to feel, rightly or not, that the fishing *85industry is the mainstay of the Territory’s economy. Judge Gardner’s concern about the economic consequences to the shipping industry set forth in Conquest as to mortgage foreclosures applies also to limitation actions.
My closing observation as to the majority opinion is lifted from another Gardner classic, "correct it may be, right it is not." Crammer v. Shay, 94 Cal. App. 3d 242, 156 Cal. Rptr. 303 (1979), at 307. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485503/ | Auina To’oto’o was convicted of two counts of larceny and fraud, one count of embezzlement and one count of false entry in a record, all committed by approving loans while acting as president of the Development Bank of American Samoa. The Bank’s lawyer, John W. Von Cramm, the borrower, was also convicted of two counts of larceny and fraud and one count of embezzlement. Both defendants were sentenced to 5 years imprisonment.
After conviction and imprisonment, Von Cramm: 1. Lost his license to practice law, and 2. Began a course of hospitalization for coronary problems which may have been aggravated by the stress of imprisonment. On motion, the court probated the balance of his sentence on the condition that he repay the loans.
Not surprisingly To’oto’o now moves for relief from his sentence. He argues, correctly, that there are various reasons for imprisonment. One is to prevent the 'defendant from committing other crimes --- impossible in this case since he is no longer president of a bank or likely ever to be one again. Another is rehabilitation, not applicable in this case since the correctional facility is not equipped to help this defendant, and furthermore he didn’t benefit from the crime in the first place. A deterrent effect on others may have already been achieved since the fact of exposure, prosecution, conviction and imprisonment has not been lost on others in positions of responsibility. ' The only reason for further imprisonment in To’oto’o case is *87punishment. Of course, punishment is a legitimate consideration Ln. criminal sentencing, although certainly not the only or perhaps the paramount consideration.
Comparative sentences are also important. In order for sentences to be fair they should be even handed. No crimes or criminals are identical, but similar crimes, committed by similar iefendants should receive similar sentences. In other words, miformity of sentencing is desirable. Judges (contrary to popular belief) are human and will find that tough judges will sentence severely and easy judges leniently. People v. Sutton, 113 Cal. App. 3d 162, 164, 169 Cal. Rptr. 656 (1980)(Gardner, P.J. ).
However, sentences should bear a reasonable relationship to the average. "My object all sublime, I shall achieve in' time. To make the punishment fit the crime." The Mikado, Act II, tfilliam Gilbert.
While the defendants in this case seem to have been treated Identically by counsel, prosecutor and court (both trial and appellate) there is actually, quite a difference in culpability, lonsider, for example; the crime could never have been committed without the concurrence of To’oto’o. Had he (To’oto’o) exercised a public responsibility no crime could have occurred.
The court has asked counsel to review sentences' imposed in similar cases. They have done so. As the prosecutor points out, learly all other "white collar” crimes have been plea bargained. 4uch more lenient sentences have resulted.
Traditionally, a defendant who exhibits remorse and pleads guilty hopes for, and usually gets, a lighter sentence. On the ither hand, a defendant should not be punished for insisting'on lis constitutional rights to a trial.
Taking all these factors into consideration the Court concludes that the interest of justice would be served by reducing the sentencing of Auina To’oto’o from 5 years to 3 pears.
So ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485504/ | This matter comes before the Court on a Motion by the Respondents for summary judgment. Present were the Petitioner with her counsel Mr. Reardon, esq. and representing the respondents was Mr. Greisman, Assistant Attorney General.
The posture of this case is that Mrs. Banks is appealing to this court for review of the Personnel Advisory Board's decision ordering the hiring of Mr. Penei Sewell instead of her. Admittedly the Personnel Advisory Board's decision had a direct and substantial impact on Mrs. Banks' aspirations for the position in question and she may have some cause for complaint. However, the procedural route taken by Mrs. Banks in this
*89instance is not available
The Personnel Advisory Board in this instance was reviewing two conflicting selection processes held for one government position. The Personnel Advisory Board's decision that the original procedure for selection was proper and ordering the hiring of Mr. Sewell is an executive decision which is not reviewable under the Administrative Procedure Act. Mrs. Banks was not a party before the Personnel Advisory Board and her mere aspiration for the position is not a vested interest subject to protection under the Administrative standing. Even if we were to find adequate review provided at the A.S.C.A. review. Procedures Act. She has no some vested interest there is trial level and pursuant to sec. 4.1040(b) the appellate court would decline this
The Personnel Advisory Board's decision resolved an internal dispute within the executive branch about a selection procedure. If that resolution violates Mrs. Banks' civil rights or other common law or statutory right she should proceed with an action in the Trial Division against the American Samoa Government or in the alternative the Equal Opportunity Employment Commission.
Motion for summary judgment is granted. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485766/ | Plaintiffs seek a permanent injunction to restrain the defendants from erecting a residential structure on a certain plot of communal land located in the village of Utulei. In addition, plaintiff McMoore prays for the eviction of defendants from the site together with damages for the destruction by defendants of a house formerly located on the site and claimed by plaintiffs as theirs.
The central feature of this dispute became largely overshadowed by the development of a collateral dispute about who was the family's senior matai and who held the "pule" over the piece of realty in issue. More specifically, the dispute between Luaao McMoore (hereafter referred to as "McMoore") and Uoti Popoali'i (hereafter referred to as "Popoali'i") over possessory rights to a certain piece of land, became the vehicle for matai rivalry over the right to sign government papers concerning family lands in the village of Utulei. Because of this rivalry, the merits of the actual dispute between McMoore and Popoali'i were simply not open to resolution by the family's matai.
The Court on its own motion joined Chief Lutu as a party plaintiff and Orator Taesaliali'i (hereinafter referred to as "Taesali") as a party defendant. In the usual Samoan family setting, the sa'o of a family and his corresponding pule is well established beyond dispute. Thus, A.S.C.A. § 43.1309 provides that only the sa'o or senior matai may bring injunctive applications in connection *82with family land disputes.1 As pule is disputed herein, we found joinder, consistent with the general tenor of that enactment, to be appropriate. Secondly, it earlier appeared to the Court at the preliminary proceedings that the underlying turf dispute between titleholders may have a significant bearing on the case.
There was no dispute on the evidence regarding ownership of the parcel of land in question. The land belongs to a communal family whose members identify themselves as the Lutu, Afoa, Taesali, and Tupua family (hereinafter referred to as the "family") . The members regard their family as pertaining to the village of Fagatogo which, they say, includes the sub-village of Utulei as the same was known in accordance with traditional village polity.2 We also gather from the evidence that the titles Lutu, Afoa, Taesali, and Tupua are distinct matai titles, with respective lesser matai. However, for reasons lost to antiquity, the individual members of the family, as the same is known today, are all able to claim entitlement to any of these four major titles. Indeed, when the members meet as a family, they do so for general purposes as the Lutu, Afoa, Taesali, and Tupua family. On the other hand, the family members do distinguish themselves according to four distinct clans or "faletama," namely; the Taeletoto clan, the Pua'a clan, the Loi clan, and the Toalima clan. In our assessment of the . evidence, this distinguishing aspect has given rise, now and then, to dissension among the members, although the family has by and large managed to co-exist in harmony notwithstanding their multiple matai allegiances.
Facts
Plaintiff McMoore is 70 years of age and a blood member of the Lutu, Afoa, Taesali, and Tupua family. He testified that he was made a lesser matai in the family by a former Taesali and that he has to date served the family and the family matai. *83Much of McMoore's life has been spent in the territorial government career service. With regards to the site in question, McMoore testified that the land was designated for his use by the then family matai at a time when the village was relocated inland during the second world war. The armed forces, and then later the territorial government took over the previous village site. Plaintiff further testified that in 1938 he married the sister of Uoti Popoali'i, the defendant herein, and started to build his marital home in 1945, after having leveled and cleared his designated homesite. The home he built was said to be the two story structure which the defendants recently dismantled, thus prompting this suit. By way of supporting proofs, McMoore supplied a copy of a "Building Permit Notice" made out to a Luaao of Utulei for permission to build a non-Samoan construction. This permit was given under the signature of Governor Houser, on 13 December 1945. McMoore also testified that he, his wife, and children alone occupied that house until his marriage ended in divorce.3 Subsequent to the divorce, he moved in with his sister, Toa, who owned an adjoining home, while his wife and children continued to occupy the marital home. Sometime thereafter, his wife's brother from Ta'u, Manu'a, the defendant Uoti Popoali'i, also began living in the marital home. McMoore said that eventually Popoali'i married and brought his wife into the home. After a time, as McMoore's children had grown and began leaving the marital home, his ex-wife moved off-island while Popoali'i and his family continued to occupy the home to the day it was recently dismantled. McMoore further testified that he was content to allow the defendants to continue living, for the time being, in his home, as after all, his children are related to the defendants. Suit, however, was filed after the defendants had dismantled his home thus attempting to oust him from the site (the sentiment being that over a period of time ouster would be the consequence of Popoali'i's actions because the validity of McMoore's claim would naturally have the tendency to deteriorate from an evidentiary point of view) , and after the realization that ongoing negotiations within the family had failed to curtail continuing construction by defendants.
*84Defendant Popoali'i is 74 years of age. He claims that the house dismantled was built by him and that his sister and her husband McMoore had at one time lived with him. He testified that while he is not a blood member of the Lutu, Afoa, Taesali, and Tupua family, he was given a share in that land allotted by the family to a group of Niuean settlers who were living in Utulei under the auspices of the matai and who continue to be known by the family designation of "Usoali'i." Popoali'i claimed that he. early arrived at Utulei before the war as a student sent from Manu'a to complete his schooling in Tutuila. In the course of time he was informally adopted by a Niuean couple and thus he acguired a portion of the Niuean allotment when the village moved inland.4 Popoali'i said that after a time he returned to Manu'a to cultivate a plantation and left his sister and her family to continue living in the house. In 1950 he married and sometime in 1963 he returned to the house in Utulei with his wife and children after hearing that his sister and husband had marital problems. Popoali'i testified that in time the late Afoa Atapuai bestowed upon him the family's lesser matai title, Ae, and that he has served the family and matai ever since. He has remained in the said house to this day although after a time his sister and her children had moved out. He claims to have made repeated repairs to the house without objection from anyone in the family and states that towards the end of 1988 he decided to tear down the old home and build a new structure. Before doing so he sought permission from the matai of the family and we note that in the process of seeking that permission, some differences arose among the matai.
On the documentary evidence furnished, we find that in 1985 defendant Popoali'i had secured from the government a building permit to build a structure in Utulei on land described as being owned by "Afoa, Lutu." The- permit is signed on behalf of the land owner in the following manner: "Pula T. Teofilo for Lutu, Afoa." This permit was *85renewed in early March, 1988 and a few weeks thereafter a separation agreement was sought from the matai.
Popoali'i's daughter testified that she was first sent with a separation agreement form to Lucu who signed the same with the instruction that Taesali should be given the form also for signature and that the other family matai in Utulei should be advised accordingly. After she had taken the form to Taesali, she was told by the latter to procure another new form for his signature alone. It was Taesali's position that Lutu did not have the right to sign for family lands in Utulei. She procured another form which Taesali then signed and which was then filed with the territorial Registrar's office (for the usual posting requirements). Eventually, and towards the end of 1988, Popoali'i dismantled the contested house and commenced rebuilding notwithstanding the continuing objection of McMoore. In turn, this gave rise to individual appeals to the family's different matai, the filing of an action by plaintiff which secured a preliminary injunction to halt the construction, attempts by the family to resolve the matter, and finally the dispute was left to the Court for resolution.
Discussion
There was solidarity with the testimony given by the senior members of the family to the effect that the site in question was assigned to McMoore by their forefathers (former matai). The general consensus was that Popoali'i came upon the land through his brother-in-law, McMoore, and that Popoali'i has no independent entitlement to the site, save through his brother-in-law. These senior members of the family were strongly united in the view that the rights of McMoore as a member of the family should not be undermined by anyone in favor of a non-family member.
Taesali, on the other hand, claimed that the pule over the family holdings in Utulei had been given over by family tradition to the Afoa and the Taesali. As the Afoa title was presently vacant, Taesali insisted on his sole right to exercise pule. In his judgment, that pule should be used in favor of Popoali'i because the latter is not only a lesser matai of the family but has been faithful and unwavering in his service to the family.
*86However, Taesali was not clear in the matter of how Popoali'i came upon the land. This lack of knowledge was also significantly noticeable in the testimony of the younger generation of family members who testified on behalf of defendants, and who joined with Taesali on the question of who should have pule.5
In contrast to the family testimony which supported McMoore7s version of the facts, the Court finds corroborative evidence to be wanting for Popoali'i's version. Furthermore, Popoali'i's evidence of entitlement, which was essentially his own testimony, left much to be desired in the way of credence. His testimony lacked that logical and ordered chronology of occurrences which was obvious in the testimony of McMoore and his son Sione. Rather, Popoali'i struggled with placing certain crucial events unlike the eye witness with an understandable memory lapse but in a manner more consistent with the probability that those events recounted had never in fact occurred.
*87The Court is satisfied that the evidence preponderates in favor of McMoore's version of the facts. We necessarily conclude on the evidence as follows: that McMoore is a member of the family; that the piece of property in question was assigned by the family matai to McMoore for his use; that consistent with that assignment, McMoore built a home on the site; that Popoali'i has lately been occupying McMoore's home (and hence the land) with the latter's assent, and without objection from the family; that while Popoali'i was made a lesser matai within the family, he is not a member of the family;6 and that both parties serve the family matai.
Conclusions
As we alluded to at the outset, the focus on the intervening question of pule distracted attention from the dispute between McMoore and Popoali'i concerning their respective rights to the land. We now turn to examining those rights.
In Tuanaitau v. Pagofie, the Court said of entitlement rights to lands: "[u]nder Samoan customs (faa-Samoa) . . . communal family land is owned by the Samoan family as such and each member of the family has a right to the use of a portion of the family land." 4 A.S.R. 375, 381 (1963). This right to use family land has also been held to be a proprietary right within the due process clause, Rev'd Const. Am. Samoa art. I § 2, of the territorial constitution. Fairholt v. Aulava, supra. at 74. Vis a vis McMoore and Popoali'i, McMoore as a family member has such a proprietary right to use family land whereas Popoali'i by definition has no such right. This difference in status was exactly the basis of much concern shown on the witness stand by the older members of the family who could not reconcile Taesali's attempted exercise of pule and a family member's rights to family land.
Generally pule is the authority vested in the matai to protect and conserve the family's assets. This authority includes the division, allocation, and reallocation of land to individual family *88members for their use. Numerous cases have likened the pule of the matai to that authority of a trustee because the matai holds for the benefit of the family. In this connection, he has the general ability to administer the family lands but at the same time he has no authority to alienate land in his own right. The courts have not interfered with this administrative authority except in those instances where matai action was found to be arbitrary and capricious. " [P]ule . . . must be used for the benefit of family members . . . justly and fairly. It is not to be used unreasonably and unjustly." Tali v. Tupeona. 4 A.S.R. 199, 206 (1961) . See also Fairholt v. Aulava, supra. The law then recognizes that in Samoan custom, the matai has the duty to exercise his pule for the benefit of the family. It thus follows that when a matai undermines the rights of a family member (a beneficiary of family property) to favor a non-family member, he is surely acting inconsistent with, and is in breach of, that duty to exercise his pule for the benefit of the family members.
Having concluded that the land site in question was previously designated by the former family matai for McMoore's use, we hold that a matai decision in favor of Popoali'i would be an improper exercise of pule. Taesali v. Samuela, a case which should be familiar to the family, held that an "assignment [of land] having being made by the then matai [to a family member] in accordance with Samoan customs, [the said assignment] cannot now, after it has been relied upon by [the] family member, ... be subsequently revoked by the new matai . . . except for good cause." 3 A.S.R. 359 (1958). The Court in that case did not elaborate on cause sufficient to give rise to revocation. However, the Court has held elsewhere that the matai can evict a family member from family lands if such person refuses to serve the matai. Leapaga v. Masalosalo. 4 A.S.R. 868 (1962). Similarly in Fairholt v. Aulava. supra, a family member's rights to the use of family lands was explained to be a conditional entitlement dependent upon that member's continuing service to the matai. In the present matter, however, McMoore continues to serve the matai and family and neither Taesali nor the other defendants have made a showing of cause for the revocation of McMoore's assignment.
