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Jack v Hisaiah [2001] MHHC 1; Civil Action No 1999-250 (12 March 2001)

THE HIGH COURT
REPUBLIC OF THE MARSHALL ISLANDS
MAJURO ATOLL

Civil Action No. 1999-250

RITOK H. JACK
Plaintiff

Vs.

TOKIKO HISAIAH and DAVID HISAIAH
Defendants

ORDER SUSTAINING DEFENDANTS' MOTION UNDER RULE 14
AND ADOPTING FINDINGS OF FACT BY
TRADITIONAL RIGHTS COURT AND MEMORANDUM OPINION

After due hearing and argument, the High Court finds that the Findings of Fact of the Traditional Rights Court in its Opinion in Answer dated November 16, 2000, are supported by evidence.

It is, therefore, ORDERED that Defendants' motion to adopt the findings of the Traditional Rights Court is hereby sustained. The Findings of Fact of the Traditional Rights Court set out in that Court's Opinion in Answer are hereby adopted.

Signed March 12, 2001

H Dee Johnson, Jr., Presiding Judge

Filed March 12 2001

MEMORANDUM

The instant lawsuit concerns the rights of alap¹ to Wojalikok Ean Weto, Arrak Island, Majuro Atoll. It centers around a lease for certain uses of that Weto signed by Defendant Tokiko Hisaiah alap for that weto. The issue of who is the alap for Wojalikok Ean Weto were referred to the Traditional Rights Court. By its Opinion in Answer dated November 16, 2000, the TRC found that, in accordance with Marshallese custom, Tokiko Hisaiah was the proper person to be alap on Wojalikok Ean Weto.

THE TRADITIONAL RIGHTS COURT

The TRC is created by Article VI, Section 4, of the Constitution. Its Constitutional jurisdiction is "... questions relating to titles or to land rights or to other legal interests depending wholly or partly on customary law and traditional practice in the Republic of the Marshall Islands," Art. VI, Sec. 4(3), Constitution. The Constitution directs the High Court as follows: "When a question has been certified to the Traditional Rights Court for determination under par graph (4), its resolution of the question shall be given substantial weight in the certifying court's disposition of the legal controversy before it ...," Art. VI, Sec. 4(5), Constitution.

The Judges of the TRC are selected for, among other things, their knowledge of the customary law and traditional practices of the Marshallese community. They are, themselves, experts on the legal subject under their jurisdiction. Although they are obligated to consider evidence, they also bring this personal expertise to bear on the controversies before them.

The High Court is not bound by findings of fact of the TRC. However, as noted above, the High Court is directed by the Constitution to give substantial weight to their findings. Therefore, this Court will not disregard the findings of the TRC unless they are clearly erroneous.

THE CUSTOM IDENTIFIED BY THE TRADITIONAL RIGHTS COURT

In this case, the land rights in question were somewhat unusual. Andrew Hisaiah, Tokiko's husband, purchased the land rights of alap and senior dri-jerbal rather than inheriting same. The TRC observed that the fact that these are purchased land rights takes the succession of those rights on death out of the more usual pattern of succession in bwij land. The TRC then found a customary pattern of succession that was applicable to this situation. Based on that finding, the TRC found that Tokiko Hisaiah succeeded Andrew as alap of Wojalikok Ean Weto.

The High Court finds these findings are supported by the evidence before the TRC. They are not clearly erroneous. They are adopted by the High Court herein.

LIMITS OF THE TRC'S POWERS

In its Opinion in Answer, the TRC stated as follows: "This Court is also of the opinion that UNDER CUSTOM yes, it has the authority to override anything and any arrangement that it finds to be violation of the Marshallese custom." This, of course, is dictum in this case. The High Court notes that, with the passage of time and the changes in the world in which the Marshall Islands find themselves, there may be modern changes in the customary and traditional practices. The power to identify and declare these changes lie with the Nitijela. Of course, the TRC does not have the power to override anything determined by the Nitijela to be the law of the land.

Signed March 12, 2001

H Dee Johnson, Jr.,
Presiding Judge

Filed March 12 2001

ENDNOTES:

In the beginning, the position of Senior Dri-Jerbal was also in dispute. However the parties have stipulated that David Hisaiah is the proper person to be Senior Dri-Jerbal.