Ene v. Moega,

ENE TOFILI of Fitiuta, Plaintiff

 

v.

 

MOEGA NU'U and MALIA, Both of Fitiuta, Defendants

 

[Land: "Tuaolo" in Fitiuta]

 

High Court of American Samoa

Civil Jurisdiction, Trial Division

 

March 30, 1961

 

No. 17-1961

 

__________

 

            Application to register individually owned property. High Court, Morrow, Chief Justice presiding, found land to be communal land of the Moega Family.

              Land registered communal.

 

Real Property-Communal Family Land-Evidence of Communal Ownership Deed Records

Deed to Government of portion of land in question, by grantors "for the members of their families" is an admission by grantors that land is communal and not individually owned.

 

OPINION AND DECREE

 

      Heard at Fagatogo before MORROW, Chief Judge, and MALEPEAI and LETULIGASENOA, Associate Judges, on March 10, 1961.

 

Aumoeualogo, Counsel for Ene Tofili.

Faatamala, Counsel for Moega Nu'u and Malia.

 

OPINION OF THE COURT

 

MORROW, Chief Judge.

 

            Moega Nu'u and Malia filed their application with the Registrar of Titles to have a part of the land Tuaolo in the village of Fitiuta registered as their individually owned property. The area of such part is 0.1651 acre +. Ene Tofili filed an objection to the proposed registration claiming that the land was the "communal family land of the Fetui Family in Fitiuta, Manua." At the hearing it appeared [3ASR452] that Fetui is a lesser matai in the Moa Family of Fitiuta, that the Moa has been in Honolulu for a number of years, and that Fetui has been looking after the affairs of the Moa Family during Moa's absence; also that the Ene's claim really was that the land Tuaolo was communal land of the Moa Family and not that of the Fetui Family as stated in the objection.

            The applicants filed a survey of the land together with their application to register it as their individually owned property.

            At the outset it should be stated that all of the parties in this case are members of the Moa Family of Fitiuta. There is a senior matai in the Moa Family and 4 lesser matais of whom applicant Moega Nu'u is one. He holds the Moega title. There have been a number of prior Moegas. Applicant Malia is a blood sister of Moega.

            The objector claims that the land was originally Laapui. Laapui, so goes the objector's story, had an adopted son Paulo who crept to Tauiliili's wife at night and got her pregnant. The Village Council investigated and decided she was pregnant by Paulo instead of her husband Tauiliili. The Village Council then punished Paulo by compelling his adoptive father Laapui to give this land Tuaolo to the village which in turn transferred it to the Moa Family for some pigs. If this actually occurred it must have occurred a long time before the establishment [sic] of the Government in 1900. Ene testified to this story. He is 47 years old and the events having happened, possibly 60 or 75 years before he was born, it follows that the story was pure hearsay as far as the witness was concerned and he had no personal knowledge as to its truth. It was tradition in his family handed down by word of mouth [sic] since long before the Government was established. Malia is 58 years old. She is the daughter of Leia who was the son of Paulo. [3ASR453]

            Moega and Malia have a different story as to the derivation of the ownership of the land Tuaolo.

            Malia's story was to the effect that Laapui gave this land to Paulo, that Paulo had a son who became the Leia; that the Leia got it from his father Paulo; and that Malia and Moega, her brother, got it from their father Leia. The explanation of the alleged gift by Laapui to Paulo was that Paulo's father was Selemaea who was the son of Faamalele who was the daughter of a Laapui.

            This story like the story given to the Court by Ene was pure hearsay as far as Malia, the witness, was concerned. She had no personal knowledge of the truth of the facts she purported to relate. Both these stories have their beginning many, many years before the establishment of the Government. If one story is true the other is not. It is a fact that most stories handed from generation to generation by word of mouth (as both of these stories were) are notoriously inaccurate. If A tells B a story by word of mouth and B tells it to C 20 years later and C to D after another 20 years and D to E after another 20 years, and E should tell it to F after another 20 years, what F would hear in most cases would bear very little resemblance to what A told B 80 years before. Many stories handed down by word of mouth are just myths and have very little resemblance to the truth.

