Vaimaona v. Paleafei,

VAIMAONA FOLOI and FAMILY, Appellants

v.

PALEAFEI TAVESI and FAMILY, Appellees

High Court of American Samoa
Appellate Division

AP No. 09-85

October 31, 1986

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Visit by one member of court to land that was the subject of litigation, and subsequent report of that judge to other judges, did not constitute impermissible "testimony" by the judge when both counsel had been present at the viewing of the land and no objection had been made.

Before REES, Chief Justice, GARDNER*, Acting Associate Justice, KENNEDY**, Acting Associate Justice, OLO, Associate Judge, and AFUOLA, Associate Judge.

Counsel: For the Appellants, Aviata Fa'alevao
For the Appellees, Albert Mailo

Per KENNEDY, J.:

Appellant Vaimaona Foloi challenges the decision of the Land & Titles Division of the High Court of American Samoa determining that appellee Paleafei Tavesi ahd his family had a stronger claim to the land known as Ululoloa, and restraining members of Vaimaona's family from going onto this land without permission of the matais of the Paleafei family. We affirm.

Visits by judges to land over which title is disputed are not uncommon. See, e.g., Nua Kone v. Leomiti, 4 A.S.R. 404, 406 (Trial Div. 1963); Sa v. Fia, 4 A.S.R. 437, 438 (Trial Div. 1963). In this case only one member of the court attended at the time and place set for the view, and Vaimaona asserts this taints the proceedings, noting further that the trial judge who did take view reported his findings in detail to the rest of the court.

We reject Vaimaona's contention that the proceedings were tainted. Counsel for both parties were present and participated in the view with the judge. No objection was made by either counsel.[3ASE2d93] The parties thus waived any irregularity in having a formal view by less than all, or less than a majority, of the panel.

The court's finding that "no one actually lives on the land in question" is not clearly erroneous, based as it is on the testimony of witnesses whose reliability the court had the chance to evaluate, as well as the judge's own view of the property.

The decision of the Land and Titles Division of the High Court of American Samoa is AFFIRMED.


* Honorable Robert Gardner, Chief Justice Emeritus, High Court of American Samoa, serving by designation of the Secretary of the Interior. ** Honorable Anthony M. Kennedy, Judge, United States Court of Appeals for the Ninth Circuit, serving by designation of the Secretary of the Interior.