Title 43
CIVIL
REMEDIES AND PROCEDURE
Chapters:
03 Procedure in
Lands and Titles Division
04 Procedure in
District and other Courts
06 Pleadings
and Parties (Reserved)
07 Trial and
Judgment (Reserved)
09 Attachment
10 Condemnation
13 Injunctions
14 Summary
Proceedings to Recover Possession of Leased Realty and Certain Ancillary Relief
16 (Reserved)
17 Enforcement
of Foreign Judgments
18 Garnishment
19 Uniform
Foreign Money Judgments Recognition Act
20-49 (Reserved)
50 Remedies
51 Negligence
52
Defamation
Chapter 01
GENERAL
PROVISIONS
Sections:
43.0101 Clerk
to fix High Court costs and fees.
43.0102 Fees
and costs of registrars of vital statistics and titles.
43.0103 Failure
to pay fees or costs.
43.0110 Authority
to administer oath.
43.0115 Transfer
of cases-Venue.
43.0120 Limitation periods.
43.0121 Cause
of action for fraud, mistake or trespass.
43.0122 Cause
of action on open account.
43.0123 Limitation
on executions.
43.0124 Death of party to be
charged.
43.0125 Death of party having
cause of action.
43.0126 Commencement of action by
minors and insane persons.
43.0127 Period of nonresidence
not included in limitation period.
43.0128 Revival of cause of
action in contract.
43.0129 Use of barred
counterclaim as defense.
43.0130 Effect of injunction.
43.0101 Clerk to fix High
Court costs and fees.
(a) The clerk of the High Court
of American Samoa shall, with the approval of the Chief Justice, fix all fees
for services, filing fees and other court costs assessed by the judicial branch
in connection with services rendered and not otherwise provided for in this
code; provided, however, that such fees shall be set in an amount which is
reasonable, fair and just compensation for the service rendered, at least in
part defrays the costs of such service, and does not exceed the actual costs of
providing the service.
(b) The cost of a transcript of proceedings of any court hearing or trial shall be
fixed at no more than the rate charged for transcripts in the
(c) The per day cost of any High Court hearing or
trial shall not exceed $25 for a trial day of ordinary and usual length; an
additional amount may be assessed for any time in excess thereof.
History: 1962, PL 7-36; 1966, PL 9-46
43.0102 Fees and costs of
Registrars of Vital Statistics and Titles.
The
Registrar of Vital Statistics and the Territorial Registrar shall fix all
filing fees and costs, with the approval of the Governor, for services rendered
the public through their respective offices; provided, however, that such fees
shall be set in an amount which is reasonable, fair and just compensation for
the service so rendered, at least in part defrays the costs of such service,
and does not exceed the actual costs of providing the service.
History: 1962, PL 7-36. 1966,
PL 9-46.
43.0103 Failure
to pay fees or costs.
(a) Failure to pay court costs due the government
pursuant to a decree, judgment, or court order shall constitute a contempt for
which the body of the person in default may in the court’s discretion be
attached.
(b) No such attachment shall be ordered unless
payment is more than 30 days overdue.
(c) Before ordering actual attachment of the body,
the court may allow the delinquent such time as it may see fit within which to
make payment.
(d) A person whose body has been
attached, may be permitted to work out such costs by such labor as the Attorney
General may assign him. The Attorney General shall make a return to the clerk
of the High Court showing the number of days of labor performed, and the clerk
of the High Court shall credit on the delinquent court costs $1 for each day of
labor performed.
(e) The period of attachment for contempt under
this section shall not exceed in days the number of dollars of delinquent court
costs.
(f) During such period as labor may be performed
pursuant to this section, the attached person shall be released from
confinement.
(g) Payment by a person whose body has been
attached shall entitle the person to release.
History: 1962, PL 7-36.
43.0110 Authority to
administer oath.
(a) The Governor, Secretary of American Samoa,
Attorney General, Chief Justice, Associate Justice, clerk of the High Court
and such other persons as shall be appointed by the Secretary of American Samoa
shall have authority to administer all oaths and take acknowledgments for any
purpose, and shall have, ex officio, the powers of a notary public. In
addition, the following officials shall have authority to administer oaths and
take acknowledgments to be used within the limits of
(1) The associate judges of the High Court shall
have authority to administer oaths and take acknowledgments in all cases within
the jurisdiction of the High Court;
(2) The associate judges of the High Court and the
clerks of the district courts shall have authority to administer oaths and take
acknowledgments in all cases within the jurisdiction of the district courts;
(3) Members of the Legislature shall have the authority
to administer oaths in accordance with the provisions of 2.1001.
(b) “Oath” as used in this section includes an
affirmation and every other mode authorized by law of attesting to the truth of
that which is stated.
43.0115 Transfer
of cases-Venue.
Any
case brought in the High Court or in a district court may, in the interest of
justice and for the convenience of the parties and witnesses, be transferred by
order of the Chief Justice or of the Associate Justice to any court in which it might have been brought originally.
History: 1962, PL 7-36; 1966, PL 9-40.
Case Notes:
High Court is not empowered by this section to
transfer a case to a
43.0120 Limitation periods.
Actions may be brought within
the following times after their causes accrue, and not afterward, except where
otherwise especially declared:
(1) actions brought to set aside a will, within 6 months from the time
the will is filed in the clerk’s office for probate and notice thereof is
given;
(2) actions founded on injuries to the person or
reputation, including injuries to relative rights, whether based on contract or
tort, or for a statutory penalty, within 2 years;
(3) actions founded on unwritten contracts, or
brought for injuries to property, within 3 years;
(4) actions to set
aside a judgment or decree quieting title to real estate, within 5 years after
the rendition of the judgment or decree;
(5) actions founded on written
contracts, or a judgment of a court of record, within 10 years;
(6) actions brought for the recovery of real
property, within 20 years;
(7) all actions for which no limitation period is
provided, 3 years.
History: 1962, PL 7-36.
Case Notes:
Action based on
release of groceries to consignee without obtaining payment is not action based
on injuries to person or reputation. Micronesian-Hawaiian Trading
Neither paragraph (2) or (7) is applicable to a
wrongful death action; Subsection (d) of 43.5001 applies. Tauanuu v. Hartford Fire Ins. Co., ASR
(1976).
Actions for recovery of real property must be
brought within 20 years after cause of action accrues. RCAS 3.1101. Fau v. Wilson, 4 ASR 443 (1964).
Action to recover littoral rights taken by the government ninety years ago is barred by the doctrine of laches and by a statute which bars causes of action to recover real property if not brought within twenty years after they accrue. A.S.C.A. § 43.0120(6). Vaivao v. Craddick, 14 A.S.R.2d 108 (1990).
Persons who
have been injured by private persons have two years after the cause of action
accrues in which to file suit. A.S.C.A.
§ 43.0120(2). Randall v.
Where the
parties could be ascertained from the face of a note and security agreement
executed by appellants in which terms, provisions, and conditions were fully
set forth in writing, and the lender did not sign the agreement, but accepted
or adopted it and relied on its validity as a promissory note, such note and
security agreement was a written contract subject to a ten-year statute of
limitations. A.S.C.A. § 43.0120. Pene v. Bank of
The statutes
of limitations for filing suit are two years for actions on personal injury,
three years for actions on unwritten contracts, ten years for actions on
written contracts, and twenty years for actions to recover real property. A.S.C.A. § 43.0120.
Limitation of actions and adverse possession, while facts giving rise to them are usually intertwined, are separate laws and may sometimes depend on different facts. A.S.C.A. §§ 37.0120, 43.0120(6). Roberts v. Sesepasara, 8 A.S.R.2d 43 (1988).
Purchaser's possession of land as lessee prior to her purchase might count toward thirty year period for adverse possession, but did not prevent the purchase from giving rise to a new cause of action for the purpose of twenty year statute of limitations. A.S.C.A. §§ 37.0120, 43.0120(6). Roberts v. Sesepasara, 8 A.S.R.2d 43 (1988).
If claimant of land was unaware of the identity of occupants of the land at the time suit was filed, naming the occupants as "Doe defendants" was sufficient to toll the statute of limitations. A.S.C.A. § 43.0120(6). Roberts v. Sesepasara, 8 A.S.R.2d 43 (1988).
A two-year statute of limitations applies to actions founded on personal injuries. A.S.C.A. § 43.0120(2). Afatasi v. Ho Ching, 17 A.S.R.2d 173 (1990).
Actions founded on personal injuries, whether based on contract or tort, must be brought within two years. A.S.C.A. § 43.0120(2). Patau v. Rosendahl Corp., 19 A.S.R.2d 80 (1992).
If a case has not been brought within the time limits of A.S.C.A. § 43.0120, summary judgment may be properly entered against plaintiff(s). Patau v. Rosendahl, 20 A.S.R.2d 77 (1992).
Persons who
have been injured by private persons have two years after the cause of action
accrues in which to file suit. A.S.C.A.
§ 43.0120(2). Randall v.
43.0121 Cause of action for
fraud, mistake or trespass.
In
actions for relief on the ground of fraud or mistake, and those for trespass to
property, the cause of action shall not be deemed to have accrued until the
fraud, mistake or trespass complained of shall have been discovered by the
party aggrieved.
History: 1962, PL 7-36.
43.0122 Cause of action on
open account.
When
there is a continuous, open, concurrent account, the cause of action shall be
deemed to have accrued on the date of the last item therein, as proved at
trial.
History: 1962, PL 7-36.
43.0123 Limitation on executions.
An
execution may issue at any time before judgment is barred by the statute of
limitations.
History: 1962, PL 7-36.
43.0124 Death of party to be
charged.
In all
cases where, due to death of the party to be charged, the bringing of an action
against his estate has been delayed beyond the period provided for by statute,
the time within which action may be brought against his estate shall be
extended for 6 months from the date of the death of the decedent.
History: 1962, PL 7-36.
Case Notes:
Specific
provisions which toll a statute of limitations are provided by statute. A.S.C.A §§ 43.0124-43.0127. Patau v. Rosendahl Corp., 19 A.S.R.2d 80
(1992).
43.0125 Death of party having cause of action.
If a
person having a cause of action dies within 1 year next previous to the
expiration of a limitation, such limitation does not apply until 1 year after
such death.
History: 1962, PL 7-36.
Case Notes:
Specific
provisions which toll a statute of limitations are provided by statute. A.S.C.A §§ 43.0124-43.0127. Patau v. Rosendahl Corp., 19 A.S.R.2d 80
(1992).
43.0126 Commencement of
action by minors and insane persons.
Minors
and insane persons shall have 1 year from after the termination of such
disability within which to commence any action regardless of any otherwise
applicable limitation period.
History: 1962, PL 7-36.
Case Notes:
Where statute
provides that minor has one year after termination of minority to commence any
action regardless of any otherwise applicable limitation period, an action
brought within this one year period is not barred by two year statute of
limitations on tort actions against the government. A.S.C.A. §§ 43.0126, 43.1204. Lutu v.
Under statute providing that minors shall have one year after the termination of their disability to commence any action, a claim by a minor against the government is not barred so long as action is begun within one year after attainment of majority or appointment of a guardian ad litem, notwithstanding the two-year statute of limitations otherwise applicable to actions against the government. A.S.C.A. §§ 43.0126, 43.1204. Utu v. National Pacific Insurance Co., 9 A.S.R.2d 88 (1988).
"Minors and insane persons" have one year from the termination of such disability within which to commence an action, regardless of any otherwise-applicable statute of limitations. A.S.C.A. § 43.0126. Afatasi v. Ho Ching, 17 A.S.R.2d 173 (1990).
Specific provisions which toll a statute of limitations are provided by statute. A.S.C.A §§ 43.0124-43.0127. Patau v. Rosendahl Corp., 19 A.S.R.2d 80 (1992).
43.0127 Period of nonresidence
not included in limitation period.
The
time during which a defendant is a nonresident of American Samoa shall not be
included in the computation of any period of limitation.
History: 1962, PL 7-36.
Case Notes:
Specific provisions which toll a statute of limitations are provided by statute. A.S.C.A §§ 43.0124-43.0127. Patau v. Rosendahl Corp., 19 A.S.R.2d 80 (1992).
43.0128 Revival of cause of
action in contract.
Causes of action founded on contract are revived
by an admission in writing, signed by the party to be charged, that the debt is
unpaid, or by a like new promise to pay the same.
43.0129 Use
of barred counterclaim as defense.
A
counterclaim may be pleaded as a defense to any cause of action, notwithstanding
it is barred by a statute of limitation, if it was the property of the party
pleading it at the time it became barred, and was not barred at the time the
claim sued on originated; but no judgment thereon, except for costs, can be
rendered in favor of the party so pleading it.
History: 1962, PL 7-36.
43.0130 Effect of
injunction.
When
the commencement of an action is stayed by injunction or statutory prohibition,
the time of the continuance of such injunction or prohibition shall not be part
of the time limited for the commencement of the action except as otherwise
provided by law.
History: 1962, PL 7-36.
Chapter 02
PROCEDURE
IN HIGH COURT
Sections:
43.0201 Civil procedure-Deficiencies
in pleading.
43.0202 Adjournment to sit
elsewhere.
43.0201 Civil
procedure-Deficiencies in pleading.
(a) In the High Court, the civil practice shall
conform, as closely as practicable, to the practice provided for in the Federal
Rules of Civil Procedure, Title 28, U.S.C.
(b) No objection may be made to formal deficiencies
in pleading.
History: 1962, PL 7-36, 1969,
PL 11-54.
Case
Notes:
Federal Rules of Civil Procedure referenced
herein include supplemental rules for certain admiralty and maritime claims.
Star-Kist Samoa, Inc., v. Poong No.5, ASR (1979).
Insofar as the “Federal Rules of Civil Procedure,
supplemental Rules for Certain Admiralty and Maritime Claims” concern actions
in rem, they are inapplicable in proceedings in the courts of American Samoa,
for such courts do not have in rem admiralty or maritime jurisdiction Vessel
Fijian Swift v. Trial Division, 4 ASR 983 (1975).
A petition for
review of an Immigration Board's decision need not be dismissed or be refiled to
correct the names of the appellees in the caption when the petition incorrectly
included the American Samoa Government, the Attorney General, and the Chief
Immigration Officer as appellees.
A.S.C.A. §§ 41.0209, 43.0201(b); H.C.R. 3. Farapo v.
The High Court
looks to the Federal Rules of Civil Procedure for guidance and must conform to
them as closely as practicable. A.S.C.A.
§ 43.0201(a). Crispin v.
43.0202 Adjournment
to sit elsewhere.
