Lokkon v Nakap [1987] MHSC 11; 1 MILR (Rev) 69 (5 February 1987)

1 MILR (Rev.) 69

IN THE SUPREME COURT
REPUBLIC OF THE MARSHALL ISLANDS

S.Ct. CIVIL NO. 86-01
(High Ct. Civil No. 1982-006)

ISAEL LOKKON,
Plaintiff-Appellee,

-v-

NENE NAKAP,
Defendant-Appellant.

APPEAL FROM THE HIGH COURT

FEBRUARY 5, 1987

BURNETT, C.J.
TENNEKONE, A.J. and GUNATILAKA, A.J. (sitting by designation)

SUMMARY:

Defendant-Appellant appeals a High Court judgment holding Appellee Isael Lokkon to be alap on Monjelar and Monjeltak wetos. The iroij determinations found that Appellee is in the proper maternal line to hold alap position. Judgment is affirmed because Appellant, in the male line, failed to support his claim, which is contrary to the Marshallese customary pattern of matrilineal descent of rights in land.

DIGEST:

1. APPEAL AND ERROR – Questions Reviewable – Contained in Notice: Rule 3 of the Rules of Appellate Procedure provides that "only questions set forth in the notice of appeal or fairly comprised therein will be considered by the court."

2. APPEAL AND ERROR – Assignment of Errors – Objections: When error is claimed in receipt of evidence or in any other ruling by the trial court, it is counsel's duty to protect his record, and preserve the question for appellate review, by timely objection.

3. LAND RIGHTS – Alap – Succession of Rights: Marshallese customary pattern provides for matrilineal descent of land rights.

4. CIVIL PROCEDURE – Motions – Continuance: A motion for continuance is addressed to the sound discretion of the court.

5. APPEAL AND ERROR – Review – Discretionary Matters – Findings of Fact: Findings of fact of the High Court in trials before it shall not be set aside by the Supreme Court unless clearly erroneous.

OPINION OF THE COURT BY BURNETT, C.J.

On December 6, 1985 the High Court entered its Findings of Fact, Conclusions of Law, and Judgment holding Appellee Isael Lokkon to be alap on Monjelar and Monjeltak wetos, Roi Namur, Kwajalein. This appeal was taken from that judgment.

We first review, for the benefit of Appellant, certain principles which govern the conduct of an appeal.

[1] Rule 3, Rules of Appellate Procedure, provides, in pertinent part, that "(o)nly questions set forth in the notice of appeal or fairly comprised therein will be considered by the Court." Appellant's brief goes far beyond the questions set forth in his notice of appeal.

[2] When error is claimed in the receipt of evidence or in any other ruling by the trial court, it is counsel's duty to protect his record, and preserve the question for appellate review, by timely objection. Counsel will not be permitted to sit passively and permit the court to proceed, without objection, on a course later claimed to be erroneous. Again, much is contained in Appellant's brief concerning claimed errors as to which there was no objection.

In paragraph 4 of his notice, Appellant purports to "specifically reserve the right to notice, brief, and argue issues beyond this notice of appeal ...." From Rule 3 and what I have said, it should be clear that no such right exists.

It follows that this Court is under no obligation to consider much of that which is now claimed to be error. In an excess of caution, we have nevertheless examined the entire record to determine whether there is such error as to be inconsistent with substantial justice. 6 TTC § 351. We find no such error, and affirm the judgment below.

With the foregoing in mind, and a word of caution to counsel as to the course to be followed in future appeals, we will consider those questions addressed by Appellant's brief. First, error is claimed in the court's order that the matter be referred to the iroij of each of the two wetos. The short answer is the parties stipulated to entry of that order, and the iroij determinations were received without objection. The specious suggestion that the court was in error in permitting the parties to agree must fall of its own weight. The iroij determinations found the Appellee as being in the proper, maternal, line to hold the alap position. Even if those determinations were excluded, other evidence amply sustains the Appellee's claim.

[3] It is undisputed that Appellee is in the maternal, and Appellant in the male, line. Appellant offered nothing to support a claim which is contrary to the Marshallese customary pattern of matrilineal descent of rights in land.

Appellant's objection as to consideration of the alap medals (not raised on trial) goes not to their admissibility, but rather to the weight to be accorded them. They were clearly competent evidence, and the trial court gave them little weight; no mention of them is made in the court's Findings of Fact.

This action concerned only the alap rights. The court however, also enjoined distribution of the Senior Dri Jerbal share of payments due for the use of the subject wetos. Appellant neither objected nor brought the court's attention to its error. In any event, it is not relevant to the determination which concerns us here. Nothing appears in the record to show Appellant to be the Senior Dri Jerbal; he consequently has no standing to raise the question here.

Appellant's reliance on Korab v. Nakap, 6 TTR 137 (Tr. Div. 1973) is misplaced, first because these wetos were not in issue in that case. Any reference to the alap of either Monjelar or Monjeltak demonstrates nothing more than that Court's predilection to dicta.

Further, neither Appellee nor anyone in privity with him was a party to Korab. The doctrine of res judicata has no application here.

With respect to any Determination made by the Land Title Officer, it should be clear that a recital in Appellant's brief is not acceptable as a substitute for evidence in the record; there is none.

Appellant sought a continuance so that he could obtain the testimony of his final witness who, in addition to being old, making travel difficult, had no notice of the trial date. Apparently counsel made no note of the trial date when it was announced in open court, and professed not to have received written notice from the court.