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Loton v Langrin [1971] TTLawRp 12; 5 TTR 358 (10 May 1971)

5 TTR 358

LOTON, and JELTAN, Appellants

v.

BARTIMIUS LANGRIN, Appellee

Civil Appeal No. 73

Appellate Division of the High Court

May 10, 1971

Appeal from judgment establishing certain rights in Mwinkuit Wato, Rita Island, Majuro Atoll. The Appellate Division of the High Court, D. Kelly Turner, remanded the case because the record was inadequate and incomplete, because manifest trial errors resulted in a denial of substantial justice, and because the lower court failed to give any reason for its holding.

1. Civil Procedure-Generally

The court should be alert to see that a party is not prevented by ignorance or inadvertence from introducing important evidence that would appear readily available to him, and the usual trial procedure should not be adhered to so closely as to prevent the introduction of such evidence after the usual time for it, so long as the court is convinced that the party or inexperienced counsel is honestly endeavoring to proceed as properly as he knows how.

2. Civil Procedure-Newly Discovered Evidence

The appellate court may not order a new trial on grounds of newly discovered evidence; such motion must be remanded to the Trial Division for consideration separate from the appeal.

3. Appeal and Error-Evidentiary Error

Rejection of rebuttal evidence was a denial of due process and was inconsistent with substantial justice thus warranting reversal of the judgment.

4. Appeal and Error-Record on Review-Findings of Fact and Conclusions of Law

While there is no mandatory rule in the Trust Territory requiring the Trial Division to make separate findings and conclusions of law as there is in the United States Federal Courts, the rules of law governing appeals in the Trust Territory make it imperative that findings be made.

Before BURNETT, Chief Justice, TURNER and BROWN, Associate Justices

TURNER, Associate Justice

This appeal was submitted on written argument from a Trial Division judgment holding that the iroij erik, alab and dri jerbal rights in Mwinkuit Wato, Rita Island, Majuro Atoll, "are held by the defendant, Bartimius Langrin."

The judgment conferred more rights than the defendant­appellee claimed. His answer asserted Lijuiar was the iroij erik and that he was alab. He did not list the dri jerbal but merely alleged Loton (the appellant) did not hold dri jerbal rights. The same position was taken in the pre-trial conference before the Master and at the trial in the High Court.

Consistently with appellee's position that he only held alab rights, he called the witness Jiawur, who asserted he had been iroij erik since German times and that the appellant and his predecessors had never been iroij erik. Nowhere in the record does appellee claim dri jerbal or iroij erik rights for himself which were awarded to him by the trial court.

If this simply were a matter of correcting an erroneous judgment granting greater rights than the prevailing party sought, the carelessness could be rectified by this court. Unfortunately, that is not the case. Not only is the judgment in conflict with the pleadings and testimony but the record sent up on appeal also shows serious errors.

The judgment result depends upon resolving several sharp conflicts in the evidence. The holding for appellee depends upon alternative issues of fact controlling the inheritance of the land in question. The Marshallese land tenure law to be applied depends upon what kind of land holding was involved that is, whether it was "ninnin" or "bwij" land and whether plaintiffs' or appellee's predecessors held control over it.

Appellants' appeal rests upon two reasons: (1) the judgment is contrary to Marshallese custom governing lineage inheritance rights; and (2) that the court failed to follow the genealogical order of inheritance applicable. Both sides, appellants and appellee, are members of the same family or lineage group except there apparently was a "separation" into two factions some time shortly before 1918. This, the appellee urges, resulted in a special arrangement as to inheritance of land rights which did not follow customary bwij patterns.

These conflicts in facts and law were recognized by the Master who held pre-trial conferences and listed major questions to be resolved at trial. Determinative issues largely depended upon the genealogical chart showing the order of inheritance.

It is impossible to resolve these conflicts on appeal because there were no findings of fact in the judgment which this court could test against the record and for the further reason that the record itself was inadequate because of the court's failure to include the genealogical chart as a part of the file after having considered it and heard counsel's explanation of it.

The court apparently did not have time to consider the chart during the trial in February, 1969, and it, therefore, continued the proceedings until the September, 1969 sitting. When trial was resumed, the court said (Tr. 45):-

"Now, I take it you are both going to present those charts in evidence, is that correct?"

After hearing explanation and argument of counsel relating to the genealogy, the court said (Tr. 50):-

"I don't think it would be of any help for me to take the charts to study. The explanation has helped but I am sure I am going to have to decide the case on the sworn testimony. The charts have helped but I don't think I need to take them."

Accordingly, they were not included in the record and this court, of course, cannot say what help they gave the trial court because of the absence of findings in the judgment.

There is, unfortunately, an equally serious inadequacy in the record resulting from the trial court's refusal to accept documentary evidence at the close of the trial. This rejection of evidence was on the theory the trial was ended at the conclusion of the February proceedings. The court stated, however, prior to the offer of the evidence that (Tr. 42):-

"I believe we stopped with the defendant's case and no closing arguments were made, so we will continue at that point and permit the defendant to present his genealogical chart, if he has one at this time. Do you have separate charts or are they both the same?"

It appears from the transcript the documents were records of copra sales and payment of shares to the iroij erik, who appellants claimed to be their predecessor. Appellee denied this predecessor was the iroij erik. Appellee's witness Jiawur insisted he had been the iroij erik at all times. These record books may have had substantial bearing on this sharply crucial conflict in the evidence.