In any
case where the interest of justice or the convenience of parties, witnesses or
the court requires, the Chief Justice or the Associate Justice may order that
a session of any division of the High Court adjourn from the courthouse to sit
at any appropriate place in
History: 1969, PL 11-54.
Chapter 03
PROCEDURE
IN LANDS AND TITLES DIVISION
Sections:
43.0301 Presence of judges and assessors required for exercise of
jurisdiction.
43.0302 Certificate of irreconcilable dispute.
43.0303 Orders prior to proceedings-Effect-Modification.
43.0304 Interlocutory orders.
43.0305 Status
of orders.
43.0301 Presence of judges
and assessors required for exercise of jurisdiction.
Except
as otherwise specifically provided by law, the Land and Titles Division shall
not exercise any jurisdiction conferred upon it unless there is present the
presiding judge, 2 associate judges and 2 assessors. Where, by reason of the
absence of the minimum number of persons referred to above, it is necessary to adjourn the sitting of
the Land and Titles Division or the hearing of any case, the presiding judge,
or in his absence, the clerk of the High Court may adjourn or further adjourn
such sitting or the hearing of such case to such future day as the presiding
judge or the clerk shall think fit.
History: 1969, PL
11-54.
43.0302 Certificate
of irreconcilable dispute.
(a) Before any action relating to controversies
over communal land or matai titles may be commenced in the Land and Titles
Division, each party shall file with his complaint a certificate signed and
attested by the Secretary of Samoan Affairs or his deputy, in which the
Secretary or his deputy affirms and states:
(1) that on at least 2 occasions, the parties have
appeared personally before him and 2 persons designated by him, without an
attorney or counsel, and that an attempt was made to resolve the controversy;
(2) that all parties to the controversy received
at least 20 days notice for each of the 2 required appearances;
(3) the date and hour of the beginning and
conclusion of each appearance;
(4) the findings and conclusions of the Secretary
or his deputy and the 2 designees with respect to the controversy heard before
them, including a statement of the reason why the controversy could not be
resolved.
(b) The certification mentioned in subsection (a)
may not be required prior to the issuance of a temporary restraining order
issued by the Chief Justice or an Associate Justice to prevent the occurring of
irreparable damage.
History: 1972, PL 12-59 § l;
and 1973, PL 13-39.
Amendments: 1973 Designated
original section subsection (a) and added subsection (b).
Case Notes:
No certificate of irreconcilable dispute filed;
letter, while deficient in form, constitutes sufficient substance. Maria v.
Tuli, ASR (1978).
Claim lodged in Territorial Registrar’s Office at
time of trial could not be heard by court; no certificate of irreconcilable conflict.
Fanene v. Talio, ASR (1977).
To permit a temporary restraining order to be
effective for an extended period without benefit of a hearing deprives a person
of his liberty and property without due process of law. Such order is not
effective soon after it is issued if there is no hearing on issue of
irreparable damage occurring if the order is not issued. Faalafu v. Sala, ASR
(1977).
The requirement that controversies be presented
to the office of Samoan Affairs prior to the filing of a claim for relief with
the High Court, is procedural and not jurisdictional. Tavai P. Kaleopa v.
Nia-Marie & Company, Inc., ASR (1980).
When petitioner in land dispute has failed to seek relief from the Department of Samoan Affairs as required by statute prior to seeking judicial remedy, but respondent has answered and appeared before High Court, court would observe considerations of equity and convenience by staying the action pending compliance with the administrative relief requirements rather than dismissing the action altogether. A.S.C.A. §§ 3.0242, 43.0302(a). Moeisogi v. Faleafine, 5 A.S.R.2d 131 (1987).
Statutory requirement that parties submit a land dispute to the Office of Samoan Affairs before applying to the court for relief applies only to communal lands, and therefore did not deprive the court of jurisdiction over a dispute concerning individually owned lands. A.S.C.A. § 43.0302. Sese v. Leota, 9 A.S.R.2d 136 (1988).
Jurisdictional requirement that plaintiff must "file with his complaint a certificate" from office of territorial official, certifying that the parties have met twice and that the meetings did not result in a resolution of the dispute, was met where such a certificate was filed, notwithstanding evidence that an earlier letter by the same official tended to negative the existence of an irreconcilable dispute. A.S.C.A. § 43.0302. Leota v. Sese, 12 A.S.R.2d 18 (1988).
Letter from territorial official charged with mediating land disputes, stating the outline of a proposal by one of the parties but not even hinting that the other parties had ever agreed to the proposal, did not negate the existence of an irreconcilable dispute among the parties. A.S.C.A. § 43.0302. Leota v. Sese, 12 A.S.R.2d 18 (1988).
Statute requiring attempted resolution of "controversies over matai titles" before Secretary of Samoan Affairs before judicial action may be commenced applies not only to cases of matai appointment but also to petitions for matai removal. A.S.C.A. § 43.0302(a). Members of the Taufi Family v. Taufi (Mem.), 12 A.S.R.2d 6 (1989).
Where certificate of irreconcilable dispute from Secretary of Samoan Affairs was issued upon misinformation given by a party to the dispute, proceedings in Land & Titles Division would be stayed pending certification by the Secretary of compliance with statutory procedures for attempted resolution. A.S.C.A § 43.0302. In re Matai Title Mulitauaopele (Mem.), 12 A.S.R.2d 8 (1989).
A party's contention that a piece of land is communal brings into play the requirements of A.S.C.A. § 43.0302. Ava v. Logoa'i, 20 A.S.R.2d 51 (1992).
43.0303 Orders prior to
proceedings-Effect-Modification.
(a) If the Chief Justice or Associate Justice is
satisfied that a dispute which is within the jurisdiction of the Land and
Titles Division has arisen between Samoans and is likely to be the subject
matter of proceedings under this chapter, he may, at any time before the
commencement of proceedings, make such order as to him may seem just to
restrain any Samoans from:
(1) remaining in possession of or entering upon
any Samoan land;
(2) holding or using any Samoan name or title;
(3) exercising any right or doing any act, matter
or thing concerning or affecting any Samoan land or any Samoan name or title.
(b) Any order under subsection (a) may be made ex
parte or otherwise and shall remain in full force and effect until the final
judgment of the Land and Titles Division. The presiding judge may, at any time
after the commencement of proceedings and upon the application of any party
affected by such order, modify, vary or rescind the same.
History: 1969, PL 11-54; 1970, PL 11-119.
Case
Notes:
Temporary restraining order enjoining defendants from clearing, etc., is
proper under subsection (a). Tuilefano v. Beaver. ASR (1978).
Holding on Sofa’i in disregard of court order
restraining defendant from participation in Sofa’i constitutes civil contempt.
So’oso’oali’i Muasau Sotoa v. Leifitele
Court may enjoin person wrongfully holding
himself out as holder of matai title. Togiola v. Tafesilafa’i, 4 ASR2d 54
(1987).
Court may enjoin a person from holding himself out as the holder of a matai title that has been lawfully registered in the name of another person. A.S.C.A. § 43.0303. Togiola v. Tafesilafa'i, 4 A.S.R.2d 54 (1987).
In apparent recognition of the unusual nature of interests often being asserted in Samoan land disputes, the territorial legislature has provided that in such disputes a justice may make such preliminary orders as to him seem just to restrain any Samoan from exercising any right or doing any act, matter, or thing affecting or concerning any Samoan land pending the outcome of the litigation, without requiring that any specific irreparable harm be shown. A.S.C.A. § 43.0303. Leaana v. Laban (Mem.), 12 A.S.R.2d 93 (1989).
43.0304 Interlocutory
orders.
In any
proceeding, a justice may, pending final determination of the matter by the
Land and Titles Division, make such interim orders as he thinks appropriate.
The associate judges sitting in matai title disputes shall refer all requests
for ex parte or interim orders to the Chief Justice or Associate Justice for
appropriate action, unless the associate judges are in unanimous agreement
thereon from entry of judgment and a trial de novo shall be held thereon.
History: 1969, PL 11-54. 1970, PL 11-119.
Case Notes:
Pursuant to power to make "such order as to him may seem just" in any land case, Chief Justice or Associate Justice of High Court need not stop at denying plaintiff's meritless claim for relief, but may issue preliminary injunction restraining plaintiff from interference with rights of defendant as delineated in earlier judgment. A.S.C.A. § 43.0304. Sialega v. Taito , 5 A.S.R.2d 99 (1987).
43.0305 Status of orders.
Any order made under 43.0303
or 43.0304 shall be deemed to be an order of the Land and Titles Division and
shall be enforceable accordingly.
History: 1969, PL 11-54.
Chapter 04
PROCEDURE
IN DISTRICT AND OTHER COURTS
Sections:
43.0420 Rules.
43.0421 Appeals.
43.0420 Rules.
The small claims department
sessions shall be held pursuant to rules promulgated by the Chief Justice.
History: 1967, PL 10-17, 1968, PL 10-62; 1969, PL 11-54;
1970, PL 11-116; 1970, PL 11-119.
43.0421 Appeals.
(a) An appeal may be taken to the Trial Division
by either party adversely affected by a decision.
(b) Any appeal shall be filed in writing with the
clerk of the High Court within 5 days from entry of judgment and a trial de
novo shall be held thereon.
Sections:
43.0501 By publication-Permitted when.
43.0502 How
served-Notice.
43.0503 Proof of service.
43.0504 By means other than publication.
43 .0501 By
publication-Permitted when.
When
an affidavit is filed that personal service cannot be made upon the defendant
within
(1) actions involving real property in
(A) the sale, recovery or partition of real
property;
(B) specific performance of a contract of sale
covering real property;
(C) foreclosure under any mortgage, lien or other
encumbrance or charge upon real property; or
(D) quieting of title to real property;
(2) an action brought against a nonresident of
(3) all action where the defendant, being a
resident of American Samoa, has departed therefrom with intent to delay or
defraud his creditors, or to avoid the service of a notice, or keeps himself
concealed in American Samoa with like intent;
(4) where
the action is for a divorce or annulment, or for a change or modification of a
decree of divorce or annulment, if the defendant is a nonresident of
History: 1962, PL 7-36.
Case Notes:
When personal
service cannot be made upon a respondent in a divorce action within
When a
petitioner files an affidavit that personal service cannot be made upon a
respondent in a divorce action within
43.0502 How served-Notice.
(a) After the complaint or petition has been filed
with the court in which the matter is pending, notice shall be published once
each month for 2 consecutive months in some newspaper or publication of general
circulation, posted in the front of the court house in the village of Fagatogo,
for the same period, and mailed by registered United States mail to the
defendant at his last known address. If at any time there is no newspaper or
other publication of general circulation in
(b) The notice shall contain and inform the
defendant of the following:
(1) the name of the plaintiff:
(2) the name of the court wherein the action is
brought and that the petition is on file in the court:
(3) a statement in general terms of the cause or
causes of action, and, if it is for money, the amount, and that unless the
defendant appears and defends within 2 months and 10 days from the date of the first publication, which date shall be
published as a part of the notice, a default will be entered against him and
judgment or decree rendered thereon.
History: 1962, PL 7-36.
Case
Notes:
Notice by publication must be calculated to
afford due process and may require publication in multiple languages and in
newspapers in jurisdiction outside
When personal
service cannot be made upon a respondent in a divorce action within
When a
petitioner files an affidavit that personal service cannot be made upon a
respondent in a divorce action within
Requirements of statute providing for notice by publication to defendant in legal proceeding must be complied with before action against defendant can proceed to trial. A.S.C.A. § 43.0502. In re A Minor Child, 7 A.S.R.2d 24 (1988).
To be
genuinely calculated to give notice, service by publication on a person
believed to reside in
Territorial statute allowing service on absent defendants by publication requires three forms of notice: publication in a newspaper, posting in front of the court house, and mailing by registered mail at his last known address. A.S.C.A. § 43.0502(a). In re Three Minor Children, 10 A.S.R.2d 57 (1989).
43.0503 Proof of service.
Proof of service by publication shall be by affidavit of the
publisher to which affidavit shall be attached the notice clipped from a copy
of the newspaper or publication in which the publication was made. If the
publication was made by mailing, affidavit of the person mailing the notice,
with a copy of the notice mailed, shall be made. In either event, affidavit of
posting shall also be made by the person posting such notice in the front of
the Court House. The affidavits required by this section must be made before a
default can be taken.
History: 1962, PL 7-36.
Case Notes:
When personal
service cannot be made upon a respondent in a divorce action within
When a
petitioner files an affidavit that personal service cannot be made upon a
respondent in a divorce action within
43.0504 By means other than
publication.
Publication
is not necessary if a copy of the order has been served upon the defendant in
person or by registered mail at least [2 months and 10 days] before trial, and
in case of service by registered mail an official return receipt signed by the
defendant is attached to the affidavit of service.
History: 1962, PL 7-36, and
1984, PL 18-28 § 1.
Amendments: 1984
Provides for service by means other than publication.
Case Notes:
“Actual personal service” is not defined in code.
Resorting to Rule 4(d)(l), Federal Rules of Civil Procedure, find no authorized
agent is involved. Nor does rule when read with section authorize service by
mail or any other method. Pelesasa v. Te’o, ASR (1978).
When personal
service cannot be made upon a respondent in a divorce action within
When a
petitioner files an affidavit that personal service cannot be made upon a
respondent in a divorce action within
TRIAL
AND JUDGMENT (RESERVED)
Chapter 08
Sections:
43.0801 Powers.
43.0802 Procedure applicable to appeal.
43.0803 Stay
of execution.
43.0804 Decision on appeal final until otherwise provided by legislature.
43.0801 Powers.
(a) The Appellate Division of the High Court shall
have power on appeal or review to affirm, modify, set aside, or reverse the
judgment or order appealed from or reviewed and to remand the case with such
direction for a new trial or for the entry of judgment as may be just.
(b) The findings of fact of the trial, probate and
Land and Titles Divisions of the High Court may not be set aside by the
Appellate Division unless clearly erroneous.
History: 1962, PL
7-36; 1967, PL 10-17; 1969, PL 11-54.
Case Notes:
Although no clearly erroneous findings of fact, in the future, a series of legal conclusions, unsupported by meaningful discussion, may form basis of a reversal, in re “Fanene”, ASR (1977).
Construes “clearly erroneous”, Tuiagamoa v.
Tomasi, ASR (1977).
Appellate Division is bound by findings of fact
of Trial Court unless clearly erroneous.
RCAS 3.0503. Willis v. Government, 4 ASR 926 (1965).
Appellate Division of the High Court will not set
aside findings of fact of trial court unless clearly erroneous. RCAS 3.0503.
