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Marshall Islands -  Index of Marshall Islands Law Reports - July 1982 - June 1993

MARSHALL ISLANDS LAW REPORTS

VOLUME 1

JULY 1982 TO JUNE 1993

CITE AS 1 MILR

TABLE OF CASES REPORTED

	Page
Abner v. Jibke	3
Alex; Langijota v.	164
Alik; Marshall Islands Development Bank Inc. v.	146
Balos; Republic of the Marshall Islands	31, 43, 84
Balos v. Tennekone	93
Bokmej v. Lang	53
Brown v. Newclear Claims Tribunal of the Marshall Islands, The	205
Bulale v. Reimers	200
Carolson Commercial Corporation v. Sawej Brothers Company	20
Clanton v. Riklon	101, 111, 116
David; Tobeller v. Defender of the Fund v. Rongelap Local Distribution Authority, The	49
Defender of the Fund v. Rongelap Local Distribution Authority, The	230
Ebot v. Jablotok	8
Enos v. Republic of the Marshall Islands	39
Gushi Brothers Company v. Hawaiian Flour Mills	185
Hawaiian Flourmills; Gushi Brothers Company v.	185
Hazzard; Jerilong v.	54
Heine v. Radio Station WSZO	86
High Court of the Republic of the Marshall Islands; Kabua v.	23
Holly Elaine; Northup Boat Repair v.	130
Jablotok; Ebot v.	8
Jeja v. Lajikam	153
Jejo v. Lobo	90, 172
Jerilong v. Hazzard	54
Jibke; Abner v.	3
Kabua v. High Court of the Republic of the Marshall Islands	23
Kabua v. Kabua	60, 193
Kabua; Kabua v.	60, 193
Kabua v. Tennekone	28
Kabua; Trust Territory Social Security System Board v.	51
Klim; Navarro v. Kabua	121
	57
Korok v. Lok	80
Laakbel; Lejeman v.	153
Lang; Bokmej v.	53
Langjita v. Alex	164
Langjita; Mwedriktok v.	126
Laniture-Bulele; Piamon v.	91
Lejeman v. Laakbel	80
Leon v. Republic of the Marshall Islands	35
Lobo; Jejo v.	90, 172
Lok; Korok v.	57
Lokkon v. Nakap	45
Lorennij v. Muller	18
Majuro Atoll Local Government; Marshall Islands Development Corporation v.	159
Marshall Islands Development Corporation v. Majuro Atoll Local Government	159
Marshall Islands National Development Bank Inc. v. Alik	146
Muller; Lorenij v.	18
Mwedriktok v. Langijota	126
Nakap; Lokkon v.	45
Navarro v. Kim	121
Nitijela Dissolution Act of 1981, In Re	1
Northup Boat repair v. Holly Elaine	130
Nuclear claims Tribunal of the Marshall Islands The; Brown v.	205
Peter, Zaion v.	176
Piamon v. Laniture Bulele	91
Radio Station WSZO; Heine v.	86
Reimers; Bulale	200
Republic of the Marshall Islands v. Balos	31, 43, 84
Republic of the Marshall Islands v. Sakaio	136
Republic of the Marshall Islands v. Timothy	211
Republic of the Marshall Islands; Enos v.	39
Republic of the Marshall Islands; Leon v.	35
Riklon; Clanton v.	101, 111, 116
Rongelap Atoll Local Distribution Authority, The Defender of the Fund v.	230
Rongelap Atoll Local Distribution Authority, The; Samson v.	221
Sakaio; Republic of the Marshall Islands v.	136
Samson v. Rongelap Atoll Local Distribution Authority, The	221
Sawej Brothers Company; Carolson Commercial Corporation v.	20
Tennekone; Balos v.	93
Tennekone; Kabua v.	28
Timothy, In Re Matter of	216
Timothy; Republic of the Marshall Islands v.	211
Tobeller v. David	49
Trans Atoll Service Corporation; USA Small Business Administration v.	33
Trust Territory Social Security System Board v. Kabua	51
USA Small Business Administration v. Trans Atoll Service Corporation	33
Zaion v. Peter	176
Topics Appearing in this Digest A
Abatement of Actions
Appeal and Error
Appeal to the High Court
Appearances
Arrest
Attorneys
B
Broadcast Communications
C
Civil Procedure
Civil Procedure, Rules of
Clerks of Courts Collateral Estoppel
Constitution
Constitutional law
Contempt
Courts
Criminal law
Criminal Procedure
Custom
Customary Law and Traditional Practice
E
Elections and Voting
Evidence
I
Immigration and Emigration
J
Judges
Judgments
Jurisdiction
L
Laches
Land Management
Land Rights
M
Mandamus
Maritime Liens
Mortgages
N
Nitijela
Nuclear Claims Tribunal
P
Prohibition, Writ of
Public Offices
R
Real Property
Res Judicata
S
Statutes
T
Torts
Trial Assistants
Trust Territory Courts Decisions
W
War Claims Act
Writs

A

ABATEMENT OF ACTIONS

Nature and Grounds

A second suit will be abated by a first only if there are the same parties, the same rights asserted, and the same relief prayed for, which must be founded on the same facts or essential basis. Clanton v. Riklon, 1 MILR 116.

