[30ASR2d68]
FALEAFAGA PENI,
Plaintiff/Counterdefendant
and
v.
GOVERNOR A. P. LUTALI,
_______________________________
GOVERNOR A. P. LUTALI,
AMERICAN SAMOA GOVERNMENT, AMERICAN SAMOA HOSPITAL AUTHORITY, and UNITED
CONSTRUCTOR, INC., Third Party Plaintiffs
v.
FALEAFAGA FAMILY, ALAMOANA
S. MULITAUAOPELE, and JOHN DOES 1-20,
Third Party Defendants
High Court of
Land and Titles Division
LT No. 8-96
[1]
Registration of matai names was first decreed in 1906 by Regulation No.
8.1906, but the regulation did not contain a prohibition against using an
unregistered matai name. Section 79.8 of
the 1937 Code, which prohibited the use of an unregistered matai name, only
provided criminal sanctions.
[2] While
judicially ordered consequences might be in order in some situations, it would
be inappropriate to vitiate 73 years later a legal document executed by parties
who, in the absence of contrary evidence, apparently acted in good-faith belief
in each other's authority.[30ASR2d69]
[3] Land acquisition
for public purposes was expressly covered in detail under Regulation No.
2-1901. 1937 Code § 72. When transfer agreements were entered into
with land owners, the land was deeded to the governor as the governmental
representative, without any separate notice requirement. 1937 Code § 72.2. If no agreement was reached, a condemnation-type
procedure, including notice requirements, was spelled out for land
acquisitions. 1937 Code §§
72.3-72.17. When an agreement was
reached, no special notice requirements applied.
Before
Counsel: For
Plaintiff/Counterdefendant and Third Party Defendants, Tautai A.F. Fa`alevao
For
Intervenor/Counterdefendant, Tuana`itau F. Tuia
For Defendants/Counterclaimants/Third Party Plaintiffs, Cherie
Opinion and Order:
This action concerns the status of the dispensary
site in the
On May 20, 1996, plaintiff Faleafaga Peni
("Faleafaga"), who is the sa`o, the senior matai or chief, of the
Faleafaga family, brought this action to declare the dispensary site to be his
family's communal land and to permanently enjoin defendant American Samoa
Government ("ASG") and the other defendants from using the dispensary
site without his or successor sa`o's permission. The court issued a temporary restraining
order preventing defendants from proceeding with the imminent ground breaking
ceremony and construction of a new building on the dispensary site until
further order of the court.
The order to show cause for a preliminary injunction
came regularly for hearing on
Since this action relates to a controversy over
claimed communal land, the court also raised the jurisdictional absence of the
certificate of irreconcilable dispute, issued by the Secretary of Samoan
Affairs, under the mandate of A.S.C.A. § 43.0302. At the conclusion of the evidence, all
parties stipulated to waive this requirement.
Because the parties are neither contesting the communal nature nor
competing for ownership of the reversionary interest in the dispensary site,
the court accepts the stipulation and will decide the issues on their
merits.
DISCUSSION
In February 1990, Hurricane Ofa struck
After Hurricane Ofa, ASG resolved to replace the
dispensary facilities. The U.S.
Government earmarked federal grant funds for this project, totaling about
$560,000, partially in 1993 and the balance in 1995. ASG has completed the design work for the new
facilities, enlarged to replace both old dispensary structure and nurses'
living quarters and occupy the entire dispensary site. Defendant United Constructor, Inc. has been,
or is about to be, contracted to construct the new facilities at a price of
about $470,000.
In April 1993, ASG representatives met with
Faleafaga and other Amouli villagers to discuss the dispensary reconstruction
program. Faleafaga then first learned
that the 1923 deed of the dispensary site to ASG was signed by Utu, without
using any given name, and not by his sa`o predecessor, and that ASG held the
view that the dispensary site was now ASG land and was originally owned as communal
land by the Utu family of Amouli.
Faleafaga embarked on a campaign to attain
recognition of the east side of the dispensary site as the Faleafaga family's
communal land. When his discussions with
ASG representatives failed, and since he was physically[30ASR2d71]
incapacitated, he designated third party defendant Alamoana Mulitauaopele
("Alamoana"), a family member, as his attorney in fact to deal with
the matter. Alamoana, on Faleafaga's
behalf, obtained a survey of the Faleafaga part of the site and offered to
register the surveyed area, pursuant to the title registration laws, A.S.C.A.
§§ 37.0101-37.0120. The Territorial
Registrar issued a certificate of registration of the title to this area as the
Faleafaga family's communal land on May 19, 1994. The stage was thus set for this action,
precipitated by ASG's announced construction date.
