1 MILR (Rev.) 224

IN THE SUPREME COURT
REPUBLIC OF THE MARSHALL ISLANDS

S.Ct. CIVIL NO. 89-08
(High Ct. Civil No. 1984-024)

LOBOKKE LOBO,
Plaintiff-Appellant,

-v-

LAIBON JEJO,
Defendant-Appellee.

APPEAL FROM THE HIGH COURT

JANUARY 2, 1991

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

SUMMARY:

The Traditional Rights Court and the High Court ruled that, according to custom, the alap has discretion to determine how much of his share of land rental payments is to be distributed to the various members of his bwij. The Supreme Court agreed.

DIGEST:

1. APPEAL AND ERROR – Review – Questions of Law: Matters of law are reviewed de novo.

2. APPEAL AND ERROR – Review – Discretionary Matters – Findings of Facts: Findings of fact are reviewed to determine if they are clearly erroneous.

3. APPEAL AND ERROR – Review – Discretionary Matters – Findings of Fact – Clearly Erroneous: A finding of fact is clearly erroneous when the entire record produces a definite and firm conviction that the trial court made a mistake.

4. CUSTOM – Factual Inquiry: Every inquiry into custom involves two factual determinations: first, is there a custom with respect to the subject matter of the inquiry; and, if so, second, what is it?

5. LAND RIGHTS – Alap – Powers and Obligations: The amounts and timing of distributions of the alap's share among the members of his bwij entitled thereto is in the discretion of the alap.

OPINION OF THE COURT BY ASHFORD, C.J.

Plaintiff-Appellant claimed entitlement to one-half of the alap's share of rental payments for the use of a weto at Kwajalein Atoll "because he is next in line to be Alap" (Complaint, paragraph 3). The record in the case indicates that, later, Plaintiff-Appellant was not consistent with respect to either the percentage of the alap share claimed or the theory under which it was claimed. In this Court, Plaintiff-Appellant asked that he be awarded a "fair and reasonable share" of the land rental "in accordance with Marshallese custom" (Opening Brief, final paragraph).

Defendant-Appellee is the alap. There is no dispute that he distributed both cash and equipment to Plaintiff-Appellant, as one of the more than one hundred people for whom Defendant-Appellee, as alap, is responsible.

The case has been before the Traditional Rights Court twice: the first time on referred questions from the High Court and the second time in a joint trial with the High Court wherein the Traditional Rights Court was asked specific questions. In both instances, the Traditional Rights Court advised the High Court that while Plaintiff-Appellant had a right to share in the rental proceeds, the amount and timing of distributions, according to custom, should be left to the alap to decide. In the judgment appealed from, the High Court concurred with and adopted the advice of the Traditional Rights Court.

[1-3] Initially, we are faced with the question as to what standard of review to apply in this case. If the alleged error is one of law, we review the matter de novo. Pierce v. Underwood, 487 U.S. 552, 101 L.Ed. 2d 490 (1988); Pwalendin v. Ehmel, 8 TTR 548 (App. Div., Pohnpei District, 1986). If the alleged error is in, or based upon, factual findings, we will reverse or modify only if the findings are clearly erroneous. 27 MIRC Ch. 2, § 66(2). Compare 6 TTC § 355(2). A finding of fact is clearly erroneous when the entire record produces a definite and firm conviction that the court below made a mistake. Anderson v. Bessemer City, 470 U.S. 564, 84 L.Ed. 2d 518 (1985); Naishon v. Litiria, 8 TTR 357 (App. Div., Marshall Islands District, 1983); Pwalendin v. Ehmel, supra; State of Truk v. Aten, 8 TTR 631 (App. Div., Truk Terr. Div., 1988).

[4] Plaintiff-Appellant's Notice of Appeal and Opening Brief had the theme that the High Court failed to interpret Marshallese custom properly and erred in according the alap "absolute" discretion in the distribution of the rental proceeds. We are disposed to the view that the error urged is in, or based upon, factual findings as to custom. Every inquiry into custom involves two factual determinations. The first is: is there a custom with respect to the subject matter of the inquiry? If so, the second is: what is it? Only when the ascertained custom is incorporated in a statute or has formed the basis of a final court decision does it become law in the modern sense.

[5] Our review of the transcript of testimony in the trial before the High Court and Traditional Rights Court, sitting together, has satisfied us not only that there was abundant evidence to sustain the factual findings, but also that there is no basis for us to upset those findings.

Further, neither the written opinion of the Traditional Rights Court nor the judgment of the High Court appealed from has the scope attributed to them by Plaintiff-Appellant. Those documents do not purport to bestow upon the alap the "absolute" discretion of which Plaintiff-Appellant complains. The High Court ruled, with respect to the alap share, that the alap "may distribute it in his own discretion among the members of his own bwij." That judgment must be read in the light of the Traditional Rights Court opinion on which it was based. That opinion recognized that plaintiff had a right to share in the distribution, but "as to how much, here the Traditional Rights Court will adhere to the custom and let Alab Laibon Jejo decide." We do not view that statement, or the acknowledgment of the Traditional Rights Court that the alap has "sole control of the money in order to care for all his people and lands," as an adjudication that the alap may exercise his discretion free of the considerations and restraints that typically guide that exercise of discretion.

Plaintiff-Appellant also urged that the High Court erred in failing to exercise its equitable powers to ascertain and award a sum certain, from the land rentals, to Plaintiff-Appellant. Having found no error in the High Court's acceptance and endorsement of the opinion of the Traditional Rights Court, we need not address this extraordinary request to substitute the discretion of the court for that of the alap.

The judgment of the High Court is affirmed.

Roy T. Chikamoto (John R. Heine with him on the brief) for Plaintiff-Appellant.
John M. Silk for Defendant-Appellee.