Supreme Court of Palau

[ 11] Appellant Ibuuch Clan asserts that the Land Court erred in at least eight ways. We focus on the major errors that require reversal and a remand.

I. The Land Court Erred by Determining Ownership in Favor of Non-Claimants.

[ 12] Appellant asserts that the court erred by “awarding ownership to a non-claimant” considering that the only claim of individual ownership that proceeded to trial was the claim of individual ownership by Sungino and that “[t]he Children of Antonio Fritz did not file any claim.” We agree. The Land Claims Reorganization Act of 1996 provides that any land claim must be filed no later than thirty days after the notice of monumentation. 35 PNC § 1309(a)-(b). The Act fu prer provides that “[a]ny claim not timely filed shall be forfeited,” and that “[t]he Bureau of Lands and Surveys shall not accept untimely claims or transmit the same to the Land Court.” Id. § 1309(a). The Rules and Regulations of the Land Court provide, inter alia, that:

• “Any person or group of persons who claim ownership of land not yet registered must file a written claim in a claim form prescribed by the Land Court”;
• “All claims to private lands must be filed with the Land Court no later than 60 days prior to the date set for hearing of the land claimed”; and
• “Any claim which is not timely filed shall be forfeited.”

Land Ct. Rules 10, 11, 12. The Land Court does not have the inherent authority—or authority provided by the Act or its Rules—to adjudicate an untimely claim, even if the claim is tried with the parties’ consent. See Klai Clan v. Airai State Pub. Lands Auth., 20 ROP 253, 256-57 (2013). In sum, the entire system of resolving land disputes is premised on the principle that a claimant must timely file a claim and that “[w]here . . . parties assert competing claims of superior ownership, the Land Court must award ownership to the claimant advancing the strongest claim.” Ngirametuker v. Oikull Vill., 20 ROP 169, 172 (2013) (emphasis added). In determining land ownership, “[t]he Land Court can, and must, choose among the claimants who appear before it and cannot choose someone who did not, even though his or her claim might be theoretically more sound.” Ngirumerang v. Tmakeung, 8 ROP Intrm. 230, 231 (2000).

[ 13] It is undisputed that the Children of Antonio Fritz—collectively, or as individuals—never filed a claim of ownership for Lot 1334, let alone a timely claim. Rather, Sungino filed a claim for individual ownership asserting that she owned Lot 1334 by virtue of her father’s purported ownership of that lot. This was the claim that proceeded through mediation and was set for trial. The court did not have authority to entertain an entirely new assertion of ownership by non-claimants that was first raised at trial.

[ 14] Our conclusion is bolstered by several considerations. Allowing a court to award land to persons who never filed a claim would make a mockery of the rules governing the timeliness of land claims. Further, allowing a claim of individual ownership by one person to permutate at trial into an assertion of ownership by a group of different people raises fairness concerns. It is unclear how an opposing claimant can adequately prepare to counter a claim that so fundamentally changes at trial. Finally, allowing an individual claimant such as Sungino to claim land for a different group of persons, not including herself, raises prudential concerns regarding standing. As we have explained, our courts must ask whether a person “is a proper party to request an adjudication of a particular issue.” Koror State Leg. v. KSPLA, 2017 Palau 28 30. It is not at all evident that Sungino is a proper party to bring the ownership claims of her adoptive nieces and nephews, ownership claims that are incompatible with her claim of individual ownership. Indeed, the posture of this case raises serious concerns about whether Sungino’s interests were represented in the proceeding. The power-of-attorney authorized Mariur to represent Sungino’s claim of ownership over Lot 1334. At trial, however, Mariur, purportedly on Sungino’s behalf, contended that Mariur herself, as well as others, but not Sungino, own Lot 1334. Even in the absence of any specific evidence of impropriety, the opportunity for abuse in this type of situation is obvious. For these reasons, then, the court erred in awarding Lot 1334 to non-claimants, the Children of Antonio Fritz.

II. The Land Court’s Determination of Ownership Was Further Impaired by Other Legal Errors.

[ 15] Even if the Children of Antonio Fritz had been proper claimants, the Land Court also committed several additional legal errors in determining ownership in their favor. The Land Court’s determination appears to be implicitly based on several theories of ownership that are sometimes overlapping, sometimes contradictory: (1) that Rengechel individually owned Lot 1334 and passed it down to Fritz, whose children presumably inherited the land upon Fritz’s death; (2) that Ibuuch Clan owned Lot 1334, but that Rengechel lawfully alienated it to Fritz with the agreement of Mlechei Ebil, and Fritz’s children inherited it from their father; and (3) that Mlechei Ebil, with the agreement of other clan members, gave Lot 1334 to Fritz’s children as their personal property after his death, and that no clan members objected.^[3] There are problems with all of these theories.

