Fa’agau; Malaepule v.;
VAO F. MALAEPULE, KILISITINA T. SIAUMAU, and AFO TEMA for the
AFO FAMILY, Objectors/Plaintiffs,
FA`AGAU LEFITI for the FA`AGAU FAMILY, Claimant/Defendant.
High Court of American Samoa
Land and Titles Division
LT No. 44-90
January 9, 1996
 In land disputes, possession of real property is the best evidence of ownership and carries with it the presumption of ownership. Conversely, a mere claim to land without accompanied use or occupation is insufficient to acquire title thereof.
Before KRUSE, Chief Justice, VAIVAO, Associate Judge, and SAGAPOLUTELE, Associate Judge.
Counsel: For Plaintiffs Kilisitina T. Siaumau, and Afo Tema for the Afo Family, Charles V. Ala`ilima
For Defendant, Afoa Moega Lutu
Decision and Order:
On March 26, 1990, Fa`agau Lefiti (hereafter “Fa`agau“), senior matai of the Fa`agau family of Faganeanea, applied to the Territorial Registrar to register title to 2.33 acres of land, named “Vasa`aiga,” (hereafter the “disputed area”) located in a small cove between the villages of Matu`u and Faganeanea. The application was met with the objection of Vao Faumui Malaepule filed April 6, 1990, on behalf of the Faumui family, while Kilisitina T. Siaumau and Tema F. Afo, filed their joint objection on April 19, 1990, on behalf of the Afo family. At the time of Fa`agau’s application, both the Faumui and Afo matai titles were vacant. However, these titles have since been filled. The Faumui title was registered in the name of Faiva Faumui on April 29, 1991, while objector Tema F. Afo (hereafter “Afo“) succeeded his father Afo Tema, Sr., to the title Afo in December, 1993.[29ASR2d153]
Following unsuccessful reconciliatory efforts before the Office of Samoan Affairs, pursuant to the requirements of A.S.C.A. § 43.0302, the dispute was referred to the High Court. The matter came on for trial on December 4, 1995. Both the Fa`agau family and the Afo family appeared, through their respective senior matai, with counsel, while the Faumui family did not. From our review of the file, we find that the latter’s objection/counter-claim has not been diligently pursued, if not altogether abandoned; the same will, therefore, be dismissed.
The eastern boundary line of the disputed area, as proposed by Fa`agau’s survey, follows an existing fence (hereafter “the fence”) which runs inland from the main highway, traversing a course further northward towards the hillside. The disputed area presently contains a dwelling house belonging to Toloa`i Aualuma, the remnants of a dwelling that once belonged to Lanutausala Vesi, a relatively large (60′ x 100′) apartment building belonging to Finagalo Aveina, and various graves. The area on the east side of the fence, commonly referred to by the parties as the “Burns Philp area” (hereafter the “Burns Philp area”), contains commercial buildings now occupied by Paisano’s Restaurant and an automotive garage. This eastern part of the cove, the Burns Philp area, is currently the subject of a long term lease which was entered into in 1972, between the Afo family as lessor and Wilbur Reine as lessee.1
A. Fa`agau’s Claim
Fa`agau, who is 51 years of age, testified that his family has owned Vasa`aiga from time immemorial. He explains the Afo family’s presence on the Burns Philp area in terms of a land grant from the Fa`agau family to the Afo family at some unspecified time in the past. He further pointed out that it was he who had earlier set up the eastern boundary line in the context of resolving a dispute between Tauasosi Faumui (Faumui Pisa’s daughter) and Aimiti Afo (Afo, Sr’s., wife) that arose when the fence was first being proposed for the Afo family’s tenants on the Burns Philp area. In further support of his family’s claim to the disputed area, Fa`agau submitted, as evidence of pule (exercise of dominion), copies of: a separation agreement, dated July 18, 1972, executed by his predecessor Faga`au Leota for Toloa`i Aualuma’s residence; another separation agreement, dated November 21, 1977, which he had signed for Lanutausala Vesi’s home; and a building permit application that he had also signed as “land owner” for Finagalo Aveina’s apartment building. He additionally tendered an exercise book, which he had kept to record individual contributions to Fa`agau fa`alavelave (family affairs); the [29ASR2d154] book contains names of some of the past and present occupants of the disputed area, together with their respective contributions to some of the Fa`agau family’s fa`alavelave.
