7 FSM Intrm. 040-052

THE SUPREME COURT OF THE

FEDERATED STATES OF MICRONESIA

Cite as Luzama v. Pohnpei Enterprises Co.,

7 FSM Intrm. 40 (App. 1995)

[7 FSM Intrm. 40]

KOROPINO LUZAMA, ANDERA AUGUSTINE LUZAMA,

KERMAN YAMADA, ROY WILLIAM, WELSIN LUZAMA,

ROSENDO SANTIAGO, DOMINGO PELEP, UBER LIGORIO,

ROSALINDA NAKASONE, CASIMIRO PELEP and

Appellants-Defendants,

PONAPE ENTERPRISES CO., POHNPEI AGRICULTURE

DEVELOPMENT, INC., CAROLINE ISLAND

DEVELOPMENT CO. and HEIRS OF FLORENTINE ETSCHEIT,

Appellees-Plaintiffs.

APPEAL CASES NO. P11-1993, P12-1993, P13-1993, P14-1993, P15-1994, P16-1993, P17-1993, P18-1993, P19-1993, P20-1993 and P3-1994

Hearing: January 17, 1995

Decided: February 16, 1995

Hon. Richard H. Benson, Associate Justice, FSM Supreme Court

Hon. Lyndon L. Cornelius, Temporary Justice, FSM Supreme Court*

Hon. Alfred T. Goodwin, Temporary Justice, FSM Supreme Court**

*Chief Justice, Kosrae State Court, Lelu, Kosrae

**Senior Judge, Ninth Circuit Court of Appeals, United States

For the Appellants: Elizabeth Keys, Esq.

Micronesian Legal Services Corporation

Kolonia, Pohnpei FM 96941

For the Appellees: Daniel J. Berman, Esq.

Rush, Moore, Craven, Sutton, Morry & Beh

Honolulu, HI 96813-3862

[7 FSM Intrm. 41]

Jurisdiction ) Diversity

For purposes of diversity jurisdiction a corporation is considered a foreign citizen when any of its shareholders are not FSM citizens. Luzama v. Ponape Enterprises Co., 7 FSM Intrm. 40, 44 (App. 1995).

Jurisdiction ) Diversity

For purposes of diversity jurisdiction a joint venture is considered a foreign citizen when the parties to it are not FSM citizens. Luzama v. Ponape Enterprises Co., 7 FSM Intrm. 40, 44 (App. 1995).

Jurisdiction ) Diversity

For purposes of diversity jurisdiction it is the citizenship of the estate administrator that is to be considered for determining citizenship of a decedent's estate. Luzama v. Ponape Enterprises Co., 7 FSM Intrm. 40, 44 (App. 1995).

Parties cannot confer or divest a court of jurisdiction by stipulation or by assumption. Luzama v. Ponape Enterprises Co., 7 FSM Intrm. 40, 45 (App. 1995).

Constitutional Law ) Interpretation

Analysis of constitutional issues must begin with the words of the Constitution, and where the framers of the FSM Constitution drew upon the Constitution of the United States it may be presumed that phrases so borrowed were intended to have the same meaning given to them by the Supreme Court of the United States. Luzama v. Ponape Enterprises Co., 7 FSM Intrm. 40, 45 (App. 1995).

Constitutional Law ) Interpretation

A committee report that refers to language that is not in the Constitution and that accompanied a committee proposal that was killed by the Constitutional Convention cannot be relied upon to discover the real intent of the framers. At best it can only be used to show what was not their intent. Luzama v. Ponape Enterprises Co., 7 FSM Intrm. 40, 47 (App. 1995).

Constitution Law ) Interpretation; Jurisdiction ) Diversity

Where the constitutional language itself, following FSM precedents on constitutional interpretation, only requires minimal diversity for the national courts to have jurisdiction, and the constitutional journals do not reveal any intent to depart from the plain meaning of the constitutional language, there are no sound reasons why twelve years of FSM jurisprudence requiring only minimal diversity should be overturned. Luzama v. Ponape Enterprises Co., 7 FSM Intrm. 40, 48 (App. 1995).

Appeal and Certiorari ) Standard of Review; Civil Procedure ) Summary Judgment

A court must deny a motion for summary judgment unless the court, viewing the facts presented and the inferences made in the light most favorable to the non-moving party, finds there is no genuine issue as to any material fact. Thus if the appellants can show there was a genuine issue of material fact then the trial court's summary judgment must be reversed. Luzama v. Ponape Enterprises Co., 7 FSM Intrm. 40, 48 (App. 1995).

