POHNPEI SUPREME COURT REPORTS
VOL. 1
[1P. S.
Ct. R 110]
HILARIO KEELEN and MASAKO AKINAGA,
Appellants
v.
LUIS SALONS,
Appellee
HIGH COURT - CIVIL ACTION No. 9-83
TRIAL DIVISION OF THE PONAPE SUPREME COURT
JANUARY 22, 1985
Appeal from Ponape Land Commission Determination of Ownership entered in favor of the Ponape Public Lands Authority as trustee for the people of the State of Ponape, and Louis Salons as the rightful entryman to the land involved. Appellants who were not parties of record at the Ponape Land Commission's hearing appealed, among other things, on grounds that they had no notice of the hearing leading to the Commission's determination. The Trial Division of the Pohnpei Supreme Court, Edwel H. Santos, Chief Justice remanded the case to the Pohnpei Land Commission for a hearing de novo.
1. Appeal and Error - Land Commission Proceedings- Determination of Ownership - Right of Appeal
A person who did not appear before the Land Registration Team or the Land Commission was not a party of record in ownership proceedings and therefore had no right to appeal.
2. Land Registration Team and Land Commission Proceedings-Notice- Statutory Requirements
Where in the Land Commission's certification of records there was no indication that notice of proceedings before the Land Registration Team and the Land Commission was posted "on the land involved", nor was there a "return of service" made to prove service as required by statute, the statutory requirements for notice were not fully satisfied (67 TTC 110 (1)(a), 110(c)(i))
[1 P. S.
Ct. R 111]
3. Land Registration Team and Land Commission - Proceedings - Rules
Statute mandates that the Land Commission and the Land Registration Teams shall be guided in their proceedings by the Trust Territory Rules of Civil Procedure and Rules of Evidence (67 TTC 112)
4. Trust Territory Rules of Civil Procedure - Notice - Return of Service
The filing of return of service of notice is to serve as an evidentiary proof that due process notice was given.
5. Common Law - Res judicata
The doctrine of res judicata rests upon the ground that the party to be affected, or some other with whom he is in privity, has litigated, or had an opportunity to litigate, the same matter in a former court of competent jurisdiction, and should not be permitted to litigate it again to the harassment and vexation of his opponent.
6. Appeal and Error - Courts - Jurisdiction
An appeal that is timely filed invokes the jurisdiction of the court.
7. Appeal and Error - Land Commission's Determination -Tolling of Statutory Time Limit
The 120 days statutory time limit to file an appeal in a Land Commission's determination begins to run when the Land Commission issues its Determination of Ownership, rather than when the Land Registration Team makes its adjudication. (67 TTC 115)
Counsel for Appellants: Matt Mix
Special Counsel for Appellee before Trust Territory High Court: Joseph Phillip
Special Counsel for Appellee before Pohnpei Supreme Court: Maketo Robert
[1 P. S.
Ct. R 112]
EDWEL H. SANTOS, Chief Justice
INTRODUCTION
1. This is an appeal from the Ponape Land Commission's Determination of Ownership entered on November 24, 1982, "in favor of Ponape Public Lands Authority as trustee for the people of the State of Ponape" concerning a parcel of land designated as Parcel No. 065-A-22, as shown on the Division of Lands and Surveys Property Plat No. 065-A-02 of October 26, 1976, situated at Lenger Island, Nett Municipality. The said Determination of Ownership notes the appellee Luis Salons as being the rightful entryman to the property involved in this appeal. Appellants not being parties of record at the Ponape Land Commission's hearing, brought this appeal asserting the following as grounds of the appeal:
"(a) Appellants had no actual notice of the hearing which led to this determination.
(b) Appellant Hitario Keelen who had developed the parcel, not appellee. [sic]
(c) Appellant Hilario Keelen was granted permission to enter and develop the parcel by the Trust Territory government in 1954.
(d) The Ponape State Public Lands Authority knew of appellant's claim to the parcel but did not convey this
[1P.S.Ct.R.113]
information to the Ponape State Land Commission.
(e) Appellee does not meet the time requirement set forth by law to become an entryman."
2. Appellants filed their notice of appeal on March 14, 1983, together with a motion to allow the taking of additional evidence. On October 26,1983, Appellee filed a combined motion opposing the taking of additional evidence and to dismiss the appeal asserting that "notice of hearing given by the Ponape Land Commission was made pursuant to section 10 of Title 67 of the Trust Territory Code and that the determination of the Land Commission is supported by documentary evidence pursuant to State Law No. 2L-43-83."
3. The Trial Division of the High Court by Associate Justice Miyamoto held a hearing on October 26, 1983, and entered an "Order Granting Appellants' Motion to Allow the Taking of Additional Evidence (Trial De Novo)", thusly denying appellee's motion to dismiss.
4. On November 28,1984, appellee by his special counsel filed another motion to dismiss the appeal for want of jurisdiction. Hearing on this motion was held November 29, 1984, with Mr.
[1 P. S.
Ct. R 114]
Martin F. Mix representing the appellants and Mr. Maketo Robert (specially appearing) on behalf of the appellee present with the appellee.
ASSESSMENT
5. This appeal presents two basic issues namely,(1) whether the appellants, not being parties of record at the Land Commission's hearing, have the right to appeal, and (2) whether this court has the jurisdiction to hear the appeal.
