3 MILR 1

IN THE SUPREME COURT
REPUBLIC OF THE MARSHALL ISLANDS

S.CT. CIVIL NO. 03-01
(High Ct. Civil Nos. 2001-218 and 
2002-063 (consolidated))

EJLA TIBON,
Plaintiff-Appellee,

v

MONEN JIHU, TELLA JIHU, and LIONRAK GEORGE,
Defendants-Appellants.

and

MONEN JIHU and TELLA JIHU,
Plaintiffs-Appellants,

-v-

LININMETO ALIK and LIONRAK GEORGE,
Defendants-Appellees.

APPEAL FROM THE HIGH COURT

APRIL 5, 2005

CADRA, C.J.
GOODWIN, A.J. pro tem, and KURREN, A.J. pro tem

Argued and Submitted March 23, 2005 

SUMMARY:

This was a dispute over the alap and dri jerbal rights and titles to Uninak, Wojajokar, Lornien, and Lobat wetos on Eneko Island, Majuro Atoll (also known as "Jitaken Wetos"). Appellants claimed that a written will or kalimur transferring the interests to these wetos to an adopted son was invalid under Marshallese custom because bwij consent had not been obtained. Appellants, who were grandchildren of the testator, also claimed that the kalimur did not comply with the requirements for a holographic will under Title 25 of the MIRC (the Probate Code), and that the kalimur wrongfully disinherited them. After hearing the evidence, the Traditional Rights Court determined that the Jitaken Wetos were not bwij lands, but had been given as kitre. Because these lands were given as kitre, bwij consent was not necessary. The Traditional Rights Court, therefore, found that the kalimur was valid under custom. The High Court held that this finding was not "clearly erroneous," and entered judgment consistent with this finding. The Supreme Court affirmed. The Supreme Court also determined that appellants’ argument that the kalimur was not a valid holographic will was without merit because it was in writing, signed by the testator and witnessed. 

DIGEST: 

1. CUSTOM – Burden of Proof: It is axiomatic that a party relying on a rule of custom has the burden of proving its existence and substance at trial. Zaion v. Peter, 1 MILR (Rev.) 228, 232 (1991). 

2. APPEAL AND ERROR – Questions Reviewable – Asserted Below: It is well settled in this jurisdiction, as elsewhere, that issues or questions not raised or asserted in the court below are waived on appeal. Jeja v. Lajikam, 1 MILR (Rev.) 200, 205 (1990). 

3. CONSTITUTIONAL LAW – Construction – Article VI: It is well settled that it is the High Court’s duty to review the decision of the Traditional Rights Court and to adopt that decision unless it is clearly erroneous or contrary to law. Abija v. Bwijmaron, 2 MILR 6, 15 (1994). 

4. APPEAL AND ERROR – Review – Discretionary Matters – Findings of Facts: A finding of fact as to the custom is to be reversed or modified only if clearly erroneous. Zaion, 1 MILR (Rev.) 233; Lobo v. Jejo, 1 MILR (Rev.) 224, 225-226 (1991). 

5. APPEAL AND ERROR – Review – Discretionary Matters – Findings of Fact – Clearly Erroneous: A finding of fact is "clearly erroneous" when a review of the entire record produces "a definite and firm conviction that the court below made a mistake." Zaion, 1 MILR (Rev.) 233. 

OPINION OF THE COURT BY CADRA, C.J.

This is an appeal from a judgment of the High Court declaring that Ejla Tibon holds the Alap and dri jerbal rights and titles to Uninak, Wojajokar, Lornien, and Lobat wetos on Eneko Island, Majuro Atoll (also known as the "Jitaken Wetos"). In reaching its judgment, the High Court adopted, in its entirety, the opinion of the Traditional Rights Court which found that a written will or kalimur by Bilimon Bowod transferring these interests to his adopted son, appellee Ejla Tibon, was valid under Marshallese custom. Appellants Monen and Tella Jihu, the grandchildren of Bilimon, appeal contending that the will or kalimur is contrary to Marshallese custom, that the will does not comply with the requirements for a valid holographic will under Title 25 of the MIRC (the Probate Code), and that the will or kalimur wrongfully disinherits appellants. As discussed below, we conclude that the findings of the Traditional Rights Court are not "clearly erroneous" and, therefore, affirm the High Court’s judgment. 

I.

On September 27, 2001, plaintiff-appellants Monen Jihu and Tella Jihu (the Jihus) filed Civil Case No. 2001-218 against defendants Lininmeto Alik and Lionrak George. In their Complaint, the Jihus alleged that, as the rightful successors of Bilimon Bowod, they were the proper persons to hold the Alap and dri jerbal rights, respectively, to the "Jitaken Wetos." Lininmeto and Lionrak filed an Answer generally denying the Jihu’s claims and seeking a determination that they were the proper persons to hold the Alap and dri jerbal rights, respectively, to these four wetos. 

On March 21, 2002, appellee Ejla Tibon commenced Civil Case No. 2002-063 against the Jihus and Lionrak claiming that he was the proper person to hold the Alap and dri jerbal rights to the Jitaken wetos. Ejla claimed he was the adopted son of Bilimon and had been given the rights to these wetos through a kalimur executed by Bilimon in 1988. 

The High Court consolidated these two cases which were then referred to the Traditional Rights Court to determine who, pursuant to Marshallese custom, was the proper person(s) to hold the Alap and dri jerbal rights to the "Jitaken wetos." A two day trial was held before the Traditional Rights Court on November 4 and 5, 2002. 

