Talauega v. Mulipola,

TALAUEGA LETUMU, POLAPIITASI FIASEU, and FAIAAI F.
MATA'U, Plaintiffs

v.

SAMOA & JEANETTE MULIPOLA, and AIAVA UA, Defendants

High Court of American Samoa
Land and Titles Division

LT No. 23-92

December 2, 1993

__________

[1] Evidence received prior to trial on a motion for temporary injunction becomes part of the record upon trial on the merits, pursuant to T.C.R.C.P. 65, incorporated by T.C.R.L.T. 5.

Before KRUSE, Chief Justice, and LOGOAI, Associate Judge.

Counsel: For Plaintiff, Togiola T.A. Tulafono
For Defendants, Asaua Fuimaono

Following an evidentiary hearing on July 6, 1992, this court entered an order on July 10, 1992, granting a preliminary injunction enjoining the defendants from any further construction on a certain site. Since that hearing and entry of order, the parties attended, pursuant to A.S.C.A. § 43.0302, the requisite reconciliatory meetings before the Office of Samoan Affairs. The Secretary of Samoan Affairs subsequently certified an irreconcilable dispute, and this matter was then set for trial after due notice to the parties. Trial was originally set for October 15, 1993; the defendants failed to appear, although their counsel did appear and represented to the court that his clients had left the island. The matter was then continued, over the objection of plaintiffs, to November 29, 1993, with the admonition to counsel that there would be no further continuances. On November 29, 1993, plaintiffs appeared with counsel, and defendants again did not. Plaintiffs then moved to submit the matter on the record. After inquiring from the defense if they had any further evidence to offer, and there being none, the court took the matter under submission.

[1] Pursuant to T.C.R.C.P. 65, incorporated by T.C.R.L.T. 5, the evidence earlier received becomes part of the record upon trial on the merits. On the record before us, we adopt and incorporate our earlier [25ASR2d75] findings contained in our order entered July 10, 1992. We conclude on the evidence that the site in question lies within the Fiaseu family's communal land known as "Sopomaleula"; that the site was in the lawful use and occupation by plaintiffs' side of the family; that defendants' attempted, forced ouster of plaintiffs' side of the family was unlawful; and that plaintiffs, as Fiaseu family members, arc entitled to be restored to the site.

Therefore, it is ordered, adjudged, and decreed that defendants, Samoa Mulipola, Jeanette Mulipola, and Aiava Ua, and all those in active concert with them, are hereby permanently enjoined from further construction on the aforementioned site, on which Vai Fiaseu's house was located until it was burnt, and from further interference with plaintiffs' customary rights, as Fiaseu family members, to the enjoyment thereof.

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