Jack v Hisaiah and Hisaiah [2002] MHSC 5; 2 MILR 206 (23 December 2002)

2 MILR 206

IN THE SUPREME COURT
REPUBLIC OF THE MARSHALL ISLANDS

S.Ct. CIVIL NO. 01-02

(High Ct. Civil No. 1999-250)

RITOK H. JACK,
Plaintiff-Appellant,

-v-

TOKIO HISAIAH and DAVID HISAIAH,
Defendant-Appellees.

APPEAL FROM THE HIGH COURT

DECEMBER 23, 2002

FIELDS, C.J.
GOODWIN, A.J. pro tem,¹ and KURREN, A.J. pro tem²

Argued and Submitted November 20, 2002.

SUMMARY:

Plaintiff appealed from a High Court decision (i) that a weto purchased by her now deceased father was held by her mother and brother as alap and senior dri jerbal, respectively, (ii) that plaintiff did not hold alap and dri jerbal rights in the weto, and (iii) that her mother's children by a previous marriage had any present or future claims to the weto. The Supreme Court affirmed in part and reversed in part affirming defendants as the alap and senior dri jerbal, finding that plaintiff could continue to occupy a portion of the weto and complete construction in progress, and that the mother's children by a prior marriage did not have present or future rights in the weto.

DIGEST:

1. APPEAL AND ERROR - Review - Questions of Law: The standard of review for this Court is if the alleged error is one of law, the court will review the matter de nova.

2. APPEAL AND ERROR - Review - Findings of Fact. If the alleged error is based upon factual findings, the court will reverse or modify if the findings are clearly erroneous.

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

4. CUSTOM - Factual Inquiry: 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 modem sense.

OPINION BY FIELDS, C.J.

Ritok H. Jack appeals a judgment in favor of Tokiko Hisaiah and David Hisaiah as to land rights.

FACTS AND PROCEDURAL HISTORY

Ritok H. Jack sued her mother, Tokiko, and her brother David Hisaiah, for "Declatory (Declamatory) Judgment and Injunctive Relief." The dispute is over the land rights on Wojalikok Ean weto, Arrak, Majuro. The land was purchased by Andrew Hisaiah, the husband of the defendant, Tokiko, and father of defendant David Hisaiah, as well as the father of plaintiff Ritok H. Jack.