KOSRAE STATE COURT TRIAL DIVISION
Cite as Kun v. Kilafwakun
10 FSM Intrm. 214 (Kos. S. Ct. Tr. 2001)
 
[10 FSM Intrm. 214]
 
LOUISA J. KUN and JACK K. JACK,
Plaintiffs/ Appellees,
 
vs.
 
SEMEON KILAFWAKUN
Defendants,
 
and

HASHIME TAULUNG,
Appellant.
 
CIVIL ACTION NO. 35-99
 
MEMORANDUM OF DECISION;
ORDER OF REMAND
 
Aliksa B. Aliksa
Associate Justice
 
Hearing: May 30, 2001
 
Decided: May 30, 2001
 
Memorandum Entered: June 4, 2001
 
APPEARANCES:
 
For the Plaintiffs/Appellees:            Charlton Timothy, trial counselor
                                                           P.O. Box 479
                                                           Lelu, Kosrae FM 96944
 
For the Appellant:                           Canney Palsis, Esq.
                                                         Micronesian Legal Services Corporation
                                                         P.O. Box 38
                                                         Lelu, Kosrae FM 96944
 
* * * *
 
HEADNOTES
 
Property ) Land Commission
     When a person who has asserted a claim to land was not given notice of the registration proceedings as required by law, the Determination of Ownership for that land is not conclusive as upon him. Kun v. Kilafwakun, 10 FSM Intrm. 214, 216 (Kos. S. Ct. Tr. 2001).
 
Property ) Land Commission
     When a person had asserted a claim to a parcel and was identified as a claimant early in the Land Commission proceedings and also testified in support of his boundary dispute at several hearings, but was not served notice of the formal hearing and was also not served a copy of the Determination of Ownership for the parcel, the Determination of Ownership for the parcel is not conclusive upon him. Kun v. Kilafwakun, 10 FSM Intrm. 214, 216 (Kos. S. Ct. Tr. 2001).
 
[10 FSM Intrm. 215]
 
Constitutional Law ) Due Process; Property ) Land Commission
     In land cases, statutory notice requirements must be followed. Personal service of the notice of hearing and the Determination of Ownership upon all parties shown by the preliminary inquiry to have an interest in the parcel is required. Failure to serve actual notice on a claimant is a denial of due process and violation of law, which will cause a Determination of Ownership to be set aside as void, and the case remanded to the Land Commission to hold the formal hearings and to issue the determination of ownership for that parcel. Kun v. Kilafwakun, 10 FSM Intrm. 214, 216 (Kos. S. Ct. Tr. 2001).

* * * *

COURT'S OPINION

ALIKSA B. ALIKSA, Associate Justice:

     This matter originally involved a trespass action by the Plaintiff against the Defendant on parcel 054-T-09. An appeal of the Determination of Ownership issued for parcel 054-T-09 was merged into this action. Hashime Taulung, a real party in interest, was added as Appellant on the appeal. Plaintiffs were designated as Appellees. The appeal was briefed by the both parties and a site visit was conducted on March 30, 2001. The hearing on the briefs was held on May 30, 2001. Canney Palsis, MLSC, appeared for the Appellant. Appellees were represented by Charlton Timothy. At the hearing, this Court vacated the Determination of Ownership for parcel 054-T-09 and remanded the matter back to the Kosrae State Land Commission for further proceedings. This Memorandum explains the Court's reasoning.

I. Findings of Fact.

     The ownership of the lands known as Inlaru, Pukar, Sandufal and Bolok was decided by the Trust Territory High Court, Civil Case No. 70 (Judgment Order entered on May 21, 1963) in favor of Louisa J. Kun, with use rights by Kilafwa Paulino and Charles Nena. The Kosrae State Land Commission then based its ownership determination for parcel 054-T-09 (a portion of the land at issue in Civil Case No. 70), on the judgment entered in Civil Case No. 70. Appellant Hashime Taulung and his predecessor, Vincente Taulung, were not parties in Civil Case No. 70.

