[29ASR2d152]
VAO F. MALAEPULE, KILISITINA
T. SIAUMAU, and AFO TEMA for the
AFO FAMILY,
Objectors/Plaintiffs,
v.
FA`AGAU LEFITI for the
FA`AGAU FAMILY, Claimant/Defendant.
High Court of
Land and Titles Division
LT No. 44-90
[1] In land
disputes, possession of real property is the best evidence of ownership and
carries with it the presumption of ownership.
Conversely, a mere claim to land without accompanied use or occupation
is insufficient to acquire title thereof.
Before KRUSE, Chief Justice, VAIVAO, Associate
Judge, and SAGAPOLUTELE, Associate Judge.
Counsel: For Plaintiffs
Kilisitina T. Siaumau, and Afo Tema for the Afo Family, Charles V. Ala`ilima
For Defendant, Afoa Moega Lutu
Decision and Order:
On
Following unsuccessful reconciliatory efforts before
the Office of Samoan Affairs, pursuant to the requirements of A.S.C.A. §
43.0302, the dispute was referred to the High Court. The matter came on for trial on
The eastern boundary line of the disputed area, as
proposed by Fa`agau's survey, follows an existing
fence (hereafter "the fence") which runs inland from the main
highway, traversing a course further northward towards the hillside. The disputed area presently contains a dwelling
house belonging to Toloa`i Aualuma,
the remnants of a dwelling that once belonged to Lanutausala
Vesi, a relatively large (60' x 100') apartment
building belonging to Finagalo Aveina,
and various graves. The area on the east
side of the fence, commonly referred to by the parties as the "Burns Philp area" (hereafter the "Burns Philp area"), contains commercial buildings now
occupied by Paisano's Restaurant and an automotive
garage. This eastern part of the cove,
the Burns Philp area, is currently the subject of a
long term lease which was entered into in 1972, between the Afo
family as lessor and Wilbur Reine
as lessee.1
A. Fa`agau's Claim
Fa`agau, who is 51 years of age,
testified that his family has owned Vasa`aiga from
time immemorial. He explains the Afo family's presence on the Burns Philp
area in terms of a land grant from the Fa`agau family
to the Afo family at some unspecified time in the
past. He further pointed out that it was
he who had earlier set up the eastern boundary line in the context of resolving
a dispute between Tauasosi Faumui
(Faumui Pisa's daughter) and Aimiti
Afo (Afo, Sr's., wife) that arose when the fence was first being
proposed for the Afo family's tenants on the Burns Philp area. In
further support of his family's claim to the disputed area, Fa`agau
submitted, as evidence of pule (exercise of
dominion), copies of: a separation agreement, dated July 18, 1972, executed by
his predecessor Faga`au Leota
for Toloa`i Aualuma's
residence; another separation agreement, dated November 21, 1977, which he had
signed for Lanutausala Vesi's
home; and a building permit application that he had also signed as "land
owner" for Finagalo Aveina's
apartment building. He additionally
tendered an exercise book, which he had kept to record individual contributions
to Fa`agau fa`alavelave
(family affairs); the [29ASR2d154] book contains names of some of the past and
present occupants of the disputed area, together with their respective
contributions to some of the Fa`agau family's fa`alavelave.
Finagalo Aveina,
52 years of age and a member of the Fa`agau family,
testified that the disputed area is Fa`agau family
land, and that he commenced building his apartment thereon in July 1977, and
completed it in 1988. He further
testified that his construction work could not have gone unnoticed, and that no
one from the Afo family objected to the errection of his apartment building. Aveina also
testified that while growing up in the vicinity, he knew that Tauasosi Faumui and her husband Toloai, who subsequently became his in-laws, had occupied
the area on which his apartment is located.
B. Afo's Claim
Afo, who is 50 years old,
testified that the land known as "Vasa`aiga"
comprises both the disputed area, as well as the Burns Philp
area, and that the same has always been the communal property of the Afo family of Faganeanea. He also testified that the only people who
have lived on Vasa`aiga have been Afo
family members together with Faumui Pisa and his
descendants; that according to oral history handed to him by family elders, Faumui Pisa originally haled from Nu`uuli,
a lesser matai of the Levu
family; but that Faumui Pisa was also connected to
the Afo family of Faganeanea
and had thereby come to live on Vasa`aiga through the
permission of Afo Mosegi. Afo further
testified that the graves on the disputed area are those of Faumui
Pisa's family, and that while he could not identify all of the graves, he knew
of, and named, a number of those who were buried there.
