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Masalosalo v. Isumu,

 

MASALOSALO of Nu'uuli, Plaintiff

 

v.

 

ISUMU LEAP AGA of Nu'uuli, Defendant

 

[Land: "Taufusi" near Nu'uuli]

 

High Court of American Samoa

 

Civil Jurisdiction, Trial Division

 

No. 23-1962

 

[See also No.27-1962, Appellate Division, 4 A.S.R. 868]

 

October 19, 1962

 

__________

 

            Petition for injunction restraining defendant from continuing to construct house on family lands of plaintiff and evicting him from lands. Trial Division of the High Court, Chief Justice Morrow, granted injunction and ordered eviction, holding that matai had authority to evict person married into his [4ASR310] family from family lands where land had not been assigned him and where he and his wife had other lands which were assigned to them.

 

              Injunction granted.

 

1. Matai Titles-Powers of Matai-Restraining Order;

 

     Real Property-Power of Matai-Right To Evict Subject to Period of Continued Occupancy

 

In accordance with Samoan custom, matai has pule or jurisdiction over family lands, and where there is no assignment of land to person, then matai is entitled to order restraining such person from constructing house on land and evicting him from land.

 

2. Real Property-Power of Matai-Rights of Family Members-Assignment of Other Land Allows Eviction

 

Person married into family cannot complain of order of matai evicting him from land where he has been assigned other land.

 

__________

 

Heard at Fagatogo on September 27, 1962 before MORROW, Chief Justice, and TAUALA and MALEPEAI, Associate Judges.

 

Masalosalo pro se.

 

Isumu Leapaga pro se.

 

OPINION OF THE COURT

 

MORROW, Chief Justice.

 

            Plaintiff Masalosalo filed his petition seeking an order of the Court restraining defendant Isumu from completing the construction of a house on the land Taufusi near the Village of Nu'uuli and also an order evicting Isumu from Taufusi.

 

            Prior to the hearing the Court viewed the land Taufusi in the presence of both parties.

 

            Taufusi is the communal family land of the Masalosalo Family of which the plaintiff is the matai. The defendant is a married man to the Masalosalo Family, his wife Alao being a blood member of that family.

 

            We are satisfied from the evidence that Masalosalo, the matai, assigned this land Taufusi to Nofo and her children. [4ASR3311] Nofo is a blood member of the Masalosalo Family. She is quite elderly, almost blind and almost deaf. She was a witness. Nofo and her children occupied the land Taufusi pursuant to the assignment by Masalosalo. Her son Polo put up a little palagi house on the land for the use of Nofo and her children. We saw the house when we viewed the land. Polo went to Honolulu. Isumu and his wife are now occupying Taufusi but not through an assignment by the matai. And they are occupying it despite a prior assignment of it to Nofo by the matai.

 

            In 1961, quite some time after Polo went to Honolulu, Isumu's wife beat up the old lady Nofo and Isumu used very vile language toward her (Isumu says it was only a word battle between Nofo and his wife, but we think that the weight of evidence is to the effect that the old lady was actually beaten up). After the beating the old lady Nofo (to whom with her children the matai had assigned Taufusi) left Taufusi, leaving Isumu and his wife in possession. Nofo complained to the matai about the beating. We think she left because of the beating. Isumu and Mao have continued in possession to the present time over the objection of the old lady. Sometime after she was beaten up she went to the district governor with a complaint against Isumu. The district governor apparently ruled that Isumu should vacate Taufusi, which he (Isumu) did not do. The district governor based his ruling, we suppose, upon the ground that Taufusi had been assigned by the matai to Nofo and her children and not to Isumu and his wife.

 

            In accordance with Samoan customs, the matai has the pule over family lands. It should be stated, however, that the ruling of the district governor is in no way binding upon this court in the decision of this case.

 

            Recently the defendant started to put up a new house on Taufusi, the new house almost adjoining the little palagi house built by Polo. We saw this when we viewed Taufusi prior to the hearing. A short time after the house was started the matai filed his petition.

 

            [1] As we have stated, the matai has the pule or jurisdiction over family lands in accordance with Samoan customs. There is no evidence that Masalosalo, the matai, ever expressly assigned Taufusi to Isumu and his wife Mao. The Samoan judges are convinced that any delay on Nofo's part which there might have been in complaining about the occupation of Taufusi by Isumu after the old lady was beaten up did not constitute an assignment by implication, and the writer of this opinion has come to the same conclusion.

 

            There was evidence to the effect that the Masalosalo Family has six lands. Isumu and his wife are already occupying one of them in the Village of Nu'uuli, in addition to Taufusi.

 

            We are of the opinion in the absence of an assignment of Taufusi to Isumu and his wife by the matai that the matai, in view of Samoan customs, which this Court must recognize (Tit. I, Code of Am. Samoa, 1961 Ed. § 1.0102), is entitled to an order restraining the defendant from continuing the construction of his house on Taufusi and also an order evicting the defendant from Taufusi.

 

            [2] We do not think Isumu can complain of this order since he is only a married man to the Masalosalo Family and he and his wife already have Masalosalo Family land in the village assigned to them. They ha ve a house on this last-mentioned land. We are aware that Isumu claimed that chiefs other than Masalosalo claimed to own this land in the village. However, we think that the weight of evidence is to the effect that it is Masalosalo land. [4ASR313]

 

            The evidence indicated that there are only six pieces of Masalosalo land. Nofo wants to go back and occupy Taufusi as she did before she was beaten up, and she should be permitted to do so since that land has been assigned to her by the matai.

 

DECREE

 

            Accordingly, it is ORDERED, ADJUDGED AND DECREED (1) that the defendant Isumu Leapag.a shall discontinue the construction of his house on the land Taufusi and (2) that he shall vacate such land within seven days from the date hereof, which is Oct. 10, 1962.

 

            Costs in the sum of $10.00 are hereby assessed against defendant Isumu Leapaga, the same to be paid within 20 days.

 

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