[30ASR2d10]
IOELU F. C. PEN, Appellant
v.
FAIMA LAVATA`I, MEL LAVATA`I and DOES I - V,
Appellees
High Court of
Appellate Division
AP No. 8-94
[1] The mere
fact of the Governor's approving signature does not render a flawed lease
impervious to legal challenge any more than it could transform a bill into law
without constitutionally proper legislative approval.
[2] A.S.C.A. § 4.1040 provides for
appellate review of a final administrative decision in a "contested
case." In such cases, the Appellate
Division may reverse or modify an agency decision if it is contrary to law or
based on factual findings which are "clearly erroneous," or if it is otherwise
arbitrary, capricious or abusive of discretion.
A.S.C.A. § 4.1043-44.
[3] Certain
administrative functions, such as the determination of whether an alien should
be deported according to existing immigration and probably the determination of
whether an alienation of land is improvident within the meaning of A.S.C.A. §
37.0203(c), are beyond the reach of any judicial review because they are
committed to agency discretion by law.
[4]
The function of the Land Commission and the Governor in the
approval of leases of communal land is to provide a check against improvident
leases, which would be harmful to the Samoan land tenure system, not to sit in
judgment on land title issues.
[5] The
statute requiring the Governor’s approval on certain land transfers, A.S.C.A. §
37.0221, does not devise a system where the Governor effectively has the right
to reallocate property without regard to the preexisting rights of others in
that property, and then to have those decisions immune from judicial
review. The Governor's statutory
authority to approve a lease between private parties presupposes that the
lessee actually has the authority to enter into the lease in the first
place.
[6] An administrative decision does not
concern a contested case under A.S.C.A § 4.1040 when a party was not
represented at Land Commission hearings and could not contest the
lease.[30ASR2d11]
[7]
Appellate courts lack subject matter jurisdiction to consider
issues that were not presented to the
administrative agency.
[8] As a matter of due process of law, the
Land Commission must hold public hearings on proposed transfers of land, and
give reasonable notice to interested parties.
[9] Separation of powers principles do not
prevent the judicial branch from voiding a lease approved by the Governor in
violation of due process rights.
[10] Customary family consultation in
regards to dealing with communal land can continue in a system where the
approval of the governor is also required for the leasing of native land.
[11] Regardless of whether a matai is
required to consult his family before he enters a lease, certain circumstances
demand that he do so when revoking an assignment of communal land to a family
member.
[12] An assignment of communal land may
only be revoked for an overriding family purpose if the family meets, the matai
reasonably decides the revocation is for an overriding family purpose, and
alternate land or another reasonable arrangement is made.
[13] Family consultation is required when
revoking a land assignment to a family member so that the land may be leased to
non-family members.
[14] A matai must arrive at consensus in
the traditional Samoan way before revoking an assignment of communal land based
on the family purpose doctrine.
Before RICHMOND, Associate Justice, ALARCON*, Acting Associate Justice,
UNPINGCO**, Acting Associate
Justice, LOGOAI, Associate Judge, and SAGAPOLUTELE, Associate Judge.
Counsel: For Appellant, Togiola T.A. Tulafono
For Appellees, Afoa L. Su`seu`e
Lutu
Opinion:
This case concerns the extent of matai authority to
revoke assignments of family communal land.
HISTORY
Appellant Ioelu F. C. Pen ("Pen") brought
this action in the Land and Titles Division ("trial court"), seeking
a permanent injunction against appellees Faima Lavata`i ("Faima") and
his son Malakai Lavata`i, to enjoin their interference with Pen's use and
enjoyment of a portion of land named Lepine, leased to Pen by the late Lavata`i
Natia ("Lavata`i"), then the sa`o, or senior matai, of the Lavata`i
family of Nu`uuli. Pen is not a member
of the Lavata`i family.
On
DISCUSSION
Pen argues that:
(1) the trial court factually erred in concluding that Faima possessed a
valid assignment of communal land; (2) courts may not invalidate a lease
approved by the Governor absent a showing of fraud in the procurement of the
lease; (3) the trial court erred in reviewing the issues de novo, but instead
should have treated the case as an appeal of an agency decision, giving proper
deference to the agency's ruling; and (4) the trial court erred in limiting the
power of the matai to change or revoke an assignment.
On appeal, the trial court's factual findings will
not be reversed unless they are shown to be clearly erroneous. A.S.C.A. § 43.0801(b).