Unfortunately for Faleafaga, the title registration
of the east side of the dispensary site is invalid. "Only the senior matai of a Samoan
family has the authority to request a survey of communal property of that
family." A.S.C.A. §
37.0102(d). This language is
unconditional and unequivocal; no exceptions.
Faleafine v. Suapilimai, 7 A.S.R.2d 108, 113 (Land & Titles
Div. 1988). The sa`o cannot delegate
this authority. Poumele v. Ma`ae,
2 A.S.R.2d 4, 5 (App. Div. 1984). This
legal result, however, does not settle the issue of communal land ownership in
this action.
Although the sa`o title Utu was vacant during the
period of Faleafaga's efforts, and still is, no member of the Utu family
objected to Alamoana's purported title registration on Faleafaga's behalf, and
no member has intervened in this action to claim the dispensary site as the Utu
family's communal land. A member did
testify that the entire dispensary site is the Utu family's communal land. He essentially based this testimony on the
premise that because Utu is the highest ranking matai in Amouli, and because
both Faleafaga and Paolo, as well as members of several other Amouli families,
are blood-related to the Utu family, most, if not all, lands in Amouli,
including the dispensary site, are the Utu family's communal lands. Faleafaga and Paolo's son disputed this
conclusion and asserted that despite the blood connection, their and the other
Amouli families and their sa`o titles are distinct from the Utu family and own
separate communal lands.1
Decisions of this court support the Faleafaga and Paolo viewpoint. See Faleafaga v. Utu, LT No. 23-84,
slip op. (Land & Titles Div. May 9, 1984), aff'd Utu v. Faleafaga,
AP No. 23-84 (App. Div. April 4, 1985) (remanded to memorialize a survey); Utu
v. Paolo, 23 A.S.R.2d 22 (Land & Titles Div. 1992), aff'd Paolo v.
Utu, AP No. 26-92, slip op. at 1 (April 5, 1994).[30ASR2d72]
Based on the evidence as whole, including but not
limited to the Utu family's inaction in the attempted title registration and
this proceeding and unconvincing testimony by the Utu family member, we find
that the dispensary site encompassed communal lands of the Faleafaga and Paolo
families in 1923 and at all times since then.
In 1923, ASG was administered by the U.S. Navy. Prior to April 2, 1923, ASG and the village
matai agreed upon locating a branch dispensary of the Samoan Hospital in
Amouli. The matai were led by Utu
Suaese, as the highest ranking chief in Amouli.
The matai included Faleafaga Siai and Paolo, perhaps Paolo Leuila,
although his title registration goes back to 1906. The matai selected the dispensary site on and
split between the communal lands of the Faleafaga family, currently named
Mata`ili`ili, and of the Paolo family, now called Amoamoniu. The dispensary building was constructed,
mostly on the Faleafaga family's portion of the site. The nurses' quarters added later was located
on the Paolo family's side. The hedge
delineates the boundary between the two families' properties.
On March 22, 1923, the village matai personally
positioned pins at the corners or points of the dispensary site, and the ASG
surveyor determined the metes and bounds of the legal description. The Faleafaga and Paolo sa`o, or family
members representing them, participated in this exercise. On April 2, 1923, the deed was executed to
transfer title to the site. Utu Suaese,
using only his matai title Utu, as grantor, and Governor Edwin T. Pollock and
his successors in office, as grantees, representing ASG, signed the deed. The deed was recorded with the Registrar of
Titles (now the Territorial Registrar) the same day.
By the deed, Utu Suaese, representing the matai and
families of Amouli, including Faleafaga and Paolo, in consideration of one
($1.00) dollar, conveyed a fee interest in land to ASG to be "used for the
purpose of maintaining thereon a branch dispensary of the Samoan
Hospital." A handwritten page in
the Registrar's file includes the statement "Land to revert on giving up
of dispensary." Clearly, the
parties intended to transfer title to the land to ASG, provided that ASG
operated a dispensary on the site and did not abandon that operation. We also find that Utu Suaese represented the
Faleafaga and Paolo families under the deed provision retaining the use of
cultivated products.
Faleafaga and Paolo questioned certain formalities
in the deed execution in their present effort to void the deed and require ASG
to enter a new [30ASR2d73] agreement with consideration at current market
values for any further use of the dispensary site.
First, they noted the absence of Utu's given name,
but in the era when the deed was executed, matai commonly used only their matai
name when signing legal documents. The
Cession of Tutuila and Aunuu in 1900 and the Cession of the Manu`a Islands in
1904 are prime examples. Next, they
pointed out the lack of any name of the land in the deed, but again this
omission was commonplace during the era involved.
