In re Lot No 014-A-21 [2003] FMCSC 1; 11 FSM Intrm 582 (Chk. S. Ct. Tr. 2003) (23 May 2003)

CHUUK STATE SUPREME COURT TRIAL DIVISION
Cite as In re Lot No. 014-A-21
[2003] FMCSC 1; 11 FSM Intrm. 582 (Chk. S. Ct. Tr. 2003)

[FSM Intrm. 582]

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

ERMES PAUL,
Plaintiff,

vs.

NOBUKO BARKER and SHERRI BARKER,
Defendants.

CSSC CA. NO. 235-95

ORDER

Andon L. Amaraich
Special Trial Division Justice

Trial: March 22-29, April 23-26, 2001
Decided: May 23, 2003

APPEARANCES:

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

For the Defendants: Johnny Meippen, Esq.
P.O. Box 705
Weno, Chuuk FM 96942

* * * *

HEADNOTES

Administrative Law - Judicial Review; Evidence - Burden of Proof; Property - Land Commission
If the Chuuk State Supreme Court determines that a de novo review of an appeal from Land Commission is appropriate, the plaintiff must prove his case by a preponderance of the evidence, and the court may make its own findings of fact based on the total record in this case, but if the court does not conduct a de novo review of the case, it merely determines whether the Land Commission’s decision was arbitrary and capricious, and whether the facts as found by the Land Commission were clearly erroneous. In re Lot No. 014-A-21[2003] FMCSC 1; , 11 FSM Intrm. 582, 588-89 (Chk. S. Ct. Tr. 2003).

[FSM Intrm. 583]

Administrative Law - Judicial Review; Property - Land Commission
When no detailed findings of fact are included either in the Land Commission Registration Team’s two decisions or in the full Land Commission’s one decision; when the full Land Commission gave no reason for reversing the Registration Team’s determinations and supports its decision with nothing but a mere conclusion; when the newly-discovered Land Commission hearing transcripts do not assist the court in determining how the Land Commission reached its decision; and when there is no indication in the Land Commission record that witness testimony was taken under oath, or that the admitted exhibits were properly authenticated and identified and the exhibits were not contained within the record, there was no basis for the court to review the Land Commission’s actions, and a trial de novo was necessary. In re Lot No. 014-A-21[2003] FMCSC 1; , 11 FSM Intrm. 582, 589 (Chk. S. Ct. Tr. 2003).

Administrative Law - Judicial Review; Property - Land Commission
De novo review is appropriate when reviewing an administrative hearing when the action is adjudicative in nature and the fact finding procedures employed by the agency are inadequate. In re Lot No. 014-A-21[2003] FMCSC 1; , 11 FSM Intrm. 582, 589 (Chk. S. Ct. Tr. 2003).

Property - Land Commission; Property - Registered Land
Since the Land Commission only has authority to issue a certificate of title after the time for appeal from a Land Commission determination of ownership has expired without any notice of appeal having been filed, when a notice of appeal was timely filed with the Chuuk State Supreme Court and the appellee had notice of the appeal, she is precluded from using the certificate of title against the appellant, and its issuance has no conclusive effect because once a notice of appeal had been filed, the Land Commission acted ultra vires, or outside of its authority, when it issued the certificate of title. The certificate is thus void. In re Lot No. 014-A-21[2003] FMCSC 1; , 11 FSM Intrm. 582, 590 (Chk. S. Ct. Tr. 2003).

Property
The transfer of a void title to another does not make the title any more valid when the other also had notice that the title was being challenged on appeal. In re Lot No. 014-A-21[2003] FMCSC 1; , 11 FSM Intrm. 582, 591 (Chk. S. Ct. Tr. 2003).

Evidence - Burden of Proof
When, at a trial de novo, the plaintiff’s testimony was credible and supported by other credible testimonial and physical evidence and the defendant’s claim was inconsistent and not supported by convincing evidence, the plaintiff’s evidence is more convincing and he has met his burden of proving ownership. In re Lot No. 014-A-21[2003] FMCSC 1; , 11 FSM Intrm. 582, 591-94 (Chk. S. Ct. Tr. 2003).

Evidence - Hearsay
A log of payments in which entries were made at or about the same time as the transactions took place, and that they were records he kept in the normal course of business can be admitted into evidence. In re Lot No. 014-A-21[2003] FMCSC 1; , 11 FSM Intrm. 582, 592 (Chk. S. Ct. Tr. 2003).

Custom and Tradition - Chuuk; Property
Acheche is traditionally a gift of land at the time of the birth of the first son so there could not have been any acheche of the land later because the transfer would have had to have taken place when the son was born. In re Lot No. 014-A-21[2003] FMCSC 1; , 11 FSM Intrm. 582, 593 (Chk. S. Ct. Tr. 2003).

Property
A party can have no legal interest in a lot when she never alleged that she purchased the lot from the true landowning group. In re Lot No. 014-A-21[2003] FMCSC 1; , 11 FSM Intrm. 582, 595 (Chk. S. Ct. Tr. 2003).

* * * *

[FSM Intrm. 584]

COURT’S OPINION

ANDON L. AMARAICH, Special Trial Division Justice:

This case came before the Court on a trial de novo to determine the ownership of Lot No. 014-A-21 in Neotes, Weno, Chuuk, on March 22-29, 2001, and April 23-26, 2001. Plaintiff Ermes Paul was represented by counsel Johnny Meippen, and defendants^[1] were represented by Salomon Saimon. The Court’s Findings of Fact and Conclusions of Law follow. For the reasons stated below, the Court finds in favor of plaintiff and against defendants, and finds that Ermes Paul is the owner in fee simple of Lot No. 014-A-21.

