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Lota v Korok [1979] TTLawRp 1; 8 TTR 3 (3 January 1979)

8 TTR 3

KIMAT LOTA, Plaintiff-Appellant

v

KOMA KOROK, Defendant-Appellee

Civil Appeal No. 168

Appellate Division of the High Court

Marshall Islands District

January 3, 1979

Alab rights dispute. The Appellant Division of the High Court, Burnett; Chief Justice, held that where matrilineal line through which rights of last alab (prior to dispute over alab rights) were derived was not extinct, appellee, as a member of that lineage, took the alab rights through that line and appellant's claim to patrilineal succession must necessarily fail.

1. Marshalls Custom-"Iroij Lablab"-Presumption of Reasonable Determinations

Determinations by an iroij are presumed to be reasonable and proper unless it is clearly shown they are not.

2. Marshalls Custom-"Iroij Lablab"-Approval of Wills

Party claiming on one day of trial that he did not know why iroij had not approved will under which he claimed an interest in land, and claiming the next day that iroij had withheld approval because iroij had wanted to give the land to the other party to the action because that party had a child by the younger brother of the iroij, failed to carry the burden of showing that the iroij had acted unreasonably.

3. Marshalls Custom-"Alab"-Approval of Wills

Iroij could not without justification properly approve will giving alab rights where the approval would cut off the rights of the person who had the alab rights by reason of matrilineal succession.

4. Appeal and Error-Reviewability of Issues-Matters Not Raised Below

Complaint that trial court failed to make a certain finding could not be successful on appeal where the finding sought was not raised below.

5. Appeal and Error-Harmless Error-Particular Errors

Whether it was error for court to take in evidence the prior testimony of an iroij as to iroij'a designation regarding who had alab rights in issue in the case was immaterial, for if it was error the error was harmless in view of court's holding that it need not rely on the iroij's designation.

6. Marshalls Custom-"Alab"-Succession to Rights

Where matrilineal line through which rights of last alab (prior to dispute over alab rights) were derived was not extinct, appellee, as a member of that lineage, took the alab rights through that line and appellant's claim to patrilineal succession must necessarily fail.
Counsel for Appellant: JAMES A. BRANCH, Micronesian Legal Services Corporation
Counsel for Appellee: JIMA J. ALIK, Majuro, Marshall Islands
Before BURNETT, Chief Justice, NAKAMURA, Associate Justice, and GIANOTTI, Associate Justice
BURNETT, Chief Justice

Plaintiff below appeals from judgment vesting alab rights to Manjaltok and Mankaruk wetos on Roi Island, and Majen on Enibing Island, Kwajalein Atoll, in Toka as successor to the rights of defendant.

Both parties agreed that the last alab prior to the dispute was Anej, and both claim under him. The Trial Court held for defendant by right of succession in the matrilineal line.

The Court rejected appellant's first contention that Anej had given the rights to him by written will, since the will, received in evidence, had not been approved by the iroij lablab. On appeal, he urges this as error since, while acknowledging the requirement under custom that a will must be so approved, he contends that the iroij had unreasonably withheld his approval, citing Abija v. Larbit, 1 T.T.R. 382 (Tr. Div. 1958', for a discussion of the limitations on power of an iroij.

Appellant correctly cites the law, but the facts are not with him. On the opening day of trial, appellant professed not to know why the iroij had withheld his approval. Upon being recalled the following day, his memory had revived and he testified that the iroij had wanted to give the land to appellee because she had a child by his younger brother. The Trial Court, properly warned that, in view of the circumstances, the changed testimony was most suspect. No other evidence of improper action by the iroij was presented.

[1-3] Determinations made by the iroij are presumed to be reasonable and proper unless it is clearly shown that they are not. Langjo v. Neimoro, 4 T.T.R. 115, 118 (Tr. Div. 1968). Appellant failed to carry the burden of showing that the iroij had acted unreasonably. In fact, given the Trial Court's finding that appellee had rights by reason of matrilineal succession, the iroij could not have properly approved the will, thus cutting off her rights, without justification. Edwin v. Thomas, 5 T.T.R. 326, 329 (Tr. Div. 1971).

[4] Appellant complains of the Court's failure to make a finding as to whether or not this is ninnen land. At no time during the course of proceedings in the Trial Court was such a claim made. The sole "evidence" on the point was a single statement of the plaintiff to that effect. There was nothing on which a finding that this is ninnen land could rest.

[5] Appellant also claims error in the receipt in evidence of prior testimony of the iroij. Whether this was error is immaterial; if it was, the error was harmless, since the Court specifically held that it need not rely on the designation made by the iroij.

[6] The Court found that the matrilineal line, through which Anej's rights as alab were derived, was not extinct, that appellee is a member of that lineage and takes alab rights through the matrilineal line. The evidence fully supports that finding, and appellant's claim to patrilineal succession must necessarily fail.

We have reviewed the entire record and find no error. Judgment of the Trial Court is therefor affirmed.