"Same" as used in stating and applying principles of abatement does not mean "identical" clauses of action and relief sought. it means the "essential basis" must be the same. Clanton v. Riklon, 1 MILR 116.

APPEAL AND ERROR

Assignment of Errors

Objections

When error is claimed in receipt of evidence or in any other ruling by the trial court, it is counsel's duty to protect his record, and preserve the question for appellate review, by timely objection. Lokkon v. Nakap, 1 MILR 45.

Cross Appeal

In the absence of a timely filed cross appeal, the Supreme Court will not rule upon a claimed error of the High Court raised in the brief of the Appellee. Marshall Islands Development Corporation v. Majuro Atoll Local Government, 1 MILR 159.

Decisions Reviewable

Decisions on Appeal to High Court

An Appeal as of right from any final decision of the high Court in the exercise of its appellate jurisdiction will lie only if the High Court certificates that the case involves a substantial question of law as to the interpretation or effect of any of the provision of the Constitution. Clanton v. Riklon 1 MILR 101.

The filing of an appeal in the manner provided by the present Rules of Appellate Procedure sufficiently invokes the power of the Court to determine whether jurisdiction lies under any of the three provisions of Article VI, s.2 of the Constitution to review a decision of the High Court made in the exercise of the High Court's appellate jurisdiction. Clanton v. Riklon, 1 MILR 101.

The Supreme Court's discretion to grant, or indeed to order up, an appeal pursuant to Article VI, �2(2)(c) of the Constitution appears to be unfettered, but exercising discretion imports a reasoned, mature, and responsible exercise of judicial authority. Clanton v. Riklon, 1 MILR 101

Finality of Determination

An order declining to certify a matter tot he Tribunal Rights Court is not a final appealable order. Bokmej v. Lang, 1 MILR 53.

Under Article VI, �2(2) of the Constitution of the Marshall Islands, an appeal may be taken to the Supreme Court only from any final decision of the High Court, as of right, or from any final decision of any court in the discretion of the Supreme Court. Piamon v. Laniture-Bulele, 1 MILR 91.

An Order for Possession issued by the High Court in an eminent domain proceeding is not a final order and is not appealable. Republic of the Marshall Islands v. Balos, 1 MILR 31.

Nuclear Claims Tribunal and Special Tribunal

The Supreme Court has tentatively concluded that probably it should not entertain an appeal from the Nuclear Claims Tribunal or Special Tribunal unless it appears likely that the action appealed from suffered from one or more of the defects specified in � 17(7)(a) through (I) of the Marshall Islands Administrative Procedures Act 1979, 6 MIRC Ch. 1. Defender of the Fund v. Rongelap Atoll Local Distribution Authority, The, 1 MILR 230.

Nuclear Claims Special Tribunal

The Supreme Court's current tentative view is that an appeal from a final determination of a Nuclear Claims Special Tribunal should not be entertained unless it suffers from one or more of the defects specified in the Marshall Islands Administrative Procedures Act 1979, �� 17(7)(a) through (I). Samson v. Rongelap Atoll Local Distribution Authority, The. 1 MILR 22 1.

Questions Reviewable

The Supreme Court cannot decide on appeal a question or claim not raised or asserted in the court below. Jeja v. Lalikam, 1 MILR 153.

Tribunals Subject to Review

Section 6(3)of the Marshall Islands Nuclear Claims Tribunal Act (1987), as amended, clearly speaks in the disjunctive, permitting the Supreme Court to entertain an appeal from the final determination of the Tribunal or a Special Tribunal. It does not authorize a single appeal from both a final determination of the Special Tribunal and the determination of the Tribunal declining to review it. Samson v. Rongelap Atoll Local Distribution Authority, The, 1 MILR 221

Dismissal

Grounds for Dismissal

Failure to timely pay estimated cost of transcript does not affect jurisdiction to hear appeal, but may be grounds for dismissal. Korok v. Lok, 1 MILR 57.

Failure to include a concise statement of the questions presented. in the notice of appeal, is grounds for dismissal. Korok v. Lok, 1 MILR 57.

Rule 20(a) provides that failure of appellant to comply. with the rules after Filing notice of appeal is ground for dismissal of the appeal. Lorenij v. Muller, 1 MILR 18.