I. BACKGROUND

This case and related cases between Nobuko Barker and Ermes Paul as to ownership of certain land in Neotes have a long history, as the parties’ disputes as to different lots repeatedly have been shifted back and forth from the Chuuk State Land Commission to the Chuuk State Supreme Court over the last seventeen years. The background of the various cases in the Chuuk State Land Commission and in the Chuuk State Supreme Court is set forth in the Findings of Fact below, based in part upon the Court taking judicial notice of the pleadings and files in the Chuuk State Land Commission and in the Chuuk State Supreme Court Trial and Appellate Divisions, and upon testimony received at the trial de novo.

II. SUMMARY OF CLAIMS

The parties do not dispute that Lot No. 014-A-21 is part of a land called Neotes, which originally was owned by a woman named Emma. It is also undisputed, as set forth below, that Emma had four children - Rappua, Filong [Finong]. Pikiso, and Nukun, and that Rappua was the oldest son and the first of Emma’s children to die. The dispute in this case is who had the authority to sell Lot No. 014-A-21 after Rappua died, and whether the land was lawfully transferred to Ermes Paul or Nobuko Barker after Rappua’s death.

A. Plaintiff’s Claims

Plaintiff Ermes Paul claims that he is the owner of Lot No. 014-A-21 because he purchased the lot from the Neotes landowning group– specifically that he purchased Lot No. 014-A-21 from Nukun, through her son Simon Reichy, with the approval and authority of Filong. Mr. Paul claims that he originally agreed to buy Lot No. 014-A-16 from the group, and that after he finished paying for Lot 16, Simon sold him more land, which includes Lot No. 014-A-21. Mr. Paul claims that he paid the landowning group over $7,000 for Lot No. 014-A-21.

According to Ermes Paul, control over the land passed to Filong and Nukun after the death of their older brother, Rappua [Maurus]. Mr. Paul contends that Faustino Bossy, son of Rappua and brother of defendant Nubuko Barker, never had any authority over the land, or any authority to sell it without the consent of Filong and Nukun.

[FSM Intrm. 585]

B. Defendants’ Claims

Defendants claimed in their pretrial statement that Nobuko Barker purchased Lot No. 014-A-21 from Filong in 1977 for the sum of $500.00. In their closing arguments, they contend that Faustino Bossy received Lot No. 014-A-21 from Rappua when Rappua was dying, and that Filong instructed Faustino to give this land to Nobuko Barker. Defendants claim in their closing arguments that Filong requested that Faustino give Nobuko Lot 21 as a token of appreciation for buying the TAWA land back from Maku Mailo for $500.00.

Defendants also contend that Simon Reichy only sold Mr. Paul one piece of land, which is Lot No. 014-A-16, and that he did not have authority to sell Mr. Paul Lot No. 014-A-21.

III. FINDINGS OF FACT

1. There is an area on the island of Weno, State of Chuuk, known as Neotes.

2. The area of Neotes contains various lots of land, including Lot Nos. 014-A-16, 014-A-20, and 014-A-21 as designated on the Chuuk State Land Commission Cadastral Plat No. 014-A-00.

3. A woman named Emma originally owned all of the area of Neotes that is the subject of this case–Emma originally owned land that included all of what is now referred to as Lot Nos. 014-A-16, 20 and 21.

4. Emma died intestate, and at the time of her death had four live children, who were from oldest to youngest: Rappua (who was adopted by Emma), Filong [Finong], Pikiso, and Nukun. Rappua and Pikiso were male children; Filong and Nukun were female children.

5. All of Emma’s children are now deceased. The order in which the children of Emma died was Rappua, Pikiso, Filong, and then Nukun.

6. Rappua had several children including: Faustino Bossy, Nick Bossy, Titus Bossy, Sylvester Bossy, Nobuko Barker, Natchu Nethon, and Judith Nethon and Gabriel. Rappua died in 1957.

7. Filong’s children included Ilar [Inar] and Toi[i].

8. Nukun’s children included Dionis, Fumie, Simon Reichy, and Martina Asan.

9. Rappua inherited the land from Emma when she died, including Lot Nos. 014-A-16, 20 and 21. When Rappua died in 1957, control over the disputed property passed to the land owning group including Filong, Nukun and their children.

10. Faustino Bossy never was given authority over the Neotes taro patch, including Lot Nos. 014-A-20 and 014-A-21, by "acheche" or otherwise.

11. On January 17, 1978, Ermes Paul filed Application No. 65221 with the then Truk District Land Commission, declaring that he is the owner of "Newotes #4 Taro Swamp" located in Nepukos. He stated in his original application that he bought this land from Filong in the amount of $1,550.00. At some later time, Simon and Martina’s names were written in with Filong’s name. Application No. 65221 relates to Lot No. 014-A-16.

12. On August 4, 1981, Ermes Paul filed Application No. 65889 with the then Truk District

[FSM Intrm. 586]

Land Commission declaring that he is the owner of "another part of Newotes in Nepukos sold it to me by Simon." The original purchase price stated for this land was $3,500, which was changed at some unknown later time to $5,860. Application No. 65889, sometimes referred to as Lot No. 65889, relates to Lot No. 014-A-21.