As opposed to a revocation situation, there are certain circumstances whereby a family member *89can be said to have surrendered his entitlement to previously assigned land by agreement or abandonment. Such surrender operates in favor of a reversion of that estate to the matai for the benefit of the family and such land therefore becoming available for reassignment by the matai. Talagu v. Te'o, 4 A.S.R. 121 (1974).
The evidence before us does not sustain a conclusion of surrender. The testimony of those family members knowledgeable on the circumstances of how Popoali'i came upon the land explained Popoali'i's presence as arising solely through his brother-in-law McMoore's permission to use the latter's house on the land. While acknowledging the retention of McMoore's estate, these same family members, as we have said, firmly deny any independent rights to the land by Popoali'i. The fact that McMoore had assented for many years to the use of his home by his brother-in-law does not, on that ground alone, give rise to a surrender. Additionally, a surrender, as we have seen, operates in favor of a reversion to the matai for the benefit of the family and not in favor of another specific individual whether family member or not. There are simply no grounds presented for the revocation or reallocation of McMoore's estate in the land. The decision by Taesali (asstiming that he has the rightful claim to the sole pule in the circumstances) in favor of Popoali'i was premised solely on the basis of Popoali'i's satisfactory record of service and quite without regard to the possibility of underlying vested proprietary rights of a family member to the land- — McMoore also has a satisfactory record of family service. In effect that decision rested on the mistaken assumption that pule may be exercised without limitation. That is not the law in the territory.
As we have already indicated above we need not here decide the issue of "pule." McMoore's entitlement to use the land came about through the duly exercised pule of former matai. That, continued right to possession may not be subsequently revoked by successor matai without cause. Taesali v. Samuela supra. Additionally, we do not find anything in the testimony of Chief Lutu indicating a preference between the parties nor an attempt on his part to exercise a pule inconsistent with the result we have reached. We therefore leave the matter of "pule" to further family *90consideration. We grant relief accordingly to McMoore.
The other aspect of plaintiff's complaint for consideration is actionable damages. That the wrongful demolition of one's home gives rise to actionable damages is an overstatement of the obvious. We need not however belabor the merits of this claim as the evidence was insufficient on the question of the actual amount of damages McMoore suffered. The testimony in this regard merely leaves us with a picture of a pre-second world war wooden structure on concrete stilts or columns. The bottom floor was not enclosed while the upper floor, according to McMoore, was partitioned only to the extent of providing one bedroom. While both sides alluded vaguely to some repair work having been done, the Court was essentially left without much of an understanding of the structure's condition prior to its being dismantled. The original building would have undergone some forty plus years of wear and tear, and would have accumulated an appropriate degree of deterioration further diminishing its already speculative value. As against this, neither party impressed us with having had the motivation to keep up the house and make improvements. As far as we can gather on the evidence, McMoore's situation kept him out of the home since his separation from his wife. On the other hand, Popoali'i would have had little reason to improve a structure which is not his. We are also unable to give any weight to plaintiff's attempts to show the structure's replacement value. He lacked competence on the subject matter and the figures he gave to the Court had no relation to the condition of the home in 1988. Accordingly not having a basis on which to calculate damages, we conclude that an award of damages in name only may be made in the circumstances. Huntington Corporation v. Inwood Const. Co., 472 S.W.2d 804 (Tex. App. 1971).
On the foregoing, plaintiff shall have judgment as follows:
1. A permanent injunction enjoining defendants and each of them from further construction on the land site in question. Defendants shall vacate the site within such time as defendants may reasonably require to remove any and all of their possessions located on and about the site. Such time shall not exceed a period of 120 days from entry hereof and *91after which time, anything left by defendant on the land shall be considered abandoned.
2. Damages against defendants in the sum of $10.00 plus Court costs.
It is so Ordered.
Cf. Fairholt v. Aulava, 1 A.S.R.2d 73 (1983).
Today, the village of Utulei, for purposes of representative districts, is not aligned with the village of Fagatogo, but with the villages of Fatumafuti and Faga'alu. See Rev'd Const. of Am. Samoa art. II § 2.
The High Court's files reveal the date of divorce as February 15, 1955. Launiu v. Luaao, DR No. 8-1955.
According to Popoali'i, McMoore's allotment of land is some 12 to 13 feet away from the site in dispute. His reference is to that same lot containing the house which McMoore had referred to as his sister Toa's home and to which he moved after his divorce.
We are quite clear on the testimony that the Taeletoto clan, and to a lesser extent the Loi clan, has been dominant in numbers in Utulei, although some members of the other two clans occupy portions of family land in Utulei as well. The testimony also clearly suggests that members of the Taeletoto and Loi clans have also historically dominated the family titles, Afoa and Taesali. A number of these clan members, including the incumbent Taesali, claim a family tradition whereby the “pule" to family lands in Utulei lies with the Afoa and Taesali titleholders exclusive of the Lutu and Tupua. We again noted with interest the remarkable fact that the proponents of the idea of exclusive pule are a younger generation of matai within the family, differing markedly with the older generation's views on the family's senior matai. In family deliberations, the latter acknowledge in the interests of harmony that the views of the family's four titleholders together with those of the senior members of each of the clans are all important. At the same time, they also maintain that Lutu is the senior matai of the family.
On the other hand, the former maintain that while Lutu is the family's symbolic standard for purposes of village and inter-village polity, they argue that for family purposes, the Afoa is the senior matai. Indeed, to emphasize their position it is further advanced that other lesser matai of the family resident in Utulei are empowered to sign land use permits and separation agreements affecting family lands in the absence of Afoa and Taesali. (This latter contention would justify the fact that in 1985 Popoali'i's building permit was signed by Pula, another lesser matai within the family.)
As will be seen infra, we need not in these proceedings decide the issue of "pule" and we can therefore leave that matter for further family consideration. We are nonetheless moved to caution that the turf concerns by some of the matai must surely be on the level of frivolity when viewed against those higher concerns shown by the family elders for civility and harmony within the family. In the final analysis the ultimate "pule" over titleholders is the family.
The testimony admits no other definition of family membership other than blood. Notwithstanding the acknowledgement of Popoali'i with matai status, family opinion was that, for purposes of entitlement, Popoali'i was not a member of the family. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485505/ | This is a case which imposes an almost intolerable burden upon any judge who has normal sympathies and emotions. It is ar irreconcilable dispute between good people over the custody of a little girl who is now nearly one year old. Whatever decision we reach must result in undeserved heartbreak for someone.
FACTS
Millie and Sopi were living as husband and wife with Sopi’s family. Millie became pregnant. In August of 1984 Sopi left the Territory to obtain employment in Hawaii. Millie remained in American Samoa with Sopi’s family. On- February 20, 1985 the
little girl, Tuileisulefiatagata, was born. Millie did not want the responsibility of motherhood. She told Sopi’s mother she was going to Western Samoa to visit her mother. Instead she turnee the baby over to her cousin Nancy Kupa, relinquished parental rights, and consented that Nancy and Samasoni Kupa could adopt the child. Sam and Nancy employed attorney Asaua Fuimaono tc represent them in the adoption proceedings. On May 23, 1985 Mr. Fuimaono obtained a decree of relinquishment, apparently without notice to Sopi. No petition of adoption was filed. In the meantime, Sopi found out what was going on and came to Americar Samoa, obtained counsel and petitioned for custody.
Belatedly, a petition for adoption was filed by the Kupa’s on October 17, 1985. Both Sopi the Kupds are fit and propei *91parents. Naturally the Kupas have become attached to and deeply love the child.
DISCUSSION OF THE LAW
Before the Kupas can adopt the child the rights of the natural parents must be terminated. A.S.C.A. sec. 45.0412.
The natural mother relinquished her rights (A.S.C.A. sec. 45.0402) but the rights of the natural, father were never dealt with. Clearly, Sopi never consented to relinquishment. Therefore, his parental rights can only be terminated under A.S.C.A. section 45.0401, which refers us to A.S.C.A. section 45.0115 and A.S.C.A. section 45.0103, which in turn tell us that Sopi’s rights can be terminated if the child is "neglected or dependent." In other words Sopi must have abandoned or abused the child in order . for the court to terminate his parental rights. The facts do not support such a conclusion. He left the Territory for a rational reason and thought that Millie was properly cared for by his mother. His conduct throughout this case demonstrates his determination not to abandon the child.,
CONCLUSION
Sopi’s parental rights are not terminated and as the -natural father he is entitled to custody of his child.
It is so ordered, adjudged and decreed. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485507/ | Pursuant to section 1.0409 A.S.C.A., the court makes the following findings of fact regarding the candidates for the above title.
1. The best hereditary right.
In the Western World of written history genealogy is easy. In any history of Europe one can find the genealogy of the great families — Hapsburgs, Romanoffs, Bourbons — with dates of births, marriages and deaths set forth in exact detail. Such is not the case in which history is oral, handed down through the years by word of mouth. This gives rise to some baffling results. For example, an inspection of the questionnaires on file reflects lists of holders of the title varying from 6 to 12, with 10 or 11 being the usual choice. So too, the clans may vary — from one tc
*95four. As to generations of claimant's families title holder to the claimant, this varies from Obviously, they can't all be right. 4-> • w <D u > ;H i — i 5 ® jj jC 4-1 o 2* 4-1 *H 03
The court has no hesitation in finding that each of the candidates has a direct blood line to Le'iato Togiola, the first holder of the title. However, the court cannot find that any candidate prevails over the others in this regard.
This is an ancient title — the consensus being that 10 or 12 people have held the title. We do not know what period of time this covers but it must be quite a period. For example, we do know that the last two title holders held the title for approximately 60 years. Under these circumstances a claim of 10 or 12 generations (1/1024 or 1/4096) seems realistic and since several candidates make claims in this general category, no one prevails. Claims of lesser generations simply are not accepted by the court.
2. The wish of a majority or plurality of the clans.
As is usual in a title of this antiquity, there is disagreement even as to the number or names of the clans. The number varies from one to four and a check of the questionnaires lists seventeen names for these clans. Thus, each candidate has some clan support but no candidate can be said to have the support of a majority or plurality of the clans.
3. The forcefulness, character and personality of the candidate and his knowledge of Samoan customs.
Here, again, no one prevails. Each candidate is a man of honor and of integrity. Each is an honest, God-fearing and responsible member of society. In court each displayed an acceptable knowledge of Samoan customs and traditions and of the customs, traditions and history of this family. No one candidate prevailed over the others.
4. The value of the holder of the title to the family, village and country.
Here candidate Tupua Le'iato prevails.
This candidate is one of the most respected citizens of American Samoa. His 29 years as a Medical Doctor at L.B.J., his four years as a member of the House of Representatives including two years as Speaker and his many community activities make him one of the outstanding inhabitants of the territory. Insofar as the village and the family are concerned he has served both unselfishly. With his proven qualities of leadership, his value to the village and family are obvious. He can restore peace and harmony to the family.
Therefore, based on the above findings of fact, the court *96concludes as a matter of law that since candidate Tupua Le'iato prevails over the other candidates on issue (4) he shall be selected to bear the title Le'iato and the Territorial Registrar is order to certify his name as holder of that title.
Two matters merit further discussion.
A Western Samoan birth certificate is in evidence which states that two persons bearing the same names as this candidate's parents gave birth to a boy (bearing another name) on the date of candidate's birth. Candidate Tupua Le'iato swears under oath that he was born in American Samoa and that his parents have always so advised him.
The fact of birth is always based on hearsay except as to those actually present at the birth — the mother and anyone else physically present. Thus, we are faced with two types of hearsay, what candidate Tupua Le'iato's parents told him and what the birth certificate reflects. Therefore, we resort to reasonable inference.
Clearly, this candidate's parents were inhabitants of American Samoa. His father was born here. His mother was born in Western Samoa. However, both were inhabitants of American Samoa. If, indeed, the mother did go to Western Samoa for the birth of her child it was but a temporary trip and since this candidate has clearly lived here for more than ten years prior to registering for this title, he comes within the provisions of section 1.0403 (b)(2) A.S.C.A.
The second matter on which we wish to comment is the matter of candidates filing for registration while the family is still debating the subject.
We are disturbed by the ever-growing practice of candidates filing for a title before the family has had a real opportunity to select a matai in accordance with traditional custom. Under Fa'a Samoa, a matai is selected by a consensus of the aiga. All too often, a candidate will file while the family is still trying to reach a consensus. This case is a good example. The family was still deliberating when one candidate filed. All othec potential candidates were then forced to file to protect their own interests. The case then proceeded to court without giving the family a real opportunity to make its own selection.
Current law allows this type of abuse of traditional custom in the selection of rnatais. We suggest that the Fono study this subject and enact appropriate legislation to curb this practice by which the court finds itself thrust into the selection process before the family has had a complete opportunity to make the selection in accordance with Fa ' a Samoa. Too many matai selections are made by the court instead of by the family. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485508/ | Per Curiam:
On October 30, 1984 the trial court, Chief Justice Gardner presiding with Associate Judges Tauanu'u and'Olo, entered a decision in this land case. The court found Pagofie and Haleck to be credible witnesses and Pati and Molitai Leomiti lacking in credibility and ruled accordingly.
This appeal is nothing more than a-quarrel with the trial court's factual findings which are amply supported by the trial record. The appellant presents no legal issues and this court can find none. This appeal is an abuse of process. Litigants, even if unhappy with the outcome of litigation, should be told by their counsel if there are no appealable issues. An advocate has a duty to use legal procedure for the fullest benefit of the client's cause, but also a duty not to abuse legal procedure. A lawyer should not bring a proceeding unless there is a basis for doing so that is not frivolous. Model Rules of Professional Conduct (ABA 1983) Rule 3.1 (Meritorious Claims and Contentions).
The decision of the trial court is affirmed. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485510/ | Ruling on Motion for New Trial:
By stipulation that portion of the decision stating that the Land has been used for rock crushing operations will be stricken.
The court is satisfied that the grant by Congress to the President of authority to govern this Territory authorizes our sminent domain statutes and that we should follow the general-rule that nor reversionary interest exists after'a taking.
As to the issue of excess taking, the fact that a road subsequently cut this 16 acres from the main taking does not render the taking excessive. Nothing in this file indicates there was an excessive taking. From all that appears in file S15-59 no issue was presented as to the amount of taking, only the value. Today it would be impossible to go back and try to outguess just how much property was needed in 1959 for "airport purposes." For example, the use of satellites has now rendered unnecessary many acres taken and leased for FAA purposes. Nevertheless, that does not now render those takings excessive.
Motion for new trial denied. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485511/ | PER CURIAM:
Appellant Joseph Willis brought an action seeking a judicial determination that certain land belonged to him as opposed to his siblings. His claim was based upon the theory that their mother acquired title to the land pursuant to a deed executed in 1940 and conveyed her ownership to Joseph by testamentary succession. •
The Trial Court found that nothing was conveyed by the deed and that the Willis family had resided upon and cultivated the subject land since 1929. The Court concluded that the subject land is the communal land of the Willis family.
This Court can set aside the findings of the Trial Court only if they are clearly erroneous. United States v. United States Gypsum Co. (1948) 333 U.S. 364. The facts found by the Trial Court are supported by testimony the Trial Court found credible. Hence there is no basis upon which to disturb the finding s.
The only issue worthy of appellate review is Appellant's contention that the Willis family cannot own communal land since it is not a traditional Samoan family. The facts showed that Alexander Willis was one half Samoan and his wife Falesau was full blooded Samoan. Their progeny, the litigants herein, are thus 3/4 Samoan. True, they bear the name of a papalagi grandfather rather than a Samoan name but so do many Samoans. (A member of 'this Court, Judge Vaivao, is a Fruean.)
*103According to the Associate Judges there is no reason why a Samoan family cannot own communal land even though they choose to bear the surname, of a European ancestor.
The decision of the Trial Court is affirmed. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485513/ | MURPHY, A.J.,
CONCURRING.
I think perhaps the time has come to examine the wisdom of permitting appeals in matai cases. To state the obvious, judicial appellate review is intended to 1. correct errors of law committed by the trial court, and/or 2. correct clearly *105erroneous findings of facts or abuse of discretion by the trial court. There really are no issues of law in matai cases since decisions are supposedly based upon customs and traditions. See Foreword, I. Goldman, Ancient Polynesian Society (Chicago, University of Chicago Press"! 1970).
