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Ngiruhelbad v Merii [1961] TTLawRp 8; 2 TTR 631 (1 November 1961)

2 TTR 631

NGIRUHELBAD,
Appellant

v.

MERII, et al.,
Appellees

Civil Appeal No. 13
Appellate Division of the High Court

November 1, 1961

See, also, 1 TTR 367

Appeal from the Trial Division of the High Court, Palau District, involving a land dispute. The Appellate Division of the High Court, in a Per Curiam opinion, held that Palau customary land law was superseded by administrative regulations of Japanese Administration, which would not be set aside by court of subsequent administration.

Affirmed.

1. Wills - Holographic

Where holographic will makes no mention of disputed lands and is filed seven years before death of testator, nuncupative will may supersede it.

2. Palau Land Law - Individual Ownership

Individually owned land had no place in Palau customary law, but was introduced by German Administration.

3. International Law - Sovereignty

All persons and property within territorial jurisdiction of sovereign are amenable to regulation of terms and conditions on which real or personal property within territory may be transmitted.

4. International Law - Sovereignty

Rights and interests in private property, located in territory acquired by conquest, cession or treaty, are defined, held and transmitted under laws of new sovereign.

5. Trusteeship - Administering Authority - Powers

Administering authority has full powers of administration, legislation and jurisdiction over Trust Territory. (Trusteeship Agreement, Article 3)

6. Trust Territory - Land Law

Land law in effect in Trust Territory in 1941 remains in full force and effect except as changed by written enactment. (T.T.C., Sec. 24)

7. Palau Land Law - Generally

Palau custom is not sole criterion to be considered concerning title to land in Palau.

8. Custom - Applicability

Custom in conflict with existing statutory provision is void.

9. Former Administrations - Applicable Law

Same rules of construction which apply to statutes govern interpretation of administrative rules and regulations of Japanese Administration.

10. Palau Land Law - Japanese Survey-Presumptions

Japanese land survey in Palau confirmed individual title to land.

11. Statutes - Construction

Under rules of statutory construction, court looks to law when statute was enacted to see for what it was intended as a substitute, and defects in old law sought to be remedied by new statute.

12. Palau Land Law - Individual Ownership

Purpose of introducing individual land ownership in Palau was to get away from complications of matrilineal clan and lineage systems;

13. Former Administrations - Redress of Prior Wrongs

Present government is not required as matter of right to correct wrongs of any former administration.

Before KINNARE, Associate Justice, and PEREZ and DUENAS, Temporary Judges

PER CURIAM

This is an appeal from a decision of the Trial Division of the High Court in 1 TTR 367. In the absence of briefs or oral argument, the court has considered the appeal on the record, including the transcript of testimony, and Notice of Appeal.

The appellant contends that the judgment violates well established local customs; that it was based solely on a Resolution of the Palau Congress (hereinafter referred to as "Resolution 2-51") which was never approved by the High Commissioner, and therefore is without force or effect; that the trial court erred in considering a noncupative will when a holographic will was in existence; and that, as appellee Tarkong received other things of value from his foster father's clan, he should not take title to the lands in dispute. Appellant also refers in his Notice of Appeal to Resolution No. 28 passed by the Palau Congress in April 1957.

Briefly summarized, the evidence indicates that Ngiraterang (hereinafter referred to as "decedent") originally came from Airai, was adopted into a clan in Koror, married the defendant Merii, a Koror woman, and they in turn adopted the defendant Tarkong (hereinafter referred to as "son"). During Japanese times, a land survey was conducted under procedures which included notifying and calling the members of the clan together to decide how pertinent lands were to be registered in the Tochi Daicho "land book". In accordance with these procedures, the two pieces of land in dispute; Irahel and Maulekikt in Koror, were listed, without objection, under decedent's name as individual property. It should be noted here that the "land book" listed properties as lineage owned land, as land owned by a clan, and as individually owned land, making clear distinction between the different categories.

During his lifetime, and shortly before his death in 1948, decedent directed that the two pieces of property above named were to pass on his death to his son as individual property. Decedent notified several people of this, but did not advise his younger brother, appellant herein.

The record in no way supports appellant's first point: "that the judgment was made solely based on Resolution 2-51". Although the resolution was quoted under "Conclusions of Law"; the court was careful to point out that, as far as was known at that time, the resolution had never been approved or disapproved by or on behalf of the High Commissioner. Further, the court expressly stated that it was not "passing upon the question of whether all of the above quotation is a correct statement of the law as to land owned by an individual in the Palaus". In clear language, the court limited its holding to "the situation involved in this action". In view of the above we find no merit in this point.

[1] It seems unnecessary to consider at length appellant's point as to the holographic will. It is clear upon the record that this will (if will it was) was made seven years before decedent's death, and made no mention at all of the lands here in dispute. Similarly, the fact that the son received other and different things of value upon decedent's death was not at issue, is not relevant, and certainly has no bearing on this case. As to Resolution No. 28, passed in April 1957, it obviously can have no effect of any kind in this action-the complaint here was filed October 25, 1955.