On Motions for Reconsideration and Relief From Judgment:
Moea'i moves for reconsideration of our decision rejecting most of his claim to the land called Mapusaga. [8 A.S.R. 85 (1988).] Tuia'ana also moves for reconsideration, although our decision awarded him all of the land he claimed within the Moea'i survey. Moea'i also makes a motion for relief from the judgment on the ground of new evidence.
We deal first with the two Moea'i motions, then with the Tuia'ana motion.
[109]*109I. The Moea'i Motion for New Trial
Moea'i first asserts that the Court erred "in its judgment that Moea'i failed to prove his family’s claim." This is an objection to the trial court’s findings of fact. In this case our finding was based on our judgment of the credibility of the claimant’s witnesses. Although Moea'i witness Valoaga Moananu provided a helpful summary of the general history of the area, the remainder of the testamentary evidence offered by Moea'i was either irrelevant or unbelievable or both.
The heart of Moea'i’s claim was that all nine of the tracts leased to the Church in 1902 or 1903,1 which the lease identified as belonging to [110]*110the chiefs of Faleniu, were in fact the property of Moea'i. This claim would require us not only to adopt a strained interpretation of the language of the lease itself, but also to disbelieve the testimony of every other witness on matters such as the circumstances of the signing of the lease and who received the money when the land was sold in 1944. As we pointed out in our original opinion, this position is also inconsistent with the testimony of a former Moea'i titleholder in a 1949 High Court case and with the claims made by the present Moea'i himself in 1966.
To cite just one other example of what seemed like a deliberate attempt to mislead the Court, Moea'i put on an elderly witness to testify that his mother and another female relative were buried on the land. Samoans have traditionally been buried on their family’s communal land, and the importance of discussing family gravesites in a Samoan land case is to establish long occupancy and a tradition that the land belongs to the family whose members are buried there. On cross-examination, however, it was revealed that the two people in question were buried in the Mormon cemetery along with scores of other people with no claim to ownership of the land.
Moea'i also observes that the Court’s opinion, in contrast to Moea'i’s testimony, does not account for each and every one of the nine names of land listed in the 1903 lease --- or, as it now appears, in the 1903 copy of the 1902 lease.
This was a matter that disturbed the Court, and on which the judges themselves asked some questions to witnesses at trial. We believe the disparity between the names by which the various parts of land were called in 1902 and the names used by most parties to the present litigation is due partly to competing traditions within different branches of family groupings. For instance, the grouping containing the Alai'a and Seigafo families was represented in 1902 by Seigafo, in 1944 by Alai'a and Seigafo, and in this litigation by Alai'a. Similarly, the family grouping including Tuia'ana and Magalei was represented in 1902 only [111]*111by Magalei, in 1944 by Tuia'ana and Magalei, and in this lawsuit by Tuia'ana alone. At the hearing on this motion Magalei testified that he and other chiefs of his family who might have had claims to parts of Mapusaga chose instead to defer to Tuia'ana. And yet he also testified that part of the land known to Tuia'ana as "Luale'a" was known within his branch of the family as "Mauga o le Sea." Other similar divergences of opinion within the family groupings that include the four parties to this case could well account for the remaining 1902 names. (We note that, in response to an objection from neighboring landowners, the lessors agreed in 1902 to delete the name of one tract of land from the list of those wholly or partly included in Mapusaga. And yet they did not delete any land area or change the metes and bounds of the area to be leased. See note 1, supra. This suggests that there must have been some difference of opinion even then about the names of the tracts composing Mapusaga.)
It is also possible that other families with historic claims to parts of Mapusaga chose not to press those claims in the present litigation, and that their lands (along with the names thereof) were subsumed within the lands awarded to the four parties herein. Such a result is certainly possible under our land registration statutes, which require land claimants to object within sixty days to the filing of a rival registration or forever hold their peace. If this did happen, it almost certainly had the effect of enlarging rather than reducing the amount of land awarded to Moea'i.
The Court was bound to weigh the evidence and arguments that were actually presented to it by the four parties before the Court. Nobody’s case was free from doubt, but Moea'i’s was the weakest of the four. In our judgment, the way in which he used all nine of the 1903 names weakened rather than strengthened his credibility.
