OPINIONS

OF THE

LAND AND TITLES DIVISION

OF THE

HIGH COURT OF AMERICAN SAMOA

(2012)

AIONO WHITNEY MAGALEI, Plaintiff,

v.

AMERICAN SAMOA GOVERNMENT, TUI`ANA COMMUNAL FAMILY, MA`TAUA TE`O, and DOES I-X, Defendants.
________________________________

AIONO WHITNEY MAGALEI, Claimant,

v.

KENESARETA MOI and STEVEN LOTONU’U SIUFANUA representing the communal interests of HC LILI’I and HTC SIUFANUA COMMUNAL FAMILY, ALA’IASA FILIFILI, LEULI U. TE’O, MELODY TE’O-POLOA, and MIRIANA TE’O, Objectors.

ROY J.D. HALL, LDS CHURCH, JONATHAN and MOLITA POUESI, Necessary Parties.

High Court of American Samoa
Land and Titles DIVISION

LT No. 27-03
LT No. 6-06

March 9, 2012

[1] Although A.S.C.A. § 37.0102 explicitly states that the senior matai is the only individual authorized to request a survey of his family’s communal lands, it provides nothing that could be construed as precluding a senior matai from instructing a subordinate to sign a legal document on his behalf. Having an authorized proxy in one’s stead is a practice not unknown to the law.

[2] A matai has the authority to properly delegate a subordinate to sign the “Surveyor and Pulenu’u Certificate” in his behalf.

[3] Our previous holding under Faleafine v. Suapilimai, 7 A.S.R.2d 108, 113 (Land and Titles Div. 1988), in which he stated that a family whose senior matai title is vacant must select a senior matai before it can offer a land for registration, says nothing about precluding a senior matai from using his inherent authority to delegate responsibilities to immediately effectuate his intent.

[4] An Affidavit of Posting with a caption that mislabels the land in issue as privately owned instead of communal is not fatally deficient and does not interfere with providing interested parties and the general public proper notice if the land was mislabeled as a consequence of clerical error and the Registration Notice correctly labels the land as communal.

[5] An “Affidavit of Posting” will not be null and void simply because it is missing a signature from the Registrar or the Clerk of the Court. 

[6] Nothing in subsection 37.0103(c), or Chapter 1 for that matter, requires the Territorial Registrar or the Clerk of the Court to sign and seal an affidavit of posting. 

[7] The absence of a newspaper affidavit confirming the publication of the notice of registration is not compelling proof that the Registrar registered land in violation of notice requirement.

Before RICHMOND, Associate Justice; and MAMEA, Associate Judge.

Counsel: For Plaintiff Aiono Whitney Magalei, Charles V.Ala’ilima
For Defendant American Samoa Government, Sean Morrison, Assistant Attorney General
For Defendant Tuia’ana Communal Family, pro se
For Defendant Ma`ataua Te`o and Objectors Luli U. Te`o, Melody Te`o-Poloa, and Miriama Te`o, Fiti A. Sunia
For Objectors Kenesareta Moi and Steven Lotonu`u Siufanua representing the communal interests of HC Lili`i and HTC Siufanua communal family, pro se 
For Objector Ala`iasa Filifili, Tautai A.F. Fa`alevao
For Necessary Party Roy J.D. Hall, pro se
For Necessary Party LDS Church, Sharron I. Rancourt
For Necessary Party Jonathan and Molita Pouesi, pro se

OPINION AND ORDER VALIDATING LAND TITLE REGISTRATION (TRIAL PHASE ONE)

These actions arose after Plaintiff Aiono Whitney Magalei (“Aiono”) attempted in 2003 to register land named “Ga`utamauga in the village of Faleniu as the Aiono family’s communal land. The Aiono survey extensively overlaps named “Tuamauga” registered in 1992 as the Tuia`ana family’s communal land and conveyed in the same year to Defendant Ma`ataua Te`o (“Ma`ataua”). On April 28, 2005, the Secretary of Samoan Affairs issued the jurisdictionally required Certificate of Irreconcilable Dispute following unsuccessful mediation before the Secretary. On April 4, 2006, the controversy was sent to the High Court for judicial resolution. 

