1 MILR (Rev.) 3

IN THE SUPREME COURT
REPUBLIC OF THE MARSHALL ISLANDS

S.Ct. CIVIL NO. 82-02
(High Ct. Civil No. 1980-021)

ABNER, et al.,
Plaintiffs-Appellants,

-v-

JIBKE, et al.,
Defendants-Appellees.

APPEAL FROM THE HIGH COURT

AUGUST 6, 1984

BURNETT, C.J.

SUMMARY:

In a dispute concerning succession to alap rights, the court found misunderstanding and misstatement of relevant evidence, as well as consideration of out-of-court statements, by the trial court. Concluding that allowing the judgment to stand would be inconsistent with substantial justice, the judgment was reversed and the case remanded for further proceedings.

DIGEST:

1. APPEAL AND ERROR – Dismissal, Grounds for – Failure to Identify Errors: The notice of appeal must contain a "concise statement of the questions presented by the appeal." The Court may decline to hear an appeal where it cannot be determined from the notice of appeal what the alleged error was.

2. APPEAL AND ERROR – Review – Harmless Error: Errors by the court below are not grounds for an appellate court to disturb a judgment unless refusal to do so would be inconsistent with substantial justice.

3. APPEAL AND ERROR – Review – Discretionary Matters – Findings of Fact: Findings of fact by the trial court will not be set aside unless clearly erroneous.

4. LAND RIGHTS – Iroij – Decisions: The determinations of iroij are presumed to be reasonable unless it is clear that they are not.

5. LAND RIGHTS – Marjinkot Lands – Termination of Rights: In order to change rights in Marjinkot lands, in absence of consent, good cause must be shown.

6. LAND RIGHTS – Possession: Possession or use of land does not, in itself, convey any rights in the land under the custom.

OPINION OF THE COURT BY BURNETT, C.J.

This appeal is taken from a judgment by the High Court, Republic of the Marshall Islands, on October 27, 1982, holding that the successors to Defendant Jibke have alap and dri jerbal rights to Aibwij, Monke and Lojonen wetos on Bikiej Island, Kwajalein Atoll. The action began originally in the High Court of the Trust Territory and was transferred upon organization of the courts of the Marshall Islands.

Plaintiffs filed the complaint, as successors to Abner, to protest a decision in 1980 by then Iroij Lojellan Kabua that Jibke held the alap rights in the subject lands. Plaintiffs' theory was that the lands had been given as Marjinkot land to Abner's ancestor Laemokmok by Iroij Laninbit, and that a succeeding iroij could not cut off the rights of the bwij without either consent or good cause to do so. They further allege that no reason was given by the iroij for his decision.

Defendants' answer was, essentially, a general denial, followed by a request that the matter be submitted to Iroij Manini for his review.

Following trial in July of 1982, Judgment was entered on October 27, 1982; the record on appeal certified March 17, 1983. Appellants, after two extensions of time in which to do so, filed a brief on appeal August 1, 1983. No responding brief was filed by Appellees, though a requested extension of time for that purpose was granted.

[1] Appellants' brief identified, for the first time, errors of the trial court which they contend resulted in an erroneous judgment. The Notice of Appeal asserted only that both findings of fact and conclusions of law were erroneous. It is obviously not in compliance with Rule 3 of the Appellate Rules of Procedure, which requires that it contain "a concise statement of the questions presented by the appeal; …." The appeal has been permitted to proceed so that rights may not be lost through the efforts of inadequate counsel.

Before proceeding to consideration of the appeal, notice must be taken of the limits of appellate consideration, imposed both by statute and by decisions of the predecessor court of the Trust Territory.

[2] First, no error with respect to admission or exclusion of evidence, or in any ruling of the court, nor in anything done by either the court or parties can be grounds for an appellate court to disturb a judgment, unless refusal to do so "appears to the court inconsistent with substantial justice." 6 TTC § 351, Bina v. Lajou, 5 TTR 366 (1971).

[3] Findings of fact by the High Court may not be set aside unless "clearly erroneous." 6 TTC § 355(2). As frequently stated by the Trust Territory courts, the appellate court must refrain from re-weighing the evidence, and must make every reasonable presumption in favor of the trial courts decision. Olper v. Damarlane, 7 TTR 496 (App. Div. 1977).

1. Appellant first contends that the trial court was unable to give full and fair consideration to the case as a whole, by reason of confusion concerning "significant portions of the evidence."

