9 FSM Intrm.089-095

Canon 3E(1) of the Code of Judicial Conduct, as adopted by Kosrae State Code, section 6.201, requires that a justice be disqualified in certain cases, including those cases where the judge is within the third degree relationship to one of the parties. The term . third degree relationship. is defined in the Code of Judicial Conduct and does not include cousin. Sigrah v. Kosrae State Land Comm'n, 9 FSM Intrm. 89, 92 (Kos. S. Ct. Tr. 1999).

Disqualification under the Code of Judicial Conduct based upon the justice's family relationship to a party is not mandatory when the party is a cousin because the third degree relationship does not include cousin. So when there are no specific allegations of the justice's partiality and the justice has no personal interest in the outcome, a motion to recuse in a matter involving a cousin may be denied. Sigrah v. Kosrae State Land Comm'n, 9 FSM Intrm. 89, 92 (Kos. S. Ct. Tr. 1999).

In a land case, the Kosrae State Court may take judicial notice of the documents in the file of a Trust Territory land case to clarify if the judgment in that case concerned the land in this case. Sigrah v. Kosrae State Land Comm'n, 9 FSM Intrm. 89, 93 (Kos. S. Ct. Tr. 1999).

When a person, who has applied for registration of land included within the boundaries of an area on which hearings are held and who, based upon his application, was, as required by 67 TTC 110, entitled to be served notice of the hearings, was not served notice of the hearings and was also not served a copy of the Determination of Ownership, there was no substantial compliance with the notice requirements specified by law. Sigrah v. Kosrae State Land Comm'n, 9 FSM Intrm. 89, 93 (Kos. S. Ct. Tr. 1999).

As a general rule, 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; but when a person has asserted a claim to the land and was not given notice of the registration proceedings as required by law, the Determination of Ownership and the Certificate of Title for that land is not conclusive as upon him. Sigrah v. Kosrae State Land Comm'n, 9 FSM Intrm. 89, 93 (Kos. S. Ct. Tr. 1999).

The Land Commission is required by statute to give actual, and not constructive notice for hearings to all interested parties, and is required to post notice on the land, at the municipal office and principal meeting place at least thirty days in advance of the hearing. Failure to provide notice to an interested party is violation of due process. Sigrah v. Kosrae State Land Comm'n, 9 FSM Intrm. 89, 93 (Kos. S. Ct. Tr. 1999).

In land cases, notice requirements must be followed. Failure to serve actual notice is a violation of due process of law and contrary to law. Sigrah v. Kosrae State Land Comm'n, 9 FSM Intrm. 89, 94 (Kos. S. Ct. Tr. 1999).

Both res judicata and laches are affirmative defenses and must be asserted in responsive pleading. If affirmative defenses are not raised in the answer or other responsive pleading, the defenses are waived. Sigrah v. Kosrae State Land Comm'n, 9 FSM Intrm. 89, 94 (Kos. S. Ct. Tr. 1999).

It is appropriate to grant summary judgment to the non-moving party when there are no material facts at issue and when the non-moving party is entitled to summary judgment as a matter of law. Sigrah v. Kosrae State Land Comm'n, 9 FSM Intrm. 89, 94 (Kos. S. Ct. Tr. 1999).

The policy reasons supporting actual notice of hearings to land claimants, as required by law, are very important. There is a substantial interest in assuring that land disputes are decided fairly because of the fundamental role that land plays in Kosrae and throughout Micronesia. Sigrah v. Kosrae State Land Comm'n, 9 FSM Intrm. 89, 94-95 (Kos. S. Ct. Tr. 1999).

In land cases, notice requirements shall be followed. Failure to serve actual notice on a claimant is a denial of due process and violation of law. Due to the violations of the statutory notice requirement, Determinations of Ownership and Certificates of Title will be set aside as void. Sigrah v. Kosrae State Land Comm'n, 9 FSM Intrm. 89, 95 (Kos. S. Ct. Tr. 1999).

On August 21, 1998, Defendant Kosrae State Land Commission ("KSLC") filed a Motion for Summary Judgment. Defendant Ilai Abraham filed an Affidavit in Support of Defendant KSLC's Motion for Summary Judgment on September 15, 1998. Plaintiff filed an Opposition to Defendant KSLC's Motion on September 21, 1998. Plaintiff also filed a Motion for Recusal of the Acting Chief Justice on September 21, 1998. Defendant KSLC filed a Response to Plaintiff Motion to Recuse on September 22, 1998. On September 29, 1998, Plaintiff filed a Brief on the Issue of Granting Summary Judgment to a Non-Moving Party. On October 28, 1998, Plaintiff filed a Motion to Amend the Complaint and on November 11, 1998, Plaintiff filed a Motion for Leave to File Cross-Motion for Summary Judgment. Defendant KSLC filed an Opposition to Plaintiff's Motion to Amend the Complaint on January 25, 1999.

