1 MILR (Rev.) 200

IN THE SUPREME COURT
REPUBLIC OF THE MARSHALL ISLANDS

S.Ct. CIVIL NO. 86-05
(High Ct. Civil No. 1983-075)

LIWEWE JEJA,
Plaintiff-Appellant,

-v-

HESLI LAJIKAM, LIMET MOJILONG, LOTON ANTIBAS, RINA BATLOK, TIKOS LEON, and LIMELON JAWIN,
Defendants-Appellees.

APPEAL FROM THE HIGH COURT

MARCH 7, 1990

ASHFORD, C.J.
KONDO, A.J., and PHILIPPO, A.J. (sitting by designation)

SUMMARY:

Plaintiff claimed the iroij edrik title to certain wetos on islands in Arno Atoll. With the advice of the Traditional Rights Court, the High Court found that Plaintiff's claims were not established either under Marshallese custom or earlier court judgments concerning the wetos. The Supreme Court affirmed, finding that the earlier judgments relied upon had involved different legal issues. The Court also declined to hear an additional basis for the claim of title that had not been asserted in the trial court.

DIGEST:

1. COURTS – Traditional Rights Court – Qualification of Judges: After issues referred to the Traditional Rights Court have been tried and decided, it is too late to object to the qualifications of the judges.

2. RES JUDICATA – Requirements: Application of the doctrine of res judicata requires both identity of parties and identity of issues in the earlier and subsequent actions.

3. APPEAL AND ERROR – Questions Reviewable – Asserted Below: The Supreme Court cannot decide on appeal a question or claim not raised or asserted in the court below.

OPINION OF THE COURT BY ASHFORD, C.J.

Plaintiff brought this action against the leroijiaplap of certain wetos on Longar Island and the alaps of wetos on Longar Island and Tinak Island, Arno Atoll, praying that the court order the Defendants to recognize Plaintiff as the iroij edrik over the wetos. Trial was held before the Traditional Rights Court and the High Court, sitting together. Answering specific questions referred to it by the High Court, the Traditional Rights Court stated it could not find from the evidence how Plaintiff obtained the iroij edrik title. The High Court concurred, finding that neither Marshallese custom nor earlier judgments concerning the wetos operated to convey the title of iroij edrik to Plaintiff. Plaintiff appealed. For the reasons set forth below, this Court affirms the judgment of the High Court.

A. Composition of the Traditional Rights Court.

This case was tried before the Traditional Rights Court and the High Court in January 1986, after enactment of the Traditional Rights Court (Composition and Appointments) Act 1985, P.L. 1986-1, 27 MIRC Ch. 3. That statute provides that the Traditional Rights Court shall consist of a permanent panel of three judges appointed by the Judicial Service Commission and such other members or panels as may be constituted from time to time in the event of disability, disqualification or other expedient reason. 27 MIRC Ch. 3, §§ 2, 3 and 4. Section 5 of the statute requires the Judicial Service Commission to prescribe qualifications of the judges in accordance with Article VI, § 4(1) of the Constitution of the Marshall Islands. That constitutional provision requires the judges to be selected so as to include a fair representation of all classes of land rights and on a geographical basis calculated to ensure fair and knowledgeable exercise of the court's powers.

[1] The permanent panel appointed by the Judicial Service Commission includes an iroijiaplap (from whom, as the Traditional Rights Court found in this case, iroij edrik rights are derived), an alap and a dri jerbal. Plaintiff complained on appeal that the three judges of the Traditional Rights Court were all from the Ralik Chain of the Marshall Islands, which does not have an "iroij edrik system." Plaintiff asserts that had there been members on the court from the Ratak Chain, which has that system, the answers to the questions submitted by the High Court to the Traditional Rights Court would have been different. Absent evidence to that effect, this Court cannot assume that the mere fact that all members of the Traditional Rights Court were from the same island chain would offend the constitutional requirement of geographical representation ensuring fair and knowledgeable exercise of the court's jurisdiction. Furthermore, it is too late to raise, for the first time on appeal, an objection that was not asserted in the court below. See, e.g., Newark Morning Ledger Co. v. United States, 539 F.2d 929 (1976). The composition of the Traditional Rights Court became known to Plaintiff not later than the opening day of trial. The record discloses no objection by Plaintiff to the composition of the Traditional Rights Court, nor any request by the Plaintiff to either the presiding judge or the Chief Justice of the High Court to appoint a suitable person from the Ratak Chain to act as a temporary member of the Traditional Rights Court for the case. See 27 MIRC Ch. 3, § 4(1)(c). After the issues referred to the Traditional Rights Court have been tried and decided, it is too late to object to the qualifications of the judges. See, Delesdernier v. Porterie, 666 F.2d 116 (5th Cir. 1982), cert. den. 459 U.S. 839, 74 L.Ed. 2d 81, which, while applying 28 U.S.C.A. § 455(a), contains a useful discussion of the reasons underlying the need for timeliness in challenging the trial judge's qualification or raising the issue of disqualification.

B. The judgments in Civil Action Nos. 44 and 187 did not establish Plaintiff's right to succeed to the iroij edrik title.

