1 MILR (Rev.) 216

IN THE SUPREME COURT
REPUBLIC OF THE MARSHALL ISLANDS

S.Ct. CIVIL NO. 89-03
(High Ct. Civil No. 1986-145)

EJBAD LANGIJOTA,
Plaintiff-Appellee,

-v-

BETHSHIBA ALEX,
Defendant-Appellant.

APPEAL FROM THE HIGH COURT

DECEMBER 3, 1990

ASHFORD, C.J.

BIRD, A.J., and PHILIPPO, A.J. (sitting by designation)

SUMMARY:

This suit involved a dispute over ownership of alap rights in Enebon and Boked Islands, Kwajalein Atoll. The trial court, citing Secretarial Order 2969, ruled that the unappealed 1959 ownership determination by a Land Title Officer must be given res judicata effect. The Supreme Court noted that Order 2969 had been revoked by Order 3076 and remanded the case to the trial court to determine whether the parties' predecessors in interest were parties to the Land Title Officer's proceedings. If not, the trial court must determine whether Defendant-Appellant is barred by laches from challenging that determination as to Enebon; and if not, which of them owns the alap interest in that island.

DIGEST:

1. TRUST TERRITORY COURTS DECISIONS – Stare Decisis: Decisions of Trust Territory courts do not have stare decisis, as distinguished from res judicata, effect in courts of the Marshall Islands.

2. TRUST TERRITORY COURTS DECISIONS – Precedential Value: In some circumstances, the value of Trust Territory court decisions as precedent will exceed the precedential value of cases from non-Pacific Islands jurisdictions.

3. RES JUDICATA– Determinations by Land Title Officers: Trust Territory Office of Land Management Regulation No. 1 provided sufficient procedural safeguards to hold administrative determinations thereunder to be res judicata as to persons who participated in the proceedings and those in privity with them.

4. PUBLIC OFFICERS – Presumptions – Duties Performed: Absent evidence to the contrary, a court can presume that Trust Territory officials did their duty; that is, did the things a Regulation required them to do.

5. LACHES – Discretionary: Whether laches bars an action depends upon the facts and circumstances; the decision to apply laches is primarily left to the discretion of the trial court.

6. LACHES – Requirements: To apply laches, the court must find (1) lack of diligence by the party against whom the defense is asserted and (2) prejudice to the party asserting the defense.

OPINION OF THE COURT BY ASHFORD, C.J.

This is a dispute over entitlement to the alap title, and rights stemming therefrom, to Enebon and Boked Islands, Kwajalein Atoll.

Both plaintiff and defendant claimed title under custom, the one asserting the land was bwij land and the other asserting it was imon aje land. Plaintiff also claimed under the 1959 determination made by a Land Title Officer pursuant to Trust Territory Office of Land Management Regulation No. 1. But, while that determination declared the alap title to Enebon to be in plaintiff's predecessor in title, it declared the alap title to Boked to be in defendant's predecessor in title.

The trial judge did not rule on the conflicting claims based on custom. He believed he was bound by the precedent established by Jablotok v. Ebot, 8 TTR 506 (App. Div., Marshall Islands District, 1985), which held that determinations by Land Title Officers are res judicata.1 There being no dispute that the alaps determined by that officer for Enebon and Boked Islands were, respectively, the predecessors in interest of plaintiff and defendant, the High Court ruled that plaintiff was alap of Enebon and defendant was alap of Boked.

In Jablotok, the Appellate Division of the High Court of the Trust Territory relied exclusively on a provision in Order 2969 of the U.S. Secretary of the Interior as the basis for its ruling that unappealed final decisions of Land Title Officers must be given res judicata effect. "Clearly, Secretarial Order 2969 is a valid law in the Trust Territory and cannot be ignored by any governmental entity...." Id, 510. Counsel for Appellant, however, has invited this Court's attention to the fact that Order 2969 was revoked by Order 3076, dated February 16, 1982, prior to the Appellate Division's ruling. This fact, undoubtedly, was not known to that court. The ratio decidendi of Jablotok being fatally defective, we decline to follow it.

[1,2] Further, for the guidance of counsel we are obliged to announce that decisions of the Trust Territory courts do not have stare decisis, as distinguished from res judicata, effect in the courts of the Republic. The Republic is a jurisdiction separate and distinct from the former Marshall Islands District of the Trust Territory. We do not deny, however, that in some circumstances the value of Trust Territory court decisions as precedent will exceed the precedential value of cases from non-Pacific Islands jurisdictions.

