Lejeman v Laakbel [1988] MHSC 11; 1 MILR (Rev) 117 (4 May 1988)

1 MILR (Rev.) 117

IN THE SUPREME COURT
REPUBLIC OF THE MARSHALL ISLANDS

S.Ct. CIVIL NO. 86-13

(High Ct. Civil No. 1985-059)

PAUL LEJEMAN,
Plaintiff-Appellee,

-v-

TIBERKE LAAKBEL,
Defendant-Appellant.

APPEAL FROM THE HIGH COURT

MAY 4, 1988

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

SUMMARY:

The trial court held Plaintiff had both the alap and dri jerbal rights in a weto. On review, the Supreme Court found the evidence insufficient to sustain that conclusion and sent the case back for a new trial.

DIGEST:

1. LAND RIGHTS – Alap – Powers and Obligations: It is contrary to custom for an alap to change rights and responsibilities with respect to land without any reference to the iroij or anyone else.

OPINION OF THE COURT BY BURNETT, C.J.

This appeal was taken from judgment in the High Court which held Appellee to be entitled to both alap and dri jerbal rights in Aiboj weto on Mejae, Jaluit Atoll, Marshall Islands. Throughout the trial of this matter, the trial court was obviously frustrated by the ineptness of counsel. It appears also that he was misled by the shifting position taken by the Appellee and his witnesses; as well as inaccurate statements of counsel on, what proved to be, the primary basis for the court's decision.

Appellee's complaint for a declaration of his rights related only to his claim to be dri jerbal on the land by reason of customary succession. No consideration need be given to his second cause of action, for damages, nor to his third, for injunctive relief, except as they may indicate that Appellant has, in fact, been working the land.

There seems to be no question that Appellee is the alap of Aiboj weto. On trial, for the first time, he claimed his holding of dri jerbal rights, as well as, under the custom, as Jurlobren ne, a totally new theory.

The trial court judgment held that plaintiffs claim was "based ... on the ground that the land in question is what is known as Jurlobren ne in which one and the same person holds both alap and dri jerbal rights." Its finding for Appellee rests, principally, on the testimony of Iroij Kabua Kabua.

We look first to the question: What is Jurlobren ne?

The first answer is given by the Appellee, transcript (June 2, 1986) p. 15, 16. That, with such land, the alap holds the dri jerbal rights.

Later, pages 19 and 20, transcript June 2, he testified that he received his rights through Labutti, his predecessor alap. Then on page 21, he said: "I acquired that title (dri jerbal) through Lininke, the fourth child of Laakbel." (Can land be, or become, Jurlobren ne if the rights are derived from different sources?)

On page 42, the Court is told (by counsel for Appellee): "That's the holding of dri jerbal and alap – are for the alap only." And on page 49, (it) ... "concerns only those who are alaps." The testimony of Iroij Kabua Kabua casts little light on our question, he apparently having little personal recollection of the status of this land. On page 8, transcript June 6: "Paul approached me with a Deed of Sale and said, this land is a Jurlobren ne and I don't have to approach or talk to the dri jerbal ... and I signed that Deed of Sale."

On page 9, Kabua Kabua cross examination, it is suggested, for the first time, that Jurlobren ne is held only by the Iroij. Kabua's response is that "it applies to alap too." There the matter was left, except for the further testimony that the "present arrangement was made at the time of the defendant's father (Labutti)."

[1] Labutti, Appellant's father, and Appellee's predecessor as alap, is credited at various points in the testimony with having made the "arrangement." Kabua did not say, nor was he asked, whether he was Iroij in Labutti's time. At any rate, it is especially interesting to note that, at no time, was anything said as to Iroij involvement in this "arrangement," nor was there anything to tell how it came about. All rests on Labutti, the alap, who appears to have been very busy (if we credit the testimony) changing rights and responsibilities without any reference to the Iroij or anyone else. That this is contrary to custom is so obvious that it requires no citation. But, what is Jurlobren ne?

J. Tobin, in Land Tenure Patterns, page 49, equates it with "Mo" land: "Mo or kotra (as it is called in Ralik and Radak), and also called jurlobren ne in Radak, is the personal land of the paramount chief."

On page 58, he translates jurlobren ne as: "Sole of the foot (of the chief only) may touch this land."

Yet, on page 59, we have the cryptic statement "a type of Jurlobren ne is passed down from alap to alap. Only the chief and the alap possess permanent rights in this type of land."

Is this what we have here? It seems unlikely, given Appellee's statement that he succeeded Labutti as alap, and got dri jerbal rights from Lininke. Had the land come to him as Jurlobren ne, it would necessarily have been from Labutti.

We, and the trial court, are left totally in the dark as to how Appellee received both alap and dri jerbal rights (if he did); whether they came to him by succession as Jurlobren ne from Labutti, or separately, as alap from Labutti and dri jerbal from Lininke.

These matters might better have been probed by counsel on trial, but they were not, even with diligent urging by the trial court. It is, consequently, with some reluctance that we conclude that there may well have been an unjust conclusion reached, and that a new trial is warranted.

Reversed and remanded.