cite as Timothy vs. Malem Mun. Government, Kosrae St

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     This action involved an appeal from the Land Commission's determination of ownership on Parcel No. 010-M-15 known as Mutenpal, located in Malem Municipality.

     On October 5th 1993 both parties agreed to waive oral argument and further stipulate that the Court render its decision based upon the written arguments submitted supported by Memorandum of Points and Authorities1. Thus, this opinion and decision is issued accordingly.


     Appellant Milton Timothy appeals the determination on the following grounds:

     (1) The Kosrae Land Commission erred as a matter of law in determining that appellee is the owner of Parcel No. 010-M-15.

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     (2) The adjudication of the Land Commission shows an abuse of discretion; and the decision is arbitrary and capricious.

     (3) The Record of the Land Commission is inadequate and the hearing was incomplete.

     (4) There was a denial of due process (appellant did not participate in the formal hearing, (if any hearing was held).

     (5) No subsequent hearing was held and the Land Commission issued its determination of ownership which constitutes a denial of due process because it prevented appellant from introducing evidence that needed to be established.


     Before examining the issues raised by appellant, it is appropriate to discuss the authority of the Court to review this matter. In reviewing this action, the Court shall consider only the questions effecting the jurisdiction of the agency, (Land Commission), the regularity of its proceedings, and as to the merits of the controversy, whether the determination in this case was arbitrary, oppressive, unreasonable, fraudulent, or under an erroneous theory of the law without sufficient evidence to support the determination which can effect the appellant's due process for a fair hearing. '

     When parties on appeal from actions by a Commission come before a Court to obtain a decision upon the legal questions whether the Commission acted within the limits of its authority and to have their rights, as established by law determined accordingly, there is a "case" or "controversy" which is the subject of the exercise a judicial power2.

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KSC 11.614

     Appeal from determination of commission

     A determination of ownership by the Commission is subject to appeal to the Court within one hundred twenty days from the date of receipt of notice of the determination. The Court hears an appeal on the record unless it finds that good cause exist for trial of the matter. KC 11.614.

     In reviewing the records and the documents provided by appellant, it is clear that appellant had granted the parcel to Malem Church to use specifically for congregational purposes and other related activities3. Whether or not this grant was a use right, transfer of title in fee simple or conditional fee with "words of limitations" is unclear. Whether said transfer was customarily made and legally binding among the elders of Timothy and the members of the Church in Malem or whether the power granted to the elders in Malem at the commencement of the construction, can be viewed in different aspects. The record shows that after the parcel and its location were pointed out to those persons that were present, Mr. Bercil Charley, Secretary of Malem Church, recorded the date and the people that were present to witness the ceremony4.

Custom and tradition

     According to Kosraen custom, many, if not all, Kosraens believe that the father, as the eldest male in the family, is the owner of all family lands. During his life time, he has the authority to convey any of his lands in any manner for which he chooses. He has the power to revoke any conveyance he makes during his life time. When a father conveys a use right to another that person holds the use right during the life time of the father.5

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At the hearing the following testimonies were presented: (in part)

Chairman -           Can you show us how that parcel has became yours real property?

Appellant -           Timothy my father had originally owned it and Palokoa and Emma gave it to me as my property.

Chairman -           Have you ever given this parcel to someone?

Appellant -           I gave it to a person to use it.

Chairman -           To whom did you gave the land to use it?

Appellant -           Church

Chairman -           State your answer precisely for our tape recorder?

Appellant -           Church Malem.

Chairman -           According to your recollection, can't you tell how long since then?

Appellant -           I wish you wouldn't say that I gave Malem Church that property. I merely gave Malem Church since 1958. Obviously Malem Church have being using it for twenty six (26) years.

Chairman -           . . . . . Did you and Malem Church effecting any written document.

Appellant -            None.

     So in reviewing the transcripts and the testimonies in the instant case, it was Palokoa Timothy who first conveyed the property involved to appellant and later the same property was authorized for used by Palokoa Timothy. The question is whether Palokoa Timothy, after conveying the property to appellant, had the right to revoke his conveyance to Milton.

     With respect to the transfer of property or conveyance of property by

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the original owner to another person, it was common that such a transaction during Japanese administration was done in such a manner that no written documents were kept in any file. Therefore, the Court has no documentation (except testimonial evidence) to consider under these circumstances. On many occasions, land owners died intestate and the property was subdivided by the heirs or in any manner that would satisfy the heirs that were entitled to property. Under Kosraen custom, some people believe the eldest son is to be the next man in line to divide the property equitably. However, this issue is not before me to decide.