Disqualification of Attorney

Standard of Review

The Standard of Review of a court's ruling on a motion for an attorney's disqualification is whether the ruling was an abuse of discretion. Kabua v. Kabua, 1 MILR 60.

Findings of Fact

Clearly Erroneous

A finding of fact is clearly erroneous when review of the entire record produces a definite and firm conviction that the court below made a mistake. Zaion v. Peter, 1 MILR 176.

Mootness

An appellate court should retain jurisdiction in the face of mootness when the matter involves a recurring controversy of great public interest. Heine v. Radio Station W.S.Z.O., 1 MILR 86.

Nature and Form of Remedy

An appeal is on the record. Neither enlargement of the grounds for complaint nor the presentation of additional evidence nor  a hearing do novo is encompassed within the ordinary meaning of appeal. Clanton v. Riklon, 1 MILR 101.

Parties

Amicus Curiae

The function of a friend of the court is to assist in assuring that the court is fully advised. He is expected to and usually does take an adversary position. Clanton v. Riklon, 1 MILR 111.

Procedure for Obtaining Review

Notice of Appeal 

The notice of appeal must identify the errors claimed. Jerilong v. Hazzard, 1 MILR 54.

The notice of appeal must contain a "concise statement of the questions presented by the appeal". The Court may decline to bear an appeal where it cannot be determined from the notice of appeal what the alleged error was. Abner v. Jibke, 1 MILR 3.

The Court may decline to hear an appeal where it cannot be determined from the notice of appeal what the alleged error was. Bulale v. Reimers, 1 MILR 200.

Notice and Filing

Rule 3 of the Rules of Appellate Procedure provides that "only questions set forth in the notice of appeal or fairly comprised therein will be considered by the court". Lokkon v. Nakap, 1 MILR 45.

Timely filing of the notice of appeal is necessary for the appellate court to have jurisdiction to hear the appeal. Republic of the Marshall Islands v. Balos, 1 MILR 84.

Rule 4 of the Appellate Rules of Procedure and 6 TTC � 352 require an appeal to be filed within thirty (30) days. Timely filing is jurisdictional. Jejo v. Lobo, 1 MILR 90.

Payment of Fees

Rule 16 of Appellate Rules of Procedure allows thirty (30) days from service of notice of estimated cost of transcription for appellant to make payments Lorennij v. Muller, 1 MILR 18.

Questions Reviewable

Matters as to which no objection was made at trial will not be considered on appeal. Ebot v. Jablotok. 1 MILR 8.

Record and Proceedings Not in Record

Appeals are on the record, without reference to current circumstances, other than those that render the appeal moot or otherwise justify departure from consideration of the record alone. Samson v. Rongelap Atoll Local Distribution Authority, The, 1 MILR 221.

Review

Discretionary Matters

Whether to grant a motion to set aside a default judgment is within the discretion of the trial court. Abuse of discretion is the standard of review. Trust Territory Social Security System Board v. Kabua, 1 MILR 51.

Findings of Fact

Appellate courts will not interfere with findings of the trial court which are supported by credible evidence. Ebot v. Jablotok, 1 MILR 8.

Findings of fact of the High Court in trials before it shall not be set aside by the Supreme Court unless clearly erroneous. Lokkon v. Nakap, 1 MILR 45.

Findings of fact by the High Court are not to be set aside by the Supreme Court unless found to be clearly erroneous. Mwedriktok v. Langijota, 1 MILR 126.

Findings of fact are reviewed to determine if they are clearly erroneous. Zaion v. Peter, 1 MILR 176.

Harmless Error

Errors by the court below are not grounds for an appellate court to disturb a judgment unless refusal to do so would be inconsistent with substantial justice. Abner v. Jibke, 1 MILR 3.

Improper admission of evidence is not g-rounds for reversal if it appears there is sufficient evidence to justify the decision, independently of the evidence to which objection was made. Bulale v. Reimers, 1 MILR 200.

Questions of Fact

An appellate court must refrain from reweighing the evidence and must make every reasonable presumption in fever of the trial court's decision. Northup Boat Repair v. Holly Elaine, 1 MILR 130.

Scope and Extent

An appellate court cannot rule on the merits of a question that was neither presented to, nor decided by, the officer, body or court appealed from. Clanton v. Riklon, 1 MILR 101.

Standard of Review

The standard for Supreme Court review of a Finding by the Nuclear Claims Tribunal that the decision of a Special Tribunal did not involve a matter of public importance would be de novo if it is a mixed question of law and fact or clearly erroneous if it is a question only of fact. Samson v. Rongelap Atoll Local Distribution Authority, The, 1 MILR 221.

Appellate court has a duty to make every reasonable presumption in favor of the correctness of the decision of the lower court. Ebot v. Jablotok, 1 MILR 8.

