Gimnang v Yap [1996] FMYSC 1; 7 FSM Intrm. 606 (Yap. S. Ct. Tr. 1996) (8 October 1996)

STATE COURT OF YAP TRIAL DIVISION
Cite case as Gimnang v Yap, 7 FSM Intrm. 606 (Yap. S. Ct. Tr. 1996)

BASIL LIMED GIMNANG,
Plaintiff,

vs.

STATE OF YAP,
Defendant.

___________________________________

CIVIL ACTION NO. 1995-015

FINDING OF FACT, CONCLUSIONS OF LAW AND MEMORANDUM OF JUDGMENT

Andrew Reupong
Associate Justice

Hearing: September 30, 1996
Decided: October 8, 1996

APPEARANCES:

For the Plaintiff:
R. Barrie Michelsen, Esq.
Law Offices of R. Barrie Michelsen
P.O. Box 1450
Kolonia, Pohnpei FM 96941

For the Defendant:
Dawn Landwehr, Esq.
Office of the Yap Attorney General
P.O. Box 435
Colonia, Yap FM 96943

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HEADNOTES

Civil Procedure - Summary Judgment
In considering a summary judgment motion, a court is required to view facts and draw inferences in a light as favorable to the party against whom the judgment is sought as may reasonably be done. The motion may then be granted only if it is clear that there is no genuine issue of material fact and that the moving party must prevail as a matter of law. Gimnang v. Yap, 7 FSM Intrm. 606, 608 (Yap S. Ct. Tr. 1996).

Constitutional Law - Yap - Interpretation
A constitutional provision that a thing shall be done in such a way "as provided by law" is not self-executing and requires legislation to implement it. Gimnang v. Yap, 7 FSM Intrm. 606, 609 (Yap S. Ct. Tr. 1996).

Common Law
The common law of the United States and other nations in the common law tradition, up to the initiation of constitutional self-government in the FSM in 1979, is an essential part of the common law of Yap, but a court ought not fall into the error of adopting the reasoning of other common law jurisdictions' decisions without independently considering their suitability for Yap. Gimnang v. Yap, 7 FSM Intrm. 606, 609 (Yap S. Ct. Tr. 1996).

Taxation - Recovery of Taxes
Prior to November 25, 1986, a plaintiff had a common law right to recover taxes paid pursuant to an unconstitutional Yap statute if he could show payment was made under duress and under protest. Gimnang v. Yap, 7 FSM Intrm. 606, 607, 610-11 (Yap S. Ct. Tr. 1996).

Statutes of Limitation; Taxation - Recovery of Taxes
After November 25, 1986, a claim for recovery of taxes paid under an unconstitutional Yap statute is subject to a two-year statute of limitations. Gimnang v. Yap, 7 FSM Intrm. 606, 607, 611 (Yap S. Ct. Tr. 1996).

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COURT'S OPINION