In re Lot No 014-A-21 [1999] FMCSC 17; 9 FSM Intrm. 484 (Chk. S. Ct. Tr. 1999) (2 September 1999)

CHUUK STATE SUPREME COURT
TRIAL DIVISION
Cite case as In re Lot No 014-A-21[1999] FMCSC 17; , 9 FSM Intrm. 484 (Chk. S. Ct. Tr. 1999)

IN THE MATTER OF LOT NO. 014-A-21, A PORTION OF NEOTES

ERMES PAUL,
Plaintiff/Appellant,

vs.

NOPUKO BARKER,
Defendant/Appellee.

__________________________________________

CSSC-CA. NO. 235-95

ORDER

Andon L. Amaraich
Special Trial Division Justice

Hearing: May 3, August 12, 1999
Decided: September 2, 1999

APPEARANCES:

For the Plaintiff:
Manny Otoko, trial counselor
P.O. Box 903
Weno, Chuuk FM 96942

For the Defendant:
Andrew Clayton, Esq.
Law Offices of Saimon & Associates
P.O. Box 1450
Kolonia, Pohnpei FM 96941

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HEADNOTES

Property - Land Commission; Transition of Authority
Under the Chuuk Constitution's transition clause, Trust Territory Code Title 67, which authorizes and empowers land commissions to determine the ownership of any land in its district, applies in Chuuk. In re Lot No. 014-A-21[1999] FMCSC 17; , 9 FSM Intrm. 484, 490 (Chk. S. Ct. Tr. 1999).

Property - Land Commission
A land commission may appoint one or more land registration teams and may designate the area or areas for which each team shall be responsible. Each land registration team is responsible for adjudicating claims to land within that area. In re Lot No. 014-A-21[1999] FMCSC 17; , 9 FSM Intrm. 484, 490 (Chk. S. Ct. Tr. 1999).

Property - Land Commission
Land registration teams may administer oaths to witnesses, take testimony under oath and subpoena witnesses. Once a decision is reached on any claim where a dispute has arisen, the land registration team shall include in the team's record the substance of all pertinent testimony it took. Land registration teams are to be guided by the civil procedure and evidence rules, and their determinations are subject to review by the land commission. In re Lot No. 014-A-21[1999] FMCSC 17; , 9 FSM Intrm. 484, 490 (Chk. S. Ct. Tr. 1999).

Property - Land Commission
Land registration teams may decline to adjudicate a disputed claim and instead refer it to the land commission along with any record, including the substance of all pertinent testimony, taken by the team. The land commission may then adjudicate the claim or refer it to court. In re Lot No. 014-A-21[1999] FMCSC 17; , 9 FSM Intrm. 484, 490 n.2 (Chk. S. Ct. Tr. 1999).

Property - Land Commission
The land commission, upon receipt of a land registration team adjudication and the record upon which it is based, may accept the land registration team's determination or reject it, and if it rejects the team's determination, the land commission may either remand the matter to the land registration team or itself hold further hearings and make its own determination of ownership. In re Lot No. 014-A-21[1999] FMCSC 17; , 9 FSM Intrm. 484, 490, 492 (Chk. S. Ct. Tr. 1999).

Property - Land Commission
If the land commission rejects a land registration team determination and instead holds further hearings, it may administer oaths to witnesses, take testimony under oath and subpoena witnesses, and it is to be guided by the civil procedure and evidence rules. In re Lot No. 014-A-21[1999] FMCSC 17; , 9 FSM Intrm. 484, 490 (Chk. S. Ct. Tr. 1999).

Property - Certificate of Title; Property - Land Commission
Any aggrieved party may appeal a land commission determination of ownership at any time within 120 days from the date of determination. If it is not appealed within 120 days, then the land commission shall issue a certificate of title which is conclusive evidence of ownership of the land as to all persons who received notice of the land commission's action. In re Lot No. 014-A-21[1999] FMCSC 17; , 9 FSM Intrm. 484, 491 (Chk. S. Ct. Tr. 1999).

Administrative Law - Judicial Review; Property - Land Commission
The Chuuk State Supreme Court trial division may review decisions of an administrative agency, including the land commission. The court reviews the whole record and gives due account to the rule of prejudicial error. The court may conduct a de novo review of an administrative determination when the agency action was adjudicative in nature and the fact finding procedures employed by the agency were inadequate. In re Lot No. 014-A-21[1999] FMCSC 17; , 9 FSM Intrm. 484, 491 (Chk. S. Ct. Tr. 1999).