     The reason why I briefly touched on Kosraen custom in land matters is because the appellant claims that the property in question was owned by Timothy, his father yet appellant's brother Palokoa and their mother Emma gave it to appellant to own. Thus the question that needs to be clarified is whether appellant was the owner of said parcel of land, then how is it possible for Palokoa and other senior members of the family to approve the exchange between appellee and Ittu Tepuke. At the ceremony, the boundary indicating the size of the parcel was pin-pointed by those persons witnessing and was document by Bercil Charley who was the Secretary of the Congregation in Malem and also by Swinton Jack, Secretary for Malem Municipal Government. The family who owned the parcel, including the clan members were present when the parcel was marked. Bercil, as Secretary for the church was able to testify as to his documentation of the marking of the land. However, substantial evidence was offered that conflicts with appellant's testimony.

     The Commission based its determination upon the series of fact findings that, if taken together, pointed toward to their conclusion. I feel strongly that this is an issue that the Legislature, through implementation of

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legislation, should address and provide guidance to the citizens and the land owners in order that they may be able to transfer property systematically and to minimize the confusion among parties in the future.

     It is not the proper function of this Court to reweigh the evidence since the agency had full knowledge and had the evidences before them to consider when they issued the determination of ownership. I have discused the customs and traditions as I feel it is appropriate for the parties to be precise when they file their appeal from a Land Commission's determination. It may also be advisable for the Land Commission to seriously considered the system in which land was conveyed by the original owner in order to assist the Court in our jurisprudence as a developing nation.

Kosrae Land Commission Erred in Its Determination

     Appellant's claimed that the determination was made without any legal basis. From the transcripts it is evident that an exchange of the parcel was made between Ittu and Malem Municipal Government. Whether the subject parcel was transferred to appellant by his natural mother, Emma or whether appellant inherited the property is contrary to testimonies of Palokoa Timothy6. In reviewing the transcript and other testimonies of the witnesses, the property was transferred from Palokoa to appellant'. Palokoa Timothy had testified before the Land Commission that he authorized Malem Municipal Government to construct their building. Even though he had previously given the land to Milton.

     As I have discussed earlier, this matter raises issues reflecting the appellant's argument on the ownership and the transfer of such to other parties, I shall consider next whether or not the determination of the Land

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Commission was in fact arbitrary, capricious and inconsistent to testimonial evidence to support its determination. I find that it was not. Ample testimonial evidence is on the record to support the Land Commission's determination.

Denial of Due Process

     Appellant argued that on December 9, 1980 a hearing was held with two parties; Malem Municipal Government and Luppe Ittu. At this hearing appellant claimed he was not present7.

     On September 11, 1984, appellant appeared before the team and testified, however, he did not know that it was a continuation of the former hearing.

KSC 11.609

               Notice of Hearing

(1)      Before a registration team conducts a hearing concerning a parcel it gives notice containing a description of the parcel and the time and place of hearing at least thirty days before the hearing by;

                    (a)      posting notice on the parcel in both Kosraen and English languages;

(b)      posting notice at the Municipal office of the Municipality in which the parcel lies; ...

... (2) During the period between completion of notice and hearing a person claiming an interest in the parcel may file a written claim with this Commission before the hearing or an oral claim with the Commission at the hearing. KC 11.609.

     In reviewing the entire file of this action, court noted that the Notice of Appeal was filed July 11th 1988. Although, even if it was true that appellant's counsel was not previously involved in this action, it is not the issue that confronted before this court.

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     It appears in the record that the exchange of Parcel No. 010-M-15 between appellee, Malem Municipal Government and, Ittu, Tepuke was executed sometime in 1960.8

     Appellant claims that "he was the one who gave permission to Church to use the land". This is not disputed and it is not the function of this Court to weight the evidence that was considered by Land Commission at its hearing. It is the sole purpose of this court to review the basis of which the Land Commission issued its determination of ownership. Appellant requested the Court to set aside the Commission's findings of facts claiming that it was clearly erroneous; that there was no substantial evidence supporting its determination; that the decision was arbitrary and capricious; and that the decision appeared to be inconsistent with testimonial evidence and insufficient to the weight of the evidence.

     Appellee, Malem Municipal government argued and requested the Court to dismiss the appeal and claimed that appellant appeared at the Land Commission on September 4, 1980 at a preliminary inquiry to describe his claim. On September 11, 1984, appellant appeared at a formal hearing with Palokoa Timothy and other members9, and they submitted their claims before the Land Commission's hearing.

Decision is Arbitrary And Capricious

     Appellant argued that there is no evidence in the record that the parcel involved in this action was given to Church to own. It is only logical then, to determine on what authority did the church have to use and later transfer the parcel. Although the exchange was made during subsequent years, from

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1960 to 1984 (twenty four years later) Malem Municipal Government was using the parcel for the office building and it was undisputed that appellant or a member of the appellant's family had authorized that change.