Domestic Relations ) Probate; Property; Property ) Certificate of Title

Heirs are those persons who acquire ownership upon someone's death. Thus the later issuance of a Certificate of Title to "heirs" confirms their earlier ownership of the property. Luzama v. Ponape Enterprises Co., 7 FSM Intrm. 40, 49 n.8 (App. 1995).

[7 FSM Intrm. 42]

Constitutional Law ) Due Process ) Notice and Hearing; Property ) Certificate of Title

Where parties had no claims to the land at the time the title was determined they were not entitled to notice. The lack of notice to them does not raise a genuine issue of material fact as to the validity of a Certificate of Title. Where a court proceeding determined title, the lack of a record of notice in the Land Commission files does not raise a genuine issue of material fact as to the validity of the Certificate of Title because the Land Commission did not conduct the hearing on title and so would not have any record of notice. Luzama v. Ponape Enterprises Co., 7 FSM Intrm. 40, 49 (App. 1995).

Judgments; Property

Where a judge's pretrial order states that the only issue for trial is the ownership of land within certain boundaries as described on a certain map later litigants cannot claim that the determination of title does not include land that they admit is within those boundaries. Luzama v. Ponape Enterprises Co., 7 FSM Intrm. 40, 49-50 (App. 1995).

Constitutional Law ) Judicial Guidance Clause;Custom and Tradition; Property ) Certificate of Title

FSM courts must consider customary law where relevant to a decision, but it is not error for a court to consider custom and find that it is not relevant to its decision because a Certificate of Title had been issued for the land. Luzama v. Ponape Enterprises Co., 7 FSM Intrm. 40, 50 (App. 1995).

Civil Procedure ) Res Judicata and Collateral Estoppel; Property ) Certificate of Title

While, as a general rule, res judicata applies only to parties, and their privies, to an earlier proceeding, a Torrens system land registration Certificate of Title is, by statute, prima facie evidence of ownership stated therein as against the world, and conclusive upon all persons who had notice and those claiming under them. As a general rule a Certificate of Title can be set aside only on the grounds of fraudulent registration. Luzama v. Ponape Enterprises Co., 7 FSM Intrm. 40, 50-51 (App. 1995).

Civil Procedure ) Res Judicata and Collateral Estoppel

Parties are precluded from raising any issues that were or could have been raised in a previous proceeding. Luzama v. Ponape Enterprises Co., 7 FSM Intrm. 40, 51 (App. 1995).

Property ) Certificate of Title; Property ) Public Lands

A Certificate of Title issued by a state land commission precludes a claim by the state that the land is public land. Luzama v. Ponape Enterprises Co., 7 FSM Intrm. 40, 51 (App. 1995).

Property ) Certificate of Title; Torts ) Trespass

A court need not decide whether a party who is being sued for trespass, and who does not claim ownership, may raise as an affirmative defense a challenge to the validity of a plaintiff's Certificate of Title issued under the Torrens land registration system when the issues raised by the defendant are insufficient to challenge the Certificate of Title. Luzama v. Ponape Enterprises Co., 7 FSM Intrm. 40, 51-52 (App. 1995).

RICHARD H. BENSON, Associate Justice:

These eleven consolidated appeals all arise from trial court orders granting the plaintiffs summary

[7 FSM Intrm. 43]

judgment and permanently enjoining the defendants from trespassing on the plaintiffs' land.1 The first ten cases are appealed from Justice Amaraich's summary judgment order of August 17, 1993, In re Parcel No. 046-A-01, 6 FSM Intrm. 149 (Pon. 1993), and the last one from a similar order of Justice Yinug's, Ponape Enterprises Co. v. Soumwei, 6 FSM Intrm. 341 (Pon. 1994). The defendants appealed. They question the trial court's jurisdiction and raise a number of other alleged errors. We find the trial court had jurisdiction, find no reversible error, and hereby affirm. Our reasoning follows.

II. Issues on Appeal

The defendants raise the following issues on appeal:

1. The defendants contend that the trial court lacked subject matter jurisdiction to hear these cases because its jurisdiction was based solely upon diversity of citizenship, FSM Const. art. XI, § 6(b), and complete diversity between the parties does not exist in these cases.

2. The defendants contend that the trial court erred by granting summary judgment because their claim of lack of notice as a challenge to the validity of the Etscheits' Certificate of Title was a genuine issue of material fact precluding summary judgment.

3. The defendants contend that the trial court erred by not considering the validity of Certificate of Title because the court decision it was based upon did not discuss boundaries, thereby not allowing the defendants to raise the legitimate defense that the land they occupied was different land, which would be a triable issue of fact precluding summary judgment.

4. The defendants contend the trial court failed to give proper weight to the relevance of custom when the defendants raised the luen wehi defense of customary land tenure.