Appeal and Certiorari - Dismissal
The Chuuk State Supreme Court's authority to dismiss a case on appeal on procedural grounds under the Chuuk State Rules of Appellate Procedure is purely discretionary. In re Lot No. 014-A-21[1999] FMCSC 17; , 9 FSM Intrm. 484, 491 (Chk. S. Ct. Tr. 1999).

Civil Procedure - Dismissal
Delay in a case that is attributed to the time taken to designate a justice and for the clerk's preparation of the record, is not the type of delay that can be properly attributed to the appellant and be a ground for dismissal. In re Lot No. 014-A-21[1999] FMCSC 17; , 9 FSM Intrm. 484, 491 (Chk. S. Ct. Tr. 1999).

Equity - Laches
The doctrine of laches applies to the actual filing of a claim rather than to any inaction that might arise following the initiation of a legal proceeding. In re Lot No. 014-A-21[1999] FMCSC 17; , 9 FSM Intrm. 484, 491 (Chk. S. Ct. Tr. 1999).

Administrative Law - Judicial Review; Property - Land Commission
A court reviewing a land commission determination must have before it a full and complete record upon which the land commission’s final decision on the parties' claims was based. An agency action is subject to de novo review when the agency action is adjudicative in nature and its fact finding procedures are inadequate. In re Lot No. 014-A-21[1999] FMCSC 17; , 9 FSM Intrm. 484, 492 (Chk. S. Ct. Tr. 1999).

Courts - Records; Property - Land Commission
Just as the courts in the judiciary confirm their role in society by adjudicating claims in civil matters, so to must the land commission. When a court fails to provide an adequate record of its proceedings, the role of the judiciary fails. Because claims over land are of no lesser importance than claims in civil matters, the requirement of a full and complete record applies to the land commission. In re Lot No. 014-A-21[1999] FMCSC 17; , 9 FSM Intrm. 484, 493 (Chk. S. Ct. Tr. 1999).

Administrative Law - Judicial Review; Property - Land Commission
Not only is a full and complete record of the land commission's action needed for court review, but the Trust Territory Code requires that there be a full and complete record of any land commission determinations. In re Lot No. 014-A-21[1999] FMCSC 17; , 9 FSM Intrm. 484, 493 (Chk. S. Ct. Tr. 1999).

Administrative Law - Judicial Review; Property - Land Commission
Although the land commission may appoint a land registration team to conduct hearings and adjudicate the parties' competing claims, the land registration team's determination, including the record upon which it is based, is not the final determination of ownership. Rather, it is the subsequent action of the land commission that establishes a determination of ownership and which is, in turn, subject to judicial review. In re Lot No. 014-A-21[1999] FMCSC 17; , 9 FSM Intrm. 484, 493 (Chk. S. Ct. Tr. 1999).

Administrative Law - Judicial Review; Property - Land Commission
If the land commission approves the land registration team's report, either initially or after remand for further hearings, and issues a determination, it is the land registration team's record that will be subject to judicial review. In re Lot No. 014-A-21[1999] FMCSC 17; , 9 FSM Intrm. 484, 493 (Chk. S. Ct. Tr. 1999).
Property - Land Commission
When the land commission conducts its own hearings and reaches a determination of ownership, it must be based upon the record from the land registration team along with the record from the land commission's hearings. In re Lot No. 014-A-21[1999] FMCSC 17; , 9 FSM Intrm. 484, 493 (Chk. S. Ct. Tr. 1999).

Property - Land Commission
When the land commission has made a determination that results in a reversal of a land registration team's earlier determination, the record must also include an adequate basis supporting the land commission rationale for rejecting the land registration team's earlier findings. The absence of such information in the record gives the appearance that the land commission has acted arbitrarily in reaching its determination and has employed inadequate fact finding procedures. In re Lot No. 014-A-21[1999] FMCSC 17; , 9 FSM Intrm. 484, 494 (Chk. S. Ct. Tr. 1999).