Finally, Moea'i urges that Tuia'ana "is not capable of owning land under Samoan customs" and that Alai'a "failed to prove by a preponderance of evidence ... a capacity to own land under Samoan customs." These issues were not raised in the pleadings, although Moea'i knew at the time he filed his pleading that Tuia'ana and Alai'a were among the objectors to his survey. Nor are they mentioned in Moea'i’s pre-trial memorandum, despite [112]*112the Court’s clear admonition to counsel to include any disputed issues of law or fact in their pretrial memoranda. As far as the Court can recall, Alai'a’s capacity to own land was not even raised at trial.
Tuia'ana is the bearer of the ava cup for the village council. In some villages the bearer of the ava cup is regarded as a matai, in some not. Tuia'ana was among the matai of Faleniu listed when the matai register was established in 1906; he is listed in the 1944 deed as a chief of Faleniu; and Magalei, the leading matai of Faleniu, testified that he is regarded as a matai and sits as such in the village council. We do not believe the merits of this issue are properly before the Court, but if they were we would hold that Tuia'ana is a matai and can therefore own communal land.
II. The Motion for Relief from Judgment
Moea'i has also filed a motion for relief from the judgment under Rule 60(b) of the Territorial Court Rules of Civil Procedure. The motion is grounded in the discovery after trial of a Samoan language version of the 1902 lease. See note 1, supra. Whereas the English version of the lease refers to Mapusaga as including "parts of" Toa and certain other lands, the Samoan version speaks of "vaega itiiti" or "small parts" of these lands. Since the Court’s decision appears to include as part of Mapusaga a rather large tract designated Toa, Moea'i argues that it is inconsistent with the Samoan version of the lease.
We assume for the purpose of this motion that the evidence could not have been discovered with due diligence prior to trial. Nevertheless, we deny the motion.
First, it is not clear that "vaega itiiti" necessarily means a small part in an absolute rather than a comparative sense. The Samoan language contains no comparative adjectives.
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On Motions for Reconsideration and Relief From Judgment:
Moea'i moves for reconsideration of our decision rejecting most of his claim to the land called Mapusaga. [8 A.S.R. 85 (1988).] Tuia'ana also moves for reconsideration, although our decision awarded him all of the land he claimed within the Moea'i survey. Moea'i also makes a motion for relief from the judgment on the ground of new evidence.
We deal first with the two Moea'i motions, then with the Tuia'ana motion.
[109]*109I. The Moea'i Motion for New Trial
Moea'i first asserts that the Court erred "in its judgment that Moea'i failed to prove his family’s claim." This is an objection to the trial court’s findings of fact. In this case our finding was based on our judgment of the credibility of the claimant’s witnesses. Although Moea'i witness Valoaga Moananu provided a helpful summary of the general history of the area, the remainder of the testamentary evidence offered by Moea'i was either irrelevant or unbelievable or both.
The heart of Moea'i’s claim was that all nine of the tracts leased to the Church in 1902 or 1903,1 which the lease identified as belonging to [110]*110the chiefs of Faleniu, were in fact the property of Moea'i. This claim would require us not only to adopt a strained interpretation of the language of the lease itself, but also to disbelieve the testimony of every other witness on matters such as the circumstances of the signing of the lease and who received the money when the land was sold in 1944. As we pointed out in our original opinion, this position is also inconsistent with the testimony of a former Moea'i titleholder in a 1949 High Court case and with the claims made by the present Moea'i himself in 1966.
To cite just one other example of what seemed like a deliberate attempt to mislead the Court, Moea'i put on an elderly witness to testify that his mother and another female relative were buried on the land. Samoans have traditionally been buried on their family’s communal land, and the importance of discussing family gravesites in a Samoan land case is to establish long occupancy and a tradition that the land belongs to the family whose members are buried there. On cross-examination, however, it was revealed that the two people in question were buried in the Mormon cemetery along with scores of other people with no claim to ownership of the land.
Moea'i also observes that the Court’s opinion, in contrast to Moea'i’s testimony, does not account for each and every one of the nine names of land listed in the 1903 lease --- or, as it now appears, in the 1903 copy of the 1902 lease.