In the present case, Pen challenges the trial
court's factual finding that Faima held an assignment interest in Lepine,
stating that Faima was present during a family meeting where the intended lease
was discussed, and implying that Faima would have objected at that time if he
had actually possessed a valid assignment.
Pen further asserts that Faima's claim is [30ASR2d13] defective because
the matai who purportedly conveyed the assignment to Faima was not in office at
the time the assignment allegedly became effective. Finally, Pen asserts that Faima lived in
Although Pen's view of the facts is one possible
account, the trial court's findings are not clearly erroneous. The trial court made its decision based, in
part, on a visual inspection of Lepine and its structures. Addressing specifically the
argument that Faima would have objected to the lease if he actually had a valid
assignment, Faima's testimony at trial and the opinion of the trial court both
indicated that he did object. We
have no reason to hold that a reasonable finder of fact could not have believed
Faima's testimony.
To the assertion that the matai granting Faima's
assignment was not in office at the time it was granted, there is evidence in
the record that Faima had some interest in Lepine as early as 1931. Although Faima testified that he thought the
assignment occurred in 1963 (even though the matai did not take office until
1970), the thrust of Faima's testimony is that he began using heavy equipment
to work the land after it was assigned to him by the Lavata`i titleholder. Faima clearly did intend to testify that the
assignment occurred, in chronology, after the matai took office. Again, we have no particular reason to
question the trial court's finding, despite the fact that Faima testified to
events that occurred more than 20 years ago, and his memory of them may
consequently not have been precise.
Regarding Pen's assertions about Faima's absences
from Lepine, we acknowledge that these factors may be relevant. However, in view of evidence that Faima cleared
Lepine and worked the entire land mass in the 1930s, a
reasonable finder of fact could readily conclude that Faima had important ties
to Lepine prior to 1980, contrary to Pen's assertions. The trial court's finding of an assignment
is, accordingly, not clear error.
Pen argues that the trial court's decision violates
constitutional separation of powers principles by invalidating a lease of
communal land, which was properly approved by the Governor in accordance with
A.S.C.A. § 37.0221. We doubt that this
argument is of constitutional magnitude, since it is founded on a regulatory
power created by statute, and not on the Constitution itself.
[1-2] The thrust of Pen's argument
is, essentially, that the trial court could [30ASR2d14] not alter land lease
decisions made by the Governor unless fraudulently induced. The mere fact of the Governor's approving
signature does not render a flawed lease impervious to legal challenge any more
than it could transform a bill into law without constitutionally proper
legislative approval. Furthermore,
A.S.C.A. § 4.1040 provides for appellate review of a final administrative
decision in a "contested case."
In such cases, the Appellate Division may reverse or modify an agency
decision if it is contrary to law or based on factual findings which are
"clearly erroneous," or if it is otherwise arbitrary, capricious or
abusive of discretion. A.S.C.A. §
4.1043-44.
[3] Certain administrative functions
are concededly beyond the reach of any judicial review because they are
"committed to agency discretion by law." See
Kenneth C. Davis, Administrative Law of the Seventies § 28.16
(1976). For instance, the determination
of whether an alien should be deported according to existing immigration policy
is a question of policy, committed to the Immigration Board, and not judicially
reviewable on its merits. Farapo v.
[4-5] Pen has not made, nor can we
think of, any serious argument that the Constitution or land lease statutes in
any way commit the resolution of land title disputes to the Governor and the
Land Commission by the force of law, thus insulating the Governor's decisions
from judicial interference. The function
of the Land Commission and the Governor in the approval of leases of communal
land is to provide a check against improvident leases that would be harmful to
the Samoan land tenure system, not to sit in judgment on land title
issues. Vaimoana, 18 A.S.R.2d at 92.
The statute does not devise a system where the Governor effectively has
the right to reallocate property without regard to the preexisting rights of
others in that property, and then to have those decisions immune from judicial
review. The Governor's statutory
authority to approve a lease between private parties presupposes that the
lessee actually has the authority to enter into the lease in the first
place.
[6] The present case was brought in
the Land and Titles Division where the facts were reviewed de novo, not in the
Appellate Division. The administrative
decision did not concern a contested case within the meaning of A.S.C.A. §
4.1040, because Faima was not represented at the Land Commission hearings, and
thus could not contest the lease.
