FSM 10 Intrm. 098-099

CHUUK STATE SUPREME COURT TRIAL DIVISION

Cite as Enengeitaw Clan v. Shirai

10 FSM Intrm. 309 ( Chk. S. Tr. Tr. 2001)

[10 FSM Intrm. 309]

THE ENENGEITAW CLAN,

Plaintiffs,

vs.

FUMINORY SHIRAI, MITARO DANIS, IOWAS

SIMINA, CHUUK STATE, and GOVERNOR

ANSITO WALTER,

Defendants.

CSSC CA NO. 108-99

ORDER GRANTING MOTION TO DISMISS

Wanis R. Simina

Associate Justice

Hearings: November 13, 2000, April 26, 2001

Decided: May 22, 2001

APPEARANCES:

For the Plaintiff: Stephen V. Finnen, Esq.

Law Offices of Saimon & Associates

P.O. Box 1450

Kolonia, Pohnpei FM 96941

[10 FSM Intrm. 310]

For the Defendant: Jack Fritz, Esq.

(Fuminory Shirai) P.O. Box 788

Weno, Chuuk FM 96942

For the Defendants: Ready Johnny, Esq.

Office of the Chuuk Attorney General

P.O. Box 189

Weno, Chuuk FM 96942

* * * *

HEADNOTES

Courts; Jurisdiction; Property ) Land Commission

Under the Chuuk Constitution, article VII, § 3(c), the Chuuk State Supreme Court has only appellate or review jurisdiction over the Land Commission, and thus a motion for review de novo of matters not raised before the Land Commission must be denied. Enengeitaw Clan v. Shirai, 10 FSM Intrm. 309, 311 (Chk. S. Ct. Tr. 2001).

Equity ) Estoppel and Waiver

Estoppel in pais is defined as the doctrine by which a person may be precluded by his act or conduct, or silence when it is his duty to speak. Enengeitaw Clan v. Shirai, 10 FSM Intrm. 309, 311 (Chk. S. Ct. Tr. 2001).

Civil Procedure ) Dismissal; Property

A case that appears to rest on the assertion that the Land Commission gave title to the land in question to a clan will be dismissed when the Determination of Ownership names a person as the sole owner of the land. Enengeitaw Clan v. Shirai, 10 FSM Intrm. 309, 311 (Chk. S. Ct. Tr. 2001).

* * * *

COURT'S OPINION

WANIS R. SIMINA, Associate Justice:

This case comes before the Court after notice and hearing on November 13, 2000, on Defendants' Motion to Dismiss the above styled case. Further hearings were held on April 26, 2001 and all parties have filed extensive written briefs and exhibits in support of their positions. This case is the survivor case after the consolidation of CSSC CA No. 29-99; 80-99; 108-99 and 109-99, and is an appeal from a decision of the Chuuk State Land Commission.

Pursuant to the previous order of this Court, the matter was to be rescheduled for the purpose of consideration by the court of any motions pending or for the purpose of trial. Since that time, November 13, 2000, the Defendants Chuuk State and Fuminory Shirai, have each filed Motions to Dismiss the appeal. Plaintiff has filed opposition to these motions. All such filings contain supporting documents which the Court considers to be sufficient for a decision in the case.

The original Notice of Appeal from a decision of the Chuuk State Land Commission to this Court, filed by the Appellant, Enengeitaw Clan, includes a "STATEMENT OF ISSUES ON APPEAL," which provides in paragraph 1, in part, that "this matter has become an issue of a boundary dispute over the boundaries of the land known as `Nenom.'" The record is silent on the question of whether a dispute

[10 FSM Intrm. 311]

over boundaries of the land in question was ever brought before the Chuuk State Land Commission. The Court is mindful that this fact alone, given the fact that the Plaintiff refers to the case as having become a "boundary dispute," is sufficient grounds to grant the Motion to Dismiss, or at the least, to remand the case back to the Land Commission for its consideration of boundary issues.

At the hearing on April 26, 2001 and by written Motion filed April 27, 2001 the Plaintiff has moved the Court to review the case de novo. The motion appears to seek a trial of the issues, at least on the matter of boundaries, as an original action in this Court. It is clear that under Article VII, § 3(c), Constitution of Chuuk State, that this Court has only Appellate or review jurisdiction over the Land Commission, and for this reason, the motion for review de novo of matters not raised before the Land Commission is due to be denied.

Although the Plaintiff seeks to raise matters which the Court considers outside the basic issue in this case, the case turns on the single issue of whether the decision of the Land Commission on September 8, 1955, that "Osame Shirai of the linage of the Enengeitaw clan of Iras, headed by Taro Mori, Osame Shirai is the sole owner" of the land in question, is determinative of the matter for all purposes. Or, stated differently, is the decision of the Land Commission on September 8, 1955 governed by the doctrine of res judicata, and is not only a bar to this action, but renders moot any of the proceedings relative to the title which have occurred since that time, September 8, 1955, and which the Plaintiff now seeks to raise.

The Defendants argue the application of the doctrine of res judicata, but this Court sees any such defense as in the nature of res judicata, or, more likely, as one in the nature of estoppel. The term "Estoppel in Pais" defined in Black's Law Dictionary 551 (6th ed. 1990) as: "The doctrine by which a person may be precluded by his act or conduct, or silence when it is his duty to speak."

Throughout the record and proceedings in this case, both Plaintiff and Defendants have argued the issue of the meaning of the phrase: "Osame Shirai is the sole owner.", found in the 1955 determination of the Land Commission. Members of the Enengeitaw Clan, Plaintiff, were adults, knowledgeable and present at that time. If the doctrine of "Estoppel in Pais" has any field of operation at all, it is applicable to the facts in this case.

Moreover, the Plaintiff's case appears to rest on the assertion that the 1955 order of the Land Commission gives title to the land in question to the clan rather than to Osame, individually.

The record in the case and the testimony elicited at the hearings do not support that conclusion.

Based on the foregoing, the Defendant's Motion to Dismiss is due to be granted, and it is so ordered.

* * * *