13. On May 8, 1984, the Land Commission Registration Team held a preliminary hearing on Ermes Paul’s Application No. 65889. The Team found that Mr. Paul’s claim was well-founded, and officially recorded his claim for hearing.

14. On February 5, 1985, the Land Commission Registration Team issued a Notice of a formal hearing to be held on March 6, 1985, on forty-nine (49) different claims that had been filed in Registration Area No. 14, including Mr. Paul’s Application No. 65889 for Lot No. 014-A-21.

15. Lot No. 14-A-20 often is referred to as the "TAWA" land, because it once belonged to the Trukese-American Women’s Association.

16. On July 6, 1990, Nobuko Barker filed Chuuk State Supreme Court Civil Action ("CSSC CA.") No. 78-90, an action to quiet title to land she claimed to own in Neotes. In support of her claim, Ms. Barker presented a Determination of Ownership for Lot No. 64076 (the TAWA land), which was issued to her on March 23, 1978. Nobuko Barker also claimed that she was given additional portions on both sides of this lot by her aunt and uncle, Filong and Pikiso.

17. The land claimed by Nobuko Barker in CSSC CA. 78-90 included Lot Nos. 014-A-20 and 014-A-21.

18. Nobuko Barker claimed in CSSC CA. 78-90 that Mr. Paul began trespassing on her land in 1979 by constructing a cement structure.

19. That cement structure still exists today and is located on the boundary of Lot Nos. 014-A-21 and 014-A-16, which runs from marker no. 29 to marker no. 60 as designated on the Chuuk State Land Commission Cadastral Plat No. 014-A-00.

20. On January 22, 1991, the Land Commission Registration Team issued the results of its formal hearing which was held in March, 1985, related to Mr. Paul’s Application No. 65889. The record is not clear as to why six years elapsed between the time of the formal hearing and the Land Commission Registration Team’s written decision.

21. The Land Commission Registration Team stated in its January 22, 1991 findings that Ermes Paul and his family were the owners of all of the Neotes land in dispute, except for the TAWA land, because Filong and her lineage had accepted $5,860.00 from Ermes Paul in payment for the land.

22. Thus, the Land Commission Registration Team awarded Lot No. 014-A-21 to Ermes Paul in its January 22, 1991 findings, referring to the pending court case CSSC CA. 78-90 and stating that the Land Commission Registration Team concurred with the court that Ermes Paul owned the part of Neotes then in dispute, with the exception of the TAWA land.

23. The Chuuk State Supreme Court issued its decision and judgment in CSSC CA. 78-90 on February 25, 1991. The Chuuk State Supreme Court Trial Division awarded Nobuko Barker the TAWA land, Lot No. 014-A-20, and awarded Ermes Paul the surrounding land, Lot No. 014-A-21.

24. Nobuko Barker appealed the finding in CSSC CA. 78-90 that Ermes Paul owned Lot No.

[FSM Intrm. 587]

014-A-21 to the Chuuk State Supreme Court Appellate Division on March 8, 1991. Mr. Paul did not appeal the finding that Nobuko Barker owned the TAWA land. The Appeal was designated Appeal No. 40. On September 14, 1994, the Appellate Division of the Chuuk State Supreme Court issued an Order in Appeal No. 40 vacating the Judgment in CSSC CA. 78-90 and remanding the matter to the Chuuk State Land Commission for determination of the ownership of the property in question. [See Barker v. Paul, [1994] FMCSC 1; 6 FSM Intrm. 473, 1 CSR 1 (Chk. S. Ct. App. 1994).]

25. On October 13, 1994, Ms. Barker filed an Application for Registration of Lot No. 014-A-21 with the Chuuk State Land Commission. In that Application, Ms. Barker claimed that she bought Lot No. 014-A-21 "from Pikiso and Filong for $500.00 US money." On October 13, 1994, Ms. Barker also filed an Application for Registration of Lot No. 014-A-16 with the Chuuk State Land Commission. In that Application, Ms. Barker claimed that she bought Lot No. 014-A-16 "from Filong and Pikiso for $1,000.00 in year 1971."

26. After another claims hearing, the Land Commission Registration Team determined in February, 1995, that Ermes Paul purchased Lot No. 014-A-21 for $23,760 US from Filong, Nukun, and Simon, who acquired Lot No. 014-A-21 from Rappua before his death.

27. The full Land Commission reviewed this determination by the Land Commission Registration Team, and held formal hearings on September 11, 1995 and October 10, 1995. The Land Commission issued a decision on October 17, 1995, finding that Nobuko Barker purchased Lot No. 014-A-21 from Filong in 1977, and that Ermes Paul acquired no interest in Lot No. 014-A-21. The Land Commission found that Simon Reichy sold Ermes Paul Lot No. 014-A-16 with Filong’s permission, not Lot No. 014-A-21.

28. Manny Otoko, counsel for Ermes Paul, filed a Notice of Appeal of the Chuuk State Land Commission’s October 17, 1995 decision on October 31, 1995 at the Chuuk State Supreme Court. He also filed a Certificate of Service which states that he served Nobuko Barker with the Notice of Appeal on October 19, 1995. No notice of appeal was filed with the Chuuk State Land Commission.

29. Nobuko Barker procured a Certificate of Title to Lot No. 014-A-21, dated February 19, 1996, from the Chuuk State Land Commission. Nobuko Barker transferred her interest in Lot No. 014-A-21 to her daughter, Sherri Barker, and a new Certificate of Title to Lot No. 014-A-21 was issued to Sherri Barker on December 12, 1996.