Abuse of discretion is standard of review of trial court's declining to grant a continuance and allowing a trial assistant to sit at counsel table with appellee's counsel. Ebot v. Jablotok, 1 MILR 8.

Findings of fact are reviewed to determine if they are clearly erroneous. Jejo v. Lobo, 1 MILR 172.

A finding of fact is clearly erroneous when the entire record produces a definite and firm conviction that the trial court made a mistake. Jejo v. Lobo, 1 MILR 172.

The standard for Supreme Court review of the action of the Nuclear Claims Tribunal in declining to exercise its discretion in fever of reviewing the decision of a Special Tribunal is abuse of discretion. Samson v. Rongelap Atoll Local Distribution Authority, The, 1 MILR 221.

Matters of law are reviewed de novo. Jejo v. Lobo, 1 MILR 172.

APPEAL TO THE HIGH COURT

Decisions of Chief Electoral Officer

Reviews by the High Court of the decisions of the Chief Electoral Officer pursuant to 2 MIRC Ch. 1, � 8 1 (1 ) are performed by the High Court in the exercise of its appellate jurisdiction. Clanton v. Riklon, 1 MILR 101.

APPEARANCE

Distinction Between General and Special Abolished

The provision of Rule 12(b) of the Marshall Islands Rules of Civil Procedure, that defenses or objections are not waived by joinder with other defenses or objections, abolished the distinction between general and special appearances. Gushi Brothers Company v. Hawaiian Flour Mills, 1 MILR 185.

ARREST

Criminal Charges

Duty to Advise of Right to Counsel

The duty to advise arrested persons of their right to counsel does not obligate the police to persuade an accused that he needs counsel, but simply to advise of his right to the assistance of counsel. Republic of the Marshall Islands v. Sakaio, 1 MILR 136.

ATTORNEYS

Disqualification

Opposing Former Client

Where the cause of action or matters involved in a former suit are substantially related to the present action, an attorney who represented a client in that former suit should not represent his adversary in the present action. Kabua v. Kabua 1 MILR 60.

Code of Professional Responsibility

Disciplinary Rule 7-104 clearly proscribes negotiations by any lawyer with another person who is represented by counsel without first obtaining the permission of that person's lawyer. Kabua v. Kabua, 1 MILR 60.

Communicating With Other Counsel's Client

In determining whether an attorney should be disqualified because of an alleged violation of Disciplinary Rule 7-104, three competing interests must be balanced: (1) the client's interest in being represented by counsel of its choice; (2) the opposing party's interest in a trial free from prejudice due to disclosures of confidential information; and (3) the public's interest in the scrupulous administration of justice. Kabua v. Kabua 1 MILR 60.

Privileges, Disabilities, and Liabilities

Requirement to Associate Local, Licensed Co-counsel

Absent a duly adopted universal rule to that effect, conditioning an attorney's right to appear before the Nuclear Claims Tribunal upon his associating local, licensed co-counsel, requires that the attorney be accorded due process. Brown v. Nuclear Claims Tribunal of the Marshall Islands, The 1 MILR 205.

Suspension and Disbarment

Complaints

An order of the Nuclear Claims Tribunal referring an attorney to the Marshall Islands Standing Committee on Professional Conduct is not appealable. Brown v. Nuclear Claims Tribunal of the Marshall Islands, The 1 MILR 205.

B

BROADCAST COMMUNICATIONS

Candidates Programs

Regulations

35 TTC � 5 1 requires that "free access" be given to any candidate for public office, and that any "program ... shall be broadcast as submitted without any preview or censorship". 35 TTC � 52 provides that each station may promulgate rules which limit the duration of programs. Heine v. Radio Station W.S.Z.O., 1 86.

C

CIVIL PROCEDURE

Motions

Continuance

A motion for continuance is addressed to the sound discretion of the court. Lokkon v. Nakap, 1 MILR 45.

Summary Judgment

Summary judgment is determined on the basis of the record, including affidavits. Unsworn statements of counsel will not be considered. USA Small Business Administration v. Trans Atoll Service Corporation, 1 MILR 33.

CONSTITUTIONAL LAW

Constitutional due process in contempt proceedings requires that the defendant be given reasonable notice of the charges and opportunity to be heard. Balos v. Tennekone, 1 MILR 93.

CONTEMPT

Nature and Elements

Contempt is civil in nature if sanctions are remedial and conditional upon compliance and is criminal if punitive and unconditional. Balos v. Tennekone, 1 MILR 93.

COURTS

Supreme Court Jurisdiction Article VI, � 2(2) of the Constitution provides that an appeal lies only from a final decision of the High Court or any court. Republic of the Marshall Islands v. Balos, 1 MILR 43.

Traditional Rights Court

Qualification of Judges

After issues referred to the Traditional Rights Court have been tried and decided, it is too late to object to the qualifications of the judges. Jeja v. Lajikam, 1 MILR 153.

