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Trust Territory v Konou [1975] TTLawRp 12; 7 TTR 331 (24 July 1975)

7 TTR 331

TRUST TERRITORY OF THE PACIFIC ISLANDS, Plaintiff-Appellee

v.

SILVENIOS KONOU, et al., Defendant-Appellants

Civil Appeals No. 108, 110 & 118 (Consolidated)

Appellate Division of the High Court

Marshall Islands District

July 24, 1975

Action for restoration of possession of land. The Appellate Division of the High Court, Williams, Associate Justice, held that summary judgment was improperly granted below where there were issues of fact to be resolved.

1. Appeal and Error—Final Judgment

Orders regarding preliminary injunctions do not finally dispose of the issues of a case and by their nature provide interlocutory relief and thus do not constitute a final judgment or order and are not appealable.

2. Judgments—Summary Judgment—Issues

When considering a motion for summary judgment the court cannot try issues of fact, but can only determine if there are genuine issues of fact to be resolved.

3. Judgments—Summary Judgment—Particular Cases

Where there were genuine issues of fact in action for restoration of possession of land, as to whether there was a valid, binding oral lease, and as to the availability of the defense of the Statute of Limitations, summary judgment for plaintiff was improper.
Counsel for Appellant: JAMES LICKE
Counsel for Appellee: PHILLIP JOHNSON
Before BURNETT, Chief Justice; HEFNER, Associate Justice; WILLIAMS, Associate Justice

WILLIAMS, Associate Justice

This opinion considers three appeals: Appeal No. 108, Appeal No. 110 and Appeal No. 118, all of which arose out of Marshalls Civil Action No. 21-73. They were consolidated for the purpose of argument and briefs, since they arose out of the same case.

The Government, plaintiff-appellee, filed a complaint for "judgment restoring plaintiff possession of" the northern one-third of Lokojabreth Wato, Dalap Island, Majuro Atoll, Marshall Islands District. The complaint alleges Iroij Aiseia David executed a lease agreement for said lands to the government on February 9, 1964, for a term of ninety-nine (99) years from February 9, 1944, until February 9, 2043. The lease recited, and plaintiff claims, that Iroij Aiseia David was authorized in accordance with Marshallese custom to act for the owners and empowered to receive compensation for the lease.

Defendants-appellants' pleadings deny plaintiff has any interest in the property described in the complaint and they counterclaim for possession of additional properties alleged to be owned by defendants and occupied by plaintiff. In defendants' counterclaims, they allege the lands in question have been occupied by plaintiff and its predecessors since 1944, unlawfully and without consent of defendants. They further allege that Iroij