This was a matter that disturbed the Court, and on which the judges themselves asked some questions to witnesses at trial. We believe the disparity between the names by which the various parts of land were called in 1902 and the names used by most parties to the present litigation is due partly to competing traditions within different branches of family groupings. For instance, the grouping containing the Alai'a and Seigafo families was represented in 1902 by Seigafo, in 1944 by Alai'a and Seigafo, and in this litigation by Alai'a. Similarly, the family grouping including Tuia'ana and Magalei was represented in 1902 only [111]*111by Magalei, in 1944 by Tuia'ana and Magalei, and in this lawsuit by Tuia'ana alone. At the hearing on this motion Magalei testified that he and other chiefs of his family who might have had claims to parts of Mapusaga chose instead to defer to Tuia'ana. And yet he also testified that part of the land known to Tuia'ana as "Luale'a" was known within his branch of the family as "Mauga o le Sea." Other similar divergences of opinion within the family groupings that include the four parties to this case could well account for the remaining 1902 names. (We note that, in response to an objection from neighboring landowners, the lessors agreed in 1902 to delete the name of one tract of land from the list of those wholly or partly included in Mapusaga. And yet they did not delete any land area or change the metes and bounds of the area to be leased. See note 1, supra. This suggests that there must have been some difference of opinion even then about the names of the tracts composing Mapusaga.)
It is also possible that other families with historic claims to parts of Mapusaga chose not to press those claims in the present litigation, and that their lands (along with the names thereof) were subsumed within the lands awarded to the four parties herein. Such a result is certainly possible under our land registration statutes, which require land claimants to object within sixty days to the filing of a rival registration or forever hold their peace. If this did happen, it almost certainly had the effect of enlarging rather than reducing the amount of land awarded to Moea'i.
The Court was bound to weigh the evidence and arguments that were actually presented to it by the four parties before the Court. Nobody’s case was free from doubt, but Moea'i’s was the weakest of the four. In our judgment, the way in which he used all nine of the 1903 names weakened rather than strengthened his credibility.
Finally, Moea'i urges that Tuia'ana "is not capable of owning land under Samoan customs" and that Alai'a "failed to prove by a preponderance of evidence ... a capacity to own land under Samoan customs." These issues were not raised in the pleadings, although Moea'i knew at the time he filed his pleading that Tuia'ana and Alai'a were among the objectors to his survey. Nor are they mentioned in Moea'i’s pre-trial memorandum, despite [112]*112the Court’s clear admonition to counsel to include any disputed issues of law or fact in their pretrial memoranda. As far as the Court can recall, Alai'a’s capacity to own land was not even raised at trial.
Tuia'ana is the bearer of the ava cup for the village council. In some villages the bearer of the ava cup is regarded as a matai, in some not. Tuia'ana was among the matai of Faleniu listed when the matai register was established in 1906; he is listed in the 1944 deed as a chief of Faleniu; and Magalei, the leading matai of Faleniu, testified that he is regarded as a matai and sits as such in the village council. We do not believe the merits of this issue are properly before the Court, but if they were we would hold that Tuia'ana is a matai and can therefore own communal land.
II. The Motion for Relief from Judgment
Moea'i has also filed a motion for relief from the judgment under Rule 60(b) of the Territorial Court Rules of Civil Procedure. The motion is grounded in the discovery after trial of a Samoan language version of the 1902 lease. See note 1, supra. Whereas the English version of the lease refers to Mapusaga as including "parts of" Toa and certain other lands, the Samoan version speaks of "vaega itiiti" or "small parts" of these lands. Since the Court’s decision appears to include as part of Mapusaga a rather large tract designated Toa, Moea'i argues that it is inconsistent with the Samoan version of the lease.
We assume for the purpose of this motion that the evidence could not have been discovered with due diligence prior to trial. Nevertheless, we deny the motion.
First, it is not clear that "vaega itiiti" necessarily means a small part in an absolute rather than a comparative sense. The Samoan language contains no comparative adjectives. Although the gradual influence of the structure of the English language has resulted in the adoption of phrases roughly equivalent to comparatives, it is probable that the signers of the 1902 lease would have said "Mount Everest is larger than the Matterhorn" by saying: "Mount Everest is large, the Matterhorn is small." (E tele le Mauga Everest, e [113]*113la'itiiti le Matterhorn.) The term "vaega itiiti" may well have meant not "small parts" but "smaller parts".2 It is beyond dispute that the 1902 lease describes Mapusaga as including all of five tracts of land and smaller parts --- that is, less than all --- of five other tracts. This is fully consistent with the Court’s holding in the present case.
