1 MILR (Rev.) 8

IN THE SUPREME COURT
REPUBLIC OF THE MARSHALL ISLANDS

S.Ct. CIVIL NO. 83-01
(High Ct. Civil No. 1982-049)

MELA EBOT, Successor to LEVI LANUIT (Deceased),
Plaintiff-Appellee,

-v-

JINUNA JABLOTOK,
Defendant-Appellant.

APPEAL FROM THE HIGH COURT

AUGUST 6, 1984

BURNETT, C.J.

SUMMARY:

In a dispute over entitlement to senior dri jerbal rights, the Supreme Court found ample evidence to sustain the trial court's ruling and no basis for overturning it.

DIGEST:

1. APPEAL AND ERROR – Review – Questions of Fact: Appellate courts will not interfere with findings of the trial court which are supported by credible evidence.

2. APPEAL AND ERROR – Same – Presumptions: Appellate court has a duty to make every reasonable presumption in favor of the correctness of the decision of the lower court.

3. APPEAL AND ERROR – Same – Discretionary Matters – Continuances: Abuse of discretion is the standard of review of trial court's declining to grant a continuance and allowing a trial assistant to sit at counsel table with appellee's counsel.

4. APPEAL AND ERROR – Questions Reviewable – Asserted Below: Matters as to which no objection was made at trial will not be considered on appeal.

5. WAR CLAIMS ACT – Judicial Review of Awards: Although the War Claims Act contains provisions that make all awards final, not subject to judicial review, this finality provision applies only as to claims against the United States. The court cannot be precluded from determining who actually owned the land, or was entitled to share in the claim.

6. LAND MANAGEMENT – Regulation No. 1– Finality of Determinations: Courts will not be bound by the finality provisions of Land Management Regulation No. 1.

OPINION OF THE COURT BY BURNETT, C.J.

This appeal is taken from a judgment of the High Court entered December 8, 1982, holding that the Appellee has senior dri jerbal rights in Loelen weto, Majuro, Marshall Islands. A supplemental order staying execution of judgment was entered February 24, 1983, and the record certified May 18, 1983.

The complaint, filed originally in the High Court of the Trust Territory, claimed both senior dri jerbal and dri jerbal rights. Evidence on trial was focused on which of the competing parties was senior, and the court's decision, correctly I think, found that to be the sole issue before him.

The basis for the trial court's decision is two-fold. First, both the extra-judicial and judicial admissions of defendant-appellant Jinuna compelled his conclusion, and second, he found a preponderance of the evidence in favor of plaintiff-appellee. He resolved the conflicts in the evidence, and made extensive findings of fact leading to judgment for Mela.

[1] Appellate courts have consistently held that they will not interfere with findings of the trial court which are supported by credible evidence. See Techong v. Peleliu Club, 7 TTR 364, 367 (App. Div. 1976).

This court has repeatedly held that the findings of the Trial Court will not be set aside unless clearly erroneous. Helgenberger v. Trust Territory, 4 TTR 530 (App. Div. 1969); 6 TTC § 355(2). The function of the Appellate Court in reviewing the evidence is clearly set forth in Arriola v. Arriola, 4 TTR 486 (App. Div. 1969), and we have reviewed the record and find the facts sufficient to support the judgment.

[2] A review of the record here reveals ample evidence to support the findings of the trial court; this court will not re-weigh that evidence. As said in Olper v. Damarlane, 7 TTR 496, 499 (App. Div. 1977), "its duty is to make every reasonable presumption in favor of the correctness of the decision of the lower court, ...."

[3] Appellant claims error in the court's refusal to grant a third continuance, requested orally at the time of trial, in order that his client might have other counsel "of his own choosing" present. This is a matter resting in the trial court's discretion. I find nothing to suggest an abuse of that discretion, noting that trial counsel had represented defendant from the inception of the action. It is clear from the record that he represented his client diligently and well.

There is also no evidence of an abuse of discretion in the court's allowing one Anibar Timothy to sit at counsel table with Appellee's counsel. The claimed conflict of interest, if it existed at all, had no relationship whatever with appellant or any of his interests.

