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Zaion et al v Peter and Nenam [1991] MHSC 6; 1 MILR (Rev) 228 (24 January 1991)

1 MILR (Rev.) 228

IN THE SUPREME COURT
REPUBLIC OF THE MARSHALL ISLANDS

S.Ct. CIVIL NO. 89-06
(High Ct. Civil No. 1983-041)

KOJJAN ZAION, JEKDRON MACK, BETONG KANEL, and LOKORU ISHIGURO,
Plaintiffs-Appellees,

JILAS ZAION,
Added Plaintiff-Appellee,

-v-

NOMAI S. PETER,
Defendant-Appellant,

and

TEBRO NERI NENAM,
Intervenor-Appellee.

APPEAL FROM THE HIGH COURT

JANUARY 24, 1991

BIRD, TEMPORARY C.J.¹
RUTLEDGE, A.J., and KOBAYASHI, A.J.² (sitting by designation)

SUMMARY:

This suit involved a dispute over entitlement to certain traditional Marshallese land rights in four wetos located on Uliga Island, Majuro Atoll. At issue were the senior dri jerbal rights in the four wetos, as well as the alap rights in one of the four. The matter was tried at a joint trial before the High Court and the Traditional Rights Court. The Traditional Rights Court rendered its opinion first and concluded that the individual plaintiffs and the intervenor were entitled to the various traditional land rights in dispute. The High Court subsequently rendered its judgment wherein it agreed that the individual plaintiffs and the intervenor were the proper holders of the disputed traditional land rights. The Supreme Court affirmed.

DIGEST:

1. CUSTOM – Factual Inquiry: Every inquiry into custom involves two factual determinations: first, is there a custom with respect to the subject matter of the inquiry; and, if so, second, what is it?

2. APPEAL AND ERROR – Review – Discretionary Matters – Findings of Fact: Findings of fact are reviewed to determine if they are clearly erroneous.

3. APPEAL AND ERROR – Review – Discretionary Matters – Findings of Fact – Clearly Erroneous: A finding of fact is clearly erroneous when review of the entire record produces a definite and firm conviction that the court below made a mistake.

4. RES JUDICATA – Effect: The doctrine of res judicata bars a second action between the same parties on the same subject matter directly involved in the prior action.

5. COLLATERAL ESTOPPEL – Distinguished from Res Judicata: The doctrine of collateral estoppel is different from the doctrine of res judicata in that, instead of preventing a second assertion of the same claim or cause of action, the doctrine of collateral estoppel prevents a second litigation of issues between the same parties or their privies even in connection with a different claim or cause of action.

6. COLLATERAL ESTOPPEL – Timeliness: The affirmative defense of collateral estoppel may not be raised for the first time on appeal.

OPINION OF THE COURT BY BIRD, TEMPORARY C.J.

This is a dispute regarding entitlement to certain traditional Marshallese land rights in four wetos located in the primary commercial center of Uliga Island, Majuro Atoll. At issue are the senior dri jerbal rights in Barkan, Lotodrik, Lejolimen and Toeak wetos, as well as the alap rights in Toeak weto.

Plaintiffs and intervenor (Appellees) each claim entitlement to the senior dri jerbal rights in one or more of the four wetos; defendant (Appellant) claims senior dri jerbal status for all four. Intervenor also claims alap rights in Toeak weto. For literary ease, the parties will be referred to herein by their trial court designations.

It is apparently undisputed that the alap and dri jerbal interests were once held by a common ancestress of all the parties. At trial, plaintiffs and intervenor maintained, and the Traditional Rights and the High Courts both held, that the alap and dri jerbal rights in these four wetos were divided among the daughters of that common ancestress. Plaintiffs, and with one possible exception, the intervenor, contended, and the Traditional Rights and High Courts both held, that there were subsequent transfers or divisions. Defendant disputes whether the divisions or transfers took place, and contends that even if they did occur, they were contrary to Marshallese custom and traditional practice.