After a series of motions and delays, the Court ultimately proceeded to trial solely upon the bifurcated issue of the validity of the Tuia`ana registration. Aiono claims that the Tuia`ana registration is invalid due to significant discrepancies in the registration process. We hold that the registration of Tuamauga as the Tuia`ana family’s communal land is valid. [**3**]

Registration Background

In early July 1992, Ma`ataua requested the survey of the land Tuamauga. The Surveyor and Pulenu’u Certificate was issued on July 4, 1992 to certify that Tuia`ana Moi, then the Pulenu`u of Faleniu, orally announced the time and place of the proposed survey at a meeting of the Faleniu chiefs to provide other interested land owners to be present during the survey. On July 9 1992, the survey was approved by the Manager of the Survey Branch of Defendant American Samoa Government (“ASG”). The survey then encompassed an area of 9.1458 acres. The offer to register Tuamauga as the Tuia`ana family’s communal land was submitted to the Territorial Registrar on July 27, 1992. The offer was signed by Ma`ataua for the Tuia`ana family in Tuia`ana Moi’s presence at the Territorial Registrar’s Office. The Notice for Proposed Registration of Land was posted at the High Court building in Fagatogo and on four telephone poles located in the village of Faleniu for 60 days. Two notices were published in Samoa News during the 60-day notice period. No objections to the proposed registration or adverse claims to the title were filed during this time period. [**4**]

Discussion

The immediate bifurcated issue concerns the narrow issue of whether the 1992 registration of the land Tuamauga as the Tuia`ana family’s communal land was fraudulently obtained or if there exists any irregularities on the face of the registration documents such that it would invalidate the registration. 

The statutory procedures for registering land titles are set forth in A.S.C.A. §§ 37.0101-37.0103. Land registration in compliance with the statutes provides notice to the world that those individuals whose names appear on the registration certificate have good title over the registered land described in the certificate. Fa`aua`a v. Tauiliili, 15 A.S.R.2d 71, 72 (Land & Titles Div. 1990). The statutes create a strong presumption that land, which has been properly registered, belongs to those whose names are on the registration certificate. Ava v. Logoai, 19 A.S.R.2d 75, 78 (Land & Titles Div. 1991). However, this presumption of lawful ownership and possession may be rebutted if there is compelling proof that the certificate of registration was fraudulently obtained or if there are fatal irregularities that affirmatively appear upon the face of the registration documents. Id. 

In determining whether the Tuia`ana registration is valid, we review the steps Tuia`ana Moi took to register Tuamauga. There are two fundamental procedural requirements provided by [**5**] the land title registration statutes that must be met in order for land to be properly registered. These requirements are: (1) the land must be surveyed; and (2) the public and interested parties must be notified of the intent to register the land. We discuss these two requirements in the context of the evidence brought before us.

I. Survey

A.S.C.A. § 37.0102 in relevant part reads:

(a) When land is offered for registration, the offer shall be accompanied by a survey of the land to which title is proposed to be registered. . . .

(c) The survey shall be accompanied by a certificate of the surveyor and the pulenuu [“mayor”] of the village in which or nearest to which the land is located, to the effect that the pulenuu gave public oral notice in the village at a meeting of the chiefs thereof of the time and place of the intended survey in order that other interested landowners might have an opportunity to be present thereat.

(d) . . . . Only the senior matai of a Samoan family has the authority to request a survey of communal property of that family. . . . 

“The Territorial Registrar . . . is charged with registering title only when all the statutory procedures have been met, and the Court should not assume that he did not comply with this obligation.” Ifopo v. Siatu’u, 12 A.S.R.2d 24, 28 (App. Div. 1989). 