Utu V. Aumoeualogo, 4 ASR 906 (1964).
Appellate court will not set aside findings of
fact by Trial Division of he High Court unless clearly erroneous. RCAS 3.0503.
Taufaasau v. Manuma, 4 ASR 947 (1967).
Disparity from place to place in amounts generally awarded for pain and suffering is accounted for by many factors, including variations in the value of money and in social attitudes toward pain, and that awards tend to be lower in American Samoa than in some other jurisdictions does not make such an award clearly erroneous. A.S.C.A. § 43.0801. Kim v. Star-Kist Samoa, Inc., 8 A.S.R.2d 146 (1988).
Appellate court has no authority to increase the amount of damages awarded by trial court unless the amount was clearly erroneous. A.S.C.A. § 43.0801. Kim v. Star-Kist Samoa, Inc., 8 A.S.R.2d 146 (1988).
Appellate division of territorial court reviews findings of fact by Land and Titles Division for clear error. A.S.C.A. § 43.0801(b). Tuileata v. Amituana`i, 8 A.S.R.2d 173 (1988).
There is no clear error requiring appellate division to reverse a decision denying registration of land where (1) prior cases relied on by the appellant to show his presence in the area concerned another tract of land and (2) witnesses testified that appellant neither had houses or plantations in the area nor, owing to his long absence from the territory, had knowledge of the true extent of his family lands. A.S.C.A. § 43.0801(b). Tuileata v. Amituana`i, 8 A.S.R.2d 173 (1988).
Where each party has presented evidence to the trial court which supports its own claim to land ownership, the trial court's findings will not be disturbed on appeal unless clearly erroneous. A.S.C.A. § 43.0801(b). Suapilimai v. Faleafine, 9 A.S.R.2d 16 (1988).
Trial court findings of fact for which there is substantial evidence in the record are not clearly erroneous, and will not be disturbed on appeal, even though there is also substantial evidence in the record that would have supported a contrary finding by the trial court. A.S.C.A. § 43.0801(b). Suapilimai v. Faleafine, 9 A.S.R.2d 16 (1988).
Appellant who seeks to overturn the trial court's findings of fact on appeal bears the heavy burden of showing that these findings were "clearly erroneous" in light of the record. A.S.C.A. § 43.0801(b). Toleafoa v. Tiapula, 12 A.S.R.2d 56 (1989).
Where trial court finding that appellant had relinquished possession of house by many years of absence was supported by testimony that appellant lived in another village and rarely visited the village in which the disputed house was located, the finding was not clearly erroneous and appellate court would not disturb it. A.S.C.A. § 43.0801(b). Toleafoa v. Tiapula, 12 A.S.R.2d 56 (1989).
It is not within the province of the appellate court to re-weigh the evidence and interfere with a decision based on the lower court's choice of one version of the facts over another; findings of facts may not be set aside by the appellate court unless clearly erroneous. A.S.C.A. § 43.0801(b). Utuutuvanu v. Mataituli, 12 A.S.R.2d 88 (1989).
Trial court's
finding of facts may not be set aside on appeal unless clearly erroneous. A.S.C.A. § 43.0801(b). Moea`i v.
The trial
division's factual findings may not be set aside by the appellate division
unless clearly erroneous. A.S.C.A. §
43.0801(b); T.C.R.C.P. 52(a). Saufo'i v.
The
"clearly erroneous" standard is used by an appellate court to test a
lower court's findings of negligence, as well as related findings such as
"proximate cause." A.S.C.A. §
43.0801(b); T.C.R.C.P. 52(a). Saufo'i v.
In resolving issues of witnesses' credibility, motive, and character, the Appellate Division is limited to the trial court's transcripts and will presume their determinations to be correct, unless clearly erroneous. A.S.C.A. § 43.0801(b). Rocha v. Rocha, 20 A.S.R.2d 63 (1992).
On appeal, a
clearly erroneous standard applied to questions of fact, but questions of law
are reviewed de novo. A.S.C.A. §
43.0801(b).
43.0802 Procedure applicable
to appeal.
The
following procedure shall apply to appeals taken to the Appellate Division of
the High Court:
(a) Before filing a notice of appeal, a motion for
a new trial shall be filed within 10 days after the announcement of the
judgment or sentence.
(b) A notice of appeal shall be filed within 10
days after the denial of a motion for a new trial.
(c) The appellant shall cause the record on appeal
to be filed with the appellate division and the appeal to be docketed there
within 30 days from the date the notice or appeal is filed.
History: 1962, PL 7-36; 1966, PL 10-42; 1967, PL 10-17;
1968, PL 10-62.
Case Notes:
Time is computed as provided in Rule 6(a),
Federal Rules of Civil Procedure. Ailua v. Maga Family, ASR (1978).
Time for filing a notice of appeal is
jurisdictional and court may not extend under Rule 26(c), Federal Rules of
Appellate Procedure, which allows 3 days for mailing or under Federal Rules of Civil Procedure provision on
excusable neglect. Taufua v. Steffany, ASR (1977).
“Announcement” means “entry of judgment” which
means docketing of an order or decision by the Clerk of the Court. Motion for
new trial, therefor, not timely, and action taken thereon is nullify. Fai’ivae
v. Tuse, ASR (1977).
Motion for new trial must be filed within 10 days after judgement but may be served on parties after the tenth day. Manuma v. Bartley, 3 ASR2d 21(1986).
Period for filing motion for new trial commences
with formal announcement of judgement. Subsequent events such as issuance of
written opinion, correction of error or receipt by counsel of notice of
judgement, do not extend period for filing.
Failure of clerk to file written entry of
formally announced judgement does not prevent period from running. Judicial
Memorandum, 4 ASR2d 172 (1987).
Territorial statute requiring motions for new trial to be "filed" within ten days of judgment would not be construed to require service on opposing parties within the ten day period. A.S.C.A. § 43.0802. Olotoa v. Bartley, 3 A.S.R.2d 21 (1986).
Motion for new trial is a statutory prerequisite to appeal, and no issue can be raised on appeal that was not raised in motion for new trial. A.S.C.A. § 43.0802. Kim v. Star-Kist Samoa, Inc., 8 A.S.R.2d 146 (1988).
Parties who did not file a motion for new trial or reconsideration within ten days of judgment gave up their right to appeal the decision. A.S.C.A. § 43.0802(a),(b). Gi v. Temu (Mem.), 12 A.S.R.2d 33 (1989).
The statutory deadline for filing motions for reconsideration or new trial is jurisdictional; if no such motion is filed within the requisite ten days, the Court no longer has the power to reconsider or amend its judgment and the losing party no longer has a right to appeal. A.S.C.A. § 43.0802(a) In re Matai Title Muagututi`a, 15 A.S.R.2d 1 (1990).
The requirement that before filing a notice of appeal, a motion for a new trial shall be filed within 10 days after the announcement of the judgment or sentence is jurisdictional. A.S.C.A. § 43.0802(a). Taulaga v. Patea, 17 A.S.R.2d 34 9 (1990).
If no timely motion for reconsideration or new trial conforming to the "particularity" requirement of T.C.R.C.P. 7(b)(1) is filed within the statutory ten-day deadline, then the Appellate Division lacks jurisdiction to entertain an appeal. A.S.C.A. § 43.0802(a). Taulaga v. Patea, 17 A.S.R.2d 34 (1990).
The requirement that a notice of appeal shall be filed within 10 days after the denial of a motion for a new trial is jurisdictional. A.S.C.A. § 43.0802(b). Taulaga v. Patea, 17 A.S.R.2d 34 (1990).
The requirement that a motion for a new trial be filed within ten days after the announcement of the judgment is a mandatory prerequisite to the exercise of jurisdiction by the Appellate Division. A.S.C.A. § 43.0802(a). In re Matai Title Mulitauaopele, 17 A.S.R.2d 75 (1990).
The ten-day
time limit to file a motion for a new trial is mandatory and jurisdictional;
errors of law not raised within ten days of judgment or sentence are waived, at
least insofar as they concern the right to appeal. A.S.C.A. §§ 43.0802(a), 46.2402(a).
The filing of a motion for new trial within ten days of the announcement of judgment is a mandatory prerequisite to appeal. A.S.C.A. § 43.0802(a). Lualemana v. Asifoa, 17 A.S.R.2d 151 (1990).
A party whose motion for a new trial has been denied, in whole or in part, has ten days from that date to file a notice of appeal. A.S.C.A. § 43.0802(b). Willis v. Fai`ivae, 17 A.S.R.2d 179 (1990).
The Appellate Division can hear an appeal only if a motion for new trial has been made within ten days of judgment, and only if a notice of appeal has been filed within ten days of the denial of a motion for new trial. A.S.C.A. § 43.0802. Taulaga v. Patea, 17 A.S.R.2d 206 (1990).
Where a motion for reconsideration has been filed after the statutory deadline, the Appellate Division has no jurisdiction to entertain an appeal regardless of any arguments, equitable or otherwise. A.S.C.A. § 43.0802. Lualemana v. Asifoa, 18 A.S.R.2d 49 (1991).
Although the statute does not provide a remedy for a situation in which, due to an error on the part of a Court employee or a theft from counsel's Court box a litigant does not receive notice of the judgment until after the ten-day deadline, the Court might, in extraordinary situations, entertain a T.C.R.C.P Rule 60(b) motion and vacate the previous order dismissing the motion for reconsideration for lack of jurisdiction. A.S.C.A. § 43.0802. T.C.R.C.P. Rule 60(b). Lualemana v. Asifoa, 18 A.S.R.2d 49 (1991).
The requirement of filing a motion for a new trial or reconsideration of judgment prior to an appeal is jurisdictional. A.S.C.A. § 43.0802(a). Rocha v. Rocha, 20 A.S.R.2d 63 (1992).
In order for the appellate court to have jurisdiction over an appeal, (1) a motion for new trial or reconsideration must be filed within ten days after the announcement of the judgment or sentence, and (2) the notice of appeal must be filed within ten days after the denial of that timely motion. A.S.C.A. § 43.0802. Toluao v. Fuimaono, 21 A.S.R.2d 12 (1992).
Attorney who was served with the court's opinion and judgment had a duty to inform his clients of the result in time for them to decide whether they wished to file a motion for new trial or reconsideration. A.S.C.A. § 43.0802(a),(b). Gi v. Temu (Mem.), 12 A.S.R.2d 33 (1989).
Statute imposing ten day time limit on motions for new trial is jurisdictional and leaves court no discretion to extend or disregard the time limit. A.S.C.A. § 43.0802(a). Satele v. Uiagalelei, 8 A.S.R.2d 97 (1988).
Although deadlines for filing motions for new trial and appeal are set by the legislature and court is not free to overlook or extend them, a party may file a motion for relief from judgment after the statutory deadline for filing a motion for new trial. A.S.C.A. § 43.0802(a),(b); T.C.R.C.P. Rule 60(b). Gi v. Temu (Mem.), 12 A.S.R.2d 33 (1989).
To prevail on a motion for relief from judgment, a party must show not only that the judgment was wrong but also that he has some compelling justification for not having called the mistake to the court's attention within the ten days provided for filing a motion for new trial. A.S.C.A. § 43.0802(a),(b); T.C.R.C.P. Rule 60(b). Gi v. Temu (Mem.), 12 A.S.R.2d 33 (1989).
Depending on the circumstances, parties' receipt of notice of judgment from their attorney after expiration of the statutory time limit for filing a motion for reconsideration or new trial might support a motion for relief from the judgment. A.S.C.A. § 43.0802(a),(b); T.C.R.C.P. Rule 60(b). Gi v. Temu (Mem.), 12 A.S.R.2d 33 (1989).
A failure to
respond to the court's notice of dismissal and to move within the ten days
required by statute for a reconsideration of its order of dismissal did not
constitute "excusable neglect" under Rule 60(b). A.S.C.A. § 43.0802(a); T.C.R.C.P.
60(b)(1).
Statute requiring mediation of disputes over communal land did not apply to dispute over land which trial court concluded, consistently with the record before it, to be individually owned. A.S.C.A. § 43.0802. Leota v. Sese, 12 A.S.R.2d 18 (1989).
The requirement of filing a motion for a new trial or reconsideration of judgment prior to an appeal is jurisdictional. A.S.C.A. § 43.0802(a). Rocha v. Rocha, 20 A.S.R.2d 63 (1992).
Statutory period for filing a motion for a new trial commences with the announcement of judgment. A.S.C.A. § 43.0802. Judicial Memorandum, 4 A.S.R.2d 172 (1987).
The Clerk of Court will file a written entry of any judgment announced from the bench; the failure of the Clerk to do so, however, does not prevent the statutory period for filing motions for new trial from commencing with the announcement of judgment by the court. A.S.C.A. § 43.0802. Judicial Memorandum, 4 A.S.R.2d 172 (1987).
Attorney who was served with the court's opinion and judgment had a duty to inform his clients of the result in time for them to decide whether they wished to file a motion for new trial or reconsideration. A.S.C.A. § 43.0802(a),(b). Gi v. Temu (Mem.), 12 A.S.R.2d 33 (1989).
The formal
style or caption of a motion for a new trial is not essential to fulfill the
statutory requirement; nor must the motion specifically request a new trial
rather than some lesser or different form of relief, as long as the asserted
errors are susceptible of such relief. A.S.C.A.
§§ 43.0802(a), 46.2402(a).
43.0803 Stay of execution.
Pending
the hearing and determination of an appeal, execution of the final judgment or
order of the High Court shall not be stayed unless the Appellate, Trial, or
Land and Titles Division, or Chief Justice, orders a stay for cause shown and
upon such terms as it or he may fix.
History: 1962, PL 7-36. 1967, PL 10-17, 1968, PL 10-62.
Case Notes:
Does not require the court to impose a supersedes
bond upon granting a stay of enforcement, it is within the court’s discretion.
A court should not automatically or casually grant a stay of judgment pending appeal; the court's discretion to grant a stay should be exercised only if cause is shown. A.S.C.A. § 43.0803; T.C.R.C.P. 62(a), (c); A.C.R. 8. Asifoa v. Lualemana, 17 A.S.R.2d 10 (1990).
Execution of a final judgment of the High Court will not be stayed pending appeal unless the appellate, trial, Land and Titles Division, or Chief Justice orders a stay for cause shown upon such terms as it or he may fix. A.S.C.A. § 43.0803. Asifoa v. Lualemana, 17 A.S.R.2d 100 (1990).
