TOSHIWO SHIMA, et al., Plaintiffs-Appellees

v.

NAMO HERMIOS, et al, Defendants-Appellants

Civil Appeal No. 424

Appellate Division of the High Court

Marshall Islands District

July 8, 1988

Dispute over alab and dri jerbal rights to Jikibdru lar weto on Wotje Island in the Republic of the Marshall Islands. The Appellate Division of the High Court, Munson, Chief Justice, held that trial division erroneously awarded alab rights to appellee since a previous court order had declared appellant the alab, and the trial division was therefore without authority under the doctrine of res judicata to redetermine alab rights, and held that trial division properly awarded dri jerbal rights to appellee, based on finding that 1952 kallimur superceded a 1929 kallimur.
1. Appeal and Error—Notice and Filing of Appeal—Late Filing
	Failure to timely file an appeal will bar a litigant from contesting the determination.
2. Judgments—"Res Judicata"
	Trial division was without authority under the doctrine of res judicata to redetermine alab rights to a weto that had been the subject of a final judgment.
3. Marshalls Land Law—"Leroij"—Powers
	As a general matter, a leroij (or the male counterpart, iroij) does have the power to determine the rights of subordinate landowners.
4. Marshalls Land Law--"Leroij"—Weight of Decisions
	A decision of a leroij to change the rights of subordinate landowners is entitled to great weight and will be upheld unless unreasonable and arbitrary.
5. Appeal and Error—Findings and Conclusions—Tests
	Trial court's findings of fact will not be overturned on appeal unless unreasonable and arbitrary.
6. Appeal and Error—Evidence
	Evidentiary errors are not grounds to reverse a judgment of the trial court unless substantial justice will otherwise be undermined.
7. Appeal and Error—Evidence—Weight
	It is not the function of an appellate court to second-guess the trial judge's ability to assess a witness' credibility or veracity, or to determine what weight should be assigned to evidence received by the trial court.
8. Evidence—Hearsay—Particular Cases
	It was not erroneous for the trial judge in rendering judgment in land dispute to give little or no weight to hearsay evidence and to refuse to admit an unauthenticated tape recording offered without proper foundation.
9. Appeal and Error—Evidence—Sufficiency
	Evidence was sufficient to support trial division's finding that 1952 kallimur superseded a 1929 kallimur and to support award of dri jerbal rights.
Counsel for Appellant:	DAVID M. STRAUSS, ESQ.	
Before MUNSON, Chief Justice, KOZINSKI, Associate Justice*, and TEVRIZIAN, Associate Justice**
MUNSON, Chief Justice
This appeal involves a dispute over who holds the alab and dri jerbal rights to Jikibdru lar weto on Wotje Island in the Republic of the Marshall Islands.
[1] Appellant Capitol Labwirrik in his notice of appeal cites three errors from the May 13, 1986 decision of the trial division. The first two errors cited involve the same issue, that is, that the trial division erroneously awarded the alab rights to the appellee. The first ground cited as an error is that the trial division was without jurisdiction to rule on the question as to the alab right for the subject weto. A review of the trial division's file in Civil Action 7-77, Shima v. Hermios, reveals that Judge Gianotti's order of December 6, 1983 declared appellant Capitol was the alab of Jikibdru lar. The file further reveals that pursuant to the unchallenged court order, Capitol was paid the alab's share of the war claims money that was the subject of that action, on February 8, 1984. Judge Gianotti's order reserved the question of the dri jerbal rights of the weto. Appellee had an opportunity to appeal the December 6, 1983 order and failed to do so. The failure to timely file an appeal will bar a litigant from contesting the determination. Santos v. TTPI, 7 T.T.R. 615 (App. Div. 1978). 
[2] We are mindful that this case involved more than 100 people disputing the alab and dri jerbal rights to over 60 wetos; however, we cannot determine why in 1985 the trial division was not aware of the December 6, 1983 order declaring that Capitol was the alab of the weto. The file is replete with pleadings subsequent to December 6, 1983 that show that only the dri jerbal rights to Jikibdru lar needed to be determined. We need not consider appellant's second request presented as an error as it is clear the trial division was without authority under the doctrine of res judicata to redetermine the alab rights that had been the subject of a final judgment. Gibbons v. Owartg Lineage, 5 T.T.R. 103 (App. Div. 1970).