Administrative Law - Judicial Review; Property - Land Commission
Without a full and complete record of the land commission's determination, a reviewing court cannot conduct a fair and meaningful review of the land commission's actions. In re Lot No. 014-A-21[1999] FMCSC 17; , 9 FSM Intrm. 484, 494 (Chk. S. Ct. Tr. 1999).

Administrative Law - Judicial Review; Property - Land Commission
When the land commission's determination provides no explanation as to why it apparently rejected the land registration team's determination or how it reached its own determination, when the absence of a complete record makes it impossible for the court to review the land commission's determination, and when even if the court were to review the matter giving due regard for the rule of prejudicial error, the land commission's decision would be set aside for its failure to observe procedures required by the Trust Territory Code, the court, given the land commission's failure to prepare a complete record and the time elapsed, will conduct a de novo review of the land commission action. In re Lot No. 014-A-21[1999] FMCSC 17; , 9 FSM Intrm. 484, 494-95 (Chk. S. Ct. Tr. 1999).

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COURT'S OPINION

ANDON L. AMARAICH, Special Trial Division Justice:

This matter concerns the appeal of a Chuuk State Land Commission ("land commission") determination awarding a lot of land to Nopuko Barker. On June 2, 1998, the Court issued an order requiring the parties to submit briefs on the issue of whether this matter should be reviewed de novo. The appellant's brief was filed on June 19, 1998. The appellee, after receiving an enlargement of time, filed her brief on July 31, 1998. The appellant did not reply to the appellee's brief. For the reasons set forth below, and as the Court explained to counsel for both parties during a May 3, 1999 status conference that was held at the request of the parties' counsel, the Court will conduct a de novo review of this case.^[1]

I. Background

On October 17, 1995, the land commission issued a decision which awarded the disputed lot of land - lot 014-A-21 located in an area known as Neotes - to Nopuko Barker. According to that determination, the parties claimed that they had each purchased the land in question from two different members of the same family. Nopuko Barker claimed that she purchased the land from Filong Bossy while Ermes Paul claimed that he purchased the land in question from Simon Rechi. Mr. Paul further claimed that Filong Bossy had conveyed any interest she held in the land to Simon Rechi and as such, she could not sell or otherwise transfer any interest in the land to Nopuko Barker.

The land commission determination shows that hearings on the dispute took place on September 11, 1995, and October 10, 1995. The determination further shows that the parties apparently presented the testimony of their respective witnesses. In the end, the land commission awarded title to the disputed property to Nopuko Barker.

On October 31, 1995, Ermes Paul timely filed a notice of appeal with this Court. Because the record of the land commission's determination included only the land commission's three page determination - with no record of the land registration team hearing or any transcript of the subsequent land commission hearings - the Court ordered the parties to file briefs addressing the issue of whether this matter should be reviewed through a de novo proceeding.

II. The Parties' Briefs

A. Appellant's Brief

In his brief, Ermes Paul states that because the "fact finding procedure employed by the land commission are [sic] inadequate and improper," this matter should be subject to de novo review. Br. at 1. Mr. Paul explains that a land registration team conducted hearings in this matter and, in February 1995, issued a determination that he was the rightful owner of the land in question. According to Mr. Paul, the land commission rejected that determination and conducted its own hearings on the dispute. Mr. Paul also notes that the land commission then issued a determination awarding ownership of the land to Nopuko Barker, which Mr. Paul, in turn, appealed. In support of his argument that this matter should be reviewed de novo, Mr. Paul states that the "circumstances surrounding the Land Commission's handling of this matter strongly suggest that the fact finding procedures were inadequate." Br. at 2.

B. Appellee's Brief

In her brief, Nopuko Barker first argues that the appellant's appeal should be dismissed on procedural grounds based upon his failure to comply with the Chuuk State Rules of Appellate Procedure. Arguing in the alternative, the appellee states that in the event the Court chooses not to dismiss the appellant's case, then the Court should not conduct a de novo review of this matter. Instead, she argues that the Court should affirm the land commission's determination because there was no prejudicial error in the land commission's action.

1. Appellee's Procedural Challenges

Ms. Barker essentially raises three arguments in support of her position that the appellant's case should be dismissed on procedural grounds. First, she maintains that because Ermes Paul failed to file a notice of appeal with the land commission, as required under the Chuuk State Rules of Appellate Procedure, the Court should dismiss his appeal.