CRIMINAL LAW

Statutes

Construction

31 MIRC Ch. 1, 5 and 38 are clear in their intent and purpose in describing criminal conduct and thus said statutes, and the Information based on said statutes, met the "due process" test of Article 11, � 4(4) of the Marshall Islands Constitution. Republic of the Marshall Islands v. Timothy, 1 MILR 211.

MIRC Ch. 1, � 70 does not deprive the Supreme Court of jurisdiction in an appeal of a criminal conviction merely because the sentence is vacated pursuant to the terms of the statute prior to the conclusion of the appeal. Republic of the Marshall Islands v. Timothy, 1 MILR 211.

CRIMINAL PROCEDURE

Pleas

The accused may not be called upon to plead at a preliminary hearing. 32 MIRC Ch. 1, � 40. Republic of the Marshall Islands v. Sakaio, 1 MILR 136.

Before a plea of guilty is accepted, the trial court must ascertain from the accused's own statements in court that he is voluntarily making the plea and understands the nature and general effect of the plea. Republic of the Marshall Islands v. Sakaio, 1 MILR 136.

Withdrawal of Guilty Plea

Withdrawal of a plea of guilty should be allowed when the court cannot conclude that it was given advisedly and without fear or ignorance. Republic of the Marshall Islands v. Sakaio, 1 MILR 136.

Record

Rules 2b(1) and 17b(1) of the Marshall Islands Rules of Criminal Procedure impose on the trial court the duty to make a record which is more than merely a summary of the proceedings. Republic of the Marshall Islands v. Sakaio, 1 MILR 136.

The duty to make a proper record of the proceedings is not discretionary. Republic of the Marshall Islands v. Sakaio, 1 MILR 136.

Rights of the Accused

Advice of Rights

The official at a preliminary hearing is under an affirmative duty to advise an accused during such hearing of his right to the assistance of counsel. Republic of the Marshall Islands v. Sakaio, 1 MILR 136.

Waivers

Awareness and Competence

Waiver of the right to counsel must be knowingly and affirmatively made by an accused competent and completely aware of the right being waived and must appear on the record. Republic of the Marshall Islands v. Sakaio, 1 MILR 136.

CUSTOM

Distribution of Alap Share of Land Rentals

The amounts and timing of distributions of the alap's share among the members of his bwij entitled thereto is in the discretion of the atop. Cello v. Logo, 1 MILR 172.

Factual Inquiry

Every inquiry into custom involves two factual determinations first, is there a custom with respect to the subject matter of the inquiry; and, if so, second, what is it? Zaion v. Peter, 1 MILR 176; Jejo v. Logo, 1 MILR 172.

CUSTOMARY LAW AND TRADITIONAL PRACTICE

Distribution of Land Use Payments

Allocating equal thirds of payments for land use and in lieu of copra to the iroij lablab, alap and dri jerbal is consistent with Marshallese practice. Mwedriktok v. Langijota, 1 MILR 126.

E

ELECTIONS AND VOTING

Conduct of Elections

Recounts

The Chief Electoral Officer must be persuaded that there is a substantial possibility that the election result would be affected by a recount, or he must reject a petition for a recount. Clanton v. Riklon, 1 MILR 101.

Voters Eligibility

Challenges

Failure to obtain a ruling on the qualifications to vote of an absentee voter who votes at a special polling place, prior to that voter's ballot being accepted and tallied, defeats a challenge later made. Clanton v. Riklon, 1 MILR 111.

Challenge could be made at the special polling place or when the Chief Electoral Officer examines absentee voters' affidavits. Clanton v. Riklon, 1 MILR 111.

The Chief Electoral Officer is not required to refer to the High Court a challenge to the rights to vote of a class of voters, as distinguished from the right to vote of a single identified individual. Clanton v. Riklon, 1 MILR 111.

EVIDENCE

Hearsay

Exceptions Statements by Persons Incapable of Testifying

Section 31, Evidence Act 1986, sets forth circumstances in which statements by persons incapable of testifying may be received in evidence. Bulale v. Reimers, 1 MILR 200.

Presumptions

The presumption always is that officials have done what the law requires. Clanton v. Riklon. 1 MILR 101.

Weight and Sufficiency

Judgment of the trial court will not be reversed for paucity of evidence unless said judgment is "clearly erroneous". Republic of the Marshall Islands v. Timothy, 1 MILR 211.

I

IMMIGRATION AND EMIGRATION

Removal or Deportation

Due Process Requirements

The overwhelming weight of authority holds that an alien, once he has entered a country, is indeed entitled to due process of law before he may be detained and deported. Navarro v. Kim, 1 MILR 121.

