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Ngeskesuk v Solang [1974] TTLawRp 22; 6 TTR 505 (21 March 1974)

6 TTR 505

NGIRAMECHELBANG NGESKESUK, DIRRALALO BILUNG, EBIL RENGULBAI, and MARBOU RENGURUCHEL, Appellants

v.

RIDEP SOLANG, Appellee

Civil Action No. 49-73

and

RIDEP SOLANG, Appellant

v.

NGIRAMECHELBANG NGESKESUK, DIRRALALO BILUNG, EBIL RENGULBAI,

And MARBOU RENGURUCHEL, Appellees

Civil Action No. 56-73

Trial Division of the High Court

Palau District

March 21, 1974

Appeals from land commission ownership determinations. The Trial Division of the High Court, D. Kelly. Turner, Associate Justice, held that upon individual's death" her land was inherited by her heirs, not her clan or lineage, and her "heirs" were her brothers, sisters and adopted son, not the extended family.

1. Appeal and Error-Record on Review-Adequacy

Although pleadings in appeals were so inadequate, incomplete and contrary to the rules for appeals that the court could have justifiably dismissed them, appeals would, in fairness to the parties, be accepted where the fault lay with counsel who carelessly prepared completely inadequate pleadings apparently knowing they would not appear at the appeal hearing.

2. Wills-Oral-Invalid Wills

Statement, by son, who was upset when his mother interceded in an argument with his brother, that when he returned from WW II he was going to Japan and would never return so that all his parents' property, registered in him under the Tochi Daicho as his father was a Japanese national and thus could not own land at the time of the survey, would go to his brother, was not an effective will.

3. Wills-Disposable Property-Testator's Interest

Where Japanese national's land was registered to his son under the Tochi Daicho survey because Japanese nationals were prohibited from owning land, and father sold the land in 1942, son, who was killed in 1943 in the war, could not leave the land to his brother because he had no land to leave by will.

4. Land Registration-Prior Determinations-High Court

Former High Court judgment on ownership of land was binding on Land Commission in commission's proceeding to determine who owned the land. (67 TTC § 112)

5. Palauan Land Law-Clan Ownership-Reversionary Rights

Individually owned land did not, prior to 1957 statute of descent and distribution, revert to the lineage or clan upon death of the owner intestate.

6. Palau an Land Law-Individual Ownership-Decedent's Estates

Upon individual's death, her land was inherited by her heirs, not her clan or lineage, and her "heirs" were her brothers, sisters and adopted son, not the extended family.

7. Real Property-Joint Interests-Division and Distribution

The division and distribution of land inherited by five persons was for their determination as owners in joint tenancy.

TURNER, Associate Justice

[1] The state of the pleadings in the two appeals is so inadequate, incomplete and contrary to the appellate code the Court would have been justified in dismissing both appeals. In neither case did counsel who appeared at the appeal hearing in representation of the parties prepare the appeals. Because the appeals were made by representatives who apparently had no intention of appearing in court in support of the appeals, the pleadings were carelessly prepared and completely inadequate.

The court considered it unfair to penalize the parties, because of the failures of former counsel, by dismissing the appeals and depriving the parties of their day in court. A dismissal at time of hearing would have ended the matter because the time for appeal had expired. With the help of counsel for both sides at the hearing the Court has been able to dredge out the real issues involved.

The parties are the same, although reversed in the two appeals. The lands in dispute are also the same in the two cases except that in No. 49-73 the amended notice of appeal includes an additional parcel for which neither Ngeskesuk nor Solang make any claim.

The parcel consisted of 11,598.4 square meters of fill-land adjoining some of the lots involved in the appeals. This fill-land, located in Meyungs Hamlet, Arakabesan Island, is described as Lots 008 A 7 and 10, depicted on the Division of Lands and Surveys Official Cadastral Plat dated May 25, 1973. The Land Commission determination of ownership held that the fill was public land and that the chiefs of the four Arakabesan Clans together with Uchel Arbedul Remeliik, as spokesmen, were trustees .for the clans as owners.

Although No. 49-73 purported to appeal the ownership determination for the fill-land it failed to do so. Neither the clans nor their chiefs were made parties to the appeal, they were given no notice of appeal and, in fact, appeal hearing counsel in No. 49-73 disavowed any claim by his clients, the designated appellants, to the fill-land.

This fill was made by the Japanese navy after it had purchased the other lands of Arakabesan Islands. Thus there was no former owner to claim it when the Trust Territory government attempted to "return" the major part of the island "to the people" through the High Commissioner's Land Settlement Agreement and Indenture dated September 5, 1962. Torul v. Arbedul, 3 T.T.R. 486, 489. Several claimants, whose lots on the island had been used to make the fill, made claims to the fill. These claims were denied by the Land Commission for the reason that the fill had been taken from lots previously purchased by and owned by the Japanese navy.

These claimants, not the parties in the present two appeals, were "aggrieved parties" entitled to appeal from the determination the fill was public land owned by Meyungs Hamlet. They made no appeal.