30. Nobuko Barker had notice that an appeal of the Chuuk State Land Commission’s October 17, 1995 decision had been filed with the Chuuk State Supreme Court at the time that she sought and obtained the Certificate of Title to Lot No. 014-A-21.

31. On March 18, 1998, Chief Justice Soukichi Fritz appointed FSM Supreme Court Justice Andon Amaraich as a Special Trial Division Justice of the Chuuk State Supreme Court to hear this case, as all of the Chuuk State Supreme Court Justices recused themselves from hearing it. Special Trial Division Justice Amaraich lives in Pohnpei and works at the FSM Supreme Court in Palikir, Pohnpei.

32. The file in Civil Action 235-95 that was transferred to the Special Trial Division Justice in Pohnpei contained a certification of the record received from the Land Commission. The transmittal was dated April 6, 1998. The record included only the following: the Chuuk State Land Commission’s October 17, 1995 decision, Notice of Appeal and Certificate of Service dated 10/31/95, Letter to Chief Justice or Acting Chief Justice dated 10/31/95, Order Appointing Special Trial Division Justice entered 03/18/98, and two Returns of Service dated 03/18/98.

[FSM Intrm. 588]

33. On September 2, 1999, the Court issued an order that it would conduct a trial de novo on the issue of ownership of Lot No. 014-A-21, based upon the inadequacy of the Land Commission record then before the Court. [In re Lot 014-A-21[1999] FMCSC 17; , 9 FSM Intrm. 484 (Chk. S. Ct. Tr. 1999).]

34. After the first week of trial in March, 2001, the Court discovered that the Land Commission records for Lot No. 014-A-21 had been certified and transferred to the Clerk of the Chuuk State Supreme Court on June 9, 1998. However, no notice was then given to the Special Trial Division Justice in Pohnpei.

35. The Land Commission Records for Lot No. 014-A-21 are incomplete and do not contain records of exhibits submitted or complete testimony relied upon for decision by the Land Commission; thus, the Court finds that the records still are inadequate, and that a trial de novo was necessary.

36. Nobuko Barker paid Filong and Pikiso the sum of $500 in 1971 for the TAWA land. Nobuko Barker also paid Maku Mailo $500.00 for the TAWA land, which he purchased from TAWA in 1972. Nobuko Barker acquired Lot No. 014-A-20 in 1972.

37. Ermes Paul acquired Lot No. 014-A-16 from Filong, Nukun, Simon and Martina in 1978 for $1,550.

38. Filong, Nukun, Simon Reichy, and Martina Asan were the landowning group with authority to dispose of Lot Nos. 014-A-16 and 014-A-21.

39. After Ermes Paul finished paying for Lot No. 014-A-16, the members of the landowning group of Newotes continued to take money and property from Ermes Paul.

40. Ermes Paul paid $1,550.00 for Lot No. 014-A-16. After that, Ermes Paul gave members of the landowning group two projectors, worth $500 and $800, a pickup truck worth $4,000, and a generator worth $500, and cash in the amount of at least $7,000. This constituted his payment for Lot No. 014-A-21.

41. Simon Reichy acted with the authority and approval of the landowning group when he sold Lot No. 014-A-21 in exchange for this property and money.

42. Nobuko Barker never acquired any legal interest in Lot No. 014-A-21.

IV. CONCLUSIONS OF LAW

A. De Novo Review

First, the Court will re-examine the propriety of its decision to review this case de novo, given the discovery mid-trial of the Land Commission records for Lot No. 014-A-21.^[1] The reason why the determination of whether to review this case de novo is important is that the decision to conduct a de novo review alters both the procedural posture of this case and the standard of review. If this Court determines that a de novo review is appropriate, plaintiff must prove his case by a preponderance of the evidence, and the Court may make its own findings of fact based on the total record in this case.

[FSM Intrm. 589]

If the Court does not conduct a de novo review of this case, it merely determines whether the decision of the Land Commission was arbitrary and capricious, and whether the facts as found by the Land Commission were clearly erroneous.

The Court finds that its decision to review the matter de novo still is appropriate, given the state of the Land Commission records in this case. Accordingly, the Court makes its own findings of fact, set forth above, based on the information available to it in all of the records in this case, and determines whether plaintiff has proven ownership of Lot No. 014-A-21 by a preponderance of the evidence.

The records demonstrate that two formal hearings were held by the Land Commission Registration Team, and one formal hearing was held by the full Land Commission, reviewing the decision of the Registration Team. The Land Commission Registration Team found twice that Lot No. 014-A-21 belonged to Ermes Paul. The first hearing was held in 1985; however, the Land Commission Registration Team did not issue its written decision until almost six years later, in 1991.

After the first hearing, the Registration Team found that Ermes Paul purchased Lot No. 014-A-21 from Filong and the landowning group for $5,860. The Registration Team based this determination on testimony which is not included in the record, and on a Court judgment which had not yet been rendered. It is not clear who testified at the first Land Commission Registration Team formal hearing.

After the second hearing in 1995, the Land Commission Registration Team again found that Lot No. 014-A-21 belonged to Ermes Paul. After the second hearing, the Registration Team found that Ermes Paul purchased Lot No. 014-A-21 from Filong and Nukun for $23,670. Testimony from the second formal hearing held by the Land Commission Registration Team apparently is included in the record. However, it consists of one set of handwritten notes which are not signed, and it is unclear whether the notes are complete. It includes testimony of Faustino Bossy for Nobuko Barker, and Simon Reichy and Ermes Paul for Ermes Paul.

