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Tohul v Arbedul [1968] TTLawRp 16; 3 TTR 486 (9 April 1968)

3 TTR 486

RDIALUL TOHUL, and Others,
Plaintiffs

v.

UCHEL ARBEDUL, and Others,
Defendants

Civil Action No. 294
Trial Division of the High Court
Palau District

April 9, 1968

Action to determine title to land on Arakabesan Island. The Trial Division of the High Court, E. P. Furber, Temporary Judge, held that the High Commissioner's Land Settlement Agreement and Indenture in question merely intended to re-establish former rights rather than create new ones and thus the sitution as it existed prior to a former transfer to Japanese interests controlled.

Palau Land Law - Generally

Where High Commissioner's Land Settlement Agreement and Indenture concerning government land on Arakabesan Island sought to re-establish former rights rather than to create entirely new ones, such agreement restored the rights in the land in question to those who had acquired such rights directly or indirectly from the persons mentioned and who last held those rights prior to former transfer of land to Japanese interests, or to those who would be their successors in interest had there been no such transfer.

FURBER, Temporary Judge

FINDINGS OF FACT

1. In the dim and distant past the land in question was owned by the Eluil Clan. It was conquered from the Eluil Clan by the Omrekongel Clan, which is one of those considered to be under the Ibedul (title of the male head of the Idid Clan and as such High Chief of South Palau) in a special way.

2. The land in question was included in that in which Ibedul Imedob acquired full ownership by an arrangement with Espangel (title of the male head of the Omrekongel Clan) Kisekis, with the acquiescence of their respective clans, in order to make it available for use by people from Ngesias. The arrangement is considered by some to constitute a purchase and by others to constitute more accurately a release by Espangel Kisekis on behalf of the Omrekongel Clan of the latter's interest in the land inasmuch as the land was to some extent already under Ibedul's authority.

3. Ibedul Imedob gave permission to the people from Ngesias in Peleliu to use this land.

4. After the people of Ngesis returned to Peleliu, they either released the land to Ibedul or it reverted to him automatically by virtue of his overriding rights in it.

5. Ibedul Louch, one of the successors of Ibedul Imedob, took control of the land and, either directly or through others acting with his consent, gave part of it to his adopted son Umong, part to his daughter Ibuuch, part to his step-daughter Ross, and part to Dirrablong (who was considered under the custom to be connected with the Idid clan and, therefore, under the custom in a position like that of a child of Ibedul Louch), to use under Ibedul.

6. The persons named as grantees in the preceding paragraph, or their successors in interest, conveyed, with the consent of Ibedul, to Japanese interests before the Japanese land survey of about 1938-41 parts of the lands so given them by Ibedul Louch to use.

7. At the time of the last Japanese land survey of about all parties concerned (except for the dispute between Ibuuch and her successors and Dirrablong and her sUccessors, mentioned in the following finding of fact) acquiesced in having these lands listed as owned either by the lineage or individual to whom the use rights had been given by Ibedul Louch or by their respective grantees.

8. There was a dispute between Ibuuch and her successors in interest and Dirrablong and her successors in interest as to a part of the land in question which was listed in the survey of about 1938-41 in the name of Dirrablong's son Ryio. One of these groups claimed this part of the land had been given Ibuuch and the other group claimed it had been given to Dirrablong by either Ibedul Louch or one or more of his children acting with his consent. This matter was litigated in the Japanese courts and resulted in a determination that Lots Nos. 1444 and 1445 should be owned by Ibuuch or her successors in interest, including her half-sister Ross, and that Lots Nos. 1448, 1449, 1450, 1456 to 1460 inclusive, 1465, 1466, 1467, and 1469 should be owned by those claiming under Dirrablong, subject to a charge or lien on 20,000 yen to be paid to Ibuuch or her successors in interest, of which 9,000 yen was paid before the close of Japanese times but the balance of which has never been paid or adjusted.

9. After the last Japanese survey of about 1938-41, all of the land involved, that had not previously been acquired by the Japanese Government, was bought by the Japanese Government.

10. Prior to the High Commissioner's Land Settlement Agreement and Indenture of September 5, 1962, representatives of the eight clans of Arakabesan Island (which are the clans named in that document) had had a number of discussions with representatives of the Trust Territory Government concerning return of this land, and particularly concerning its return through some form of homestead with a waiver of certain of the usual homestead conditions in view of the extent to which the land had already been developed. The representatives of the eight clans had advanced a plan to place responsibility for distribution on Espangel and Uchel, as first chiefs of Arakabesan Village and Meiungs Village respectively, but no agreement had been reached about to whom the land was to be homesteaded, what the exact homestead conditions would be, or who would handle the homestead arrangements. None of the claimants in this action or, so far as they know, anyone representing any of the claimants or any portion of the people of Arakabesan, had any discussion with representatives of the Trust Territory Government concerning the change of plan from return of the land by proposed homesteading to transfer by the High Commissioner's "Land Settlement Agreement and Indenture" of September 5, 1962, involved in this action.

OPINION

This action involves the proper construction of the High Commissioner's Land Settlement Agreement and Indenture No. PL-LS-129, dated September 5, 1962, recorded September 20, 1962, in Book V, pages 123 to 133, in the office of the Clerk of Courts for the Palau District, by which it alleged by all concerned, he purported to "return" the major part of Arkabesan Island to the people. According to the terms of the agreement and indenture, the High Commissioner remised, released and quitclaimed unto "the Clans - Ngitechob, Ngeskesuk, Tikei, Uchelkumer, Omrekongel, Ucheliou, Odilang and Eluil, and unto the members of said clans, and all others claiming through, from or under the said clans, as their interest may appear among them", all the Government's right, title and interest in the major part of Arakabesan Island, including all of the land in question in this action.