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Wena v Maddison [1968] TTLawRp 65; 4 TTR 194 (30 December 1968)

4 TTR 194

TRIAL DIVISION OF THE HIGH COURT

MARSHALL ISLANDS DISTRCT

Civil Action No. 269

LAJDRIK WENA, TENAR and LIMIEN

Plaintiffs

v.

MIKE MADDISON, LABBO and Others

Defendants

December 30, 1968

Action to determine rights to certain titles on "Jebrik's side" of Majuro Atoll. The Trial Division of the High Court, Joseph W. Goss, Temporary Judge, held that persons long as titleholders could not be upset years later upon facts in existence at the time of establishment of their titles, and that as against others the persons named by the titleholders as successors had the best chance to succeed to such title although permanent succession would require approval of certain other persons and the Trust Territory Government.

1. Marshalls Land Law-"Iroij Erik"-Establishment

A person's long-term exercise of iroij erik rights to wato in question raised a presumption of her ownership, as did the failure of persons to challenge her rights during her lifetime and the presumed acquiesence of the Japanese Government in the arrangements.

2. Marshalls Land Law-"Iroij El'ik" - Establishment

Once an iroij erik has been established under the Marshallese system of land tenure, and the establishment has apparently been accepted by those concerned at the time, it cannot be upset years later on the basis of facts which were in existence at the time of the establishment.

3. Marshalls Land Law - "Kitre"

Kitre is the general term for presents of food, clothing and other things of value, given by a man to a woman before and/or after he marries her.

4. Marshalls Land Law - "Kitre"

Even if a will had been made of iroij erik rights and the will had been approved by Japanese authorities prior to the gift of iroij erik rights by kitre, the will could still changed in accordance with the law of Marshallese custom because of the changed circumstances.

5. Marshalls Land Law - "Iroij Erik"

If an alleged will of iroij erik rights was made after the gift of such rights by kitre, the donor had no authority to include such rights where he did not reserve power at the time of the kitre.

6. Marshalls Custom - "Kitre"

Under Marshallese custom it is proper for kitre land to pass to the bwij of the recipient.

7. Marshalls Custom - Succession to Titles-Generally

Under Marshallese custom those designated as successors by the title-holders the best right to succeed to such titles.

8. Marshalls Land Law-"Iroij Lablab" - Powers

Succession to permanent iroij erik, alab and dri jerbal rights must be ordinarily approved by the iroij lablab in accordance with the law of Marshallese custom.

9. Marshalls LandLaw-"Jebrik's side" of Majuro

Approval for succession to rights in land on "Jebrik's side" of Majuro Atoll must be by the iroij eriks and droulul or by the Trust Territory' the High Court may accord the approval by the Trust Territory.

10. Civil-Procedure-Damages

Where no proof of the specific amount of damage was presented at trial a plaintiff is entitled to only nominal damages.

GOSS,Temporary Judge

FINDINGS OF FACT

1. Approximately 1925 Lebonju gave his wife Lijamedr the iroij erik rights to Wato Ejean on Rairok Island, Majuro Atoll as kitre (gift by a husband to a wife before or after marriage). Lebonju did not reserve the right to appoint Lijamedr's successor.

2. The kitre was approved by the iroij eriks on "Jebrik's side", Majuro Atoll.

3. Lijamedr was accepted as iroij erik under the Marshallese system of land tenure by those concerned. In the approximately 43 years since the meeting of the iroij eriks, Lijamedr's right has not been challenged by the Trust Territory Government, the iroij eriks or the Droulul (alabs and dri jerbals who hold property rights on "Jebrik's side"). Lijamedr's right was not challenged by defendants until after her death.

4. Likena held both alab and dri jerbal rights to the wato before her death.

5. Lijamedr acted as iroij erik for the remainder of her lifetime and received the alab's share from the Alab Likena.

6. Lijamedr designated her adopted son Lajdrik Wena to succeed to her iroij erik rights over the wato.

7. Labbo was not adopted by Eaninial" the alab who preceded Likena.

8. Likena designated her sons Tenar and Limien to be alab and dri jerbal respectively.

9. No proof was presented as to the value of the truck-load of copra removed from the wato in 1965 by Laninbit, who acted under the alleged authority of his mother Labbo.

