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Jatios v Launit [1973] TTLawRp 6; 6 TTR 161 (23 April 1973)

6 TTR 161

TRIAL DIVISION OF THE HIGH COURT

MARSHALL ISLANDS DISTRICT

Civil Action No. 454

ISHMAEL JATIOS et al.

Plaintiffs

v.

LEVI LAUNIT and HENRY SAMUEL

Defendants

April 23, 1973

Dispute over attempted transfer of dri jerbal interests in Elelan, Mwinkubwe and Boke Lijiker wato on "jebrik's side" of Majuro Atoll. The Trial Division of the High Court, D. Kelly Turner, Associate Justice, held that no transfer could be made without the approval of the Trust Territory Government, the unanimous consent of the iroij eriks on "Jebrik's side" or the droulul of Majuro.

1. Marshalls Land Law-"Jebrik's side" of Majuro-Transfers

Property on "Jebrik's side" of Majuro Atoll may not be transferred without the approval of either the Government of the Trust Territory, the iroij eriks or the group holding property rights on that side.

2. Marshalls Land Law-"Jebrik's side" of Majuro-Transfers

Attempt to transfer dri jerbal interests in land on "Jebrik's side" of Majuro Atoll without obtaining required approval could not be justified by argument that the alab had sought to terminate transferor's dri jerbal interest.

3. Actions-Defenses-Contrary to Custom or Law

However worthy the reason advanced as justification for an action may be, the action may not be approved when it is contrary to applicable custom or law.

4. Marshalls Land Law-"Jebrik's side" of Majuro-Transfers

Holder of dri jerbal interests in land on "Jebrik's side" of Majuro Atoll could not transfer such interests without the approval of the iroij eriks on "Jebrik's side", or the Trust Territory Government, or the droulul of Majuro Atoll.

TURNER, Associate Justice

At the pre-trial conference, held this date, with the parties and their counsel present, there was agreement on the issues of fact which is decisive of this case. Accordingly, on motion of the plaintiffs, summary judgment is entered for the plaintiffs in conformity with the findings of facts and conclusions of law herein set forth.

Defendant Levi Launit attempted to transfer his dri jerbal interests to the defendant Henry Samuel in the following land located on "Jebrik's side" of Majuro Atoll:

Elelan wato, Mwinkubwe wato, and Boke Lijiker, an island comprising one wato.

Defendants admitted that the attempted transfer had not been approved by the Trust Territory Government, by the unanimous consent of the iroij eriks on "Jebrik's side" of Majuro Atoll, nor by the droulul of Majuro. This Court has held without deviation since 1952 that these entities hold the power over land normally exercised by the iroij lablab. Since the death of Jebrik Lukotworok in 1919 there has not been an iroij lablab for lands on Majuro he controlled. The Japanese Government first assumed that authority and from American times it has been in either the hands of the Government or the hands of the droulul.

In Levi v. Kumtak, 1 T.T.R. 36, the precedent Marshallese land case, it was held that Levi and the members of his bwij held dri jerbal interests in Elelan and Minkibwe (spelled Mwinkubwe in the present case) watos. Boke Lijiker Island was not involved in Levi v. Kumtak, supra, and plaintiff did not challenge Levi's dri jerbal interest claim to it, but because no evidence was taken no decision can be made on this point. It also is unnecessary to decide what interest, if any, Levi has in the land.

The Trial Division Judgment in Levi v. Kumtak, supra, was affirmed by the Appellate Division in Jatios v. Levi, 1 T.T.R. 578, but was of an interlocutory nature dependent upon certain contingencies. There is no record of subsequent action affecting the Judgment.

The factual question of who held alab and dri jerbal interests in land on "Jebrik's side" of Majuro is not of great significance in comparison with the question of law decided in that case.

The essential holding, based on the concept of Marshallese custom that the iroij lablab must approve or acquiesce in any transfer of land interest, is that this principle of traditional land law is applicable even when there" is no recognized iroij. The Court held at 1 T.T.R. 42:

"The rights formerly vested in the iroij lablab are now vested in the Government of the Trust Territory of the Pacific Islands, the iroij eriks on Jebrik's side, and the group consisting of those holding property rights on that side."

[1] Without the approval of any one of these holders of iroij lablab interests, property may not be transferred. To do so is to attempt to evade or flaunt traditional Marshallese principles applicable to land transfers.

Most recently this Court held in Muller v. Milne, 5 T.T.R. 471, that an attempted transfer of land should be set aside for failure to obtain the requisite approval or acquiescence. Other similar decisions are: Jekron v. Saul, 4 T.T.R. 128; Mike M. v. Jekron, 2 T.T.R. 178.

[2, 3] Defendants, in their argument on plaintiffs' motion for judgment urged that the reason the defendant Levi attempted to sell the land to Samuel was that the alab, as one of the plaintiffs, sought to terminate his dri jerbal interests. The argument must be rejected. As was said in the Milne case at 5 T.T.R. 476:

"However worthy the reason may be in justification of an action, it may not be approved when it is contrary to applicable custom or law. A good motive does not justify a wrongful act."

The Court is fully aware that there are those on Majuro who have attempted either wrongfully or for what they considered legitimate reasons to avoid the application of Marshallese land tenure custom to Jebrik's side on Majuro. Accordingly, these persons who would change the law for their personal benefit have attacked the Court and its initial decision on the question in Levi v. Kumtak, supra.

Beginning with Lazarus S. v. Tomijwa, 1 T.T.R. 123 in 1954, this Court has many times said that it is not for the courts, but for the legislature, to change the land law as it was in effect on December 1, 1941, in accordance with 1 T.T.C. 105. This Court said at 1 T.T.R. 128 referring to the law applicable to Jebrik's side on Majuro Atoll:

"Whether the basic arrangement should be changed now is a question of policy for the law making authorities, and is not for the courts to decide."

[4] This Court is bound by the Appellate Division holding that the defendant Levi holds (with others) dri jerbal interests on at least two of the parcels in question. He may not be deprived of these interests without good cause. Just as the Court will protect the defendant's interest in this respect, so it will insist that he conform with the law when he attempts to transfer his land interests. It is,

Ordered, adjudged and decreed:-

1. That the sale of dri jerbal interests by defendant Levi to defendant Samuel for the following parcels located on Jebrik's side of Majuro Atoll:

Elelan wato

Mwinkubwe wato

Boke Lijiker Island

be and the same is set aside, vacated and declared to be without force and effect.
2. That the defendant Samuel has no dri jerbal interest in the above named parcels and as to him the restraining order heretofore issued in this case shall remain in effect, but it is and shall be vacated as to defendant Levi and his bwij·
3. Plaintiffs are allowed costs in accordance with law.