FANENE KAVA, Plaintiff,
v.
TAVITA PEREIRA and PULU TALALOTU,
Defendants.
High Court of
Land and Titles Division
LT No. 16-99
[1] Under A.S.C.A. § 43.1401(j), sufficient grounds
for the issuance of a preliminary injunction require a substantial likelihood
that the applicant will prevail at trial on the merits and that a permanent
injunction will be issued against the opposing party; and that great or
irreparable injury will result to the applicant before a full and final trial
can be fairly held on whether a permanent injunction should issue.
[2] Where the evidence does not lend substance to the
plaintiff’s mere claim of ownership, but there is support for the position of
the defendant, there is not a substantial likelihood that the plaintiff will
prevail at trial.
[3] Where a permanent concrete structure does not
constitute per se an irreversible and
irremediable encumbrance to land, there is no great or irreparable injury to
the plaintiff.
[4] Where halting construction would promote waste by
exposing a partially built structure to the ravages of the elements, the
equities weigh against it.
Before KRUSE, Chief Justice, LOGOAI, Associate Judge,
and ATIULAGI, Associate Judge. [3ASR3d212]
Counsel: For
Plaintiff, Katopau T. Ainu`u
For
Defendants, Afoafouvale L.S. Lutu
ORDER DENYING MOTION FOR PRELIMINARY INJUNCTION
Plaintiff is one of two holders of the matai title Fanene attached to
the
The defendants are building on the approximate
location of the previous church building that had existed there for a number of
years prior. The evidence also shows
that the new church building is partially located on freehold land belonging to
the Catholic Church on the sami
side of the building site, and partially on land, to the northern or mauga side of the building site, that is claimed not
only by plaintiff but also by the Mauga family. The Mauga family
desires that the church be built. While
plaintiff has filed suit to enjoin construction, she has also advised
defendants that she is prepared to withdraw her suit, and hence claims to the mauga side of the construction site, if the Catholic
Church would agree to release to her family that portion the Catholic Church’s
land abutting her family’s land to east.
Not unsurprising, the Catholic Church has shown no interest in the
suggested swap—land in exchange for a mere claim to land.
[1] In these matters, we are guided by A.S.C.A. §
43.1401(j), which sets out the requirement of “sufficient grounds” for the
issuance of a preliminary injunction.
These are:
(1) there is a
substantial likelihood that the applicant will prevail at trial on the merits
and that a permanent injunction will be issued against the opposing party; and
(2) great or
irreparable injury will result to the applicant before a full and final trial
can be fairly held on whether a permanent injunction should issue.
[2] On the first consideration, we find against
plaintiff. There is nothing on the
evidence to lend substance to her mere claim of ownership. On the other hand, her co-titleholder, Fanene Su`a, testified that while
the portion of the Catholic Church’s land which plaintiff is attempting to
secure for herself, did at one time belong to the Fanene
family, the disputed part of the construction site belongs not to the Fanene family, but rather the Mauga
family. Fanene
Sua’s position has some support from the fact that
the inland occupants of the area immediately behind [3ASR3d213] the construction site are conspicuously those of the Mauga family, and not the Fanene
family.
[3-4] On the second consideration,
we find that plaintiff has failed to demonstrate irreparable injury. We are not persuaded by plaintiff’s
contention that a concrete structure of a permanent nature, such as a church
building, constitutes per se an irreversible and irremediable
encumbrance to land. In any case, the
equities weigh against halting construction at this stage only to promote waste
by exposing the partially built structure to the ravages of the elements.
The motion for interlocutory injunctive relief is
denied.
It is so Ordered.
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