Jitiam v Konou [1986] TTLawRp 3; 8 TTR 541 (13 May 1986)

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Appeal from final judgment of trial court on complaint and petition for injunctive relief seeking to confirm alab rights to wetoes. The Appellate Division of the High Court, Munson, Chief Justice, affirmed the trial court judgment, which provided that alab and dri jerbal rights belong to appellee on both wetoes and provided that appellee receive two-thirds of all rents accrued.

Counsel for Appellants:	JOSEPH C. LEHMAN, ESQ., Office of
		Public Defender, Republic of the Marshall Islands, Majuro, Marshall Islands
Counsel for Appellee:	GREGORY B. DURR, ESQ., Directing
		Attorney, Micronesian Legal Services Corporation, Majuro, Marshall Islands

Before MUNSON, Chief Justice, LAURETA *, Associate Justice, BENSON**, Associate Justice

* United States District Court Judge, District of the Northern Mariana Islands, designated as Temporary Associate Justice by the United States Secretary of the Interior.

** Associate Justice, Federated States of Micronesia Supreme Court, designated as Temporary Associate Justice by the United States Secretary of the Interior.

In 1956, appellant Iroij^[1] Mo Jitiam (Mo) arranged with appellee Langilon Konou for the appellee to clean and work Laubaj and Laukijek wetoes^[2] located on Rairok Island in Majuro Atoll, Marshall Islands. Both wetoes are on "Jebdrik's side."^[3] In exchange for Langilon's services, Mo agreed that the wetoes would be given to him as katleb^[4]·lands. The katleb arrangement was approved by Mo's mother, Leroij^[5] Lanjen, who at that time held the iroij erik^[6] title to the wetoes, and by the droulul^[7] or Bed eo an Jebdrik, which acts as the iroij lablab^[8] on Jebdrik's side. Konou began cleaning the unfarmed wetoes and planted numerous trees on them in accordance with the katleb arrangement.

Between 1958 and 1959, the District Land Title Officer conducted proceedings pursuant to Land Management Regulation No. 1, to determine the rightful ownership of Laubaj and Laukijek wetoes. On August 1, 1959 and August 14, 1959, the District Land Title Officer issued Land Determinations of Ownership No. 59-17 and No. 59-53 which determined that the iroij erik of both wetoes was Leroij Lanjen and that the alab^[9] and dri jerbal^[10] rights in both wetoes were held by appellee. The trial court determined that sufficient notice of the hearing had been given. According to the trial court's record, Erwin Jitiam was authorized to represent his grandmother, Leroij Lanjen, and on her behalf he attended several of the meetings conducted by the District Land Title Officer prior to the issuance of the Determination of Ownership. Erwin also testified at the July 22, 1959 meeting that Leroij Lanjen was the iroij erik, alab, and dri jerbal of the two wetoes. No appeal of the Land Title Officer's determination was ever filed by Leroij Lanjen.

Upon Leroij Lanjen's death in 1970, appellant Mo took over Lanjen's powers as iroij erik on both wetoes. Mo and Konou's relationship was harmonious until a dispute arose regarding the sharing of the proceeds of a Micronesian Claims Commission award for war damages to the wetoes. Prior to the war claim dispute, Mo and Konou jointly executed leases and right-of-way agreements. The parties respected each other's interest in the wetoes. Appellee paid tribute to Mo according to Marshallese custom. Mo also recognized appellee's alab and dri jerbal rights in a kallimur,^[11] and sought appellee's approval for action taken involving the land.

After the war claim dispute arose, appellant Mo refused to accept the traditional tribute from appellee and permitted other people, including appellant Larring, to move onto the land without consulting with appellee. Mo admits to allowing appellant Belja Aneo to build on Laubaj weto without appellee's permission. Mo also instructed that all the rents be paid to him. The war claim dispute was resolved in Konou v. Jitiam, 7 T.T.R. 630 (App. Div. 1978), when this court held that Langilon Konou had no claim to award because he had no rights in the weto prior to 1951, the last year covered by the Micronesian Claims Commission award.

Appellee filed a complaint and petition for injunctive relief on April 7, 1980 in Civil Action No. 17-80, seeking to confirm alab rights to Laubaj and Laukijek wetoes. The complaint also sought to enjoin appellants from any further acts in violation of appellee's right as alab, and for appellants to account to the appellee for withheld rents. A preliminary injunction was granted on June 10, 1980, and resulted in an entry of judgment for appellee on September 14, 1981. The judgment provided in part that alab and dri jerbal rights belong to appellee on both wetoes, and the land occupants were required to acknowledge appellee as alab if they wanted to remain on the land. The issue of division of rents was reserved by the trial judge in order to hear additional evidence. After hearing additional evidence, a final judgment was issued on April 11, 1984. That judgment provided for the appellee to receive two-thirds of all rents accrued and appellants were to receive the other one-third.