A hearing was held on September 28, 1998 on Plaintiff's Motion to Recuse and on Defendant KSLC's Motion for Summary Judgment. Plaintiff was represented by Sasaki George, MLSC. Defendant KSLC was represented by Debra Blum, Office of the Attorney General. Clanry Likiaksa appeared on behalf of Defendant Ilai Abraham and Patrick Olter appeared for Joince Nena. At the hearing, the Court denied the Plaintiff's Motion to Recuse. The Court also heard arguments on Defendant KSLC's Motion for Summary Judgment from all parties and took KSLC's Motion for Summary Judgment under advisement.

This Order sets forth the reasoning for the Court's denial of the Plaintiff's Motion to Recuse, and the ruling and reasoning on Defendant KSLC's Motion for Summary Judgment. This Order issues the ruling on Plaintiff's Motions to Amend the Complaint and Leave to File Cross-Motion for Summary Judgment.

Plaintiff's Motion for Recusal is based upon the family relationship between the Acting Chief Justice and Defendant Joince Nena. The Acting Chief Justice and Defendant Nena are first cousins. The conduct of Kosrae State Court justices, including disqualification of a justice, is governed by the Code of Judicial Conduct, as adopted by the Kosrae State Code, Section 6.201. The Code of Judicial Conduct, Canon 3E(1) requires that a justice be disqualified in certain cases, including those cases where the judge is within the third degree relationship to one of the parties. The term "third degree relationship" is defined in the Code of Judicial Conduct. The third degree relationship does not include cousin. Therefore, disqualification under the Code of Judicial Conduct, based upon family relationship of the justice to a party, is not mandatory in this case. Plaintiff has not presented any specific allegations of partiality of the Acting Chief Justice in this matter. The Acting Chief Justice has no personal interest in the outcome of this matter. Therefore, Plaintiff's Motion to Recuse is denied.

This case is a suit against the Kosrae State Land Commission regarding parcels 068K09 and 068K20. Plaintiff claims that he asserted his claim to the land included in parcel 068K09 when he registered parcel 068K08 with the KSLC in 1982. Parcels 068K08 and 068K09 are parcels in the upper, inland portion of Finef. Finef is divided into two regions: the lower waterside portion below the road to Malem and the upper inland portion above the road.

decisions were made on Civil Action 305, which affected the lower, waterside portion of Finef only. The reported cases do not clearly specify the land included in the judgments for Civil Action 305. Therefore, it is appropriate to look to the Court file for Civil Action 305, which contains documents which clarify the applicability of the judgments in Civil Action 305. Two documents clarify the land included in the judgments for Civil Action 305: the "agreed sketch" and the February 26, 1976 memo from Judge Hefner. Based upon these documents, this Court concludes that Civil Action 305, as reflected in the two Trust Territory decisions, affected only the lower portions of Finef only. There is no controversy regarding the title to these lower, waterside parcels. This Court takes judicial notice of this Trust Territory case, Civil Action No. 305, as reported in 4 TTR 215 and 4 TTR 231.

This case involves a portion of the upper inland portions of Finef, now designated as 068K09 and 068K20. When the Plaintiff originally registered his portion of Finef, he assumed that all of his claim would be included in one parcel: 068K08. Plaintiff claims that he was not notified that the upper inland portion of Finef was later divided by the Land Commission into two different parcels: 068K08 and 068K09. Plaintiff's registration of his claimed land in Finef included the land in both parcels 08 and 09.

Plaintiff Joseph Sigrah was not notified of the preliminary inquiry or the formal hearing for parcel 09. Plaintiff was also not served a copy of the Determination of Ownership for parcel 09. Defendant KSLC has admitted that it did not serve notice on the Plaintiff for the preliminary inquiry or the formal hearings concerning parcel 068K09. (KSLC memo at 4). The KSLC did serve upon the Plaintiff a "Notice of Determination of Ownership," which contained references to determinations made on parcels 068K08 and 068K09. However, the actual Determination of Ownership for parcel 09 was not served upon the Plaintiff.

The Trust Territory Code, 67 TTC 110 specifies the manner of service upon interested parties. Plaintiff was entitled to be served notice of the hearings on parcel 09 based upon his application for registration of land, which included land within the boundaries of both parcels 08 and 09. Plaintiff was not served notice, as required by 67 TTC 110. As a result of KSLC's failure to serve notice on Plaintiff for the hearings, Plaintiff was also not served a copy of the Determination of Ownership for parcel 09. There was no "substantial compliance" with the notice requirements specified by law. See Palik v. Kosrae, 5 FSM Intrm. 147 (Kos. S. Ct. Tr. 1991).

Because Certificates of Title are prima facie evidence of ownership as therein stated against the world, a court is required to attach a presumption of correctness to them when considering challenges to their validity or authenticity. Etscheit v. Nahnken of Nett, 7 FSM Intrm. 390, 394 (Pon. 1996). As a general rule, 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. Luzama v. Ponape Enterprises Co., 7 FSM Intrm. 40, 50-51 (App. 1995). In this case, Plaintiff did assert a claim to the land included in parcel 09. Plaintiff was not given notice of the proceedings as required by law for parcel 09. Therefore, the Determination of Ownership and the Certificate of Title for parcel 09 is not conclusive as upon the Plaintiff.