Section 4(10) of Article 11 of the Constitution requires that a person be afforded the protection of procedural due process before he is detained. Navarro v. Kim, 1 MILR 121.

J

JUDGES

Disqualification to Act

Article VI, � 1(6) of the Constitution and � 67 of the Judiciary Act 1983 prohibit a judge from taking part in a decision of any case in which he is disabled by any conflict of interest. Kabua v. Kabua, 1 MILR 193.

At common law a judge was not disqualified merely by reason of relationship to an attorney in the cause before him. Kabua v. Kabua, 1 MILR 193.

JUDGMENT

Conclusiveness and finality

In general

A judgment is final notwithstanding fees and costs have not been settled. Republic of the Marshall Islands v. Balos, 1 MILR 84.

In General

Judgment may be entered only upon a record sufficient to support it. Marshall Islands National Development Bank Inc. v. Alik, 1 MILR 146.

Absent a stipulation that an agreement is valid, the High Court must, before rendering judgment on an agreement, find that it is valid under contract law and has not been superseded by any subsequent agreement. Marshall Islands National Development Bank Inc. v. Alik, 1 MILR 146.

Res Judicata

Determinations by Land Title Officers

Trust Territory Office of Land Management Regulation No. 1 provided sufficient procedural safeguards to hold administrative determinations thereunder to be res judicata as to persons who participated in the proceedings and those in privity with them. Langijota v. Alex, 1 MILR 164.

JURISDICTION

All Writs

The constitutional grant of power to each court to issue all writs, in Article VI, � 1(2), confers original jurisdiction on the Supreme Court to issue writs inappropriate cases. Kabua v. Kabua, 1 MILR 193.

The constitutional grant of appellate jurisdiction carries with it all the common law writs necessary to the proper exercise of appellate jurisdiction and does not require an additional grant of power to issue all writs. Kabua v. Kabua, 1 MILR 193.

Section 63 of the Judiciary Act of 1983, 27 MIRC Ch. 2, underscores the Supreme Court's constitutional power to issue writs in the first instance. Kabua v. Kabua, 1 MILR 193.

Challenges

It is unnecessary for a defendant to abstain from asserting other defenses while at the same time attacking jurisdiction over his person. Gushi Brothers Company v. Hawaiian Flour Mills, 1 MILR 185.

Waiver of Objection

If it is clear that the objection has been preserved, neither going to trial after a challenge to jurisdiction has been overruled nor going to trial after it has been upheld, but proper service has not yet been effected, constitutes a waiver of the objection. Gushi Brothers Company v. Hawaiian Flour Mills, 1 MILR 185.

L

LACHES

Discretionary

Whether Teaches bars an action depends upon the facts and circumstances; the decision to apply Teaches is primarily left to the discretion of the trial court Langijota v. Alex 1 MILR 164.

Requirements

To apply Teaches, the court must find (1) lack of diligence by the party against whom the defense is asserted and (2) prejudice to the party asserting the defense. Langijota v. Alex, 1 MILR 164.

LAND MANAGEMENT

Regulation No. 1

Finality of Determinations

Courts will not be bound by the finality provisions of Land Management Regulation No. 1. Ebot v. Jablotok, 1 MILR 8.

LAND RIGHTS

Alab

Powers and Obligation

An alab has no authority to unilaterally and without notice cut off the inheritance rights of her bwij. Tobeller v. David, 1 MILR 49.

It is contrary to custom for an alab to change rights and responsibilities with respect to land without any reference to the iroij or anyone else. Lejeman v. Laakbel, 1 MILR 80.

Alab Rights

Marshallese customary pattern provides for matrilineal descent of land rights. Lokkon v. Nakap, 1 MILR 45.

Custom

Possession or use of land does not, in itself, convey any rights in the land under the custom. Abner v. Jibke, 1 MILR 3.

Iroij lablab

Decisions

The determinations of iroij are presumed to be reasonable unless it is clear that they are not. Abner v. Jibke, 1 MILR 3.

Marjinkot Lands

In order to change rights in Marjinkot lands, in absence of consent, good cause must be shown. Abner v. Jibke, 1 MILR 3.

M

MANDAMUS

Requirements

For a writ of mandamus to issue there must be a clear showing of the existence of a nondiscretionary duty mandated by law, a default in the performance of that duty, a clear right to have the duty performed, and a lack of any other sufficient remedy. Kabua v. Kabua, 1 MILR 193.

MARITIME LIENS

Enforcement of Laches

Absence of a vessel from home waters operates to relieve the lienor, to some extent, from laches; but the question in each case against a subsequent owner who acquired in good faith and without notice is whether the high degree of diligence in the enforcement of lien rights has been shown. Northup Boat Repair v. Holly Ermine, 1 MILR 130.