[ 16] First, regarding the Land Court’s finding that Rengechel owned Lot 1334 as part of a larger lot, the court did not properly account for the presumption that Tochi Daicho listings are complete and accurate. It is well established that “[t]he identification of landowners listed in the Tochi Daicho is presumed to be correct, and the burden is on the party contesting a Tochi Daicho listing to show by clear and convincing evidence that it is wrong.” Taro v. Sungino, 11 ROP 112, 116 (2004). The Tochi Daicho listing for Lot 1334 lists the owner as “Chief Ngiraibuuch” and in no way indicates any individual ownership interest.^[4] Because Rengechel is not identified as an owner on the Tochi Daicho listing, the Land Court’s finding that “Tochi Daicho 1334 was part of a much bigger lot identified as Lot 1336 owned by Rengechel,” Decision at 4, constitutes a finding that the Tochi Daicho listing for Lot 1334 is incorrect.^[5] Such a finding must be made based on “clear and convincing evidence.” Taro, 11 ROP at 116. Although the court acknowledged that a party contesting a Tochi Daicho listing has the burden of proving by clear and convincing evidence that the listing is wrong, the court made its finding contradicting the Tochi Daicho listing based only on “a preponderance of the evidence.” Decision at 4, 10. The Land Court’s application of an incorrect standard of proof is a structural error that ordinarily requires remand. See Kebekol v. KSPLA, 22 ROP 38, 41 (2015).

[ 17] Second, the court erred in concluding that “the male chief title holder [of Ibuuch Clan] and his female counter part, together can transfer clan land to an individual.” Decision at 5. A trial court is bound by controlling Appellate Division case law on a principle of customary law—“our past judicial recognition of a traditional law as binding will be controlling as a matter of law, absent evidence that the custom has changed.” Beouch, 20 ROP at 48. As we recently explained, “[i]t is a long-settled doctrine of traditional law that clan land is under the authority of the clan and transfers or dispositions of land must be approved by the strong senior members of the clan.” Imetuker v. Ked Clan, 2019 Palau 30 13 (indicating that recognition of this customary principle “goes back to the Trust Territory”). Expert witness Felix did not testify that there had been a change in customary law, or that the transfer of Ibuuch Clan land followed unique principles. Therefore, to the extent he meant to testify that clan land can be transferred with only the consent of the male and female titleholders, his view is inconsistent with our case law, and the Land Court should have disregarded his testimony.^[6]

[ 18] Third, the court erred to the extent it grounded its judgment on the finding that “no one” objected to the occupation of Lot 1334 by Fritz or by his children. See Decision at 5. It was clear error for the court to determine that the absence of formal objection was indicative of ownership given that any lack of objection is entirely consistent with the narrative advanced by Ibuuch Clan—that the clan gave permission for Fritz and his children to use the land but did not transfer ownership. Further, the court’s reliance on the finding that no one objected at either Rengechel’s or Fritz’s eldecheduch was misplaced. Other than finding that one senior strong member, Mlechei Lakobong, “was present during Antonio’s eldecheduch,” Decision at 6, the court made no finding that all of the clan’s senior strong members who would be required to give their consent to a transfer of ownership were present at either Rengechel’s or Fritz’s eldecheduch. Although Felix testified that a decision made at an eldecheduch is final and cannot later be challenged, the record is devoid of any authority for the proposition that whatever occurs at an eldecheduch overrides all other principles governing the transfer of clan land.

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[ 19] For these reasons, we REVERSE the ownership determination in favor of the Children of Antonio Fritz and REMAND this matter to the Land Court. On remand, the Land Court should determine if the evidence presented at trial supports a determination that any of the actual claimants own Lot 1334.

CONCLUSION

[ 20] We REVERSE and REMAND the Land Court’s judgment.

^[1] The parties did not request oral argument in this appeal. No party having requested oral argument, the appeal is submitted on the briefs. See ROP R. App. P. 34(a).

^[2] Ngerbeched Council of Chiefs did not appear or present evidence. The Land Court dismissed their claim and they have not appealed.

^[3] The Land Court found that “[d]uring Rengechel’s eldecheduch . . . Tochi Daicho 1334 was given to Antonio as his individual property,” and that “[d]uring Antonio’s eldecheduch[,] . . . Mlechei Ebil and Rengechel[’s] relatives gave the same land to the children of Antonio as their property.” Decision at 5. It is not evident how Mlechei Ebil and others would be in a position to “g[i]ve” the property to Fritz’s children if the land had previously been transferred to their father as his personal property.

^[4] This is in contrast to surrounding parcels, for which the Tochi Daicho listings denote Rengechel as the owner. See Ibuuch Clan Ex. 4. The court did not point to any authority for the proposition that clan chief’s title land is the personal property of the individual who is chief. Indeed, our precedent suggests that chief’s title land is essentially clan property to be used by the chief during the time he holds that position. See Omrekongel Clan v. Ikluk, 6 ROP Intrm. 4, 6 (1996) (“[T]he general pattern is for chief’s title land to pass from chief to chief for use during the period he is head of the clan.” (quoting Kisaol v. Gibbons, 1 TTR 597, 598 (App. Div. 1956))).

^[5] The court also found that “[m]embers of Ibuuch Clan met and decided to change the chief title land from Tochi Daicho 1334 to Tochi Daicho 1206, a land known as Ngermaduleyang.” Decision at 6. It is unclear when this occurred. However, even if this change was made after the date of the Tochi Daicho listing, the court nowhere indicates why the transfer of the chief’s title land from Lot 1334 in and of itself means that the lot became Rengechel’s personal property rather than clan property.

^[6] We recently noted that a good practice for handling expert testimony on customary law, in light of our decision in Beouch v. Sasao, “would be for the trial court to first determine whether binding precedent exists and, if it does, limit expert testimony on that point of customary law to the issue of whether the custom has changed.” Terekieu Clan v. Ngirmeriil, 2019 Palau 37 11.