The factual questions presented to the trial court generally are: Who has the best hereditary right? Who has the support of the majority of the family? Who is best able to serve the family as the matai? See Laughlin, United States Government Policy and Social Stratification, Vol. 53 Oceania.
These are subjective questions of fact which are determined by a panel of four Samoan Associate Judges. A.S.C. sec. 3.0240. This is a process that was begun in 1906 by a naval regulation promulgated by Commander C.B.T. Moore. (The wisdom of determining matai titles in the High Court in the first place is not addressed in this opinion.) The process has been continued in one form or another by every succeeding legislature.
Appeals came later. It was not until 1979 that the present composition of the Appellate Division was created.. A.S.C. sec. 3.0220. The Appellate Court now is composed of three High Court Justices (usually supplemented by United States Judges on temporary appointment) and two Samoan Associate Judges. Naturally the Justices tend to defer to the Samoan Judges, so two Judges review the fact finding process of four of their peers.
The practical result is that matai cases simply are never reversed or modified on appeal and I think rightly so. It would be absurd for two judges to substitute their opinions for that of four of their colleagues.
What good does the appellate process do? Most families have been without a matai for months or years before the case reaches the trial court. To pursue an appeal simply means that the interregnum is continued additional months. Surely it has a disruptive effect on the family. It affords the disgruntled candidates (who at trial usually pledge support for whomever the court may select) an opportunity to play dog in the manger and sew the seeds of future discontent.
It is interesting to note that in Western Samoa no such appeals are allowed. Western Samoa Constitution Part V, Sec. 44. Maybe in this situation"! they've got the right idea. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485767/ | The respective natural parents petition the Court to relinquish their natural rights to the minors with the view that the said children be made available for adoption by the grandparents.
*92The Court is guided in these matters by the provisions of A.S.C.A. § 45.0102(a)(1), which requires the Court to consider the best interests and welfare of the child; § 45.0402(a), which requires consideration of the reasons relinquishment is sought; and finally subparagraphs (d),(e),(f), and (g) of § 45.0402, which require the Court to be satisfied that the natural parents have been counseled and fully advised of the consequences of their act, and .that relinquishment is in the interests of all parties concerned.
The common' ground advanced by the respective petitioners are that the children have been cared for by the grandparents since birth. Grandfather expressed that he desired to formalize his love for his grandchildren by way of legal adoption. This alone is not sufficient ground to sustain a petition for relinquishment.
Juvenile No. 99-87
The minor is a 7 year old female child. The grandparents are 62 and 63 years of age respectively. In the light of the child's natural circumstances, this age difference speaks against allowing the petition given the remaining years of the child's minority and dependence. The child has perfectly capable parents who could just as well provide for the child.
The grandfather is the family matai and the natural parents, who have their own home, live within the traditional family structure on communal family land. The natural father has maintained steady employment with the same employee for some 17 years. The natural parents have their two other children with them and their household provides an environment which nobody can fault. They are young and the law may look to them for the child's future support needs with a lot more certainty. They are fit and suitable parents. On the other hand, we cannot say that what the grandparents have to offer the child could not otherwise be better provided by the natural parents. This is not to say that the grandparents parental sense of love and affection towards their grandchild may not thereby continue and flourish. We simply cannot conclude that the best interests and welfare of the child would be served' by granting this petition. Petition is denied.
*93Juvenile No. 102-87
In this matter, the natural circumstances of the child do weigh heavily in favor of granting the petition. His natural parents have had an off now on again type of marriage. Indeed when the child was bom, the father had missed the occasion because the marital unit was, for the time being, disunited. The natural father was very candid in his testimony. He has not been too particularly responsive to his paternal obligations which, he acknowledges as having been undertaken by his father-in-law. In his opinion, his father-in-law is better suited to care for his son.
While the natural parents are back together at the present, we accept that, given the marital experience, the best interests and welfare of the child of the child, in terms of a more stable family environment, would, be enhanced by granting this petition. Additionally, we are satisfied that the natural parents have been counseled and are fully advised as to the consequences of their petition. This petition is granted. Counsel shall prepare the order accordingly. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485768/ | The parties herein are either matai of Faleniu or claimants through Faleniu matai. These consolidated matters involve a certain land area traditionally known as "Leaveave" which was part of the subject matter of earlier litigation in which the chiefs of Faleniu prevailed against the claims of A'asu villagers. See Magalei v. Lualemana, 4 A.S.R. 242 (1962) . The matters before us arose following the attempts of one of those Faleniu matai, Maea Uaina, to claim and register a portion of Leaveave as the communal land of the Maea family. In early January, 1987, Maea filed a petition with the Court seeking injunctive relief against the ongoing agricultural activity of the named defendants in LT No. 1-87. He shortly thereafter commissioned a survey of his land claim and filed for title registration with the Office of the Territorial Registrar pursuant to A.S.C.A. §§ 37.0101 et seq. This application to register title also attracted a number of objections from others in Faleniu and resulted in the case docketed LT No. 33-87. The files were consolidated for trial on the merits, and, in preparation for trial, the other parties also had surveys of their own respective land claims prepared by the same surveyor. The surveyor, who was called to testify, presented a composite drawing which laid out the different surveys on a topographical map of the vicinity. At the conclusion of the evidentiary hearing, the Court also viewed the actual land area.
*95Discussion
A small, southern portion of Maea's land claim, which the parties commonly identified as part of "Puna," was not contested.1 The said uncontested portion may therefore be registered as the communal land of the Maea family pursuant to the provisions of A.S.C.A. §§ 37.0101 et seq. The remainder of Maea's surveyed claim is contested on the entire western half by the descendants of Manu Tuinei,2 while the other parties' claim overlap the eastern part of his survey.
As mentioned above, the land area "Leaveave" was held to be the property of the chiefs of Faleniu in Magalei v. Lualemana, supra. Consistent with the findings in that case, the evidence here revealed that the land was originally cleared from its jungle state and then collectively cultivated in the manner of a "taloloa" --- a cooperative taro plantation developed from virgin bush and then divided up into units called "fata," with each developer assigned a certain number of fata to maintain and harvest --- by the villagers of Faleniu.3 After original cultivation, the villagers, in addition to establishing other taloloa areas, returned at different intervals to the old clearings with the common understanding that one's assigned fata area became that person's family land. Some villagers would abandon the taloloa area temporarily (and then later return) while others continued to maintain crops.
We also gathered on the testimony that over time, those working for the time being on the land did so without too much regard to the original limits of one's family fata and assigned land location. At different intervals of time, *96therefore, some families of Faleniu would be more visible in these areas than others, and when they in turn left they were similarly displaced by others or the ever growing flora. (Indeed, when the members of the Court viewed the area, some parts of the land had reverted to bush; however, such areas were also claimed by the parties on the basis of past cultivation.)
From the manner in which the subject land has been used and occupied, it appeared to the Court that gradually over time the taloloa area came to be regarded by the village as common agricultural land. We see this for example with the manner in which a recent dispute over the land was handled. The dispute involved one of the parties hereto, Ma'a Te'o, and another villager. Differences between these parties were escalating towards a potential gun battle. At the suggestion of Chief Si'ufanua who had intervened at the behest of Ma'a Te'o, the matter was referred to- the village council. The affair, although intense, was approached and handled as an intra-village matter and therefore the complications which would have been caused by entitlement questions in the context of an inter-family dispute were not there to hamper reconciliation. A solution was achieved after tribute was paid to the council which then granted or ratified permission to the continuing use of land by the parties. Further, and as can be seen from a review of the above referenced cases, the village chiefs have consistently defended the various taloloa areas against outsiders in a collective manner as opposed to responding severally as individual families. By the same token, the Faleniu Chiefs have by and large left undisturbed the interchanging use of these taloloa areas by various members of the village, except for one occasion when a prior Maea had unsuccessfully attempted to carve out for himself another portion of similar taloloa land known as "Tafeta." See Lualemana v. Chiefs of Aitulagi, 4 A.S.R. 383 (1963). Even with that matter the remainder of the village chiefs were concerted in their efforts and acted as one.
In the present matter, claimant Maea admitted that his family ceased actively maintaining crops in the area because of dwindling family numbers and also because of the fact that he had for many years taken on employment outside Faleniu in exchange for a paycheck. Maea had, along with many others, *97opted to involve himself with that new and changing way of life which came about with the territory's emerging cash economy. After his recent retirement, Maea revisited the disputed land and discovered that others of the village were now in active possession of land areas which he felt were once held by his family. Hence his petition for a declaration that title to the land should be registered as his family's. Maea testified that the area he had surveyed was originally cleared and claimed by his ancestors and while evidence of his former crop activity had now been destroyed by the cattle farm presently maintained in- the area by Ma'a Te'o, the unaffected coconut trees on the land were those planted by he and his ancestors. Maea also claimed that his ancestors had named the. locale and he related a rather colorful, but fanciful, explanation of the origin of the term "Leaveave."
The history of the area, however, simply contradicts Maea's claim. The widely acclaimed village taloloa is by definition inconsistent with any claim to individual family cultivation. Secondly, the name "Leaveave" was more meaningfully explained by the opposing parties, as consistent with the area's physical topography and water runoff, than by Maea's narration relating to the ensnarement of his great grandfather's hunting dogs.
Alternatively, counsel for Maea contended that the village, after first clearing the bush, divided up the Leaveave area among the various families of Faleniu. He directed our attention to a remark by Chief Justice Morrow to this effect in Magalei v. Lualemana, supra, at 249. From this premise, counsel then submitted that his client's survey encompassed that division of Leaveave given to the Maea family by the village. Firstly, he referred us to another comment by Judge Morrow concerning that Court's viewing of plantations on Leaveave including "a coconut plantation of Maea" (the predecessor of the present Maea). Id. at 248. Secondly, counsel argued that certain coconut trees pointed out to the present panel of judges during their viewing of Leaveave, which were located within Maea's surveyed area, were the remnants of the same coconut plantation mentioned by Judge Morrow. In this regard, counsel also directed our attention to his client's earlier testimony to the effect that those existing coconut trees within *98Maea's surveyed area were planted by Maea family members.
We have several problems with the contentious nature of this submission. Leaveave is a much larger area than that encompassed by Maea's survey. The coconut plantation viewed by the Court in 1961 is not necessarily the scattered trees which the present panel observed on the land surveyed by Maea. Indeed, some of these coconuts trees were also claimed to have been planted by the Magalei family, while other trees were said to have been the plantings of a one Leasiolagi during the times the A'asu people attempted to lay claims to the area. Further, it was very noticeable to the Court, when it viewed the area, that the extent of Maea's claim went significantly beyond the area of the scattered coconut growth. His survey included great areas of bushland which looked quite devoid of any signs of having ever supported even the hardy coconut tree. Indeed, apart ’ from Magalei's survey, a common and striking feature of all the surveys, which became obvious to the Court at the land viewing, was the unrealistic and exaggerated extent to which the respective claims failed to reflect use and occupation, while extending to areas which bore little, if any, resemblance to arable land. We find it difficult to resist the conclusion that because Maea had taken upon himself the survey of a large tract of Leaveave, without the consent of the village council, and then pressed his claim all the way to the courthouse, the whole area was therefore treated as being up for grabs without any rational regard whatsoever to merit. The distinct impression we have of the respective surveys is one of arbitrariness. We are bolstered in this conclusion by the fact that none of the matai claimants, with the exception of Magalei, nor those through whom the non-matai parties claimed, were actually present at the physical survey of alleged family holdings.
The best that we can assemble from the evidence is that the disputed area was originally cleared and cultivated by the village of Faleniu in a collective effort. The tracts surveyed by the various parties overlap one another in the manner which roughly gives the appearance of concentric circles. At best, this manner of overlap suggests that at one time or another the principal "aiga"— - extended families --- of Faleniu had family members cultivating the disputed area.
*99Accordingly, we conclude in these circumstances that no one party has proven, on the preponderance of the evidence, a superior and exclusive entitlement . to the land in dispute. While the Appellate Division in Lualemana v. Magalei, 4 A.S.R. 849 (1962), had affirmed a trial court finding that the Faleniu people had already divided up the taloloa area "Leaveave," that division is not, in our opinion, correctly reflected in the surveys tendered by the parties herein.
At one time during his testimony, ranking Chief Magálei made known his regrets that a matter of village concern involving the entire village, not merely a few families, was compelled to be taken before the courts whereas it should have been properly left for resolution by the village council. There was some impatience with the village council's efforts and attempts at extrajudicial resolution but we leave the parties with two observations: the redefinition of boundaries by the village council must be recognized as a matter which simply does not lend itself to an overnight conciliatory exercise; secondly, this Court has once said that the "Samoan way of life [is]--discussions, discussions, and discussions in a good faith effort to iron out disputes." Fairholt v. Aulava, 1 A.S.R.2d 73, 78 (1983). In that the speedier court resolution anticipated by some of the parties has not come about, we are disposed to endorse the recommendations of Chief Magalei and urge that a redefinition of boundaries within Leaveave be taken up expeditiously by the council. To facilitate these ends and to preserve any and all rights of the parties hereto, the Court invokes the authority of A.S.C.A. § 3.0242 (allowing procedural flexibility in the Lands and Titles Division as most consistent with natural justice and convenience) and dismisses these matters without prejudice.4
It is so Ordered.
The opposing parties' abstinence was apparently purposive. Our viewing of the land revealed exclusive and settled occupation of this part of the land by the Maea people.
This side's theory of entitlement defies definition. This group is comprised of the immediate descendants of the late Manu Tuinei who desire to hold the land "individually." They candidly admit, however, their difficulties in satisfying the standard of proof requisite to sustaining a claim in "individual" ownership. Accordingly the Court is requested to award land as the communal property of Manu Tuinei's descendants to the exclusion of the rest of the extended family Sa Manu.
Much Land in this area has been thus cLaimed from the tropicaL forest by Fateniu village. See Lualemana v. Filo, 3 A.S.R 642 (1961); Lualemana v. Chiefs of Aitulagi 4 A.S.R. 383 (1963); Magalei v. Lualemana supra; Galoia v. Mamoe, 3 A.S.R. 245 (1956).
Our order of dismissal, of course, does not apply to the land Puna. As previously noted, no one contested Haea's claim to Puna. Uhen no adverse claim is filed within sixty days of a properly presented application for registration, the Territorial Registrar is compelled to register the land. See A.S.C.A. § 37.0103. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485518/ | After some reflection I have reluctantly come to the conclusion that I cannot sign the requested order.
The money is to be held in trust for the child until she reaches the age of majority. The only exception is that the trustee is authorized to make such expenditures as are "necessary" for the "care and maintenance* of the child.
It is doubtful whether the requested items could be considered necessities Under even the most expansive definition of the word. I am also influenced by the fact that the trust has been steadily dwindling; that the amount requested is a substantial percentage of the amount remaining in the trust; that during the last two years about $400 has already been disbursed for clothing for important occasions; and that the child, who seems to be at most a sophomore, will apparently have at least two more Senior Proms for which to buy clothing.
Finally and most importantly, I have the impression that the trustee has not afforded this and other similar matters the careful scrutiny *13expected of a trustee. A court should be very reluctant to question the judgment of a disinterested fiduciary who, after carefully considering all factors including the particular needs and family circumstances of the child, recommends a certain item as necessary for the care and maintenance of the child. In this case there is no evidence that such consideration was given. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485519/ | The Senate Select Investigating Committee was established by a resolution of the territorial *15Senate in order to enable the Senate "to fully explore the cause of the overspending of the 1965 annual budget, and determine what procedures need to be implemented to prevent future deficits." One of the witnesses subpoenaed to testify was Larry Horning, general manager of Southwest Marine of Samoa, Inc. Horning was commanded by the subpoena to testify and to bring documents relating to certain financial transactions between the American Samoa Government (hereafter A.S.G.) and Southwest Marine. On April 30, 1986, Horning appeared before the committee with his legal counsel and refused to testify on the matters covered in the subpoena on the ground that they were irrelevant to the committee's investigation. On May 8 the Committee applied to the High Court for a citation of contempt against Mr. Horning, in accordance with A.S.C.A. § 2.1016(b).
