Nashion v Enos [2008] MHSC 11; 3 MILR 84 (25 August 2008)

IN THE SUPREME COURT
REPUBLIC OF THE MARSHALL ISLANDS

S. Ct. Case No. 2006-011
High Ct. Civil No. 2003-197

TABWI NASHION and ANN SHELDON,
Plaintiffs-Appellees,

-v-

ENJA ENOS and ALDEN JACKLICK,
Defendants-Appellants

APPEAL FROM THE HIGH COURT

AUGUST 25, 2008

CADRA, C.J.
WALLACE, Acting Associate Justice[1] and KURREN, Acting Associate Justice[2]

SUMMARY:
Appellants challenge the decision of the Traditional Rights Court, adopted by the High Court, that appellees have alap and senior dri jerbal rights on Lokitak weto, Jabwor Island, Jaluit, based on a valid kalimur by iroijlaplap Kabua Kabua. Appellants also challenge the procedure employed by the Traditional Rights Court in substituting parties after the original plaintiffs' deaths, and argue that appellees cannot inherit this land title due to their status as adopted children. The Supreme Court affirmed the lower court's judgment.

DIGEST:

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

2. APPEAL AND ERROR – Review - Findings of Fact: Errors of fact are reviewed for clear error.

3. APPEAL AND ERROR – Review - Traditional Rights Court: The High Court and Supreme Court must give proper deference to the decision of the Traditional Rights Court in cases that involve customary law.

4. APPEAL AND ERROR – Review - Traditional Rights Court: A finding of fact as to custom made by the Traditional Rights Court is to be reversed only if clearly erroneous.

5. APPEAL AND ERROR – Review - 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.

6. COURTS - Traditional Rights Court - Jurisdiction: The Traditional Rights Court should not have decided the MIRCP 25 motion, as the motion was not a question of customary law or traditional practice and therefore was outside its jurisdiction.

7. CIVIL PROCEDURE - Parties - Substitution: Although MIRCP 25(a)(1) could be clearer, a careful reading of the rule coupled with an understanding of its function leads to the conclusion that the rule requires two affirmative steps in order to trigger the running of the 90 day period. First, a party must formally suggest the death of the party upon the record. Second, the suggesting part must serve other parties and nonparty successors or representatives of the deceased with a suggestion of death in the same manner as required for service of the motion to substitute.

8. APPEAL AND ERROR - Questions Reviewable - Asserted Below