Moreover, the exact wording of the Samoan version is of dubious importance in light of the fact that the original version of the lease was almost certainly the English version. The English [114]*114document abounds with standard Anglo-American legal terminology and does not bear the earmarks of a translation from the Samoan; the Samoan version contains what seem to be awkward and sometimes incorrect attempts to convey English legal terms. The original English version says "parts of Toa," not "small parts" or even "smaller parts."
Moea'i’s point in bringing this motion seems to be that "vaega itiiti" was mistranslated in the English version as “parts," It seems more likely,' however, that “parts" was just the word the drafter had in mind and that the newly discovered evidence is itself the mistranslation. Although even an incorrect Samoan translation might be relevant to determining the intentions of the parties, in this case the primary definition of the land is by reference to its exterior boundaries. The lessors would have known what land they were leasing by virtue of having seen and probably walked these boundaries rather than by reference to the description of certain parts of it as "small” or "large" in a legal document. See note 1, supra. Moreover, the revised (1903) English version contains a certificate by Secretary Gurr that he had explained it in Samoan to the lessors, who understood and agreed to it. This version, like the 1902 English version, speaks of "parts" of Toa and other lands with no reference to whether the parts are small or large.
Even more important, the Court never made a finding with reference to how much of Toa was inside the 1902 lease and how much was outside. It seems beyond dispute that Toa extended for some distance beyond the lease boundaries on the mountain side. Alai'a testified that the land had also traditionally extended further toward the sea than was reflected in his survey. Nothing in the Court’s opinion is inconsistent with the proposition that the Alai'a/Seigafo family in 1902 regarded the land they were leasing to the Church as but a small part of their rightful holdings.
Finally, even if Alai'a’s version of Toa were too large to be described under any circumstances as a "vaega itiiti" it would not follow that Moea'i should receive more of Mapusaga than he already has. As we noted in our discussion of Moea'i’s motion for reconsideration, it is possible that parts of the land Alai'a now calls Toa were once called other things by various branches of the [115]*115Alai'a/Seigafo family group. It is also possible that parts of the Court’s award to Alai'a belonged before 1902 to chiefs whose successors in title did not choose to appear in this litigation. We observed in our original opinion that some of the evidence submitted by Alai'a with reference to the southern boundary of Toa,
although plausible, is rather thin. Yet it is thicker than the evidence put on by . . . Moea'i .... Moea'i concentrated on his claim to own all Mapusaga and therefore put on no convincing evidence in what is essentially a boundary dispute between the strong claim of Alai'a in the north and west and Moea'i’s own claim (comprising at least Avalúa) in the south.
Slip Opinion at 12, 8 A.S.R.2d at 93.
The injection of the vaega itiiti issue does not cause us to change our opinion on this point.3
III. The Tuia'ana Motion
Curiously, Tuia'ana also moves for reconsideration. He objects to the award to Moea'i of a small piece of land on the mountainside behind the tract awarded to Tuia'ana. Moea'i was the only claimant to this piece of land. Counsel for Tuia'ana informs us that neither he nor his client knew that the Moea'i survey extended to the mountainside and that this is why Tuia'ana did not submit his own claim in that area.
This is shocking. It was the lawyer’s job--the most basic and obvious part of the lawyer’s job --- to know what land was being litigated in the case and to explain this to his client well before trial. Nothing in the evidence or arguments adduced by counsel for Tuia'ana suggested that he had any quarrel with the claim of Moea'i to the tract of land in question.
[116]*116If Tuia'ana has a remedy, it does not consist of a motion for new trial, since such a motion for new trial must be based on the evidence that was before the Court. Under certain circumstances a party may move for relief from a judgment, as Moea'i has already done in this case. It seems quite possible, however, that the pursuit of such relief by Tuia'ana will give rise to a conflict between his interests and those of his present attorney.
We strongly urge Tuia'ana to consult another attorney about his rights in this matter.
Conclusion
The motions to reconsider and the motion for relief from judgment are denied.
It is so ordered.