The appellee notes that under Rule 3(a) of the Chuuk State Rules of Appellate Procedure, a notice of appeal is to first be filed in the court from which the appeal is being taken. In the case of the land commission, Section 115 of the Trust Territory Code states that an appeal from the land commission shall be treated in the same manner as an appeal from a district court in a civil action. 67 TTC 115. According to the appellee, this means that the appellant's notice of appeal of the land commission's determination should have been filed with the land commission.

The appellee next cites to Rule 10 of the Chuuk State Rules of Appellate Procedure, which provides that the failure of an appellant to take any step other than the timely filing of a notice of appeal does not affect the validity of the appeal, but is ground only for such action as the court deems appropriate, which may include dismissal of the appeal.

In support of her position that the Court dismiss Ermes Paul's appeal, Nopuko Barker states that when Ermes Paul failed to file a notice of appeal with the land commission, the land commission issued a valid certificate of title for the disputed land. Nopuko Barker notes that under Section 117 of Title 67 of the Trust Territory Code, if a land commission determination is not appealed within 120 days, the land commission shall issue a certificate of title which is prima facie evidence of ownership. According to Ms. Barker, she received a certificate of title to the disputed land on February 19, 1996. She states that because the title was prima facie evidence of her ownership of the property in question, she, in turn, transferred the title to the land in question to her daughter. She argues that under these circumstances, the Court, in recognition of the land commission's issuance of a valid certificate of title as well as her subsequent reliance upon that title as prima facie evidence of her ownership of the land in question, has a valid basis for dismissing the appellant's appeal.

Second, Ms. Barker argues that Mr. Paul's appeal should be dismissed because he failed to prosecute his case. Specifically, she argues that he has not filed a brief of the issues on appeal. In addition, Ms. Barker states that while the appeal was taken on October 31, 1995, the certificate of record ready from the Chuuk State Supreme Court was not issued until April 6, 1998. Ms. Barker maintains that the only step the appellant took during that period to pursue his case was to file a Notice of Expedited Hearing on September 25, 1997, which is when Ms. Barker states she first received notice that this matter had been appealed.

Citing to Wainit v. Weno, 8 FSM Intrm. 28 (App. 1997), CSSC 122-93, Appeal No. 11-95, Nopuko Barker states that a dismissal is appropriate here. In Wainit, a single justice of the Chuuk State Supreme Court Appellate Division dismissed an appeal following the appellant's failure over a period of some four months to comply with the filing requirements of the Chuuk State Rules of Appellate Procedure. Nopuko Barker, noting that Ermes Paul's failure to comply with the Rules of Appellate Procedure greatly exceeds four months, argues that, like the appeal in Wainit, this case should also be dismissed.

Third, and lastly, Nopuko Barker states that the appellant's case should be dismissed under the doctrine of laches. According to Ms. Barker, the doctrine of laches provides for a dismissal when there is an "inexcusable lack of diligence in bringing suit and injury to the other party as a result if such inaction." Br. at 9 (citing Mid-Pacific Constr. Co. v. Semes (III), [1993] FMSC 45; 6 FSM Intrm. 180, 185-86 (Pon. 1993); Youngstrom v. Youngstrom, [1992] FMSC 13; 5 FSM Intrm. 335, 337 (Pon. 1992)). According to Ms. Barker, not only is there no excuse for Mr. Paul's delay, but she may experience injury if this matter is not dismissed. Ms. Barker asserts that while this case sat idle, one of the witnesses who testified on her behalf at the land commission hearing, Faustino Bossy, is now deceased. Ms. Barker further notes that she has since transferred title to the land in question to her daughter, who has not been able to utilize the land because of the delay in this matter.

2. Appellee's Standard of Review

With regard to her argument that this matter should not be subject to de novo review, Ms. Barker states that Mr. Paul has not presented any evidence or even an argument to support his position that the land commission's fact finding procedures are inadequate or improper, thereby giving rise to de novo review. Ms. Barker notes that while Mr. Paul may object to the fact that the land commission rejected the land registration team's determination, the Trust Territory Code specifically allows the land commission to take this course of action. Citing Nakamura v. Moen Municipality, [1996] FMCSC 5; 7 FSM Intrm. 375 (Chk. S. Ct. Tr. 1995), Nopuko Barker argues that in the absence of any evidence that an agency's fact finding procedures are inadequate, an appellate court cannot subject a case to de novo review. Nopuko Barker argues that like the appellant in Nakamura, Mr. Paul has failed to show that the land commission's fact finding procedures are inadequate. As such, she concludes that the Court should review the land commission determination giving due regard to the rule of prejudicial error.