[1] 6. The Trust Territory High Court's order granting appellants' motion to allow the taking of additional evidence in a trial de novo, entered on October 26,1983, pretty well took care of the issue of standing to appeal, though the order did not address the issue directly. Technically, the appellants are without standing to appeal. The statute establishing the Land Commission and Land Registration Teams states in part: "A determination of ownership by a land commission shall be subject to appeal by any, party aggrieved thereby. . ." (67 TTC 115). The issue of standing to appeal had been discussed by the Trust Territory High Court in numerous cases, and its conclusion boils down to "a person who did not appear before the Land Registration Team or the Land
[1 P. S.
Ct. R 115]
Commission was not a party of record in ownership proceedings and therefore had no right to appeal." Arriola v. Arriola, 6 TTR 287 (Tr. Div. 1973), Turou v. Etibek, 6 TTR 514 (Tr. Div. 1974). Despite these two decisions, Justice Miyamoto granted appellant's motion for taking of additional evidence as the most appropriate remedy as the order reads: "Based on the motion and opposition thereto and supporting affidavits, and the argument presented, and good cause appearing, the court grants the Motion to Allow the Taking of Additional Evidence, but in order to do substantial justice in the case, the court orders a trial de novo..."
7. We need not discuss what constitutes good cause as noted in the order, supra, but for the benefit of all concerned and to serve as a reminder for the Land Commission in preparing records for an appeal, it is necessary that sufficient proof be shown in the record in relation to "notice" of ownership proceedings before the Land Registration Team and the Land Commission.
8. In the instant case, there is insufficient proof of notice in the Land Commission's certified records. In explaining this fact, the Land Commission, in its certification of records, added a caveat as follows:
[1 P. S.
Ct. R 116]
"B) The Commission's public notice for hearing was announced over the public radio and posted at various Public meeting places two (2) months prior to the hearing and wherein, the Public was advised that any person or persons not mentioned in the said notice may contact the Public Lands Authority, who shall in turned [sic] will informed [sic] the Commission."
[2-4] 9. The Land Commission's notice as shown on the records certified by it clearly indicates that the statutory requirements for notice (67 TTC 110) were not fully satisfied. There was no indication that notice was posted "on the land involved" (67 TTC 110 (1) (a)), nor was there "return of service" made to prove such service (67 TTC 110 (c) (i)). 67 TTC 112 mandates that the Land Commission and the Land Registration Teams shall be guided by the Trust Territory Rules of Civil Procedure and Rules of Evidence. Rule 3 (h) of the Trust Territory Rules of Civil Procedure requires filing of return of service of notice, this is to serve as an evidentiary proof that due process notice was given.
10. The decision of the High Court as it relates to the appellants' right to appeal in this case is res judicata. This court upholds that decision and need not redetermine the issue here.
[1 P. S.
Ct. R 117]
[5] 11. The common law doctrine of res judicata has been explained in numerous Trust Territory High Court cases as "The doctrine of res judicata rests upon the ground that the party to be affected, or some other with whom he is in privity, has litigated, or had an opportunity to litigate, the same matter in a former court of competent jurisdiction, and should not be permitted to litigate it again to the harassment and vexation of his opponent." Gibson v. Owan Lineage, 5 TTR 103 (App. Div. 1970), Joseph v. Ludwig, 4 TTR 354 Jr. Div. 1969).
[6-7] 12. The second issue is whether this court has jurisdiction to hear the appeal. This issue was propounded by the appellee asserting that the time of appeal began to toll from the date when the Land Registration Team made its adjudication, which is November 3, 1982. The Land Commission's Determination was issued on November 24,1982. If the time of appeal began to run when the Land Registration Team made its adjudication, the statutory appeal period-120 days-would have lapsed on March 3,1983. Appellants filed their notice of appeal on March 14,1983, thus simple mathematics would show that appellants' notice of appeal was filed eleven (11) days late in relation to the date of the
[1 P. S.
Ct. R 118]
Land Registration Team's adjudication. However, the 120-days statutory limit to file an appeal in a Land Commission's determination begins to run when the Land Commission issues its Determination of Ownership (67 TTC 115), rather than when the Land Registration Team makes its adjudication. Thusly, this appeal is timely filed.
13. The parties had reconciled this fact with the court records and both counsel expressed that, given the circumstances of the case, remanding the case to the Pohnpei 1Land Commission for a hearing de novo is the most preferred disposition of this appeal. The Court concurred with the agreement of counsel, and accordingly it is Ordered, Adjudged and Decreed
1. Trust Territory High Court Civil Action No. 9-83 (Keelen et al. v. Salons) relating to a Parcel of Land designated as Parcel No. 065-A-22, as shown on the Division of Lands and Survey Property Plat No. 065-A-02 of October 26, 1976, is hereby remanded to the Pohnpei Land Commission for a hearing , de novo.
[1 P. S.
Ct. R 119]
2. Pohnpei Land Commission is to ensure that due notice of its hearing de novo be provided to the parties named in this action, the Pohnpei Public Lands Authority, and all potentially interested parties; such notice of hearing to comply with 67 TTC 110
3. Pohnpei Land Commission is to proceed with the new hearing authorized in this Order, following the statutory requirement of Pohnpei State Law 2L-43-80, as amended
RECOMMENDATION
It is recommended that the Pohnpei Land Commission and the parties involved attempt to dispose of this long-standing claim no later than April 30, 1985.
Footnote:
1. The State Constitution which took effect November 8,1984, changes the name Ponape to "Pohnpei".