KOSRAE STATE COURT TRIAL DIVISION
Cite as Albert v. Jim
11 FSM Intrm. 487 (Kos. S. Ct. Tr. 2003)

[11 FSM Intrm. 487]

FRAZIER ALBERT and REBECCA ALBERT,
Appellants,
 
vs.
 
GIBSON M. JIM et al.,
Appellees.
 
CIVIL ACTION NO. 126-01
 
MEMORANDUM OF DECISION; JUDGMENT; ORDER OF REMAND
 
Yosiwo P. George
Chief Justice
 
Hearing: December 19, 2002, April 15, 2003
 
Decided: April 21, 2003

[11 FSM Intrm. 488]

APPEARANCES:
 
For the Appellants:                            Albert Welly
                                                           j Kosrae Legislature
                                                           P.O. Box 187
                                                           Tofol, Kosrae FM 96944
 
For the Appellees:                            Clanry Likiaksa
                                                           P.O. Box 764
                                                           Tofol, Kosrae FM 96944

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HEADNOTES

Administrative Law ) Judicial Review
      The Kosrae State Court, in reviewing the Land Commission's procedure and decision, should consider whether the Commission: a) has exceeded its constitutional or statutory authority, b) has conducted a fair proceeding, c) has properly resolved any legal issues, and d) has reasonably assessed the evidence presented. Albert v. Jim, 11 FSM Intrm. 487, 490 (Kos. S. Ct. Tr. 2003).
 
Constitutional Law ) Due Process ) Notice and Hearing; Property ) Land Commission
The Land Commission is required by statute to give actual, and not constructive notice for hearings to all interested parties. Failure to provide notice as required by law to an interested party is violation of due process. Albert v. Jim, 11 FSM Intrm. 487, 490 (Kos. S. Ct. Tr. 2003).
 
Constitutional Law ) Due Process ) Notice and Hearing; Property ) Land Commission
      The registration team is required to serve actual notice of the hearing upon all parties shown to have an interest in the parcel either by personal service or registered air mail. Albert v. Jim, 11 FSM Intrm. 487, 490 (Kos. S. Ct. Tr. 2003).
 
Constitutional Law ) Due Process ) Notice and Hearing; Property ) Registered Land
      When a person, entitled to be served notice of the hearing, was not served actual notice of the hearing by personal service, there was no substantial compliance with the notice requirements specified by law and when there was no substantial compliance with the notice requirements specified by law, the Certificate of Title and the Determination of Ownership will be vacated and set aside as void, and the matter remanded to Kosrae Land Court for further proceedings. Albert v. Jim, 11 FSM Intrm. 487, 490 (Kos. S. Ct. Tr. 2003).

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COURTS OPINION

YOSIWO P. GEORGE, Chief Justice:

     This is an appeal from a Determination of Heirship issued by the former Kosrae State Land Commission on October 31, 2001 for parcel 020-T-12, also called Srupunyot. Appellants brief was filed on September 19, 2002. Appellees files their brief on October 21, 2002. Supplemental briefs were filed by both parties, in February 2003, pursuant to Court Order. This matter was set for hearing on December 19, 2002 and continued on April 15, 2003. Albert Welly appeared for the Appellants. Appellees were represented by Clanry Likiaksa.

[11 FSM Intrm. 489]

      Appellants claim ownership of parcel 020-T-12. Appellants claim ownership through Frazier Albert's father, Sam Albert, who allegedly purchased the land now designated as parcel 020-T-12 from the Appellees' father, Mark Jim, in 1980. Appellees admit that Sam Albert did purchase the subject land from Mark Jim, but also claim that the transaction was later canceled by Mark Jim. Appellees claim that all the heirs of Mark Jim inherited the subject parcel upon Mark Jim's death.

      Based upon the record in this matter, arguments made at the hearing and applicable law, I find in favor of the Appellants. This Memorandum of Decision explains the Courts decision and reasoning.

I. Factual Background.

     The Court has carefully reviewed the Kosrae State Land Commission record for parcel 020-T-12. Parcel 020-T-12 was subdivided from parcel 020-T-01 in approximately 1994, therefore records for parcel 020-T-01, necessarily include the land now designated as parcel 020-T-12. The record indicates that the preliminary inquiry for the parcel 020-T-01 was held in March 1981, after the alleged sale of the subject land from Mark Jim to Sam Albert. Sam Albert was an interested party in a portion of parcel 020-T-12 due to his purchase of the subject land from Mark Jim. Even so, Sam Albert was not listed as an interested party and was not served notice of the preliminary inquiry. The formal hearing was held in August 1981 and continued in November 1983. Sam Albert was not identified as an interested party and was not served notice of the formal hearing. The record does not contain any notice of hearing served upon Sam Albert for the formal hearings. Nothing in the record indicates that Sam Albert was present at the formal hearings held in August 1981 and November 1983. The Determination of Ownership for parcel 020-T-01, including the subject land, was issued to Mark Jim on June 29, 1984. The Certificate of Title for parcel 020-T-01 was issued to Mark Jim on April 15, 1994. Sometime in 1994 or 1995, parcel 020-T-01 was subdivided. The subject parcel, 020-T-12, was created from the subdivision process. The Certificate of Title for parcel 020-T-12 was issued to Mark Jim on September 19, 1995.

     Sam Albert lived with his family on parcel 020-T-12 for many years, until Sam Albert's death. Thereafter, Sam Albert's son, Appellant Frazier Albert, with his wife Rebecca Albert and family, continued to live and farm on the parcel. Appellants' possession, residence and farming on parcel 020-T-12 was not disturbed by the Appellees until after Mark Jim's death in 2000. Following Mark Jim's death, the Appellees entered parcel 020-T-12, damaged and destroyed a local house owned by the Appellants.