5. The defendants contend that the trial court should not have applied the doctrine of res judicata to bar them from challenging the Certificate of Title because they were not parties to the lawsuit upon which the Certificate is based.

6. The defendants contend that the trial court erred when it ruled that res judicata barred the luen wehi defense because that issue had not been before the Trust Territory High Court, and that court's decision was based on laches.

These issues will be discussed in order.

III. Diversity Jurisdiction

The trial court's subject matter jurisdiction was based on diversity of citizenship. FSM Const. art. XI, § 6(b). The appellants' first contention is that the trial court did not have subject matter jurisdiction because there is not, in any of the eleven cases, complete diversity of citizenship between the parties. Complete diversity exists when none of the plaintiffs in a civil action hold the same citizenship as any defendant. The appellees contend that the court has subject matter jurisdiction when there is less than complete diversity of citizenship ) when any plaintiff has citizenship different from that of a defendant.

[7 FSM Intrm. 44]

The Parties and Their Citizenship

The plaintiffs-appellees are identical in all eleven cases. They are the Heirs of Florentine Etscheit, who are the alleged landowners, and Ponape Enterprises Co.(PEC), Pohnpei Agricultural Development, Inc. (PADI), and Caroline Island Development Co. (CIDC). "The legal Heirs of Florentine Etscheit" were issued a Certificate of Title for the land in question in 1983, by the Pohnpei Land Commission, following a decision of the appellate division of the Trust Territory High Court. PEC is a corporation wholly owned by a Japanese citizen. CIDC is a corporation with both citizen and non-citizen shareholders. PADI is a joint venture owned 50% by PEC and 50% by CIDC. In 1986 CIDC leased the land in question from Robert Etscheit, Jr., a naturalized citizen of Pohnpei, acting in his capacity as administrator of the Estate of Florentine Etscheit. PADI then leased the land from CIDC.

The eleven defendants-appellants are all individuals engaged in subsistence farming on the land in question, and who allegedly came upon the land sometime in 1992. All reside elsewhere. They only use the land to raise crops.

The defendants, with one possible exception,2 are all citizens of Pohnpei. The parties agree that plaintiffs PEC and CIDC are both foreign citizens because all or some of their owners are foreign citizens. We agree with the reasoning of Federated Shipping Co. v. Ponape Transfer & Storage (III), 3 FSM Intrm. 256, 259-60 (Pon. 1987) (for purposes of diversity jurisdiction a corporation considered foreign citizen when any of its shareholders not FSM citizens because such corporations statutorily required to obtain foreign investment permits and constitutionally barred from acquiring title to lands or waters in FSM), and conclude that PEC and CIDC are foreign citizens.3 PADI is a foreign citizen because both parties in the joint venture are foreign citizens. International Trading Corp. v. Hitec Corp., 4 FSM Intrm. 1, 2 (Truk 1989). The Heirs of Florentine Etscheit may be considered to have Pohnpei citizenship because the administrator of the Estate of Florentine Etscheit, Robert Etscheit, Jr., is a citizen of Pohnpei, Etscheit v. Adams, 5 FSM Intrm. 243, 246 (Pon. 1991) (citizenship of estate administrator is citizenship to be considered for diversity purposes), although the defendants base their argument of incomplete diversity on the assumption that some of the heirs are citizens of Pohnpei. The plaintiffs do not dispute the assertion that the parties are not completely diverse.

The appellants point to the self-executing nature of the jurisdictional grant in the FSM Constitution. They also point out its similarity to both the U.S. Constitution and the U.S. Judiciary Act of 1789. The appellants assert that the framers intended that the FSM constitutional grant of diversity jurisdiction follow the rule of complete diversity set out in Strawbridge v. Curtiss, 8 U.S. (3 Cranch) 267, 2 L. Ed. 435 (1806) (construing Judiciary Act of 1789), although they concede that the U.S. Constitution only requires minimum diversity. They contend that since complete diversity was a rule of such longstanding the framers of the FSM Constitution must have intended to adopt this rule because they did not indicate otherwise. They also contend that the court should follow the view "expressed" in Neimes v. Maeda Constr. Co., 1 FSM Intrm. 47, 52 (Truk 1982) concerning complete diversity rather than the view in In re Nahnsen, 1 FSM Intrm. 97 (Pon. 1982) and other cases that only minimum diversity was required by the Constitution.

[7 FSM Intrm. 45]

The appellees point out that the Neimes discussion of complete diversity was merely dicta because the issue was not raised by the parties who assumed that was the rule that would be applied. They rely on In re Nahnsen and the line of FSM cases which follow it for the rule of minimum diversity. It is these cases that the appellants ask the court to overrule.