[1-2] They sought to cast doubt on
Utu Suaese's authority because he registered his matai title in 1924, and §
79.8 of the Code of Regulations and Orders for the Government of American Samoa
(1937) ("1937 Code") prohibited the use of an unregistered matai
name. The same complaint could be made
of Faleafaga Siai, who did not register his matai title until 1925. If Paolo Leuila, who registered his matai
title in 1906, was no longer in office in 1923, the next registered Paolo was
Paolo Faaoli in 1943. It is unclear,
however, when the prohibited use of an unregistered matai name was
enacted. Registration of matai names was
first decreed in 1906 by Regulation No. 8.1906, but the Regulation did not
contain the prohibition. In any event,
as important as formal matai registration is to the overall integrity of the
matai system, § 79.8 only provided criminal sanctions. While judicially ordered consequences might
be in order in some other situations, it would be inappropriate to vitiate 73
years later a legal document executed by parties who, in the absence of
contrary evidence, apparently acted in good-faith belief in each other's
authority.
[3] Lastly, noting the survey on
March 22 and deed execution only 11 days later on April 2, Faleafaga and Paolo
alleged failure to comply with notice prerequisites before the deed was
signed. In the first place, while
alienation of communal land was prohibited in 1900 by Regulation No. 4-1906 and
was still severely restricted by amendment to this Regulation in 1921,
conveyances to the U.S. Government or ASG for governmental purposes were
excepted. 1937 Code § 71.2. In 1901, land acquisition for public purposes
was expressly covered in detail under Regulation No. 2-1901. 1937 Code § 72. When transfer agreements were entered into
with land owners, the land was deeded to the Governor as the governmental
representative, without any separate notice requirement. 1937 Code § 72.2. When no agreement was reached, a
condemnation-type procedure, including notice requirements, was spelled out for
land acquisitions. 1937 Code §§
72.3-72.17. Thus, since an agreement was
reached, no special [30ASR2d74] notice requirements applied. Moreover, the participating village matai had
actual knowledge of the transaction.
The evidence does not indicate any legal impediment
to the creation and continuing existence of ASG's title interest. Thus, ASG acquired, and still owns, a valid
fee estate in the dispensary site, subject to termination upon a condition
subsequent. Further, as between the
parties to this action, the Faleafaga and Paolo families own the reversionary
interest in the dispensary site as their communal land, respectively the east
and west side of the hedge within the site, should ASG abandon the dispensary
operation.
Although Paolo did not object to Alamoana's
attempted title registration of the east portion of the site on Faleafaga's
behalf, we observe that the surveyed boundary between the east and west sides
of the site in the Faleafaga registration survey does not coincide with the
hedge. However, the boundary between the
Faleafaga and Paolo portions of the site was not joined as an issue in this
action. Thus, while perhaps persuasive,
our findings related to the hedge do not foreclose later resolution of any differences
that may arise between the Faleafaga and Paolo families about the boundary
between their portions of the site.
Likewise, since the Utu family is not a party to this action by joinder
or intervention, our findings on ownership of the reversion, however
persuasive, do not preclude future litigation on the ownership of the
dispensary site as between the Faleafaga, Paolo, and Utu families.
Finally, as between the parties to this action, the
correct survey of the dispensary site is shown in the Amendment Survey of
Amouli Dispensary, Drawing No. 2273, approved by ASG's Land and Survey Division
on May 13, 1994, which was admitted in evidence as Exhibit No. 24.
ORDER
1. The 1923
deed is valid. ASG owns the fee estate
in the dispensary site in Amouli, subject to termination upon the condition
subsequent of ASG's abandonment of the dispensary operation on the site.
2. The
Faleafaga title registration is invalid, and the Certificate of Registration is
voided. As between Faleafaga and Paolo
on one hand and ASG and the other defendants on the other hand, however, the
Faleafaga [30ASR2d75] and Paolo families own the reversion in the dispensary
site as communal land. The Faleafaga
family owns the east portion and the Paolo family owns the west portion of the
site. For present purposes, the
north-south hedge through the site marks the boundary between the Faleafaga and
Paolo properties. Faleafaga and Paolo
may offer to register the title to their portions.
3. Faleafaga
and Paolo are not entitled to any permanent injunction against ASG and the
other defendants. The application for a
preliminary injunction is denied. The
temporary restraining order is set aside.
4. ASG and
the other defendants may immediately proceed with construction of the new
dispensary facilities on the site.
5. No
monetary damages will be presently awarded.
6. The
parties shall pay their own respective attorney's fees and costs.
7. The
Territorial Registrar shall register the judgment and the Amendment Survey to
Amouli Dispensary, Drawing No. 2273, of May 13, 1994. The Clerk of Courts shall transmit a
certified copy of the judgment and survey to the Territorial Registrar for this
purpose.
Judgment shall enter accordingly.
It is so ordered.
********
1 Faleafaga, Paolo, and the Utu family witness are candidates for the vacant Utu matai title. Presently, Paolo is off-island for medical treatment.