The full Land Commission then held a third formal hearing, to review the decision of the Land Commission Registration Team, on September 11, 1995, and October 10, 1995. No reason was provided for conducting yet a third hearing and receiving additional testimony from witnesses. Curiously the full Land Commission held its hearing at a time when the record reflects that Ermes Paul was off-island for medical treatment. The witnesses for Nobuko Barker were Faustino Bossy, Judith Nethon, Natchu Nethon, and Nobuko Barker. Simon Reichy was the only witness for Ermes Paul.
No detailed findings of fact are included either in the two decisions rendered by the Land Commission Registration Team, or in the one decision issued by the full Land Commission. The full Land Commission gave no reason for reversing the determinations issued by the Land Commission Registration Team, and supports its decision with nothing but the mere conclusion that "Simon Reichy’s testimonies were so confusing, contradictory, and not convincing" that they did not support Ermes Paul’s claim of ownership. The discovery of the transcripts of the hearing in front of the Land Commission do not assist the Court in determining how the Land Commission reached its decision. There is no indication in the Land Commission record that witness testimony was taken under oath, or that exhibits that were admitted or considered by the Commission were properly authenticated and identified. Also, exhibits which are referenced throughout the record are not contained within the record. There is no basis for this Court to review the actions of the Land Commission, and a trial de novo was necessary.

De novo review is appropriate when reviewing an administrative hearing where the action is adjudicative in nature and the fact finding procedures employed by the agency are inadequate. Nakamura v. Moen Municipality, [1996] FMCSC 5; 7 FSM Intrm. 375 (Chk. S. Ct. Tr. 1995).

[FSM Intrm. 590]

Consistent with my previous order dated September 2, 1999 [In re Lot 014-A-21[1999] FMCSC 17; , 9 FSM Intrm. 484 (Chk. S. Ct. Tr. 1999)], I find that the fact finding procedure employed by the Land Commission in its adjudication of ownership of Lot No. 014-A-21 was inadequate, even considering the records that came to light during the trial de novo.

B. Effect of Issuance of Certificate of Title to Nobuko Barker and Sherri Barker

As stated above, a Certificate of Title was issued by the Land Commission to Nobuko Barker, even though Ermes Paul had timely appealed the Land Commission’s decision to the Chuuk State Supreme Court. The Court also finds that Nobuko Barker was served with the notice of appeal, and was aware of the pending appeal when she procured the Certificate of Title to Lot No. 014-A-21.

However, the Court still must address the effect that the issuance of the Certificate of Title to Lot No. 014-A-21 to Nobuko Barker, and its subsequent transfer to Sherri Barker, has on the Court’s standard of review in this case. Title 67 TTC 117(1) states in relevant part that:

After the time for appeal from a determination of ownership by a Land Commission has expired without any notice of appeal having been filed, or after an appeal duly taken has been determined, the Land Commission shall issue a certificate of title setting forth the names of all persons or groups of persons holding interest in the land pursuant to the determination, either as originally made or as modified by the High Court, as the case may be. Such certificate of title shall be conclusive upon all persons who have had notice of the proceedings and all those claiming under them and shall be prima facie evidence of ownership as therein stated against the world . . . .

67 TT( 117(1) (emp (emphasis added). As stated above, Manny Otoko, counsel for Ermes Paul, filed a Notice of Appeal of the Chuuk State Land Commission’s October 17, 1995 decision oober 995 a Chuuk huuk StateState Supr Supreme Court. He also filed a Certificate of Service which states that he served Nobuko Barker with the Notice of Appeal on October 19, 1995. No notice of appeal was filed with the Chuuk State Land Commission.^[1]

The Court already has determined that Ermes Paul timely filed his notice of appeal in this case by filing it with the Chuuk State Supreme Court on October 31, 1995. The issue before the Court now is whether the certificate of title: (1) is conclusive against Ermes Paul as evidence that Nobuko Barker is the owner of Lot No. 14-A-21; or, (2) is void, because it was erroneously issued. The Court finds that the existence of the certificate of title is not conclusive against Ermes Paul, and the Court will not consider the Certificate of Title prima facie evidence of ownership in this case.

As stated in 67 TTC 117(1), the Land Commission only has authority to issue a certificate of title, "[a]fter the time for appeal from a determination of ownership by a Land Commission has expired without any notice of appeal having been filed." Id. (emphasis added). Because a notice of appeal was timely filed with the Chuuk State Supreme Court, and Nobuko Barker had notice of the appeal, she is precluded from using the Certificate of Title against Ermes Paul, and its issuance has no conclusive effect in this case. Because a notice of appeal had ben filed, the Land Commission acted ultra vires, or outside of its authority, when it issued the Certificate of Title, and the Certificate is void.

[FSM Intrm. 591]

To hold otherwise would have the effect of nullifying any right to appeal in land cases. If a certificate of title is erroneously issued while a notice of appeal is pending, and subsequently that certificate of title is used in that appeal to have a conclusive effect against a party, it makes the appeal ineffectual. Accordingly, the certificate of title issued to Nobuko Barker must be disregarded by the Court as having any evidentiary value as to the ownership of Lot No. 014-A-21. The transfer of that void title from Nobuko Barker to Sherri Barker does not make the title any more valid, as Sherri Barker also had notice that the title to Lot No. 014-A-21 was being challenged on appeal.