This is the first time the issue of complete versus minimum diversity of citizenship has been argued before the appellate division. In United Church of Christ v. Hamo, 4 FSM Intrm. 95, 114-15 (App. 1989) we cited minimum diversity as the rule without discussion. The Neimes court had not squarely addressed the issue either, it only followed the parties' assumptions. However, parties cannot confer or divest a court of jurisdiction by stipulation (or by assumption). Federal Business Dev. Bank v. S.S. Thorfinn, 4 FSM Intrm. 367, 369 (App. 1990) (counsel may not, by agreement, confer jurisdiction upon a court that it does not have by law); Maruwa Shokai (Guam), Inc. v. Pyung Hwa 31, 6 FSM Intrm. 1, 4 (Pon. 1993) (parties cannot by stipulation turn maritime contract into non-maritime contract so as to divest court of its admiralty jurisdiction). The rule of minimum diversity has been followed in the FSM Supreme Court without exception since Nahnsen.

Analysis of constitutional issues must begin with the words of the Constitution. Constitutional Convention 1990 v. President, 4 FSM Intrm. 320, 325 (App. 1990). "[T]he framers of the FSM Constitution drew upon the Constitution of the United States [and] `it may be presumed that phrases so borrowed were intended to have the same meaning given to them by the Supreme Court of the United States.'" Tammow v. FSM, 2 FSM Intrm. 53, 57 (App. 1985) (quoting Jonas v. FSM, 1 FSM Intrm. 322, 327 n.1 (App. 1983)). The phrase granting diversity jurisdiction was obviously borrowed from the U.S. Constitution.4

The appellants do not dispute that the United States Supreme Court had earlier determined that the language in the U.S. Constitution only required "minimal diversity." See, e.g., State Farm Fire & Casualty v. Tashire, 386 U.S. 523, 531 & n.7, 87 S. Ct. 1199, 1203-04 & n.7, 18 L. Ed. 2d 270, 275-

[7 FSM Intrm. 46]

76 & n.7 (1967) (only minimal diversity needed for interpleader)5; Wichita R.R. & Light Co. v. Public Utilities Comm'n, 260 U.S. 48, 54, 43 S. Ct. 51, 67 L. Ed. 124, 128 (1922) (adverse co-citizen intervenor does not defeat diversity jurisdiction); Supreme Tribe of Ben-Hur v. Cable, 255 U.S. 356, 365-67, 41 S. Ct. 338, 341-42, 65 L. Ed. 673, 679 (1921) (in class actions plaintiff class may contain adverse co-citizens without destroying diversity jurisdiction); Barney v. Latham, 103 U.S. (13 Otto) 205, 213, 26 L. Ed. 514, 517 (1881) (under Removal Act of 1875 minimal diversity cases may be removed from state to federal court). The appellants contend, however, that the framers intended to adopt the longstanding complete diversity rule of the U.S. Judiciary Act of 1789 as interpreted by Strawbridge v. Curtiss, 8 U.S. (3 Cranch) 267, 2 L. Ed. 435 (1806) instead. They contend that the framers intended to apportion diversity cases with the states and that the logical way to do this would be to adopt the American rule where the federal courts assume jurisdiction over cases with complete diversity and the states have the rest. For support for this proposition they rely on the following passage in a committee report from the 1975 Constitutional Convention:

In addition to its exclusive jurisdiction, the Trial Courts of the national court

system would also have jurisdiction concurrent with state courts in cases . . .

between citizens of different states or cases involving Micronesian citizens and

foreign nations or citizens. It is the feeling of your Committee that some of these

cases could best be handled by state courts, and some by the national courts,

and that the national legislature would be in the best position to establish, and

from time to time adjust, criteria for apportioning such cases between the state

and national court system.

SCREP No. 49, II J. of Micro. Con. Con. 876, 879.

That reliance is entirely misplaced. The report does not indicate any intent that there should be complete diversity. Furthermore, this paragraph speaks about the concurrent jurisdiction to be granted to both the state and national courts in a proposed section 7(b). This committee report is dated October 25, 1975. It concerns Committee Proposal No. 30. The text of the section 7(b) of this proposal read:

(b) Trial Division of the Supreme Court. The Trial Division of the Supreme

Court shall have original and exclusive jurisdiction in cases affecting

ambassadors and other officials of foreign governments; in disputes between

the states of Micronesia; in cases in which the national government is a party

except where the ownership of land or any interest therein is at issue; and in

admiralty and maritime cases. The Trial Division shall have original jurisdiction

in cases arising under this constitution, national law or a treaty, and in disputes

between a state and a citizen of another state, between citizens of different

states, and between a state, or a citizen thereof, and a foreign state, citizen or

subject. In the event that original jurisdiction is concurrent between a state and

a national court, the court having jurisdiction in a particular case shall be

determined by national law. The jurisdiction of the Trial Division may be

exercised by other national courts as provided by law.