Counsel for respondent Horning argues that the subpoena is invalid for a number of reasons; that the matters referred to in the subpoena were irrelevant to the question of the 1985 budget deficit; that the- committee failed to accord Horning due process of law as required by the United States and American Samoa Constitutions; and that the committee failed in various respects to comply with the requirements imposed by A.S.C.A. §§' 2.1003-1018 for an investigative committee to compel the testimony of witnesses.
1. RELEVANCE
The transactions on which Mr. Horning was called to testify were Southwest Marine's lease of the Marine Railway from A.S.G.; an agreement by which A.S.G. paid for the towing of a crane from the Phillipines to Ameriaan Samoa in exchange for the completion of certain construction by Southwest Marine that A.S.G. had previously undertaken to complete; and the alleged transfer- of certain tools and equipment by A.S.G. to Southwest Marine. Counsel for Horning argues that these transactions are not legally relevant to the committee's inquiry into the 1985 budget deficit since they did not involve the expenditure of A.S.G. funds attributable to the 1985 budget. The towing of the crane was the only transaction in which the A.S.G. actually spent money, and it seems to be undisputed that this money was from old accounts receivable of the Marine Railway (including some accounts receivable from departments of the A.S.G.) rather than from the general revenues of the A.S.G. during 1985.
*16The standard of relevance which counsel for Horning urges the Court to impose on the committee seems far narrower than the standard the Court would impose on itself in a similar case. See Rules of Evidence of the Judiciary of American Samoa, Rule 401: "'Relevant' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." (Emphasis added.) If money was spent by A.S.G. during fiscal year 1985 that might otherwise have been available to spend on other things in order to reduce the deficit, or if valuable rights and property belonging to A.S.G. were surrendered that might conceivably have been surrendered to someone else for a different price, then those transactions would seem prima facie to be relevant to an inquiry into the "cause" of the deficit. This is true regardless of whether any money from general revenues actually changed hands, provided only that the resources expended might legally have been used for purposes for which general revenues were spent. This is not to suggest or imply that Horning, Southwest Marine, or A.S.G. were guilty of any impropriety in any of these transactions, or even that they did in fact result in a higher deficit. Hor does the* Court sit in judgment on the wisdom or desirability of the inquiry. Rather, the Court merely declines to rule that inquiry into transactions involving the use* or disposal of government resources is outside the competency of a committee charged with investigating a deficit.
This does not mean that anyone doing business with the government automatically subjects himself to the opening of all his books and the revelation of all his secrets to any government official who cares to ask. Counsel for Horning cites a number of federal cases for the proposition that questions must indeed be relevant to the inquiry for which a committee is legally constituted. In a few cases involving constitutionally protected rights such as speech or political association, the United States Supreme Court has even imposed quite stringent standards of relevancy on legislative committees. See, e.g., Barenblatt v. United States, 360 U.S. 109 (1959); Watkins v. United States, 354 U.S. 178 (1957). Moreover, A.S.C.A. §' 2.1016 provides that a witness can be cited for contempt only for-refusing to answer "relevant" questions or to provide "relevant* documents. If the committee were to inquire into Horning's political or *17religious beliefs, or even into business matters whose connection to A.S.6. resources was so attenuated as to make it implausible to inquire whether the- deficit might have been higher or lower if they had not happened, then it would violate these strictures. The subpoena actually served on Mr. Horning does not, however, suggest any such inquiry.
11. DUE PROCESS
Counsel for the respondent urges that his client's constitutional right to due process of lav is violated by this proceeding in several respects:
First, if this proceeding were- one in which the respondent might be found guilty of criminal contempt and punished by a jail sentence, counsel urges that his client would be entitled to a trial by jury, the right not to be a witness against himself, and other constitutional rights accorded criminal defendants. At the May 20 hearing, however, the Court ruled that this proceeding will be construed simply as one to show cause why the respondent should not be ordered to testify before the committee and to suffer civil penalties, including passible future- contempt citations, in the event he were to refuse. These issues are therefore not raised at this time.
Second, counsel urges that the proceeding violates his client's due process rights insofar as it requires him to answer irrelevant questions. This contention has already been dealt with.
Third, counsel argues that the proceeding violates his client's rights to notice, a fair hearing, and the effective assistance- of counsel. Counsel's argument on those points closely parallels his argument that the committee did not comply with the statutory provisions of A.S.C.A. § 2.1003-18. In light of our holding on that question, it is unnecessary to reach the constitutional question.
III. COMPLIAMCB WITH THE "CODS OF FAIP PRACTICES. "
The statute governing legislative investigatory committees in American Samoa is codified as A.S.C.A. S 2.1003-18, the "Code of Fair Practices." Counsel for respondent argues that the committee failed in several important respects to comply with the legal requirements imposed by this Code.
*18First, it is argued that the failure of S.R. 51 to state specifically that the Select Investigating Committee shall have power to subpoena witnesses and documents means that it does not have such powers ---- and indeed is not a legislative investigative committee at all, since A.S.C.A. § 2.1004(a) defines such a committee as one having the power to compel the testimony of witnesi?es and the production of papers. This argument is without merit, since S.R. 51 explicitly provides that the committee "shall have all powers of an investigating committee authorized by Title 2, Chapter 10." Moreover, the resolution states that the committee's "duty* shall be to "gather evidence, testimony, and relevant documents.*
It is also contended that the committee is not an "interim committee" within the meaning of A.S.C.A. 5 2.1016, and is therefore not authorized to apply to the High Court for a citation of contempt, since it may remain in existence until the next regular session of the legislature. In the absence of any contrary legislative history offered by either party, the most obvious meaning of the word "interim" is to designate precisely a committee such as this one, which sits between legislative sessions. It would seem that the statutory authorisation to apply to the High Court for a contempt citation is designed to allow such a committee to proceed with its business without waiting for the next regular legislative session.
Counsel also urges that the powers of an investigative committee can be conferred only on a committee composed of members of both houses of- the legislature, and that a committee must be vested by the whole legislature with the power to compel ■testimony. This is not an implausible construction of the statute, since the title of A.S.C.A. £ 2.1005 is "Establishment of investigating committees by the Legislature." The text of that section, however, provides for establishment of committees not "by the legislature,* but merely by "resolution or statute,* without specifying a one-house or two-house resolution. Moreover, the statute also refers to "a standing or select committee of the Legislature" (A.S.C.A. S 2.1004(a)), although standing committees are customarily of only one house of the legislature. This strongly suggests that a select committee of one house is also a committee "of the Legislature" within the statute. Insofar as each house has traditionally established its own committees, a resolution of either house establishing a committee *19therefore constitutes creation of a committee "by the Legislature" within the meaning of the title of § 2.1005.
Finally, it is urged that the committee failed to comply with the statutory requirements that "each investigative committee shall adopt rules to govern its procedures, including the conduct of hearings" (A.S.C.A. S' 2.1006) and that "any person who is served with a subpoena also shall be served with ... a copy of the rules under which the committee functions." (A.S.C.A. S' 2.1011(b)). Counsel for the committee maintains that the committee fulfilled these requirements by voting "to adopt as'' rules the procedural provisions of Title 2, chapter 10." The problem with this argument is that one of the provisions of chapter 10 is that "each committee shall adopt rules, not inconsistent with law ..." to govern its procedures. A.S.C.A. § 2.1006 (emphasis added). The legislature must have intended that each committee adopt rules for the conduct of its hearings beyond the general provisions of the statute itself, since otherwise §' 2. 1006 would be entirely superfluous. The provisions of chapter 10 are automatically binding on every investigative committee. In providing that each committee "shall" (not "may") adopt requires that the committee impose on itself no rules at already imposed by law. In any case, there is no evidence in the record that the committee complied with the explicit requirement of S 2.1011(b) that it provide Mr. Horning with a copy of its rules. rules, the section do more than vote to all other than those
The final section of the Code of Fair Practices provides that "if any investigating committee fails in any material respect to comply with the requirements of this chapter, any person subject to a subpoena who is prejudiced by such failure shall be relieved of such compliance." A.S.C.A. § 1018(b). It is difficult to be absolutely certain whether the failure of the committee to adopt rules was material and prejudicial to Mr. Horning. The Court can neither dictate to the committee the substance of the rules it may adopt nor hypothesize which rules it would have adopted if it had adopted rules. It is therefore impossible to say whether Mr. Horning would have been excused from testifying on the matters to which he objected, or allowed to read his counsel's statement into the record, if the committee had been operating under written rules of evidence adopted in advance rather than deciding *20each question as it arose. Similarly, it is impossible to say that hr. Horning would have refused to testify if he had had the confidence that his rights would be protected in accordance with written rules supplied to him in advance. Since A.S.C.A. 6' 2.1006 and 2.1011(b) seem designed to obviate precisely the kind of confrontation that occurred in this case, this Court is not prepared to hold that the committee's failure to comply with the law was immaterial or that hr. Horning was not prejudiced thereby.
CONCLUSION
The committee is not prohibited by law from compelling Mr. Horning to supply the evidence it seeks, but must Comply with all the provisions of the Code of Fair Practices enacted by the legislature in order to do so. Specifically, the committee must adopt specific rules to govern its procedures, including the conduct of hearings. A copy of these rules must accompany any subpoena.
In accordance with A.S.C.A. 8 2.1018(b), the application for a citation of contempt is denied. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485520/ | On May 5, 1986, counsel for defendants filed a motion for new trial or to amend judgment with the clerk of the High Court. The motion was seived on counsel for the plaintiff on May 6. Thus the motion was filed on the tenth judicial day after-judgment was issued on April 25, 1986, but was not served until the eleventh day. Since T.C.R.C.P. Rule 59 requirese that a motion to alter or amend a judgment be served within ten days of judgment, the Court cannot entertain the motion os one to alterar amend the judgment.
Rule 59 curiously provides no time limit for a motion for new trial except that it be "filed not later than ten days before the date of the hearing." A.S.C.A. S 43.0802 does provide that a *22motion for new trial must be "filed" within ten days of judgment, but does not require service within the ten days. So the Court may consider this motion as one for a new trial.
Counsel raises an interesting and possibly important argument in his motion t that since the man who sold the land in question to the plaintiff and later to the defendants had not registered the land as his individual property until after the first sale, the Court is obliged to presume that the land was his communal property at the time of the first sale. Thus the first sale would be void for failure to comply . with the statutory requirements for sale of communal land.
The Court has, however, carefully scrutinized the transcript of counsel's argument at trial and can find no trace of this argument. Although counsel did argue that the vendor had no involvement in the survey registered by plaintiff, this point seems to have been raised solely to bolster the defendants' unsuccessful argument that the vendor actually sold the plaintiff a different piece of land than the one in question. Since counsel had every opportunity at trial to argue that the land was communal land and failed to do .so, the argument must be regarded as waived and cannot be raised at any future stage of the litigation. Moreover, there was adequate evidence in the record from which the trial court could conclude that the presumption of communality had been rebutted and that the land was in fact the vendor's individual property at the time of the-first sale. The irfbtion for new trial is therefore denied.
Counsel for defendant also moves that execution of the judgment be stayed pending appeal. Defendants have plantations on the land, whereas plaintiff opposes the stay in order to be free to sell the land and deliver it to the vendee. it would be quite difficult for defendants to rebuild destroyed plantations in the event an appellate court were to reverse the trial court's judgment. It will be far less difficult for plaintiff to wait until the appellate state of this proceeding is over to deliver what will be until then a cloudy title. The stay of execution is therefore granted. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485521/ | Plaintiff sdeks a divorce on the ground of "habitual cruelty or ill usage. " The cruelty or ill usage she alleges is that her husband refuses to participate fully in the 'activities of her aiga'.
The plaintiff, a native of American Samoa, and the defendant, a native of Hawaii, were married in Honolulu in 1970 and subsequently moved to American Samoa. Plaintiff testified that her husband is a loving father and a good provider, and' that he does not object to spending her earnings or his on gifts to her mother and other immediate relatives. He refuses, however, to spend money on gifts to members of the aiga who are not close relatives or-an contributions to events that do not involve close relatives. Her repeated efforts to convince him that such gifts and contributions are a *24customary family obligation, and that his refusal constitutes a continuing source of embarrassment to her, have been unavailing. She is willing to allow him to have custody of the four children and ownership of the family house, and he has waived his right to contest her petition for divorce.
If the laws of American Samoa provided for divorce on the ground of "irreconcilable differences, " this would seem to be a case for it. A.S.C.A. § 42.0202, however, provides no such ground for divorce. The disagreement between the parties over the extent to which they should participate in their Samoan family activities, although it has emerged recently in what has otherwise been and remains a happy marriage, is a very real one. But it does not constitute cruelty or ill usage --- terms usually reserved for such things as physical violence, threats, and gratuitous harassment --- on the part of the husband or the wife.
The husband's agreement not to contest the divorce cannot relieve the court of its obligation to "examine all parties and witnesses, and ... take all evidence," and to dismiss the petition if the petitioner has failed to prove the charge alleged in the petition. A.S.C.A. S 42. CI2Q5-06.
Finally, A.S.C.A. 42.0207 provides that "condonation may be presumed in all matrimonial actions and proceedings hy the voluntary cohabitation of the parties with the knowledge- of the offense charged." Plaintiff testified that she continue to live with the defendant, and that they live together as man and wife. The law preauaes that if someone has forgiven his or her spouse sufficiently to resume intima/te relations, the forgiveness is also sufficient to obviate the need for a divorce. The presumption can be rebutted, but was not rebutted in this case.
The evidence shows that the Chuns are a happily married couple with a significant disagreement between them. If they cannot work this disagreement out they are free to separate, and eventually to divorce on the ground of having lived apart for five years. A.S.C.A. 8 42.0202(5). But the laws of American Samoa --- apparently in the hope that disagreements can be worked out and marriages preserved wherever possible --- do not provide for divorce in a case such as this.
Petition dismissed. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485522/ | This.case, obliges us once again to define the jurisdiction of the High Court of American Samoa, and again, although we feel constrained to rule as we. do, we are not happy with the result. At issue is a provision of the Ship Mortgage Act of 1920, 46 U.S.C. §§' 911-984 (1982), concerning foreclosure of preferred ship mortgages. Title 46, §' 951 of the United States Code provides:
Upon the default of any term or condition of the mortgage, la preferred ship mortgage lien) may be enforced by the mortgagee by suit in rem in admiralty. Original jurisdiction of all such suits is granted to the district courts- of the United States exclusively.
The primary question facing this Court is whether the High Court of American Samoa has jurisdiction under the Ship Mortgage Act to entertain appellee's foreclosure action.
*26I. Factual Background
On May 19, 19B1 Conquest Fishing Corp. (Conquest), owner of the M/V Conquest of Seattle, Washington, borrowed $1,600,000 from Security Pacific National Bank of California (SPNB). Conquest properly executed and delivered to SPNB a promissory note, secured by a First Preferred' Ship Mortgage executed in accordance with 46 U.S.C. § 922, and recorded by the United States Coast Guard at bong Beach, California. Conquest defaulted, and SPNB has received no payments on the note. SPNB filed an admiralty in rem action in the High Court, of American Samoa to foreclose its preferred ship mortgage, and Star-Kist intervened claiming preferred maritime liens for various alleged payments for crew wages and expenses.
On December 5, 1984, the trial court denied plaintiff-appellee SPNB's motion for summary judgment, holding that the court had no jurisdiction to enforce SPNB's preferred ship mortgage, because 46 U.S.C. § 1951 grants United States District Courts exclusive jurisdiction to foreclose on such mortgages, and the Trial Division of the High Court of American Samoa is not a United States District Court. On January lO, 1985, however, on plaintiff's motion for reconsideration, the trial court reversed its original ruling. The court, per Chief Justice Robert Gardner, held instead that the trial court did have jurisdiction to entertain plaintiff's foreclosure action, that plaintiff hacf a valid preferred ship mortgage on the M/V Conquest in the amount of $1,600,000 plus interest, costs, and attorney fees, ancf that the mortgage could be foreclosed under 46 U. S. Cl §" 951.
The matter went to trial on February 5, 1985, and the trial court concluded that the bank had’ a valid" first preferred mortgage, under the Ship Mortgage Act, which mortgage constituted a lien on the ship and took priority over all other claims against the ship except preferred maritime liens. The court further found that appellants Star-Kist were entitled to a preferred maritime lien in the amount of $25,065 for crew wages, separation and transportation, and unsecured liens for certain other expenses.