This case was heard jointly by the High Court and a panel of the Traditional Rights Court at a trial that lasted over seven weeks. After taking evidence, and hearing the presentations and argument of counsel, the appropriate questions were certified and the matter was referred to the Traditional Rights Court for its deliberations. Subsequently, the Traditional Rights Court rendered its "Opinion in Answer" to those questions. After considering that opinion, the trial court then let issue its own lengthy judgment. In that judgment, the trial court expressed its "respectful agreement with the entirety of that [O]pinion [in Answer]." Judgment, page 40. In summary, the individual plaintiffs and the intervenor were adjudged to be entitled to various traditional land rights in dispute.

Before addressing the specifics of this appeal, a few observations appear to be in order. First, we note that, at the conclusion of the trial, had the parties requested findings of fact and conclusions of law (see Rule 41, Marshall Islands Rules of Civil Procedure), the tasks of all concerned, including this Court, would have been greatly simplified.³

Further, this Court was hampered in its consideration of this appeal by the manner in which it was presented. From an opening brief which contains sweeping, but generally unsupported, statements or references regarding testimony and other evidence, to a reply brief that ineffectually attempts to correct the deficiencies in the opening brief, to Appellant's repeated attempts to inappropriately shift the burden to the opposing parties, and to intervenor's counsel who consistently ignored questions put to him by this Court at oral argument, this appeal has lacked the focus, support, candor and brevity that are essential to the appellate process in matters of this complexity. This case could never properly serve as an example of how the appellate process should be employed.

In any event, by her opening brief, defendant alleges seven assignments of error. For the most part, her "questions on appeal" characterize issues of Marshallese custom and traditional practice as issues of law. Her obvious purpose in such an approach is to seek de novo review of questions which were presented to, and decided by, the Traditional Rights and High Courts as questions of fact. This Court will not allow defendant, through the use of such a stratagem, to relitigate those factual issues on appeal.

[1] It will be noted that this Court has recently opined:

"Every inquiry into custom involves two factual determinations. The first is: is there a custom with respect to the subject matter of the inquiry? If so, the second is: what is it? Only when the ascertained custom is incorporated in a statute or has formed the basis of a final court decision does it become law in the modern sense." Lobo v. Jejo, 1 MILR (Rev.) 224,226 (Jan 2, 1991).

It is axiomatic that a party relying on a rule of custom has the burden of proving its existence and substance at trial (see e.g., Bulale v. Loeak, 4 TTR 5 (1968)). When a party fails to meet its evidentiary burden at trial, it will not be permitted to remedy its failure by recasting a matter of custom as an issue of law, and then seek to re-litigate it as such on appeal. To permit otherwise would be to unfairly reward a party who was negligent at trial, and to penalize the party who was diligent. To that end, we subscribe to the caution that "[j]udicial restraint is as essential in land matters as insistence upon adhering to laws of land custom." Bina v. Laloun, 5 TTR 366, 372 (1971).

It is also noteworthy that the organic document that embodies the fundamental law of this Republic makes provision for a Traditional Rights Court which shall have the limited jurisdiction to determine questions:

.... relating to titles or to land rights or to other legal interests depending wholly or partly on customary law and traditional practice in the Marshall Islands.

Constitution, Article VI, § 4(3).

The evident purpose for creating such a tribunal was to provide a forum where the judges are conditioned in Marshallese culture, and they thereby bring specialized knowledge of custom and traditional practice to the dispute resolution process. In recognition of that special role, this Court will afford proper deference to decisions of that court in matters of custom and tradition.⁴

As to the seven alleged assignments of error, the first and second question whether the trial court erred in concluding that "valid" transfers or divisions of certain land rights were made (Appellant's Opening Brief (hereafter "O.B.") at page 1). Obviously, by framing the questions such that the inquiry is whether the transfers were "valid," defendant hopes to transform issues considered at trial as questions of fact into issues of law on appeal.

