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High Court denies ASVA motion in Tafuna land case

Calls case “grossly deficient” as attorney fails to show cause
fili@samoanews.com

Calling it “grossly deficient” the Appellate Division of the High Court denied the American Samoa Veterans Association (ASVA) application to stay the writ of restitution by the Trial court in the American Samoa Government’s case involving the government land in Tafuna leased to ASVA.

The property and current structure is now home to the American Samoa Career One Stop Center (ASCOSC).

The lower court ruled last year September that ASVA’s lease with ASG for the less than half acre lot next to the Office of Motor Vehicles compound expired in 2007 and said ASVA was “a holdover tenant”.

The court also said that “ASG is entitled to a writ of restitution restoring the premises in dispute unto itself.” The governor, in April last year, sent a letter to ASVA to vacate the premises, resulting in the suit challenging ASVA’s eviction from the property, which had been leased from the government at $1 a year.

ASVA contends that the writ was improperly given and filed a motion to stay the writ in the lower court, which later denied the request. ASVA then petitioned the appellate division for an order to stay the writ and the lower court’s decision to remove them from the property. The appellate matter was heard Apr. 5 this year.

“ASVA’s motion for a stay was accompanied by a single affidavit: that of Lauifi Tau’ili’ili, ASVA president,” said Acting Associate Justice Elvis Patea in a four-page decision dated Apr. 12. (Patea, a District Court Judge, served as Associate Justice by designation of the Interior Secretary)

“The affidavit, couched for the most part in conclusory terms and lacking in factual details, asserts... that ASVA has a ‘lease’ that expires in 2017, that ASVA will be irreparably harmed in its fundraising activities, and that an unrelated appeal pending before the Appellate Division clouds ASG’s ‘title to the property’,” said Patea. (No other information was provided about the unrelated pending appeal).

“No other sworn statements were submitted,” said  Patea. “The motion itself generalizes and refrains from pinpointing or citing portions of the record that would assist this court in its analysis.”

“Moreover, not a single part of the record was filed with the motion. In short, ASVA’s motion is grossly deficient,” he said.

Patea noted that on the date of the hearing, ASVA’s counsel (Mark Ude) presented arguments — but no other affidavits, no other sworn statements, absolutely no parts of the record that are relevant.

Patea said ASVA had over five weeks from the date it filed its motion for stay on Feb. 28 this year to prepare for the hearing that took place Apr. 5.

“The utter failure to produce non-conclusory affidavits or other sworn statements or relevant portions of the record leads to one conclusion: ASVA has woefully failed in its burden to produce evidence, to show cause,” he said. “And this court will not scour the record to pull the documents necessary to cure ASVA’s failure.”

CONCLUSION

“ASVA’s motion for a stay is grossly deficient; therefore, the motion does not trigger the likelihood-of-success and balance-of-equities analysis normally undertaken when evaluating motions for stay,” said Patea. “Accordingly, having failed in its burden to show cause, ASVA’s [motion] for a stay is denied.”



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