In this appeal, appellants are challenging the jurisdiction of the High Court of American Samoa to foreclose SPNB's preferred ship mortgage. In addition, appellants take issue with the trial *27court's findings concerning the amounts owed to Star — Kist under their preferred maritime lien.
II. This court lacks jurisdiction to foreclose appellee's ship mortgage.
The issue of this court's jurisdiction is unfortunately clear. Both the statutory language and the precedents of this court prevent us from entertaining SPNB's foreclosure action.
A. Statutory Construction
The language of § 951 is clear and unambiguous: "Original jurisdiction ... is granted to the district courts of the United States exclusively." It is beyond dispute that the courts of this territory are not article III district courts. In re Complaint of Interocean Ships, Inc., AP No. 32-84, slip op. at 5 (Nov. 19, 1985); The Vessel Pacific Princess v. Trial Division of the High Court of American Samoa, 2 A.S.R. 2d 21, 23 (1984); Meaamaile v. American Samoa, 550 F. Supp. 1227, 1236 (D. Hawaii 1982). Nor has Congress vested our courts with the jurisdiction of a non-article III district court pursuant to the "territorial exception.* Northern Pipeline Co. v. Marathon Pipe Line Co., 458 U.S. 50, 64-65 (1982). Rather, the High Court of American Samoa is a territorial court of discrete and limited jurisdiction, created pursuant to articles II and IV of the United Constitution, and does not come within the plain meaning of "district courts of the United States."
Absent any clear indication of legislative intent to the contrary, the plain language of S 951 must control its construction. E.g., Ford Motor Credit Co. v. Cenance, 452 U. S. 155, 158 n.3 (1981); Letuli v. Government of American Samoa, 4 A.S.R. 830, 833 (1975). This court has examined the legislative history of the Ship Mortgage Act, and there is no clear evidence that Congress intended the language "district courts” to encompass courts of American Samoa. Appellees are correct in pointing out that the legislative history suggests that Congress was concerned with keeping the foreclosure proceedings uniform. Thus, Congress made jurisdiction exclusive in the federal district courts to prevent states courts from adjudicating these foreclosure actions. The legislative history makes no mention of the jurisdiction of American Samoa or other territories. Hearings on H.R. 8873 Before the *28House Committee on Merchant Marine and Fisheries, 66th Cong., 1st Sess. 95 (1919) (remarks of Mr. Ira A. Campbell, Esq., September 11, 1919); see also Smith, Ship Mortgages, 47 Tul. L. Rev. 608, 611 n.18 (1973).
Congress has demonstrated that it can integrate American Samoa into the district court system when it intends to do so, and not necessarily by extending the jurisdiction oi American Samoa's courts. For example, the Ocean Dumping Act, 33 U.S.C. S' 1401(g) and the Marine Mammal Protection Act, 16 U.S.C. S 1362(3) specifically provide that "the term 'district court of the United States' includes . . . in the case of American Samoa . . . the District Court oi the United States for the District of Hawaii.*
Even if Congress simply overlooked American Samoa and other United States territories when it passed the Ship Mortgage Act, this court cannot of its own accord reinterpret S 951 to enlarge the jurisdiction beyond that clearly spelled out in the Act. American Samoa is unique among the American territories because it is the only one that is not within- the jurisdiction of a United States District Court. Congress has created District Courts in the Virgin Islands, the Canal Zone, Guam, and the northern Mariana Islands. Decisions from these courts are appealable to United States Circuit Courts of Appeals for their respective circuits. By contrast, decisions from American Samoa are not appe*alable within the United States judicial system. This is a significant'reason why this court should hesitate to increase its jurisdiction without explicit directive from Congress.
B. Precedent
Recent decisions of this court have consistently refused to construe federal statutes granting jurisdiction to United States district courts as granting jurisdiction to the High Court of American Samoa. For example, in The Vessel Pacific Princess v. Trial Division of the High Court of American Samoa, 2 A.S.R. 2d 21 (1984), we vacated a Trial Division order for change of venue pursuant to 28 U.S.C. S 1404(a), which providfrs:
For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.
*29We held that, since the High Court oí American Samoa is not a district court, it could not order a change of venue under § 1404(a). We stressed the difference between the courts of American Samoa and those of other territories, which as discussed, have been more completely integrated into the American judicial system.
We faced a similar issue of statutory interpretation in In re Complaint of Interocean Ships, Inc., AP No. 32-84, slip op. (Nov. 19, 1985). The owner of the M/V Ocean Pearl sought a limitation of liability under 46 U.S.C. S' 185, which'allows a vessel owner to petition a district court of the United States to limit the owner's liability to the value of the ship and to issue an injunction to halt claims in courts of other jurisdictions. We held that since the High Court of American Samoa is not a district court, vessel owners cannot take advantage of § 185 in this court. We held that Interocean Ships could limit its liability in this court under our admiralty jurisdiction conferred by A.S.C.A. & 3.0208(a)(3)? however, this court has no power to issue an injunction to stay proceedings in other courts to effectuate the limitation of liability. Only Congress can grant us that power. See also In re Complaint of Interocean Ships, Inc., Ca. No. 43-84, slip op. (Apr. 21, 1986).
In short, precedents of this court preclude our jurisdiction here too. This court is simply not a United States district court. We cannot call ourselves a district court for the purpose of the Ship Mortgages Act, particularly where we have held several times recently that we cannot sua sponte enlarge our jurisdiction by statutory construction.
C. Policy Considerations
Members of this court have consistently bemoaned our judicial "non-entity" status, e.q., In re Complaint of Interocean Ships, Inc., AP No. 32-84, slip op. (Nov. 19, 1985) (Murphy, Acting C. J., concurring); The Vessel Pacific Princess, 2 A.S.R. 2d at 24-25 (Gardner, C.J., concurring), but we find our lack of jurisdiction particularly troublesome in this case. As Chief Justice Gardner so aptly pointed out in his opinion below, policy implications strongly favor our assumption of jurisdiction in S 951 proceedings.
*30First, the intent of the Ship Mortgage Act was to promote public confidence in ship financing to stimulate investment in the shipping industry. Detroit Trust Co. v. The Thomas Barlum, 293 U.S. 21, 39-40 (1934). Congress reaffirmed this purpose when it passed amendments to the Act in 1954 to provide a remedy for enforcing mortgages on foreign flag vessels. See 1954 U. S. Code Cong. & Ad. Mews 2451-53. American Samoa's lack of authority to enforce • preferred ship mortgages thwarts the purposes of the Act.
Second, as discussed, the legislative history of the Act indicates that the exclusive jurisdiction provision was intended to provide uniform proceedings by removing state jurisdiction over foreclosure actionp. Cf., e.g., Coast Engine & Equipment vs. Sea Harvester Inc., 641 F.2d 723, 728 (9th Cir. 1981) (state procedures have no bearing on in rem admiralty proceedings under S 951 which lie within the exclusive jurisdiction of the federal courts). The legislative history does not suggest that Congress intended to preclude foreign countries or territories from foreclosing on mortgages. Chief Justice Gardner suggests that American Samoa is the only place where preferred ship mortgages cannot be enforced. There are district courts within each of the fifty states, as well as within all United States territories, commonwealths, and possessions --except American Samoa, and in foreign countries, courts may often assume jurisdiction under treaties or principles of comity.
Finally, Chief Justice Gardner noted, and we agree, that today's decision may have a severely negative impact on the fishing industry of American Samoa, and thus on our economy generally.
Despite these compelling considerations, where there is no persuasive legislative history to the contrary, this court cannot use arguments of generalized congressional intent, or policy arguments that a differently worded statute would be more fair, to overturn clear statutory language. AFL-CIO v. Donovan, 757 F.2d 330, 344 (D.C. Cir. 1985); Garcia v. Gloor, 618 F.2d 264, 268 (5th Cir. 1980), cert. denied, 449 U.S. 1113 (1981). We cannot cloak ourselves with jurisdiction under a federal statute where Congress has not seen fit to give it to us. Perhaps this was a mere oversight on Congress' part; undoubtedly they do not think of the ramifications of each of their pieces of legislation on American Samoa. On the other hand. *31given the present unique status of the courts of this" territory, and the inability of a litigant to take an appeal from these courts. Congress may have known well what it was doing by precluding our jurisdiction under § 951. At any rate, under principles of statutory construction, we must assume Congress intended what it enacted.
An operating principle in public affairs teaches that the best way to get rid of a bad situation is to make it worse. Constrained as we are by statutory language and by precedent, this court only hopes that this latest opinion in the series on our jurisdictional limitations will prompt some action to remedy the situation.
III. The Trial Court's findings on the amounts of the liens are not clearly erroneous.
Appellants Stax — Kist appeal from the trial court's ruling denying portions of their claims for preferred maritime liens. They assert that the evidence presented at trial proves that they paid for crew wages and supplies, that the monies went for these purposes, and that they thus acquired a preferred maritime lien, for which they are entitled, under 46 U.S.C. S 953, to preference even over the preferred ship mortgage. The trial court awarded the appellants $553,760, including $25,065 but disapproved $361,096 additional claimed expenses.
After a careful review of the record, this court affirms the ruling of the trial court as not clearly erroneous. We find that there was substantial evidence to support the court's findings as to the amounts of the liens, particularly given the appellants' inefficient bookkeeping methods.
This- case is remanded to the trial court to determine the priority of these liens and to effect a foreclosure of the ship's mortgage under common law admiralty principles.
SO ORDERED. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485523/ | REES, Chief Justice, and MURPHY, Associate Justice:
This is to reiterate and explain the procedures the C.ourt has been following since May 4, 1986, with regard to notice by publication to defendants who cannot be personally served within American Samoa.
A.S.C.A. §' 43.0501 provides that in certain kinds of cases notice . by publication may he made upon a defendant who cannot be served personally in American Samoa. §' 43.0502 specific's how notice by publication is to be made. This section requires three; separate acts as elements of service by publication:
(=1) Notice shall be published once each month for two consecutive months "in some newspaper or-publication of general circulation."
(2) The notice shall also be posted for two months in front of .the court house in Fagatogo.
(3) The , notice shall also be "mailed by registered; United .States mail to the defendant at his last known address."
The’-' second and third requirements are straightforward and unambiguous. We particularly note that the requirement of notice by registered mail to the defendant's last- known address (even, if his current- address is unknown) is an absolute requirement of the statute. A court order-authorizing- notice by publication necessarily refers to notice in the manner required by the statute, of which notice by mail is an essential element. It has never- been the practice of this Court---indeed, it is outside the Court's power- --- to give exemptions from the statutory requirements of S 43.0502. Although the location of the . defendant's "last known address" may sometimes be a matter for interpretation--*34mailing a notice to the current residence of a defendant's family, for instance, may be a better-way of complying with the statute than mailing to an address at which the defendant himself lived ten or twenty years ago --- the requirement that there be some attempt at notice by mail is clear and absolute.
There is, however, one ambiguity in the statute with regard to which some interpretation is necessary. The statute does not say where the publication by newspaper is to take place, and the practice has been to publish in American Samoa regardless of the whereabouts of the defendant. In the future, a court order authorizing notice by publication should be construed as requiring that such notice be genuinely calculated to reach the defendant. Thus if the defendant is believed to be in Hawaii or Western Samoa, publication should also be in that place. When the whereabouts of the defendant are uncertain but he is known to have relatives or friends in American Samoa, it may be necessary to publish both in American Samoa and the place the defendant is believed to be. Similarly, if the defendant speaks Samoan but does not speak English well, the notice should be published in Samoan.
In specifying procedures to be followed in future cases we do not mean to criticize prior practice. Indeed, S' 43. 0502 can easily be construed to require publication only in American Samoa. We therefore rely not only on our duty to interpret the statutory law of American Samoa but also on the administrative, supervisory, and rulemaking power of the Chief Justice. See A.S.C.A. § 3.0102, 3.0202. Indeed, the requirement that notice be genuinely calculated to reach the defendant is imposed to conform not only to the apparent purpose of the Fono in enacting the statute, but also to basic notions of due process and fair play. As the United States Supreme Court observed in Mullane v. Central Hanover Trust Company, 339 U. S. 306, "An elementary and fundamental requirement of due process in any-proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.n Id. at 314.
These procedures shall be followed not only in cases where service on a nonresident defendant is *35authorized by §' 43.0501, but also in actions for the termination or relinquishment of parental rights, in which an alternative procedure provided by A.S.C.A. S' 45.0318 has sometimes been followed. This section authorizes service "by publication or by any other means authorized by the court.n In cases involving parental rights it is especially important that absent defendants be afforded a fair chance to be heard, and the Court will therefore authorize* publication only in accordance with the above rules. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485525/ | This is a case such as often arises when land long given over to plantations and family dwelling places begins to be converted to other and possibly more lucrative uses. It also presents a difficult instance of the need to reconcile certain features of Anglo-American property law, first introduced by the territorial administration and the courts but later enacted into statute by the Fono, with the Samoan customary law that is the principal source of property rights in American Samoa.
*41The land called Oneoneloa has long taeen occupied and cultivated by the Taito family. Plaintiffs, the Sialega family, claim that Oneoneloa is one port of their tract of land colled Avau and that the ancestors of the Taitos settled there by permission of an ancestor of the Sialegas. The Taitos claim that their ancestors cleared Oneoneloa from virgin bush an their own initiative and have always held it in their own name. In any case, the families apparently lived side by side more or less peacefully until 1985, when the Taitos concluded an agreement with the American Samoa Government by which the government would purchase and remove rocks and dirt from Oneoneloa. The Sialegas sued for damages, preliminary and permanent injunctions, declaratory judgment, attorneys' fees, costs, and such other relief as the court might deem just. The government discontinued its operations on Oneoneloa, and the Taitos brought o counterclaim demanding compensation for interference with their contract and also for mental anguish.
It is difficult to choose between these two fervently held versions of the history of Qneoneloa. There was no specific evidence to contradict the testimony by several witnesses that the Taitos had never in their memories rendered service to the senior matai of the Sialega family, as would have been appropriate had the Taitos been occupying Oneoneloa at the sufferance of the Sialegas. There was, however, testimony to the effect that some elderly members of the Taito family reside to this day in a guest house belonging to the Sialegas and render service to the Sialega family. Nor is it unheard of for- a Samoan family to permit guests to reside on family land for long periods of time without rendering service.
There was evidence that on at least two occasions prior to the present dispute, once in 1968 and again in 1982, motáis of the Taito family asserted that Oneoneloa was their family land in legal documents required by law to be conspicuously posted and publicly recorded. The fact that sudh assertions were made and that neither the Sialega family nor anyone else objected is of some evidentiary value, but is not dispositive of title to the property.
One witness called by the Sialega family, High Chief Lavata'i, testified that his land is hounded *42on the east by a Sialega property called Gaateate,1 but that to the east of Gaoteote is land called Oneloa belonging to a relative- of the Taito family. When pressed by counsel for the plaintiffs, Lavata'i said he could not say for sure whether the people living on Qneoneloa were its owners, but that "since I was born I caw this family live on this land." .High Chief Lavata'i is sixty-four years old.
In support of their assertion that the Taito family has always been occupying Qneoneloa as guests of the Sialega family, the plaintiffs emphasize that Qneoneloa is considered part of the village of Nu'uuli, whereas the Taito family is a family of Faganeanea. Although it is true that under Samoan custom a family generally owns communal land only in the village with which the .family ic principally associated, it is important to notice the precise- location of this land and the circumstances, under which the area was settled. Qneoneloa is on the main road between Nu'uuli and Faganeanea, slightly closer to the center of Nu'uuli but substantially less than a mile from the ■center of Faganeanea. The adjacent .Sialega land .called Avau, .on the other hand, is slightly closer to the center of Faganeanea than to the Center of Nu'uuli. The undisputed testimony ic that either the Sialegas or the Taitos or both cleared all of this land from virgin bush. At that time, to have described Qneoneloa or Avau as being "in" Nu'uuli or Faga.neanea. would have been Just another way of saying that the family which had settled the land, was a family of that nearby village. Indeed, as recently as . 1SB2 a building permit procured by Fa'alai Taito from the Department of Public Works ;and posted at Qneoneloa represented the land as being . -in . Faganeanea, although it is more often regarded as part of Nu'uuli. If either the fa'a Samoa or the twentieth-century mapmaker's felt need ■for neatness- were deemed to require that each village have definite and perfectly contiguous .boundaries, the property rights of all families who own land near the borders of villages --- the .Sialegas' title to Avau no less that the Taitos' ¡title to Qneoneloa .---• might, be divested at a stroke of the mapmaker's pen.