C. Ownership of Lot No. 014-A-21

1. Ermes Paul’s Case

At the trial de novo, Mr. Paul testified that he purchased Lot No. 014-A-21 from Simon Reichy, who acted on behalf of the landowning group. The Court finds Mr. Paul’s testimony to be credible and supported by other evidence. First, it is clear that Simon Reichy acted with the authority of the landowning group, as Simon Reichy also sold Lot No. 014-A-16 to Mr. Paul with the approval and authority of Filong and Nukun. Second, Mr. Paul presented credible testimonial and physical evidence to support his claim that he paid for Lot No. 014-A-21 with several thousand dollars in cash and property. It is clear that the landowning group and its agents accepted this payment in exchange for land adjoining Lot No. 014-A-16 – that is, Lot No. 014-A-21, running all the way to Toii’s place.

According to Mr. Paul, his dealings with the Neotes landowning group in began when he sought an access road for a theater he had built in the area. Mr. Paul stated that the public initially had access to his theater on a road located on different land, but that the owners of the land on which that road was located sometimes would close the road before his theater was finished showing its movies, preventing people from leaving the theater. Mr. Paul looked at various property around his theater, and eventually approached Nick Bossy to ask Filong and Nukun whether they would sell him land to build a road for access to his theater.

According to Mr. Paul, in 1977 he was quoted a price of $1000 by Filong and Nukun for land on which to build his road to access his theater. He stated that, in 1977, he gave Filong and Nukun several hundred dollars, but not the full $1000 for the road land. Later, Mr. Paul determined that he needed to make the road wider, and agreed to pay Filong and Nukun an additional $500 for enough land to widen his road.

The configuration of Lot No. 014-A-16, as viewed on Chuuk State Land Commission Cadastral Plat No. 014-A-00, and as viewed by the Court in its on-site visit,^[1] is entirely consistent with Mr. Paul’s claim that he purchased Lot No. 014-A-16 to be used for an access road. At its southern base, it is a long, narrow piece of land measuring approximately 13 meters by 82 meters, and extending from a public road inward to interior plots of land. Mr. Paul stated that he finished paying for Lot No. 014-A-16 in 1979. Payments were made by Mr. Paul to Simon Reichy and Martina Asan and other members of the landowning group, with the agreement and authorization of Filong and Nukun. Lot No. 014-A-16 was not in dispute in this case, but details of its purchase and location establish the relationship between Mr. Paul and Nukun and Filong, and their course of dealing with Simon acting as agent for Nukun and Filong.

[FSM Intrm. 592]

Mr. Paul also produced a log of payments made to members of the Neotes landowning group and their family, including Filong, Simon, Toii, Ilar, and Martina. Mr. Paul testified that entries in this log were made at or about the same time as the transactions took place, and that they were records he kept in the normal course of his business. Each transaction records the date of payment, the amount of the payment, and the person to whom Mr. Paul gave the payment. Accordingly, the Court admitted this log into evidence as plaintiff’s Exhibit 1.

Mr. Paul further testified that, after the $1500 was paid to the Neotes landowning group for Lot No. 014-A-16, the group continued to come to him for money and property, including a pickup truck, two projectors, and a generator. The evidence in the record is not clear as to the exact value of everything that Mr. Paul provided to the Neotes landowning group, but it is clear that the group received a substantial amount. The Court finds clear evidence in the record that Ermes Paul gave to the landowning group at least $12,800 in cash and property: two projectors worth $500 and $800, a pickup truck worth $4,000, a generator worth $500, and cash in the amount of at least $7,000. Mr. Paul testified that, in exchange for this money and property, Simon sold him land adjoining his Lot No. 014-A-16 that "goes all the way down to Toii," meaning the land that surrounds the TAWA land and extends to the west, where Toii owns property. This land clearly encompasses Lot No. 014-A-21, as demonstrated by a visual inspection of the site conducted by the Court during the trial and by viewing Cadastral Plat No. 014-A-00. Mr. Paul testified that he knew that Simon was acting on behalf of Filong and Nukun because they had executed a document authorizing Simon to act on their behalf; however, he could not locate the document. Additionally, he stated that Filong and Nukun never objected to his transactions with Simon, and that Filong and Nukun sent several messages to Mr. Paul through Simon. Mr. Paul testified that, at that time, Nukun was old, and he helped her with the projectors so that her group could go around and show movies. All of this evidence establishes that Simon was acting with authority granted to him by Filong and Nukun when he sold Lot No. 014-A-21 to Ermes Paul in exchange for money and property.

The record also demonstrates that Ermes Paul timely attempted to register this additional land purchase, now designated Lot No. 014-A-21, with the Land Commission. Mr. Paul filed an application on August 4, 1981 for registration of "another part of Newotes in Nepukos sold it to me by Simon." This application is consistent with Mr. Paul’s testimony that he finished paying for Lot No. 014-A-16 sometime around 1979, and that thereafter he continued to provide money and property to Nukun and Filong through Simon in exchange for Lot No. 014-A-21. The record is clear that Mr. Paul finished paying for Lot No. 014-A-16 sometime around 1979, as evidenced by the Grant Deed executed before the Truk District Clerk of Court on January 30, 1979 by Simon, Martina, and Nukun.^[1] See Plaintiff’s Exhibit #2. Thus, the Court concludes that all of the property and money paid to Simon and the other members of the landowning group after 1979 was for purchase of Lot No. 014-A-21.

