AVALOGO
TAYLOR, Claimant,
v.
LEVU
SOLAITA, PALEPA SEUI, TULELE NOMURA, CHARMAINE SILI, TULA FAGAIMA, ALOFA
FAILAUGA, POLAI SALAMAOTUA, GAGAU TIMAIO, LAAU SEUI, JR., SINA PETUAO, TAUALAI
FISAGO, AVEI SULEISI, ANAROSEMARY TAEAO, TAUFUSI F. FAU, and
SEKONE N.
FAILAUGA, Objectors.
High Court of American
Samoa
Land and Titles Division
LT No. 14-98
November 15, 1999
[1]
Under T.C.R.C.P. 56(c), summary judgment is appropriate when, after the court
views the pleadings and supporting papers in the light most favorable to the
non-moving party, there is no genuine issue as to any material fact and the
moving party is entitled to judgment as a matter of law.
[2]
Under T.C.R.C.P. 56(d), if only part of the case is appropriate for summary
adjudication, the court may grant partial summary judgment in an order
specifying the facts that appear without substantial controversy.
[3] Where a prior case previously adjudicated the same
issues between the same families and was resolved in a final judgment as to the
communal nature and ownership of the land, the communal nature and ownership of
the land is res judicata in a
subsequent case.
[4] Under A.S.C.A. § 37.0102(d),
only the sa`o can lawfully request a survey of a family’s communal land,
and the sa`o cannot delegate that authority.
[5] Under A.S.C.A. § 37.0203(c),
instruments affecting the title, ownership or possession of communal land must
be submitted to the Land Commission for its study and recommendation of
approval or disapproval by the Governor.
[6] Under A.S.C.A. § 37.0203(a),
(b), the Land Commission has the duty to endeavor to prevent improvident
alienation of communal lands by the sa`o charged with its management and
control. [3ASR3d219]
[7] Under A.S.C.A. § 37.0204(a),
it is prohibited for any matai of a Samoan family who is, as the sa`o,
in control of the communal family lands or any part thereof, to alienate such
family lands or any part thereof to any person without the written approval of
the Governor of American Samoa.
[8] A transfer of title is not
effective where a survey authorization was not put through the mandated
recommendation and approval steps in the land alienation process.
[9] Where the evidence is
conflicting as to a party’s right to occupy and use the land by virtue of a
customary assignment of a family’s communal land, that fact issue must be
determined by trial.
Before RICHMOND,
Associate Justice, LOGOAI, Associate Judge, and TAUAN`U, Temporary Associate
Judge.
Counsel: For Claimant, Tupa`i Se Apa, pro hac
vice, and Asaua
Fuimaono
For Objectors,
Afoa L. Su`esu`e Lutu
PARTIAL SUMMARY JUDGMENT
This controversy arises out of
objections to the offer of claimant Avalogo Taylor (“Taylor”) to register certain land as his
individually owned land. The court now
has objectors’ motion for summary judgment under advisement for decision.
Procedural Chronology
This action was commenced by the Territorial Registrar’s referral of
the dispute for judicial determination on October 7, 1998. On the following day, the clerk of the court
issued notice of the proceeding to the parties. On November 10, 1998, all 15 objectors filed a
statement of their claim with respect.
On January 19, 1998,
they submitted a copy of the jurisdictional Certificate of Irreconcilable
Dispute issued by the Secretary of Samoan Affairs and moved to set a trial
date. On March 5, 1999, we scheduled the trial on July 8, 1999.
On February
23, 1999, however, objectors applied for a preliminary injunction
to stop Taylor
from further construction of a building on the land. On March 23, 1999, Taylor
submitted his opposition to the applications which also constituted the first
statement of his claim with respect to the land. At the hearing on the application on March 25, 1999, objectors’
counsel and Taylor’s then counsel, Katopau T. Ainu`u (“Ainu’u”), advised the
court that the parties were working on a stipulated preliminary injunction. [3ASR3d220]
On July 8, 1999,
upon both counsel’s request, we continued the trial to July 30, 1999. However, on July 12, 1999, we allowed Ainu’u to
withdraw as counsel, with Taylor’s
consent. Then, on July 23, 1999, objectors moved for
summary judgment that would dismiss the action and require removal of the
building under construction. The hearing
on this motion was scheduled on July
30, 1999 to coincide with the existing trial date.
On July 30, 1999, to afford Taylor opportunity to
retain new counsel, we continued the trial and summary judgment hearing to September 3, 1999. We were
also advised the building under construction was substantially completed. Since the anticipated preliminary injunction
by stipulation was not forthcoming, and Taylor
claimed that he was unaware of this proposal, we enjoined Taylor from further
construction on the land. This preliminary injunction was entered in writing on
August 4, 1999.
Taylor retained his present counsel and, on August 30, 1999, filed his
affidavit and points and authorities opposing summary judgment, along with a
formal answer to objectors’ statement of their claim with respect to the land. We heard the summary judgment motion and
vacated the trial date on September
3, 1999 and have considered the parties’ affidavits and arguments
on the motion, along with the other relevant documents of record.