*43The uncertainty about the historic title to Oneoneloa might be rendered moot by the provision oí A.S.C.A.S 37.0120 that "actual, open, notorious, hostile, exclusivo and continuous occupancy of real estate for 30 years confers a title thereto by adverse possession, which is sufficient against all." There was testimony in the record to the effect that the Taitoe have been living exclusively, continuously, openly, and notoriously on Oneoneloa for at least thirty years, and that their occupancy has been hostile to the claim oi the Sialegas in that no service has been rendered to the- senior matai of the- Sialega family. The plaintiffs' failure* to rebut this testimony, however, may bo explained by the fact that it was apparently offered to corroborate the Taitos' claim to historic ownership rather than to establish a claim by adverse possession.
Although the concept oi prescription or adverse possession was developed by Western legal systems to resolve precisely such controversies os this one, we ore reluctant to apply it without a more thorough and deliberate exposition of the facts and arguments by both sides. Many Samoan families allow other families to live on their land, and in enacting the adverse possession statute the Fono cannot have intended to piunish or deter this traditional form of generosity too severely. If the Taitas originally came to occupy Oneoneloa as guests of the Sialegas, some definite signal to the host family should be necessary to convert the occupancy from "friendly" to "hostile" in order to begin the statutory period of adverse possession.
We therefore defer decision of this case pending another . hearing at which counsel for- both parties should adduce evidence on the following points:
1) What was the understanding of the parties thirty to forty years ago about the nature of the Taitos' occupancy of Oneoneloa? (We note that direct evidence on this point was in conspicuously short supply at the first hearing. The senior matai of the Taito family, whom, we understand to be residing in Hawaii, did not testify. The Sialega family, likewise presented little or no direct evidence of the situation during this crucial period. Neither party called as witnesses the elderly members of the Taito family who are said to be residing with the Sialegas.>
*442) If the Taitos were understood at that time to be guests of the Sialegas, what acts did they subsequently perform that were unequivocally inconsistent with the Sialegas' continued ownership of Oneoneloa?
3) If the Taitos began at some point to act as owners of the land, what acts did the Sialegas perform to give notice of their objection to the Taitos' assertion of ownership?
We are reluctant to require the expenditure of further time and money on this case by the parties and by the Court. In future cases we intend to decide as best we can on the basis of the evidence and arguments presented at the first tie-eir-ing, In light of the uncertain relationship! hetween the concept of adverse possession and customary Samoan hospitality, however, and in light of the large number of families that could he affected, we defer decision pending plenary consideration of thas issue.
This land, to the west of Qneoneloa, is referred to by both parties to this litigation as Qte. , Both -the Sialegas and the Taitos claim to be the owners of Qte. This court expresses no opinion on the question. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485526/ | This is an action on an open account. On February 22, 1985, the plaintiff brought suit for $3,280.86 alleged to be overdue oh the account. The Court heard nothing further from either party until June of 1986, when plaintiff moved for a default judgment. At the default hearing the plaintiff's accountant testified that further payments had been made on the account during 1985 and 1986, bringing the current balance to $1,896.89.
The evidence shows that since March of 1985 the defendant has been making payments on a regular basis. Plaintiff's manager testified that the principal reason for the attempt at securing a judgment at this time was that during 1986 *46plaintiff had been paying at the rate of about $300 every two months rather than $150 every month. Counsel for plaintiff maintains that since no terms of payment were specified, the plaintiff was entitled to repayment of the entire balance within twenty days of demand upon the defendant. If this were true, then the demand letters which plaintiff's accountant testified were sent would be sufficient to entitle plaintiff to a default judgment.
We do not agree, however, that plaintiff was entitled to payment of the- entire balance on demand. When parties clearly intend to enter into a contract but do not specify one or more terms of the contract, a court must attempt to infer or imply the missing terms in light of all the circumstances. Among the most important of these circumstances is the usual practice within the trade or profession in question; even more important are the actions and statements of the parties themselves at or near the time of agreement.
In this case it was clear that the contract was for the sale of goods on credit rather than for cash payment on delivery. Once commercial or consumer credit has been extended, the usual custom among merchants is to expect periodic payments rather than cosh payment on demand of an entire balance of several thousands of dollars. Moreover, the actual behavior of the parties in the early stages of this contract, which included several part payments and numerous additional extensions of credit, bolsters this pre-sumption. Although during! a subsequent period the defendant ceased to make regular payments, he has been making such payments since March of 1985. At the current rote the defendant should pay off the entire balance within a year. The plaintiff's preference for payments of $150 every month rather than $300 every two months, in the absence of any express contractual provision and of any circumstances suggesting that the parties meant to specify monthly rather than bimonthly payments, is insufficient to place the defendant in breach of his contract.
We also note that the documents submitted by plaintiff include debits of $307 in attorney's fees through January of 1986. The contract does not provide for payment by defendant of plaintiff's attorney's fees, and plaintiff argues no other legal basis for an attorney's fee award. Plaintiff's accountant was unsure whether any *47additional attorney's fees had been charged to defendant's account since February 1, 1986. The court requested plaintiff to provide a complete statement of all credits and debits including those since February 1, but the statement provided ends on February 1 and reflects a balance different than that requested by plaintiff at trial. The court is therefore unable to ascertain what amount is actually owed by the defendant. It is apparently somewhat lower than the amount demanded by plaintiff.
The action is dismissed, without prejudice to the right of plaintiff to file another action if the defendant should stop making substantial periodic payments on the account. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485527/ | Intervenor, the president and sole stockholder of Louise V Inc., asserts that the skiff aboard the Louise V is his personal property and therefore cannot be seined with the chip to satisfy a' judgment against the vessel.
Even if the* court were * satisfie-d that the skiff was Mr. Virissimo's personal property it would not follow that it could not be coined. The Preferred Ship Mortgage purports to cover "any and all additions, improvements, and replacement hereafter made" in or on the ship, specifically including "skiffs. " Mr. Viriscimo had notice* of this provision when he placed the ckiff aboard the Louise V, since he had signed the mortgage in his capacity as president of the corporation.
*49In any case, the court is satisfied that the skiff is the property of Louise V Inc. The original agreement and hill of sale were in the name of Mr. Virissimo. Neither document was ever recorded in the Coast Guard records where the ship's mortgage was registered or elsewhere. <The agreement originally had the handwritten words •Louise V skiff" in a bottom corner of the first page, but this had been covered with correction fluid by the time the intervener's attorney received it from the intervener.) The skiff was paid for with a check drawn on Jeanne Lou, Inc. , yet another corporation controlled by Mr. Virissimo. In every subsequent document submitted to the court by either party, except those prepared after the onset of the dispute leading to the present litigation, the skiff is treated as an asset of Louise V Inc. Not only was the skiff claimed for tax purposes by Louise V Inc. and not by Mr. Virissimo, but the purchase price of $162,000 was also listed on the books of Louise V Inc. as a debt to Jeanne Lou Inc.
On July 29, 1985, several weeks after suit was filed, one of Mr. Virissimo's accountants wrote that it had quite recently come to his attention "that two power skiffs paid through Jeanne Lou Inc. in December 1982 and February 1983, and put on board the Capt. A.R. and the Louise V., were to be treated as personal loans to you and not loans to each of these two Nevada Corporations." He pointed out that "the books of the three corporations mentioned previously will have to be adjusted and the Federal Income Tax Returns ... will have to be amended to reflect this fact." Subsequent documents submitted by the intervenor treat the skiff as the property of Mr. Virissimo rather than that of the corporation.
On the witness stand Mr. Virissimo emphasised that he is a simple fisherman who knows little of taxes and lawyers and has a poor memory tor numbers, documents, people, places, and events. He attributed the treatment of the skiff in his records and those of his corporations to the desire of his lawyers and accountants to save him money on taxes, but stressed that they had no authority to deprive him of his property. He admitted signing many of the documents in question, including his own tax returns, but insisted that he had never read any of them.
This line of defense is inadequate. Everyone who turns his affairs over to others intends the *50delegation to produce good consequences rather than bad ones. Mr. Virissimo quite sensibly did not care which oí the entities in his control had title-to the skiff so long as he derived maximum benefit from it. Prior to the institution of this litigation his agents had decided that the way to maximize the benefit of the skiff to Mr. Virissimo was for it to belong to Louise V Inc. When suit was filed they had occasion to reconsider the-wisdom of this decision. Insofar as the rights of the plaintiff are concerned, however, the intervenor must live with the original decision he allowed the people who conduct his affairs to make for him.
The complaint in intervention is dismissed. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485530/ | On the night of May 21, 1985, defendant's porch fell onto plaintiff's car. Plaintiff's employee had parked the car in defendant's lot while shopping in defendant's store. He emerged to find the second-story porch resting on the car as well as on several other vehicles. The car was substantially destroyed.
*59The employee testified that the defendant, Mr. Nam, came out from the store and promised everyone that his insurance company would pay for all damages. Mr. Nam testified that he did no such thing but that the owner of the store building, who for some reason is not a party to this action, was present and may have made such a promise.
Plaintiff Jessop attempted several times to discuss the matter with Mr. Nam and received no definite response until September 13. On that day Nam's attorney wrote Jessop's attorney that the damages, if any, were "generated by an act of God"; therefore Mr. Nam was not the party from whom to seek payment. The act in question was a windstorm that buffeted Tutuila on the night of May 21. The Pago Pago office of the National Weather Service recorded wind speeds of up to 28 miles per hour that night, and defendant's witnesses testified that some gusts were even stronger.
For this Court to suggest that the wind that blew Mr. Nam's porch down was not an act of God would be impudent. Nevertheless, courts have long held that divine intervention does not always excuse a defendant's negligence. Gn the contrary, duties of care toward other people include the duty to take precautions against those natural phenomena which, although unusual and inconvenient, happen often enough to be deemed reasonably foreseeable.
This is particularly true of the wind. In Cachick v. United States, 161 F. Supp. 15 (S.D. Ill. 1958), for instance, the federal government was held liable when a gust of wind that may have been as strong as 70 miles per hour overturned a reviewing stand at a military exercise;
The mere fact that a high wind was blowing at and before the ladies' stand blew over did not make the blowing over of the stand an act of God so as to exempt the defendant from liability. A loss or injury is due to an act of God when it is occasioned exclusively by natural causes, such as could not be prevented by human care, skill and foresight. The collapse of the ladies' stand was the result of the previous negligence in its construction which permitted it to be overthrown by a wind that was not unprecedented ....
*60Id. at 19. See also The Mariner, 17 F.2d 253 (5th Cir. 1927); A.M. Holter Hardware v. Western Mortgage & Warranty Title Co., 149 P. 489 (Mont. 1915).
Weather Service records suggest that 28 mile per hour winds are neither unprecedented nor even particularly unusual in Samoa. In the ten months of 1985 for which records are available, for instance, winds as strong or stronger were recorded on about 30 different days, and the strongest recorded wind was 46 miles per hour. Since the Weather Service records wind speeds hourly rather than continuously it is of course possible that an unusually strong gust on May 21 may have escaped detectionf but it is no more likely that this happened on May 21 than on any other day. On the evidence before us we must conclude that the windstorm that blew Mr. Nam's porch down was not such an extraordinary one as to excuse Mr. Nam from taking reasonable precautions to protect his customers against it.
The circumstances of this case bolster our conclusion. The plaintiff's employee was a "business invitee," that is, a person whom the defendant had invited to park in his lot in the hope of consequent financial gain. Business owners must protect their business invitees not only against hazards they caused and hazards they knew about, but also against hazards they might have discovered by reasonable inquiry. This special duty has sometimes been justified on the ground that the economic benefit to the owner makes it easier or more just for him to bear the burden of liability, but more often simply because the owner makes an implied representation "when he encourages others to enter to further a purpose of his own, that reasonable care has been exercised to make the place safe for those .who come for that purpose. " W. Prosser et al. , The Law of Torts 422 (5th ed. 1984).
In this case, moreover, the defective porch had been added to the buildihg for Mr. Nam's own purposes. Although arrangements with the builder were made by the owner of the building, the construction was requested and paid for by Mr. Nam, The court expresses no opinion on who, as between Mr. Nam and his landlord, was ultimately responsible for the damage resulting from the collapse of the porch. As against an innocent third party whose presence he had invited by *61keeping his store open on the night oí' May 21, however, Mr. Nam must be held liable.
Plaintiff seeks to recover the value of the car and also some compensation for the time during which he was deprived of the use of the car. Each of these amounts is difficult'to calculate.'
Plaintiff purchased the car about five months before the accident for $5,750. By the time of the accident it was presumably worth somewhat less. After the accident the estimates of its value range from nothing at all (one repair shop declared it "beyond repair" and another estimated the repairs would cost $6,000, more than the purchase price) to as much as $2,465, the amount for which Mr. Jessop ultimately traded it in when he purchased a new car. The Court takes judicial notice, however, of the fact that even irreparable cars are worth something as scrap, and also of the fact that trade-in prices are extremely unreliable indicators of value, depending as much on the purchase price of the replacement vehicle and other factors as on the intrinsic worth of the car being traded. (In this case $2,465 seems to have been settled upon because when subtracted from the purchase price of $9,465 it resulted in the round number of $7,000 to be paid in cash.) Faced with the necessity of reaching some decision based on the evidence at hand, however, the court will figure the value of the car after the accident at halfway between the lowest and' the highest estimates, or $1,232. Thus the plaintiff should be entitled .to a sum e»qual to ($5,750 - five months' depreciation - $1,232) for the value of the car.
We. are spared the necessity of figuring the value of five' months' depreciation by the serendipitous circumstance that plaintiff is also entitled to compensation for the five months after the accident during which he was unjustifiably deprived of the use of a car. Until September 13 plaintiff's requests that defendant either repair or replace his vehicle met with evasive responses. Within a reasonable time after that ---- and several weeks seems reasonable for a transaction of this magnitude --- plaintiff should have mitigated his damages by deciding for himself whether to repair or replace the car. Between May 21 and sometime in October, however, plaintiff was deprived of a car through defendant's negligence and subsequent evasiveness rather through any fault of his own. He asks for $35 per day, the price of a rental car, as compensation. We know, however, *62•that having a car during this period must have been worth somewhat less that $35 per day to the plaintiff, since he did not in fact rent a car. Yet it was obviously worth more than zero; we are at a loss to say exactly how much more. The best estimate available to us of the value of a car to Mr. Jessop during the five months after the accident is that it was probably about the same as what Mr. Jessop actually did pay for his car--that is, its depreciation --- during the five months before the accident.
Thus the two unknown figures cancel each other-out: Mr. Jessop is entitled to a sum equal to ($5,75Q - five months’ depreciation - $1,232 + five months' depreciation), or $4,518.
Judgment is entered in favor of plaintiff and against defendant in the amount of $4,518.ÜO. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485536/ | Per KENNEDY, J. s
Appellant Vaimaona Foloi challenges the decision of the Land & Titles Division of the High Court of American Samoa determining that appellee Paleafei Tavesi and his family had a stronger claim to the land known as Ululoloa, and restraining members of Vaimaona's family from going onto this land without permission of the matais of the Paleafei family. We affirm.
Visits by judges to land over which title is disputed are not uncommon. See, e.g., Nua Kone v. Leomiti, 4 A.S.R. 404, 406 (Trial Div. 1963); Sa v. Fia, 4 A.S.R. 437, 438 (Trial Div. 1963). In this case only one member of the court attended at the time and place set for the view, and Vaimaona asserts this taints the proceedings, noting further that the trial judge who did take view reported his findings in detail to the rest of the court.
We reject Vaimaona>s contention that the proceedings were tainted. Counsel for both parties were present and participated in the view with the judge. No objection was made by either counsel. *93The parties thus waived any irregularity in having a formal view by less than all, or less than a majority, of the panel.
The court's finding that "no one actually lives on the land in question* is not clearly erroneous, based as it is on the testimony of witnesses whose reliability the court had the chance to evaluate, as well as the judge's own view of the property.
