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Risa B. v Bokwij [1973] TTLawRp 8; 6 TTR 170 (1 May 1973)

6 TTR 170

TRIAL DIVISION OF THE HIGH COURT

MARSHALL ISLANDS DISTRICT

Civil Action No. 387

RISA B.

Plaintiff

v.

KEINTOKA BOKWIJ

Defendant

May 1, 1973

Dispute over succession to alab interests in seven wato on Tenak Island, eastern Arno Atoll. The Trial Division of the High Court, D. Kelly Turner, Associate Justice, held that alab interests of older bwij were not permanently cut off and transferred to younger bwij when alab, from older bwij, had his interests suspended when he refused to recognize iroij lablab and left the land and plaintiff, from a younger bwij, was named to replace him; so that where suspended alab returned and resumed exercise of his alab interests unchallenged by the person who had replaced him, and then died, his sister was his successor, not the person who had replaced him.

1. Marshalls Land Law-"Alab"-Succession

Alab' interests of older bwij were not permanently cut off and transferred to younger bwij when alab, from older bwij, had his interests suspended when he refused to recognize iroij lablab and left the land and plaintiff, from a younger bwij, was named to replace him; so that where suspended alab returned and resumed exercise of his alab interests unchallenged by the person who had replaced him, and then died, his sister was his successor, not the person who had replaced him.

2. Marshalls Land Law-"Iroij Lablab"- Refusal to Recognize

Under the custom, failure to recognize an iroij lablab does not, under the proper circumstances, deprive an alab or dri jerbal of land interests.

3. Marshalls Land Law-"Iroij Erik"- Powers

Where there was no iroij lablab at the time, statement of iroij erik that alab suspended for leaving the land had returned and had been restored to his alab interests and that his younger sister succeeded to those interests upon his death, was the equivalent, under the custom, of a land interest determination by the iroij lablab.

TURNER, Associate Justice

Once again the Court is confronted with a dispute over land interests on eastern Arno Atoll. The Arno disputes began with a civil war between factions headed by Iroij lablab Leikman and Leroij lablab Lijiwirak, both of whom were killed in the war. The Atoll was divided approximately in half in a settlement in 1879.

Three peaceful and successful reigns for the eastern half of Arno ended in 1932 with the death of Leroij lablab Liwaito. There was no successor, at first, although beginning with the American administration in 1944 and thereafter in 1948 and 1 950 the executive branch attempted to solve the problem of leadership for eastern Arno. Thereafter the disputes were brought to the High Court where they have continued from the decision in 1954 in Lainlij v. Lajoun and Jiwirak, et al., 1 T.T.R. 113, Marshall Islands Civil Action No. 23, to the present. None of the decisions have been able to settle all the questions. Sometimes the lands are different, or the interests claimed and the parties are different.

It is unnecessary to again repeat the history of this and related litigation. Most of it is covered in Labina v. Lainej, 4 T.T.R. 234 and in the appeal decision Bina Jetnil v. Lajoun, 5 T.T.R. 366. The most recent trial court decision, until the present case, was Jetnil v. Buonmar, 4 T.T.R. 420.

The land involved in the present case consists of seven wato on Tenak Island, Arno Atoll. The seven are: Mebeltobok (also spelled Kebeltobok), Meloren, Mwetera, Teron, Lekinbowon, Wirotbwikor and Buni. The two wato Kebeltobok and Mwetera were involved in Bina v. Mwejenwa, 5 T.T.R. 366. Although it appears a claim was made by Mwejenwa that he held alab interest the Court specifically did not rule on the question.

All seven wato involved in the present case were involved, with most all other lands in eastern Arno in Mwejenwa v. Jiwirak, Civil Action No. 44, decided in 1957 and not reported. The holding, however, was not as to alab rights but as to the entitlement of Jiriwak to hold iroij lablab interests. The holding was:

"The defendant Jiriwak is entitled to exercise the iroij lablab rights over all of the lands in which any of the plaintiffs have an interest on Eneraen Island and that part of Tinak Island which was formerly under Liwaito as iroij lablab, subject to all the obligations and limitations which go with those rights, unless and until there is some other clear establishment concerning the exercise of the powers of the former Leroij lablab Liwaito."

This was almost the same conditional decision as the holding in Lainlij v. Lajoun and Jiwirak et al., 1 T.T.R. 113, decided three years earlier in 1954 in which the Court said:

"The defendant Jiwirak is entitled to act as iroij lablab until such time, if any, as there is some clear establishment concerning the exercise of the powers of the former Leroij lablab Liwaito."

Between the dates of the two cases Jiwirak attempted to consolidate his position by being elected" or "recognized" in 1956 as the successor iroij lablab. Labina v. Lainej, supra, 243.

In any event as result of one or more of these incidents, either the two "contingent" court decisions or the "election", Mwejenwa announced his refusal to recognize Jiwirak as iroij lablab and departed Arno for Majuro Atoll. Accordingly, the iroij lablab and the iroij erik suspended Mwejenwa's alab interests and named as alab over the seven parcels in question the plaintiff, Risa. Mwejenwa belonged to a bwij older than that in which Risa was a member. It was her theory, advanced in support of her claim against the defendant Keintoka, who was Mwejenwa's sister in the older bwij that the suspension of Mwejenvia's alab interests cut off the interests of his bwij and passed them on to the younger bwij.

