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Shima v Hermios [1987] TTLawRp 4; 8 TTR 606 (3 July 1987)

8 TTR 606

TOSHIWO SHIMA, et al, Appellants

v.

NAMO HERMIOS, et al, Appellees

Civil Appeal No. 426

Appellate Division of the High Court

Marshall Islands District

July 3, 1987

Appeal from judgment of the trial division determining alab and dri jerbal rights to various wetos on Wotje Atoll. The Appellate Division of the High Court, Kennedy, Associate Justice, affirmed the finding of the trial division that a bwilok had occurred, in which the successor bwij acquired complete jurisdiction over bwij lands, including the wetos at issue.

1. Marshalls Land Law-"Bwilok"-Evidence

Trial division's finding that a bwilok occurred was upheld as not clearly erroneous, based on evidence that members of the original bwij left the atoll shortly after the dispute, indicating the consent of the original bwij to the new arrangement, and that nobody contested the succession to alab by a member of the successor bwij.

2. Marshalls Land Law-"Dri Jerbal"-Evidence

In action contesting alab and dri jerbal rights to various wetos on Wotje Atoll, objection that certain exhibit did not refer to the wetos by name failed, where there was other evidence in the case from which the identity of the wetos was made clear.

3. Marshalls Land Law-"Bwilok"-Particular Cases

In action contesting alab and dri jerbal rights to various wetos on Wotje Atoll, judgment of the trial division that a bwilok occurred and that the successor bwij acquired complete jurisdiction was affirmed, and distribution of funds pursuant to the Micronesian Claims Act of 1971 were ordered to be made as a one-third share for the alab and a two-thirds share for the dri jerbal.

Before MUNSON, Chief Justice, KENNEDY^[1], Associate Justice, HEFNER^[2], Associate Justice

KENNEDY, Associate Justice

Appellant Grace Alee appeals the judgment of the trial division holding that the alab and dri jerbal rights to various wetos on Wotje Atoll, Marshall Islands, belong to appellee L. Kemojjo. Because the court's findings of fact are not clearly erroneous and its evidentiary rulings are consistent with substantial justice, Bina v. Lajoun, 5 T.T.R. 366, 369-70 (1971), we affirm.

Before the events at the heart of this litigation occurred, the alab and dri jerbal rights to the wetos in question were held by appellant's ancestors. The rights of appellee's ancestors were junior.^[3] We shall term appellant's family the "original" bwij and appellee's family the "successor" bwij.

During the Japanese administration, there was a dispute between members of the original bwij, headed by Lakimea, and members of the successor bwij, headed by Lelolo. The dispute concerned the actions of Bitan, a member of the original bwij who was accused of failing to pay the proper shares to the alab and the iroij.

The trial court found that a bwilok occurred as a result of this dispute, in which the successor bwij acquired complete jurisdiction over bwij lands on Wotje atoll, including the wetos at issue here, and the original bwij acquired complete jurisdiction over bwij lands in Ailuk atoll. Appellants deny that a bwilok occurred, although all parties acknowledge that the members of the original bwij left Wotje atoll and relocated on Ailuk and Utrik atolls shortly after the dispute concerning Bitan, while members of the successor bwij remained on Wotje atoll.

Because the members of the successor bwij who remained on Wotje were all male, a female of the original bwij, Lijabiruj, agreed to assist them in housekeeping and cooking. She then married a man of the successor bwij, and then gave birth to two children, one of whom was a male named Lakiotak. Upon the death of Lelolo, the alab of the successor bwij, it was decided that Lakiotak would be the next alab, and that Lelolo's heirs would succeed him. Thus, when Lakiotak died, the next alab was Laliklik, a member of the successor bwij and the nephew of Lelolo.

[1] The evidence was sufficient to show that a bwilok occurred, and we do not find the trial division's finding clearly erroneous, as we must in order to overturn it. Techong v. Peleliu Club, 7 T.T.R. 364, 367 (1976). Members of the original bwij left Wotje atoll shortly after the dispute, indicating the consent of the original bwij to the new arrangement. See Motlok v. Lebeiu, 7 T.T.R. 359 (1976) (conversion to ninnin land must be with consent of those affected. Furthermore, even after the death of Lakiotak, nobody contested the succession by Laliklik, a member of the successor bwij. Laliklik's succession would be hard to understand unless a bwilok had occurred, and his apparent recognition by members of the original bwij does much to convince us that appellant, whose claims as successor arise from being in the original bwij, cannot prevail. See Likinono v. Nako, 4 T.T.R. 483, 485 (1968).

[2] Given the strength of this inference, we do not think any evidentiary errors alleged to have been made are prejudicial. Finally, appellant's objection that Exhibit 6 did not refer to the wetos by name must fail, because there was other evidence in the case from which the identity of the wetos was made clear.

[3] Accordingly, the judgment of the trial court is affirmed and the distribution of the funds that were awarded pursuant to the provisions of Title II of the Micronesian Claims Act of 1971 and are held in a trust account by the trial division of the High Court shall be made to the successor bwij, the appellees in this case. Distribution shall be in accordance with the schedule adopted by order of the trial division on December 14, 1983, Civil Action No. 7-77, Shima, et al. v. Hermios, et al. specifically, the schedule of distribution shall be one-third share for the alab and two-thirds share for the dri jerbal.

^[1] Judge of the United States Court of Appeals, Ninth Circuit, designated as Temporary Associate Justice by Secretary of Interior.

^[2] Chief Judge of the Trial Court, Commonwealth of the Northern Mariana Islands, designated as Temporary Associate Justice by Secretary of Interior.

^[3] The trial court used the terms "junior bwij" and "senior bwij."