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TUILEPA TUILEATA (TELESIA) FIAME and PALE FE`A (for the TUILEATA FAMILY),v.TUIOLEMOTU FAMILY and DOES I through X

 

TUILEPA TUILEATA (TELESIA) FIAME and
PALE FE`A (for the TUILEATA FAMILY), Plaintiffs,
v.
TUIOLEMOTU FAMILY and DOES I through X, Defendants.
322
High Court of American Samoa
Land and Titles Division
LT No. 11-02
March 27, 2002

 

[1] When the sa`o’s position is vacant, an action for injunctive relief
concerning communal land must be brought by at least two blood male
matai members of the family, over age 18, or if the family does not have
such members, by at least two blood members, over age 18.
[2] The Secretary of Samoan Affairs must issue a certificate of
irreconcilable dispute, following at least two appearances by the parties
for dispute resolution proceedings, before the High Court has jurisdiction
to judicially determine an action relating to a controversy over
communal land.
[3] Where party on contested activities on disputed communal land,
Court could issue interim order, including preliminary injunction, and
stay further proceedings despite the fact that jurisdictional certificate of
irreconcilable dispute had not yet been issued.
[4] If a preliminary injunction applicant demonstrates a legitimate issue
to litigate with more deliberate consideration, the criterion of likely
success on the merits at trial is sufficiently met.
Before RICHMOND, Associate Justice, LOGOAI, Chief Associate
Judge, and MAMEA, Associate Judge.
Counsel: For Plaintiffs, Jeffrey Waller
For Defendants, Aitofele Sunia
PRELIMINARY INJUNCTION
On March 19, 2002, plaintiffs Tuilepa Tuileata (Telesia) Faime and Pale
Fe`a for the Tuileata family (“Tuileata family”)1 filed this action to
enjoin defendant Tuiolemotu Family (“Tuiolemotu family”) from
1 The third named plaintiff in the complaint, Fe`afe`aga Tauama II,
advised the court, through the Tuileata Family’s counsel, at the
beginning of the order to show cause hearing on March 26, 2002, that he
was withdrawing from this action.
323
excavation, construction, or work of any kind on, and from other uses of,
land owned by the Tuileata family, known as Olovalu, in the Village of
Malaeloa. The Court denied the Tuileata family’s application for a
temporary restraining order, but we issued an order to show cause for a
hearing the family’s request for a preliminary injunction. The hearing
was held on March 26, 2002. Both counsel were present.
[1] In this action, the Tuileata family seeks injunctive relief in a
controversy involving communal land claimed by both the Tuileata
family and the Tuiolemotu family. Presently, neither family has a sa`o
in office. When the sa`o’s position is vacant, an action for injunctive
relief concerning communal land must, under A.S.C.A. § 43.1309(b), be
brought by at least two blood male matai members of the family, over
age 18, or if the family does not have such members, by at least two
blood members, over age 18. Apparently, the two named plaintiffs
qualify to bring this action under the last alternative, but it is not entirely
clear that the Tuileata family lacks at least two adult blood male matai
members. The Tuiolemotu family did not, however, challenge
compliance with the qualification statute, and for present purposes at
least, we accept the named plaintiffs’ qualifications. Though not free of
doubt, we find the named plaintiffs qualified for immediate purposes in
the absence of definitive contrary evidence.
[2-3] In addition, pursuant to A.S.C.A. § 43.0302, the Secretary of
Samoan Affairs must issue a certificate of irreconcilable dispute,
following at least two appearances by the parties for dispute resolution
proceedings, before this Court has jurisdiction to judicially determine the
dispute. At the time the complaint was filed, one appearance had taken
place, but the second meeting had not yet been scheduled. Resolution
was not achieved at the first meeting before the Secretary, and when the
Tuiolemotu family continued to carry on the activities at issue on the
land, the Tuileata family brought this action. In accordance with
A.S.C.A. § 43.0304, we can, under these circumstances, issue an interim
order, such as a preliminary injunction, when such action is appropriate,
but stay further proceedings unrelated to the necessary interim action
until the jurisdictional certificate of irreconcilable dispute is issued.
Tupua v. Faleafine, 5 A.S.R.2d 131, 133 (Land & Titles Div. 1986).
The Tuiolemotu family’s immediate activates, particularly the cinder
excavation, are resulting in irreparable injury to the land before a trial
can be fairly held on whether a permanent injunction should issue. The
Tuiolemotu family does not contest this fact. Thus, one of the two
criteria forming the basis for a preliminary injunction is met. A.S.C.A. §
43.1301(j) (2).
324
The second criterion, a substantial likelihood that the Tuileata family
will prevail at trial on the merits, A.S.C.A. § 43.1301(j)(1), is not so
readily apparent. As requested by the parties, however, we have
examined the files of several previous cases before this court concerning
the titles to portions of Olovalu.
The file in Tuileata Family v. Amituana`i, 4 A.S.R.2d 168 (Land &
Titles Div. 1987), aff’d 8 A.S.R.2d 173 (App. Div. 1988), is especially
significant for present purposes. The trial court’s decision in that case
determined the ownership of most of Olovalu. However, in light of
overlapping claimed areas, the decision left the area where the cinder pit
is apparently located open to the parties’ negotiated settlement of their
respective boundaries in this area. There is no follow through regarding
these negotiations of record in the file. Moreover, when comparing the
decision with the surveys on file, both the defining boundaries of
Olovalu as a whole and the exact location and sizes of the awarded
Tuileata and Tuiolemotu family lands are not entirely clear to us.
[4] It appears, therefore, that ownership of the land now at issue is an
open issue, and the Tuileata family has made a sufficient factual showing
a good chance of prevailing on the merits. If a preliminary injunction
applicant demonstrates a legitimate issue to litigate with more deliberate
consideration, the criterion of likely success on the merits at trial is
sufficiently met. Samoa Aviation, Inc. v. Bendall, 28 A.S.R.2d 101, 103-
104 (Trial Div. 1985).
Accordingly, we will issue the following preliminary injunction.
Order
1. During the pendency of this action, the Tuiolemotu family, its family
members, officers, agents, servants, employees, and attorneys, and those
persons in active concert or participation with them are enjoined from all
new construction of any kind and further excavation of cinders or other
natural materials on the portion of Olovalu claimed by the Tuileata
family as its communal land.
2. A hearing is scheduled on April 8, 2002, at 9:00 a.m. for the purpose
of clearly defining the exact land area affected by this preliminary
injunction. The parties shall come to this hearing prepared to show this
area on existing surveys as precisely as is presently possible.
3. Further proceedings in this action, except as may be related to this
order or other necessary interim orders, are stayed pending compliance
with A.S.C.A. § 43.0302 (a).
It is so ordered.