It seems clear that there was a great deal of confusion on the part of everyone concerned, beginning with the difficulty in identifying the real present parties in interest; both of those named, Abner and Jibke, were dead before the case began. The trial court was understandably confused by the pattern of examination, the lack of a systematic development of the case by trial counsel. That there also was difficulty in translation of testimony in an understandable fashion, is obvious.

Even with the benefit of the trial transcript, it is not at all easy to follow the course of the trial. Nevertheless, there are clear misstatements of the testimony contained in the trial court's opinion, notably that of the plaintiffs' principal witness, Matrine. Hers was the only testimony as to the years of the deaths of Abner (1977) and Jibke (1958); she is quoted in the opinion as saying Jibke outlived Abner, and that he lived on the wetos for eight years after a 1950 survey.

She had testified that he lived on Ebeye during that time, and that it is Katmene (from Abner's bwij) who returned to the land after the survey.

Actually no one was allowed to live on the land during the time in question; there was no right of "possession" as such, but only the right to receive payments for land use, and occasional rights to go back for planting. Thus, evidence as to receipt of payments becomes highly significant. The court found, as fact, that Plaintiffs did receive payments, but dismissed the significance of that finding.

2. Appellant next claims error in connection with the parties' attempt to seek a review by the current Iroij Manini, successor to Lojellan.

Prior to conclusion of the trial, the trial counsel, with the court's consent, agreed to submit the dispute to Manini. The transcript makes clear that according to statements of defendant-appellee counsel, Manini was too sick to see them. The court, however, advised counsel that he had been told, out of court, that Manini had refused, saying he had already decided it. The court's decision reflects this understanding. I must agree that the court's reliance on the out of court statement was prejudicial.

3. Finally, Appellant claims error in the court's conclusion that the decision of Iroij Lojellan Kabua in favor of Jibke was reasonable and in accord with customary law of the Marshall Islands.

The primary problem is that there was nothing to show the basis for the decision of Iroij Lojellan, or, as claimed by Appellee, a predecessor iroij.

The court accepted Appellant's contention that the lands had been given to Laemokmok as Marjinkot, and made a specific finding to that effect. The genealogy chart, accepted into evidence, showed descent to Abner and, through him to the Appellants.

No reason was given, or shown, for the decision of Iroij Lojellan, other than his display of the iroij book, without showing it; the book was not introduced in evidence, so there is no way to determine when any pertinent entry was made, nor who made it.

[4] Thus we do not know whether this is similar to Anjetob v. Taklob, 4 TTR 120 (Tr. Div. 1968). There the plaintiffs sought to overturn a decision by the then iroij which was based on that of an earlier iroij long ago. The determinations of an iroij are presumed to be reasonable unless it is clear that they are not. The court then held the prior decision presumption to be reinforced "by a presumption analogous to 'the presumption of grant' or 'doctrine of lost grant.'" That the Plaintiffs had made use of the land at times changed nothing, the court finding that such use does not necessarily show acknowledgment of "any rights in the lands."

The court gave no consideration to the custom as to Marjinkot lands nor was anything shown as to cause for rights being anywhere other than in the recipient bwij, that of Abner. For discussion of Marjinkot, see J. Tobin, Land Tenure Patterns (1956), page 34 et seq.

[5] In Labiliet v. Zedekiah, 6 TTR 19 (Tr. Div. 1972), the court held that, in order to change rights in Marjinkot lands, in the absence of consent, there must be good cause shown. Here, since the iroij book was not in evidence, we are unable to even tell when, or by whom, the first decision was made to establish Jibke as alap, outside of the recipient bwij.

It is clear that both Abner and Jibke had been "in possession," at varying times in the past, and that they and their people had received payments for land use. Appellants contended that Jibke was on the land as a Kabincal, that is, one who follows another onto the land, in this case, Nerta who was from Abner's bwij. The court obviously misunderstood, equating it with inheritance.

[6] As in Anjetob v. Taklob, supra, possession or use of land does not, in itself, convey any rights in the land under the custom.

Development of the case by counsel was totally inadequate. This, together with the court's misunderstanding and misstatement of relevant evidence, leads me to conclude that to allow the judgment to stand would be inconsistent with substantial justice.

Accordingly, the judgment in this action is reversed and remanded to the trial court for further proceedings. It is recommended that the matter be referred to the Traditional Rights Court for its action.