The case of Palik v. Henry, 7 FSM Intrm. 571 (Kos. S. Ct. Tr. 1996) addressed the issue of notice requirements to land claimants. In the Palik case, the Court held that the Land Commission is required by statute to give actual, and not constructive notice for hearings to all interested parties, and is required to post notice on the land, at the municipal office and principal meeting place at least thirty days in advance of the hearing. Failure to provide notice to an interested party is violation of due process. Palik, 7 FSM Intrm. at 577. As in this case, the Land Commission in the Palik matter were subject to the Trust Territory Code requirements, Title 67, Chapter 3. The hearings in Palik were held in 1976 to 1979, prior to Kosrae becoming a State. In Palik, the parties had a boundary dispute

between 2 adjacent parcels of land. The Land Commission failed to give notice to each adverse party of the preliminary inquiry and the formal hearings and failed to serve the Determination of Ownership on the adverse party.

The Palik Court concluded that due to the failure of the Land Commission to give notice to the adverse claimants, both judgments of the Land Commission must be set aside as void. In land cases, notice requirements must be followed. Failure to serve actual notice is a violation of due process of law and contrary to law. In the Palik case, due to violations in the notice requirement, both judgments of the Land Commissions were held to be void. Palik, 7 FSM Intrm. at 577.

The Court in Palik, also considered argument regarding "constructive notice". The Court looked at 67 TTC 110(1), which uses the term "shall" with respect to notice requirements. The Court held that notice must be given in all the methods specified. Provisions requiring actual notice apply and constructive notice was not enough. The Palik Court vacated the Determinations of Ownership, and remanded the matter to the Land Commission to take actions consistent with the opinion, including as necessary, conduct a preliminary inquiry as to both parcels, formal hearings as to both parcels and issue Determinations of Ownership as to both parcels.

This Court finds the decision in Palik v. Henry to be persuasive and sound, and therefore applies its reasoning to this case. Accordingly, the Court finds that the statutory requirements for notice were not satisfied for parcel 09 because the Plaintiff was not given notice of the hearings, despite KSLC's knowledge that the Plaintiff had made a claim for land included within the boundaries of parcel 09. Since the Determination of Ownership for parcel 09 was not served on the Plaintiff, the time period for appeal has not begun to run. Even assuming that Plaintiff did receive constructive notice of the Determination of Ownership for parcel 09, under Palik v. Henry, constructive notice is not enough to meet statutory requirements. Similar to the facts in Palik, a suit alleging violations of due process and law is appropriate in this case.

Defendant KSLC argues that res judicata and laches should be applied to bar the Plaintiff's claims. Both res judicata and laches are affirmative defenses and must be asserted in responsive pleading. Kos. Civ. R. 8(c) and 12(b). If affirmative defenses are not raised in the answer or other responsive pleading, the defenses are waived. No affirmative defenses were raised in KSLC's answer filed on November 11, 1993. Therefore, the affirmative defenses of res judicata and laches are have been waived by Defendant KSLC. Furthermore, as discussed earlier in this Order, res judicata is not applicable to parcel 09, since the judgment in Civil Action 305 applied only to the lower, oceanside parcels of Finef and not to the upper inland parcels at issue here.

Under the authority of Truk Continental Hotel, Inc. v. Chuuk, 6 FSM Intrm. 310 (Chk. 1994), it is appropriate to grant summary judgment to the non-moving party in this case - the Plaintiff. Defendant KSLC has admitted that they failed to serve actual notice for the preliminary inquiry and the formal hearing upon Plaintiff with respect to parcel 09. There is no dispute regarding this fact and there are no other material facts at issue in this case. Under the authority of Palik v. Henry and Truk Continental Hotel, Inc. v. Chuuk, Plaintiff is entitled to judgment as a matter of law for KSLC's failure to serve actual notice and failure to comply with statutory notice requirements. Plaintiff is entitled to summary judgment as a matter of law.

the fundamental role that land plays in Kosrae and throughout Micronesia. In land cases, notice requirements shall be followed." Failure to serve actual notice on a claimant is a denial of due process and violation of law. Palik, 7 FSM Intrm. at 577. Due to the violations of the statutory notice requirement, the Determination of Ownership and Certificate of Title for parcel 068K09 are now set aside as void. Likewise, any Determination of Ownership or Certificate of Title that has been issued for parcel 068K20 (formerly a portion of parcel 068K09) is also set aside as void.

This matter is now remanded to the Kosrae State Land Commission to hold preliminary inquiries and formal hearings for both parcels 068K09 and 068K20, and to issue determinations of ownership for both parcels. The Land Commission may refer to and consider all of the testimony and other evidence which was received at the prior inquiries and hearings held with respect to parcels 09 and 20. The Land Commission is ordered to complete its hearings and issue determinations of ownership for parcels 068K09 and 068K20 by September 30, 1999.

Until title is determined and finalized, the status of all occupants of parcels 068K09 and 068K20 remains unchanged. The Plaintiff may not interfere with the use of or occupancy of parcels 068K09 and 068K20 until such time as the title is finalized, following the hearings held by the Land Commission, determinations made consistent with this Order, and disposition of appeals, if any.