Finally, Mr. Paul testified that Nobuko Barker began to challenge his purchase of Lot No. 014-A-21 only after he had made all payments for the land to the landowning group, sometime when Filong was still alive. The record shows that Nobuko did not file any claim on Lot No. 014-A-21 until July, 1990, when she claimed in CSSC CA. 78-90 that Mr. Paul began trespassing on her land in 1979 by constructing a cement structure. The Court finds that Mr. Paul beginning to construct a cement structure on the line between Lot No. 014-A-16 and Lot No. 014-A-21 in 1979 is entirely consistent with his testimony regarding his purchase of additional land from the Neotes landowning group

[FSM Intrm. 593]

beginning in 1979.

The Land Commission asserted, as its only reason for awarding ownership of Lot No. 014-A-21 to Nobuko Barker, that Simon Reichy’s testimony was contradictory and confusing. Part of the basis for this appears to be that Simon testified only about "one piece" of land sold to Mr. Paul. This Court does not find that testimony to be confusing at all, as Lot No. 014-A-16 and Lot No. 014-A-21 together are one contiguous piece of land, separated into two lots by surveyors. It makes as much sense, given the realities of the fluid transactions between Mr. Paul and the landowning group, that Simon would refer to these two lots together as one piece of land as it does that he would refer to them as two distinct lands. The evidence shows that, over a period of several years, the landowning group gradually obtained payment from Mr. Paul for both lots. Simon’s testimony was entirely consistent with Mr. Paul’s testimony in the trial de novo. Simon further testified that he conducted all transactions with Mr. Paul with the full authority of Filong and Nukun, which also comports with Mr. Paul’s testimony and the history of transactions between the landowning group and Mr. Paul, evidenced by Mr. Paul’s purchase of Lot No. 014-A-16.

The Court also notes that the nature of land registration is such that individual parcels are numbered only after surveys have taken place and boundary lines have been drawn. It is not clear from the record exactly when each parcel in Neotes was "numbered," but at some point the TAWA land and surrounding land became Lot Nos. 014-A-16, 20 and 21. The fact that some distinction is now made between 16 and 21, does not mean that each was purchased in a single discrete transaction. Rather, the course of dealing between Simon and Mr. Paul was clearly ongoing, and Lot Nos. 014-A-16 and 21 were gradually paid for over a number of years.^[1]

2. Nobuko Barker and Sherri Barker’s Case
Nobuko Barker’s claim to Lot No. 014-A-21 (which affects Sherri Barker’s title) is inconsistent, and is not supported by convincing evidence.

One basis for Nobuko Barker’s claim of ownership, asserted by her brother, Faustino Bossy, was that he was given authority by Rappua over the Neotes taro patch land as the first born son, and that he gave Nobuko the portion consisting of Lot No. 014-A-21 at the request of Filong. In the alternative, Ms. Barker claims on her registration form for this land that she bought the land from Pikiso and Filong for $500.00 US money.

It is not clear why, if Faustino truly had authority over the Neotes taro patch, including Lot Nos. 014-A-20 and 014-A-21, Nobuko would have paid money to Filong or Pikiso for either lot. The record refers to two transactions Nobuko Barker had with respect to the TAWA land, but the Court finds no credible evidence that she separately purchased Lot No. 014-A-21 from Filong or any other member of the landowning group. The Court also finds that Faustino Bossy’s claim to have been given Lot No. 014-A-21 by "acheche" is not credible. His testimony in this regard is contradictory, because "acheche" is traditionally a gift of land at the time of the birth of the first son, while Faustino testified that Rappua gave him the land by acheche when Rappua was dying. There is no dispute that Rappua controlled the Neotes land during his lifetime; accordingly, the Court finds that there was no acheche of Lot No. 014-A-21 to Faustino, because the transfer would have had to have taken place when Faustino was born.

[FSM Intrm. 594]

The record is clear that, in 1971, Nobuko gave Pikiso and Filong $500.00 for the former TAWA land. The record reflects that, sometime in 1972, Maku Mailo bought the TAWA land from TAWA for $500.00. There is also evidence in the record that Nobuko Barker then paid Maku Mailo $500.00 for the TAWA land, and obtained a Determination of Ownership as to that land on March 23, 1978. The definitions and boundaries of the former TAWA land, or Lot No. 014-A-20, are not in dispute, and Nobuko Barker has obtained a clear certificate of title for that property.

The issue, however, is whether Filong and Pikiso gave Nobuko Lot No. 014-A-21 because she had to pay twice for Lot No. 014-A-20, or in the alternative, whether Nobuko Barker gave Filong and Pikiso an additional $500.00 for Lot No. 014-A-21.

The testimony and other evidence in the record conflicts on this point, and none is especially credible. First, it should be noted that every witness who has appeared on Nobuko Barker’s behalf and testified regarding her ownership of Lot No. 014-A-21 is her sister or brother. Faustino Bossy testified that he had authority over all of the taro patch land in Neotes, and that he gave Nobuko Lot No. 014-A-21 because Filong asked him to when Nobuko had to pay $500.00 to Mr. Mailo for the TAWA land. Judith Nethon and Nachu Nethon both have testified that they were with Nobuko when she paid Filong $500.00 for Lot No. 014-A-21 in 1977.