Similar to a petition for a preliminary injunction, the decision to grant or deny a motion for a stay of an injunction pending appeal depends partly on the "balance of equities" and partly on the likelihood of appeal's success. A.S.C.A. § 43.0803; T.C.R.C.P. 62(c); A.C.R. 8. Lutali v. Foster, 24 A.S.R.2d 81 (1993).
Regarding a motion to stay pending appeal, the moving party bears the burden of showing "cause" as to why an injunction should be stayed and must show that he is likely to prevail on the appeal's merits. A.S.C.A. § 43.0803; T.C.R.C.P. 62(c); A.C.R. 8. Lutali v. Foster, 24 A.S.R.2d 81 (1993).
Corporate directors claiming economic loss are not entitled to a stay of an injunction pending appeal when they lack standing because they are not parties to the lawsuit against the corporation and when their individual economic interests are not coincidental with or necessarily those of the corporation; in any event, prospective monetary loss as a result of an injunction is insufficient to suspend an injunction. A.S.C.A. § 43.0803; T.C.R.C.P. 62(c); A.C.R. 8. Lutali v. Foster, p. 81.
43.0804 Decision on appeal
final until otherwise provided by legislature,
Unless
and until the Legislature of American Samoa provides for an appeal to a court
created by an act of the Legislature, the decisions of the Appellate Division
of the High Court shall be final. When and if the Legislature of American Samoa
provides for an appeal from any decision of the courts of
History: 1962, PL 7-36, 1968, PL 10-46.
Chapter 09
ATTACHMENT
Sections:
43.0901 Writ
of attachment.
43.0902 Affidavit.
43.0903 Plaintiffs bond.
43.0904 Motion for additional
security.
43.0905 Action on bond.
43.0906 Amount of levy.
43.0907 Manner of execution.
43.0908 Indemnity for marshal.
43.0909 Examination of defendant
where sufficient property cannot be found.
43.0910 Sale of perishable property.
43.0911 Return by marshal.
43.0912 Discharge of writ upon
termination of action.
43.0913 Discharge of writ upon
bond by defendant.
43.0914 Discharge of improperly
issued writ.
43.0915 Filing discharge order.
43.0916 Payment of expenses where
writ discharged.
43.0917 Execution.
43.0918 Priority among
attachments.
43.0919 Collection of balance
due-Return of surplus.
43.0920 Appointment of receiver.
Reviser’s Comment: The law dealing with alienation of land contained
in 43.0907 and 43.0917 of the ASCA as recodified by the legislative reference
bureau had been questioned as to whether the requirements of Art. I, § 3 and
Art. II. § 9, American Samoa Constitution, had been fulfilled. Since the
records were not available to answer the question, the Legislature passed PL
16-88 and PL 17-31 to ensure that the law dealing with alienation of land
compiles with the Constitution.
43.0901 Writ of attachment.
(a) The plaintiff in any permitted action upon a
contract, express or implied, may, at the commencement of the action, or at any
time afterward, and before judgment, have such property of the defendant or of
any one or more of several defendants as is not exempt from execution,
attached as security for the satisfaction of such judgment as he may recover.
(b) No writ of attachment may be issued against
the government or any instrumentality thereof, the Development Bank of
(c) The clerk of the High Court may issue writs of
attachment.
(d) The writ of attachment shall be issued by the
clerk with the approval of the court and directed to the marshal, and shall
require him to attach and safely keep so much of the property of the defendant
as will be sufficient to satisfy the demand of the plaintiff, with costs and expenses.
History: 1962, PL 7-36; 1969, PL 11-54.
Research Guide: For provisions on exemption, from sale to satisfy
judgments, of real property of Samoans, see 43.0909.
Case Notes:
Not relevant to the arrest of vessels for purpose of obtaining in rem jurisdiction. Star-Kist Samoa, Inc., v. Poong No. 5, ASR (1979).
The High Court has in personam jurisdiction over
admiralty and maritime causes of action, even though it does not have in rem
admiralty and maritime jurisdiction, and in the enforcement of such personal
liability, a vessel or other goods or chattels, or credits, may be seized,
attached and levied upon; and the Federal Rules of Civil Procedure,
Supplemental Rules for Certain Admiralty and Maritime Claims, are on their face
applicable in such in personam cases, insofar as they are consistent with the
court’s statutory jurisdiction. Vessel Fijian Swift v. Trial Division, 4 ASR
983 (1975).
43.0902 Affidavit.
Before any writ of attachment shall issue, the plaintiff, or someone in
his behalf, shall make and file with the clerk an affidavit showing that the
defendant is indebted to the plaintiff, specifying the amount of such
indebtedness over and above all just due credits and offsets, and stating that
the attachment is not sought and the action is not prosecuted to hinder, delay
or defraud any creditor of the defendant.
History: 1962, PL 7-36.
43.0903 Plaintiff’s bond.
(a) Before a writ of attachment shall issue, the
plaintiff shall execute and file with the clerk a bond or undertaking with a
surety company or 2 or more sureties, to be approved by such clerk, in a sum at
least double the amount for which the plaintiff demands judgment, and in no
case less than $50 in a district court and $100 in the High Court, conditioned
that the plaintiff will prosecute his action without delay, and will pay all
costs that may be adjudged to the defendant and all damages defendant may
sustain by reason of wrongful suing out of the attachment.
(b) No bond is required when the plaintiff is the
government, any instrumentality thereof, the Development Bank of
History: 1962, PL 7-36.
43.0904 Motion for
additional security.
The
defendant may at any time before judgment move the court or judge for
additional security on the part of the plaintiff, and if the court or judge is
satisfied that the surety on the plaintiff’s bond is insufficient or has been
removed from American Samoa, the attachment may be vacated and restitution
directed of any property taken under it unless in a reasonable time to be fixed
by the court or judge sufficient security is given by the plaintiff.
History: 1962, PL 7-36.
43.0905 Action
on bond.
(a) In an action on an attachment bond, the
plaintiff therein may recover, if he shows that the attachment was wrongfully
sued out, the actual damages sustained and reasonable attorney’s fees, of not
more than $25 in any case, to be fixed by the court; and if it is shown that
such attachment was sued out maliciously, he may recover exemplary damages.
(b) No action may be maintained on a bond until
after final judgment in the main action unless the same is discontinued or
dismissed.
43.0906 Amount of levy.
The
marshal shall attach property of the defendant in an amount sufficient to
satisfy the demand of the plaintiff, with costs and expenses, if sufficient
property not exempt from execution can be found, giving that to which the defendant
has an unquestionable title a preference over that to which his title is
doubtful, and he shall, as nearly as the circumstances of the case will permit,
levy upon property 20 percent greater in value than the amount which the
plaintiff in his affidavit claims to be due.
43.0907 Manner of execution.
The
marshal to whom the writ is directed and delivered must execute the same
without delay as follows:
(a) Real property or an interest therein shall be
attached by filing in the office in which conveyances of the real property
attached should be recorded, a copy of the writ of attachment, endorsed or
affixed with the officer’s certificate stating that by virtue of the original
writ of which such copy is a true copy, he has attached such real estate, or
all of the interest of the defendant therein, describing the same with convenient
certainty as the property of the defendant and naming the defendant. This
subsection shall not, however, render any real property subject to attachment
or execution, which by any other section of this code is made exempt therefrom.
(b) Personal property capable of manual delivery
shall be attached by taking the same into custody.
(c) Stock in any corporation shall be attached
by notifying the president, secretary, treasurer or managing agent of the
corporation and also the defendant, if within American Samoa, that the stock
has been so attached.
History: 1962, PL 7-36; readopted 1980,
16-88 § ; 1982, PL 17-31 § 1.
43.0908 Indemnity for
marshal.
If the
marshal has any reasonable doubt as to the ownership of the property or its
liability to be taken on the writ, he may require sufficient security to
indemnify him for attaching it.
History: 1962, PL
7-36.
43.0909 Examination of defendant where sufficient
property cannot be found.
Whenever
it appears by the affidavit of the plaintiff or by the return of the attachment
that no property is known to the plaintiff or officer on which the attachment
can be executed, or not enough to satisfy the plaintiffs claim, the defendant
may be required by the court or judge to appear before it or him and give
information on oath respecting the same.
History: 1962, PL
7-36.
43.0910
If any
attached property is perishable or in danger of serious and immediate waste or
decay, the marshal shall sell the same in the manner in which property is sold
on execution. Whenever it is made to appear satisfactorily to the court or
judge that the interest of the parties to the action will be subserved by a
sale of any attached property, the court or judge may order the property to be
sold in the same manner as like property is sold under execution. Such order
shall be made only upon notice to the adverse party or his attorney in case
such party shall have been personally served in his action.
History: 1962, PL 7-36.
The
marshal shall make out a full inventory of the property attached and return the
same with the writ of attachment. He shall return the writ with the summons if
issued at the same time; otherwise, within such time after receipt as is
allowed for a return of summons, with a certificate of his proceedings
endorsed thereon or attached thereto.
History: 1962, PL 7-36.
43.0912 Discharge of writ
upon termination of action.
If the
defendant recovers judgment or the plaintiff is nonsuited or the action is
discontinued or dismissed, all the proceeds of the sale and money collected by
the marshal, and all the property attached remaining in the marshal’s hands,
shall be delivered to the defendant or his agent, and the order of attachment
shall be discharged, and the property released therefrom.
History: 1962, PL 7-36.
43.0913 Discharge of writ
upon bond by defendant.
If the
defendant, at any time before judgment, causes a bond to be executed to the
plaintiff with sufficient sureties and approved by the officer having the
attachment, or, after the return thereof, by the clerk, to the effect that he
will perform the judgment of the court, the attachment shall be discharged and
restitution made of the property taken or the proceeds thereof. The execution
of the bond shall be deemed an appearance of the defendant in the action. The
bond shall be part of the record, and if judgment is against the defendant, the
same shall be entered against him and the sureties.
History: 1962, PL 7-36.
43.0914 Discharge of
improperly issued writ.
The
defendant may at any time after he has appeared in the action, either before or
after the release of the attached property, or before any attachment has
actually been levied, apply by motion and upon reasonable notice to the plaintiff,
to the court in which the action is brought, or to the judge thereof, that the
writ of attachment be discharged on the ground that the same was improperly
issued. If it satisfactorily appears that the writ of attachment was improperly
issued, it shall be discharged.
History: 1962, PL 7-36.
43.0915 Filing discharge
order.
Whenever an order has been made discharging or releasing an attachment
upon real property, a certified copy of the order may be filed in the office in
which a copy of the writ has been filed and indexed in like manner.
History: 1962, PL 7-36.
43.0916 Payment of expenses
where writ discharged.
All expenses relating to an
attachment shall be paid by the plaintiff when a writ is discharged.
History: 1962, PL 7-36.
43.0917 Execution.
If
judgment is recovered by the plaintiff, the marshal shall satisfy the same out
of the property attached by him which has not been delivered to the defendant
or claimant or subjected to execution on another judgment recovered before
the issuing of the attachment, by applying on the execution issued on the judgment
the proceeds of all sales of perishable or other property sold by him or as
much as shall be necessary to satisfy the judgment. If any balance remains due
on the judgment, he shall sell under the execution so much of the property,
real or personal, as may be necessary to satisfy the balance. Notices of sale
at public auction shall be given by posting at the courthouse door and 2 other
conspicuous places in the vicinity thereof for 2 weeks in case personal
property is to be sold, and 4 weeks in case of real property. Approval of the
court shall be necessary for sales of real property.
43.0918 Priority among attachments.
When
there are several attachments against the same defendant, they shall be
executed in the order in which they are received by the marshal.
History: 1962, PL
7-36.
43.0919 Collection of balance due-Return of surplus.
(a) If, after selling all the property attached
by him remaining in his hands and applying all the proceeds, after deduction of
his fees, to the payment of the judgment, any balance remains due, the marshal
shall proceed to collect such balance as upon an execution in other cases.
(b) Whenever the judgment has been paid, the
marshal, upon reasonable demand, shall deliver over to the defendant the
attached property remaining in his hands, and any proceeds of the property
attached unapplied on the judgment.
History: 1962, PL
7-36.
43.0920 Appointment of
receiver.
The
court before which the action is pending, or the judge thereof, may at any time
appoint a receiver, whose pay shall be fixed by the court and assessed as part
of the costs, to take possession of property attached under the provisions of
this chapter, collect the revenues thereof, manage and control the same, and
pay over the proceeds according to the nature of the property and the exigency
of the case.
History: 1962, PL 7-36.
Chapter 10
CONDEMNATION
Sections:
43.1001 Filing of complaint and
declaration.
43.1002 Possession immediately
after service of notice.
43.1003 Compensation.
43.1004 Payment of compensation
awarded.
43.1005 Vesting of title, and of
right to compensation.
43.1006 Determination and award
of compensation.
43.1007 Failure of interested
parties to appear.
43.1008 Cost of litigation.
43.1009 Title
disputes-Determination.
43.1010 Arbitration of compensation disputes.
43.1011 Payment of arbitrators.
43.1012 Incapacity of claimants.
43.1013
Incapacity of claimants.
II. Procedural Rules
43.1020 Applicability
of United States Federal Rules of Civil Procedure.
43.1021 Complaint-Caption
and contents-Names of defendants.
43.1022 Filing complaint.
43.1023 Joinder
of properties to be taken.
43.1024 Order
for distribution of deposit.
43.1025 Notices-Delivery-Form.
43.1026 Service of notice.
43.1027 Notice-Proof of service.
43.1028 Amendment
of notice or proof of service.
43.1029 Notice
of appearance-Waiver of defenses.
43.1030 Amendment
of pleading.
43.1031 Substitution of parties.
43.1032 Dismissal
of action.
43.1033 Stipulated
dismissal.
43.1034 Dismissal
by court.
43.1035 Effect
of dismissal.
43.1036 Deposit of money-Distribution.
Research Guide: See also
37.0401 et seq. for provisions on eminent domain.
Reviser’s Comment: The law dealing with alienation of land contained in 43.1001—43.1013
of the A.S.C.A. as recodified by the legislative reference bureau had been
questioned as to whether the requirements of Art. I, § 3 and Art. II, § 9,
American Samoa Constitution, had been fulfilled. Since the records were not
available to answer the question, the Legislature passed PL 16.88 and PL 17-31
to ensure that the law dealing with alienation of land complies with the
Constitution.
43.1001 Filing of complaint
and declaration.