Turning to the final issue, appellant urges that the evidence was insufficient to support the trial division's finding that the 1952 kallimur of Lotto superseded the 1929 kallimur of Labwirrik, which resulted in awarding the dri jerbal rights to appellee Toshiwo's bwij.
In 1929, while appellant Capitol's bwij was in control of Jikibdru lar weto, Labwirrik (Capitol's father) wrote a kallimur to government officials concerning the dri jerbal rights to the land in question. In that document, Labwirrik expressed his wish that the dri jerbal rights be transferred to his children, including Capitol, upon his death.
On December 1, 1952, Lotto Jenni, of appellee Toshiwo's bwij, signed his typewritten kallimur concerning the dri jerbal rights on certain lands. The kallimur expressed Lotto's wish that his nephews and nieces would assume the dri jerbal rights upon his death. The kallimur listed four wetos and did not mention Jikibdru lar. On October 17, 1981, Leroij Limojwa signed her name next to a handwritten entry adding Jikibdru lar as the fifth weto in the kallimur. The trial division determined that that decision by the leroij was consistent with the powers of a chief to cut off subordinate rights in land and thus superseded the 1929 kallimur of Labwirrik.
Appellant argues that the trial division should have given greater weight to the testimony of Litokwa Tomeing, described by the appellant as a disinterested witness. Litokwa testified that he attended a meeting wherein Leroij Limojwa stated that she did not understand Lotto's kallimur but that Toshiwo's people had given it to her to sign. Litokwa also offered to play a tape recording of this meeting where Leroij Limojwa explained her misunderstanding of Lotto's kallimur. Finally, appellant argues that the trial division erred by not giving greater weight to a letter, marked as Exhibit 4, written by Leroij Limojwa wherein she recognized the kallimur from Alab Labwirrik.
[3-6] As a general matter, a leroij (or the male counter-part, iroij) does have the power to determine the rights of subordinate landowners. A decision of a leroij to change such interests is entitled to great weight and will be upheld unless unreasonable and arbitrary. Limine v. Lainej, 1 T.T.R. 107 (Marshalls 1954); Lebeiu v. Matlock, 6 T.T.R. 145 (Marshalls 1973). We will not overturn the trial court's findings of fact unless they are clearly erroneous. Techong v. Peleliu Club, 7 T.T.R. 364 (App. Div. 1976). Evidentiary errors are not grounds to reverse a judgment of the trial court unless substantial justice will otherwise be undermined. Bina v. Lajoun, 5 T.T.R. 366, 369-70 (App. Div. 1971).
[7-9] It is not the function of the appellate court to second-guess the trial judge's ability to assess a witness' credibility or veracity, nor is it the function of the appellate court to determine what weight should be assigned to evidence received by the trial court. The trial judge in this case was sitting without a jury, the trial assistants representing the parties were not lawyers, and we therefore find that it was not erroneous for the trial judge in rendering his judgment to give little or no weight to the hearsay evidence of Tomeing and to refuse to receive the unauthenticated tape recording offered without proper foundation. We also note that the letter marked as Exhibit 4 was dated June 11, 1981, four months before Leroij R. Limojwa signed Lotto's kallimur awarding the dri jerbal rights to appellee's bwij. We therefore find that evidence was sufficient to support the trial division's findings that Lotto's kallimur superseded the kallimur of Labwirrik and further find that the trial division's findings were not clearly erroneous.
Accordingly, it is ORDERED, ADJUDGED and DECREED as follows:
1. The judgment of the trial division that Lejer is the alab of Jikibdru lar weto of Wotje land is REVERSED, and the alabship is CONFIRMED to Capitol pursuant to the December 6, 1983 trial division's order.
2. The judgment of the trial division awarding the dri jerbal rights of Jikibdru lar weto on Wotje Island to Lejer is AFFIRMED.
3. This opinion shall not affect any rights of way over, across, or upon the said parcel of land.
4. No costs are assessed in favor or against any party.

* Judge of the United States Court of Appeals, Ninth Circuit, designated as Temporary Associate Justice by the Secretary of Interior.
** Judge of the United States District Court, Central District of California, designated as Temporary Associate Justice by the Secretary of Interior.