III. Discussion

A. The Law

Under the Chuuk State Constitution's transition clause, Title 67 of the Trust Territory Code applies in Chuuk. Chk. Const. art. XV, § 9. Under Title the Trust Tust Territory Code, each land commission is authorized and empowered to determine the ownership of any land in its district. Each land commission is further authorized to appoint o more land registration tean teams and to designate the area or areas for which each team shall be responsible. 67 TTC 103. Each land registration team is responsible for adjudicating claims to land within the area which the team is responsible. 67 TTC 108.

In conducting hearings, each land registration team is authorized to administer oaths to witnesses, to take testimony under oath and to subpoena witnesses. 67 TTC 111. Once a decision is reached on any claim where a dispute has arisen, the substance of all pertinent testimony taken by a land registration team shall be included in the team's record. 67 TTC 107(1)(c) and (3). Further, each land registration team is to be guided by the rules of civil procedure and the rules of evidence. 67 TTC 112. Each land registration team determination is subject to review by the land commission. 67 TTC 109.^[2]

Upon receipt of an adjudication from a land registration team and the record on which it is based, the land commission shall review the record and shall: 1) if satisfied therewith, make a determination of ownership; 2) return the record to the land registration team with instructions concerning further hearings or other action; or 3) itself hold further hearings and then make a determination of ownership based upon the record and further information obtained by the commission. 67 TTC 109.

In the event that the land commission rejects a land registration team determination and instead holds further hearings, Section 111 of Title 67 of the Trust Territory Code authorizes the land commission to administer oaths to witnesses, to take testimony under oath and to subpoena witnesses. 67 TTC 111. In addition, the Trust Territory Code calls for each land commission to be guided by the rules of civil procedure and the rules of evidence. 67 TTC 112.

A determination of ownership by a land commission shall be subject to appeal by any party aggrieved at any time within one hundred and twenty days from the date of said determination. 67 TTC 115. However, if a land commission determination is not appealed within 120 days, then the land commission shall issue a certificate of title which shall be conclusive evidence of ownership of the land as to all persons who received notice of the land commission's action. 67 TTC 117.

The trial division of the Chuuk State Supreme Court has authority to review decisions of an administrative agency, including the land commission. Chk. Const. art. VII, § 3(c). See also Chk. S.L. No. 190-08, § 17(1).ppeal, the reviewing wing court shall review the whole record and due account shall be given to the rule of prejudicial error. Chk. S.L. No. 190-08, § 17(26). See NakavNakav. Moen Municipality, 7u>[1996] FMCSC 5; , 7 FSM Intrm. 375 (Chk. S. Ct. Tr. 1995). The Chuuk State Supreme Court may also conduct a de novode novo rev> review is authorized where the agency action is adjudicative in nature and the fact finding procedures employed by the agency are inadequate. Id. at 378 (citing Friends of Endangered Species, Inc. Jantzen[1985] USCA9 751; , 760 F.2d 976, 982 n.5 (9th Cir. 1985)).

B. Procedural Challenges

In addressing Nopuko Barker's procedural challenges, this Court notes that the authority to dismiss a case on appeal under the Chuuk State Rules of Appellate Procedure is purely discretionary. Thus, the ruling in the case of Wainit is not binding precedent. Moreover, even if the Wainit decision were binding, Ms. Barker's reliance upon Wainit is inappropriate as the FSM Supreme Court Appellate Division ultimately dismissed that case for lack of jurisdiction, see Wainit v. Weno, [1999] FMSC 8; 9 FSM Intrm. 160 (App. 1999) (dismissal by single justice rather than full appellate panel is not a "final order"), and this Court's Appellate Division has, in turn, not yet ruled on the validity of the trial court order at issue in that matter.