Afo's 75 year old mother, Aimiti Afo, testified that she
first went on Vasa`aiga in 1944, when she first
married her husband, Afo Tema,
Sr. She testified that she and her
husband, together with other members of her husband's family, had houses on the
eastern portion of Vasa`aiga (the Burns Philp area) while Faumui and his
children lived on the western part; that in earlier times, Faumui
and his family collaborated with Afo in family fa`alavelave; and that eventually the Faumui title was accepted into the village council of Faganeanea.
According to her, the strained relations now existing between themselves
and certain of Faumui's issue began to arise after
the marriage of Tauasosi Faumui's
daughter, Mata`alofa, to Finagalo
Aveina, a member of the Fa`agau
family. Finally, Aimiti
further testified that she has known four Fa`agau
titleholders but she had never seen any of Fa`agau's
predecessors on Vasa`aiga.[29ASR2d155]
We find that the evidence preponderates in favor of
the Afo family's version of the facts. They present the more tenable claim to the
disputed area. They can point to actual
occupation of Vasa`aiga---the disputed area as well
as the Burns Philp area. The Fa`agau
family's bald claim to ownership together with a past gift to the Afo family, is, on the other hand, vague and less worthy of
belief. Notably, Fa`agau
could not provide any details of, nor circumstances behind, the claimed
donation to the Afo family. He utterly failed to satisfactorily explain
the seemingly anomalous situation of one Samoan family in Faganeanea
donating its land to another of the same village. The improbability of Fa`agau's
claim to ownership is further accentuated by the fact that he has no plausible
explanation for the presence of Faumui Pisa and his
family on the disputed area, people whom he admits are not Fa`agau
family members.2 In short, he has no history as to why these
strangers have been on the disputed area, which is yet another anomalous
situation, given the realities of Samoan life.
Afo's explanation, however, is
not only uncontroverted but his family's history
regarding the origins of Faumui Pisa and his kinship
ties to the Afo family, finds some corroboration in
the record and decision of an earlier matai title
dispute involving Faumui Pisa as a party. See Leasiolagi
v. Faumui, 3 A.S.R. 235, (Trial Div. 1954); 3
A.S.R. 509, (App. Div. 1954).3 At the same time, while Afo
is able to explain the burials on the land and name some of those interred
there, Fa`agau has no knowledge at all about the
graves on the disputed area. This lack
of familiarity on Fa`agau's part presents a further
anomaly, considering the significance of family graves as traditional indicia
of land ownership.4
As we earlier noted, while Fa`agau's
family history is the simple assertion of ownership from time immemorial, Afo is additionally able to [29ASR21d156] point to a family
history of actual occupation, within living memory, to back his family's claim
to ownership. The Afo
family, which in accordance with Samoan custom would include Faumui Pisa and his family5,
built homes in the vicinity; the Fa`agau family did
not. While the latter's asserted
occupation of the disputed area through total strangers, the Faumui people, is difficult to accept considering the
realities of Samoan life, Faumui Pisa's presence on Vasa`aiga is otherwise easy to understand, when seen in
light of his connection to the Afo family.6
With regard to the two separation agreements
submitted by Fa`agau in support of his claim, these
are of no real import when viewed against the factors discussed above. In our view, these isolated incidents
relative to Vasa`aiga, speak less of pule but more in terms of posturing opportunities
presented to Fa`agau at a time when; 1) the Afo family's senior matai was
incapacitated and off-island, and 2) relations between the Afo
family and Tauasosi Faumui
were deteriorating. At the same time,
the conspicuous absence of any evidence of previous instances of pule by Fa`agau and his
predecessors, relative to the time when Afo Tema, Sr., was healthy and actually on-island, is found to
be worthy of note.
