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Ava v. Moe;

AVA VILI, Plaintiff

v.

MOE TALALOTU and KILEPOA TUITAMA, Defendants

High Court of American Samoa
Trial Division

LT No. 71-83

September 9, 1988

__________

Defendant's motion for a new trial, made on the ground that he had received no actual notice of the trial date, was denied where it was shown that such notice was given in accord with statutory procedure by delivery to the defendant's home and receipt by his son two months prior to trial.

Statutory standard of "natural justice and convenience" requires that in land matters a party eventually be accorded his day in court and therefore, although the court prefers that all parties be present at a hearing, it will proceed without the defendants where they have continually postponed the trial date and failed to appear after proper notice of the trial date. A.S.C.A. § 3.0242.

Defendant's motion for a new trial, made on the ground that the judgment awarding plaintiff communal land was inconsistent with plaintiff's original claim of individual land, was denied where plaintiff's complaint prayed for an adjudication of communal ownership, the evidence showed the land was communal, and defendants were not prejudiced by the court's conforming of its findings to the evidence.

Before KRUSE, Associate Justice and TAUANU'U, Chief Associate Judge.

Counsel: For Plaintiff, Albert Mailo
For Defendants, Togiola T.A. Tulafono

On Motion for New Trial and Reconsideration: [8ASR2d96]

Defendants, Moe Talalotu and Kilepoa Tuitama, move for a new trial (and reconsideration) in the above-entitled matter.

This matter came up regularly for trial on July 25, 1988. Plaintiffs appeared prepared for trial. Neither defendant appeared and no attempt was made by or on behalf of defendants to otherwise notify the Court of defendants' absences. After hearing from plaintiff's counsel and after reviewing the matters on file, the Court found that neither defendant had demonstrated much interest in pursuing their claims. The file reflects numerous attempts by plaintiff to get this matter to trial along with corresponding continuances. Defendant Moe Talalotu's present claim of no "actual" notice of trial date attracts little, if any, sympathy in the circumstances. We found that this defendant was duly noticed in accordance with applicable rules of procedure when notice of trial date was delivered at his home some two months prior to trial. The person who received the actual notice was his son Finesi Moe. This same son received a copy of the judgment delivered also to defendant's home and notice of which certainly attracted immediate reaction.

We similarly found due service upon the co-defendant Kilepoa Tuitama .

While the court has in the past shown a decided preference for a hearing with all parties present (especially in land matters) there comes a time when the standard of "natural justice and convenience," as provided in A.S.C.A. § 3.0242, requires that a party be accorded his day in court. That time was upon us when this matter was heard.

Defendants' second ground advanced for a new trial, viz., prior adjudication concerning the disputed land, has been withdrawn.

The third ground advanced was that judgment awarding plaintiff "communal" land was inconsistent wi th plaintiff's advertised claim of "individually" owned lands. Defendants feel that the logical result of the case should have been "denial or rejection" of the registration application by plaintiff to individualownership. This argument is a non sequitur. The evidence received by the Court was inconsistent with a claim to "individual" ownership but was found to be consistent with [8ASR2d97] "communal" entitlement .Indeed the complaint prays for an adjudication of "communal" ownership. We can see no conceivable prejudice to defendants by the conforming of our findings in accordance with the evidence, notwithstanding the content of plaintiff's advertised claim.

Accordingly the motion for new trial is denied.

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