When
the government desires to acquire any land, easement, right-of-way, or other
property interest, it may file a complaint in the Trial Division of the High
Court of American Samoa, and, at any time before judgment, it may file a
declaration of taking signed by the Attorney General, declaring that the lands
or other property rights described in the complaint are thereby taken for the
use of the government. The declaration of taking shall contain, or have annexed
thereto:
(1) a statement of the public use for which the
lands or other property rights are taken;
(2) a description of the property taken sufficient
for identification;
(3) a statement of the estate or interest or
property right taken for public use;
(4) a plan showing lands taken;
(5) a statement of the sum of money estimated by
the government to be just compensation for the land to be taken.
History: 1962, PL
7-25; 1967, PL 10-25; readopted 1980, PL 16-88 § 1; 1982, PL 17-31 § 1.
43.1002 Possession
immediately after service of notice.
When the government desires to enter into the possession of the
property immediately after the service of the notice provided for in 43.1026,
the Territorial Registrar shall so state in the notice and any damage sustained
by the occupant, lessee, lessor or owner of such property by reason of the
immediate occupancy by the government shall be included in the compensation to
the aggrieved parties. When the required notice has not been given and the
government desires to enter into the possession of the property at any time
during the proceedings and before the rights of the parties and the amount of
compensation are determined, the Territorial Registrar shall give the required
notice, which shall also specify the date upon which the government may enter
into the possession of the property.
History: 1962, PL 7-25; 1967, PL 10-25; readopted 1980,
PL 16-88 § 1:1982, PL 17-31 § 1.
43.1003 Compensation.
Along
with the declaration of taking, the government shall deposit in the court, to
the use of persons entitled thereto, the amount of the estimated compensation
stated in the declaration.
History: 1962, PL 7-25; 1967, PL 10-25; readopted 1980,
PL 16-88 § 1; 1982, PL 17-31 § 1.
43.1004 Payment of
compensation awarded.
Upon
the application of the parties in interest, the court may order that the money
deposited in the court, or any part thereof, be paid forthwith or on account of
the just compensation to be awarded in the proceeding. If the compensation
finally awarded for the lands, or any parcel thereof, exceeds the amount of the
money so received by any person entitled, the court shall enter judgment
against the government for the amount of the deficiency. If the compensation
finally awarded to any defendant is less than the amount which has been paid to
him, the court shall enter judgment against him and in favor of the government
for the overpayment.
History: 1962, PL
7-25; 1967, PL 10-25; readopted 1980, PL 16-48 § 1; 1982, PL 17-31 § 1.
43.1005 Vesting of title,
and of right to compensate.
Upon the filing of the declaration of taking and the deposit, title to
the lands in fee simple absolute, or such less estate or interest therein as is
specified in the declaration, shall vest in the government, and the lands shall
be deemed to be condemned and taken for the use of the government, and the
right to just compensation for the lands shall vest in the persons entitled
thereto.
History:
1962, PL 7-25; 1967, PL 10-25; readopted 1980, PL 16-88 § 1; 1982, PL 17-31 §
1.
43.1006 Determination and
award of compensation.
Just
compensation shall be ascertained and awarded in the court proceeding and established
by the judgment of the court. The judgment shall include, as part of the just
compensation awarded, interest at the rate of 6 percent per year on the amount
finally awarded as the value of the property as of the date of taking, from the
date to the date of payment; but interest shall not be allowed on so much
thereof as shall have been paid into the court. No sum so paid into court shall
be charged with commissions or poundage.
History: 1962, PL 7-25; 1967,
PL 10-25; readopted 1980, PL 16-48 § 1; 1982, PL 17-31 § 1.
43.1007 Failure of
interested parties to appear.
When
all of the parties interested in the property involved in condemnation
proceedings fail to appear within the time set by this chapter, the court may
proceed to fix the amount of compensation by arbitration, as provided for in
this chapter, and also determine the ownership of the property. Such award and
determination shall be as effective as though the parties had appeared and
answered. Any sums ordered to be paid by the government shall be held by the
government for 7 years, to be paid to the proper claimant on demand. Such sums
shall bear no interest.
History: 1962, PL 7-25; 1967, PL 10-25; readopted 1980,
PL 16-88 § 1; 1982, PL 17-3 1 § 1.
43.1008 Cost of litigation.
Costs
of litigation shall not be assessed against any party.
History: 1962, PL 7-25; 1967, PL 10-25; readopted 1980,
PL 16-88 § 1; 1982, PL 17-31 § 1.
43.1009 Title
disputes-Determination.
(a) When a dispute as to the ownership of the
property prevents the amicable settlement of and payment for the property, the
Territorial Registrar shall so certify to the Trial Division of the High Court,
requesting that the court determine the ownership of the property in question,
except that all disputes as to the ownership of communal land shall be referred
to the Land and Titles Division of the High Court, solely for the purpose of
determination of ownership.
(b) When a dispute is so certified by the registrar,
the court shall hear the same as a civil matter, and shall, after proper
hearing, enter its order and judgment determining the ownership of the
property, which shall be good against all persons.
History: 1962, PL 7-25: 1969, PL 11-54; readopted 1980, PL
16-88 § 1; 1982, PL 17-31 § 1.
43.1010 Arbitration of
compensation disputes.
(a) When the government does not agree to pay the
sum demanded or the parties or any of them do not accept the deposit made by
the government, either before or after the settlement of the question of
title, the sum to be paid by the government shall be determined by arbitration.
(b)
One arbitrator shall be appointed by the Governor on behalf of the government,
one shall be appointed by the person or persons claiming compensation, and one,
who shall be the chairman, shall be appointed by the other 2 arbitrators.
(c) In the event the person or persons claiming
compensation do not agree upon an arbitrator or the 2 arbitrators who are to
choose the third arbitrator fail to agree upon a third arbitrator by a day to
be fixed by the court, an arbitrator shall be named and appointed for them by
the court.
(d) The award shall be determined by a majority
of the arbitrators after viewing the property involved and considering such
evidence concerning the value of the property as may be submitted by interested
parties.
(e) The award shall be made within one month
after the arbitrators have entered upon their duties, or have been called on to
act by a notice in writing from any party unless the court sets a different
time. The chairman of the arbitrators shall, within the time limit for the
award, file the determination of the amount of the award with the court,
enclosed in a sealed cover endorsed with the names of the parties to the arbitration.
The court shall open the award and forward a copy of the same to the parties.
(f) The decision of the arbitrators shall be
final if notice of appeal is not served within the time limited by law.
History: 1962, PL 7-25; 1967, PL 10-25; readopted 1980,
PL 16-88 § 1; 1982, PL 17-31 § 1.
43.1011 Appeal.
(a) The decision of the arbitrators may be appealed
to the Appellate Division of the High Court by any person or by the government.
(b) The adverse party or parties shall be served
written notice of the intention to appeal within 10 days after the appealing
party receives notice of the award from the Trial Division of the High Court.
The notice of appeal, together with proof of service, shall be filed with the
clerk of the High Court within 2 days after service is completed.
(c) On appeal, the appellate Division may hear
such evidence, including the testimony of the arbitrators, as is material, may
approve, modify, revise, or reject the award of the arbitrators, and may
either make a new and different award or resubmit the matter to the same or
different arbitrators to be appointed in the same manner as the original
arbitrators.
(d) Following its decision, the court shall enter
an order that upon the payment of the required sum the government shall be the
lawful owner of the property. The order shall bind all persons.
History: 1962, PL 7-25; 1967, PL 10-25; readopted 1980,
PL 16-88 § 1; 1982, PL 17-3 1 § 1.
43.1012 Payment of
arbitrators.
Payment
to arbitrators shall be made by the government for the time they are actually
engaged in hearing the case, and for their traveling expenses to and from the
place of hearing. The amount of the payment shall be fixed by the court, but
the payment to each arbitrator shall not exceed $20 per day, plus
transportation.
History: 1962, PL 7-25; 1967, PL 10-25; readopted 1980,
PL 16-88 § 1; 1982, PL 17-31 § 1.
43.1013 Incapacity of
claimants.
When a
question arises as to the legal capacity of any claimant for compensation to
execute a discharge or release upon payment of the sum agreed to be paid,
rendered, or awarded, the court shall appoint a guardian or take such other
action as may be required by law.
History: 1962, PL 7-25; 1967,
PL 10-25; readopted 1980, PL 16-88 § 1; 1982, PL 17-31 § 1.
43.1020 Applicability of
The
Rules of Civil Procedure for the District Courts of the
History: 1962, PL 7-25; 1967, PL 10-25.
43.1021 Complaint-Caption
and contents-Names of defendants.
(a) The complaint shall contain a caption setting
forth the name of the court, the title of the action, the file number and the
designation “Complaint”.
(b) The government shall name as defendants the
property, designated generally by kind, quantity and location, and at least one
of the owners of some part or interest in the property.
(c) The complaint shall contain a short and plain
statement of the authority for the taking, the use for which the property is to
be taken, a description of the property sufficient for its identification, the
interests to be acquired, and, as to each separate piece of property, a designation
of the defendants who have been joined as owners thereof or of some interest
therein.
(d) Upon commencement of the action, the
government need join as defendants only those persons having or claiming an
interest in the property whose names are then known, but prior to any hearing
involving the compensation to be paid for a piece of property the government
shall add as defendants all persons having or claiming to have an interest in
that property whose names can be ascertained by a reasonable diligent search of
the records, considering the character and value of the property involved and
the interests to be acquired, and also those whose names have otherwise been
learned. All others may be made defendants under the designation “unknown
owners”.
History: 1962, PL 7-25; 1967,
PL 10-25.
43.1022 Filing complaint.
In
addition to filing the complaint with the court, the government shall furnish
to the court at least one copy thereof for the use of the defendants and
additional copies at the request of the clerk of the court or a defendant.
History:
1962, PL 7-25; 1967, PL 10-25.
43.1023 Joinder of
properties to be taken.
The
government may join in the same action one or more separate pieces of property,
whether in the same or different ownership, and whether or not sought for the
same use.
History: 1962, PL7-25; 1967, PL 10-25.
43.1024 Order for
distribution of deposit.
Following
the filing of the complaint, the court may order such distribution of any
deposit of the estimated compensation for the property taken as the facts
warrant.
History: 1962, PL 7-25; 1967, PL 10-25.
43.1025 Notices-Delivery-Form.
(a) Upon the filing of the complaint, the government
shall forthwith deliver to the clerk of the court joint or several notices
directed to the defendants named or designated in the complaint. Additional
notices directed to defendants subsequently added shall also be so delivered.
(b) The delivery of the notice and its service
have the same effect as the delivery and service of a summons under Rule 4 of
the Federal Rules of Civil Procedure of the
(c) Each notice shall state the court, the title
of the action, the name of the defendant to whom it is directed, that the
action is to condemn property sufficient for its identification, the interest
to be taken, the authority for the taking, the uses for which the property is
to be taken, that the defendant may serve upon the Attorney General an answer
within 20 days after service of the notice, and that the failure to so serve an
answer constitutes a consent to the taking and to the authority of the court to
hear the action and to fix the compensation. The notice shall conclude with
the address of the Attorney General where he may be served. The notice need
contain a description of no other property than that to be taken from the
defendants to whom it is directed.
History: 1962, PL 7-25; 1967, PL 10-25.
43.1026 Service of notice.
Personal
service of the notice, without copies of the complaint, shall be made by any
policeman of
History:
1962, PL 7-25; 1967, PL 10-25.
43.1027 Proof of service.
Proof
of service of the notice shall be made in the manner provided for the return
amendment of a summons under Rule 4(g) of the Federal Rules of Civil Procedure.
History:
1962, PL 7-25; 1967, PL 10-25.
43.1028 Amendment of notice
or proof of service.
Amendment
of the notice or of proof of service shall be allowed in the manner provided
in Rule 4(h) of the Federal Rules of Civil Procedure.
History:
1962, PL 7-25; 1967, PL 10-25.
43.1029 Notice of
appearance-Waiver of defenses.
(a) If a defendant has no objection or defense to
the taking of his property, he may serve a notice of appearance designating the
property in which he claims to be interested. Thereafter he shall receive
notice of all proceedings affecting it.
(b) If a defendant has any objection or defense to
the taking of his property, he shall serve his answer within 20 days after the
service of notice upon him. The answer shall identify the property in which he
claims to have an interest, state the nature and extent of the interest
claimed, and state all his objections and defenses to the taking of his
property. A defendant waives all defenses and objections not so presented, but
at the trial of the issue of just compensation, whether or not he has
previously appeared or answered, he may present evidence as to the amount of
the compensation to be paid for his property, and he may share in the distribution
of the award. No other pleading or motion asserting any additional defense or
objection may be allowed.
History: 1962, PL 7-25; 1967, PL 10-25.
43.1030 Amendment of
pleading.
(a) Without leave of court, the government may
amend the complaint at any time before the trial of the issue of compensation
and as many times as desired, but no amendment shall be made which will result
in a dismissal forbidden by 43.1035.
(b) The government need not serve a copy of an
amendment, but shall serve notice of the filing, as provided in Rule 5(b) of
the Federal Rules of Civil Procedure, upon any party affected thereby who has
appeared and, in the manner provided in 43.1026, upon any party affected
thereby who has not appeared.
(c) The government shall furnish to the clerk of
the court for the use of the defendants at least one copy of each amendment,
and he shall furnish additional copies on the request of the clerk or of a
defendant.
(d) Within the time allowed by 43.1029, a
defendant may serve his answer to the amended pleading, in the form and manner
and with the same effect as therein provided.
History: 1962, PL 7-25; 1967, PL 10-25.
43.1031 Substitution of
parties.
(a) If a
defendant dies, becomes incompetent or transfers his interest after his joinder
in the action, the court may order substitution of the proper party upon motion
and notice of hearing.
(b) If the motion and notice of hearing are to be
served upon a person not already a party, service shall be made as provided in
43.1026.
History: 1962, PL 7-25; 1967, PL 10-25.
43.1032 Dismissal of action.
If no
hearing to determine the compensation to be paid for a piece of property has
begun and the government has not acquired the title or a lesser interest or
taken possession, the government may dismiss the action as to that property,
without an order of the court, by filing a notice of dismissal setting forth a
brief description of the property as to which the action is dismissed.
History: 1962, PL 7-25;
1967, PL 10-25.
43.1033 Stipulated
dismissal.
Before
the entry of any judgment vesting the government with title of a lesser
interest in or possession of property, the action may be dismissed in whole or
in part, without an order of the court, as to any property by filing a stipulation
of dismissal by the plaintiff and the defendant affected thereby; and if the
parties so stipulate, the court may vacate any judgment that has been entered.
History: 1962, PL 7-25;
1967, PL 10-25.