Committee Proposal No. 30, II J. of Micro. Con. Con. 933, 934-35 (emphasis added). This provision,

[7 FSM Intrm. 47]

however, does not appear in the Constitution. Nonetheless this is the provision that is referred to in the portion of SCREP No. 49 relied upon.

Thus that portion cannot carry the real intent of the framers. SCREP No. 49 accompanied Committee Proposal No. 30. II J. of Micro. Con. Con. 876, 933. Committee Proposal No. 30 starts on page 933 of the Journal. The relevant language on jurisdiction is on pages 934-35 and it does not resemble the text that appears in the Constitution. A check of the Constitutional Convention Status Table page 11, II J. of Micro. Con. Con. 1034, shows that Committee Proposal No. 30 (CP 030) was introduced on 10/25/75, accompanied by SCREP No. 49, dated 10/25/75, and passed first reading on the same date with no debate (see I J. of Micro. Con. Con. 413). At Second Reading on 10/27/75 all action on Committee Proposal No. 30 was deferred to 10/28/75 (see also I J. of Micro. Con. Con. 435). The final disposition of Committee Proposal No. 30 was that it was "filed" on 10/28/75. II J. of Micro. Con. Con. 1034.6

The proposal that was considered by the Constitutional Convention was Committee Proposal No. 24, Joint Committee Amendment No. 10, SD1. It read in pertinent part:

(b) The national courts, trial division of the Supreme Court, and state and

local courts have concurrent original jurisdiction in cases arising under this

Constitution, cases involving national law or treaties, and in disputes

between a state and a citizen of another state, between citizens of different

states, and between a state or a citizen thereof, and a foreign state, citizen,

II J. of Micro. Con. Con. 926. SCREP No. 58 and No. 59, dated October 31, 1975 and November 3, 1975 respectively, accompanied Joint Committee Amendment No. 10. SCREP No. 58 indicates that some of the provisions were taken from Proposal No. 24 and some were taken from Proposal No. 30 and some proposals were new. II J. of Micro. Con. Con. 885. SCREP No. 59 was adopted by the Constitutional Convention on November 4, 1975. I J. of Micro. Con. Con. 490. During the debate on Joint Committee Amendment No. 10 the above provision was amended to remove the concurrent original jurisdiction of the state and local courts and to leave the jurisdiction in section 6(b) concurrent between the national courts (to be established by law) and the trial division of the FSM Supreme Court only. The motion to amend was approved by 45 yes votes to one abstention. I J. of Micro. Con. Con. 492-93. See also Bank of Guam v. Semes, 3 FSM Intrm. 370, 373-77 (Pon. 1988) (history of section 6(b) at Constitutional Convention).

Thus under the final version, as approved by the Constitutional Convention, and ratified by the voters as part of the Constitution, the state and local courts are not granted any concurrent jurisdiction. The only concurrent jurisdiction found in subsection (b) is that between the Trial Division of the Supreme Court and the other national courts, none of which have yet been established.

[7 FSM Intrm. 48]

Thus the only possible conclusion that can be reached from the text of the Constitution and that text's "legislative history" as found in the Constitutional Convention journals is that it offers no support that the framers intended to adopt the statutory rule of complete diversity as a constitutional requirement. The constitutional language itself, following FSM precedents on constitutional interpretation, only requires minimal diversity and the constitutional journals do not reveal any intent to depart from the plain meaning of the constitutional language.7 Therefore there are no sound reasons why twelve years of FSM jurisprudence requiring only minimal diversity should be overturned.

IV. Trial Court's Alleged Errors of Law

The appellants contend that summary judgment should not have been granted because of the affidavit of counsel that there was no record of notice, prior to the issuance of the Certificate of Title, and the affidavits of the appellants that they had never received any notice, prior to the issuance of the Certificate, created a genuine issue of material fact as to the validity of the Certificate of Title that precluded summary judgment. The appellants contend that once the appellants presented credible evidence that no notice was given the appellees then had the burden to prove that it was. The appellants also contend that the trial court's failure to rule on a discovery motion was reversible error. The appellees respond that the appellants have not addressed the point that this is a trespass, and not a quiet title action.