Finagalo Aveina, 52 years of age and a member of the Fa`agau family, testified that the disputed area is Fa`agau family land, and that he commenced building his apartment thereon in July 1977, and completed it in 1988. He further testified that his construction work could not have gone unnoticed, and that no one from the Afo family objected to the errection of his apartment building. Aveina also testified that while growing up in the vicinity, he knew that Tauasosi Faumui and her husband Toloai, who subsequently became his in-laws, had occupied the area on which his apartment is located.
B. Afo’s Claim
Afo, who is 50 years old, testified that the land known as “Vasa`aiga” comprises both the disputed area, as well as the Burns Philp area, and that the same has always been the communal property of the Afo family of Faganeanea. He also testified that the only people who have lived on Vasa`aiga have been Afo family members together with Faumui Pisa and his descendants; that according to oral history handed to him by family elders, Faumui Pisa originally haled from Nu`uuli, a lesser matai of the Levu family; but that Faumui Pisa was also connected to the Afo family of Faganeanea and had thereby come to live on Vasa`aiga through the permission of Afo Mosegi. Afo further testified that the graves on the disputed area are those of Faumui Pisa’s family, and that while he could not identify all of the graves, he knew of, and named, a number of those who were buried there.
Afo’s 75 year old mother, Aimiti Afo, testified that she first went on Vasa`aiga in 1944, when she first married her husband, Afo Tema, Sr. She testified that she and her husband, together with other members of her husband’s family, had houses on the eastern portion of Vasa`aiga (the Burns Philp area) while Faumui and his children lived on the western part; that in earlier times, Faumui and his family collaborated with Afo in family fa`alavelave; and that eventually the Faumui title was accepted into the village council of Faganeanea. According to her, the strained relations now existing between themselves and certain of Faumui’s issue began to arise after the marriage of Tauasosi Faumui’s daughter, Mata`alofa, to Finagalo Aveina, a member of the Fa`agau family. Finally, Aimiti further testified that she has known four Fa`agau titleholders but she had never seen any of Fa`agau’s predecessors on Vasa`aiga.[29ASR2d155]
We find that the evidence preponderates in favor of the Afo family’s version of the facts. They present the more tenable claim to the disputed area. They can point to actual occupation of Vasa`aiga—the disputed area as well as the Burns Philp area. The Fa`agau family’s bald claim to ownership together with a past gift to the Afo family, is, on the other hand, vague and less worthy of belief. Notably, Fa`agau could not provide any details of, nor circumstances behind, the claimed donation to the Afo family. He utterly failed to satisfactorily explain the seemingly anomalous situation of one Samoan family in Faganeanea donating its land to another of the same village. The improbability of Fa`agau’s claim to ownership is further accentuated by the fact that he has no plausible explanation for the presence of Faumui Pisa and his family on the disputed area, people whom he admits are not Fa`agau family members.2 In short, he has no history as to why these strangers have been on the disputed area, which is yet another anomalous situation, given the realities of Samoan life.
Afo’s explanation, however, is not only uncontroverted but his family’s history regarding the origins of Faumui Pisa and his kinship ties to the Afo family, finds some corroboration in the record and decision of an earlier matai title dispute involving Faumui Pisa as a party. See Leasiolagi v. Faumui, 3 A.S.R. 235, (Trial Div. 1954); 3 A.S.R. 509, (App. Div. 1954).3 At the same time, while Afo is able to explain the burials on the land and name some of those interred there, Fa`agau has no knowledge at all about the graves on the disputed area. This lack of familiarity on Fa`agau’s part presents a further anomaly, considering the significance of family graves as traditional indicia of land ownership.4
As we earlier noted, while Fa`agau’s family history is the simple assertion of ownership from time immemorial, Afo is additionally able to [29ASR21d156] point to a family history of actual occupation, within living memory, to back his family’s claim to ownership. The Afo family, which in accordance with Samoan custom would include Faumui Pisa and his family5, built homes in the vicinity; the Fa`agau family did not. While the latter’s asserted occupation of the disputed area through total strangers, the Faumui people, is difficult to accept considering the realities of Samoan life, Faumui Pisa’s presence on Vasa`aiga is otherwise easy to understand, when seen in light of his connection to the Afo family.6
With regard to the two separation agreements submitted by Fa`agau in support of his claim, these are of no real import when viewed against the factors discussed above. In our view, these isolated incidents relative to Vasa`aiga, speak less of pule but more in terms of posturing opportunities presented to Fa`agau at a time when; 1) the Afo family’s senior matai was incapacitated and off-island, and 2) relations between the Afo family and Tauasosi Faumui were deteriorating. At the same time, the conspicuous absence of any evidence of previous instances of pule by Fa`agau and his predecessors, relative to the time when Afo Tema, Sr., was healthy and actually on-island, is found to be worthy of note.
