1 MILR (Rev.) 259

IN THE SUPREME COURT
REPUBLIC OF THE MARSHALL ISLANDS

S.Ct. CIVIL NO. 89-10
(High Ct. Civil No. 1987-034)

SAMUEL BULALE and ALBATTAR JAMORE,
Plaintiffs-Appellees,

-v-

ROBERT REIMERS and OVERTON CLARENCE,
Defendants-Appellants.

APPEAL FROM THE HIGH COURT

MAY 8, 1992

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

SUMMARY:

Plaintiff failed to establish that a kitre of the alap and dri jerbal rights in two wetos either had not been made or had been revoked. The kitre land rights passed to the bwij of the recipient.

DIGEST:

1. APPEAL AND ERROR – Dismissal, Grounds for – Failure to Identify Errors: The Court may decline to hear an appeal where it cannot be determined from the notice of appeal what the alleged error was.

2. EVIDENCE – Hearsay – Exceptions – Statements by Persons Incapable of Testifying: Section 31, Evidence Act 1986, sets forth circumstances in which statements by persons incapable of testifying may be received in evidence.

3. APPEAL AND ERROR – Review – Harmless Error: Improper admission of evidence is not grounds for reversal if it appears there is sufficient evidence to justify the decision, independently of the evidence to which objection was made.

4. LAND RIGHTS – Kitre (gift land) – Conditions of Gift: The husband who makes the kitre can attach conditions to it.

5. LAND RIGHTS – Same – Succession to Rights: It is proper and normal for kitre land to pass to the bwij of the recipient.

OPINION OF THE COURT BY ASHFORD, C.J.

This appeal is from that part of a Judgment rendered by the High Court that Plaintiff-Appellee Bulale and not Defendant-Appellant Reimers, who claims under Defendant-Appellant Clarence, is the owner of the alap and dri jerbal rights in Aibwij and Lowio wetos, Kejbwe Island, Arno Atoll.1

[1] Preliminarily, the Court is constrained to note that the notice of appeal stated two questions in such general terms as to make it impossible to identify, prior to the filing of the Opening Brief, the errors allegedly committed by the trial court. Rule 3 of the Marshall Islands Rules of Appellate Procedure requires that the notice of appeal "contain a concise statement of the questions presented by the appeal…. Only questions set forth in the notice of appeal or fairly comprised therein will be considered by the Court." This Court has declined to hear appeals where it cannot be determined from the notice of appeal what the alleged error was. See, e.g., Korok v. Lok, et al. 1 MILR (Rev.) 93, 95 (Feb 25, 1988). However, because land rights are of particular importance in this jurisdiction, the Court has undertaken to give full consideration to this appeal, notwithstanding the deficiencies in the notice. Counsel are cautioned that the Court may not be so leniently disposed in future cases.

This title dispute is not new. It was the subject of litigation between Bulale and Clarence filed in the trial division of the High Court of the Trust Territory, Marshall Islands District, in 1973 as Civil No. 443. Then, as now, Bulale claimed his interest through customary succession from his mother's sister Liwije, who had received the alap and dri jerbal interests as kitre2 from her husband, Iroijlablab Wijlan. Then, as now, Clarence (then known as Kaboj) asserted that the kitre had been terminated by Wijlan and that he, Clarence, had succeeded to the alap and dri jerbal rights. The case did not go to judgment and was still pending when the court's existence was terminated.

The instant case was triggered by a sale of the same property interests by Clarence to Reimers in 1985. In its judgment, the High Court stated that it was satisfied from the testimony that the kitre had been made and that Clarence's testimony that the kitre had been abrogated by divorce was suspect, unsubstantiated and contradicted by a statement in his own last will and testament executed in 1968. The High Court went on to find that those lands became kabijukinen or bwij lands after the death of Liwije and that Bulale inherited the lands through his mother, Likojmal, the older sister of Liwije. It based this holding on what the court found to be customary practice of inheritance of land rights.