     The Appellants then filed a civil lawsuit in this Court against the Appellees, which was docketed as Civil Action No. 54-01. This Court entered a preliminary injunction against the Appellees on July 3, 2001 and remanded the matter to Kosrae State Land Commission for determination of heirship of parcel 020-T-12. The Kosrae State Land Commission conducted the heirship proceedings in September 2001 and issued its findings and opinion in October 2001. The Determination of Ownership for parcel 020-T-12, based upon the heirship proceedings, was issued to the Appellees, Heirs of Mark Jim, on October 31, 2001. This appeal followed.

II. Analysis.

     The provisions of former Kosrae State Code, Title 11, Chapter 6, were applicable to the Land Commission proceedings for parcel 020-T-12. Therefore, this Court applies the provisions of former Kosrae State Code, Title 11, Chapter 6 (repealed) to its review of the Land Commissions procedure and decision in this matter. All references to Kosrae State Code, Title 11, Chapter 6 are made to the provisions in effect at the relevant time.

[11 FSM Intrm. 490]

     The Court, in reviewing the Land Commission's procedure and decision, should consider whether the Commission: a) has exceeded its constitutional or statutory authority, b) has conducted a fair proceeding, c) has properly resolved any legal issues, and d) has reasonably assessed the evidence presented. Heirs of Mongkeya v. Heirs of Mackwelung, 3 FSM Intrm. 395, 398 (Kos. S. Ct. Tr. 1988). The Court here finds that Land Commission did not conduct a fair proceeding by holding formal hearings and issuing a Determination of Ownership without compliance with statutory notice requirements.

     The Land Commission is required by statute to give actual, and not constructive notice for hearings to all interested parties. Failure to provide notice as required by law to an interested party is violation of due process. Sigrah v. Kosrae State Land Comm'n, 9 FSM Intrm. 89, 93 (Kos. S. Ct. Tr. 1999). Kosrae State Code, Title 11, Chapter 6, sets forth the procedure for determination and registration and interests in land. Kosrae State Code, Section 11.609 requires the registration team to give notice of a hearing on each parcel. The registration team is required to service actual notice of the hearing upon all parties shown to have an interest in the parcel either by personal service or registered air mail. Sam Albert was an interested party in parcel 020-T-01 (later subdivided, creating parcel 020-T-12) due to his purchase of a portion of parcel 020-T-01 in 1980 from Mark Jim. Nonetheless, the land registration team failed to identify Sam Albert as interested party in the preliminary inquiry and failed to give Sam Albert actual notice of the formal hearings for parcel 020-T-01.

     In cases where an interested party has not been served statutory notice, the law is clear. When a person, entitled to be served notice of the hearing, was not served actual notice of the hearing by personal service, there was no substantial compliance with the notice requirements specified by law. Sigrah v. Kosrae State Land Comm'n, 9 FSM Intrm. 89, 93 (Kos. S. Ct. Tr. 1999). Here, Sam Albert was not served actual notice of the formal hearings by personal service for parcel 020-T-01. There was no substantial compliance with the notice requirements specified by law. Due to the violations of the statutory notice requirement, and in accordance with this Court's established precedent, the Certificate of Title for parcel 020-T-12, issued to Mark Jim on September 19, 1995 and the Determination of Ownership for parcel 020-T-12, issued to the Heirs of Mark Jim on October 31, 2001, are now vacated and set aside as void. See Nena v. Heirs of Melander, 9 FSM Intrm. 523 (Kos. S. Ct. Tr. 2000); Sigrah v. Kosrae State Land Comm'n, 9 FSM Intrm. 89, 93 (Kos. S. Ct. Tr. 1999); Palik v. Henry, 7 FSM Intrm. 571 (Kos. S. Ct. Tr. 1996).

III. Judgment.

     Judgment is entered in favor of the Appellant and against the Appellees. The Certificate of Title and the Determination of Ownership for parcel 020-T-12 are vacated and set aside as void.

IV. Order of Remand.

     This matter is now remanded to Kosrae Land Court for further proceedings on parcel 020-T-12, and specifically on claimed sale of land from Mark Jim to Sam Albert. Kosrae Land Court shall hold hearings and issue written findings and decision on parcel 020-T-12, consistent with the requirements of Kosrae State Code, Title 11, Chapter 6. All proceedings shall be conducted according to the following instructions:

1. The Land Court shall provide notice and hold hearings, as required by Kosrae State Code, Title 11, Chapter 6, the KLCRP and General Court Orders.

2. The Land Court shall hear the Appellant and any other claimants, witnesses and other evidence which may be offered at the hearing.

[11 FSM Intrm. 491]

3. The Land Court shall follow the requirements of GCO 2002-13 with respect to questioning of claimants not represented by legal counsel.

4. The Land Court may consider any evidence, including testimony, which was received at the prior hearings, giving appropriate evidentiary weight to those testimonies which were based upon hearsay or not subject to cross examination and giving appropriate evidentiary weight to documentary evidence which were offered without foundation or authentication.

5. This matter shall be assigned highest priority by the Land Court, and shall be assigned for hearing and further action by the first Land Court Justice who is available to hear and adjudicate this matter.

6. The Kosrae Land Court shall complete all hearings within 120 days, and shall issue its written findings and decision within 120 days after the close of the hearings, as provided by law.

     The Preliminary Injunction, issued on July 3, 2001, in Frazier Albert v. Gibson Jim, et al., Civil Action No. 54-01, remains in effect until the remand proceedings are completed by the Kosrae Land Court and until further written order from this Court.

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