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Grounds for dismissal in land case appeal "complete surprise" to attorney

Says 'missing document' was filed in 2009
reporters@samoanews.com

The Appellate Court ruled to dismiss the appeal by Fagaima Milovale Solaita, who’s seeking to reclaim 130 acres of land near the government housing tract of Lions Park, which was leased to the government during the 1940’s.

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

The Appellate Division of the High Court noted that the lower court lacked subject matter jurisdiction necessary to hear this action in the first place because it lacks the Certificate of Irreconcilable Dispute (CID) the office of Samoan Affairs issues before any case is eligible to be filed and heard before the court.

However, Charles Alailima representing the appellant Fagaima told Samoa News that the grounds of the dismissal is a complete surprise to him given that the CID certificate was filed with his motion to set trial back in January 2009.

Alailima provided Samoa News with his stamped motion to set trial that was filed on January 6, 2009 with the attachment of the CID which was signed by Deputy Secretary of Samoan Affairs, Nanai Afuola on November 10, 2008.

The CID notes there were three hearings held in this matter between the government and Fagaima Milovale between August and October 2008.

Alailima added he has discussed this matter with Fagaima who authorized him to file a motion with the court regarding this error in their decision, and reconsider the decision.

“I will file that motion on Monday (today)” said Alailima.

APPELLATE RULING

According to the ruling, in 1940 the Fagaima family allegedly leased 130 acres of land to the government when Fagaia Tulafono Solaita was the sa’o of the Fagaima Communal family from 1945 to 1968. 

Due to his military career, which kept him off island, Fagaima Tulafono conducted communal land matters through a series of proxies including his brother-in-law Punefu Siania.

To that end, Fagaima Tulafono granted Punefu Power of Attorney in 1957. In 1959 the government acquired nearly 50 acres of Fagaima communal land by condemnation for just compensation.

The order explains that on June 3, 1968 in Honolulu, Hawai’i,  Punefu, acting under Fagaima Tulafono's power of attorney, concluded, signed and transferred a purportedly fee simple absolute interest in another 77.88 acres of Fagaima Communal land abutting the  Pala lagoon in the form of two warranty deeds.

The warranty deeds granted the government the 77.88 acres for consideration of $46,000, which was kept in a bank account which found its way to Fagaima Tulafono in the 60’s. The order explains that the government registered the two warranty deeds on June 11, 1965.

The government since has openly and publicly built upon the once-Fagaima communal land, including constructing government housing and industrial buildings for lease. The order further states that no member of the Fagaima family ever judicially challenged the warranty deed transfer nor the condemnation until October 24, 2003 when the current Fagaima title holder, Appellant Fagaima Milovale Solaita, son of Fagaima Tulafono, filed a complaint in the Land and Titles Court to reclaim the land.

The Appellate court ruled that “We hold herein that the lower court (Lands and Titles Division of the High Court) lacked the subject matter jurisdiction necessary to hear this action in the first instance.”

The order explains that “A court cannot render a decision or judgment in an action for which the court knows it lacks subject matter jurisdiction. “Generally, any such judgment of decision is a nullity (provided the issue of jurisdiction is raised). “Consequently, any party or the court itself can question the court’s jurisdiction.

“If (the Appellate Division) is made to know or discover it (or the lower court) lacks jurisdiction over a controversy at any time during the litigation process the court must dismiss that controversy.”

The Appellate court stated ASCA 43 is a statute which mandates a certain procedure before the lands and titles Division of the High Court may entertain any action relating to controversies over communal land that is, before the lands and titles Division has subject matter jurisdiction over a controversy concerning communal land.

The last page of the order states that there is no evidence of any CID appearing in the record before the Appellate court.

The Appellate court states that given the Land and Titles Division lacked the subject matter jurisdiction to hear this controversy in the first place, they will vacate all orders issued and remand this appeal for proceedings consistent with this order.



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