A court must deny a motion for summary judgment unless the court, viewing the facts presented and the inferences made in the light most favorable to the non-moving party, finds there is no genuine issue as to any material fact. Adams v. Etscheit, 6 FSM Intrm. 580, 582 (App. 1994). Thus if the appellants can show the existence of a genuine issue of material fact then the trial court's summary judgment must be reversed.

The appellants' claims to the land date only to 1992. Appellee Heirs of Florentine Etscheit

[7 FSM Intrm. 49]

alleged ownership of the land dates from 1973 ) the date of Florentine Etscheit's death.8 The title determination process took place in Trust Territory High Court and following the court judgment, In re Etscheit's Estate, Civil Action No. 142-78 (Trust Territory High Court Aug. 26, 1980), aff'd sub nom., Nanmwarki v. Etscheit Family, 8 TTR 287 (App. 1982), the Land Commission issued the "legal Heirs of Florentine Etscheit" a Certificate of Title. Since the appellants had no claims to the land when the title determination process was taking place they were not entitled to notice. This claim is thus frivolous, and the lack of notice does not raise a genuine issue of material fact as to the validity of the Certificate.

The affidavit of counsel that there was no record of compliance with the notice required by statute in the Land Commission's fact also does not raise a genuine issue of material fact. There are stringent notice requirements the Land Commission must comply with before it may determine title at hearing. 67 TTC 110. However, title was not determined by a Land Commission hearing. It was determined by the Trust Territory High Court. The Certificate of Title was then issued by the Land Commission pursuant to a High Court decision as required by statute. 67 TTC 108(5). Therefore the lack of a record of notice in the Land Commission files does not raise a genuine issue of material fact because the Land Commission did not conduct the hearing on title so would not have any record of notice.

Lack of Boundaries in Court Determination

Appellants assert that the Trust Territory High Court determination of ownership was of Mpomp,9 which is a tract of uncertain boundaries, and only a small portion of what is now covered by the Etscheits' Certificate of Title. They contend that the trial court erred in not allowing the defendants to question the validity of the boundaries in the title certificate to show that there was a genuine issue of material fact whether the appellants were on land the High Court found to be owned by the Etscheits or on some other property. The appellants contend that the trial court should have referred the issue of boundaries to the Land Commission as was done in Wito Clan v. United Church of Christ, 6 FSM Intrm. 129, reh'g denied, 6 FSM Intrm. 291 (App. 1993). The appellants reply brief asserts that there are sufficient inconsistencies and ambiguities in the High Court decision as to raise a genuine issue of material fact as to the validity of the Certificate of Title.

The appellees submit, and the appellants do not rebut, that the trial judge's pretrial order established the boundaries of Mpomp. Land Commission Sketch 166-1 was submitted as Exhibit J in the Trust Territory High Court trial division. Judge Gianotti's pretrial order notified the parties that the court intended to use Sketch 166-1 as "Court's exhibits" and that "it is agreed that the only issue in this case is ownership of the land confined within the boundaries of Land Commission Sketch 166-1." Order In re Etscheit's Estate, Civil No. 142-78 (Trust Territory High Court Aug. 26, 1980). Additionally, the sketch itself, as prepared, is labeled or entitled "Etscheit Property Civil Action No. 142-78."

Thus the parties to Civil Action 142-78 were aware of the boundaries of the land to be covered by the quiet title action. It was thus part of the record before the High Court appellate division when

[7 FSM Intrm. 50]

the appeal was heard and part of the record in front of the Land Commission when the Certificate of Title was issued. The configuration of the land confined within the boundaries of Land Commission Sketch 166-1 is identical to the configuration of the land in Parcels numbered 046-A-01, 046-A-02, 046-A-03 and 046-A-04. Therefore the appellants have not raised a genuine issue of fact as to what land was covered by the Etscheits' Certificate of Title. Each of the appellants, when deposed, located on maps the land that they occupied at someplace within Parcel No. 046-A-02. Whatever uncertainty there may be as to the boundaries, it is certain that these appellants are within those boundaries.

Sketch 166-1, Judge Gianotti's pretrial order, and the depositions with attached maps were all before the trial division at the time the summary judgment motions were heard. Therefore the trial court did not err as a matter of law in finding that the issue of boundaries of Mpomp was not a genuine issue of material fact because the appellants all located themselves on the land confined within the boundaries of Sketch 166-1.

