Owners of Maliu Mai ordered to vacate property at Fugalei


Supreme Court Justice Tafaoimalo Leilani Tuala-Warren has ordered the owners of Maliu Mai at Fugalei, an American Samoa businessman, Mapu Jamaias and his wife Iliganoa Sooialo to vacate the property as “they have no legal basis to be on the land and they are ordered to vacate the property forthwith and remove their building.”

The decision was down by Supreme Court Justice Tafaoimalo in a lawsuit filed by Angela Frost, Wendell Frederick Frost and Evelyn Frost, who are the registered owners of the land at Fugalei on which Maliu Mai Bar and Restaurant has been situated since 16 October 2002. 

The Frost and the defendants signed a lease agreement dated 23 September 2004. That lease was terminated by the Frosts on 12 June 2020 due to default by the defendants in their lease payments of $200 USD a month.

The Frosts seek to remove the defendants from the land, but the defendants filed a counterclaim that they should be paid the cost of the building (SAT$943,000.00) which they built on the land and reclamation to the land (SAT$115,000.00). Defendant’s claim in total is $1.05 million tala.

Justice Tuala Warren noted there is no documentary evidence from the defendants to support the value of the duplex or the value of the reclamation at the time these were carried out. 

They gave evidence about the value but their evidence was at best guesswork given the amount of time which has passed there were no receipts for the fill for reclamation nor were there any receipts for the building of the duplex. 

The Defendants undoubtedly spent money on the improvements. That amount though is uncertain, and it has not been proved on a balance of probabilities with any certainty what that amount is.

According to the decision, both defendants say that Mr Frost, the father of the plaintiffs agreed that whatever the cost of the reclamation works would have to be taken out of the lease.

“The Deed of Lease governs that relationship between the parties. There is no mention of the duplex and reclamation of the land in that agreement, given that they were done pre-lease.

“Both parties had the opportunity in the agreement to include these matters. It is not for this Court to infer or read in any terms which are not in the lease agreement. “The only matter which is covered are improvements by the Lessee during the said term, being the term of the lease. This means that improvements outside the term of the lease is not provided for, so the risk is on the Lessee.”

Justice Tuala-Warren said in this case, the Lessor has no interest in purchasing the improvements, both the duplex and the restaurant, and have said that they have no issue with the defendants removing those buildings.

“Defendants breached the terms of the lease by defaulting in their lease payments which is not disputed. They cannot then rely on unjust enrichment to counter what the Plaintiffs were legally permitted under the lease agreement to do, and that is to terminate the
the agreement, given their non-observation of the lease agreement.

For the last 2 years, the defendants have lived on the property without making any payments.”  Adding that for the sake of completeness, Justice Tuala-Warren found that on a balance of probabilities that the Plaintiffs have been
enriched by the receipt of a benefit, that the enrichment has been at the defendant’s expense but it would not be unjust to allow the Plaintiffs to retain the benefit.

“I am referring specifically to the duplex built pre-lease. The defendants had built the duplex before they signed the lease. I can only
infer that they knew it was not covered by the lease as the only improvements covered by the lease are those done during the term of the lease.

“The defendants are fortunate that the Plaintiffs are allowing them to remove the whole building, including the duplex for which they had not provided under the lease agreement. The Plaintiffs end up with no benefit when the defendants remove their building.

“The reclamation will remain as it is not an improvement captured under the lease, nor is it unjust for the Plaintiffs to retain that benefit for the same reason as it is not unjust for them to retain the benefit of the duplex (which the Plaintiffs choose not to keep).

“The defendants had ample opportunity to include the reclamation in the lease agreement which they signed with the person who allegedly said to them that the reclamation would be factored into the lease.

However, they did not specifically include the reclamation they did pre-lease in the lease agreement, which allows me to infer that they were content with the lease agreement.”

Justice Tuala-Warren further noted a further and most significant point which should be made is that the Defendants are still in
occupation of the land despite the lease agreement being terminated in 2020.

“It is not disputed that the lease has been terminated by the Plaintiffs. The defendants, and their daughter or any other party
claiming under them, have no legal basis to be on the land and they are ordered to vacate the property forthwith and remove their building.

“For the foregoing reasons, Plaintiff’s claim is successful and the Defendant’s counterclaim is denied. “The Plaintiffs to file and serve Memorandum of Costs within 14 days. Plaintiff to file their response within a further 14 days.”