Whether Laches applies in a given case depends upon the circumstances of the case and is primarily addressed to the trial court's discretion. Northup Boat Repair v. Holly Elaine, 1 MILR 130.

Allocation of Costs

Trial court has discretion to allocate wharfage charges and costs of government custody of vessels among lienor claimants and holders of mortgages as it thinks appropriate, but portion allocable to lienor who established a lien should be charged against proceeds of sale of the vessels. Northup Boat Repair v. Holly Elaine, 1 MILR 130.

MORTGAGES

Construction and Operation

Substitution of New Mortgagor

A substitution of the primary obligor does not invalidate or necessarily subordinate the priority of the lien on the security. Northup Boat Repair v. Holly Elaine, 1 MILR 130.

N

NITIJELA

Powers and Procedures

Article IV, � 12(2) of the Constitution provides for automatic dissolution on the thirtieth day of September in the fourth year after the year in which the last preceding general election was held. Nitijela Dissolution Act of 1981, In Re, 1 MILR 1.

The proviso in Article � 12(2) of the Constitution applies only in the event of a general election pursuant to Article IV, � 13(3) that occurs before the thirtieth day of April. Nitijela Dissolution Act of 1981, In Re, 1 MILR 1.

NUCLEAR CLAIMS TRIBUNAL

Powers and Duties

Authority to Halt Distribution of Borrowed Funds

The Tribunal has broad authority with respect to local distribution authorities, including the power to halt distribution by a local distribution authority of borrowed funds representing an advance against future proceeds. Defender of the Fund v. Rongelap Atoll Local Distribution Authority, The, 1 MILR 230.

Review of Special Tribunal's Ruling

Under � 31 (g) of the Marshall Islands Nuclear Claims Tribunal Act (1987), as amended, a refusal of the Tribunal to review the conclusions of a Special Tribunal would be based either upon (a) a finding by the Tribunal that the decision did not involve a matter of public importance or (b) the Tribunal declining to exercise its discretion in favor of reviewing the decision. Samson v. Rongelap Atoll Local Distribution Authority, The, 1 MILR 221.

Review of Transfers of Funds

If a sound basis exists for the Tribunal to invalidate an assignment or proposed assignment of funds, independent of the question whether the purpose of the assignment is consistent with the Section 177 Agreement, the Tribunal has the duty and power to make that determination. Defender of the Fund v. Rongelap Atoll Local Distribution Authority, The, 1 MILR 230.

Rules and Procedures

Public Notice of Assignments of Funds

Section 12(d) of the Nuclear Claims Tribunal Act and  404 of the regulations adopted by the Tribunal require each local distribution authority to put all proposed assignments of future proceeds in writing and give public notice of the same at least 75 days prior to consummation of the proposed assignment. Defender of the Fund v. Rongelap Atoll Local Distribution Authority, The, 1 MILR 230.

Public Notice of Regulations

The Tribunal does not have to give advance public notice of, or to have a hearing on, proposed. regulations. The regulations become effective upon adoption by affirmative vote of the Chairman and one member of the Tribunal. They are thereafter to be published and made available to the public in printed form. Defender of the Fund v. Rongelap Atoll Local Distribution Authority, The, 1 MILR 230.

P

PROHIBITION, WRIT OF

Nature and Grounds

In order for the Court to issue these prerogative, discretionary writs, the petitioner must show that respondent is about to exercise judicial power, that the exercise of such h power is unauthorized by law, and that it would result in injury for which there is no other adequate remedy. Kabua v. Tennekone, 1 MILR 28.

The power to issue writs is discretionary and it is sparingly exercised. Kabua v. Tennekone, 1 MILR 28.

PUBLIC OFFICERS

Presumptions

Duties Performed

Absent evidence to the contrary, a court can presume that Trust Territory officials did their duty; that is, did the things a Regulation required them to do. Langijota v. Alex, 1 MILR 164.

R

REAL PROPERTY

Kitre (gift land)

Conditions of Gift

The husband who makes the kitre can attach conditions to it. Bulale v. Reimers, 1 MILR 200.

Succession to Rights

It is proper and normal for kitre land to pass to the bwij of the recipient. Bulale v. Reimers, 1 MILR 200.

Land Classification

Moijinkot

Rights in Morjinkot land, a gift from an Iroij as reward for bravery in battle, remain in the bwij and are inherited in the maternal line. Tobeller v. David, 1 MILR 49.

RES JUDICATA

Requirements

Application of the doctrine of res judicata requires both identity of parties and identity of issues in the earlier and subsequent actions. Jeja v. Lajikarm, 1 MILR 153.

Elements

The doctrine of res judicata bars a second action between the same parties on the same subject matter directly involved in the prior action. Zaion v. Peter, 1 MILR 176.