The first issue addressed is the distribution of rental income. In the trial court's judgment dated September 14, 1981, the court found that no agreement existed between the parties with respect to the amount of rental income each was entitled to receive. Two farm leases executed in 1974 and 1975 state that the parties' shares "shall be distributed in accordance with Marshallese custom." The trial court stated that these leases do not provide assistance because there is no Marshallese custom as to the division of land rental income.

he specifically stated that he would defer judgment as to distribution and he would "take such further evidence as either party may wish to offer as to a proper division." In the trial court's judgment of April 11, 1984, the court determined that the proper division of the rental proceeds should be by one-third shares for the iroij, alab, and dri jerbal interests, with the iroij share containing both iroij lablab and iroij erik's share.

[1] We hold that the evidence presented supported the trial court's decision. Appellee's witness, Nuna Kejlet, testified that he was an alab on a weto close to the ones involved in this case. Kejlet stated that the division terms of a lease on his land were one· third for the iroij lablab and iroij erik, one-third for the alab, and one-third for the dri jerbal. Kejlet's lease is evidence that the one-third distribution formula has been used by others in similarly situated wetoes. Moreover, the distribution allowed by the trial court appears to be an equitable division, considering the two interests, alab and dri jerbal, provide the lion's share of the work on the wetoes, and should be rewarded with the lion's share of the rental income. There was sufficient evidence for the trial court's determination that the rental proceeds were to be distributed in one-third shares for the iroij, alab, and dri jerbal, with the iroij share containing both iroij lablab and iroij erik's shares.

[2] We next consider whether the trial court erred in denying appellants' motion to transfer this case to the Marshall Islands courts. The motion was made after the trial, and at the same time the appellants filed a motion for a new trial. The motion for a new trial was subsequently heard by the trial court and denied. The appellants then appealed to this court.

The trial judge, in his discretion, determined that the case was still in active trial. Secretarial Order 3039, § 5 (a) provides that such a determination is a discretionary decision reserved for the trial judge, and it will not be interfered with by this court.

[3] Turning to the final issue, appellants urge that the trial court erred in determining that the alab and dri jerbal rights in both wetoes belong to the appellee. The trial court relied in part on the determination of rights made in 1959 by the Land Title Officer. Section 14 of Land Management Regulation No. 1^[12] expressly provides for a one-year period in which to appeal a land title officer's determination. The appellants' predecessor in title was given proper notice that there were proceedings instituted by the Land Title Officer concerning the land and that the determination had been issued; they had an opportunity to appeal and failed to do so. The failure to timely file an appeal within that period will bar a litigant from contesting the determination. Santos v. TTPI, 7 T.T.R. 615 (App. Div. 1978).

The trial court relied also on the transactions affecting the land subsequent to 1959. The court found these entirely consistent with the determination made by the Land Title Officer in that the appellee's rights of alab and dri jerbal were recognized. These transactions are referred to on page 4 of the Land Title Officer's Determination.

We find that the findings made by the trial court are abundantly supported, and we see no reason to disturb the judgment.

[4] Appellants also claim that the trial court erred in recognizing the validity of a 1956 katleb arrangement between appellant Mo and the appellee. Appellants claim that such a katleb must be approved by the Droulul. The District Land Title Officer must have found that the katleb was valid when he determined that the appellee had alab and dri jerbal rights to the two wetoes. Since there was no appeal of the 1959 Land Title Officer's determination, this issue is also time-barred under Land Management Regulation No. l^[13]

No purpose would be served by considering the other issues raised by the notice of appeal.

^[2] A weto (sometimes spelled wato) is typically a strip of land stretching across the island from the lagoon side to the ocean side, and varying in size from about one to five acres. The weto is the typical Marshallese land unit.

^[3] On Jebdrik's side in Majuro Atoll, there has been no iroij lablab for years, the matrilineal line having become extinct instead, there are a number of iroij erik, with the iroij lablab powers controlled by the droulul.

^[4] Katleb means the land allocated by an iroij lablab to an individual commoner. It also means any persons who have been given rights by an iroij to a land on which they did not have rights before.

^[8] The iroij lablab, or iroij elap, as he is known in the relik (western) chain of islands, means the paramount chief; his approval or acquiescence of any transfer of land interests is necessary before it can be valid.

^[11] Kallimur is a written paper by which one disposes of his lands, analogous to a will.

^[12] Section 14 of 1951 Land Management Regulation No. 1 provides: "Any person who has or claims an interest in the lands concerned may appeal from a District Land Title Officer's determination of ownership to the Trial Division of the High Court at any time within one year from the date the determination is filed in the Office of the Clerk of Courts . . . ." (Emphasis added.)

^[13] It is clear from examining the record that there was evidence presented during trial, which was not rebutted by the appellants, that the katleb did have approval from the Droulul. See Reporter's Transcript of Trial on July 27-28, 1981, p. 8, lines 11-17.

Reports of the Trust Territory of the Pacific Islands

Jitiam v Konou [1986] TTLawRp 3; 8 TTR 541 (13 May 1986)