[30ASR2d15]
[7] Clearly, the Land Commission could
not have made a decision regarding competing claims to the property if one of
the claims was never presented. If the
Land Commission and ultimately the Governor had considered the validity of
Faima's claimed assignment when deciding whether to approve Pen's lease, the
Land Commission's decision would have been entitled to proper deference by an
appellate court. In the present matter,
however, the Land Commission never contemplated that collateral issue when
approving the lease, and likewise never rendered an appealable judgment
regarding Faima's claimed assignment.
Appellate courts lack subject matter jurisdiction to consider issues
that were not presented to the agency. First National Bank of
[8-9] As a matter
of due process of law, the Land Commission should hold public hearings on proposed
transfers of land, and give reasonable notice to interested parties. Vaimoana v. Tuitasi,
22 A.S.R.2d 1, 6 (Trial Div. 1992).
Separation of powers principles do not prevent the judicial branch from
voiding a lease approved by the Governor in violation of due process
rights. Conversely, if Faima did have
reasonable notice of the proceedings at the Land Commission but failed to
challenge the lease and thereby preserve his property interest, he should be
estopped from subsequently asserting his interest in the courts to the
detriment of the lessor who has expended resources in reliance on the validity
of the lease. See Mundy v. Arcuri,
267 S.E.2d 454, 457 (
The trial court found that the "lease was
executed and presented for gubernatorial approval, all without Faima's
knowledge or consent." Pen v. Faima, LT No. 61-92, slip op. at 3 (Land & Titles
Div. 1994). The record does not
demonstrate that this factual finding is clearly erroneous. Failure by the trial court to conduct a de
novo review of the facts would, therefore, have deprived Faima of a property
interest without due process of law.
The fundamental issue in this case involves the
extent of matai authority to revoke an assignment of communal land to a family
member. This issue brings the "twin
cornerstones" of the fa`a
The twin cornerstones of the
Samoan way of life are communal land tenure and the matai system. Each is essential to the other. Without the matai system to administer it,
the communal land system becomes anarchy.
Without the communal land system, there is no reason for the matai.
Calliope v. Silao, 2 A.S.R.2d 1, 2 (Land
& Titles Div. 1983). [30ASR2d16]
In the present case, the matai's powers are, at
least superficially, at cross-purposes with the protection of family communal
land, since the circumstances involve an attempt by the matai to revoke an
assignment of land held by a family member in favor of a long-term lease to be
granted to a non-family member. The
present facts bring a fundamental problem into focus, namely, the more power
the matai retains, the more he is empowered to alienate or endanger family
lands; and the more family lands are regulated and protected by law, the more
the authority of the matai over family lands is weakened.
We approach this problem by a resort to the
fundamental principles governing the application of Samoan customary law. The Revised Constitution of American Samoa,
Article I, Section III states, in relevant part:
It shall be the policy of
the government of
This language not only empowers the Legislature to
enact measures protecting the fa`asamoa, but also adopts protection of the
fa`asamoa as a constitutionally mandated policy goal. In this light, we should interpret statutes
in a way that are protective of Samoan custom whenever it is possible to do
so.
In the present case, the matai entered the lease
with Pen without any family discussion, although there was some evidence that
he mentioned his intention to do so at a family meeting. The trial court in this matter took the
position that a matai is required to consult with the entire family when making
the decision to lease communal land to a non-family member, where the lease
would necessarily revoke an assignment of land to a family member. This holding gives rise to three issues: (1)
whether or not the matai must consult with family members prior to entering a
lease; or (2) whether a matai must consult his family before revoking an
assignment of land; and (3) if so, whether the requirement of consultation
merely means notice and an opportunity to comment, or a process whereby the
family agrees to the proposed action.
1. Requirement of Consultation to Enter a Lease
[10] Clearly, traditional Samoan custom
requires a sa`o to consult with his family before dealing dispositively with
communal land. Nevertheless, this court
argued in Vaimoana, 18 A.S.R.2d at 91, that the land lease statutes
effectively rendered this customary requirement unnecessary by failing to
codify it. The Vaimoana court
took note of Article I, Section III of the Revised Constitution, as well as the
statutory directive that the "customs of the Samoan people not in conflict
with the laws of American Samoa . . . shall be preserved," A.S.C.A. §
1.0202, but found the custom to be in conflict with the land lease statutes by
virtue of the fact that it was not mentioned in the statutes.
