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Sa v. Fia,

SA of Nu'uuli, acting for herself and the Members of the

PU'U Family of Nu'uuli, Plaintiff

 

v.

 

FIA of Nu'uuli, Defendant

 

[Land: Matalii in Nu'uuli]

 

High Court of American Samoa

Civil Jurisdiction, Trial Division

 

No. 171-1963

 

December 31,1963

 

__________

 

            Action in Trial Division of the High Court for injunction restraining defendant from continuing erection of Samoan fale on land near village of Nu'uuli and for mandatory injunction requiring removal of partially constructed fale, Trial [4ASR438] Division of the High Court, Chief Justice Morrow, dismissed petition, holding that great weight of evidence demonstrated fale was on family land of defendant

            Petition dismissed.

 

1. Real Property-Structures Upon-Evidence of Right to Build

Where witness has not seen partially built fale and does not know what land it is on, testimony concerning right to build it is entitled to little weight.

2. Real Property-Structures Upon- Owner's Land

Where great weight of evidence is that partially constructed fale is on defendant's family land, court will dismiss petition to remove it.

__________

 

Heard at Fagatogo on December 31, 1963 before MORROW, Chief Justice; TAUALA, Associate Judge; and MASANIAI, Temporary Associate Judge.

 

Sa pro se.

Ofoia, Counsel for Fia.

 

OPINION OF THE COURT

 

MORROW, Chief Justice.

 

            Sa filed a petition in behalf of herself and the members of the Pu'u Family of Nu'uuli against Fia seeking an injunction restraining Fia from continuing the election of a Samoan fale on certain land adjoining the East West highway near the Village of Nu'uuli and also a mandatory injunction requiring Fia to remove the partially-constructed fale from the land.

            The Court viewed the partially-constructed fale and the land surrounding it in the presence of both parties and Pu'u on Friday, Decembel. 27, 1963.

            Maisu, the principal witness for Sa, testified that he was a member of the Pu'u Family of Nu'uuli and that he had left Nu'uuli three or four years ago for Vaitogi where he is now living. He also testified that he had never seen the partially-constructed fale and that he did not know what land it was on. He also testified that Sa had had a house on the land Tuanu'u since after the war but that she did not [4ASR439] have a house on it when he left Nu'uuli for Vaitogi, which was three or four years ago.

            [1] Since Maisu had never seen the partially-built fale in dispute and did not know what land it was on and in view of the inconsistencies in his testimony, it is obvious to us that his testimony is entitled to very little weight.

            Sa herself testified that half of the partially-constructed fale is on defendant Fia's land. She also testified that Pu'u, her matai, is a matai in the Lavatai Family of which Lavatai is the senior matai.

            Lavatai, Sa's senior matai, testified that he was very familiar with the land on which the partially-constructed fale is built. He has lived in Nu'uuli all of his 64 years and has been familiar with the land ever since he was old enough to know things. He also testified that the Lavatai title had communal family land adjoining such land. In addition he testified that Pu'u was a lesser matai in the Lavatai Family of which he is the senior matai. Lavatai's testimony was to the effect that the fale in dispute stands on Soliai land named Matalii.

            Defendant Fia is a young man in the Soliai Family of Nu'uuli. Lavatai told the Court that the land Tuanu'u was Lavatai land and that it was back from the main highway and on the seaward side of the highway. Lavatai also told the Court that he, as matai, had assigned Tuanu'u to his lesser matai Pu'u for the use of Sa and her family. Sa is an untitled woman in the Pu'u Family.

            Taufete'e, who is 63 years old and has been the Pulenu'u of Nu'uuli for many years, testified that he was familiar with the land Matalii and also the land Tuanu'u and that the partially-constructed fale in dispute stands on the land Matalii which is the property of the Soliai title of Nu'uuli, and that Fia is a young man in the Soliai Family.

            [2] Our conclusion from the evidence is that the partially-constructed fale is on Matalii, the property of the [4ASR440] Soliai Family, and not on Tuanu'u which is the communal land of the Lavatai Family assigned to lesser matai Pu'u for the use of Sa and her family. The great weight of evidence is to this effect. Accordingly, we must dismiss this petition.

 

ORDER

 

            It is ORDERED that Sa's petition filed in her own behalf and the members of the Pu'u Family against defendant Fia be and the same is hereby dismissed.

            Costs in the sum of $6.25 are hereby assessed against Sa, the same to be paid within two weeks.

 

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