With regard to Fa`agau's
attempt to underscore the absence of objection by the Afo
family to the erection of Aualuma Toloai's
home, Lanutausala Vesi's
home, and Finagalo Aveina's
apartment building, we find no merit to this contention. Ostensibly, there was nothing untoward nor
objectionable with the construction of these structures on the disputed area
since both Aualuma and Lanutausala
are members of Faumui Pisa's family, while Finagalo was, at the time, related by marriage. Faumui Pisa, as we
have noted, was a member of the Afo family. The fact then that the building of these
structures were not met by objections from people of the Afo
family, is hardly compelling. Similarly,
we see little if any significance to the claim of boundary setting by Fa`agau. This action
was also undertaken by Fa`agau during the off-island
absence of the Afo family's senior matai and when the developing tension between Tauasosi Faumui and the Afo family was at its height.7 In actuality, the resulting [29ASR2d157]
eastern boundary line claimed by Fa`agau reflects
nothing more than the security needs of Afo's tenants
for a fence; it does not depict an inter-family boundary adjustment reflecting
actual use and occupation.
Finally, the building permit application for Finagalo Aveina's apartment
building submitted by Fa`agau as evidence of pule, seems to be yet another (bad) example of
posturing. While Finagalo
testified that the building of his apartment was commenced in the year 1977 and
finished in 1978, the document in question bears an after-the-fact approval
date of
[1] In land disputes, possession
of real property is the best evidence of ownership and carries with it the
presumption of ownership. Tuato`o v. Taua`a
17 A.S.R.2d 163, 166 (App. Div. 1990); see also Lualemana
v. Atualevao, 14 A.S.R.2d 34, 43 (Land &
Titles Div. 1990) ("Actual occupation with the claim of ownership, not the
exercise of power over the actual occupants . . . is the best evidence of land
ownership in American Samoa."); Muagututi`a v. Savea,
4 A.S.R. 483, 485, (Trial Div. 1964); Soliai
v. Lagafua, 2 A.S.R. 436, 438, (Trial Div. 1949);
Fa`ataliga v. Fano,
2 A.S.R. 376, (Trial Div. 1948).
Conversely, a mere claim to land without accompanied use or occupation
is insufficient to acquire title thereof.
Ilaoa v. Toilolo,
1 A.S.R. 602, 604 (Trial Div. 1938); Soliai
v. Lagafua, supra at 438.
In view of all the evidence, we are convinced that
the disputed area offered for registration by Fa`agau
is not the land of the Fa`agau family. On the other hand, we are persuaded on the
evidence that Vasa`aiga has sufficiently been in
possession and control of the Afo family, independent
of the Fa`agau family, to firmly establish the former's claim to ownership. We therefore hold that the disputed area is
the communal property of the Afo family of Faganeanea. The
Territorial Registrar may register title to the disputed area in the Afo family of Faganeanea.
Judgment will enter accordingly.
It is so ordered.
1 This leasehold relationship is discussed in Reine v. Maugaui, 23 A.S.R.2d 25 (Land & Titles Div. 1992).
2 This fact, absence of family connection, is also made evident in a previous land case between the Fa`agau family and the Faumui family. See Faanau v. Faumui, 2 A.S.R. 228 (Trial Div. 1947).
3 In this matter, Faumui Pisa's right to the Levu title of Nu`uuli was confirmed by the Appellate Division. The gafa which he submitted to the trial court to prove his entitlement, reflects his connection to the Afo family of Faganeanea.
4 See e.g. Uigalelei v. Fuimaono, 14 A.S.R.2d 49, 50 (Land & Titles Div. 1990) ("[T]he general and longstanding custom is to place family graves on family land, to tend to them carefully, and to rely on them as evidence of land ownership.").
5 See e.g. Vaotuua v, Puletele, 3 A.S.R. 145, 147 (Trial Div. 1955) ("[I]ts the Samoan customs [that] all those who live in the family . . . are recognized as a family member.")
6 Samoan custom recognizes that a person can be a member of two different families at the same time. Sueuga v. Laisene, 2 A.S.R. 82 (Trial Div. 1955).
7 The dispute between Tauasosi Faumui and Aimiti Afo over the fencing of the Burns Philp area, as well as Tauasosi's willingness to have Fa`agau involved with the settlement of that dispute, lends credence to Aimiti Afo's testimony about a falling out with certain of Faumui's children, who then switched loyalty toward the Fa`agau family.