Mwejenwa returned to Arno and resumed exercise of the alab interests in 1969 and died in 1971. His sister then assumed his interests as his successor under the custom. Risa, who had taken no action against Mwejenwa when he returned to Arno, brought this action against the sister after his death.

[1] The Court cannot accept the plaintiff's theory that the alab interests of the older bwij were permanently cut off and transferred to the younger bwij. The history of the many years of land dispute on eastern Arno and the decisions of this Court repeatedly refusing to permanently, or at all for that matter, deprive an iroij erik or alab of their interests because of their failure to recognize Jiwirak or his avowed successor, Labina, as the iroij lablab and leroij lablab successors to Liwaito, does not justify such drastic action in the present case. The Court stated the applicable rule to the Arno problem in Labina v. Lainej, supra, at 4 T.T.R. 249:

" . . . the testimony and other information concerning the custom in the Marshall Islands, and of the cases, shows the land law in effect on December 1, 1941, required that where there is a reasonable uncertainty as to the rightful successor at all to the position or office of iroij lablab in respect to certain lands as to make substantial numbers of owners or interested parties hesitate before declaring their recognition, that the individual claiming such office in addition to proving that he is entitled by birth and blood to succeed to that office, must also show that the .persons having rights in such lands have recognized the claimant, either by words or conduct, in such fashion as to evince an unmistakable choice."

In the Labina case the Court also said at 4 T.T.R. 254:

"In action No. 238 [consolidated for trial civil action, Bina L. v. Mwejenwa] it must be held that Mwejenwa did not accept or recognize Jiwirak as the iroij lablab."

It was this failure to acknowledge Jiwirak which led the iroij lablab and iroij erik Lujim to cut off Mwejenwa's bwij and install Risa, the oldest member of the youngest bwij as alab. The action, if treated as a permanent cancellation of the bwij alab rights, was not the good cause necessary to transfer land interests under the custom. On the contrary, this Court held the refusal of Mwejenwa and others to recognize Jiwirak and his successor, Bina, as leroij lablab over the lands in question deprived Bina of the leroij lablab interest rather than deprived the alabs of their interests. (See Findings of Fact No. 9 at 4 T.T.R. 265.)

[2] The rule is that under custom the failure to recognize an iroij lablab, under proper circumstances, does not deprive an alab or dri jerbal of land interests. The Arno Atoll decision on the point is Lainlij v. Lajoun, supra, where the Court said at 1 T.T.R. 119:

"During this period of negotiation for position as iroij lablab, however, conditions have been and still are so fluid and uncertain that the court considers that the plaintiff Lainlij has not completely forfeited his rights, but they are suspended, and that if he again recognizes defendant Jiwirak as iroij lablab of these lands within a reasonable time, he is entitled thereafter to resume the exercise of his powers . . . ."

The same rule was applied to the recognition of an alab in Lazarus v. Likjer, 1 T.T.R. 129, where the Court said at 132:

"The court holds that the dri jerbal rights of the plaintiff Lazarus and his bwij are merely suspended, and that they may regain the future exercise of these rights by recognizing Likjer (or her successor) as alab . . . ."

Also to the same effect see the Appellate Division decision in the Marshalls Civil Action No. 1, relating to Jebrik's side of Majuro Atoll, Jatios v. Levi, 1 T.T.R. 578 at 583 and 588.

[3] There is another and perhaps even stronger reason for this Court to say that the most that happened was a temporary suspension of alab rights in Mwejenwa's older bwij rather than a permanent cancellation of those rights. This is derived from the testimony of the defendant's witness, the iroij erik Mujina, who said Mwejenwa had returned to Arno, apologized to the alabs and iroij lablab Jiwirak and was forgiven and restored to his alab interests. In view of the prior holding of this Court that Bina did not succeed to Jiwirak's title, the land is therefore under the jurisdiction of the iroij erik. His statement that Mwejenwa was restored to his alab interests and that the defendant, the younger sister, succeeded to those interests on Mwejenwa's death, is the equivalent, under the custom, of a land interest determination by the iroij lablab. The rule was first stated in Limine v. Lainej, 1 T.T.R. 107 at 112:

"Determinations made by an iroij lablab with regard to his lands are entitled to great weight, and it is to be supposed that they are reasonable unless it is clear that they are not."

Although plaintiff must fail as to her claim to alab interests in the land in question, she is entitled under the custom to dri jerbal interests under the defendant alab because of her membership in the smaller bwij.

Although the wato Buni was one of the seven listed as involved in this case the Court must note a possible challenge to the status of this wato which may be raised by the Government. There was evidence in Civil Action No. 44, Mwejenwa v. Lujim, that this land formerly belonged to the German Government-Jaluit Gesellschaft- and that consequently it came into the possession of the Alien Property Custodian of the Trust Territory Government, The question was not raised during the present trial and because the Government was not given notice of the claim of the parties nor made a party to the action, the Court declines to decide the status of Buni wato. Until such time as the question is finally settled this decision shall apply to this parcel. It is,

Ordered, adjudged and decreed:-

1. That defendant and all those claiming under her in her bwij are entitled to alab interests in the following watos in Tenak Island, Arno Atoll: Mebeltobok, Meloren, Mwetera, Teron, Lekin bowon, Wirotbwikor and Buni. The Buni interests are subject to any Government claim, not here determined.
2. No costs are allowed.
3. The defendant is granted 90 days within which to perfect an appeal.