            It is undisputed that Malia and Moega are members of the Moa Family and that Moega is a lesser matai title in the Moa Family. It is undisputed also that Moega and Malia have had plantations on the land Tuaolo for many years, certainly more than 20 years; that Malia had a house on the land for many years before it was blown down in the March 1959 hurricase [sic] in Manua. Paulo, the grandfather of Moega and Malia, is buried on this land as is Teleaai the grandfather of the objector Ene Tofili who is not a member of the Moega branch of the Moa Fam[3ASR454]ily. Malia's mother is also buried on this land as is Sele'maea, Malia and Moega's great grandfather. Moega arid Malia's parents lived on Tuaolo and Malia was born on it.

            A part, a piece 27 feet by 30 feet, of the land Tuaolo was recently conveyed by deed to the Government of American; Samoa. The Government procured it for a site for a dispensary. The grantors in the deed were applicant Moega Nu'u and Iosefatu who is the son of applicant Malia. The granting clause in the deed reads: "Moega Nu'u and Iosefatu, individually and for the members of their families, grantors, of the Island of Tau, Manua, American Samoa, for and in consideration of one dollar and other good and valuable considerations, grant, convey, and warrant to the Government of American Samoa, grantee, etc." This dispensary site, which adjoins and lies northeast of the part of Tuaolo sought to be registered by Moega and Malia, was registered by the Government of American Samoa after notice of the proposed registration was posted for 60 days without any objection being filed by anyone including the Moa Family of Fitiuta.

            The wording of the deed and the fact that the Moa Family did not make any claim to the part of Tuaolo deeded by Moega Nu'u and Iosefatu are two very convincing pieces of circumstantial evidence that Tuaolo is the communal land of the Moega title, which is, as we have already indicated, a lesser matai title in the Moa Family. Furthermore the title to this land originated many years before the Government was established in 1900, whether we believe the story told by Ene or the story told by Malia. We know judicially (it is a matter of common knowledge) that practically all of the land in Samoa is communal, and that is particularly true in Manua. Individual ownership of land is very rare.

            The deed to the Government recites on the back that it was fully explained in the Samoan language to the grant[3ASR455]ors Moega Nu'u and Iosefatu. Since the deed states that they were conveying "for the members of their families" it follows that they were conveying the property as the communal land of their families. Otherwise "for the members of their families" would not have been in the granting clause in the deed. That was an admission by the grantors, Moega Nu'u and Iosefatu, that it was communal family land. Now the fact that the Moa Family did not object to the registration of this dispensary site by the Government, it being deeded by the Moega people to the Government, is a strong indication that the part conveyed to the Government by the Moega people was not Moa Family land, the notice of the proposed registration having been posted for 60 days in two public places in the village of Fitiuta.

            It is our conclusion, after considering all the evidence, that the weight of the evidence (particularly in view of the wording of the deed to the Government conveying the dispensary site as communal family land and the failure of the Moa Family to object to its registration by the Government) is to the effect that the land offered for registration by Moega and Malia as their individually owned property is not their individually owned property but the communal family land of the Moega title, a lesser title in the Moa Family in Fitiuta. We know that many lesser matais in Samoa have land. There was evidence that the Moega title has other communal family land.

 

DECREE

 

        Accordingly it is ORDERED, ADJUDGED, and DECREED that the following described property shall be registered as the communal Family land of the Moega title in Fitiuta:

 

All that piece or parcel of land containing an area of 0.1651 Acre, more or less, known as part of "Tuaolo," situated in the village of Leusoalii, Fitiuta, in the Island of Tau, Manua Group, American Samoa. [3ASR456]
Beginning at a concrete monument being the NW corner of Fitiuta Dispensary site, entered in Vol. II pages 66 & 67 of the Register of Native Titles, going N 57°38'40" W a distance of 90.49 feet to an iron pin one foot south of Fitiuta concrete Walk, thence run S 29°48'40" W a distance of 83.66 feet to an iron pin, thence run S 57°15' E a distance of 79.63 feet to an iron pin, thence run N 37°11' E a distance of 57.515 feet to an old iron pin, thence still running N 37°11' E at a distance of 27.0 feet to point of starting.
Origin of bearings refers to the True Meridian determined by Fitiuta Dispensary site survey.

 

            Costs in the sum of $20.00 are hereby assessed against Ene Tofili and Moega Nu'u and Malia, Ene to pay $10.00 and Moega Nu'u and Malia $10.00, all costs to be paid within 30 days.

 

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