The initial questions raised by the appeal relate to the kitre by Wijlan to Liwije. Appellant asserts that it was established only by inadmissible hearsay testimony, to which he timely objected, that the testimony related only to one of the two wetos and that the Court erred in considering a statement against interest in an unauthenticated document.

[2] Appellant argues that since none of the witnesses had personal knowledge of the kitre, it having been made (if at all) before their time, and since their testimony did not fit within any of the exceptions to the hearsay rule, the court erred in considering that testimony. We disagree. Section 31 of the Evidence Act 1986 (28 MIRC Ch. 1)3 sets forth the situations in which statements by persons incapable of testifying (because of death, disability, distance and so forth) may be admitted in evidence. Subpart (h) of that section allows admission of statements by a number of persons (not merely a single individual) expressing feelings or impressions with respect to the matter in question. Subpart (d) of that section allows a statement giving the opinion of a person as to the existence of any matter of general or public interest4 made before controversy over the matter has arisen, of which, if it existed, the declarer would likely have been aware. The testimony of Bulale's witnesses Latdrik, Lajkam, Jetnil and Joram fit within these exceptions and was more than sufficient to establish the fact that the kitre had been made. Even Clarence, in claiming it had been abrogated, conceded that it had been made.

Bulale testified that the iroij had combined Lowio and Aibwij wetos by way of Iio and that after the kitre, the two wetos were treated as one. This was confirmed by the testimony of Latdrik and Lajkam, each of whom testified that Lowio was a subpart of Aibwij weto. This testimony provided sufficient basis for the trial court to hold that the kitre covered both lands.

[3] The quotation from Clarence's last will and testament in the judgment of the High Court indicates that the trial judge may have been influenced by that document in finding that the kitre had been made in 1912. If the will was not properly proved, we view it as harmless error because the other evidence, mentioned above, was more than adequate to sustain the finding that the kitre had been made. For the then current definition of harmless error in the receipt or rejection of evidence, see § 170 of the Evidence Act 1986, 28 MIRC Ch. 1.

[4,5] Clarence testified that the kitre was not enforced because Liwije and Wijlan were divorced. The kitre having been established, he had the burden of proving its revocation. 28 MIRC Ch. 1, §§ 106 and 108. Lajkam testified that Wijlan lived all his life with Liwije and that she went to Jaluit, where she died, only after his death. The trial court's conclusion is supported by the evidence.

Appellant Clarence's final contention is that to make a determination of the devolution of the kitre land, the court had to have evidence of the conditions of the kitre, that it had none and, therefore, the court erred in concluding that Bulale is the successor to rights in that land. The contention is without merit. Admittedly, the husband who makes the kitre can attach conditions to it, including specification of who is to succeed the wife. Ishoda v. Jejon, 5 TTR 497, 500 (Marshalls Dist., Tr. Div., 1971). Similarly, the husband and wife together could decide the devolution of the title. Beklur v. Lijablur, 2 TTR 556, 558 (Marshalls Dist., Tr. Div., 1964). But it is proper for the kitre land to pass to the bwij of the recipient, Wena v. Maddison, 4 TTR 194, 198 (Marshalls Dist., Tr. Div., 1968), and normal for it to do so, Ishoda v. Jejon, supra. The trial court was correct in concluding, absent evidence to the contrary, that the kitre land would pass to the bwij of the recipient.

The judgment is affirmed.

Dennis J. Reeder for Defendants-Appellants, and submitted on the briefs.
Hemos Jack on the brief for Plaintiffs-Appellees.

__________

1Spellings of Marshallese names and words are those used in Defendants-Appellants' Opening Brief.

2A gift by a man to a woman, made before or after he marries her.

3Repealed and replaced by the Evidence Act of 1989, P.L. 1989-71, subsequent to trial.

4Lajkam testified that "when a piece of land is given as a gift it is a news to the community." Tr. Part 1, v.3, p. 260.