However, Ms. Barker did not assert any rights to ownership of Lot No. 014-A-21 until she initiated a trespass action against Ermes Paul in 1990. She did not file any application for registration of Lot No. 014-A-21 until October, 1994, four years after she initiated her trespass action against Mr. Paul. The record also reflects that, on the same day that she filed an application for registration of Lot No. 014-A-21, Ms. Barker also filed an application for registration of Lot No. 014-A-16 with the Chuuk State Land Commission. In that Application, Ms. Barker claimed that she bought Lot No. 014-A-16 "from Filong and Pikiso for $1,000.00 in year 1971." The Court finds that Nobuko Barker’s claims, made several years after the alleged transactions, and after Filong and Pikiso both died, are not credible.
Ms. Barker also relies upon deposition testimony, purportedly of Filong,^[1] in an unrelated case. According to the transcript provided, Filong testified in an unrelated matter that Nukun had no authority over the land in Neotes. This transcript was not authenticated, and was purportedly taken from litigation that is unrelated to this case. It also contradicts other credible evidence suggesting that Nukun did have and exercise authority over Neotes, including Lot No. 014-A-21– e.g., the fact that Nukun signed the Grant Deed for transfer of Lot No. 014-A-16 to Mr. Paul. For these reasons, the Court does not give this piece of evidence submitted by defendants much weight, and finds that Simon acted with the consent of Filong and Nukun when he sold Lot No. 014-A-21 to Mr. Paul.

Nobuko Barker also does not submit any documentary evidence of her alleged purchase of Lot No. 014-A-21, and the Court finds that it is not a realistic assertion that Pikiso and Filong would sell Ms. Barker Lot No. 014-A-21 for the sum of $500. While Ms. Barker obtained written evidence of her transaction involving the TAWA land, none was presented to either the Land Commission or the Court to support her contention that she purchased Lot No. 014-A-21 from Filong. From the evidence submitted by Mr. Paul, it also is apparent that Lot No. 014-A-21 was worth much more than $500 at the time that Ms. Barker purportedly purchased it. Accordingly, the Court finds that Mr. Paul’s evidence regarding the purchase of Lot No. 014-A-21 is more convincing, and that Mr. Paul met his burden of proving ownership of Lot No. 014-A-21.

[FSM Intrm. 595]

C. Findings Regarding Ownership of Lot No. 014-A-21

Accordingly, the Court finds that Ermes Paul is the owner of Lot No. 014-A-21, based on his purchase of the land from Simon, with the authority and approval of the landowning group, including Nukun and Filong.

First, the Court finds that this group became the owner of Lot No. 014-A-21 upon the death of Rappua. The Court also finds that Nobuko Barker has no legal interest in Lot No. 014-A-21. Even if the Court were to accept everything that Ms. Barker says as true, she has never alleged that she purchased Lot No. 014-A-21 from the true landowning group, as none of the transactions in which she purportedly was involved include Nukun. Rather, Nobuko Barker maintains in various parts of the record and at trial that she received the land from Faustino, through Rappua, or from Filong and Pikiso. The Court finds that Nobuko Barker never obtained any interest from the true owners of Lot No. 014-A-21, which would have included Nukun. The Court finds that Simon acted with the knowledge and authority of the entire landowning group when he sold Ermes Paul Lot No. 014-A-21 in exchange for money and goods provided by Mr. Paul, and that the landowning group as a whole enjoyed the benefits of the money and property provided by Mr. Paul.

CONCLUSION

Accordingly, the Court finds that plaintiff Ermes Paul has proven his ownership of Lot No. 014-A-21 by a preponderance of the evidence. The Court thus finds that Ermes Paul is the owner of Lot No. 014-A-21, and that Nobuko and Sherri Barker never obtained any legal interest in Lot No. 014-A-21. Judgment shall be entered in this case concurrently herewith in favor of plaintiff and against defendants.

* * * *

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Footnotes:

1. The parties stipulated at the time of trial that defendant Nobuko Barker had transferred her interest in Lot No. 014-A-21 to her daughter, Sherri Barker, and that Sherri Barker should be added as a defendant.

2. Counsel for defendants filed a motion for the Court to stop the trial de novo on April 12, 2001, after the Land Commission file was discovered mid-trial. The Court denied that motion and proceeded with the trial. This decision sets forth the reasons for denying that motion.

3. There is some argument as to whether the certificate of service attached to the Notice of Appeal is legitimate, because Manny Otoko states therein that he served Nobuko Barker with the Notice twelve days before it was filed with the Court. I find that this does not have any bearing on the legitimacy of the document– it is entirely possible that Nobuko was served this far in advance of the Notice of Appeal actually being filed.

4. The on-site visit referred to in this decision was conducted during the trial, with notice to the parties, and with counsel for both parties present at the site along with the Special Division Trial Justice and the Court staff.

5. The Registration document filed by Ermes Paul on Lot No. 014-A-16 on January 17, 1978, states that the purchase price for that lot was $1,550, while the Grant Deed, which is dated later, states that the purchase price was $1,000. The Court finds that these documents are consistent, because it appears that the Registration document takes into account the extra money Mr. Paul agreed to pay for widening the road land.

6. The Court finds that the Land Commission’s reliance on this one piece of testimony by Simon as a basis of its decision in favor of Nobuko Barker was clearly erroneous, and arbitrary and capricious, even though this finding is not necessary because of the de novo review.

7. The word purportedly is used because the transcript was not prepared by someone who had personal knowledge of the testimony of the person on the tape. Thus, it is not possible to ascertain with any certainty who is speaking and when the testimony was taken.

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