Fonoti, Tuioti v.

TUIOTI K. LOKENI, Plaintiff

v.

FONOTI TAFA`IFA, for himself and on behalf of
the FONOTI FAMILY, and THE CONGREGATIONAL
CHRISTIAN CHURCH OF AMERICAN SAMOA and
IERUSALEMAFOU CONGREGATIONAL CHRISTIAN
CHURCH OF AMERICAN SAMOA IN TAFUNA, Defendants.

LT No. 12-93

August 2, 1993

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When the issue of the alienation of a parcel of communal land was improperly referred to the Secretary of Samoan Affairs instead of being the subject of a Land Commission hearing, the action was dismissed as being prematurely before the court.

Before RICHMOND, Associate Justice, TAUANU`U, Chief Associate Judge, and BETHAM, Associate Judge.

Counsel: For Plaintiff, Pro Se
For Defendant The Congregational Christian Church of
American Samoa and Ierusalemafou Congregational Christian
Church of American Samoa in Tafuna, Afoa L. Su`esu`e Lutu
[24ASR2d101]

Order Dismissing Action and Remanding to Territorial Registrar:

A motion to dismiss this action by defendant The Congregational Christian Church of American Samoa and Ierusalamafou Congregational Christian Church of American Samoa in Tafuna ("the church") came regularly for hearing on July 19, 1993. Plaintiff Tuioti K. Lokeni ("Tuioti") appeared pro se. Defendant Fonoti Tafa`ifa ("Fonoti") did not appear.

This is the church's second motion to dismiss on the grounds of Tuioti's failure to prosecute this action. In his notice, dated March 3, 1993, the clerk of courts notified Tuioti that this action would be dismissed if he, as an objector to the land transaction at issue, failed to move forward within 20 days after receiving the notice. The notice was served on March 5, 1993. On May 7, 1993, the first motion was heard and, in view of Tuioti's appearance and expressed intention to participate in this action, was denied. At the same time, Tuioti was afforded 20 additional days to retain counsel and/or file an appropriate pleading.

Tuioti's failure to meet this deadline prompted the church's second motion to dismiss. Although a further extension of time to Tuioti is warranted due to two deaths in his family during May 1993 and his actual but so far unsuccessful efforts to retain counsel, the church correctly pointed out at the second hearing that this controversy is not ripe for judicial determination.

The underlying transaction at issue is the alienation, pursuant to A.S.C.A. §§ 37.0201 et seq., of approximately one acre of a portion of the Fonoti family's communal land, known as "Alatutui," in Tafuna, American Samoa. In a deed of conveyance dated October 29, 1992, Fonoti, as the senior matai ("sa`o") of the family, granted the land to the church. On the same day, the territorial registrar issued a notice of a hearing before the land commission on December 28, 1992, to formulate the commission's recommendation to the Governor on this proposed alienation of communal land, as required under A.S.C.A. § 37.0203.

On December 21, 1992, Tuioti filed his objection to the conveyance with the territorial registrar. Instead of proceeding with the scheduled hearing before the Land Commission, the Acting Territorial [24ASR2d102] Registrar(1) referred the matter on January 7, 1993, to the secretary of Samoan affairs for dispute resolution proceedings under A.S.C.A. § 43.0302. In due course, on February 11, 1993, the acting secretary issued a certificate of irreconcilable dispute, and on February 23, 1993, the acting registrar submitted the matter for judicial determination.

This procedural misdirection effectively converted the issue from one of alienation/document registration to one of title registration, thus circumventing the land commission's recommendation process and depriving the Governor of his authority over approval of the conveyance. Under these circumstances, the issue is prematurely before the court. Thus, this action must be dismissed and remanded to the territorial registrar for proper referral to the land commission and the Governor.

It is so ordered.

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1. Under A.S.C.A. § 37.0202, the territorial registrar is statutorily both a member and the secretary of the land commission.