43.1034 Dismissal by court.
At any time before compensation
for a piece of property has been determined and paid and after motion and
hearing, the court may dismiss the action as to that property, except that it
shall not dismiss the action as to any part of the property of which the
plaintiff has taken possession or in which the plaintiff has taken title or a
lesser interest, but shall award just compensation for the possession, title or
lesser interest so taken. The court at any time may sever a defendant
unnecessarily or improperly joined.
History: 1962, PL 7-25; 1967, PL 10-25.
43.1035 Effect of
dismissal.
Except
as otherwise provided in the notice, or stipulation of dismissal, or order of
the court, any dismissal is without prejudice.
History: 1962, PL 7-25; 1967, PL 10-25.
43.1036 Deposit
of money-Distribution.
(a) The government shall deposit with the court
the money required by 43.1001.
(b) The court and attorneys shall expedite the
proceedings for the distribution of the money so deposited and for the
ascertainment and payment of just compensation.
(c) If the compensation finally awarded to any
defendant exceeds the amount which has been paid to him on distribution of the
deposit, the court shall enter judgment against the plaintiff and in favor of
that defendant for the deficiency. If the compensation finally awarded to any
defendant is less than the amount which has been paid to him, the court shall
enter judgment against him and in favor of the government for the overpayment.
History: 1962, PL7-25: 1967, PL 10-25.
Chapter 11
DECLARATORY
RELIEF
Sections:
43.1101 Right of action-Declaration.
43.1102 Refusal
to hear cause.
43.1103 Time
for trial.
43.1104 Other remedies not affected.
43.1101 Right of
action-Declaration.
Any
person interested under a deed, will or other written instrument, or under a
contract, or who desires a declaration of his rights or duties with respect to
another, or in respect to, in, over or upon property, may, in cases of actual
controversy relating to the legal rights and duties of the respective parties,
bring an action in the trial division of the High Court for a declaration of
his rights and duties, including a determination of any question of
construction or validity arising under an instrument or contract. He may ask
for a declaration of his rights and duties, either alone or with other relief.
The court may make a binding declaration of such rights or duties, whether or
not further relief is or could be claimed at the time. The declaration may be
either affirmative or negative in form and effect, and such declaration shall
have the force of a final judgment. Such declaration may be had before there
has been any breach of the obligation in respect to which said declaration is
sought.
Case
Notes:
Issue of constitutionality of statute requiring
gubernatorial candidates to resign from government employment is not within
scope of jurisdiction of this section; however, under “contractual
relationship”, disregard of petitioner’s employment rights in firing him is.
Soifele v. Lee, ASR (1977).
Appropriate procedure for review of
administrative decision raising airport landing fees is to seek review pursuant
to 4.1040 et seq. and declaratory relief pursuant to 43.110 et seq. Pan Am v
Barnett ASR (1977).
Court has jurisdiction to make a declaratory
judgment construing will. Tolmie v Hunkin ASR (1977)
The purpose of a declaratory judgment is to liquidate
uncertainties and controversies which might result in future litigation In re
High Chief Title Mauga, 4 ASR 132 (1974).
Court had jurisdiction, which it would exercise,
to decide question whether the High Chief Title “Mauga” of the Village of Pago Pago
was a split title, where there was continuous ill feeling and fighting over
the issue, it appeared such a state of affairs would continue, and there had
been five court cases seeking the removal of the holder of the Mauga title. In
re High Chief Title Mauga, 4 ASR 132 (1974).
The basic question in determining whether a
complaint presents a justiciable issue which can serve as a basis for a
declaratory judgment suit is whether the facts alleged, under all the circumstances,
show that there is a substantial controversy between parties that have adverse
legal interests of sufficient immediacy and reality to warrant issuance of a
declaratory judgment: and the test generally applied is whether it is
relatively certain that coercive litigation will eventually ensue between the
same parties if a declaratory judgment is refused. In re High Chief Title
Mauga, 4 ASR 132 (1974).
Where trustees filed a pleading styled as a petition to a nonexistent "probate division" of the High Court for advice and instructions, the Court denied a motion to dismiss for failure to state a claim by the surviving settlor of the trust, since the trustees did not merely seek an advisory opinion but stated a claim for declaratory relief. A.S.C.A. § 43.1101 et seq. In re Beaver Family Trust, 17 A.S.R.2d 9 (1990).
To bring a declaratory relief
action, there must be a justiciable issue based on alleged facts showing, under
all the circumstances, that a substantial controversy exists between parties
having adverse legal interests of sufficient immediacy and reality to warrant
issuance of a declaratory judgment; the test generally applied is the relative
certainty that litigation will eventually follow if declaratory relief is not
granted. A.S.C.A. § 43.1101. Sala v.
43.1102 Refusal to hear
cause.
The
court may refuse to exercise the power granted by this chapter in any case
where its declaration or determination is not necessary or proper at the time
under all the circumstances.
Case Notes:
Under discretionary power, court can only take
jurisdiction to extent petitioner’s complaint is cognizable under statute
7.0801 et seq. petitioner selects. Soifele v. Lee, ASR (1977).
Even if an
actual controversy exists, a court has the discretion to refuse declaratory
relief when, under all the circumstances, it is unnecessary or improper at the
time it is sought. A.S.C.A. §
43.1102. Sala v.
43.1103 Time for trial.
Actions
brought under the provisions of this chapter shall be set for trial at the
earliest possible date and shall take precedence over all other cases, except
older matters of the same character and matters to which special precedence
may be given by law.
History: 1967, PL
10-22.
43.1104 Other remedies not
affected.
The
remedies provided by this chapter are cumulative and shall not be construed as
restricting any other remedy, provisional or otherwise, provided by law for the
benefit of any party to such action, and no judgment under this chapter shall
preclude any party from obtaining additional relief based upon the same facts.
History: 1967, PL
10-22.
GOVERNMENT
TORT LIABILITY
Sections:
43.1201 Short title.
43.1202 Definitions.
43.1203 Liability of
government-Exceptions.
43.1204 Statute of limitations.
43.1205 Prerequisite administrative
remedy.
43.1206 Administrative decision
conclusive upon government.
43.1207 Bar to suit against
government employee.
43.1208 Administrative
disposition not evidence of liability or damages.
43.1209 Jurisdiction over
actions.
43.1210 Settlement of actions.
43.1211 Action against
government exclusive remedy-Defense and settlement of other actions.
43.1212 Payment of judgment or
settled claim.
43.1213 Attorney
fees.
43.1230 Liability of government-Exceptions.
43.1231 Immunity Against Suits.
43.1232 Preventive and remedial measures.
43.1233 Effect on insurance
43.1234 Severability.
43.1235 Preemption.
43.1201 Short
title.
This
chapter may be cited as the “Government Tort Liability Act”.
History: 1967, PL
10-1.
Case Notes:
Under the Government Tort Liability Act, a party may not sue the government in tort until after he files an administrative claim with the Attorney General which is either still pending or denied within three months of its filing. A.S.C.A. §§ 43.1201 et seq. Mataipule v. Tifaimoana Partnerships, Ltd., 16 A.S.R.2d 48 (1990).
An
administrative claim is a jurisdictional prerequisite to a suit against ASG
under the Government Tort Liability Act.
A.S.C.A. §§ 43.1201 et seq.
Rakhshan v.
Plaintiff
alleging injury by employee of territorial government had the option, in
accordance with territorial statute, to bring an action against the employee or
to waive this action and follow statutory procedures for making a claim against
the government. Government Tort
Liability Act, A.S.C.A. 43.1201 et seq. Aga v.
Suits for
false arrest or imprisonment are outside the scope of the Government Tort
Liability Act. A.S.C.A. §§ 43.1201 et
seq. Rakhshan v.
43.1202 Definitions.
As
used in this chapter:
(1) “Computer-based system: includes any computer
or other information technology system, and any electronic device that
controls, operates, monitors, or assists in the operation or functioning of
equipment, machinery, plant, or a device using an embedded or installed microprocessor
or chip.
(2) “Employees of the government” includes
officers and employees of any government agency, and persons acting in behalf
of a government agency in an official capacity, temporarily, whether with or
without compensation.
(3) “Government agency or America Samoa
Government” includes without limitation the Legislative, Judicial and Executive
branches, including their respective departments, offices, agencies,
authorities, boards or commissions but do not include any contractor with the
government.
(4) “Government computer system”
means a computer-based system owned or operated by or on behalf of the American
Samoa Government.
(5) “Y-2K
compliant” means, that the system accurately processes date and time data,
including but not limited to, calculating, comparing, projecting, and
sequencing from, into, and between the twentieth and twenty-first centuries and
the years 1999 and 2000 and beyond, and leap year calculations”.
(6) “Y-2K error”
means the failure of a computer-based system to accurately store, display,
transmit, receive, process, calculate, compare, or sequence date and time data
from, into, or between the twentieth and twenty-first centuries, the years 1999
and 2000 and beyond, and leap year calculations.”
History: 1967, PL 10-1; and 1990 PL 21-29, 1999, PL 26-14.
43.1203 Liability of
government-Exceptions.
(a) The government is liable, except as otherwise
provided in this chapter, in the same manner and to the same extent as a
private individual under like circumstances, but is not liable for interest
prior to judgment or for punitive damages, except that in a case wherein death
is caused and the law of the place where the act or omission complained of
occurred provides, or has been construed to provide, for damages only punitive
in nature, the government is liable for actual or compensatory damages,
measured by the pecuniary injuries resulting from such death to the persons
respectively for whose benefit the action was brought.
(b) The provisions of this chapter do not apply
to:
(1) any claim based upon act or omission of an
employee of the government exercising due care in the execution of a statute or
regulation, whether such statute or regulation is valid;
(2) any claim based upon the exercise or performance
of, or the failure to exercise or perform, a discretionary function or duty on
the part of an officer or employee, whether or not the discretion involved is
abused;
(3) any claim regarding the assessment or collection
of any tax or customs duty, or the detention of any goods or merchandise, by
any law officer, customs or tax officer, or any other law enforcement officer;
(4) any claim for which a remedy is provided
elsewhere in the laws of the government;
(5) any claim arising out of assault, battery,
false imprisonment, false arrest, malicious prosecution, abuse of process,
libel, slander, misrepresentation, deceit or interference with contract
rights;
(6) any claim arising in a foreign country.
(c) Action under this section may not be instituted
for any sum in excess of the amount of the claim presented to the Attorney
General under 43.1205, except where the increased amount is based upon newly
discovered evidence not reasonably discoverable at the time of presenting the
claim to the Attorney General, or upon allegation and proof of intervening
facts, relating to the amount of the claim.
History: 1967, PL
10-1.
Case
Notes:
Discretionary function exemption designed for
policy decisions. K.MJ.D.C. v. Marine Railway, A5R (1979).
Section does not constitute waiver of sovereign immunity from suit allowing right of action against territorial government under federal civil rights statutes, Ferstie v. A.S.G., 4 A.S.R. 2d 160 (1987)(mern).
The sum-certain requirement for administrative claims filed against ASG is both statutorily and administratively an integral part of the jurisdictional administrative-claim process. A.S.C.A. § 43.1203(c); A.S.A.C. § 43.0103(a). Bryant v. Southwest Marine of Samoa, Inc., 23 A.S.R.2d 55 (1992).
Government
Tort Liability Act does not constitute waiver of immunity from suit so as to
give right of action against territorial government under federal civil rights
law. A.S.C.A. § 43.1203 et seq.; 42
U.S.C. § 1983. Ferstle v.
In a civil
action for personal injury caused by the negligent or wrongful act or omission
of a government employee acting within the scope of his office or employment,
the government is liable in the same manner and to the same extent as a private
individual under like circumstances, subject to a number of specific
exceptions. A.S.C.A. § 43.1203(a).
Tauiliili v.
Complaint
alleging facts which could, if proved at trial, warrant statutory remedy would
not be dismissed for failure to state a claim, despite alternative possibility
that case could prove to be within exception to statutory remedy. T.C.R.C.P. Rule 12(b)(6); A.S.C.A. §
43.1203(b)(5). Tevaseu v.
43.1204 Statute of limitations.
A tort
claim against the government shall be forever barred unless an action on it is
begun within 2 years after the claim accrues.
History: 1967, PL 10-1.
Case Notes:
Tort Liability
Act provides that no tort action may be instituted against ASG unless the
claimant has first presented the claim in writing to the Attorney General, and
the claim has been finally denied by the Attorney General. A.S.C.A. § 43.1204. Randall v.
A prospective
plaintiff's "claim" under the Government Tort Liability Act does not
accrue, and therefore the two-year limitation period does not begin to run,
until after the claim has been finally denied by the Attorney General. A.S.C.A. §§ 43.1204-43.1205. Randall v.
When plaintiff is statutorily required to file an administrative claim with the attorney general before he may sue the government, the filing of such a claim begins an action and tolls the statute of limitations. A.S.C.A. § 43.1204. Mataipule v. Tifaimoana Partnerships, Ltd., 16 A.S.R.2d 48 (1990).
Because an
injured person cannot sue until he has exhausted his administrative remedy, the
Government The right to sue under the Government Tort Liability Act is
absolutely barred by failure to bring an administrative claim within a two-year
period from the date of injury, and the Attorney General has a reasonable time
in which to review such claim. A.S.C.A.
§§ 43.1204-43.1205. Randall v.
An action
under the Government Tort Liability Act is subject to dismissal when the
statute of limitations has run or when administrative remedies have not been
exhausted. A.S.C.A. §§ 43.1204-43.1205;
T.C.R.C.P. 12(b). Randall v.
Where statute
provides that minor has one year after termination of minority to commence any
action regardless of any otherwise applicable limitation period, an action
brought within this one year period is not barred by two year statute of
limitations on tort actions against the government. A.S.C.A. §§ 43.0126, 43.1204. Lutu v.
Under statute providing that minors shall have one year after the termination of their disability to commence any action, a claim by a minor against the government is not barred so long as action is begun within one year after attainment of majority or appointment of a guardian ad litem, notwithstanding the two-year statute of limitations otherwise applicable to actions against the government. A.S.C.A. §§ 43.0126, 43.1204. Utu v. National Pacific Insurance Co., 9 A.S.R.2d 88 (1988).
Government Tort Liability Act requires a tort claim against the government to be filed within two years after the claim accrues. A.S.C.A. § 43.1204. Mataipule v. Tifaimoana Partnerships, Ltd., 16 A.S.R.2d 48 (1990).
Under the
statute of limitations applicable to the Government Tort Liability Act, the
High Court has construed the term "claim" as being synonymous with
"cause of action." A.S.C.A. §
43.1204. Randall v.
Under the
Government Tort Liability Act, injured persons may bring suit within two years
from the date of injury (or, in certain cases, of knowledge thereof). A.S.C.A. § 43.1204. Randall v.
