Home | Databases | WorldLII | Search | Feedback Supreme Court of the Marshall Islands

Elmo v Kabua [1999] MHSC 4; 2 MILR 150 (4 October 1999)

2 MILR 150

IN THE SUPREME COURT
REPUBLIC OF THE MARSHALL ISLANDS

S.Ct. CIVIL NO. 97-05
(High Ct. Civil No. 1996-175)

MAY JANNO ELMO,
Plaintiff-Appellant,

-v-

NEIMATA NAKAMURA KABUA,
Defendant-Appellee.

APPEAL FROM THE HIGH COURT

OCTOBER 4, 1999

FIELDS, C. J.
GOODWIN, A.J. pro tem,¹ and KING, A.J. pro tem²

SUMMARY:

This is an appeal from a High Court judgment that Plaintiff-Appellant was not entitled to a share of land use payments going to the iroij as Plaintiff-Appellant's successor was not the child of a previous iroij. The Supreme Court affirmed.

DIGEST:

1. APPEAL AND ERROR - Review - Discretionary Matters - Findings of Fact: The Findings of Fact by the High Court are not to be set aside by the Supreme Court unless found to be clearly erroneous.

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

3. APPEAL AND ERROR - Same - Same - Same - Same: "A Finding is 'clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed."

4. APPEAL AND ERROR - Same - Questions of Fact: Appellate Courts will not interfere with the findings of the trial court which are supported by credible evidence.

5. APPEAL AND ERROR - Same - Same: An Appellate Court must refrain from re-weighing the evidence and must make every reasonable presumption in favor of the trial court's decision.

6. APPEAL AND ERROR - Same - Same: There is credible evidence to support the findings of the trial court and this court will not re-weigh the evidence, but must make every reasonable presumption in favor of the trial court's decision.

7. LAND RIGHTS - Iroij - Powers and Obligations: An iroij must notify and consult with his successor and/or Bwij, before executing a testamentary statement allocating a certain amount to be paid to another from the iroij's share of land use payment.

8. EVIDENCE - Discretion of Court: Generally evidentiary matters are said to he committed to the discretion of the trial court.

9. APPEAL AND ERROR - Review - Discretionary Matters - Evidentiary Matters: The trial court's decision regarding evidentiary matters will be reviewed only for an abuse of discretion.

10. APPEAL AND ERROR - Review - Harmless Error: Assuming the evidence was improperly admitted, such admission "is not grounds for reversal if it appears there is sufficient evidence to justify the decision, independently of the evidence to which the objection was made." Further any such error must affect "a substantial right of the party" otherwise it will be deemed harmless error.

OPINION OF THE COURT BY FIELDS, C.J.

Plaintiff-Appellant appeals from the High Court decision denying her claim for a portion of the proceeds of land use payments.

Appellant claims three points of error:

(1) Both the Traditional Rights Court and the High Court erred in their Findings and Conclusions that Appellant's father Korab (aka Lokorab) was not the son of Nellu.

(2) The Traditional Rights Court abused its discretion in allowing testimony of witnesses not included in Defendant's witness List pursuant to the pre-trial order and in denying Plaintiff the same opportunity.

(3) The High Court denied Plaintiff the opportunity to submit "newly discovered evidence" to support Plaintiffs motion for relief from the Judgment.

In its findings of fact, the High Court accepted the Traditional Rights Court's findings that Plaintiff was not entitled to share the land use payments received by Defendant because Korab was not the child of Nellu. Further, the iroij (Kabua Kabua), under custom, cannot bind his or her successor (Defendant, Neimata Nakamura Kabua) to pay a certain sum of money to another (Plaintiff, May Janno Elmo).

The case was tried before the Traditional Rights Court on questions certified by the High Court. The matter then came before the High Court for argument on whether to accept or reject the findings and conclusions of the Traditional Rights Court. The Constitution of the Republic of the Marshall Islands provides that "The jurisdiction of the Traditional Rights Court shall be limited to the determination of 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." Article VI, section 4(3). "When a question has been certified to the Traditional Rights Court for its determination ..., its resolution of the question shall be given substantial weight in the certifying court's disposition of the legal controversy before it but shall not be deemed binding unless the certifying court concludes that justice so requires." Article VI, section 4(5).

The question certified to the Traditional Rights Court was: Was Plaintiffs father, Korab, the son of Nellu and thus entitled to share one-half of the proceeds of the land use payment received by Defendant?

The genealogy involved herein is as follows: Neimakwa, a Leroij Lap Lap, had two sons. The oldest was Nellu and the younger was Laelan. Laelan's successor was Kabua Kabua. Neimata Nakamura (Kabua)-Defendant is the acknowledged successor to Kabua Kabua. May Janno Elmo-Plaintiff is the daughter of Korab, and claims that Korab is the son of Nellu, and as a result she is entitled to one-half the land use payments.

Evidence was presented to the Traditional Rights Court on the issue of Korab's parentage. The Traditional Rights Court found that Korab was not the son of Nellu. This finding was based upon the fact that Nellu never acknowledged to his people and his Bwij that Korab was his son. Korab was not born or raised in Nellu's household. Further Korab never held the title of iroij lab lab. Under custom if Korab was the child of Nellu, he would have succeeded Laelan as iroij lab lab upon Laelan's death. Also Korab never owned a separate book of credit at any business establishments, but rather had to rely on Laelan's credit. If Korab was the son of Nellu he would have owned his separate account as do other iroij. Plaintiff has not pointed to any evidence to the contrary that should have been offered on this subject.