Here, rather than dismiss this case for any apparent procedural problems, this Court directed the parties to submit briefs as to whether this case should be reviewed de novo. At a minimum, this action by the Court demonstrates that the Court preserved the option of addressing the merits of the parties' dispute - regardless of the standard of review being employed - rather than dismiss this appeal on procedural grounds. With regard to Nopuko Barker's procedural challenges, she is correct in noting that the Court is authorized to dismiss an appeal based upon the appellant's failure to comply with the rules of procedure. Here, Ms. Barker alleges that the appellant failed to file a notice of appeal with the land commission as required by Rule 3(a) of the Chuuk State Rules of Appellate Procedure. She further argues that the appellant failed to provide her with notice of the appeal or even file a brief of the issues raised on appeal with this Court.

Ms. Barker's other arguments that this case should be dismissed due to delay must also fail. First, most of the delay in this case can be attributed to the time taken to designate a justice who would not otherwise be recused in this matter as well as in the clerk's preparation of the record, which was not complete until April 6, 1998. This is not the type of delay that can be properly attributed to the appellant.

Similarly, the argument concerning the doctrine of laches is also misplaced, as that doctrine applies to the actual filing of a claim rather than any inaction that might arise following the initiation of a legal proceeding, a factor that distinguishes this case from the cases cited by the appellant: Mid-Pacific Constr. Co. v. Semes (III), [1993] FMSC 45; 6 FSM Intrm. 180 (Pon. 1993); Youngstrom v. Youngstrom, [1992] FMSC 13; 5 FSM Intrm. 335 (Pon. 1992).

Accordingly the appellee's request to dismiss this case based upon any purported failure to comply with the applicable rules of procedure is denied.

C. Standard of Review on Appeal

As set forth above, a land commission, upon receipt of an adjudication from a land registration team and record upon which it is based, may: 1) approve the land registration team's determination; 2) return the record to the land registration team with instructions concerning further hearings; or 3) itself hold further hearings, making a determination of ownership based upon the record of the evidence presented during the land registration team hearings and any additional evidence provided during the land commission hearings. 67 TTC 109.

In this case, the land commission determination shows that the land commission held hearings and made a determination of ownership in which it awarded the disputed lot of land in question to Nopuko Barker. That determination shows that one witness, Simon Rechi, testified an behalf of Ermes Paul, while three witnesses, Faustino Bossy, Judith Nathan, and Nachu Netan, testified an behalf of Nopuko Barker. In its determination, the land commission stated that Nopuko Barker demonstrated that she was the rightful owner of the land in question.

According to the land commission determination, a review of its own records showed Ermes Paul purchased an adjoining lot of land, Lot No. 014-A-16, from Simon Rechi while Nopuko Barker obtained title to the disputed land, Lot No. 014-A-21, from Filong Bossy. The land commission found that Nopuko Barker established that Filong Bossy held proper title to the land at the time she purchased it. In contrast, the land commission stated that Mr. Rechi's testimony was "so confusing, contradictory, and not convincing to support Mr. Ermes Paul [sic] claim of ownership." Opp'n at 2.

Although the land commission determination does not refer to any efforts undertaken by a land registration team, a review of the parties' pleadings filed with this Court, shows that the land commission determination actually resulted in a reversal of an earlier determination by a land registration team, which ruled that Ermes Paul was the rightful owner of the land in question. A review of the land registration team's determination, provided as an exhibit by the appellee in her brief, shows that two witnesses, Ander Chipen and Simon Rechi, testified on behalf of Ermes Paul, while one witness, Faustino Bossy, testified for Nopuko Barker.

Absent from the record of the land commission's action is a transcript reflecting the testimony provided during all of the hearings conducted by both the land registration team and the land commission. In addition, the record of the land commission fails to contain any explanation as to why the land commission decided to conduct its own hearings as well as reach a determination that resulted in a reversal of the earlier finding by the land registration team.

Similarly, the land commission determination does not contain any indication of the contents of either the records it reviewed which purportedly showed that Ermes Paul purchased an adjoining lot of land from Simon Rechi or the "parol and physical evidence" proffered during the hearing. The determination also fails to contain an explanation as to why Mr. Rechi's testimony was found to be unconvincing.

This combination of missing information makes the land commission's fact finding procedures wholly inadequate and highly questionable by a reviewing court. A court reviewing a land commission determination must have before it a full and complete record upon which the land commission’s final decision on the parties' claims was based. As noted by the appellant, an agency action is subject to de novo review when the agency action is adjudicative in nature and its fact finding procedures are inadequate. See Nakamura v. Moen Municipality, [1996] FMCSC 5; 7 FSM Intrm. 375 (Chk. S. Ct. Tr. 1995).