An action
under the Government Tort Liability Act is subject to dismissal when the
statute of limitations has run or when administrative remedies have not been
exhausted. A.S.C.A. §§ 43.1204-43.1205;
T.C.R.C.P. 12(b). Randall v.
ASG waived the
statute of limitations applicable to the Government Tort Liability Act when it
did the following: filed an answer which affirmatively admitted that the Court
had jurisdiction over the parties and the subject matter; vigorously litigated
the merits of the action for several years; required the defendant to undergo
a deposition and to answer numerous interrogatories, requests for production of
documents, and requests for admissions; sought and obtained affirmative relief
from the Court by filing what amounted to a mandatory counterclaim, a
permissive counterclaim, and another permissive counterclaim on behalf of a
wholly-owned entity; and effectively reduced one of these claims to a
substantial judgment. A.S.C.A. §
43.1204. Randall v.
The two-year
statute of limitations applicable to the Government Tort Liability Act is not a
jurisdictional prerequisite but is a statute of limitations, an affirmative
defense which is waived if not affirmatively pled by the defendant. A.S.C.A. § 43.1204. Randall v.
Unlike its
quite differently phrased and structured counterpart in the Federal Tort Claims
Act, the statute of limitations applicable to
In the absence
of any evidence that the Fono meant the two-year limitation on tort actions
against ASG to be construed and applied differently than the similar two-year
limitation on tort actions against private persons, the High Court will not
conclude that the Fono intended or would have intended the "harsh
result" of depriving litigants against the Government of the benefit of
the traditional rule that a party entitled to plead the statute of limitations
can waive the statute by not pleading it as an affirmative defense and by
proceeding to litigate the suit on its merits.
A.S.C.A. § 43.1204. Randall v.
Prejudice to
the plaintiff resulting from ASG's failure to plead in its answer the statute
of limitations applicable to the Government Tort Liability Act should be
evaluated as of the time that the defendant finally asserted the statute, not
when plaintiff failed to plead the statute as a defense and could not have
cured the defect in his action by filing a new complaint. A.S.C.A. § 43.1204. Randall v.
When the
defense that the complaint was not filed within the Government Tort Liability
Act's statute of limitations was not available at the time ASG filed its
answer, failure to plead this defense did not amount to a waiver of the statute
of limitations with respect to any future amendment of the complaint. A.S.C.A. § 43.1204. Randall v.
Even though
the failure to plead in its answer the statute of limitations applicable to the
Government Tort Liability Act could not be characterized as a waiver with
respect to any future amendment of the complaint, ASG was estoppel from raising
the statute of limitations with respect to an amended complaint when the same
combination of defenses raised in its motion to dismiss could have been raised
in its answer to the original complaint five years earlier, but the government
instead vigorously litigated on the merits for several years and also sought
affirmative relief from plaintiff by way of counterclaims and
cross-claims. A.S.C.A. § 43.1204. Randall v.
When plaintiff is statutorily required to file an administrative claim with the attorney general before he may sue the government, the filing of such a claim begins an action and tolls the statute of limitations. A.S.C.A. § 43.1204. Mataipule v. Tifaimoana Partnerships, Ltd., 16 A.S.R.2d 48 (1990).
43.1205 Prerequisite
adminstrative remedy.
(a) An action may not be instituted upon a claim
against the government for money damages for damage to or loss of property, or
personal injury or death, caused by the negligent or wrongful act or omission
of any employee of the government while acting within the scope of his office
or employment unless the claimant has first presented the claim to the Attorney
General and his claim has been finally denied by the Attorney General in
writing, notice of the denial sent to claimant by certified or registered mail.
The failure of the Attorney General to make a final disposition of a claim
within 3 months after it is filed shall, at the option of the claimant any
time thereafter, be deemed a final denial of the claim for the purposes of this
section.
(b) The Attorney General shall, in accordance
with regulations prescribed by the Governor, consider and determine,
compromise or settle any claim for money damages against the government for
damage to or loss of property, or personal injury or death, caused by the negligent
or wrongful act or omission of any employee of a government agency while
acting within the scope of his office or employment, under circumstances where
the government, if a private person, would be liable to the claimant in
accordance with the law of the place where the act or omission occurred.
History: 1967, PL 10-1; amd
1985, PL 19-11 § 1.
Amendments: 1985 Added “a”;
replaced “6” with “3”
Case
Notes:
Prerequisite to tort liability action against the
government of American 5amoa is presentation of claim to Attorney General, in
re Faoato v. Government of American Samoa ASR (1979).
Complaint when filed was jurisdictionally
deficient for failure to file with Attorney General which is mandatory.
Although later filed with Attorney General, complaint was never amended
therefore must be dismissed. Gobrait v. American Hotels, inc., A5R (1978).
Requirement for sum certain in suit against
government is mandatory under Government Tort Liability Act: action dismissed
with prejudice for failure to state a sum certain in the claim. Kelemete
Moananu v. A.S.G. et. al.
Under statute requiring plaintiff to file an administrative claim before bringing action against the government, administrative claim by mother that she and her family had suffered damages adequately notified the government of the claims of her minor children, so that suit by minors should not be dismissed for failure to exhaust administrative remedies. A.S.C.A. § 43.1205(a). Utu v. National Pacific Insurance Co., 9 A.S.R.2d 88 (1988).
For a trial court to have subject matter jurisdiction over actions arising under the Government Tort Liability Act, an administrative claim must first be made and either denied or ignored for three months. A.S.C.A. § 43.1205(a). Mataipule v. Tifaimoana Partnership, Ltd. (Mem), 14 A.S.R.2d 100 (1990).
A prospective
plaintiff's "claim" under the Government Tort Liability Act does not
accrue, and therefore the two-year limitation period does not begin to run, until
after the claim has been finally denied by the Attorney General. A.S.C.A. §§ 43.1204-43.1205. Randall v.
The right to
sue under the Government Tort Liability Act is absolutely barred by failure to
bring an administrative claim within a two-year period from the date of injury,
and the Attorney General has a reasonable time in which to review such
claim. A.S.C.A. §§ 43.1204-43.1205. Randall v.
An action
under the Government Tort Liability Act is subject to dismissal when the
statute of limitations has run or when administrative remedies have not been
exhausted. A.S.C.A. §§ 43.1204-43.1205;
T.C.R.C.P. 12(b). Randall v.
The requirement of filing an administrative claim before filing suit under the Government Tort Liability Act is jurisdictional. A.S.C.A. § 43.1205. Bryant v. Southwest Marine of Samoa, Inc., 22 A.S.R.2d 23 (1992).
Although based on the Federal Tort Liability Act, the territorial Government Tort Liability Act does not contain the former's exception for third-party complaints from the requirement that an administrative-claim is a prerequisite to filing suit. 28 U.S.C. § 2675; A.S.C.A. § 43.1205. Bryant v. Southwest Marine of Samoa, Inc., 22 A.S.R.2d 23 (1992).
Though modeled on the Federal Tort Claims Act, as amended in 1966, the territorial Government Tort Liability Act does not contain the F.T.C.A.'s exception from the administrative-claim prerequisite for a cause of action asserted by third-party complaint, cross-claim, or counterclaim. 28 U.S.C. § 2675(a); A.S.C.A. § 43.1205(a). Bryant v. Southwest Marine of Samoa, Inc., 22 A.S.R.2d 88 (1992).
Claims against
the American Samoa Government for personal injury or property damage must be
administratively submitted under the Government Tort Claims Act to the Attorney
General for resolution before judicial action is instituted. A.S.C.A. § 43.1205. Crispin v.
A prospective
plaintiff's "claim" under the Government Tort Liability Act does not
accrue, and therefore the two-year limitation period does not begin to run,
until after the claim has been finally denied by the Attorney General. A.S.C.A. §§ 43.1204-43.1205. Randall v.
43.1206 Administrative
decision conclusive upon government.
Subject
to the provisions of this chapter relating to civil actions on tort claims
against the government, any award, compromise, settlement or determination by
the Attorney General shall be final and conclusive on all officers of the
government, except when procured by means of fraud.
History: 1967, PL 10-1.
Case Notes:
Although the Attorney General's decision on an administrative claim is final and conclusively binding on all ASG officers, except when procured by fraud, his action cannot result in a waiver or estoppel preventing ASG from raising a jurisdictional issue at any stage of future litigation. A.S.C.A. § 43.1206. Bryant v. Southwest Marine of Samoa, Inc., 23 A.S.R.2d 55 (1992).
43.1207 Bar to suit against
government employee.
The
judgment in an action, or the payment of a claim by the Attorney General, under
this chapter shall constitute a complete bar to any action by the claimant, by
reason of the same subject matter, against the employee of the government
whose act or omission gave rise to the claim.
History: 1967, PL 10-1.
Case Notes:
Statute
providing that a judgment against or payment of a claim by the territorial
government bars an action by the claimant against the responsible employee
merely proscribes double recovery for a single harm, not suit against the
individual government employee in the first instance. A.S.C.A. § 43.1207 Tevaseu v.
Statute
providing that judgment against government precludes later claim against
government employee based on same event does not bar suit against employee
prior to judgment against government.
A.S.C.A. § 43.1207. Lutu v.
.
43.1208 Administrative
disposition not evidence of liability or damages.
Disposition
of any claim by the Attorney General is not competent evidence of liability or
amount of damages.
History: 1967, PL 10-1.
43.1209
Jurisdiction
over actions.
(a) The Trial Division of the High Court shall
have exclusive jurisdiction of civil actions on claims against the government
accruing on or after the effective date of this chapter, for money damages, for
damage to or loss of property, or personal injury or death caused by the
negligent or wrongful act or omission of any employee of the government while
acting within the scope of his office or employment, under circumstances where
the government, if a private person, would be liable to the claimant in accordance
with the law of the place where the act or omission occurred.
(b) The jurisdiction conferred by this section
includes jurisdiction of any setoff, counterclaim or other claim or demand
whatever on the part of the government against any plaintiff commencing an
action under this section.
History: 1967, PL 10-1.
Case Notes:
Court has
jurisdiction over civil actions against the government for personal injury
caused by the negligent or wrongful act or omission of a government employee
acting within the scope of his office or employment. A.S.C.A. § 43.1209. Tauiliili v.
43.1210 Settlement of
actions.
The
Attorney General or his designee may arbitrate, compromise or settle any claim
cognizable under this chapter, after the commencement of an action thereon.
History: 1967, PL 10-1.
43.1211 Action against
government exclusive remedy-Defense and settlement of other actions.
(a) The remedy by suit against the government as
provided by this chapter for damage to or loss of property, or personal injury
or death caused by the negligent or wrongful act or omission of any employee
of the government while acting within the scope of his office or employment,
shall hereafter be exclusive of any other civil action or proceeding by reason
of the same subject matter against the employee whose act or omission gave rise
to the claim, or his estate.
(b) The Attorney General shall defend any civil
action or proceeding brought in
(c) The Attorney General may compromise or settle
any claim asserted in such civil action or proceeding in the manner provided in
43.1210 and with the same effect.
History: 1967, PL 10-1.
Case
Notes:
Court granted motion to strike named defendants
Territorial
statute has the effect of immunizing territorial employees from personal
liability for torts they commit while acting within the scope of their
employment, provided that the injured person chooses to proceed against the
government employer. A.S.C.A. §
43.1211(a). Tevaseu v.
Individual
government employee should not be stricken as defendant in a suit against
territorial government under government tort liability statute unless and until
it is shown that the employee was acting within the scope of his employment at
the time of the alleged injury. A.S.C.A.
§ 43.1211(a). Tevaseu v.
Statute
immunizing government employees from personal liability for wrongful acts
committed within the scope of their employment bars suit against employee only
after it has been established that the wrongful conduct underlying the claim
was committed within the scope of employment.
A.S.C.A. § 43.1211(a). Lutu v.
43.1212 Payment of judgment
or settled claim.
(a) When the Attorney General has allowed or
settled a claim against the government under the provisions of this chapter,
the Treasurer shall pay any such claim or judgment which does not exceed the
sum of $25,000 in connection with any claim or judgment for personal injury or
death, or which does not exceed the sum of $5,000 in connection with any claim
or judgment for damage to or loss of property. The Treasurer shall pay any
judgment against the government immediately from the fund created herein. Payment shall be made from a fund which
shall be appropriated by the Legislature each fiscal year in the amount of no
less than $100,000 for the payment of awards, compromises, settlements or judgments
under this chapter. The said amount
shall be submitted for appropriations under the budget of the department of
legal affairs.
(b) When the fund authorized in subsection (a)
above is exhausted the attorney general shall forward legislation to
the Legislature at its next regular or special session to appropriate funds for
the payment of the settled claims or judgments in excess of the funds. The
Treasurer is authorized to pay a claim or judgment up to such amount as may be
appropriated therefor by the Legislature.
(c) If any claim is allowed, settlement made or
judgment rendered in excess of the amount for which payment is authorized by
subsection (a), the Governor shall forward legislation appropriating funds for
the payment of such amount to the Legislature, at its next regular session,
for action. The Treasurer is authorized to pay such amount as may be
appropriated there-for by the Legislature.
History: 1967, PL 10-1;and 1979, PL 16-46 § 1: 1995 PL
24-10.
Amendments: 1979
subsection (a): raised dollar amounts of personal injury from $10,000 to
$15,000 and loss of property from $2,000 to $5,000.
43.1213 Attorney fees.
No
attorney may charge, demand, receive or collect for services rendered, fees in
excess of 25 percent of any judgment rendered pursuant to this chapter, or in
excess of 20 percent of any award, compromise, or settlement made by the
Attorney General pursuant to this chapter.
History: 1967,PL 10-1.
Case Notes:
Where attorney
had failed to represent one of his four clients, a minor child, and had failed
to advise his other clients of their fiduciary obligations to the child, court
charged with settlements involving minors would not approve an attorney's fee
in the maximum amount permitted by law but would require a reduction in the
fee. A.S.C.A. § 43.1213. Galo v.
43.1230 Liability of
government-Exceptions
(a) The
liability provisions of this chapter shall not be applied to allow for any
claim arising out of or based upon any failure of or error produced,
calculated, or generated by a government computer system as a result of the
system not being Y-2K compliant, regardless of the cause for the system not
being Y-2K compliant.