Failure to Give Proper Weight to Custom ) Luen Wehi

Relying on Wito Clan the appellants contend that the trial court failed to give proper weight to the Pohnpeian customary land tenure of luen wehi. Courts in the FSM must consider "customary law where relevant to a decision." Wito Clan, 6 FSM Intrm. at 132 (App. 1993). In their briefs the appellants do not explain the term luen wehi. They contend that the terms "luen wehi" and "public lands" are not interchangeable. Nevertheless it seems evident from their submissions that they consider luen wehi to be a type of public land, see, e.g., Defs.' Memorandum in Opp'n to Pls.' Motion For Summary Judgment at 2, Soumwei, Civ. No. 1993-003 (Oct. 22, 1993) ("the land being undeveloped `luen wehi' or public lands"), or at least land not privately owned, see, e.g., Answer para. 6, Luzama, Civ. No. 1992-137 (May 11, 1993) ("land is . . . `luen wehi' of Nett Municipality"); Transcript, Soumwei, Civ. No. 1993-003 Nov. 16, 1993) ("[i]t's a communal property").10 At oral argument the appellants stated that they were not the owners ) the sovereign owns ) and the state is the sovereign acting as trustee for the people.

We believe the trial court considered custom and found that it was not relevant to its decision because a Certificate of Title had been issued for the land. We cannot say that that decision was clearly erroneous.

Res Judicata as a Bar to Appellants' Challenge of Title

The appellants contend that the trial court erred in ruling that the doctrine of res judicata barred them from challenging title when they were not parties or privies to the Trust Territory High Court proceedings which resulted in the issuance of the Etscheits' Certificate of Title.

This claimed error is related to the claims about lack of notice and failure to give weight to custom. The defendants had no claim, and do not claim under someone who had a claim, to an interest in the land when title was determined, and thus had no right to notice. But they now seek to challenge the validity of a Torrens land registration Certificate of Title issued then. While, as a general rule, res judicata applies only to parties, and their privies, to an earlier proceeding, a Torrens system land registration Certificate of Title is, by statute, prima facie evidence of ownership stated therein as

[7 FSM Intrm. 51]

against the world, and conclusive upon all persons who had notice and those claiming under them. 67 TTC 117. As a general rule a Certificate of Title can be set aside only on the grounds of fraudulent registration. 66 Am. Jur. 2d Registration of Land Titles § 20 (1973).11

The appellants do not claim ownership. They have not overcome the prima facie evidence of the Etscheits' ownership. Appellants are precluded from litigating that issue here. We think it not clearly erroneous to allow a Certificate of Title to withstand a challenge in a summary judgment motion from persons who do not claim ownership.

Res Judicata as a Bar to Raising Issue of Luen Wehi

The appellants contend that the trial court erred when it ruled that the claim of luen wehi was barred by res judicata when that issue allegedly was not raised in the Trust Territory High Court proceedings which resulted in the issuance of the Etscheits' Certificate of Title.

This alleged error is also related to the alleged failure to give proper regard to custom. We are given two choices to characterize land subject to luen wehi. If luen wehi land is municipal ["public land"] or community land then it must have (or should have) been litigated in the Trust Territory High Court proceedings when the Nanmwarki and the Naniken asserted the traditional claims of their municipality. It is unclear whether it was actually raised. See Test. Max Iriarte (Nanmwarki of Nett) Trial Transcript at 27-29, Civ. No. 142-78 (Nov. 1, 1980). Parties are precluded from raising any issues that were or could have been raised in a previous proceeding. United Church of Christ v. Hamo, 4 FSM Intrm. 95, 106 (App. 1989). These appellants were not parties to the Trust Territory High Court action (and could not have been parties because they had no claim at that time). However, if luen wehi are municipal or community lands, the Nett traditional leaders, who were parties to the High Court action, would or should have raised that issue then. Thus that issue is now precluded. If this luen wehi is state public land12 then the issuance of a Certificate of Title by the State Land Commission precludes a claim by the state.

The trial court had subject matter jurisdiction over these cases because diversity of citizenship existed. The language of the Constitution only requires incomplete or minimal diversity for jurisdiction to exist, and the constitutional journals and legislative history do not reveal any contrary intent of the framers. The court therefore has no sound reason or authority to overrule twelve years of consistent FSM Constitutional jurisprudence.

We do not rule that a party who is being sued for trespass, and who does not claim ownership, may raise as an affirmative defense a challenge to the validity of a plaintiff's Certificate of Title issued under the Torrens land registration system. We only rule that if an alleged trespasser may raise such a defense the issues these defendants have raised here in challenge of the Etscheits' Certificate of Title

[7 FSM Intrm. 52]

are insufficient to preclude summary judgment by the trial court.

Whether the boundaries covered by the Etscheits' Certificate of Title have been accurately and conclusively determined is not a genuine issue because all of the appellants admit to being located within the boundaries of the land on Sketch 166-1 which is the area covered by the Etscheits' Certificate of Title. The remaining appellants' claims are precluded by the Trust Territory High Court proceedings and the Land Commission's issuance of a Certificate of Title. Customary land claims could or were considered during that proceeding and the current parties had advanced no claims to Mpomp at that time.