Appellant errs, though, in
arguing that because custom requires family consultation before the sa`o conveys communal land, courts must implement that
custom. This argument falters because of
the statutory phrase, "not in conflict with the laws of
In this case, the Fono has provided by law for
conveyances without an absolute requirement of family consultation, so the
custom upon which appellants rely is "in conflict." Vaimoana,
18 A.S.R.2d at 91.
We think that the foregoing
conclusion flies in the face of logic.
The language of the statute does not specifically require family
consultation, but neither does it specifically state that such consultation is
no longer necessary. The statute, if
anything, is merely silent on the matter, and hardly "in conflict"
with the custom. The fact that the
statute enacted additional checks and safeguards against the improvident
alienation of land should in no way imply that the traditional checks are
supplanted, particularly in light of statutory language which demands the
preservation of customs which are "not in conflict with the laws of
American Samoa," and constitutional language declaring it the policy of
the government to protect Samoans "against alienation of their lands, and
the destruction of the Samoan way of life."
There is no logical reason
why customary family consultation cannot continue in a system where the
approval of the Governor is also required for the leasing of native land. Although we have other grounds upon which to
base our present decision, if we were forced to revisit this particular portion
of Vaimoana, we would likely have overruled it, or at least limited it
to its facts.
2. Requirement of Family Consultation to Revoke
an Assignment[30ASR2d18]
[11] Regardless of whether a matai is
required to consult his family before he enters a lease, certain circumstances
demand that he do so when revoking an assignment of communal land to a family
member, and that is what the lease effectively does in this case. Although
communal land does not lose its communal character when assigned, see
Tauiliili v. Moega, 3 A.S.R. 356, 357 (Trial Div. 1958), the assignee does
receive certain traditional property rights according to Samoan custom,
including the right to remain on the land for life, absent good cause for
removal. Taesali v. Samuela, 3
A.S.R. 359, 361-62 (Trial Div. 1958); see also Malala v. Temu, 11
A.S.R.2d 137, 142 (Land & Titles Div. 1989). Good cause may include either a failure to
render tautua (traditional service to matai and family), Leapaga v.
Masalosalo, 4 A.S.R. 868, 872 (Appellate Div. 1962), or an overriding
family purpose. Tiumalu
v. Lio, 3 A.S.R. 176, 179-80 (Trial Div. 1955).
[12-13] An
assignment of communal land may only be revoked for an overriding family
purpose if specific conditions are present:
An express or implied
assignment of a communally owned house and appurtenant areas creates in the
family member the right to continue beneficial occupancy until death, voluntary
removal or authorized removal. Removal
may be ordered by the matai only after:
a. A family meeting at which all partied are permitted
to be heard.
b. A decision by the matai, reasonable under the
circumstances, that the removal is for an important family purpose.
c. Provision of specific alternate land
for erection of a dwelling unit if desired, or other arrangement reasonable
under the circumstances.
Coffin
v. Felise,
4 A.S.R. 14, 18 (Land & Titles Div. 1970). Although
Vaimoana, 18 A.S.R.2d at 91, stood for the principle that family
consultation is not required for a matai to lease
communal property to non-family members (a doubtful proposition), family
consultation is clearly required when doing so would mean revoking an
assignment to a family member regarding the land to be leased.
3. The Meaning of Family Consultation
The issue arises as to
whether the required family consultation means that the matai consider the
opinions of all who want to express them and then make his
own decision, or whether it means that the family exercises authority.
[30ASR2d19]
Governing by consensus is
the Samoan way. Consensus is not
democracy by ballot, where one side wins and the other loses. Rather, consensus governance is a system
designed to promote harmony within the family by discussing issues and
gradually melding opinions and wills so that in the end everyone involved is
satisfied, and all objections are resolved, or at least withdrawn. As former Governor Peter Tali Coleman
recently explained:
Our
American legal system—which also operates in
Peter Tali Coleman, Peter
Tali Coleman on the F.B.I. Report,
[14] Samoan society and culture, although governed by hereditary
rulers within families, is not autocratic or dictatorial. We hold, accordingly, that a matai must
arrive at consensus in the traditional Samoan way before revoking an assignment
of communal land based on the family purpose doctrine.
The trial court's judgment is
affirmed. It is so ordered.
********
* Hon. Arthur L. Alarcon,
Senior Judge,
** Hon. John S. Unpingco,