It will be noted that these questions were presented to the courts at the joint hearing as issues of fact. For example, in his closing argument, then-counsel for defendant argued that the question of division was "an issue of fact that will have to be determined by the court. ..." Trial Transcript (hereafter "T.T."), Vol. X, page 1822. Thus, the issues were perceived by defendant, and we are convinced were considered, and determined, by the High and Traditional Rights Courts, as questions of fact. (See, e.g., [Traditional Rights Court's] Opinion in Answer, pages 3, 5 and [High Court] Judgment pages 5, 6, 8, 9 etc.).

[2,3] Hence, the proper standard of review to apply is whether the High Court's factual findings are "clearly erroneous" (27 MIRC Ch. 2, § 66(2)). "A finding of fact is clearly erroneous when the entire record produces a definite and firm conviction that the court below made a mistake. (citations omitted)" Lobo v. Jejo, supra, at p. 226.

A review of the entire record regarding those findings does not produce "a definite and firm conviction that the court below made a mistake." We find no "error or defect" of such a magnitude that the trial court's judgment would be "inconsistent with substantial justice." 29 MIRC Ch. 1, § 30. Accordingly, we decline to set aside the judgment on the basis of either of these alleged errors.

Regarding the third purported assignment of error (see O.B., page 1), by such alleged error defendant creates a "straw man" and then proceeds to knock it down. The alleged "non-error" relates to the res judicata effect of land title officer determinations. No cross-appeal was taken on this issue by plaintiffs or intervenor, consequently we need not consider it further. (Cf. Marshall Islands Dev. Corp., et al. v. MALGOV, et al. (1990) S.Ct. Civil No. 89-07, slip opinion at page 3).⁵ As to the fourth claimed error, defendant again attempts to create a "straw man" and then knock it down. For the reasons stated immediately above, we need not consider the fourth claimed error any further.

With regard to the fifth and seventh alleged errors, again these supposed errors were presented by the defendant at trial, and considered by the two courts, as questions of fact. For example, at closing argument, then counsel for defendant asserted that as to questions of law "[t]hose are for Your Honor [i.e., the presiding High Court judge], but (indiscernible) under the custom who is correct senior dri jerbal for these wetos. Absolutely your Honor, the Traditional Rights Court has to consider it." T.T., Vol. X, page 1843.

Again, since the questions were presented and considered as issues of fact, we will apply the appropriate test on appeal (i.e., the "clearly erroneous" test). After considering the record in its entirety, we do not reach a definite and firm conviction that the court below made a mistake with regard to either matter. Therefore, we are not inclined to set the judgment aside on the basis of either of these claimed errors.

[4] In her remaining alleged assignment of error (designated as the sixth in the O.B.) defendant maintains that "the trial court erred as a matter of law in failing to give res judicata effect to the Trust Territory High Court Judgment in Civil No. 10-77." O.B., page 30. It will be noted that Trust Territory High Court Civil [Action] No. 10-77 was an action to determine entitlement to the Micronesian War Claims Commission awards relating to war damage to Lejolimen weto. Thus, the subject matter of that action differed in kind from that of the case at bar.

"It is sometimes declared that the doctrine of res judicata bars a second action between the same parties on the same subject matter directly involved in the prior action. Indeed, in order for two actions to be regarded as based on the same cause of action so that a judgment in one is a bar to the maintenance of the other action, the two actions must relate to the same subject matter; where the subject matter is essentially different, there is no identity of causes of action." (Emphasis added). 46 Am Jur 2d, Judgments § 407.

Accordingly, even if it is assumed that all of the other elements thereof were met (and we do not suggest that they were), the affirmative defense of res judicata would not be available to defendant in the instant case.