In addressing the land registration team's and land commission's record-keeping practices, the Trust Territory Court, in Kumangai v. Ngiraibiochel, 6 TTR 217 (Pal. 1973), stated that when making inquiries regarding title to land, and when recording claims, holding hearings and making findings and adjudications the determination of every claim should be treated as if it will be appealed. As such, the record of that determination should be prepared accordingly, so that the court will have an adequate record on which it can review the administrative proceedings. Id. at 223.

In Kumangai, the Court noted that although the land commission adopted the land registration team's determination, there was little if any record available from either the land registration team or land commission, including a list of all witnesses or any paraphrasing of their testimony. The court explained that without a sufficient record, there can be no appellate review based upon the sufficiency of the evidence. The court further stated that in such a situation, the court is confronted with the time-consuming alternatives of a hearing de novo or a remand for further hearings, to at least provide for the preparation of an adequate record. Although the Kumangai court acknowledged that the appeal it addressed arose from one of the first hearings conducted by the land commission, it stated that every claim should be treated as if it will be appealed and the record prepared accordingly. This was not done in the present case.

The court in Kumangai could not have emphasized enough the importance of a full and complete record of all land commission proceedings. The Court will take judicial notice of the fact that Micronesia is a developing nation with an increasing population. As this nation develops, and its population grows, land ownership will undoubtedly play an important role in the development of the nation. Just as the courts in the judiciary confirm their role in society by adjudicating claims in civil matters, so to must the land commission. When a court fails to provide an adequate record of its proceedings, the role of the judiciary fails. Because claims over land are of no lesser importance than claims in civil matters, the requirement of a full and complete record applies to the land commission.

Moreover, not only is a full and complete record of the land commission's action needed for this Court's review, but the Trust Territory Code requires that there be a full and complete record of any land commission determinations. Under the Trust Territory Code, it is the land commission that is empowered to determine claims of ownership over land and there is no dispute that the land commission plays an adjudicatory role in making a determination. In doing so, the land commission may appoint a land registration team to conduct hearings and adjudicate the parties' competing claims. However, the land registration team's determination, including the record upon which it is based, is not the final determination of ownership. Rather, it is the subsequent action of the land commission that establishes a determination of ownership and which is, in turn, subject to review by this Court.

With regard to determinations by the land commission, the Trust Territory Code provides several options for the land commission to perform upon receipt of a land registration team determination. First, the land commission may approve the land registration team's determination. In doing so, it is the record of the land registration team's hearings, as approved by the land commission, that is reviewed by the court. Assuming that there is a full and complete record of the land registration team's findings, then the reviewing court could conduct a meaningful review.

Second, the land commission may remand the land registration team's determination with instructions for further hearings by the land registration team. On the assumption that the land registration team completes further hearings and renders a determination, it will then be subject to review by the land commission. If approved by the land commission, again, it is the record of the land registration team that will be reviewed by this court.

Third, and at issue here, the land commission may conduct its own hearings and reach a determination of ownership, based upon the record from the land registration team along with the record from the land commission's hearings. In such an event, the record of such action must, at a minimum, include a transcript of the hearings conducted by the land registration team as well as those conducted by the land commission. In fact, Section 109 of Title 67 of the Trust Territory Code specifically states that when the land commission holds further hearings, it must "make a determination of ownership based on the record [provided by the land registration team] and the further information obtained by the commission [during its hearings]." 67 TTC 109(3).

Moreover, in a situation in which the land commission has made a determination that results in a reversal of a land registration team's earlier determination, the record must also include an adequate basis supporting the land commission rationale for rejecting the land registration team's earlier findings. The absence of such information in the record gives the appearance - as it does in this case - that the land commission has acted arbitrarily in reaching its determination. This, in turn, leads to the conclusion that the land commission has employed inadequate fact finding procedures.