[1-3] The Findings of Fact by the High Court are not to be set aside by the Supreme Court unless found to be clearly erroneous. Mwejdriktok v. Langijota and Abija, 1 MILR (Rev.) 172, 174 (Aug 15, 1989), Lokkon v. Nakap, 1 MILR (Rev.) 69, 72 (Feb 5, 1987). A Findings of fact is clearly erroneous when review of the entire record produces a definite and firm conviction that the Court below made a mistake. Zaion, et al., v. Peter and Nenam, 1 MILR (Rev.) 228, 233 (Jan 24, 1991), Lobo v. Jejo, 1 MILR (Rev.) 224, 226 (Jan 2, 1991). The United State Supreme Court has defined clearly erroneous as follows: "A Finding is 'clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." United States v. U.S. Gypsum Co.[1948] USSC 44; , 333 U.S. 364, 395 (1948).

[4,5] Appellate Courts will not interfere with the findings of the trial court which are supported by credible evidence. Ebot v. Jablotok, 1 MILR (Rev.) 8, 9 (Aug 6, 1984). An Appellate Court must refrain from re-weighing the evidence and must make every reasonable presumption in favor of the trial court's decision. Les Northup Boat Repair, et al., v. O/S Holly Elaine, et al., 1 MILR (Rev.) 176, 179 (Oct 2, 1989).

[6] There is credible evidence to support the findings of the trial court and this court will not re-weigh the evidence, but must make every reasonable presumption in favor of the trial court's decision. The Appellant fails to show clear error in the High Court's findings, and this Court cannot discern any. Therefore we find no clear error in the findings of the High Court.

[7] There is no evidence to dispute, and Plaintiff fails to set forth any reasons to contradict, the findings that an iroij (Kabua Kabua) must notify and consult with his successor and/or Bwij, before executing a testamentary statement allocating a certain amount to be paid to another (Plaintiff herein) from the iroij's share of land use payment. There was no evidence to the contrary presented. Kabua Kabua's payment of $8,000.00, which is far less than one-half of the total payments, fails to support Plaintiffs demands for one-half. It merely confirms the iroij's discretion to pay a sum to another person during his lifetime.

[8,9] Appellant complains that the Traditional Rights Court's refusal to permit the admission of "newly discovered evidence," being a tape recording of the 1990 Constitutional Convention dated March 15, 1995 (1995 obviously an error in date for a 1990 Convention) was prejudicial. The Court ruled that the exhibit was not on the Plaintiff's original list of exhibits and further that it was hearsay. The appellant has failed to explain why an exhibit 7 years in existence is newly discovered. Also there is no showing that it would be an exception to the hearsay rule or how it is relevant to these proceedings. Generally evidentiary matters are said to be committed to the discretion of the trial court. The trial court's decision will be reviewed only for an abuse of discretion. United States v. Abel, [1984] USSC 236; 469 U.S. 45 (1984); Campbell v. Gregory, [1989] USCA8 149; 867 F.2d 1146 (8th Cir. 1989). The Court finds no abuse of discretion.

[10] The Appellant cites as error, the Traditional Rights Court allowing Defendant to present a genealogy of the "Rikwalalein clan," that was not submitted in the pre-trial list of exhibits. Defendant offered to supply a copy of the exhibit to Plaintiff following the testimony of the witness and presumably prior to any cross examination. Appellant has not presented any showing of prejudice. Assuming the evidence was improperly admitted, such admission "is not grounds for reversal if it appears there is sufficient evidence to justify the decision, independently of the evidence to which the objection was made." Samuel Bulale, et al. v. Robert Reimers, et al., 1 MILR (Rev.) 259 (May 8, 1992). Further any such error must affect "a substantial right of the party" otherwise it will be deemed harmless error. Federal Rules of Evidence 103(a). Appellant fails to show that the error was other than harmless.

Appellant objects to the admission of Defendant's exhibit C. Apparently this exhibit was only page 7 of a 7 page document, written by a Chaplain Buckingham. The entire 7 pages were before the Court and Appellant failed to move into evidence the first 6 pages. It is the responsibility of the attorney to insure that all documents are offered into evidence before he can complain of error.

Appellant's offer to the High Court of the first 6 pages as "newly discovered evidence" fails since the evidence was marked as an exhibit and discussed by counsel in the Traditional Rights Court and the failure to offer it as evidence at that time bars its later introduction before the High Court as "newly discovered." Apparently Buckinham's evidence as to Korab's parentage came only from Korab himself.

The Judgment is affirmed, and all money held shall be released to Defendant, Neimata Nakamura (Kabua).

Atbi A. Riklon for Plaintiff-Appellant
John M. Silk for Defendant-Appellee

_______________

¹Honorable Alfred T. Goodwin, Senior Judge, United States Court of Appeals for the Ninth Circuit, sitting by designation by the Cabinet.

²Honorable Samuel P King, Senior Judge, United States District Court for the District of Hawaii, sitting by designation by the Cabinet.