[4] No consideration will be given to a point of error raised for the first time on appeal, no objection having been raised on trial. Thus, whether the assessor was present or absent during all, or any part, of trial, has no present relevance. I note that the record contains nothing to reveal the facts as to this specification of error.

The same can be said of the calling of Appellant to the witness stand, by Appellee. No objection was made on the record when he was called, hence no right to claim error was preserved for this appeal.

And again, error is claimed in admission of testimony now claimed to be hearsay; no objection having been made at trial, it will not be considered here.

Mention must be made of Appellant's contention that "it was error inconsistent with substantial justice for the trial court to re-hear the case outside the courtroom four months after both parties rested I note that the "rehearing" was in fact a conference in chambers, that it was fully recorded, and that counsel participated without registering any objection. The court characterized the hearing as an effort to obtain "a little more guidance from counsel as to the issues and the theory of their cases, and what they think backs up their theory of the case, sort of additional argument ...." Far from being "inconsistent" with justice, the procedure appears to me to represent a conscientious effort to insure that no injustice would be done.

The trial court held that it was not bound by either the findings of the War Claims Commission or the Trust Territory Land Title Officer. I agree.

[5] The War Claims Act contains provisions purporting to make all awards final, not subject to judicial review. The Appellate Division, High Court of the Trust Territory, has held in Ngikleb v. Ngirakelbid, 8 TTR 11 (1979) that the finality provision applied only as to claims against the United States, and that the court could not be precluded from determining who actually owned the land, or was entitled to share in the claim.

The matter of the Land Title Determination is more difficult of resolution; the Trust Territory courts have consistently held that such Determinations are final unless appealed within one year. I first note that Appellant is mistaken as to the basis for such Determinations of Ownership. In his brief he assumes that they were issued pursuant to the Land Registration procedure provided in 67 TTC Ch. 3. He cites 67 TTC § 117(1) as to the conclusive effect of a certificate of title issued under that chapter.

In fact, the Determination with which we were concerned was made under Office of Land Management Regulation No. 1. The entire procedure was thus an entirely administrative one.

The purpose of the Regulation, and the Determinations made under it, is significant. In Ngerdelolek Village v. Ngerchol Village, 2 TTR 398, 406 (Tr. Div. 1963), then Chief Justice Furber said:

"The exception contained in Section 13, and the nature of the whole regulation, seem to indicate an intention to provide for determinations between the government and its agencies or representatives on the one side and those filing claims against it on the other, rather than to provide for determinations of private ownership good against all the world."

Loelen weto was already occupied by the government at the time of the hearings. It was necessary, in order to regularize that possession as was done by the agreement of August 4, 1959, to determine who the government should deal with.

[6] No one will pretend that the "somewhat hasty meetings" (so characterized by the trial court) of the Land Title Officer included the procedural safeguards to be expected on such an important matter as land rights. The record is clear that the procedure was administrative and summary. In short, the courts will not be bound by the finality provisions of Land Management Regulation No. 1.

Obviously, given the many years of government possession, the land has not been utilized in the traditional fashion under Marshallese custom. The land could not be worked by dri jerbal, under direction of the alap and iroij, yet the obligation of all to cooperate, and the right of all to share in benefits, remains. It should be clear that future use is subject to the same conditions, and that the judgment does not give Appellee an unrestricted right to determine what that use will be.

The primary right of control, to be exercised in a reasonable manner, remains with the alap.

Accordingly, having found no error, the Judgment of the trial court is affirmed.

Benjamin M. Abrams for Plaintiff-Appellee
Philip Okney, Chief Public Defender, for Defendant-Appellant

ED. NOTE: The judgments of the Marshall Islands High Court and Supreme Court were reversed by the Appellate division of the High Court, Trust Territory of the Pacific Islands. The Opinion of that Court is hereinafter reproduced as an Appendix to the Opinion of the Marshall Islands Supreme Court.

See also, Langijota v. Alex, 1 MILR (Rev.) 216 (Dec 3, 1990), infra.