     Appellant's claim in this appeal is a boundary dispute. Appellant was awarded ownership of parcel 054-T-08, the adjacent parcel. Appellant also claims a portion of parcel 054-T-09. Appellant stated his claim to parcel 054-T-09 in the Application for Registration of Land, lots numbers 270, 281 and 282. Appellant also submitted his Land Claim for parcels 270, 281 and 282 at the Preliminary Inquiry held on April 24, 1991. Appellant testified at a hearing held on May 9, 1991 regarding parcel 054-T-09.

     The Kosrae State Land Commission was aware of the Appellant's boundary dispute with respect to parcels 054-T-08 and 054-T-09 based upon Appellant's land claim and testimony at the Preliminary Inquiry held April 24, 1991. The Land Commission was also given notice of Appellant's claim to parcel 054-T-09 through his testimony at a hearing held on November 29, 1991 on adjacent parcel 054-T-08, where Appellant testified regarding his boundary dispute between parcels 054-T-08 and 054-T-09.

     Based upon the land claim submitted by the Appellant, his testimony at the preliminary inquiry and hearings, Appellant was an interested party in parcel 054-T-09 and was entitled to statutory notice pursuant to Kosrae State Code, Section 11.609. The record for parcel 054-T-09 does not contain a copy of the notice for the hearing on parcel 054-T-09 as having been served upon the Appellant.

[10 FSM Intrm. 216]

Appellant did not receive notice of the hearing for parcel 054-T-09. The record does not contain a copy of the Determination of Ownership for parcel 054-T-09 as having been served upon the Appellant. Appellant did not receive notice of the Determination of Ownership issued for parcel 054-T-09.

II. Legal Analysis

     When a person who has asserted a claim to the land was not given notice of the registration proceedings as required by law, the Determination of Ownership for that land is not conclusive as upon him. Sigrah v. Kosrae State Land Comm'n, 9 FSM Intrm. 89, 93 (Kos. S. Ct. Tr. 1999). Here, the Appellant had asserted a claim to parcel 054-T-09. Appellant was identified as a claimant early in the Land Commission proceedings and also testified in support of his boundary dispute at several hearings. However, Appellant was not served notice of the formal hearing on parcel 054-T-09. Appellant was also not served a copy of the Determination of Ownership for parcel 054-T-09. Therefore, the Determination of Ownership for parcel 054-T-09 is not conclusive upon him.

     In land cases, statutory notice requirements must be followed. Failure to serve actual notice on a claimant is a denial of due process and violation of law. Due to the violation of the statutory notice requirement, the Determination of Ownership will be set aside as void. Sigrah, 9 FSM Intrm. at 95. Kosrae State Code, Sections 11.613 and 11.609(1)(c)(1), require personal service of the notice of hearing and the Determination of Ownership upon all parties shown by the preliminary inquiry to have an interest in the parcel. Kosrae State Law requires that the notice of hearing and the Determination of Ownership for parcel 054-T-09 be served upon the Appellant, who had shown an interest in the parcel. Appellant was not served the notice of hearing or the Determination of Ownership as required by law. Due to the violations of the statutory notice requirement, the Determination of Ownership for parcel 054-T-09, issued to Louisa J. Kun, is vacated and set aside as void.

III. Order of Remand.

     This matter is now remanded to the Kosrae State Land Commission to take action consistent with this Memorandum and Kosrae State Code, Title 11, Chapter 6. The Land Commission is ordered to issue notices to all interested parties, hold the formal hearings for parcel 054-T-09 on the boundary issue, and to issue the determination of ownership for that parcel. The Land Commission may refer to and consider all of the testimony and other evidence which was received at the prior inquiries and hearings held with respect to parcel 054-T-09. The Land Commission is ordered to complete its hearings and issue the determination of ownership for parcel 054-T-09 by August 30, 2001.

IV. Stay of Proceedings.

     The Preliminary Injunction entered by this Court on January 18, 2000 remains in effect pending disposition of this matter. The Order Staying Proceedings on Plaintiff's Trespass Claims, entered April 19, 2000, remains in effect pending the issuance of the determination of ownership to be issued by the Kosrae State Land Commission for parcel 054-T-09 pursuant to this Order of Remand.

* * * *

?\yо 'DYn <i)>Sh*}36pIxWS2H1Ixxx'<Qf{ &;P+LȂP.LBvh3