KOSRAE STATE COURT TRIAL DIVISION
Cite as Heirs of Obed v. Heirs of Wakap, 13 FSM Intrm. 337 (Kos. S. Ct. Tr. 2005).

[13 FSM Intrm. 337]

HEIRS OF PALIKKUN OBED,

Appellants,

vs.

HEIRS OF JESSE WAKAP,

Appellees.

CIVIL ACTION NO. 41-04

MEMORANDUM OF DECISION; JUDGMENT; ORDER OF REMAND

Yosiwo P. George

Chief Justice

Hearing: March 24, 2005

Decided: July 7, 2005

APPEARANCES:

For the Appellants:   Snyder H. Simon, trial counselor

                                       P.O. Box 1017

                                       Tofol, Kosrae   FM   96944

[13 FSM Intrm. 338]

For the Appellees:   Albert T. Welly, trial counselor

                                      Kosrae State Legislature

                                      P.O. Box 187

                                      Tofol, Kosrae FM 96944

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HEADNOTES

Appellate Review ) Standard of Review ) Civil Cases

     The Kosrae State Court is required to apply the "substantial evidence rule" to Kosrae Land Court decisions. If the Kosrae State Court finds that the Land Court decision was not based upon substantial evidence or that it was contrary to law, the case must be remanded to the Land Court with instructions and guidance for re-hearing the matter. Heirs of Obed v. Heirs of Wakap, 13 FSM Intrm. 337, 339 (Kos. S. Ct. Tr. 2005).

Appellate Review ) Standard of Review ) Civil Cases

     Since the Kosrae Land Court procedures recognize the difficulty of receiving testimony and other evidence from claimants, parties, or witnesses who are not represented by counsel and pro se claimants are not well versed in the law and procedural rules and have difficulty understanding the specific procedural requirements and time limitations for the submission of evidence, and when the parties would have had the opportunity to submit the newly discovered evidence within a motion to amend, set aside or vacate the decision, the Kosrae State Court must conclude that the appellantsí rights were violated when the Land Court summarily rejected the purported hand written statement without offering the pro se appellants an opportunity to offer foundation and authentication of the hand written statement and the appellees the opportunity to cross examine the same. Accordingly, the Kosrae Land Courtís ownership decision was made contrary to law, and the matter must be remanded to the Land Court with instructions and guidance for re-hearing the matter. Heirs of Obed v. Heirs of Wakap, 13 FSM Intrm. 337, 339-40 (Kos. S. Ct. Tr. 2005).

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COURTíS OPINION

YOSIWO P. GEORGE, Chief Justice:

     This is an appeal from a Decision issued by the Kosrae Land Court on March 10, 2004 for parcel 028-U-01, also known as Selmea in Utwe Municipality. Appellantsí brief was filed on October 8, 2004. Appelleesí brief was filed on November 30, 2004. This matter was set for hearing on March 24, 2005. Snyder Simon appeared for the Appellants. Albert Welly appeared on behalf of the Appellees.

     Appellants dispute the finding of ownership made by the Kosrae Land Court in favor of the Appellees. Appellants claim that the Land Court failed to compel the attendance of witnesses in favor of the Appellant, as required by Kosrae State Code, Section 11.611, and failed to accept relevant evidence proffered by the Appellants. Appellants further claim that the Land Courtís evidentiary findings were not based upon substantial evidence.

     Based upon the record in this matter, arguments made at the hearing and applicable law, I find in favor of the Appellant. This Memorandum of Decision explains the Courtís decision and reasoning, and remands this matter back to the Kosrae Land Court for further proceedings.

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I.  Analysis and Conclusions.

      The provisions of Kosrae State Code, Section 11.614 are applicable to appeals made from a decision entered by the Kosrae Land Court. Pursuant to Section 11.614(5)(b), this Court is required to apply the "substantial evidence rule" to all Land Court decisions. If this Court finds that the Land Court decision was not based upon substantial evidence or that the Land Court decision was contrary to law, this Court must remand the case to the Land Court with instructions and guidance for re-hearing the matter. Kosrae State Code, Section 11.614(5)(d).

      The Court has carefully reviewed the Kosrae Land Court record for parcel 028-U-01. The record includes documents issued by the former Kosrae State Land Commission and the record for Land Commission proceedings which took place prior to January 2002. Both parties had appeared pro se at the Kosrae State Land Commission and the Kosrae Land Court proceedings.