This leaves us in the position where we must examine anew the current effect of a determination by a Land Title Officer made more than thirty years ago.

Office of Land Management Regulation No. 1 provided that persons claiming any right in government-used land may file a claim for damages or rental. The Land Title Officers appointed to conduct hearings on these claims were given powers of an administrative judge, including power to summon and swear witnesses, order production of documents and punish for contempt. A notice of hearing describing the land and identifying all claimants, among other things, was required to be given by posting at a public place in the District Administration Headquarters, in the Municipality in which the land was located and, where practicable, on the land, as well as by delivery to the residences of the owners of record (if any) and claimants. Hearings were required to be public and all persons claiming any interest in the land were to be given an opportunity to be heard. The Determination by the Land Title Officer was to be in a prescribed format, describing the land in such a manner as to permit accurate identification of it, was to be filed with the Clerk of Courts for the District and the executed original and copies were to be given to the owner, District Land Office, Land and Claims Administrator and a copy was to be posted at a public place at District Administration Headquarters or at the Headquarters of the Municipality in which the land was located. Provision was made for appeal by any person claiming an interest in the land to the High Court, to be taken within one year from the date the Determination was filed with the Clerk of Courts.

[3] The foregoing provisions, we believe, provide sufficient procedural safeguards, as to notice, opportunity to be heard and appeal, to hold this administrative determination to be res judicata as to persons who participated in the proceedings and those in privity with them. But see Ngerdelolek Village v. Ngerchol Village, 2 TTR 398 (Trial Div., Palau District, 1963), and Blas v. Blas, 3 TTR 99 (Trial Div., Mariana Islands District, 1966).

Ngerdelolek Village held the Land Title Officer's Determination binding only on those who were parties to that proceeding and rendered judgment in favor of a claimant who was not a party, contrary to the result reached by The Land Title Officer. The Court opined that Land Management Regulation No. 1 apparently was intended only to make Determinations as between the Trust Territory government and private parties filing claims against it, and not Determinations good against the world.

This view of the intent of the Regulation is certainly borne out by the Declarations of Purposes in Section 1 of the Regulation. The purposes were (1) to provide procedures for determining ownership of lands used, occupied or controlled by government, (2) to effect return of lands no longer needed to the owners and (3) to provide for settlement of claims resulting from government use or occupation. Section 2 of the Regulation authorized determinations only with respect to lands so used, occupied or controlled.

Blas v. Blas ruled that the Title Determination itself is not a bar to a party's claim to the property in question when she was not a party to the proceedings in which it was made and her rights as against another were not in issue in those proceedings.

Excepting only Blas and Ngerdelolek Village, supra, Trust Territory courts sitting in Districts other than the Marshall Islands have held that Determinations by a Land Title Officer not timely appealed from are binding.2 This has been true even in cases where a party to the litigation had not been a party to the Determination proceedings.3

The results in Marshall Islands cases have not been consistent. The Appellate Division has given the Land Title Officer's Determination res judicata effect,4 but also affirmed a trial court decision that relied, in part, on an unappealed Determination and, in part, on other evidence it found consistent with that Determination.5 The Marshall Islands Supreme Court6 and Trust Territory trial courts sitting in the Marshall Islands have ruled that Land Title Officer Determinations are not binding on courts.7

[4] The record before us is not sufficiently specific to enable us to determine whether the predecessors in interest of the parties were parties to the same or different Determination proceedings before the Land Title Officer. Plaintiff's Exhibit 2 is not a Determination of Ownership containing the certifications as to notice and hearing in the form, or even substantially the form, required by Regulation No. 1, Section 10. Rather, it appears to be a compilation of "official" ownership findings concerning land at Kwajalein Atoll derived, among other sources, from "the land title hearings held from time to time by the Land Title Officer at Ebeye." Nonetheless, absent evidence to the contrary, we can presume that the Land Title Officer did his duty;8 that is, that he did the things the Regulation required him to do, so his Determinations are not now open to question. This still does not settle the issue, however, concerning who is bound by the Determination and under what legal theory. If the predecessors of Plaintiff and Defendant were both parties to the proceedings in which the alap titles to Enebon and Boked were determined, we would have no hesitancy in declaring them bound by those Determinations under either or both of the bar and collateral estoppel aspects of the doctrine of res judicata, notwithstanding the ultimate purpose of the Determination proceedings was to determine the liability of government to pay rent or damages.

