#### MAILO of Fagatogo, Plaintiff v. FUAMAILA of Fagatogo, Defendant

No. 6-1931

High Court of American Samoa Civil Jurisdiction, Trial Division [Land: “Matapuna” in Fagatogo]

Date unknown

Presiding: *Chief Justice*H. P. WOOD, *Associate Judge*PULETU, *Associate Judge*MULI

This action has been brought to determine who is the rightful owner of the land Matapuna located in Fagatogo.

The survey of the land has been filed by Fuamaila, the son of Fanene Pi deceased, and an objection to its *450registration has been filed by Mailo who claims a superior title to this property.

Early in the course of the trial the court’s attention was called by Mailo to the case of *“Mailo v. Fanene Pi”*which was tried before the High Court in 1908 and involved ownership of the land Utufao also in Fagatogo.

In that case the decision was in favor of Mailo. It was held that Mailo was the higher chief and Fanene Pi the lesser chief of the same family and that Fanene Pi held the land Utufao as the *nofo-fanau*of Mailo; that Fanene Pi’s possession of the land was by consent of Mailo, and that so long as the relations of the two families were friendly and Fanene Pi occupied the land he had the right to use it and its products, but the pule of the land was in Mailo subject to the conditions named.

While the title of the land Matapuna was not before the High Court in that case, the objection of Mailo to the registration of the land by Fuamaila is based on the assertion by Mailo that the title to the land in question is founded upon exactly the same conditions as the land Utufao, and also the land Vaiifi. The three pieces of land were mentioned by name in this case.

It is necessary therefor to examine the testimony and endeavor to ascertain from it whether or not this objection is sustained by the evidence.

It appears as undisputed that after the Village of Fagatogo was moved from its site where the Naval Station now is, the Fanene family moved to the land in question; that Fanene Pi lived and died there; that subsequently his widow lived there and the present Plaintiff was born there about thirty years ago. In Fanene Pi’s lifetime he sold a part of the land; after his death his widow sold a building on the land and after the sale this building was removed from the land.

*451Later Fanene Pi’s widow moved from this piece of land (about sixteen years ago) and it became vacant and then Mailo entered upon the land and his son Poloie (about five years ago) built a house on the land and has lived there ever since. It is claimed that Fanene Pi and his predecessor Fanene Aetonu are buried on the land, as well as members of the Mailo family.

It is undisputed that Mailo knew of this occupancy of the land by Fanene Pi, his predecessor and successors and made no objection to their occupancy. It is also undisputed that Fanene Pi’s successors knew of Mailo’s occupancy of the land both by himself and by his son after Fanene Pi’s widow left the land and that they made no objection to his occupancy. Mailo testified and without contradiction that his permission was asked and granted for the sale of this land and of the house of Fanene Pi and his widow respectively, and stated that as he had given this and other lands in Fagatogo to Fanene Pi as his *nofo-fanau*it was his intention that Fanene Pi and his family should live there so long as the two families were friendly and that the land was occupied by his *nofo-fanau,*but that he claims that when Fanane Pi’s family deserted the land it came back to him as of right, and now he has the sole pule over it.

It appears to the court that either the land in question is actually held by the proponents ancestors in the same tenancy as the land Utufao is held by them or else that it was held by Fanene Pi in his own right, but as it appears that Fanene Pi was of the Mailo family and was adjudged so to be by the decision of the court in the Utufao case, it becomes necessary to find out how the land was obtained by Fanene Pi in his own right, if such was the case. A witness for Fuamaila, Tavai, testified that this land was acquired by purchase by Tagilalagi of the Fanene Pi family from Gaisoa of the Tiumalu family, but *452Tiumalu, a witness for Fuamaila, testified that the witness was mistaken. Tiumalu did not tell the court how the land was acquired by Fanene Pi but contented himself as did Taamu, also a witness for Fuamaila by stating that he had always understood and was sure that the Fanene family held the land in its own right. No other testimony was offered by the proponent to show how and where the Fanene family acquired this land. It should be taken into consideration in appraising the weight of the testimony given by Tiumalu and Taamu that they are closely related; that they are land owners and own many pieces of land in joint ownership; and that Fuamaila formerly lived with Tiumalu and Taamu. This being so, while their statements are not to be disregarded yet their opinions must be based on such facts stated by them as will convince the court that such opinions may be taken as good evidence and it must be also taken into consideration that their testimony is not entirely unbiased especially Taamu’s, whose mother was the wife of Fanene Aetonu.

If the land in question is held by the descendants of Fanene Pi in a tenancy similar to that of Utufao, then the action of Mailo in appropriating it for his son without objection from the Fanene family is perfectly explainable —if it was not held in such a tenancy, how can it be explained that none of the Fanene family objected to the appropriation of the land by Mailo until last year (six months ago) at which time the land was filed for registration by Fuamaila? The land is in the very center of the Village of Fagatogo and is undoubtedly valuable as lands in Fagatogo go, yet no objection was made for over sixteen years to the occupancy of the land by Mailo.

If the land had been purchased by Fanene Pi with his own private funds, Mailo according to Samoan custom, would have had no right whatsoever as a greater matai than Fanene or as the supreme matai of the family to go on *453the land without the permission of the Fanene family except in a case where all the family had removed from the country and there was no one here to look after it, in which case the head matai would have the right and duty to protect the land from trespass by outsiders. If the land was held by Fanene as is Utufao then Mailo had the real pule of the land, and had the right to go upon it when he did. This latter alternative was not admitted by Tiumalu, who was asked to give his opinion on the subject and in answer to a question as to whether he had a *nofo-fanau*and if so whether he, as the head matai had the sole pule to the land given the *nofo-fanau*or whether the *nofo-fanau*had a pule equal to his, said his case was different, he has the pule of the land greater than that of his *nofo-fanau.*

There was considerable testimony taken but as usual each of the parties seemed to think that it was only necessary to present their own respective sides of the case and not to break down the statements of their opponents.

Taking all the testimony into consideration it is the opinion of the court that the pule of the land Matapuna is in Mailo and that as the Fanene Pi family has deserted the land Mailo’s pule legally enables him to recover possession of it as he has done. Mailo made the statement in court that he is not only willing but desires Fuamaila and his family to come back to the land and live there if they desire to do so, but it must be understood that this is on the condition of the recognition by them of Mailo’s pule and does not involve the right in them to register the land in their own name or to dispose of it without Mailo’s consent.

Judgment for Mailo — costs of $25.00 to be paid by Fuamaila.