Chutaro v Sandbargen [1971] TTLawRp 31; 5 TTR 541 (20 August 1971)

5 TTR 541

CHUTARO, Appellant

v.

PETER SANDBARGEN, Appellee

Civil Appeal No. 60

Appellate Division of the High Court

August 20, 1971

Appeal from judgment relating to ownership rights in Takewa Island, Marshall Islands. The Appellate Division of the High Court, D. Kelly Turner, Associate Justice, held that in an ejectment action against defendant, where defendant claimed title through the Government, the defendant was entitled to an order making the Government a party.

Remanded for trial.

1. Ejectment-Generally

The basis of a suit in ejectment to regain possession of land is that a defendant in possession is a trespasser as against a plaintiff holding title and right to immediate possession.

2. Ejectment-Accrual of Action

A suit to end wrongful possession is a cause of action arising on the day suit is brought against the possession.

3. Trust Territory-Suits Against

In suit of ejectment against defendant whereby he claimed title through Trust Territory Government, the defendant was entitled as a matter of law to an order making the Government a party defendant at any time up to trial. (6 T.T.C., Sec. 251)

Before BURNETT, Chief Justice, TURNER and BROWN, Associate Justices

TURNER, Associate Justice

This is an appeal from a judgment and other proceedings relating to ownership rights in Takewa Island, Mili Atoll, Marshall Islands. The parties were not represented by counsel and they did not appear at the call of the calendar for the Appellate Division in Majuro. This judgment on appeal is therefore based upon the record.

The appeal brings up a record that requires review of more than the judgment. Orders made before and after entry of judgment require a chronological view of the proceedings before two High Court judges, two different Masters and a District Court judge in a criminal proceeding.

Plaintiff, Peter, filed complaint December 5, 1966, claiming family ownership of Takewa Island as against defendant Chutaro, who was (and is) in possession.

Defendant answered, denying plaintiffs claim of ownership and asserting ownership to be in the Trust Territory Government. He said:-

" ... this complaint should have been made against the government of the Trust Territory. The reason for this is that the government of the Trust Territory gave me (the) right to work on this island since 1947 to today."

A few months later, a Master was appointed and he held a pre-trial conference between the parties at Mili Atoll. He prepared a detailed memorandum of claims, agreed facts and questions to be determined at trial.

Nothing further appears in the record until August 29, 1968, when the then District Attorney filed a motion for dismissal of "any claim against" the Trust Territory Government. Neither the complaint nor answer listed the government as a party defendant, nor is there any court order in the record making the government a party. In accordance with the motion, however, without hearing or appearances of either party or of the government, the "action as to the government" was dismissed.

On the same day as the dismissal, a second order appointing a second Master was made and thereafter on May 29, 1969, the second Master reported he could not hold a hearing because the plaintiff was on Mili and the defendant was on Aur Atoll, but that the defendant had made a motion to dismiss as to him, "on the ground the land does not belong to him."

Then in June, 1969, the trial court approved the "report" of the Master, although none had been made, and held the defendant, Chutaro, had no title or interest in the land "except as he may hold rights under the Trust Territory Government, which rights have not been adjudicated in this action."

The judgment made no reference to plaintiff's complaint or his claim to ownership. No hearing was held at the time of entry of judgment.

Upon entry of judgment, the plaintiff assumed, it is indicated in the record, his ownership was confirmed because the defendant in possession was said not to have an interest in the land. Accordingly, the appellee entered the property. Defendant-appellant thereafter appeared in Majuro and asked for and was granted a restraining order in the Trial Division that:-

" ... the appellee be and hereby is restrained from interfering with the rights of the appellant. ... until this matter is determined upon the appeal filed herein.".

The defendant's appeal, filed immediately after entry of judgment, basically asked for a trial to determine his rights in the land under his lease from the government.

The issuance, on ex parte application without notice to appellee, of a restraining order prohibiting interference with appellant's rights was most inappropriate under the judgment holding the appellant had no rights in the land and which neither sustained nor disaffirmed the continued possession of appellant nor the entitlement to possession of the appellee. It was a judgment settling nothing and the restraining order compounded the error.

Regardless of what rights appellee was restrained from interfering with, it is evident from the record he was not present when the order was entered, that he was not given notice of the application for it, and that it was not served upon him after it was issued.

However, on January 21, 1970, the appellant filed a complaint for "criminal contempt" in the District Court against the appellee, alleging that appellee, on September 11, 1969, the date the restraining order was issued, failed to obey the restraining order. The appellee was in Majuro at the time and he appeared in court the next day, January 22, 1970, and plead guilty. He was not represented by the Public Defender or by other counsel. He was sentenced to six months' imprisonment, the first two of which he served and the last four of which were suspended.

There is nothing further of significance in the record and it must be concluded:-

(a) There was no trial, either before the court or a Master, on the merits of the complaint.

(b) There was no Master's Report on which a judgment could be founded.

(c) There was no hearing before the trial court at the time of entry of judgment. The appellee was in court but the appellant was not.

(d) Dismissal as to the real party in interest, the Trust Territory Government, was error and contributed to the injustices rampant in the case.

(e) It was error for the Trial Division judge to permit the District Court to impose sentence for purported violation of the Trial Division restraining order.

The record of unconscionable proceedings, unfairness and miscarriage of justice generally is sufficient in itself to justify remanding the case for a trial on the merits, a matter which has not been granted the parties.