
    MELE I. FA'ATUPU, Appellant v. MAUSA A. MALEPEAI and FAATUI FAOA, Appellees
    High Court of American Samoa Appellate Division
    AP No. 007-84
    April 5, 1985
    Before GARDNER, Chief Justice, Presiding, KING, Acting Associate Justice, HEEN, Acting Associate Justice, TAIMANU, Associate Judge, APE POUTOA, Associate Judge.
    Counsel: For the Appellant, Moega Lutu
    For the Appellee, Albert Mailo
    
      
      Honorable Samuel P. King, United States District Judge, Distric of Hawaii, sitting by designation of the Secretary of the Interior.
    
    
      
      Honorable Walter M. Heen, Associate Justice, Intermediate Court of Appeals, State of Hawaii, sitting by designation of the Secretary of the Interior.
    
   This matter reached the court by way of referral by the Office of Samoan Affairs. See Land and Title Rules of Court, rule 3.

Faatui and Faatuai Faoa, members of the Toilolo family, wanted to rebuild a house. Mausa Malepeai, Faatuai's sister, who had taken care of the house and its land since 1959, applied with them for a separation agreement. Faatupu, a member of the Lauofo family, objected. At the trial the parties agreed that the land involved is'communal property and Malepeai does not have the right to sign a separation agreement

The parties disagree, however, as to which family owns the land, Lauofo or Toilolo. The Lauofo family calls the land "Uutafeuua" and the Toilolo family calls it "Pulemaava."

ISSUES

Lauofo argues two errors on appeal:

1. That the court's decision that the land belongs to oilolo was made without a surveyor other corroborating vidence; and

2. That the court had no jurisdiction to decide the wnership of the land because the raatais were not joined as arties and the only issue before the court was whether Malepeai ad the authority to sign the separation agreement.

DISCUSSION

Lauofo cites no authority that a survey is required before a ourt may decide the ownership of land. Since this case did not nvolve a boundary dispute there was no need for a survey.

It is unclear what Lauofo means in saying there was no orroborating evidence of Toilolo’s ownership of the land. In ddition to the testimony of Chief Toilolo, there was testimony y Teuila Alai Palelei, a 79-year-old uncle of Chief Toilolo; ioimalo Toilolo, a 72-year-old chief in the Toilolo family; and ausa Malepeai. All of them testified that the land belongs to he Toilolo family. Lauofo also called witnesses, who testified hat the land belongs to the Lauofo family.

It is not up to this court to weigh the evidence and decide hich set of facts to accept. Lauofo points to no legal nadequacy of evidence that would justify a reversal.

The second issue raised by Lauofo is that the matter eferred by the Office of Samoan Affairs was the validity of the eparation agreement, and the court therefore had no jurisdiction o hear the issue of the ownership of the land. The parties in he dispute over the separation agreement were Malepeai and the aoas against Faatupu. Lauofo argues that the matais were not roper parties.

It was Lauofo's counsel himself who asked, that Lauofo be oined as a defendant. He cannot now object to that.joinder, nor oes it make any sense to say that Toilolo, the putative, owner of he land, is not a proper party.

The case that was referred by the Office of Samoan Affairs as titled "Separation Agreement land 'Pulemaava' in Malaeloa . . ." Land and Titles Rules, rule 2(a), says that "actions to eparate a building or structure from communal land", are ommenced by filing a petition with the Territorial Registrar.

Since all parties readily conceded that there was no issue oncerning separation, it is surprising that the Office of Samoan ffairs, in following the procedures required by Á.S.C.A. section 43.0302, did not resolve the issue brought before it. The purpose of the statutory procedure is to resolve informally those issues that lend'themselves to simple resolution. This one surely did, and the referral of a non-issue to the court can onl} cast doubt on whether two attempts to settle the controversy, as required by section 43.0302(a)(1), were ever made.

Because of the failure of the dispute res'olution process the court faced the dilemma of being presented wit-h the wrong issue. But the bottom line was the same. True, Malepeai had no right tc sign the separation agreement, but that left the Faoas with the problem of who did. This was the problem the court addressed.

There can be some flexibility in the application of A.S.C.A. section 43.0302. In Maria & Telesia v. Tuli (1978) AP NO. 5-76, the defendants contended that the trial court lacked jurisdictior because no certificate as required by 11 A.S.C. section 1002 (the present section 43.0302) was filed. In place of the certificate the court accepted a letter which failed to comply with statutory requirements, saying that "it constituted sufficient compliance."

The same flexibility was justified here. Even though this case arose under the issue of the validity of the separatior agreement, the court was free to look beyond that issue to the ultimate question of the ownership of the land.

After discussing the completely unsatisfactory way this case reached the high court, the trial court then addressed the real issue presented by the pre-trial memoranda. While noting that the original nominal parties "don't have much to do with the case at all" the court then proceeded to try the case on the - issues presented by the pre-trial memoranda. It is a little late nov for one of the parties to complain of the issues presented. This should have been done at trial.

As counsel for Lauofo, in a trial brief submitted to the court, defined the case, it is "a dispute over the ownership of land 'Uutafeuua' in the village of Malaeloa." That is the dispute the court resolved.

The court even recessed the hearing for a day to give the parties an opportunity to settle the issue on their own. There would have been no point to the court's refusing to hear the case after the parties returned, presumably unable to resolve the matter themselves.

The judgment is affirmed.  