KOSRAE STATE COURT TRIAL DIVISION
Cite as Nena v. Heirs of Melander
10 FSM Intrm. 362 ( Kos. S. Ct. Tr. 2001)
 
[10 FSM Intrm. 362]
 
HANSON NENA,
Appellant,
 
vs.
 
HEIRS OF TEDRICK MELANDER,
Appellees.
 
CIVIL ACTION NO. 13-97
 
AMENDED MEMORANDUM OF DECISION; ORDER OF REMAND
 
Aliksa B. Aliksa
Associate Justice
 
Decided: August 23, 2001
[10 FSM Intrm. 363]
 
APPEARANCE:
 
For the Appellant:                   Sasaki George, Esq.
                                                 Micronesian Legal Services Corporation
                                                 P.O. Box 38
                                                 Lelu, Kosrae FM 96944
 
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HEADNOTES
 
Appeal and Certiorari) Standard of Review; Property ) Land Commission
     The Kosrae State Court, in reviewing the Land Commission's procedure and decision, should consider whether the Commission: a) has exceeded its constitutional or statutory authority, b) has conducted a fair proceeding, c) has properly resolved any legal issues, and d) has reasonably assessed the evidence presented. Nena v. Heirs of Melander, 10 FSM Intrm. 362, 364 (Kos. S. Ct. Tr. 2001).
 
Constitutional Law ) Due Process ) Notice and Hearing; Property ) Land Commission
     The Land Commission does not conduct a fair proceeding when it issues a determination of ownership without compliance with statutory notice requirements. Nena v. Heirs of Melander, 10 FSM Intrm. 362, 364 (Kos. S. Ct. Tr. 2001).
 
Constitutional Law ) Due Process ) Notice and Hearing; Property ) Land Commission
     The Land Commission is required by statute to give actual, and not constructive notice for hearings to all interested parties. Failure to provide notice to an interested party is violation of due process. Nena v. Heirs of Melander, 10 FSM Intrm. 362, 364 (Kos. S. Ct. Tr. 2001).
 
Constitutional Law ) Due Process ) Notice and Hearing; Property ) Land Commission
     The registration team is required to service actual notice of the hearing, either by personal service or registered air mail, upon all parties shown by the preliminary inquiry to have an interest in the parcel, and is also required to serve actual notice of a determination of ownership upon all persons shown to have an interest in the parcel. Nena v. Heirs of Melander, 10 FSM Intrm. 362, 364 (Kos. S. Ct. Tr. 2001).
 
Constitutional Law ) Due Process ) Notice and Hearing; Property ) Land Commission
     When the land registration team was informed at the preliminary inquiry that someone was an interested party due to his boundary dispute, but the land registration team failed to serve him actual notice of the formal hearing and the determination of ownership issued for the parcel, there was no substantial compliance with the notice requirements specified by law, and due to the violations of the statutory notice requirement, the determinations of ownership for both adjoining parcels must be set aside as void and remanded to the Land Commission. Nena v. Heirs of Melander, 10 FSM Intrm. 362, 364 (Kos. S. Ct. Tr. 2001).

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COURTS OPINION

ALIKSA B. ALIKSA, Associate Justice:

     This matter is an appeal from the Determinations of Ownership issued by the Land Commission for parcel 002-U-05. Appellant's brief was filed on May 1, 2000. Appellee did not file a brief nor

[10 FSM Intrm. 364]

request an extension of time to file his brief. The Court decides this appeal without a hearing.

I. Factual Background.

     The Court has carefully reviewed the record for parcel 002-U-05. The Determination of Ownership for parcel 002-U-05 was awarded to Appellees' father, Tedrick Melander. The Determination of Ownership for the adjacent parcel 002-U-01, was awarded to Appellant Hanson Nena. There was a boundary dispute between parcels 05 and 01. The land registration team was informed of this boundary dispute at the Preliminary Inquiry for parcel 05 by counsel Morris Waguk for Appellant's father, Ezrah Nena. Even so being informed of the boundary dispute, Ezrah Nena was not informed of the formal hearing for parcel 002-U-05. Ezra Nena did not appear at the formal hearing and was not served the Determination of Ownership for parcel 05.

II. Legal Analysis.

     The Court, in reviewing the Land Commission's procedure and decision, should consider whether the Commission: a) has exceeded its constitutional or statutory authority, b) has conducted a fair proceeding, c) has properly resolved any legal issues, and d) has reasonably assessed the evidence presented. Heirs of Mongkeya v. Heirs of Mackwelung, 3 FSM Intrm. 395, 398 (Kos. S. Ct. Tr. 1988). The Court here finds that Land Commission did not conduct a fair proceeding by issuing a Determination of Ownership without compliance with statutory notice requirements.

     The Land Commission is required by statute to give actual, and not constructive notice for hearings to all interested parties. Failure to provide notice to an interested party is violation of due process. Sigrah v. Kosrae State Land Comm'n, 9 FSM Intrm. 89, 93 (Kos. S. Ct. Tr. 1999). Kosrae State Code, Title 11, Chapter 6, sets forth the procedure for determination and registration and interests in land. Kosrae State Code, Section 11.609 requires the registration team to give notice of a hearing on each parcel. The registration team is required to service actual notice of the hearing upon all parties shown by the preliminary inquiry to have an interest in the parcel either by personal service or registered air mail. The registration team is also required to serve actual notice of a determination of ownership upon all persons shown to have an interest in the parcel. At the preliminary inquiry for parcel 002-U-05, the land registration team was informed that Ezrah Nena was an interested party due to his boundary dispute with parcel 002-U-01. Nonetheless, the land registration team failed to serve Ezrah Nena actual notice of the formal hearing and the determination of ownership issued for parcel 002-U-05.

     When a person, entitled to be served notice of the hearing, was not served notice of the hearing and was also not served a copy of the Determination of Ownership, there was no substantial compliance with the notice requirements specified by law. Sigrah, 9 FSM Intrm. at 93. Here, Appellant's father, Ezrah Nena, was not served notice of the hearings and notice of the Determination of Ownership for parcel 002-U-05. There was no substantial compliance with the notice requirements specified by law. Due to the violations of the statutory notice requirement, and in accordance with this Court's decisions in Palik v. Henry, 7 FSM Intrm. 571 (Kos. S. Ct. Tr. 1996) and Sigrah v. Kosrae State Land Comm'n, 9 FSM Intrm. 89, 93 (Kos. S. Ct. Tr. 1999), the Determinations of Ownership for both adjoining parcels 002-U-01 and 002-U-05 are now set aside as void.

III. Order of Remand.

     This matter is now remanded to the Kosrae State Land Commission to hold formal hearings for both parcels 002-U-01 and 002-U-05 on the boundary issue, and to issue determinations of ownership for both parcels. The Land Commission may refer to and consider all of the testimony and other

[10 FSM Intrm. 365]

evidence which was received at the prior inquiries and hearings held with respect to parcels 01 and 05. The Land Commission is ordered to complete its hearings and issue determinations of ownership for parcels 002-U-01 and 002-U-05 no later than November 15, 2001. If the hearings and determinations of ownership are not completed by October 1, 2001, the Kosrae Land Court shall assume the responsibility of conducting the hearings and issuing the determinations of ownership for parcels 002-U-01 and 002-U-05 no later than November 15, 2001, pursuant to Kosrae State Code, Section 11.616.

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