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Ngikleb v Sadao [2021] PWSC 5 (3 February 2021)

IN THE
SUPREME COURT OF THE REPUBLIC OF PALAU APPELLATE DIVISION

Cite as: 2021 Palau 5
Civil Appeal No. 18-047
Appeal from Civil Action No. 18-079

Decided: February 3, 2021

Counsel for Appellants Vameline Singeo

Counsel for Appellee C. Quay Polloi

BEFORE: KATHERINE A. MARAMAN, Associate Justice
DANIEL R. FOLEY, Associate Justice
KEVIN BENNARDO, Associate Justice

Appeal from the Trial Division, the Honorable Lourdes F. Materne, Associate Justice, presiding.

OPINION[2]

PER CURIAM:

[ 1] llants Justino Ngsal Ngil Ngikleb and Felix Francisco appeal from the Trial Division’s judgment that Appellee Lothain Sadao holds the chief title for Ngeuch Clan, and therefore has contrer Clan lands. After carefcareful consideration, we AFFIRM the trial court’s factual findings but VACATE the trial court’s legal conclusion regarding customary law and REMAND for the court to perform a proper analysis consistent with our decision in Beouch v. Sasao, 20 ROP 41 (2013).

BACKGROUND

[ 2] Ngeuch owns property inty in Angaur State on which very valuable dort (ironwood) trees grow.^[3] Felix Francisco enterto an agreement with Justino Ngsal Ngikleb, who claims to b to be the male chief of Ngeuch Clan (Omuik), to purchase some of these trees.
[ 3] Lothain Sadao, imes knos known as Tangerkoi Sadao, also claims to hold the Omuik title. On May 2, 2018, Sadao, purportedly representing Ngeuch Clan, filed suit seeking a temporary restraining order (0;TRO”) to stop the fthe felling of the trees. The trial court granted the TRO that same day. In his subsequent Complaint, Sadao sought, among other forms of relief, a declaratory judgment that he holds the title Omuik, and that Ngikleb and Francisco did not have authorization to enter the land and take the trees. On May 18, the trial court granted a preliminary injunction against further felling or removal of the dort trees.
[ 4] On May 21, Ngikleb andb and Francisco filed an Answer and Counterclaim seeking a declaratory judgment that (1) Sadao is not Omuik and is, in fact, not even a r of the Clan; and (2) Ngikleb is and hasd hasd has authority over the trees. Following a trial, which was held on June 2018, the court concluded that neither side had met its buts burden to establish that its candidate was properly appointed to hold the Omuik title.
[ 5] In its Decision and Findings of Fact issued on September 6, 2018, the trial court made several findings of fact, including that: (1) Ngeuch Clan is a ducognizednized clan of Ngermasech Hamlet of Angaur State; (20;the Omuik has the the authority to disperse clan property, including dort trees, and his consent must be obtained byne seeking to disperse Clan Clan assets; (3) Sadao is descended Osismeresmereng and Modebel, who are ochell members of the Clan; (4) Modebel, Sadao&#8217andmothdmother, was Osismereng’s niece and had children named Madris Matreklai, Mesioguul, and Ungilbesul Sadao;adao; and (5) Ungilbesul Sadao, who is Lothain Sadao’s mother, and Renguul are ourrot of the clan and appointed Sadao as chief. The trial court concluded, however, that Sadao’s appointment as Omuik was invale to Blumel Ramon’s p7;s participation in the appointment, because Ramon is not a member of Ngeuch Clan.
[ 6] Otember 14, 2018, SadaoSadao filed a Motion for Reconsideration, asserting that the trial court erred when it failed to find thatas Omuik. In its Order Granting the Motion for Reconsideration on October 3, 2019, 019, the trial court reversed course and held that, regardless of Ramon’s participation in the appointment, Sadao was Omuik because he was properly appointed by Ungilbesul Sadao and Mesiou Renguul. Ngikleb and Francisco timely appealed.

STANDARD OF REVIEW

[ 7] Court has explained thed the appellate review standards as follows:

A trial judge decides issues that come in three forms, and a decision on each type of issue requires arate standard of review on w on appeal: there are conclusions of law, findings of fact, and matters of discretion. Matters of law we decide de novo. We review findings of fact for clear error. Exercises of discretion are reviewed for abuse of that discretion.

Kiuluul v. Elilai Clan, 2017 Palau 14 4 (internal citations omitted). We review a trial court’s conclusions regarding customary law de novo. Imetuker v. Ked Clan, 2019 Palau 30 10. On clear error reva trial court’s factual findings “will be set aset aside only if they lack evidentiary support in the record such that noonable trier of fact could have reached the same conclusion.” Ngotel v. Iyungel Cgel Clan, 2018 Palau 21 7 rnal quotation marks omit omitted). We have recognized that “[t]he trial court is in the best position to weigh evidence,rmine the credibility of witnesses, and make findings of fact.” Ngiraingas v. Tel. Tellei, 20 ROP 90, 94 (2013).

DISCUSSION

[ 8] Appellaaise three argumarguments on appeal: (1) the trial court erred wt deit determined that Modebel is Osismereng’s niece because there was nothing in therd to establish that relationship; (2) Ungilbesul Sada Sadao and Mesiou Renguul are not senior strong members of the Clan because they have not lived in Angaur for a long time and have not provided services to the Clan; and (3) ef Sadao was properly ated ated by the ourrot ofi> of Ngeuch Clan, he is not Omuik because he was not accepted by the klobak of Ngermasech H of Angaur.

