AGATHA TA`IFI LEASIOLAGI SASA, and

FALEMALAMA L. VAESA`U for and on behalf

of the “TAMASA” clan of the LEVU family, Plaintiffs,

 

v.

 

AIFO`I TAGATA LEVU, FA`ALILIU

TAGATA LEVU and SEUI LA`AU, Defendants.

 

High Court of American Samoa

Land and Titles Division

 

LT No. 09-98

 

October 16, 1998

 

 

Before KRUSE, Chief Justice, AFUOLA, Associate Justice, and ATIULAGI, Associate Justice.

 

Counsel:    For Plaintiffs, Katopau T. Ainu`u

                    For Defendants, Malaetasi M. Togafau

 

[1] A.S.C.A. § 41.1309(b) is not unconstitutional in all circumstances, but only when it prevents a family member from seeking an injunction against his sa`o under circumstances where the sa`o jeopardizes that person’s constitutionally protected property rights.

 

[2] Although sa`o is only authorized person under A.S.C.A. § 41.1309(b) to bring an action regarding disputes over communal land, where plaintiffs, not sa`o, brought action, the early posture of the case together with the fact that the sa`o was not adverse to plaintiffs’ claim mandated against dismissal.

 

[3] A certificate of irreconcilable dispute is not a prerequisite to instituting a communal land case where the plaintiff seeks injunctive relief.

 

ORDER DENYING PLAINTIFFS’ MOTION FOR RECONSIDERATION AND DENYING DEFENDANTS’ MOTION TO DISMISS

 

I.  Plaintiffs’ Motion for Reconsideration

 

Plaintiffs bring before this court a motion for reconsideration of an order denying application for temporary restraining order and order to show [2ASR3d226] cause.  For the reasons given below, this motion for reconsideration is denied. 

 

Plaintiffs base their motion for reconsideration on an erroneous interpretation of Fairholt v. Aulava, 1 A.S.R.2d 73 (Lands & Titles Div. 1983).  Plaintiffs assert that the court in Fairholt held A.S.C.A. § 41.1309(b)[1] unconstitutional as violating the due process clause of both the United States Constitution as applied to American Samoa and the due process clause of the American Samoa Revised Constitution.

 

[1] Plaintiffs’ interpretation of Fairholt, however, is too broad.  Fairholt does not provide that A.S.C.A. § 41.1309(b) is unconstitutional in all circumstances.  Rather, A.S.C.A. § 41.1309(b) is unconstitutional only if a family member is prevented court access to enjoin a sa`o from jeopardizing a family member’s constitutionally protected property rights. Otherwise, the sa`o should be given the opportunity to act as the family matai before family members intervene.  As we earlier stated in our order denying plaintiffs’ ex parte application for a temporary restraining order, the legislative design behind A.S.C.A. § 41.1309(b) clearly must be to ensure that the sa`o is not totally displaced by the judicial process.  Plaintiffs’ motion for reconsideration, therefore, is denied.

 

II.  Defendants’ Motion to Dismiss

 

A.  A.S.C.A. § 41.1309(b)

 

[2] Defendant’s motion to dismiss is also denied.  Although A.S.C.A. § 41.1309(b) does provide that the sa`o is the only authorized person under this Act to bring an action regarding disputes or controversies over communal or aiga land, the early posture of this case does not warrant dismissal of this case, regardless of the sa`o’s failure to bring this action initially.  In addition, the complaint alleges that the sa`o is not adverse to plaintiffs’ claim of entitlement.  Joinder of the sa`o, therefore, may be necessary if the sa`o fails to come forth.

 

B.  A.S.C.A. § 43.0302(a)

 

Defendants also argue dismissal of complaint for non-compliance with the mandates of A.S.C.A. § 43.0302(a).  This enactment provides that “[b]efore any action relating to controversies over communal land . . . may be commenced in the land and titles division, each party shall file [2ASR3d227] with his complaint a certificate [of irreconcilable dispute] signed and attested by the Secretary of Samoan Affairs . . .”  Defendants’ reliance on this subsection is misplaced.

 

[3] Plaintiffs’ complaint is one for injunctive relief.  A.S.C.A. § 43.0302(b) provides that the certification requirement of subsection (a) is not a prerequisite requirement to the issuance of a temporary restraining order. Tupua v. Faleafine, 5 A.S.R.2d 131, 133 (Land & Titles Div. 1986).  Additionally, A.S.C.A. § 43.0303(a)(1-3) authorizes either the Chief Justice or Associate Justice to issue interlocutory orders, upon ex parte application, to restrain certain enumerated activity before the commencement of proceedings before the lands and titles division.

 

Therefore, plaintiffs’ motion for reconsideration is denied, and defendants’ motion to dismiss is also denied.

 

It is so Ordered.

 

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[1]  Under certain exceptions, A.S.C.A. § 41.1309(b) requires that the sa`o be the only authorized person under this Act to bring an application for injunction pertaining to communal land within his own family.