The decision of the Land & Titles Division of the High Court of American Samoa is AFFIRMED. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485537/ | Per GARDNER, J.:
Again we face a contention that the evidence before the trial court is insufficient to support the judgment. With conflicting testimony it is rather obvious that the trial court believed the witnesses favoring the appellee and disbelieved those favoring the appellant. This is the prerogative of the trial court which saw and heard the witnesses. We did not. We review on the basis of a written transcript of the testimony.
A written transcript is but a pallid reflection of what actually happened in court. It does not and cannot reflect demeanor, attitude, intonation, expression, inflection or personality. As Judge Jerome Frank said, while writing for the awesome court of Judge Learned Hand, Judge Augustus Hand and himself, a transcript resembles a "pressed *95flower." Then, in a flight of borrowed rhetoric, he further wrote, "The best and most accurate record is like a dehydrated peach; it has neither the substance nor the flavor of the fruit before it was dried." Broadcast Music Inc. v. Havana Madrid Restaurant Corp., 175 F.2d 77, 80 (2d Cir. 1949).
Another judicial author of considerably less distinction once wrote, "On the cold record a witness may be clear. Concise, direct, unimpeached, uncontradicted -- but on a lace to face evaluation so exude insincerity as to render his credibility factor nil. Another witness may fumble, bumble, be uncertain, unsure, contradict himself and on the basis of a written transcript be hardly worthy of belief. But, one who sees, hears and observes him may be convinced of his honesty, his integrity, his reliability." Meiner v. Ford Motor Company, 17 Cal. App. 3d 127, 140, 94 Cal. Rptr. 702, 711 (1971).
All of this is because at the trial level the judge may use all of his senses in the evaluation of a witness's testimony. He sees the witness. He hears the witness. He can, if he wishes, reach out and touch him. If he gets close enough he may even smell him and, given enough stress, might even bite him. But in the reviewing court all we have is a sterile page of questions and answers. To the trial judge a witness is alive -- he is a living, breathing, perspiring fellow human being. To us he is a shadow, reduced to an impersonal 6-1/2 x 11 page of transcript.
Here, if the evidence of the children involved is to be believed, and the trial judge did, a four year old child (who could hardly be guilty of contributory negligence in any degree) was struck by a vehicle which was on the wrong side of the road. The driver did not testify but her father, who was riding in the vehicle did and he testified to another version. This the trial court did not accept and that, to coin a phrase is that.
Appellant also attacks the award of $45,000. That sum seems modest enough for a mangled foot resulting in surgery with an ugly scar resulting. The child's toes have become contracted as a result of the child's growth combined with the inelasticity of the scarring process. Future surgery would improve the foot but would create a grafting scar on the other leg. The doctor estimatesd a 40% permanent partial disability to *96the foot or a 15% disability to the limb. Need more be said?
Judgment affirmed. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485538/ | Per GARDNER, J.:
Appellee Vaioli sought to register 6 acres as communal land of the Vaioli family. Appellant Sagatu objected. He is a lesser matai of the Seigafolava family. He testified the land vas the communal land of the Seigafolava family.
Seigafolava Pele is the senior matai or Sa'o of the Seigafolava family. He testified that this land does not belong to the Seigafolava family but to the Vaioli family. Therefore, he had no objection to this registration. The court held that Sagatu has no standing to object to this registration since the sa'o of the family had no objection.
That holding vas error.
Under a section of the American Samoa Code Annotated labeled S 41.1309 but found in Title 43 (should be A.S.C.A. S 43.1309) only the sa'o is authorized to bring an injunction action. This is not such an action. This is a land registration *98proceeding. Under A.S.C.A. S 37.0103 anyone claiming an interest, adverse to that oí the applicant may file an adverse claim. Under that section this appellant had standing.,
Thus the matter is remanded to the trial court for a decision on the merits. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485540/ | Per GARDNER, J. :
Filitai Uiliata appeals the trial division's denial of a motion to withdraw a plea of guilty to first degree assault. We reverse.
Filitai originally pled not guilty to -first degree murder. Before trial, however, he entered into an agreement -with the government. Under the •agreement, Filitai pled guilty to first degree assault in return for the government's recommendation of a ten-year sentence, suspended, the first three years to be spent outside the Territory. Both sides fulfilled their parts of the bargain, and the trial division took the matter under consideration.
Ultimately the trial division imposed a harsher sentence: ten years, the first three to be spent in prison, the remaining seven outside the Territory. Filitai filed a motion to withdraw his plea, claiming that Rule 11 of the High Court Rules of Criminal Procedure entitled him to do so because he had not received the sentence for which he *103bargained. The trial division denied the motion and Filitai now appeals that ruling.
Rule 11, which resembles the corresponding Federal Rule of Criminal Procedure, provides guidelines for the plea bargaining process. . Under § 11(e)(1), the government may do any of the following:
(a) move for dismissal of other charges; or
<b) make a recommendation, or agree not to oppose the .defendant's request, for a particular sentence, with the understanding that such recommendation or request shall mot be binding upon the court; or
o) agree that a specific sentence is the appropriate disposition of the case.
Under £ Ilíe)42>, if the agreement is of the type specified in subdivision 4b), the court must advise the defendant that if it does not accept the recommendation or request, the defendant nevertheless has no right to withdraw his plea.
In this case, the trial division warned Filitai that he was pleading guilty to a serious charge, that the government's recommendation would receive consideration, but that it would not necessarily be followed. It did not advise Filitai, however, that he would have no right to withdraw his . plea if the government's recommendation was not followed. We must conclude, then, that the trial division failed to comply with notice requirements of £ 11(e)(2).
The rationale for the notice requirements, which were added to the Federal Rules in 1979, is explained in the Advisory Committee Notes' as follows :
Because a type 4b) agreement is distinguishable from the others In that it involves only a recommendation or request not binding upon the Court, it is important that the defendant be aware that this is the nature of the agreement into which he has entered. The Enotice requirement! will establish for the record that there is such awareness.
The remedy for violation of the notice requirements is clear: withdrawal of the guilty plea and opportunity to plead anew. United States v. Missouri Valley Construction Co., 704 F.2d 1026, *1041029-30 (8th Cir. 1983). Thus, even though there is evidence that Filitai understood the nature oí his agreement with the government, the mandates oí § il<e)<2) compel us to reverse his conviction and remand with instructions that he be given an opportunity to plead anew.
REVERSED. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485541/ | Per KENNEDY, J.;
Plaintiff Fiapaipai Filoiali'i is the administratrix of the estate of her late father, Fill M. Liufau. In 1980 Liufau obtained a loan from the Development Bank lor construction of an industrial building in the American Samoa Government-owned Industrial Park at Tai una. Liufau's loan of $100,000 was at a seven percent interest rate, and required payments of $776 per month. Liufau executed a promissory note secured *106by a mortgage on both the realty and personalty on the property. Liufau also entered into a lease agreement with the government of American Samoa for $226 per month. The government, however, granted a "rent moratorium* for three years.
In 1981 tiufau was killed, and his daughter, the plaintiff here, took over operation of Liufau's business. The business fell on hard times, and the loan payments to the Development Bank fell into arrears.
In late 1982, William Adams began negotiations with the Development Bank. In 1983 Adams executed a "mortgage" and moved on to the premises under an agreement to pay the Bank $1,400 per month, provide insurance, and pay the $226 per month monthly rental to the government. Adams executed a "mortgage" to secure these amounts. At approximately the same time, Adams incorporated Quality Furniture. Plaintiff was not a part of these negotiations and did not execute any agreements to approve the transaction, though apparently she had some knowledge of it. She moved out when Adams moved in.
The agreement between Adams and the bank called for $'776 of the $1,400 payment to be committed to the interest and principal of the original loan, the balance to be committed' to arrearages, and, it seems, any further balance to be returned by the bank. Adams did not pay the full $1,400 per month. His total payments of $30,263.65 were enough to satisfy the original loan and its arrearages, but were $20,136.35 short of the $50,400 < 36 months at $1,400 per month) that Adams promised to pay. In addition, Adams failed to make approximately $7,000 in payments on lease payments to the government, and $2,086.25 in insurance payments.
The trial division, in the exercise of its equitable powers, gave judgment as follows: first, the court declared that Adams and Quality Furniture had acquired no interest in the property through its purported mortgage in 1983, and that the plaintiff still owned the property subject to the original loan; second, the court determined that Adams and Quality Furniture had entered the property under an implied lease with the plaintiff as administratrix for rental payments of $1,400 per month plus the amounts owed to the government for insurance; third, the court determined that Adams and Quality Furniture were in breach of the lease *107with the plaintiff, and had joint liability to the plaintiff for over $29,GGO.
On appeal Adams and Quality Furniture make two main arguments. First, they argue that. Adams cannot be personally liable because he did business only as president of Quality Furniture. Second, Adams and Quality Furniture argue that the trial division erred in the exercise of its equitable powers. We reject both contentions and affirm.
There were sufficient facts to support the court's determination that Adams had joint liability with the corporation. Adams did not incorporate until approximately the time that he took over the premises. Further, the whole transaction was conducted in an exceedingly informal manner. Under these circumstances, we are unable to say as a matter of law that Adams is entitled to hide behind his corporate shell.
We also think that the court was correct in the exercise of its equitable powers. Adams and Development Bank, acting by themselves, could not possibly terminate the plaintiff's interest. The court's finding of an implied lease on the terms of the "mortgage" worked out between Adams and Development Bank was perfectly reasonable given that possession, but not title, had passed. We think that the trial division's judgment was supported factually and was eminently fair.
The judgment of the trial division is AFFIRMED. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485770/ | This is a petition for the termination of parental rights. The natural father of the child lives in Savai'i and the natural mother is believed to be in California. Both were served by publication and there is ,no evidence that either had actual notice of this proceeding.
We are not convinced that the termination of parental rights would be in the best interest of the child. The petitioner, who is the child's great-aunt, is almost 68 years old and is a widow. Financial support for the petitioner's household is primarily provided by a grown daughter and her husband. The child's natural parents are in their thirties. Moreover, it appears that on several matters the petitioner was not truthful in her *108testimony before the Court. This casts into doubt the petitioner's testimony concerning her current inability to contact the natural parents and their earlier willingness to let the child be raised by petitioner. On the present record we cannot say that the proposed change in the child's status would be of any particular benefit to the child.
The petition is denied. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485545/ | Counsel in this case has filed a "motion to cash C.D." which incidentally seeks the Court's approval for a contingency fee of 40% of the award, plus reimbursement of all expenses borne by the attorney.
The Court has the statutory responsibility to supervise all lawsuits involving minors. This is the first time the contingency fee contract has been presented for the Court's approval, and we feel that a total fee of one-third of the amount recovered is the absolute maximum we can approve.
We do not intend to imply any disapproval of the conduct of the attorney or the guarding in this case. Rather, in approving fees to be paid by minors the Court must exercise its own best judgment, recognizing that reasonable people may disagree on such questions. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485546/ | This is an action in interpleader. Rupi Hanipale was seriously injured while riding in a car insured by American International Underwriters (A.I.U.). The American Samoa Government (A.S.G.) provided Hanipale with medical care and paid for his transportation to Hawaii and for services there *116that could not be provided locally, all in accordance with A.S.C.A. § 13.0601. Hanipale demanded payment from A.I.U. on account of his injuries, and A.S.G. also demanded reimbursement from A.I.U. for Hanipale's medical expenses. A.I.U. has deposited into the registry of the High Court the sum of 010,000, the amount of bodily injury insurance provided by the policy, and asks that the Court declare whether A.S.G. or Hanipale is entitled to the money.
Counsel for Hanipale argues that A.S.G. may not recover under the policy because the territorial statute providing for direct actions against insurance companies, A.S.C.A. & 22.2018, purports to create such actions only for- "an injured person or his heirs representatives.* Counsel contends that where the policy provision sued upon covers bodily injuries, the term "injured person" in the statute should be construed to refer only to the person who has sustained bodily injuries, not to a party such as A.S.G. who sustains economic injuries on account of another person's bodily injuries.
In support of this contention, counsel for Hanipale cites Sciaraffe v. Debler, 23 N.E. 2d 111 (Mass. 1939), and Franklin Casualty Insurance Company v. Jones, 362 P. 2d 964 (Okla. 1961). Each of these cases denied the right of a doctor to maintain a direct action against an insurance company to collect his fees for treating a person whose injuries were covered by the company's policy. The reference to physicians in Sciaraffa is dictum and is unsupported by analysis. The case seems to hold that the "voluntary payment" by a son of his own medical expenses, which his father was legally obliged to pay, did not entitle the son to maintain an action against the insurance company for reimbursement of these expenses. The Franklin case, on the other hand, was not particularly concerned with the "voluntary" nature of the doctor's services, holding instead that the doctor was "too far removed* from the injuries "to receive the benefits" of the bodily injury clause. 362 P.2d at 966. He was, in other words, an "incidental" rather than an "intended" beneficiary of the policy, and therefore could not sue upon it. See id. Counsel for A.S.G., however, cites cases in which federal hospitals providing services under a statutory obligation are distinguished from mere "volunteer" doctors and thus allowed to maintain direct actions. See, e.g., United States v. *117Government Employees Insurance Co., 461 F.2d 58, 60 (1972):
ITIhe United States was not a volunteer? it, in rendering the service, was discharging a statutory obligation, little different from the common-law obligation of a parent to a minor child, and like the parent, it is entitled to recover for its expenses incurred by reason of its statutory obligation to the insured.
See also United States v. United Services Automobile Association, 431 F.2d 735 (1970), cert. den., 400 U.S. 992 (1971); United States v. State Farm Mutual Automobile Insurance Co., 455 F.2d 789 (1972).
We are persuaded by the analogy between A.S.G. and a parent who pays medical expenses in fulfilment of a legal obligation. Indeed, the general pattern of the decisions cited by both sides is that a person can maintain a direct action against an insurance company if and only if he could have maintained an action against the insured tortfeasor. This seems fully consistent with the central purposes of direct action statutes: to simplify litigation and to allow an injured person to recover under a policy even if the insured tortfeasor has become insolvent or unavailable. See 12A Couch on Insurance 2d <Rev'd. Ed. 1981) § 45:798.
Other cases cited by the plaintiff, to the effect that "bodily injury" does not include loss of consortium by the injured person's spouse or emotional distress at having one's constitutional rights violated, do not contradict this conclusion.1 In this case it is not questioned *118•that Hanipale suffered bodily injuries. If he had been legally responsible for his oca medical bills, he clearly could have recovered for them under the policy. With regard to the medical bills A.S.G. stands in Hanipaie's place as the real party in interest. If A.S.G. were the only claimant in this case we would be strongly inclined to allow recovery --- if not on the ground that A.S.G. is an "injured person” within the meaning of the statute then on the equitable principle of subrogation, whereby a person who is legally obliged to pay a debt-of another person and who actually does pay that debt acquires the legal rights of the creditor.2
The case actually before us, however, is somewhat more complicated. The question is not whether a government agency which is required to pay an injured person's medical bills can recover against the tortfeasor's insurer, but whether the *119agency is entitled to funds which would otherwise become the property of the injured person himself. Although there has been no evidentiary hearing in this case, it is uncantroverted that Hanipale suffered serious brain damage requiring extended hospitalization and rendering him incompetent to manage his own affairs. A.I.U., in whose interest it would be understate rather than to exaggerate the extent of the losses suffered by Hanipale, conceded that he is entitled to recover the entire amount at stake in this case, unless A.S,B. is held to have a claim superior to that of Hanipale.
This question has more to do with A.S.G. A. §' 13. CiSUi, the law providing free medical services for American Samoans, than with the direct action statute. The Fono, in providing such services, was obviously free to attach the condition that under certain circumstances the patient would be requiied to reimburse the government. Although the language of the statute contains no explicit conditions, it is arguable that the legislature that enacted the statute, had it anticipated the present circumstances, would have regarded them as an implicit exception to the general rule that no American Samoan should be required to reimburse the government for medical care.
Even though the Fono chose to impose no other "means test" --- even though the very wealthiest citizens are not required to pay for their treatment --- it can be argued, and defendant A.S.G. does argue, that there is a logical distinction between (a) having money and <b) having received money on account of the injuries for which medical care is needed. We can find no basis, however, for imputing to the Fono the desire to make such a distinction. If Hanipale had been receiving compensation for his injury from an employer or a government agency, or if he had been given a large sum of money by a wealthy benefactor who sympathized with his plight, A.S.G. apparently concedes that it would not be entitled to reimbursement. See A.S.G. Answers to Interrogatories, #8. This would be true even though if Hanipale had not been an American Samoan and had been responsible for his own medical bills, he would have had to pay them out of the funds thus acquired.