Assuming they were not parties to the same proceeding or proceedings, the same conclusion may nevertheless be reached. Exhibit 2 shows that Kabua was the iroij of both islands and Soap was the dri jerbal of both islands. We may take judicial notice of the geography of Kwajalein Atoll, including the fact that Enebon and Boked are situated less than one-half mile from each other in the northern part of the Atoll. Given these circumstances, it is highly unlikely that the predecessors in interest of the Plaintiff and Defendant were not aware of the Land Title Officer's Determinations with respect to these islands, even if those Determinations were not made in proceedings to which they were both parties. It is probable, also, that the passage of thirty years since the Determinations were made has increased the difficulty and expense of proving title to the alap interests in these islands. If these assumptions are correct, then the doctrine of laches would prevent both parties from now challenging the Determinations.

[5,6] The question whether laches bars an action depends upon the facts and circumstances of the particular case. The decision to apply laches is primarily left to the discretion of the trial court, but that discretion is confined by recognized standards. The court must find (1) lack of diligence by the party against whom the defense is asserted and (2) prejudice to the party asserting the defense. Coalition for Canyon Preservation v. Bowers, 632 F.2d 774 (9th Cir., 1980).

The bare fact of a delay creates a rebuttable presumption of prejudice. Boone v. Mechanical Specialties Co., 609 F.2d 956 (9th Cir., 1979).

This case is remanded to the High Court to determine (a) whether Plaintiff and Defendant's predecessors in interest were parties to the same proceeding or proceedings wherein the Land Title Officer determined ownership of the alap interest in Enebon and Boked Islands; if so, the Land Title Officer's Determination is res judicata; and if they were not, (b) whether Defendant-Appellant is barred by laches from challenging the Determination of the Land Title Officer as to Enebon and, if not, (c) which of Plaintiff-Appellee and Defendant-Appellant is the owner of the alap interest in that Island; and to enter judgment in accordance with its findings and this opinion.

Roy T. Chikamoto (John R. Heine with him on the brief) for Defendant-Appellant Bethshiba Alex
David M. Strauss for Plaintiff-Appellee Ejbad Langijota

____________

1It should be noted that Jablotok involved different parties, different land and a different title (senior dri-jerbal rights in Leolen weto, Uliga Island, Majuro), so the case has, at the most, merely precedential, and not res judicata, effect on this case.

2Santos v. Trust Territory, 7 TTR 615 (App. Div., Mariana Islands District, 1978).

Cepeda Crisostimo v. Trust Territory, (Trial Div., Mariana Islands District, 1974), affirmed 7 TTR 375 (App. Div. 1976)

Otto v. Konang, 5 TTR 76 (Trial Div., Truk District, 1970)

Rivera v. Trust Territory, 4 TTR 140 (Trial Div., Palau District, 1968)

In Re DeCastro, 3 TTR 446 (Trial Div., Mariana Islands District, 1968)

3Rudimich v. Chin, 3 TTR 323 (Trial Division, Palau District, 1967)

Gibbons v. Owang Lineage, 5 TTR 103 (App. Div., Palau District, 1970), modifying Owang Lineage v. Ngiraikelau, 3 TTR 560 (Trial Div., Palau District, 1968)

4Lujana v. Clanry, 8 TTR 441 (App. Div., Marshall Islands District, 1984) Jablotok v. Ebot, 8 TTR 506 (App. Div., Marshall Islands District, 1985)

5Jitiam v. Konou, 8 TTR 541 (App. Div., Marshall Islands District, 1986)

6Ebot v. Jablotok, 1 MILR (Rev.) 8 (Aug 6, 1984), rev. 8 TTR 506 (App. Div., Marshall Islands District, 1985)

7Tikoj v. Liwaikam, 5 TTR 483 (Trial Div., Marshall Islands District, 1971)

Liwaika v. Bilimon, 4 TTR 123 (Trial Div., Marshall Islands District, 1968)

8"In the absence of evidence to the contrary, there is a very strong presumption ... that public officers have properly discharged the duties of their office." 29 Am Jur 2d, Evidence § 171, citing United States v. Chemical Foundation, 272 U.S. 1, 71 L.Ed. 131 (1926); see also Madrainglui v. School of the Pacific, 7 TTR 107, 110 (Trial Div., Palau District): "The presumption of regularity and legality of official acts, 29 Am Jur 2d, Evidence § 171 et seq., has not been overcome by the plaintiff."