[**6**] Aiono argues that the registration is invalid because Tuia`ana Moi, the then senior matai of the family, was not the person who requested the survey, as required by A.S.C.A. § 37.0102(d), in early July 1992, and because the offer to register filed on July 27, 1992, with the Territorial Registrar was signed by Ma`ataua, not by Tuia`ana Moi representing the Tuia`anna family owning the land, as required by A.S.C.A. § 37.0101(a). However, in light of the circumstances as a whole, we disagree with Aiono and find that it was Tuia`ana Moi, not Ma`ataua, who requested the survey and proposed to register the land Tuamauga. 

Ma`ataua requested the survey of Tuamauga as Tuia`ana land in early July 1992. Shortly thereafter, on July 4, 1992, Tuia`ana Moi, who was then the pulenu’u of Faleiniu, and the surveyor signed the Surveyor and Pulenu`u Certificate attesting that public oral notice regarding the time and place of the survey was given in Faleniu at a matai meeting. Surely Tuia`ana Moi, as the sa`o of the Tuia`ana family, was fully aware at the onset of Ma`ataua’s request for the survey. In the same month, on July 27, 1992, Ma`ataua signed the registration offer on behalf of the Tuia`ana family and in Tuia`ana Moi’s presence at the Territorial Registrar’s Office. 

[1] Ma`ataua testified that Tuia`ana Moi directed him to have the land Tuamauga surveyed, that Tuia`ana Moi was present when [**7**] the survey was conducted, and that Tuia`anna Moi was with him at the Territorial Registrar’s Office and instructed him to sign the registration offer for him. It may seem odd that Tuia`ana Moi would instruct Ma`ataua to sign the Offer for Registration absent any evidence of incapacity on his part. Nevertheless, this would hardly suffice as proof of fraud or a fatal irregularity. The statutes, although explicit in stating that the senior matai is the only individual authorized to request a survey of his family’s communal lands, provide nothing that could be construed as precluding a senior matai from instructing a subordinate to sign a legal document on his behalf. Having an authorized proxy sign in one’s stead is a practice not unknown to the law. Absent such preclusive statutory language, we are reluctant to draw such a line here. 

Aiono provides nothing to refute Ma’ataua’s testimony regarding Tuia`ana Moi instructing him to sign the Offer of Registration, nor any circumstantial evidence that would lead us to call into question Ma’ataua’s testimony. Considering Tuia`ana Moi’s request to survey Tuamauga, Tuia`ana Moi’s signature on the “Surveyor and Pulenu’u Certificate,” and Tuia`ana Moi’s presence when Tuamauga was surveyed, we find no reason to call into question the credibility of Ma`ataua’s testimony. 

[2-3] [**8**] Surely, a matai has the authority to properly delegate such duties. It is true that we have previously stated, “a family whose senior matai title is vacant must select a senior matai before it can offer a land for registration. Faleafine v. Suapilimai, 7 A.S.R.2d 108, 113 (Land and Titles Div. 1988). This, however, says nothing about precluding a senior matai from using his inherent authority to delegate responsibilities to immediately effectuate his intent.

Aiono also challenges the validity of the survey on grounds that key portions of the map and the metes and bounds description had been lined out. We do not conclude, however, that these line-outs invalidate the original Tuia`ana registration. 

Tuia`ana Moi, the then sa’o of the Tuia`ana family, offered to register Tuamauga on July 27, 1992, as communal land belonging to the Tuia`ana family. Before Tuia`ana Moi proposed the registration, he directed Ma’ataua to have Tuamauga surveyed. The survey clearly identifies the property boundaries by metes and bounds. The offer to register Tuamauga, the survey of Tuamauga, and the signed certificate of survey notice were filed at the Office of the Territorial Registrar. 

Sam White (the present Territorial Registrar and an employee on the Registrar’s staff in 1992) explained that these line-outs were made after registration of the land as the [**9**] Tuia`ana family’s communal land had been finalized. According to White, the same survey was used when Tuia`ana Moi transferred the land to Ma’ataua shortly after the registration had become final. It was for this subsequent transfer that the portions of the survey map and description had been lined out. Aiono never challenged White’s statements regarding this matter. As such, these changes, which occurred after the land registration had been accepted and finalized by the Territorial Registrar, do not affect the validity of the survey or the registration of the Tuamauga land as Tuia`ana family’s communal land. 