The judgments of the trial court are accordingly affirmed and the consolidated appeals are hereby dismissed.

1. Plaintiffs originally also sought damages. At some point in the proceedings this requested relief was abandoned.

2. Louis Soumwei is Chuukese. It is unclear whether he is a citizen of Pohnpei or of Chuuk. If he were a citizen of Chuuk complete diversity would exist in his case. In light of our holding on jurisdiction this makes no difference.

3. Both of these corporations, as well as the joint venture, PADI, have foreign investment permits.

4. Compare the relevant (emphasized) language of both Constitutions:

The judicial Power shall extend to all Cases, in Law and Equity . . . )to Controversies between two or more States;)between a State and Citizens of another State;)between citizens of different States,)between citizens of the same State claiming Lands under Grants of different States, and between a State, or Citizens thereof, and foreign States, Citizens or Subjects.

U.S. Const. art. III, § 2 (emphasis added).

The national courts, including the trial division of the Supreme Court, have concurrent original jurisdiction . . . in disputes between a state and a citizen of another state, between citizens of different states, and between a state or a citizen thereof, and a foreign state, citizen, or subject.

FSM Const. art. XI, § 6(b) (emphasis added)

5. The minimal diversity rule for interpleader, while not as longstanding as the complete diversity rule, has been around for quite some time. See, e.g., United States v. Sentinel Fire Ins. Co., 178 F.2d 217, 224-25 (5th Cir. 1949); Railway Express Agency, Inc. v. Jones, 106 F.2d 341, 344 (7th Cir. 1939) ("not necessary that there be complete diversity of citizenship among all the adverse claimants") (class action defended by bill of interpleader).

6. See also I J. of Micro. Con. Con. 451. "Delegate Ismael: Mr. President, I move that the Convention file Committee Proposal No. 30. Floor leader Tman seconded, and the motion carried. The Convention filed Committee Proposal No. 30 and it was, thus, killed." Id.

7. Additionally, the Constitutional Convention of 1990 proposed amending the jurisdiction provisions of article XI of the Constitution to grant the state courts concurrent jurisdiction in diversity cases and almost exclusive jurisdiction in land-related cases. The proposal read:

The national courts, including the trial division of the Supreme Court, and the state courts have concurrent original jurisdiction in disputes between a state and a citizen of another state, between citizens of different states, and between a state or a citizen thereof, and a citizen or subject of a foreign state. Notwithstanding any provision in this Constitution, the national courts, including the trial division of the Supreme Court, shall not have such jurisdiction in cases where an interest in land is at issue or the relief sought affects an interest in land, and may only exercise such jurisdiction where the parties are states.

J. of FSM Con. Con. 680 (1990). This proposed amendment was not approved by the voters when it was submitted to them in July, 1991. Even this proposal, if adopted, probably would not require complete diversity, although it does contain language about state courts having concurrent jurisdiction. The Constitution provides processes for its amendment. FSM Const. art. XIV. The Court cannot amend the jurisdictional provisions of the Constitution to require complete diversity, especially when the voters, to whom the Constitution gives the final say in amending the Constitution, have not.

8. The trial court's opinion states that the Etscheits have owned the land in fee simple since 1983. In re Parcel 046-A-01, 6 FSM Intrm. at 155. This is a (harmless in this case) error of law. They have owned the land since the death of Florentine. Heirs are those persons who acquire ownership upon someone's death. Black's Law Dictionary 651 (5th ed. 1979). Thus the issuance of a Certificate of Title in 1983 confirmed the earlier ownership by the Heirs of Florentine Etscheit.

9. Also spelled Mwpwomwpw. Sometimes also spelled Umwpwomwpw.

10. Chief Justice Santos seems to hold that "luhwen wei" land is municipal land (originally under the Nanmwarki or traditional king of each "municipality"), some of which got away from the control of the municipalities and became public land. Declaratory Judgment at 28-33, Pohnpei v. Damarlane, PCA No. 25-91 (Pon. Sup. Ct. Mar. 14, 1991).

11. We also note that section 176 of the Compact of Free Association confirms that final judgments in civil cases rendered by Trust Territory courts remain in effect subject to the constitutional power of FSM courts to grant relief from judgment in appropriate cases. The appellants' challenge of the validity of the Etscheits' Certificate of Title is a collateral attack upon a final judgment in a civil case in a Trust Territory court.

12. There are public lands set aside in Pohnpei for homesteading for agricultural purposes. See 67 TTC 401-404.