     It is undisputed that the original known owner of the subject parcel was one Fwasrkan, also known as Wakap. Wakap did not have any natural children born of his marriage with Kenye Niatkin. Wakap adopted three sons: 1. Jesse Wakap, who was Kenyeís child born before the marriage; 2. Palikkun Obed, who was Wakapís grandson through another of Kenyeís children born before their marriage; and 3. Clinton Benjamin. Jesse Wakap was the eldest of the three adopted sons.

     The Kosrae Land Court based its findings and decision of ownership for the subject parcel in favor of the Heirs of Jesse Wakap upon evidence that Jesseís name was registered to the parcel on the 1932 Japanese Survey Map, and that Jesse tried to stop Palikkun from entering the subject parcel. There was no evidence presented at the Land Court hearing of any transfer of the subject parcel from Wakap to any of his three adopted sons. However, the third adopted son, Clinton Benjamin, testified at the Land Commission hearing that his father, Wakap, verbally gave the subject parcel to Palikkun Obed.

     The Appellants argue that the Land Courtís decision was contrary to law because the Courtís decision was not based upon substantial evidence. Appellants further argue that the Court refused to accept evidence proffered by the Appellants, purportedly a hand written statement made by Palikkun Obed, which contained instructions regarding the subject parcel. Based upon the decision and record, it appears that this hand written statement was proffered after the Land Court hearing was completed, but before the Land Courtís decision was entered. The Land Court rejected this document due to its absence from the hearing and the prior record. Appellants finally argue that at the Land Commission hearing, cross examination of Clinton Benjamin was not permitted, and that this is a violation of the due process rights of the parties.

     Appellees argue that the Land Courtís decision was based upon substantial evidence presented at the hearing and through the Land Commission record, and should therefore be affirmed. Both parties agree that the listing of Wakapís name on the 1932 Japanese Survey Map is not conclusive of ownership.

     The Court has carefully considered the arguments made by the parties, the record in the matter, and has specifically considered the fact that both parties appeared pro se at both the Kosrae State Land Commission hearing and at the Kosrae Land Court hearing, without representation of legal counsel. The Kosrae Land Court procedures recognize the difficulty of receiving testimony and other evidence from claimants, parties or witnesses who are not represented by counsel. See Kosrae Land Court GCO 2002-13 (introduction). Pro se claimants are not well versed in the law and procedural rules, and have difficulty understanding the specific procedural requirements and time limitations for the submission of evidence imposed by the KLCRP and GCOs. This Court further recognizes that the parties would have

[13 FSM Intrm. 340]

had the opportunity to submit newly discovered evidence within a Motion to Amend, Set Aside or Vacate the decision pursuant to KLCRP 16.D. Therefore, the Appellants, as pro se claimants before the Kosrae Land Court, would have had difficulty in understanding the time limitations and procedural options available to them to request admission of the purported hand written statement made by Palikkun Obed into evidence. Based upon these considerations and application of applicable law, rules and GCOs, this Court must conclude that the rights of the Appellants were violated when the purported hand written statement of Palikkun Obed was summarily rejected by the Land Court, without offering the pro se Appellants an opportunity to offer foundation and authentication of the hand written statement, and the Appellees the opportunity to cross examine the same. The KLCRP are required to be liberally construed in order to . . . assist the parties in obtaining just . . . determination of every action and proceeding before the Court. KLCRP Rule 2.B. The summary rejection of the statement submitted by the Appellants was made in violation of KLCRP as it did not allow consideration of all evidentiary submissions, and was contrary to law. Accordingly, this Court finds that Land Courtís ownership decision for parcel 028-U-01 was made contrary to law. Therefore, this matter must be remanded to the Kosrae Land Court with instructions and guidance for re-hearing the matter.

II.  Judgment.

     Judgment is entered in favor of the Appellants and against the Appellees. The Land Court decision, entered on March 10, 2004 for parcel 028-U-01 is vacated and set aside as void.

III.  Order of Remand.

     This matter is now remanded to Kosrae Land Court for further proceedings on parcel 028-U-01. Kosrae Land Court shall hold hearings and issue written findings and a decision on parcel 028-U-01, consistent with the statutory and procedural requirements. The Kosrae Land Court shall issue the decision on parcel 028-U-01, to reflect the ownership of the subject parcel. 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 Appellants, Appellees, and their witnesses on the following evidence proffered by the Appellants: the purported written statement of Palikkun Obed. The Land Court shall accept testimony and other evidence regarding the foundation, authenticity, relevance, and applicability of the written statement as it applies to the ownership claims of the claimants.

3.  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.

4.  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.

5.  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.

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