     A review of the transcripts of the entire proceedings of the Land Commission reveals that appellant appeared and testified to the matter and the findings of the Land Commissions were issued based upon the substantial testimonial evidence that was received by the agency at the hearing. Therefore, I find that the decision of the Land Commission was not arbitrary and capricious, but rather, was based on the evidence presented before them.


     Judicial review is ordinarily limited or confined to the record, that is, the transcript of the Land Commission's proceedings before the agency. Also reviewable is the consideration of questions of law, the sufficiency of the evidence, to determine whether the action of the Land Commission is legal or in accordance with the law, or whether errors of law have been committed. The general frame of the power of judicial review is to keep the agency within the valid statute which guides the agency from unreasonable excesses of its function, to ascertain whether there is justification in the law and within the facts for the decision of the Land Commission, and to decide how these factors effect the constitutional rights of the appellant.

Scope of Review

     The statutory provision which established the judicial power to review action of the Land Commission is KSC 11.61410 .

     Section 11.614 provides that under the case at bar, the Land Commission must act fairly and reasonably within the grant of power by

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legislation in issuing notice of the hearing to all parties having interest in any land matters. KSC 11.609 provides that the Land Commission give .... notices containing a description of the parcel and the time and place of hearing at least thirty days (30 days) before the hearing. It appears from the transcript of the hearing that appellant Milton Timothy had been given an opportunity to appear and testify11.

     From the record it is shown what transpired during the hearing and that several witnesses appeared at both occasions. The first occasion evidences the fact that Bercil Charley, the Secretary of the Malem Congregational Church was present during the plotting of the parcel and that the plotting was also witnessed by elders in Malem namely; Palokoa Timothy, Saelus Ittu, and Shrue Paul.

     On the second occasion, testimonies included the exchange made between appellee and Ittu Tepuke where other persons were present to witness the transfer of the property. The document was reduced into writing during the exchange by Swinton Jack who was the Secretary of Malem Municipal Government under the previous administration. The document which reflects the date of the commencement of the office building reflects in part, ". . . today, Monday April 25, 1960 there was a social gathering to commemorate the foundation of new office building. . . Ittu Tepuke was invited prior to the commencement of the program. . . Reason for inviting Ittu Tepuke was he gave this parcel to Malem Municipal government to construct its building. . ." At this ceremony, many people were at the scene and witnessed the transfer of property involved.

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Appellant, in his memorandum of Points and authorities (Reply Brief) continually alleged that the ownership of the property was determined by the Land Commission without sufficient evidence to prove ownership by a preponderance of evidence. I find that there was sufficient evidence.


     It is not the function of the court to re-weight the evidence. I shall confine my opinion only to the following questions: (1) the jurisdiction of the agency; (2) the regularity of its proceedings; (3) the merits of this controversy; (4) whether the determination of the Land Commission was arbitrary, oppressive or under an erroneous theory of the law without sufficient evidence to support its determination; (5) the appellant's right to a fair hearing; and (6) whether or not the Land Commission failed to comply with the required statute in providing notices to Appellant constituting a violation of due process under the State Constitution.

     The Kosrae State Code provides the jurisdiction to the Land Commission to hear such matters. After a thorough review of the transcripts, the regularity of its proceedings is evident and also that the commission reviewed and decided the merits of this controversy in a reasonable manner. Additionally, the record reflects that the determination of the Land Commission was not arbitrary, oppressive or under any erroneous theory of the law or without sufficient evidence to support its determination. The appellant's had a fair hearing as was his right. And finally, the Land Commission complied with the required statutes in providing notices to Appellant, thus, no violation of due process under the State Constitution can be found.

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     From the records and the testimonial evidence adduced at the hearing, I have determined that the Land Commission's determination was in compliance with the applicable provisions of law.

     Based upon the aforementioned reasons, this appeal is dismissed. The determination of ownership issued by Land Commission is affirmed.

     No costs shall be assessed to either party.

     SO ORDERED this 2nd day of November, 199

                                             Harry H. Skilling
                                             Associate Justice

Entered on this 9th day of November, 1993.

                                             Chief Clerk of Court, Kosrae

1. Stipulation by parties on October 5, 1993. (Back to Opinion)

2. KC 11.614 Appeal for Determination of commission (Back to Opinion)

3. Appellant's Reply Brief Page 1.(Back to Opinion)

4. Bercil Testimony at formal hearing.(Back to Opinion)

5. 1TTR 85 (Back to Opinion)

6. Palokoa Timothy's testimonies at formal hearing (Back to Opinion)

7. Appellant's argument (Back to Opinion)

8. Written document on the comment of the Malem Municipal Government by Swinton Jack (Back to Opinion)

9. Transcript of formal hearing (Back to Opinion)

10. Appeal from Determination of Commission (Back to Opinion)

11. Appellant testimonies at hearing (Back to Opinion)