With regard to Fa`agau’s attempt to underscore the absence of objection by the Afo family to the erection of Aualuma Toloai’s home, Lanutausala Vesi’s home, and Finagalo Aveina’s apartment building, we find no merit to this contention. Ostensibly, there was nothing untoward nor objectionable with the construction of these structures on the disputed area since both Aualuma and Lanutausala are members of Faumui Pisa’s family, while Finagalo was, at the time, related by marriage. Faumui Pisa, as we have noted, was a member of the Afo family. The fact then that the building of these structures were not met by objections from people of the Afo family, is hardly compelling. Similarly, we see little if any significance to the claim of boundary setting by Fa`agau. This action was also undertaken by Fa`agau during the off-island absence of the Afo family’s senior matai and when the developing tension between Tauasosi Faumui and the Afo family was at its height.7 In actuality, the resulting [29ASR2d157] eastern boundary line claimed by Fa`agau reflects nothing more than the security needs of Afo’s tenants for a fence; it does not depict an inter-family boundary adjustment reflecting actual use and occupation.
Finally, the building permit application for Finagalo Aveina’s apartment building submitted by Fa`agau as evidence of pule, seems to be yet another (bad) example of posturing. While Finagalo testified that the building of his apartment was commenced in the year 1977 and finished in 1978, the document in question bears an after-the-fact approval date of July 2, 1979.
 In land disputes, possession of real property is the best evidence of ownership and carries with it the presumption of ownership. Tuato`o v. Taua`a 17 A.S.R.2d 163, 166 (App. Div. 1990); see also Lualemana v. Atualevao, 14 A.S.R.2d 34, 43 (Land & Titles Div. 1990) (“Actual occupation with the claim of ownership, not the exercise of power over the actual occupants . . . is the best evidence of land ownership in American Samoa.”); Muagututi`a v. Savea, 4 A.S.R. 483, 485, (Trial Div. 1964); Soliai v. Lagafua, 2 A.S.R. 436, 438, (Trial Div. 1949); Fa`ataliga v. Fano, 2 A.S.R. 376, (Trial Div. 1948). Conversely, a mere claim to land without accompanied use or occupation is insufficient to acquire title thereof. Ilaoa v. Toilolo, 1 A.S.R. 602, 604 (Trial Div. 1938); Soliai v. Lagafua, supra at 438.
In view of all the evidence, we are convinced that the disputed area offered for registration by Fa`agau is not the land of the Fa`agau family. On the other hand, we are persuaded on the evidence that Vasa`aiga has sufficiently been in possession and control of the Afo family, independent of the Fa`agau family, to firmly establish the former’s claim to ownership. We therefore hold that the disputed area is the communal property of the Afo family of Faganeanea. The Territorial Registrar may register title to the disputed area in the Afo family of Faganeanea.
Judgment will enter accordingly.
It is so ordered.
3 In this matter, Faumui Pisa’s right to the Levu title of Nu`uuli was confirmed by the Appellate Division. The gafa which he submitted to the trial court to prove his entitlement, reflects his connection to the Afo family of Faganeanea.
4 See e.g. Uigalelei v. Fuimaono, 14 A.S.R.2d 49, 50 (Land & Titles Div. 1990) (“[T]he general and longstanding custom is to place family graves on family land, to tend to them carefully, and to rely on them as evidence of land ownership.”).
5 See e.g. Vaotuua v, Puletele, 3 A.S.R. 145, 147 (Trial Div. 1955) (“[I]ts the Samoan customs [that] all those who live in the family . . . are recognized as a family member.”)
6 Samoan custom recognizes that a person can be a member of two different families at the same time. Sueuga v. Laisene, 2 A.S.R. 82 (Trial Div. 1955).
7 The dispute between Tauasosi Faumui and Aimiti Afo over the fencing of the Burns Philp area, as well as Tauasosi’s willingness to have Fa`agau involved with the settlement of that dispute, lends credence to Aimiti Afo’s testimony about a falling out with certain of Faumui’s children, who then switched loyalty toward the Fa`agau family.