On December 4, 2002, the Traditional Rights Court issued its determinations that, under custom, Ejla Tibon was the proper person to be Alap and dri jerbal on the "Jitaken wetos." The Traditional Rights Court found that Bilimon’s kalimur transferring these rights to Ejla Tibon was valid and proper. The Traditional Rights Court found that the Jitaken wetos were not bwij lands but had been given as kitre by Iroijlaplap Jebrik to his wife, Litakbwij. Litakbwij, in turn gave these lands to her adopted son, Bilimon, who, under custom, "had the right and discretion to name his successor." Bilimon exercised that right by transferring the Alap and dri jerbal interests in these wetos to his adopted son, Ejla Tibon, by his kalimur. Ejla had lived with and taken care of Bilimon prior to Bilimon’s death in 1989. The Traditional Rights Court further noted that Bilimon could have given his rights in these wetos to his natural daughter, Teline, but did not do so. 

The High Court held a Traditional Rights Court Rule 14 hearing on February 11, 2003. That day the High Court issued its judgment adopting the Traditional Rights Court’s opinion in its entirety, finding that the Traditional Rights Court’s decision and factual findings were not "clearly erroneous." The High Court, accordingly, adjudged that Ejla Tibon was the proper person to hold the Alap and dri jerbal rights on these wetos to the exclusion of Lionrak and the Jihus. The Jihus filed a timely notice of appeal. Lionrak did not appeal. 

II.

Appellants argue that the Traditional Rights Court erred in determining that the will or kalimur of Bilimon Bowod was valid under Marshallese custom. Appellants contend that, under Marshallese custom, a transfer of an interest in land must be consented to by the lineage and approved by the Iroijlaplap. Since the Jitaken wetos are on "Jebdrik’s side" and there is no Iroijlaplap, appellants assert in their briefing that the consent of the Iroij edrik and grandchildren of Bilimon should have been obtained. Such consent was not obtained and appellants, therefore, conclude that Bilimon’s kalimur transferring his interests in this wetos to his adopted son, Ejla, was invalid. 

In support of this argument appellants cite the case of Makroro v. Kokke, 5 TTR 465 (Tr. Div. 1971). Makroro recognized that a holder of an interest in land may not transfer those interests without first obtaining consent of the lineage and approval of the iroijlaplap or the person or group exercising iroijlaplap authority. Id. at 468. While this holding may be a generally true statement of Marshallese custom, the Makroro opinion itself recognizes an exception where land is given as kitre. Id. at 469. The facts of the case at bar are clearly distinguishable from those the Trial Division considered in Makroro. Makroro did not address the factual pattern raised in the instant case and neither the Traditional Rights Court nor the High Court were bound to follow its holding. 

[1,2] It is undisputed that the Jitaken wetos were given as kitre by Jebdrik to Litakbwij and then given by Litakbwij to Bilimon. It is also undisputed that these wetos were not bwij lands. Since these lands were not bwij lands, one might reasonably question why bwij consent would be necessary for Bilimon to dispose of this property as he saw fit. If, as urged by appellants, the custom is that bwij consent was necessary for Bilimon to transfer his interests in these wetos to Ejla, it was incumbent on the Jihus to prove what the custom was. It is axiomatic that a party relying on a rule of custom has the burden of proving its existence and substance at trial. Zaion v. Peter, 1 MILR (Rev.) 228, 232 (1991). Appellants had the opportunity to produce evidence before the Traditional Rights Court of the alleged custom on which they now rely. Having considered the evidence before it, the Traditional Rights Court determined that bwij consent was not necessary for Bilimon to transfer his interests in this land by kalimur to Ejla. Appellants also argue that the Jitaken wetos are ninnin lands and that the interests in that land should have passed from Bilimon to his biological daughter, Teline, and then to her children, the Jihus. There was, however, no evidence adduced at trial concerning the classification of these wetos as ninnin lands. It is well settled in this jurisdiction, as elsewhere, that issues or questions not raised or asserted in the court below are waived on appeal. Jeja v. Lajikam, 1 MILR (Rev.) 200, 205 (1990). Since the issue was not raised before the Traditional Rights Court, we do not reach it on appeal. Moreover, the Traditional Rights Court found these wetos were not bwij land so it is unclear how ninnin would apply. 

Finally, appellants argue that Bilimon’s kalimur was not a valid holographic will. We find this argument without merit. It is clear that the kalimur was in writing, signed by the testator and witnessed. Appellee did not seek to introduce the kalimur as a holographic will. The Traditional Rights Court found the kalimur was valid under custom. We will not disturb that finding. 

III.

[3,4,5] It is well settled that it is the High Court’s duty to review the decision of the Traditional Rights Court and to adopt that decision unless it is clearly erroneous or contrary to law. Abija v. Bwijmaron, 2 MILR 6, 15 (1994). The High Court found that the Traditional Rights Court’s decision and findings were not "clearly erroneous" and, accordingly, entered judgment consistent with that decision. As noted in Zaion v. Peter, the Traditional Rights Court is in a unique position to determine matters of custom and tradition. The judges are conditioned in Marshallese culture thereby bringing specialized knowledge of custom and traditional practice to the dispute resolution process. It is for that reason, that both the High Court and this Court are to give proper deference to the decisions of the Traditional Rights Court. Accordingly, a finding of fact as to the custom is to be reversed or modified only if clearly erroneous. Zaion, supra, at 233; Lobo v. Jejo, 1 MILR (Rev.) 224, 225-226 (1991). A finding of fact is "clearly erroneous" when a review of the entire record produces "a definite and firm conviction that the court below made a mistake." Zaion, supra, at 233.

A review of the record relied upon by appellants does not produce "a definite and firm 
conviction that the court below made a mistake." We, therefore, affirm the Traditional Rights Court’s and High Court’s determination that Bilimon’s kalimur was valid under custom and was, therefore, effective to transfer the alap and dri jerbal rights in the Jitaken wetos to appellee Ejla Tibon.