Facts
The land at issue (“the land”),
named “Alatutu`i,” consists of approximately 6.62 acres located in the Village of Tafuna. The land lies immediately
adjacent to and southwest of the intersection of the public roads identified on
the survey of the land, DWG No. 17-13-97, as the “Airport Road,” which leads to
the Pago Pago International Airport to the south, and the “Fagaima-Fonoti
Road,” which leads to main part of the village to the west.
Taylor requested a survey of the land as his individually
owned land. On September 27, 1997, Sale Taylor, as the pulenu`u of the
Village of Tafuna, and Laina Laina, Jr., as the surveyor, signed the Surveyor
and Pulenu`u Certificate, which confirmed the pulenu`u gave public oral
notice in the Village of Tafuna at a meeting of the chiefs of the village of
the time and place of the intended survey of the land. The survey was completed in October
1997. The surveyor certified by the
Certificate and on the survey that the survey conformed with the statutory and
regulatory requirements for conducting surveys. On October 14, 1997, the Manager of the American
Samoa Government’s Survey Branch made the same certification and approved the
survey for registration. [3ASR3d221]
On October 15, 1997, Fagaima Taylor (“Fagaima’),
as the sa`o (or “head chief”) of the Fagaima family, authorized Taylor, in writing, to
survey and register the land as his individually owned land. This document
states that Fagaima and Taylor are brothers. This transaction was not presented
to the Land Commission for its recommendation of approval or disapproval by the
Governor of American Samoa. The Governor did not approve the transaction.
We also have in evidence a
document, dated November
15, 1986 and recorded with the Territorial Registrar on November 17, 1986,
separating a house, which is or is to be erected, from underlying land in
Tafuna. This separation agreement was signed by “Faga`ima A. Taylor,” as the sa`o
of the Fagaima family, for the benefit of “Tulafono Fagaima Solaita,” as
the building owner, for the purpose of owning the house free and clear of any
claim of the family or its members. At this point, the identity of the parties
to and the exact location of the land affected by this separation agreement are
not clearly established.
On October 21, 1997,
Taylor filed
with the Territorial Registrar his offer to have the land for registered as his
individually owned land. Notice of the proposed registration was posted at the
courthouse and at two public places in the Village of Tafuna from October 23
through December 23, 1997, a total of 61 days, and was published in the Samoa
News, a local newspaper, once each 30 days during this period. The clerk of
this court, the pulenu`u of Tafuna, and the business manager of the
newspaper, respectively, attested to the postings and publishing.
All 15 objectors named above
timely filed objections to the registration within the notice period. On December 24, 1997, the
Territorial Registrar submitted the proposed registration to the Secretary of
Samoan Affairs for dispute resolution proceedings. The Secretary held two
hearings of the parties and unsuccessfully attempted to resolve the
controversy. The Secretary issued the Certificate of Irreconcilable Dispute on May 14, 1998, and the
Registrar referred the controversy to this court for judicial determination on October 7, 1998.
Objectors’ application of February 23, 1999 for a
preliminary injunction to enjoin Taylor
from further construction on the land is supported by an affidavit signed by
objector Tulafono Fagaima Solaita (“Solaita”).
Solaita alleges in the affidavit that Taylor is constructing a building on the
land, that the land is the Fagaima family’s communal land and was assigned to
other family members, and that a court order is necessary to prevent further
construction and forestall physical confrontation between the parties.
Solaita’s affidavit also supports objectors’ motion for summary
judgment of July 23, 1999. He states in this affidavit that he is a
blood [3ASR3d222] member of the
Fagaima family, that the land is the Fagaima family’s communal land and was so
adjudicated by this court in 1970, and that Taylor failed to follow the requisite
statutory procedures for land alienation. With respect to this affidavit, we
take judicial notice of Taylor v. Fagaima Family, 4 A.S.R. 19 (Land
& Titles Div. 1970) and the file of that action, LT No. 1150-1970. The land adjudicated as the Fagaima family’s
communal land in that action encompasses the land in this action.
Taylor’s affidavit opposing the
summary judgment motion states that he is a member of the Fagaima family, that
his claim to the land as his individually owned land and construction of the
building on the land was authorized by the sa`o, that he and his
immediate family have continuously lived on the land since they cleared the
land in 1946, that he is unaware of any assignments of the land to others by
the sa`o, that his immediate family has occupied the land exclusive of
any of the objectors, and that he has not attempted to alienate any of the
Fagaima family’s communal land. Taylor admits that in 1970
this court determined that the land was the Fagaima family’s communal land.
Discussion
[1] Summary judgment is
appropriate when there is ‘no genuine issue as to any material fact” and “the
moving party is entitled to judgment as a matter of law.’ T.C.R.C.P.
56(c). The court must view the pleadings
and supporting papers in the light most favorable to the non-moving party. Amerika
Samoa Bank v. United Parcel Service, 25 A.S.R.2d 159, 161 (Trial Div.