(b) Nothing in this chapter shall be deemed to provide immunity or
release from liability to any person who:
(1) Deliberately
tampers with a government computer system for the purpose of preventing it from
being Y-2K complaint; causing the system to produce, calculate, or generate a
Y-2K error; provided, however, that the immunity or release from liability
shall remain where the Y-2K error arises out of to a test performed to
determine whether a government computer system will produce, calculate, or
generate a Y-2K error; or
(2) receives and fails to immediately return a benefit which the
person is not legally entitled to arising out of or based upon any failure of
or error produced, calculated, or generated by a government computer system as
a result of the system’s not being Y-2K complaint, which benefit was provided
to the person as a result of a Y-2K error produced, calculated, or generated by
a government computer system.
History: 1999, PL 26-14.
43.1231 Immunity Against
Suits.
No action, including, without
limitation, any action for declaratory or injunctive relief, may be brought
against the American Samoa Government or a government employee, arising out of
or based upon any failure of or error produced, calculated, or generated by a
government computer system as a result of the system’s not being Y-2K compliant,
regardless of the cause for the system’s not being Y-2K compliant.
History: 1999, PL 26-14.
43.1232 Preventive and
remedial measures.
Nothing in this chapter shall
be deemed to prevent the American Samoa Government, an agency, a board, or a
government employee, from taking steps to prevent or remedy any failure of or a
Y-2K error produced, calculated, or generated by a government computer system
as a result of the system’s not being Y-2K compliant, once the failure or error
has been verified.
History: 1999, PL 26-14.
43.1233 Effect on
insurance.
Nothing in this act is
intended to affect the indemnity and defense coverage rights and obligations
under any contract of insurance.
History: 1999, PL 26-14.
43.1234 Severability.
If any provision of this act,
or the application thereof to any person or circumstance is held invalid, the
invalidity does not affect other provisions or applications of the act which
can be given effect without the invalid provision or application, and to this
end the provisions of this act are severable.
History: 1999, PL 26-14.
43.1235 Preemption.
If any portion of this act is
found to be preempted by federal law or regulation, the remainder shall remain
in full force and effect to the fullest extent consistent with the preemption.
History: 1999, PL 26-14.
Chapter 13
INJUNCTIONS
Sections:
43.1301 Definitions.
43.1302 Issuance of permanent injunction.
43.1303 Issuance of preliminary injunction.
43.1304 Issuance
of temporary restraining order.
43.1305 Time
for hearing on preliminary injunction.
43.1306 Modification
and termination of injunctions.
43.1307 Form
and scope of injunction.
43.1308 Transmission
to law enforcement agencies.
43.1309 Undertaking-Justification
of sureties-Termination of injunction for insufficient sureties.
43.1310 Injunction after answer.
43.1311 Costs and fees.
43.1312 Effect on other laws.
43.1313 Failure to comply.
43.1301 Definitions.
As used in this chapter, the
following definitions apply:
(a) “Applicant” means the entity or entities
requesting the court’s issuance of an injunction in their favor.
(b) “Entity” means an
individual, group of individuals, joint venture, partnership, corporation,
trust, or other group, association, or thing cognizable under law.
(c) “lnjunction” means a court order which
commands a party to take, conduct or effectuate, or prohibits a party from
taking, conducting, or effectuating, specific action or activity.
(d) “Opposing party” means the entity or entities
who have been or are requested to be enjoined.
(e) “Party” An entity which may sue or be sued in
the court issuing the injunction is a party, if that entity is subject to the
personal jurisdiction of that court at the time the injunction is served upon
that entity, regardless of whether prior to the issuance of the injunction,
that entity has been served with summons, or complaint, or otherwise notified
of a potential or pending action.
(f) “Permanent injunction” means an injunction
issued only after a full and final trial on the merits. A permanent injunction
is in force and effect during the time period specified by the court at the
time of issuance, or if no time period is specified then continuously until terminated
by court order.
(g) “Preliminary injunction” means an injunction
issued only after a noticed hearing in a court of competent jurisdiction on
whether there is sufficient grounds for its issuance. A preliminary injunction
is in force and effect continuously until such time as:
(1) the court issuing the preliminary injunction,
or a superior court by court order, terminates the preliminary injunction; or
(2) a court of competent jurisdiction issues a
permanent injunction in the same case in which the preliminary injunction was
issued; or
(3) a court of competent jurisdiction, after a
full and final trial on the merits, determines that a permanent injunction
should not issue against the opposing party.
(h) “Sa ‘o” means head matai or ulu of a Samoan
family, for the purpose of this act, the traditionally recognized and
registered sa’o or head matai in a Samoan family in
(i) “Samoan family” for the purpose of this act,
means a unit of Samoan people bound together by tradition and blood heritage
including blood relationship to the head matai title or sa’o of said family in
American Samoa.
(j) “Sufficient grounds for the issuance of a
preliminary injunction” means:
(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.
(k) “Sufficient grounds for the issuance of a
temporary restraining order” means:
(1) there is a substantial likelihood that the
applicant will prevail at the hearing for a preliminary injunction;
(2) great or irreparable injury will result to the
applicant before a hearing can be reasonably held on whether a preliminary
injunction should issue; and
(3) the applicant:
(A) has informed the opposing party, or his
attorney of the place and time the application for a temporary restraining
order is to be made;
(B) has, in good faith, attempted to inform the
opposing party, or his attorney of the place and time the application for a
temporary rest raining order is to be made; or
(C) will probably incur substantial irreparable
injury, loss, or damage, if required, prior to the issuance of the temporary
restraining order, to inform the opposing party of the place and time the
application is to be made.
(1) “Temporary restraining order” means an
injunction prohibiting a party from taking, conducting, or effectuating,
specific action or activity, issued after a court of competent jurisdiction
determines that there is sufficient grounds for its issuance. A temporary
restraining order is in force and effect only from the time of service upon the
opposing party until:
(1) a court of competent jurisdiction issues a
preliminary injunction embracing the subject action or activity;
(2) a court of competent jurisdiction, after
hearing on whether a preliminary injunction should issue, determines that a
preliminary injunction, embracing the subject action or activity should not
issue; or
(3) 15 days from the date of issuance elapses,
except that:
(A) the 15-day limitation may be extended by court
order up to a total of 20 days upon a finding of good cause for that extension;
(B) the 15-day limitation may be extended as to an
opposing party that stipulates, up to the end of the period to which
stipulated, by and as to that opposing party.
History: 1981, PL 17-6.
Case Notes:
Subsection (j)(2): Irreparable injury
demonstrated when injury is to traditional decision making process of Samoan
family in land dispute. Talili v.
Momosca, 3 A.S.R.2d 36(1986).
Plaintiff established sufficient grounds and was granted a preliminary injunction enjoining defendant from interfering with attempts to repair damage to plaintiff's home, where plaintiff's claim to reside on family lands was based on the fact that the matai and family had permitted her to use and occupy the homesite for ten years, while defendant's claim was based on the more tenuous ground that her immediate family exclusively owned the communal land in issue. A.S.C.A. §§ 43.1301(g),(j). Uli v. Talaeai, 16 A.S.R.2d 14 (1990).
Preliminary injunction was granted where plaintiff showed he was likely to prevail on the merits at trial and would suffer great injury before then if defendant was not enjoined from continuing construction of a house on land whose ownership was disputed. A.S.C.A. § 43.1301(j). Utu v. Paolo, 16 A.S.R.2d 113 (1990).
Sufficient grounds for issuing a preliminary injunction requires showing (1) a substantial likelihood that the applicant will prevail at the trial on the merits and that a permanent injunction will be issued; and (2) great or irreparable injury to the applicant before a full and final trial can be held regarding a permanent injunction. A.S.C.A. § 43.1301(j). Lefiti v. Tauanu'u, 24 A.S.R.2d 68 (1993).
A party seeking a preliminary injunction bears the burden of showing that great or irreparable injury will occur before a full and final trial can be held on whether a permanent injunction should issue. A.S.C.A. § 43.1301(j)(2). Timu v. McMoore, 24 A.S.R.2d 84 (1993).
Where plaintiff family member admitted that he had other living quarters, refusal of court to issue a preliminary injunction forbidding senior matai of family to interfere with ongoing construction on family land would not be likely to cause irreparable injury. A.S.C.A. § 43.1301(j). Mailo v. Nua, 5 A.S.R.2d 59 (1987).
Preliminary injunction may issue only if petitioner shows "sufficient grounds" after a hearing inter parties duly noticed. A.S.C.A. § 43.1301(g). Gaoa v. Tulifua, 13 A.S.R.2d 30 (1989).
To have sufficient grounds for issuing a preliminary injunction, a court must find that petitioner has a substantial likelihood of prevailing on the merits at trial and without such injunction will suffer great or irreparable injury before a full trial. A.S.C.A. § 43.1301(j). Gaoa v. Tulifua, 13 A.S.R.2d 30 (1989).
Indignity and sense of hurt felt by petitioners with respect to respondents' construction on disputed land was not "irreparable injury" within meaning of the preliminary injunction statute. A.S.C.A. § 43.1301(j). Gaoa v. Tulifua, 13 A.S.R.2d 30 (1989).
Sufficient grounds for issuing a preliminary injunction consist of (1) a substantial likelihood that the applicants will prevail at trial on the merits, and (2) great or irreparable harm to the applicant. A.S.C.A. § 43.1301(j). Talauega v. Mulipola, 22 A.S.R.2d 7 (1992).
Plaintiff established sufficient grounds and was granted a preliminary injunction enjoining defendant from interfering with attempts to repair damage to plaintiff's home, where plaintiff's claim to reside on family lands was based on the fact that the matai and family had permitted her to use and occupy the homesite for ten years, while defendant's claim was based on the more tenuous ground that her immediate family exclusively owned the communal land in issue. A.S.C.A. §§ 43.1301(g),(j). Uli v. Talaeai, 16 A.S.R.2d 14 (1990).
Where plaintiff family member admitted that he had other living quarters, refusal of court to issue a preliminary injunction forbidding senior matai of family to interfere with ongoing construction on family land would not be likely to cause irreparable injury. A.S.C.A. § 43.1301(j). Mailo v. Nua, 5 A.S.R. 2d 59 (1987).
To issue a preliminary injunction a court must find that the applicant has a substantial likelihood of prevailing on the merits at trial, and without such injunction will suffer great injury before a full trial. A.S.C.A. § 43.1301(j)(1)-(2). Leaana v. Laban (Mem.), 12 A.S.R.2d 93 (1989).
43.1302 Issuance of
permanent injunction.
A
permanent injunction may be issued by a court having subject matter
jurisdiction of the case and personal jurisdiction of the opposing party only
after a full and final trial on the merits of the applicant’s claim and
determination that a judgment for money damages will inadequately remedy the
complained of wrong.
History: 1981, PL 17-6.
Case Notes:
The High Court possesses the statutory authority to issue an injunction if it deems money damages to be an inadequate remedy; as such, it may order a special shareholders' meeting if a board of directors, though lacking any discretion in the matter, fails to call a meeting. A.S.C.A. § 43.1302. Lutali v. Foster, 24 A.S.R.2d 39 (1993).
Actual physical interference with the use and enjoyment of another's land constitutes the most common type of nuisance and is subject to the issuance of a permanent injunction. A.S.C.A. § 43.1302. Thompson v. Toluao, 24 A.S.R.2d 127 (1993).
As an equitable remedy, the most distinguishing prerequisite of permanent injunctive relief is the inadequacy of a remedy at law, usually money damages. A.S.C.A. § 43.1302. Thompson v. Toluao, 24 A.S.R.2d 127 (1993).
43.1303 Issuance of
preliminary injunction.
(a) A
preliminary injunction may be issued by a court having subject matter
jurisdiction of the case and personal jurisdiction of the opposing party only
after:
(1) there has been a hearing in which sufficient
grounds for the issuance of a preliminary injunction has been established by a
preponderance of the evidence adduced; and
(2) at least 48 hours prior to the hearing on the
preliminary injunction, the applicant has filed with the court, and the
opposing party, or his attorney has been served with a copy of the following
documents:
(A) notice of the place and time the hearing is to
take place;
(B) application for a preliminary injunction;
(C) order to show cause why a preliminary injunction
should not issue;
(D) complaint praying for a permanent injunction;
(E) proposed permanent injunctive order and
preliminary injunctive order;
(F) affidavits submitted in support of preliminary
injunction; and
(G) memorandum of points and authorities of law in
support of preliminary injunction.
(b) The opposing party may waive any or all of the
requirements for issuance of a preliminary injunction as provided for in this
section. Failure to object prior to and at, the noticed preliminary injunction
hearing constitutes a waiver. A waiver of a requirement by an opposing party
does not constitute a waiver of any other requirement, nor constitute a waiver
by any other opposing party.
History: 1981, PL 17-6.
43.1304 Issuance of
temporary restraining order.
A
temporary restraining order may be issued by a court having subject matter
jurisdiction of the case if sufficient grounds for the issuance of a temporary
restraining order have been established by way of affidavit, verified complaint,
testimony under oath or other competent evidence.
History: 1981, PL17-6.
43.1305 Time for hearing on
preliminary injunction.
(a) Whenever a
temporary restraining order is issued without notice to the opposing party,
hearing on whether a preliminary injunction should issue shall be conducted on
the earliest day that the business of the court will reasonably permit not to
exceed 10 days, unless time is extended upon a finding of good cause for such
extension after the opposing party has received notice of the proposed extension.
(b) Whenever an opposing party requests a
continuance of the hearing on a preliminary injunction, upon notice to all
interested parties, a reasonable continuance shall be freely granted, provided:
(1) if a temporary restraining order has been
issued, then the party requesting the continuance stipulates that the
temporary restraining order may remain effective until the ruling on the
preliminary injunction; and
(2) if an opposing party, upon notice of a
requested continuance by another opposing party, objects to the continuance,
then the court may, upon balancing the relative interests of all parties, grant
or deny a continuance.
(c) Notice of a continuance request by an opposing
party may be oral or in writing to a party, or his attorney, and may be
contemporaneously made with the continuance request.
(d) Hearing on whether a preliminary injunction
should issue takes precedence over all other matters on the calendar day,
except older matters of the same character, and matters to which special precedence
may be given by law.
History: 1981, PL 17-6.
43.1306 Modification and
termination of injunctions.
(a) Upon notice
and hearing, or on its own initiative, the court which issued an injunction, or
a superior court, may modify an injunction upon terms that are fair. The
modification is effective immediately upon its issuance; however, the
modification is not effective against an opposing party until that opposing
party, or his attorney, has notice of, or has been served with, the
modification.
(b) An injunction is terminated upon the request
of the applicant in whose favor the injunction issued.
History: 1981, PL 17-6.
43.1307 Form and scope of
injunction.