Plaintiff asserted in the court below and in this Court that the doctrine of res judicata barred Defendants from refusing to recognize Plaintiff as successor to the iroij edrik title on the subject wetos. Plaintiff relied on judgments in Civil Action No. 44 (1957) and Civil Action No. 187 (1965) in the trial division of the High Court of the Trust Territory.

The doctrine of res judicata, literally translated as "the matter has been adjudged" means quite simply that the court will not permit parties or those in privity with them to relitigate issues which have already been determined by a court of competent jurisdiction. Joseph v. Ludwig, 4 TTR 354, 356 (1969)

[2] It is clear that application of the doctrine requires both identity of parties and identity of issues in the earlier and subsequent actions. Wong v. Sungiyama, 3 TTR 367 (1967). Without examining the question of identity of parties, it is apparent that there is no identity of issues between those earlier cases and the case at bar. Civil Action Nos. 44 and 187 involved the efficacy of Wills of Lujim to pass her iroij edrik title to Lijobar and Mwejina. The Court in Civil Action No. 187 found that the 1929 Kalimur ("Will") of Lujim, approved by the Japanese authorities on Jaluit when the Kalimur was made, to be effective to transfer Lujim's iroij edrik title. Modifying the judgment entered in Civil Action No. 44, the Court in Civil Action No. 187 ruled that paragraph 1(c) of the earlier judgment should be corrected to read:

"As between the parties and all persons claiming under them, Litarjidrik, acting with the consent and approval of Lijobar, is entitled to act as iroij edrik on the wetos between Lotoen and Lolimen on Lonar Island, Arno Atoll."

In this case, Plaintiff claims the iroij edrik title as successor in interest to Litarjidrik. The issues are whether Litarjidrik succeeded to that title (note that the judgment specifically stated she was acting with the consent and approval of Lijobar) and, if so, whether Plaintiff succeeded Litarjidrik as owner of that title.

C. The dichotomy of title and right.

Plaintiffs Amended Complaint was based on a claim of title; that is, ownership of rights in land.1 The Amended Complaint alleged that Defendants "have refused to recognize and to give Plaintiff the iroij edrik's share of the copra produced" from the wetos in question and sought a judgment requiring the Defendant to "recognize Plaintiff as the iroij edrik" and "the Alaps to pay their respective amounts owing to Plaintiff." Similarly, Plaintiff's opening statement at the trial reflected his claim of title and the rights flowing therefrom. The six questions referred by the High Court to the Traditional Rights Court in a referral order dated January 13, 1986, all concern the title of the iroij edrik. No objection to the language of those questions appears in the record. The evidence of both Plaintiff and Defendants was consistent with the claim of title by Plaintiff and the defense that Plaintiff had not succeeded to the iroij edrik title. The questions by the Traditional Rights Court to the witnesses and that court's answers to the reserved [sic – referred?] questions demonstrate that the Traditional Rights Court understood the action to be a dispute over the iroij edrik title.

Plaintiff and the single witness called by him did not testify that Plaintiff had royal blood; nor was there any claim that any predecessor iroij edrik made a Kalimur in his favor. There was undisputed and unrebutted testimony by several witnesses that Plaintiff had no royal blood and no Kalimur named him as iroij edrik.

In answering the reversed [sic – referred?] questions, the Traditional Rights Court stated in several of its answers that royal blood, or iroijiaplap blood, is necessary to succeed to the iroij edrik title. It should be noted, however, that the Traditional Rights Court did not specifically consider whether a person without royal blood could succeed to that title under a valid Kalimur. This Court expressly refrains from expressing any opinion on that subject since it is not necessary to determination of this case.

Plaintiff changed his theory on appeal. He now asserts that he has the rights of the iroij edrik, arising independently of the title, if not the title itself. Maddison v. Tarkwon and others, Civil Action No. 48 (1956) in the trial division of the High Court of the Trust Territory is cited in support of his position. The judgment in that case held that the plaintiff Maddison "holds the iroij edrik land rights in the following lands on Majuro Atoll, Marshall Islands, but is not entitled to the title or to the ceremonial rights of an iroij edrik." It may well be that the "title" referred to in the Maddison judgment is the rank or privilege of iroij edrik, as distinguished from his ownership of land rights; but, if not, then Maddison does give credence to the claim that title and the rights flowing therefrom can be separated. However, it does not appear from the judgment, as claimed by Plaintiff, that Maddison had no royal blood.

[3] Even assuming that land rights associated with the title of iroij edrik can be separated from that title (but without deciding that they can be separated) this Court cannot decide on appeal a question or claim not raised or asserted in the court below. Jatios v. Levi, 1 TTR 578, 585 (1954).

The judgment of the High Court is affirmed.

By order, submitted on the briefs without oral argument:

Hemos A. Jack for Plaintiff-Appellant

Linda Wingenbach, Micronesian Legal Service Corp., for Defendants-Appellees

_________

1As used in this opinion "title" refers to ownership of rights in land as distinguished from an appellation given to a person as a sign of privilege or distinction.