II. Notice

A.S.C.A. § 27.0103 in relevant part reads:

(a) Notice of the proposed registration shall be posted for 60 days on the bulletin board at the courthouse in Fagatogo and at 2 public places in the village in which or nearest to which the land is located and shall be published in a local newspaper at least once each 30 days during the 60-day notice period. . . . 

(c) The Territorial Registrar shall not register any land until the applicant has provided notarized statements from the pulenu’u, newspaper, and clerk of the court, each of which states that the required notice has been given.

[4] Aiono claims that the Affidavit of Posting is deficient because its caption erroneously labels Tuamauga as individually owned, rather than communal, land. We fail to see how this mistake invalidates the Affidavit of Posting. The Registration [**10**] Notice correctly labels the land as communal. To suggest that a clerical mistake--as insignificant as mislabeling communal land on the Affidavit of Posting as being individually owned-- constitutes a fatal irregularity, which has interfered with providing the interested parties and the public at large proper notice, is a frivolous assertion we simply are not willing to entertain. 

[5-6] Similarly, we disagree with Aiono’s second reason for finding the Affidavit of Posting deficient. According to Aiono the affidavit does not have a signature or a seal from the Registrar or the Clerk of the Court; therefore, it is not valid. To be clear, we are satisfied that the affidavit has been properly signed. Nonetheless, we note that an affidavit will not be null and void simply because it is missing a signature from the Registrar or the Clerk of the Court. Nothing in subsection 37.0103(c), or Chapter 1 for that matter, requires the Territorial Registrar or the Clerk of the Court to sign and seal an affidavit of posting. As such, we simply cannot invalidate the affidavit, much more find a subsection 37.0103(c) violation, on these grounds.

We have previously held, “a document . . . missing from a file in the Registrar’s office is so common as to be an extremely unreliable indicator of whether an event that might have been attested by the document did or did not occur.” Ifopo [**11**] v. Siatu’u, 12 A.S.R.2d 24, 28 (App. Div. 1989). We recognize, “the Territorial Registrar . . . is charged with registering title only when all the statutory procedures have been met.” Id. Therefore, we have held, “the Court must assume and, absent compelling proof to the contrary, must conclude—that the Registrar recorded a title only after complying with his obligation under the law.” Id. 

Indeed, in the present case, it is upon these grounds that we refuse to invalidate the registration of Tuamauga where the basis for such an allegation rests only on the unavailability of the affidavit from the newspaper. This is not compelling proof of fraudulent conduct, and it certainly falls short of qualifying as a fatal irregularity. Stated more plainly, Aiono has not met his burden of providing compelling evidence to rebut the presumption that the Registrar complied with the law and reviewed the newspaper affidavit. 

There is other evidence that further convinces us that notice of registration regarding Tuamauga was published in the newspaper in compliance with the statutes. The evidence includes a copy of a receipt from Samoa News, which was issued to Tuia’ana Moi for a “reg office ad,” and copies of the newspaper clippings containing the actual notices. 

[7] In any case, the absence of a newspaper affidavit confirming the publication of the notice of registration is not [**12**] compelling proof that the Registrar registered land in violation of notice requirement.

We are satisfied that Tuia`ana Moi requested the survey and that the survey meets statutory requirements. We also find that sufficient evidence has been presented to establish that proper notice pursuant to Section 37.0103 was provided. None of the issues and supporting evidence that Aiono has presented convince us that the registration of Tuamauga was fraudulently obtained or that the registration documents contained fatal irregularities.

Order

Aiono has failed to provide evidence that would otherwise compel us to find that the survey was fraudulently obtained or that the registration contained fatal irregularities on its face. We therefore hold that title to the land Tuamauga was properly registered in 1992 as the Tuia`ana family’s communal land. 

It is so ordered.