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Ungeni v Trust Territory [1983] TTLawRp 13; 8 TTR 366 (22 August 1983)

8 TTR 366

NIPWECH UNGENI, individually and on behalf of his lineage,. Plaintiff-Appellee

v.

TRUST TERRITORY OF THE PACIFIC ISLANDS, Defendant-Appellant

Civil Appeal No. 284

Appellate Division of the High Court

Truk District

August 22, 1983

Appeal from trial court decision in land ownership dispute holding that title to certain tidelands were vested in individual, and not in Trust Territory Government. The Appellate Division of the High Court, Laureta, Associate Justice, held that Trust Territory Government failed to sustain its burden of showing the existence and substance of alleged Japanese Proclamation relied upon to prove lands belonged to Government, and that doctrine of "prior wrongs" was inapplicable to alleged Japanese Proclamation, and therefore trial court judgment was affirmed.

1. Appeal and Error-Scope of Review-Newly Discovered Evidence

The general rule is that a party is barred from introducing new evidence at the appellate level.

2. Appeal and Error-Scope of Review-Newly Discovered Evidence

Trust Territory Government would not be allowed to prove the existence of a relevant Japanese Proclamation by introducing additional evidence at the appellate level, since such evidence properly should have been introduced at trial, particularly in light of the fact that evidence could have been reasonably discovered by the Government had it exercised due diligence at the time of the trial.

3. Former Administrations-Official Acts

Failure by Trust Territory Government to prove the existence of a Japanese Proclamation, which allegedly showed that disputed land was in fact public land, was fatal to any statutory claim the Government may have had over the disputed land. (67 TTC §§ 1, 2)

4. Courts-Judicial Notice-Foreign Law

An appellate court cannot take judicial notice of a foreign law that remains unsettled or is capable of varying interpretations.

5. Courts-Judicial Notice-Foreign Law

Appellate Division of the High Court would not take judicial notice of an alleged Japanese Proclamation where there was insufficient information in the record with which to finally resolve the critical issue of the foreign law in question.

6. Former Administrations-Redress of Prior Wrongs-Exception to Applicable Doctrine