S

STATUTES

Construction and Operation

Title 8, � 1 of the Trust Territory Code provides every judgment for the payment of money bears an interest rate of 9% a year from date it is entered. Carolson Commercial Corporation v. Sawej Brothers Company, 1 MILR 20.

Neither 8 TTC � 55 nor 8 TTC � 75 authorizes a court to forgive any part of a judgment obligation absent consent of the holder of the judgment. Carolson Commercial Corporation v. Sawej Brothers Company, 1 MILR 20.

Statutes are to be construed according to their plain and obvious meaning, absent some indication of legislative intent to the contrary. Clanton v. Riklon, 1 MILR 101.

Repeal

Incorporated Statute

Repeal of a statute that re-enacted, through incorporation by reference, a repealed statute, effects a repeal of the statute incorporated by reference. Marshall Islands Development Corporation v. Majuro Atoll Local Government, 1 MILR 159.

T

TORTS

Government Liability Act

In General

The Act did not grant a right to sue, but, to the contrary, severely limited the pre-existing constitutional right of an individual to seek judicial redress against the Government or its agent. Enos v. Republic of the Marshall Islands, 1 MILR 39.

Scope

The Act does not address the issue whether government has sole liability for torts of its employees. It was error to dismiss action as to employees. Leon v. Republic of the Marshall Islands, 1 MILR 35.

Procedural Requirements

Because of problems encountered in attempting to timely file a claim, the six-month time limitation in � 9 is unduly restrictive and therefore unconstitutional. Enos v. Republic of the Marshall Islands, 1 MILR 39.

Severability

Section 9 with the six-month limitation is severable from the balance of thie Act and may be stricken while leaving the balance of the Act intact. Enos v. Republic of the Marshall Islands, 1 MILR 39.

Medical malpractice

Time claim accrues

Rule established by the US. Supreme Court in United States v. Curricula, 444 U.S. 111, 62 L. Ed. 2d 259, 100 S.Ct. 352 (1979), that cause of action accrued when claimant knew both the existence and the cause of injury, is not inflexible. It must necessarily be applied to varying fact situations. Leon v. Republic of the Marshall Islands, 1 MILR 35.

TRIAL ASSISTANTS

Suspension and Disbarment

Criminal conviction of violation of 31 C Ch. 1, �� 5 and 38 involves actions of sufficient moral turpitude as to clearly violate Rule 6 of the "Order Creating Standing Committee on Professional Conduct". Timothy, In Re Matter of, 1 MILR 216.

The fact that a criminal conviction under 31 C Ch. 1, �� 5 and 38 is vacated pursuant to 37 MIRC Ch. 1, � 70(4) and (5) does not negate disciplinary findings based on said conviction and does not render appeal moot. Timothy In Re Matter of, 1 MILR 216.

The findings and recommendations of a trial court in a disciplinary proceeding will be set aside only when "clearly erroneous". Timothy, In Re Matter of, 1 MILR 216.

TRUST TERRITORY COURTS DECISIONS

Stare Decisis

Decisions of Trust Territory courts do not have stare declare, as distinguished from res judicata, effect in courts of the Marshall Islands. Langijota v. Alex, 1 MILR 164.

Precede Value

In some circumstances, the value of Trust Territory court decisions as precedent will exceed the precedential value of cases from non-Pacific Islands jurisdictions. Langijota v. Alex, 1 MILR 164.

W

WAR CLAIMS ACT

Judicial Review of Awards

Although the War Claims Act contains provisions that make all awards final, not subject to judicial review, this finality provision applies only as to claims against the United States. The court cannot be precluded from determining who actually owned the land, or was entitled to share in the claim. Ebot v. Jablotok, 1 MILR 8.

WRITS

Issuance

Considerations

The power of the Supreme Court to issue writs is not unlimited or without boundaries, but is limited to cases where they are necessary to aid its appellate or other jurisdiction   or to enforce the Constitution. Kabua v. High Court of the Republic of the Marshall Islands, 1 MILR 23.

Writs of mandamus and prohibition are discretionary and generally will be issued only in cases of public importance or of exceptional character or to enforce a prior order of the court. Kabua v. High Court of the Republic of the Marshall Islands, 1 MILR 23.

Writs of mandamus and prohibition may not be used as substitutes for appeal. Further, they generally will be not issued unless there is no adequate remedy available on appeal. Kabua v. High Court of the Republic of the Marshall Islands, 1 MILR 23.

The party seeking a writ of mandamus or prohibition must show there is no other means of obtaining the desired relief and has the burden of showing his right to the writ is clear and indisputable. Kabua v. High Court of the Republic of the Marshall Islands, 1 MILR 23.

Wise and practical policies dictate that requirements for obtaining writs directed against interlocutory orders are even stricter. Kabua v. High Court of the Republic of the Marshall Islands, 1 MILR 23.

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