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43.1309 Undertaking-Justification of sureties-Termination of injunction for insufficient sureties.

Cite as [A.S.C.A. § 43.1309]

(a) Before issuing a preliminary injunction or temporary restraining order the court shall, except when the injunction is granted on the application of the United States government, the government, or an officer or agency thereof or on the application of either spouse against the other in an action for divorce or separate maintenance, require a written undertaking on the part of the applicant, with sufficient sureties as the court may determine to the effect that the applicant will pay the opposing party the costs and damages not exceeding an amount to be specified, that the opposing party may sustain by reason of the injunction, if the court decides that the applicant should not have been entitled to the injunction or that he should pay the damage as the court may determine.

(b) In matters concerning disputes or controversies over communal or aiga land and matai titles only, before the full and final trial on the merits or permanent injunction can be held, the matter shall first be referred to the department of local government pursuant to 43.0302. The security or bond herein required shall be waived if and when the application for injunction is sought by the sa’o of a Samoan family to enjoin or prohibit a party from taking, conducting, or effectuating, specific action or activity on matters pertaining to communal or alga land or matai titles within his own family where he is the sa’o. The sa’o is the only authorized person under this act to bring such an application, unless the matai title of the sa’o is vacant or that he is incapacitated on such events, at least two blood male matai members of said family over the age of 18 may bring such an application and security thereof be waived. If the family does not have blood matai male members, then on such an occasion, at least two blood members of the family over the age of 18 may bring such application and the bond be waived.

History: 1981, PL 17-6.

Case Notes:

Former title holder who removes himself and his family from village where former title held loses all power over such land. Current title holder in village may permanently enjoin former title holder and his family from entering land. Ofoia v. Amosa. ASR (1985).

Only the Sa’o (senior title holder) of a family may take injunctive action concerning matters of communal land within his family. Fairhold, et al v. Mau’au, et al, 1 A.S.R. 2d 73(1983).

Non-Sa’o’s objection to land registration under section 37.0103 is not an action for injunction relating to communal land under this section. Tavaseu v. Paulo, 3 A.S.R.2d 97 (1986).

Issuance of a preliminary injunction requires a plaintiff's written undertaking to pay defendant's damages and costs, up to a specified amount and with sufficient sureties as the court may determine, which may result from the injunction if a permanent injunction is not granted and defendant is awarded damages and costs. A.S.C.A. § 43.1309(a). Gurr v. Scratch, 22 A.S.R.2d 103 (1992).

Statute prohibiting anyone but senior matai of Samoan family from bringing action to enjoin activities on communal land did not prohibit another member of family from objecting to registration of land by another family. A.S.C.A. §§ 37.0103, 43.1309. Sagatu v. Vaioli, 3 A.S.R.2d 97 (1986).

The sa'o of a family is the only person who is authorized to seek injunctive relief in actions concerning disputes or controversies over communal land; if the title is vacant or the sa'o is incapacitated, the application may be brought by (1) two blood matai male members of the family over age 18, or (2) if the family lacks two blood matai male members, two blood members of the family over age 18, if either is untitled or a female. A.S.C.A. § 41.1309(b). Savea v. Tunu, 24 A.S.R.2d 63 (1993).

A party seeking a preliminary injunction must post security to cover the costs and damages of a party wrongfully enjoined or restrained prior to a trial on the merits. A.S.C.A. § 41.1309. Le Vaomatua v. American Samoa Government, 23 A.S.R.2d 11 (1992).

Preliminary injunction against defendant's unauthorized construction on family communal land would be denied, as injunction would serve no purpose but punishment for past deeds, where: defendant had been assigned the building site by the late senior matai; defendant was rebuilding a home destroyed by fire; plaintiff matai did not object to defendant's having a home on communal land, but only to her doing so without his signature on the building permit; defendant would owe her contractor liquidated damages for any delay; and the normal requirement of security or bond requirement was not applicable. A.S.C.A. § 41.1309(b). Leaana v. Laban (Mem.), 12 A.S.R.2d 93 (1989).