In this case Hanipale is entitled to receive compensation from the tortfeasor's insurer to compensate him for the pain and suffering he has endured.. The law regards such injuries as *120compensable not on the ground that injured persons should receive windfalls, but on the ground that they have suffered real injuries that they had a legal right not to be made to suffer. <This is not to say that juries and judges do not sometimes give awards that might look more like windfalls than like compensation. But the facts of this case do not suggest that the insurance company has contrived to bestow such a windfall on Hanipale.) An award for pain and suffering is, in other words, not inferior in rank or dignity to any other entitlement a person might have. We see no reason to make of such an award a unique exception to the rule that no American Samoan is required to reimburse the government for medical care, no matter what the amount or source of his wealth.
Nor should it make any difference that in this case A.S.G. made a demand on A.l.U. before A.I.U. had actually disbursed the funds to Hanipale. If a policy contains a medical payment provision, or a bodily injury provision whose limit will not be exhausted by just compensation to the injured person himself,3 then we believe A.S.G. has the right to reimbursement from the insurer for its expenses in connection with a covered . injury. Where, however, the effect of a claim by A.S.G. would be to deprive the injured person of funds to which he is otherwise entitled, we believe such a claim to be contrary to the clear purpose of A.S.C.A. § 13.0601, and therefore barred. Judgment •will be entered for defendant Hanipale.
Indeed, one of the cases seems to support the contention that a husband can sue an insurance company for his losses suffered as a result of a covered injury to his wife. New Hampshire Insurance Company v. Bisson, 449 A.2d 1226 (N.H. 1982), affirmed a trial court judgment that an action for loss of consortium "arises from the bodily injury to" the spouse, but was not a separate bodily injury. Thus under a policy limit of $20,000 per person and $40,000 per incident, "the policy limit has been exhausted by the payment" of $20,000 to the wife, and the husband *118could not recover an additional 69,000 on the theory that his was a separate bodily injury triggering the 640,000 limit. Id. at 1227. The strong implication is that the husband could have recovered under the policy if the 620,OOO limit had not been exhausted.
See generally Dobbs on Remedies 251 0 973) <citations omitted):
£Slubrogation is ... a remedy invoked by courts --- originally equity courts --- to prevent unjust enrichment, and for this purpose it is appropriate in any case where restitution is warranted and the remedy can be given without working an injustice. . . .
Subrogation simply , means substitution of one person for another % that is, one person is allowed to stand in the shoes of another and assert his rights. , . . ETlfae pattern almost always looks something like thisí A debtor owes money to a creditor. For some reason . . . 'the plaintiff pays the debtor's debt, thus satisfying the creditor's claim against the debtor. If’ there is no legitimate reason for the plaintiff's intervention . . . the plaintiff will he described in derogatory terms as a volunteer and cast into legal outer-darkness. On the other- hand, if the plaintiff paid £tlhe defat for some good reason ... I the debtor! is unjustly enriched. ... [lit seems entirely just to - give the plaintiff the same right's held by the creditor whose claim he discharged.’
The amount of such compensation will in many cases require a trial. On the state of the pleadings and the record, and especially in light of A.I.U's apparent willingness to settle- with Hanipale before A.S.G. had made its claim, we do not believe this to be such a case. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485548/ | Counsel for defendant Governor A. P. Lutali have moved to quash plaintiffs' subpoena of Governor Lutali to testify at the trial.
Only in extraordinary circumstances will a court compel the testimony of the chief executive of the jurisdiction in which the court sits. The cases cited by counsel for the Governor, holding that chief executives and other administrative officials may not be questioned with regard to their quasi-judicial review of administrative procedures, are one instance in which the executive immunity from such compulsion is virtually absolute. In other cases, more general concerns having to do with the respect due to the leader of a co-ordinate branch of government, the fact that in aost instances the information available from the chief executive can be just as easily obtained from lesser officials, and the recognition that the chief executive is an extraordinarily busy person will make a court most reluctant to allow a party to compel his testimony. On these grounds this Court recently granted without a hearing a motion to quash a scheduled second deposition of Governor Lutali in this case. On the other hand, concern for the right of a litigant to his day in court prevents executive immunity from being absolute. Although the rule varies from jurisdiction to jurisdiction and from case to case, a fair summary is that a party may compel such testimony only if It seems absolutely necessary to make out his case and the party can convince the court that there is at least some chance that the testimony will enable him to prevail.
*126In this case plaintiff has accused Governor Lutali of intimate personal involvement in a scheme to sell the Rainmaker Hotel for far less than its actual value and to turn over the management of the hotel to people who are alleged to have squandered the assets of the hotel in various ways including the forgiveness of debts owed by the Governor's campaign organization. Counsel for the government have characterised these charges as totally unfounded, and at present the Court has seen nothing to substantiate them. If Governor Lutali"s actions since assuming office were the only area in which plaintiffs sought to compel his testimony, the Court would be strongly inclined to require that plaintiffs produce other evidence both of the improper activities and of the Governor's personal involvement in them before being allowed to compel his testimony.
In this case, however, a major area in which the Governor's testimony is sought concerns events that happened before he became Governor. It happens that Governor Lutali was one of five directors of the American Samoa Development Corporation during the time when many of the transactions leading up to the government's assertion of ownership of eighty per cent of the shares in the corporation took place. Moreover, it appears that at least three of the other four-former directors are unavailable to testify by reason of absence from the Territory, and that some of the documentary evidence surrounding the transactions may have been destroyed in a lire. Under these circumstances the denial to plaintiffs of the right to call Governor Lutali as a witness would be manifestly unjust. The Court must therefore reluctantly deny the motion to quash the subpoena.
The Governor will not, however, be required to b® present in the courtroom throughout the trial waiting to testify. Counsel .for plaintiffs should calculate the approximate time at which they piara to call the Governor to testify and should notify his counsel immediately. If that time is inconvenient the Court will attempt to work around the Governor's schedule. The Court also expects that counsel will observe the high standards of decorum and courtesy required by the Code of Professional Responsibility and by the traditions of the Samoan people. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485550/ | On October 21, 1986 Plaintiff brought this action under and pursuant to the Government Tort Liability Act. Chapter 12, Title 43, A.S.C.A. Plaintiff pled compliance with the requisite jurisdictional requirements as provided in the Act. Plaintiff's claim is based upon a theory of medical malpractice. She has named as defendants, in addition to the Government of- American Samoa, the L.B.J. Tropical Medical Center, Dr. Claude Dalton Jagh, the United States Secretary of the Interior and Does 1 through XX.
The Attorney General has moved for an order striking defendants L.B.J. Tropical Medical Center and Dr. Claude Dalton-Jagh from the complaint. The Attorney General argues that the remedy provided under the Act is exclusive and the Plaintiff can only proceed against A.S.G. as the sole defendant.
*131The Court notes that there is an additional ground for dismissal as to L.B.J. It is common knowledge that the Medical Center is operated and administered by A.S.G.
Title 13 of the American Samoa Code Annotated provides for the establishment within the executive branch of A.S.G. Territorial Medical Facalities, but there is no provision that any facility so established can sue or be sued. Keifer & Keifer v. R.F.C., 306 U.S. 381 (1939), presaged the idea of governmental tort liability and the issue of what agencies can be sued. See for examplet Kozikowski v. Delaware River Port Authority, 397 F.Supp. 1115 (D.N.J. 1975), Edelman v. F.H.A., 382 F.2d 594 (2d Cir. 1967) (opinion at 251 F. Supp. 715). In order for a governmental subdivision to be a party defendant (or plaintiff) that power must be created by statute or constitution. Simply designating a facility toy name does not create a separate entity.
Ordinarily various departments and subdivisions of the government are the responsibility of the executive, ie; A.S.G. Can you sue a police sub-station? A bus stop? Can "Montoya Corner" be a defendant? We think not, ergo L.B.J. Tropical Medical Center should be stricken as a party defendant.
We now turn to the issue of whether or not the government employee can be sued. The answer is he can, except when the plaintiff elects to proceed under the Government Tort Liability Act. (See Moena et al. v. A.S.G., CA No. 133-85, December 18, 1986, High Court Trial Division.)
The determinative provisions of the statute are 43.1211 (a)i "The remedy by suit against the government as provided by this chapter for damage . . » or personal injury ... caused by the negligent or’ wrongful act or omission of any employee of the government acting within the scope of his ... employment shall hereafter be exclusive of any other civil action or proceeding by reason of the same subject matter against the employee whose act or omission gave rise to /the claim . . . ."
Paragraph (b) of the same section provides in pertinent part that the Attorney General is to defend any such action brought against an employee of the government.
*132This is pretty straightforward language and the reasoning behind it is readily apparent. The Act is essentially a waiver of sovereign immunity. Richards v. United States 369 U. S. 1 (1962). The government being the "deep pocket* wants to retain control of the litigation.
A judgment taken under this chapiter constitutes a complete bar to any action against the employee. A.S.C.A. § 43.1207. In the event a judgment is not taken, as for example, if the employee was found not to be acting within the scope of his employment as suggested by Plaintiff's counsel in his memorandum, then of course an action can be maintained against the employee. However, until that occurs, so long as Plaintiff is proceeding under the Act, she can only sue A.S.G. Accordingly the motion to strike L.B.J. Tropical Medical Center should be granted on both grounds above stated and Dr. Claude Dalton-Jagh should also be stricken as a party defendant. The Secretary of Interior has not joined in the motion to strike. The Court does not have the temerity to strike him absent a motion since perhaps he is planning on coming to Samoa to personally defend.
Motion to strike granted this 19th day of December, 1986. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485551/ | PER CURIAM s
Appellants Aumoeualogo Soli and Vailaau Siliga challenge the decision of the Land & Titles Division of the High Court awarding the matai title "Le'iato" to appellee Eteuati Le'iato.
The court rendered its decision after consideration of each of the four criteria set out in A.S.C.A. § 1.0409. Although both appellants have put forward strong evidence of their qualifications for this title, we affirm the decision of the High Court.
A court confronted with the necessity of deciding which candidate should succeed to a matai *134title is required by S 1.0409 to consider: <1) which candidate has the "best hereditary right*; (2) "the wish of a majority or plurality oí the clans of the family*; (3) "the forcefulnese, character and personality of the candidate and his knowledge of Samoan customs"; and (4) "the value of the holder of the title to the family, village, and country." In this case, the court determined that no one candidate prevailed on the first, second, or third factors. It then determined that appellee Eteuati prevailed on the fourth factor.
On the issue of which candidate had the best hereditary right, the court found that the title at issue is an ancient one and that a claim of a blood relationship ten to twelve generations removed from the original titleholder is therefore plausible. It then ruled that at this level, minute distinctions between candidates would be deemed irrelevant.
This question --- whether “minute distinctions" in blood relationship to an original titleholder ten or twelve generations ago are legally significant --- is an apparently unintended consequence of the Court's decision In re Matai Title Sotoa, #005-82. That decision of the Trial Division, holding that blood relationship was to be calculated only to the original titleholder and not to any subsequent titleholder, was a derogation from the previously settled law. See, e.g., In re Matai Title Alalamua, 4 A.S.R. 93 (1972); Suega v. Sunia 4 A.S.R. 263 (1962); Sueuga v. Laisene, 2 A.S.R. 82 (1939). Prior- to the Court's holding in Sotoa. claimants invariably traced their ancestry to recent title-holders as well as to more ancient ones, so that the distinctions tended to be among children and grandchildren of former title-holders (blood relationships of 1/2 and 1/4 respectively) or at least among descendants -oho could claim blood relationships of 1/3, 1/16» or 1/32. Under these circumstances the Court would hold that claimants were tied only if their blood relationships were precisely equal. Whether this rule should apply under the Sotoa formula, where the relationship of each candidate to the title is far more attenuated, or whether the Appellate Division should reconsider that part of the Trial Division's Sotoa holding that counts blood relationship only to the original titleholder, are questions we need not reach in this case. After appellants Aumoeualogo and Siliga had each moved for a new trial, the Court affirmatively found that nta candidate had established his superior claim by the preponderance *135of the evidence. Since there was a dispute over-how many generations had occurred since the establishment oí the title,1 there is evidence in the record to support the trial court's finding and we are therefore prohibited from disturbing it.
On the issue of the support of a majority or plurality of the clans, the court found that each candidate had some clan support but no candidate could be said to have the support of a majority or plurality. The court determined that of the seventeen clans listed on the questionnaires, no candidate could claim the support of more than four. Although appellant Siliga may have claimed the support of one more clan than appellee Kteuati, he only listed the support of three clans. The court was justified in concluding that. Siliga' s support was not sufficient to lift him ahead of the other candidates on this factor.
The court found that no candidate prevailed on the issue of forcefulness, character, personality, and knowledge of Samoan customs. Both appellants claim that the court erred in that conclusion. Because we have not had the opportunity to observe the candidates that the trial court has had, we must of necessity defer to the findings of the trial court if they are at all supported by the record. Given the outstanding backgrounds of the appellants and the appellee, we think the court had ample basis to conclude that "each is a man of honor and of integrity . . . an honest, God-*136fearing and responsible member of society ... iwith) an acceptable knowledge of Samoan customs and traditions and of the customs, traditions and history of this family.*
The court found that appellee Eteuati prevailed on the issue of the value of the candidate to family, village, and country. Each appellant contests this finding, and each has presented a cogent showing that he is of extraordinary value to his community. Appellant Siliga is an accomplished physician, who has also served his country well in various positions in the field of public health. Appellant Soli is a recognized attorney, and has served in various hagh government positions. We have no doubt that either of these appellants would have served well as Le'iato. Nevertheless, appellee Eteuati is also of exceptional value to his village, family, and country. He has served for twenty-nine years as a physician, for four years in the House of ¡Representatives, and for two years in the prestigious position of Speaker of the House. He has also been very active in community service. The court, forced to decide among an array of fine candidates, was ¡not clearly erroneous in choosing appellee Eteuati for the title. Having had a chance to observe the candidates, the court no doubt included the age and health of all the candidates in its calculus, and we are not in a position to second-guess that determination on the record before us.
One further issue that we Must address concerns appellee Eteuati's place of birth. The Fono has determined that a candidate to succeed to a matai title must either have been born on American soil or have bpen born to parents who were inhabitants of American Samoa but who were, at the time of his birth, residing abroad temporarily. CSucb a candidate must also renounce allegiance to the country of his birth at age eighteen or reside in American Samoa for ten years prior to his candidacy.) A.S.C.A. B 1.403. Doubt has been cast over appellee Eteuati"s birthplace as a result of the production of a birth certificate showing that a child was born to his mother in Western Samoa on the date of his birth. On the other hand, he has sworn under oath that he was born in American Samoa, and that his parents have always so advised him.
If we were required to resolve the question of appellee Eteuati‘s actual place of birth, or to *137review such a resolution by the trial court, we would be hard pressed to draw a conclusion based on these two pieces of hearsay evidence. We are not, however, required to decide this question. The trial court found that regardless of his actual place of birth, appellee Eteuati meets the statutory prerequisite for candidacy because his parents were inhabitants of American Samoa temporarily living outside American Samoa, and he has resided in American Samoa for over ten years. We have been presented with no evidence from which we can say that this conclusion is clearly erroneous.
The decision of the Land & Titles Division of the High Court is AFFIRMED.
Appellant Aumoeualogo Soli, for instance, testified that he had 1/64 blood relationship to the original titlebolder, Le'iato Togiola. This would mean that he was only six generations removed from this ancestor. Appellee Eteuati, on the other hand, testified that he bore only a 1/2046 relationship to Togiola, which would lead to the conclusion that Togiola lived several hundred years earlier than according to Aumoeualogo's version. It is clear that the trial court dad not accept Aumoeualogo's version. See Trial Court Opinion at page 2. Similarly, candidate Siliga vacillated in his estimate of his own relationship and the court was apparently not inclined to accept his testimony. We note, incidentally, that under- the are-Sotoa rule the appellee would apparently prevail over either of the two appellants. The appellee claims a 1/16 relationship to the nearest titleholder, appellant Aumoeualogo claims 1/32, and appellant Siliga a more distant relationship. | 01-04-2023 | 11-18-2022 |
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