I. The Trial Court Durt Did Not Clearly Err in Finding that Modebel is Osismereng’s Niece.

[ 9] Appellangue that the trie trial court committed clear error when it found that Modebel is Osismereng’s niece. Despite Appellants’ assertions to the contrarere was sufficient evidence, including Sadao’s testimestimony, for the trial court to reasonably conclude that Modebel is Osismereng’s niece.^[4] See Trial Tr. at 356-57. The fact that Sadao’s testimony was, at times, ambiguous as to the relationship between Osismereng and Modebel is an insufficient basis for this Court to reverse the trial court’s finding on clear error review.

II. The Trial Court Did Not Err in Concluding that Ungilbesul Sadao and Mesiou Renguul are Senior Strong Members of the Clan.

[ 10] Appellargue that the trhe trial court erred when it concluded that Ungilbesul Sadao and Mesiou Renguul are senior strong members of the Clan. “[A] party claiminbe a strong senior member of a clan has the burden of proviproving such status by a preponderance of the evidence. Where a party seeks to prove not that it is a strong member, but that instead another individual is a weak member, the burden of proof is placed on the party that would lose if no evidence were presented.” Beouch, 20 ROP at 51 (internal quotation marks omitted).
[ 11] As notrlier, the trialtrial court found that Ungilbesul Sadao and Renguul are ochell members of Ngeuch Clan. Our precedent establishes that one’s strength in a clan can be diminished through failure to render services to the clan. See Dokdok v. Rechelluul, 14 ROP 116, 119 (2007) (noting with approval expert evidence that “by moving away from the physical location of their lineage, failing to bear the lineage titles for several generations, and deciding not to play [an] active and significant role in the affairs of the community, Appellants have voluntarily relinquished some of the strength related to their rank”).
[ 1wever, at trial, Appellee llee presented evidence that—despite not living in Angaur State—Modebel and her family provided services to the Clan, such as taking in Osismereng in her ge and organizing her funerfuneral.^[5] Further, Appellants have presented no authority for the proposition that, regardless of services to a clan, a person can lose her senior strong status simply by living in another state. Thus, this Court concludes that the trial court did not commit error, factual or legal, when it determined that Modebel’s children are ochell members of Ngeuch Clan and are senior to ulechell member Ngikleb.

III. The Trial Court Erred by Recognizing a Custom Without Applying the Proper Beouch Analysis.

[ 13] Finallpellants contendntend that even if Sadao was properly appointed by the ourrot of Ngeuch Clan, the trial court erred in concluding he is Omuik becae was not accepted by the klobak of Ngermasech HamleHamlet of Angaur. Appellee contended that approval by the klobak was not necessary. Based on the record and testimony presented at trial, the trial court concluded that Appellee’s assertion was consistent with the custom of Ngeuch Clan.
[ 14] Ordinarily, appointment of a chief is a two-step process: first, the ourrot select and appoint a candidate to be the chief titleholder; and second, the klobak must acceps candidate by holding a blengur. See Edward v. d v. Suzuky, 19 ROP 187, 192-93 (2012). A particular clan’s custom may differ from that followed by other Palauan clans. The Court has previously noted how clan customs can change and the legal analysis that must be performed to determine a new custom.

Customs may change gradually, and changes may be started by some of the people affected agreeing to some new way of doing things, but such new ways will not become established and legally binding or accepted customs until they have at least existed long enough to have become generally known and have been peaceably and fairly uniformly acquiesced in by those whose rights would naturally be affected.

Beouch, 20 ROP at 48 n.4.

[ 15]ever, prior to concludinluding that a particular practice constitutes a clan’s custom, a trial court must consider whether: “(1) the custom is engagluntariltarily; (2) thtom is prad uniformly;rmly;rmly; (3) the c is followed as law; aaw; and (4) the custom has been practiced for a sufficient d of to be deemed binding.” Id. at 48. 48.
[ 16] Rathan unan undertakintaking the proper analysis, the trial csimply stated, “[i]n Ngermasech Hamlet, one becomes ames a rubak or title bearer once he is appointed by the ourrot” and “[t]he council of chif chiefs can only expel or discipline” a title bearer. Decision and Findings of Fact (Sept. 6, 2018) at 3. We thus understand the trial court to have determined, contrary to established Palauan custom, that the approval of the klobak is not necessary for a titleholder to be properly appointed in Ngermasech Hamlet. Because the trial court recognized this custom without undertaking the proper analysis, we must vacate this part of the trial court’s judgment and remand for the court to perform a Beouch analysis in the first instance. See Rengiil v. Ongos, 22 ROP 48, 54 n.7 (2015); see also Rechesengel v. Mikel, 2018 Palau 20 23.

CONCLUSION

[ 17] For thegoing reasons, ons, we AFFIRM the Trial Division’s judgment as to its findings that Modebel was Osismereng’s niece, and that Ungilbesul Sada Mesiou Renguul are ourrot ochell members of Ngeuch euch Clan. However, we VACATE the Trial Division’s judgment as to its conclusion regarding the process for appointing the Omuik and REMAND for the trial court to apply the proper Beouch analysis. The status quo as to the dort trees shall remain in effect pending final resolution of the question of who is title bearer with authority to dispose of Clan property. Each side shall bear its own costs.