CONCLUSIONS OF LAW

[1] 1. Lijamedr's long term exercise of the iroij erik rights to the wato raises a presumption of her ownership, as does the failure of defendants to challenge her rights during her lifetime arid'the presumed acquiescence of the Japanese Government in the arrangements. For somewhat analogous'situations, Orijon v. Etjon, 1 TTR 101.

[2] 2. Once an iroij erik has been established under the Marshallese system of land tenure, and the establishment has apparently been accepted by those concerned at the time, it cannot be upset years later on the basis of facts which were in existence at the time of the establishment. Jibor v. Tibiej, 2 TTR 38.

[3,4] 3. Lebonju's desire to make a kitre to Lijamedr must be concluded to be a changed circumstance which is deemed consented to by the Japanese authorities in view of that government's long acquiescence. Kitre has been described as follows:-

"Anburo (older word: Kitre)
"This is the general term for presents of food, clothing and other things of value, given by a man to a woman before and/or after he marries' her.' Taro patches are sometimes given as kitre. Anburo (literally translated means 'of the heart') and kitre means 'out in the open' as opposed to bonerik (something one hides to buy heart of the girl one loves.) Kõbõjbõj is the new slang expression for the latter type of gift. An analogy is drawn by informants: two sailing canOes in a race. The paddling done by the men in one of the canoes which gives the extra advantage and wins the race is like the kõbõjbõj (gift) given by one of two men who are courting the same girl. The word has a slightly ribald connotation." Vol. 1, Land Tenure Patterns, Trust Territory of the Pacific Islands; p. 40 (J. A. Tobin).
Even if Lebonju had made will of the iroij erik rights to Ejean wato, and the will had been approved Japanese authorities prior to the kitre to Lijamedr, the will could still be changed in accordance with the law of Marshallese custom because of the changed circumstances. Lalik v. Elsen, 1 TTR 134

[5]4. If the alleged will was made after the kitre, Lebonjuhad no authority to the iroij erik rights Ejean since he did not reserve any power over Ejean at the time of the'kitre.

[6] 5. Under Marshallese custom, it is proper for kitre land to pass to the bwij of the recipient. Vol. 1, Land Tenure Patterns, Trust Territory of the Pacific Islands, p. 67 (J. A. Tobin).

[7] 6. Under Marshallese custom and between the par-ties the plaintiffs Wena, Tenar and Limien (respectively) have the best rights to succeed to the iroij erik, alab and dri jerbal rights formerly held by Lijamedr and Likena.

[8, 9] 7. Succession to permanent iroij erik, alab and dri jerbal rights must be ordinarily approved by the iroij lablab, acting in accordance with the law of Marshallese custom. Approval for succession to rights in land on "Jebrik's side" of Majuro Atoll must be by the iroij eriks and droulul or by the Trust Territory Government. The High Court may accord the approval by the Trust Territory. Jatios v. Levi, 1 TTR 578.

[10] 8. Plaintiffs are entitled to only nominal damages for the removal of the truckload of copra by Laninbit, since no proof of the specific amount of damage was presented at the trial.

JUDGMENT

It is ordered, adjudged, and decreed as follows:-

1. As between the parties and all persons claiming under them, rights in the Wato Ejean,Rairok Island, Majuro Atoll are held as follows:-

Iroij erik-Lajdrik Wena
Alab-Tenar
Dri jerbal-Limien.

2. This judgment shall not affect anyrights-of-way there may be over, upon or under the wato.

3. Defendant Labbo shall forthwith pay to plaintiffs $1.00 for the copra removed 1965.

4. Time for completion of the survey ordered May 25, 1967, is extended to sixty days following entry of this judgment. When said survey is completed, upon stipulation of the parties, a Judge of the High Court may order that the survey be incorporated into this judgment as properly depicting the claims of the parties.

5. The Court Clerk will cause this judgment to be docketed and translated. He will forward copies to counsel, to the Headquarters Land Management Officer, and to the District Land Management Officer.

6. No costs are assessed against any party.

7. Time for appeal is extended until forty-five days after entry of judgment.