[5] In any event, defendant seeks to utilize the judgment in Civil Action No. 10-77 to somehow prevent plaintiff Kojjan Zaion (or his son, plaintiff Jilas) from asserting senior dri jerbal rights in Lejolimen weto. The defense that defendant apparently seeks to interpose, however, is not res judicata, but a derivative thereof, collateral estoppel. It will be noted that:

"The doctrine of collateral estoppel is different from the doctrine of res judicata in that, instead of preventing a second assertion of the same claim or cause of action, the doctrine of collateral estoppel prevents a second litigation of issues between the same parties or their privies even in connection with a different claim or cause of action." (Emphasis supplied). 46 Am Jur 2d, Judgments, Cumulative Supplement § 415, note 15.

It seems apparent that in her argument on appeal defendant has purposely tried to blur the distinction between the two defenses because she is aware that the defense of collateral estoppel does not appear to ever have been raised. Certainly it was not raised as an affirmative defense in her "First Amended Answer and Counterclaim" as required by the Marshall Islands Rules of Civil Procedure (see Rules 8(c) and 12(b)); nor are we aware of any other pre-trial indication that the defense would be asserted. If the defense of collateral estoppel was raised at trial, the manifestation thereof has not been brought to our attention.

The only guidance that defendant has provided in support of her contention that indeed the defense of res judicata was raised, is her assertion (Appellant's Reply Brief, at page 10) that "the transcript clearly shows, at Vol. X, pages 1834, 1835, [defendant's] ... then-counsel did specifically ask the trial court to treat the decision as res judicata."

We note that if the disjointed colloquy between the trial court and defendant's then counsel can reasonably be said to show anything, it is that counsel wanted the court to do something with the judgment. He just wasn't quite sure what. Moreover, that colloquy is devoid of anything that can accurately be described as an attempt to invoke the doctrine of collateral estoppel.

[6] In any case, nothing provided to this Court by defendant can conceivably be said to manifest her intent to invoke the doctrine of issue preclusion (collateral estoppel) at trial. Accordingly, we decline to permit defendant to raise the issue for the first time on appeal. Moreover, even if we were to otherwise permit the invocation of that defense on appeal, defendant has not demonstrated that she has supplied all the elements thereof.

In light of the above, the judgment of the High Court is affirmed.

Alan B. Burdick for Defendant-Appellant.
Davor Z. Pevec for Plaintiffs-Appellees.
David M. Strauss for Intervenor-Appellee.

___________

¹Ashford, C.J. disqualified.

²The Honorable Bert T. Kobayashi, Associate Justice Emeritus of the Supreme Court of the State of Hawaii, sitting by appointment of the Cabinet.

³Also worthy of note is the fact that the notice of appeal filed by defendant in this matter is of little assistance in discerning just what she perceives as error by the court below. Her conclusory statements in the notice did little to enlighten this Court, or the Appellees, as to the grounds upon which she seeks review. Although the notice was purportedly filed by the defendant "in pro per," it obviously was prepared for her by someone with training or experience in the law. The author of that notice no doubt remains anonymous because there can be no pride of authorship in a notice of appeal which is so obviously deficient.

⁴Although they did have "assessors" to assist them in this regard, the Trust Territory Courts that promulgated much of the case law relating to matters of custom and practice did not have the benefit of the deliberations of such a specialized tribunal.

Also, at oral argument, counsel for defendant suggested that the work of a prominent cultural anthropologist on the subject of land tenure in the Marshall Islands should be raised to a status akin to that of a codification of custom. This Court will decline to do so; the primary responsibility for the codification of custom is vested in the Nitijela. (See Constitution, Article X, § 2(2)). This Court will not diminish the authority given to the Nitijela by granting that status to the works of an anthropologist, no matter how informed or learned they may be. Accordingly, except in the rare case where judicial notice thereof may appropriately be taken on appeal, anthropological works, like other expert opinion, must be properly introduced at trial.

⁵See Langijota v. Alex, 1 MILR (Rev.) 216, 219-20 (Dec 3, 1990), regarding the res judicata effect of administrative determinations by land title officers.