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Samoan Affairs certificate “lacks sufficient information” say judges

Remands Fagaima case to Land and Titles Division
fili@samoanews.com

The Appellate Division of the High Court has ordered a limited remand to the Land and Titles Division in the appeal by Fagaima Milovale Solaita on behalf of the Fagaima family, in a land case where the government is the appellee.

Oral arguments in this appeal were heard Apr. 26, 2012  and on Aug. 10, the appellate court filed an order holding that the lower court lacked subject matter jurisdiction necessary to hear this action in the first instance because a Certificate of Irreconcilable Dispute (CID) from the Office Samoan Affairs was not evidenced in the file.

Then on Aug. 20, the appellant filed a “Petition for Rehearing to Correct Record and Reconsider Decision.”

DISCUSSION

According to the judges, the appellant petitioned the court to correct its statement that there was no CID in the trial record and a subsequent search of trial record by the clerk’s office  found that an unsigned motion filed Jan. 6, 2009 had included the CID which was attached to the motion.

The CID was issued by the Samoan Affairs Office on Oct. 30, 2008 and signed Nov. 10 the same year. Accordingly, the court will vacate the Aug. 10, 2012 order dismissing appeal for lack of subject mater jurisdiction, the judges wrote.

Appellant further petitioned the court for a rehearing to reconsider its order dismissing the appeal.

“A rehearing is not a matter of right but it is privilege granted at the discretion of the appellate court,” said the judges citing an appellate case several years ago.

Having vacated the Aug. 10, 2012 order, “we exercise our discretion and deny the petition for rehearing,” the judges stated.

“However, we will maintain appellate jurisdiction over this matter and order a limited remand back to the Land and Titles Division to determine whether the CID issued by the Office of Samoan Affairs satisfies the statutory requirements for conferring subject matter jurisdiction upon the court,” the judges noted.

A footnote in the order states, “Our decision does not reach, and was not influenced by, Appellant’s arguments in his petition regarding the ‘mediation’ process” at the Samoan Affairs Office.”

According to the judges, parties to a dispute involving communal land are statutorily required to attempt to resolve the dispute before the Office of Samoan Affairs prior to seeking relief from the court.

It is only after such dispute resolution has failed and the Office of Samoan Affairs issues a CID, that the court will have subject matter jurisdiction over the disputed land, the judges said and pointed to a provision of local law that outlines such matters.

The judges went on to point out that both the Appellate Division and the Land and Titles Division have generally required the Samoan Affairs Office to take reasonable measures to satisfy preconditions of local law before the court exercises jurisdiction over the case.

For example, the Land and Titles Division previously held that the court does not have proper jurisdiction over a land dispute where the CID or record fails to affirm that the parties have appeared at least twice before the Secretary of Samoan Affairs, or his deputy, or that all parties to the controversy have received notice no less that 20 days prior to each of the two appearances.

Here, the CID appears to lack sufficient information to satisfy the requirements of the law and the CID references a “Land Dispute in the Village of Tafuna” but does not include any description of parcels of land at issue, the judges pointed out.

While the CID states that all parties and their respective representatives were served notices before the hearing was conducted, the CID didn’t provide that all parties received at least 20 days notice.

Further, the CID  does not contain any findings or conclusions; it merely states that “the matter could not be resolved among the parties,” the judges said and noted that the CID does not explain why the controversy could not be resolved.

“Because the record before us does not clearly indicate the statutory preconditions occurred, we remand this case to the Land and Titles Division for the limited purpose of determining whether the preconditions set for under ASCA 43.0302 have been met,” the judges said.

According to the judges, the order dismissing appeal for lack of subject matter jurisdiction is vacated and the appellate division maintains appellate jurisdiction over this matter.

The seven-page order is signed by associate justices Lyle L. Richmond and John L. Ward II; acting associate justice Elvis R. Pila Patea and associate judges Suapaia E.C. Pereira and Fa’amausili P. Pomele.

BACKGROUND

Fagaima, through local attorney Charles Alailima, has sought to reclaim 130 acres of land near the government housing tract in Lions Park, which was leased to the government during the 1940’s.

The land encompasses certain tracts of the Sen. Daniel Inouye Industrial Park, which are being used by the government as well as being currently leased to private companies by the government.

Fagaima appealed the Lands and Title Divisions ruling which grants judgement in favor of the government over the land that he is seeking to reclaim, because the statute of limitations has ran out.

The government is represented by Assistant Attorney General Vincent Kruse.



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