1994); Ah Mai v.
American Samoa Gov’t, 11 A.S.R.2d 133, 136 (Trial Div. 1989).
[2] If only part of the case is appropriate for summary adjudication, the
court may grant partial summary judgment in an order specifying the facts that
appear without substantial controversy. T.C.R.C.P. 56(d); Deimer v.
Cincinnati Sub-Zero Products, 990 F.2d 342, 345 (7th Cir. 1993) (granting
partial summary judgment on facts not in issue). The term partial summary
judgment is somewhat of a misnomer, since it is not really a final judgment but
only an interlocutory order determining certain facts. See In re Air Crash
Disaster Near Warsaw, Poland, 979 F. Supp. 164, 167
(E.D.N.Y. 1997). However, the term is
widely used. In a partial summary
judgment, certain facts are deemed established, and trial then proceeds without
further adjudication of these facts. T.C.R.C.P. 56(d).
The objectors are entitled to a partial summary
judgment on the land registration issue. Taylor’s
offer to register the land at issue as his individually owned land must be
rejected. First, and foremeost, Taylor
admits that the land is the Fagaima family’s communal land. [3ASR3d223]
[3] In addition to his present admission, Taylor
acknowledges that this court adjudicated the same land to be the Fagaima
family’s communal land in Taylor v. Fagaima Family, 4 A.S.R. 19 (Land
& Titles Div. 1970). In that case, another member of the Taylor family offered to
register the land as his individually owned land. The Fagaima sa`o then
in office and the claimant’s brother, for himself and his other siblings,
objected to the registration. Taylor also
recognizes that the immediate Taylor
family, himself included, are members of the Fagaima family. Thus, involving
the same land ownership issue and essential privity of parties, the holding of Taylor
v. Fagaima in 1970 that the land then at issue is the Fagaima family’s
communal land is clearly res judicata as to the communal nature and
ownership of the land in this action. Taulaga M.
v. Patea S., 4 A.S.R.2d 186 (Land & Titles Div. 1987) (land title
action barred by res judicata when ownership of same tract was
previously adjudicated between same families over same issues and was resolved
in a final judgment)
[4] Taylor’s present effort to register the
Fagaima family’s communal land as individually owned land is fatally deficient
in two particulars. First, Taylor
requested the survey of the land at issue.
However, only the sa`o can lawfully request a survey of a
family’s communal land; the sa`o cannot delegate that authority. Galea`i v.
Ma`ae, 2 A.S.R.2d 4 (App. Div. 1983) (applying the unequivocal wording
of A.S.C.A. § 37.0102(d)).
[5-8] Second, Fagaima and
Taylor failed to comply with the land alienation laws. “[I]nstruments affecting
the title, ownership or possession of [communal] land” must be submitted to the
Land Commission for its study and recommendation of approval or disapproval by
the Governor. A.S.C.A. § 37.0203(a), (b). The Land Commission has the duty “to
endeavor to prevent improvident alienation of communal lands by the [sa`o] charged with the
management and control thereof.” A.S.C.A. § 37.0203(c). “It is prohibited for
any matai of a Samoan family who is, as [the sa`o], in control of the communal family lands or any part thereof,
to alienate such family lands or any part thereof to any person without the
written approval of the Governor of American Samoa.” A.S.C.A. §
37.0204(a). Fagaima’s authorization was
simply not put through the mandated recommendation and approval steps in the
land alienation process in order to effectively transfer title to the Fagaima
family’s communal land at issue as Taylor’s
individually owned land. [3ASR3d224]
Accordingly, we will grant
partial summary judgment in the objectors’ favor against Taylor
by holding that the land at issue is the Fagaima family’s communal land and
prohibiting the present attempt to register this land as Taylor’s individually owned land.
[9] However, the evidence is
conflicting on Taylor’s right to occupy and use
the land by virtue of a customary assignment of the Fagaima family’s communal
land by Fagaima to Taylor.
The affidavits of Solaita and Taylor put this ultimate fact at issue. Moreover, the court in Taylor v. Fagaima
Family found that in accordance with Samoan custom, the claimant in that
action and his family are entitled to occupy and use the land now at issue, so
long as the claimant, and presumably his family members, served the Fagaima sa`o. This fact issue of a customary communal land
assignment must still be determined by trial. Thus, at this time the building
under construction shall remain on the land, but the preliminary injunction
preventing Taylor
from further construction on the land shall remain in effect.
Order
1. The court declares that the land at issue is the
Fagaima family’s communal land and prohibits present registration of the land
as Taylor’s
individually owned land. The objectors are granted partial summary judgment to
this extent against Taylor.
2. The ultimate fact issue of Taylor’s right to occupy and use the land
under of a customary assignment of communal land shall still be determined by
trial. This trial is scheduled on January 28, 2000. The preliminary injunction preventing Taylor from further
construction on the land remains in effect as previously ordered.
3. The clerk of the court shall have a copy of
this order and the partial summary judgment served on the Territorial
Registrar.
It is so
Ordered.
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