|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Reports of the Trust Territory of the Pacific Islands |
NEIMORO LAJUTOK,
Appellant
v
KABUA KABUA,
Appellee
Civil Appeal No. 25
Appellate Division of the High
Court
February 12, 1968
Appeal from action to determine ownership of land. The Appellate Division of the High Court, Per Curiam, held that the transfer of land from one iroij lablab to another may be conditional and that where land in question was transferred from iroij to another conditioned upon an adoption when the adopted child returns to her family the land revests to the donor.
1. Marshalls Land Law - "Iroij Lablab" – Powers
The donor of land with iroij authority over it may impose conditions upon the gift and when the condition for the gift fails it is within the power of the donor, or his successors to recover the land.:'
2. Gifts - Generally
Whether a transfer is a conditional or an irrevocable gift depends upon the interest of the donor and the understanding of the parties as to that intent, and evidence as to the intent and understanding must relate to the conduct of the parties, i.e., the objective manifestations of intent, when the parties themselves are no longer living.
3. Appeal and Error - Scope of Review - Facts
The findings of the trial court based upon the evidence will not be set aside unless there is manifest error.
4. Custom - Judicial Notice
If a local custom is firmly established and widely known the High Court will take judicial notice of it. (T.T.C., Sec. 21)
5. Custom - Burden of Proof
When there is a dispute as to the existence or effect of a local custom, and the court is not satisfied as to either its existence or its applicability such custom becomes a mixed question of law and fact, and the party relying upon it must prove it to the satisfaction of the court.
|
Counsel for Appellant:
|
JETNIL FELIX
|
|
Counsel for Appellee:
|
PRO SE
|
Before SHOECRAFT, Chief Justice, FURBER Temporary Judge
PER CURIAM
This is an appeal from the second judgment in Civil Action No. 140, Trial Division of the High Court, Marshall Islands District.
Condemnation proceedings were brought by the Trust Territory Government against land in Ennugarrett Island (also known as Enekoran Island), Kwajalein Atoll, Marshall Islands. Trial was held in two parts, with judgment orders entered for each.
The first judgment fixed the value of the land condemned and left open the question of ownership and division of the money. The second judgment was entered upon the supplemental trial of the ownership question between appellant and appellee, both of whom were defendants in the condemnation proceedings, each claiming to be the iroij lablab of the land in question.
The first judgment was entered June 24, 1963, and the judgment now on appeal, February 22, 1965.
The "Request Granted of Re-Hearing of the Civil Action No. 140", dated December 22, 1967, apparently intended by the appellant to be filed in the original Civil Action No. 140, and referred to the Appellate Division by the Chief Justice, was considered not timely and denied by the Appellate Division as a Motion for Re-Hearing, but was considered by the Court as a supplementary brief in this appeal in order that appellant would have full opportunity to present any matters considered pertinent to her appeal.
The evidentiary facts were generally not in dispute and the decision in the Trial Division turned largely, upon proof, or lack of proof, as to Marshallese custom relating to a gift of land by one iroij to another.
The land in question was found by the trial court to have been given by Iroij Laelan to Iroij Litokwa upon the adoption of Laelan's daughter, Jukkwe, by Litokwa. Laelan was the predecessor iroij to appellee, and Litokwa, the predecessor iroij to appellant.
When Litokwa died, the adopted daughter, Jukkwe, returned to live with her natural father. Appellee's contention, sustained by the Trial Division, was that the adoption status terminated when Jukkwe returned to her father and that the gift of lands in connection with the adoption also failed and that the land reverted to Iroij Laelan.
Appellant relies, upon appeal, on the assumption of iroij lablab power over the lands by the donee and argues from this that under Marshallese custom, lands given in support of an adoption do not carry iroij lablab rights. Such iroij rights, appellant contends, may only be passed under the custom by three methods:-
1. Bok-man-mare, meaning victory in warfare and assumption of power over land taken from the defeated enemy.
2. Jikin-aje, or royal gift of land and kingship authority (iroij lablab) over it.
3. Katleb, gift by one iroij to another because of friendship or relationship.
[1] The third method of transfer of iroij authority over land is applicable to the lands in question according to the appellant. The weakness of this position is that these methods of transferring land and authority over them are not the only ways transfers may occur under Marshallese custom. The record in this case clearly shows, and the trial court so held, that the donor of land with iroij authority over it may impose conditions upon the gift. When the condition for the gift fails, it is within the power of the donor, or his successors, to recover the land.
[2] Whether the transfer is conditional or an irrevocable gift depends upon the intent of the donor and the understanding of the parties as to that intent. Evidence as to intent and understanding must relate to the conduct of the parties, i.e., the objective manifestations of intent, when the parties themselves are no longer living. The trial court held the great weight of the evidence showed that appellee's predecessor gave the land and transferred iroij powers to appellant's predecessor conditioned upon the adoption. When the adoption ended, the gift and the accompanying powers failed because the donor so intended.
[3] The findings of the trial court based upon the evidence will not be set aside unless there is manifest error. The function of the Appellate Division in its review of the record has been stated in this court in prior cases. Most recently, in the case of Hasumi Osawa and Kintoki Joseph v. Ernist Ludwig, 3 TTR 594, we find the following:-
"It is believed the function of the Appellate Division in considering appeals from the Trial Division should be re-emphasized, and the following language is quoted from Kenyul v. Tamangin, 2 TTR 648:-
PacLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.paclii.org/other/TTLawRp/1968/4.html