Without a full and complete record of the land commission's determination, a reviewing court cannot conduct a fair and meaningful review of the land commission's actions and the record of the land commission determination at issue here clearly is not adequate to allow for a fair and meaningful review. In fact, the only item on the record is the land commission's determination of October 17, 1995. Absent from the record, as noted above, is a transcript of the hearings that may have been held by the land registration team as well as those that were apparently held by the land commission.^[3]

Moreover, the land commission's determination provides no explanation as to why it apparently rejected the land registration team's determination of the parties' dispute or how it reached its own determination. For example, it is unclear why the land commission concluded that Simon Rechi's testimony was "so confusing, contradictory, and not convincing to support [the appellant's] claim . . . ." Simy, the contents of thof the "parol and physical evidence admitted at the hearing" remains unknown. Likewise, it appears that the land commission, in determining that Ermes Paul purchased a separate parcel of land from Simon Rechi, may have relied upon its own review of land commission records rather than considering the land commission records that may have been entered into evidence by one of the parties. See Thomson v. George, [1998] FMSC 36; 8 FSM Intrm. 517 (App. 1998).

In short, the absence of a complete record in this case makes it impossible for the Court to review the land commission's determination. Under these circumstances, the Court must, given the land commission's inadequate fact finding procedures, conduct a de novo review. Moreover, even if this Court were to review this matter giving due regard for the rule of prejudicial error, the land commission's decision would be set aside based upon its failure to observe procedures required by the Trust Territory Code. Nakamura v. Moen Municipality, [1996] FMCSC 5; 7 FSM Intrm. 375 (Chk. S. Ct. Tr. 1995) (citing Chk. S.L. No. 190-08, § 17(2)(bp>

The CourtCourt recognizes that this matter could be remanded to the land commission with directions for the land commn to provide a record of its determination that would be sufficient for appellate review. Tew. This, however, may necessitate actual further hearings before the land commission. Given the land commission's failure and apparent inability to prepare a complete record in this matter, there is no guarantee that the land commission will be able to prepare an adequate record if this case is remanded. That, coupled with the time that has elapsed thus far, the Court believes that de novo review will result in the most expeditious and efficient handling of the parties' competing claims to the land in question.

IV. Schedule for Further Proceedings

Based upon the discussion with counsel during an August 12, 1999 status conference, the Court hereby establishes the following schedule in this matter:

1. the parties are to complete discovery by December 31, 1999;

2. the parties are to attend a statute conferences on October 27, 1999, at 10:00 a.m. at the FSM Supreme Court, Chuuk Trial Division, Weno, Chuuk;

3. the parties are to file any dispositive motions by November 27, 1999;

4. in the event that a party wishes to amend or otherwise supplement a dispositive motion, based upon evidence obtained during discovery between November 27, 1999, and December 31, 1999, that party must do so by January 15, 2000;

5. a hearing on any pending dispositive motions, if needed, will be held on February 22, 2000, at 10:00 a.m. at the Chuuk State Supreme Court, Weno, Chuuk;

6. the trial in this matter is scheduled to commence on March 14, 2000, at 10:00 a.m. at the Chuuk State Supreme Court, Weno, Chuuk.

V. Conclusion

This Court finds that the land commission did not observe procedures, as required by law, and that it also failed to prepare a complete record upon which its decision was based, as required by the law. The lack of a record upon which the land commission's decision can be reviewed reflects the inadequate fact finding procedures employed by that agency. These inadequate fact finding procedures, in turn, require this Court to conduct a de novo review of the parties' claims in this matter.

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^[1] Following the May 3, 1999 status conference this Court learned that Manny Otoko, counsel for the appellant passed away. Although there has been no filing with the Court to indicate that the appellant has obtained new counsel, the Court, at a status conference held on August 12, 1999, learned that the appellant had retained Johnny Meippen as his new counsel. Accordingly, Mr. Meippen should file an entry of appearance in this matter.

^[2] The land registration team may also decline to adjudicate the disputed claim and instead refer the claim to the land commission. 67 TTC 108. Any record taken by the team, including the substance of all pertinent testimony, if any, shall be submitted to the land commission. Id. The land commission may then adjudicate the claim or refer the claim to the trial division of the Trust Territory High Court. Id.

^[3] The April 6, 1996 Certification of All Records in the File issued by the Clerk of Court shows that the records from the Chuuk State Land Commission include only the "Determination of the Chuuk State Land Commission, 3 pages." A further review of the files at the Chuuk State Supreme Court and the Chuuk State Land Commission confirmed that this was the only item produced by the land commission in this matter.