KOSRAE STATE COURT TRIAL DIVISION
Cite as Ittu v. Heirs of Mongkeya
10 FSM Intrm. 446 ( Kos. S. Ct. Tr. 2001)
 
[10 FSM Intrm. 446]
 
TIMOTHIES L. ITTU,
Appellant,
 
vs.
 
HEIRS OF KUN MONGKEYA,
Appellees.
 
CIVIL ACTION NO. 5-01
 
MEMORANDUM OF DECISION;
ORDER OF REMAND TO LAND COMMISSION
 
Yosiwo P. George
Chief Justice
 
Hearing: October 29, 2001
 
Decided: October 30, 2001
 
APPEARANCES:
 
For the Appellant:                  Sasaki George, Esq.
                                                Micronesian Legal Services Corporation
                                                P.O. Box 38
                                                Lelu, Kosrae FM 96944
 
For the Appellees:               Justus K. Mongkeya, pro se
                                               Lelu, Kosrae FM 96944

* * * *

HEADNOTES
 
Administrative Law ; Constitutional Law ) Due Process; Property )Land Commission
     Adjudicatory decisions of governmental bodies affecting property rights are subject to the procedural due process requirements of the Constitution. Due process requirements are applicable to the proceedings of the Kosrae Land Commission. Ittu v. Heirs of Mongkeya, 10 FSM Intrm. 446, 447 (Kos. S. Ct. Tr. 2001).
 
Constitutional Law ) Kosrae ) Due Process
     The essential features of procedural due process, or fairness, require notice and opportunity to be heard. Ittu v. Heirs of Mongkeya, 10 FSM Intrm. 446, 447 (Kos. S. Ct. Tr. 2001).
 
Constitutional Law ) Kosrae ) Due Process; Evidence
     Due process requires that the parties be given the opportunity to comment upon evidence. Ittu v. Heirs of Mongkeya, 10 FSM Intrm. 446, 448 (Kos. S. Ct. Tr. 2001).
 
Constitutional Law ) Kosrae ) Due Process; Property ) Land Commission
     When a party was not given an opportunity to comment or rebut the evidence presented by the
 
[10 FSM Intrm. 447]
 
adverse claimants at the formal Land Commission hearing, and was not given an opportunity to cross examine adverse witnesses or an opportunity to present his own testimony to rebut adverse claims, this procedural failure is a violation of the due process protection provided by the Kosrae Constitution; and the issued determination of ownership will be set aside, and held null and void and the matter remanded to the Land Commission. Ittu v. Heirs of Mongkeya, 10 FSM Intrm. 446, 448 (Kos. S. Ct. Tr. 2001).

* * * *

COURT'S OPINION

YOSIWO P. GEORGE, Chief Justice:

     This matter is an appeal from the Determination of Ownership issued for parcel 030-M-06 to the Appellees, Heirs of Kun Mongkeya, on July 31, 2000. Appellants Brief was filed on May 17, 2001. Appellees did not file any brief. The hearing on the briefs was held on October 29, 2001. Sasaki George, MLSC, appeared for the Appellant. Timothies L. Ittu was also present at the hearing. Appellees were represented by Justus K. Mongkeya.

     After the hearing, this matter was taken under advisement. Based upon the information presented to the Court, the arguments of the parties, the record and file in this matter, and in the interest of justice, the Determination of Ownership for parcel 030-M-06 is vacated and this matter is remanded back to the Kosrae State Land Commission for further proceedings. This Memorandum explains the Courts reasoning.

I. Analysis.

     Appellant presented both factual and legal arguments in support of his claims on appeal. Appellant argued that the Land Commission failed to reasonably assess the evidence presented at the hearing. Appellant also argued that several actions by the Land Commission taken during agency proceedings violated the Kosrae State Constitution and Kosrae State Law. Based upon the review of the record and file, and arguments presented, this Court concludes that the Land Commission proceedings violated the due process protection provided by the Kosrae State Constitution. The Court does not reach the factual issues and arguments presented by the parties.

     Appellant argued that Lupe Ittu, representative for the Appellants, was not provided an opportunity to cross examine his adverse witnesses, and was not given the opportunity to rebut the adverse claims made against him at the formal hearing held on May 16, 1986. Appellant argues that this procedural deficiency is a violation of the due process protection granted by the Kosrae State Constitution, Article II, Section 1(b). The Court has carefully reviewed the record in this matter and finds the Appellants due process claims to be meritorious. This Court concludes that the Appellant was not given an opportunity to cross examine the adverse witnesses at the formal hearing, nor given an opportunity to rebut adverse claims.

     Adjudicatory decisions of governmental bodies affecting property rights are subject to the procedural due process requirements of the Constitution. Etpison v. Perman, 1 FSM Intrm. 405 (Pon. 1984). Due process requirements are applicable to the proceedings of the Kosrae State Land Commission. The essential features of procedural due process, or fairness, require notice and opportunity to be heard. Taulung v. Kosrae, 8 FSM Intrm. 270 (App. 1998). A hearing cannot qualify as a full evidentiary hearing when a party did not have an opportunity to present evidence. See In re Attorney Disciplinary Proceeding, 9 FSM Intrm. 165 (App. 1999).

[10 FSM Intrm. 448]

     Due process requires that the parties be given the opportunity to comment upon evidence. Langu v. Kosrae, 8 FSM Intrm 455 (Kos. S. Ct. Tr. 1999). Here, the Appellant was not given an opportunity to comment or rebut the evidence presented by the adverse claimants at the formal hearing. Appellant was not given an opportunity to cross examine adverse witnesses, nor an opportunity to present his own testimony to rebut adverse claims. This procedural failure is a violation of the due process protection provided by the Kosrae State Constitution. Accordingly, the Determination of Ownership for parcel 030-M-06 is set aside, and held null and void.II. 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 claimants, hold formal hearings for parcel 030-M-06, provide an opportunity for all claimants to cross examine other claimants, and to provide an opportunity for claimants to rebut the claims made by other claimants. The Land Commission may refer to and consider all of the testimony and other evidence which was received at prior hearings held with respect to parcel 030-M-06. The Land Commission is ordered to complete its hearings and issue the determination of ownership for parcel 030-M-06 no later than January 10, 2002.

* * * *

 
 
$Ph%&'()34567P48P9:P6;P4<P4=P6>P4?P6@PhA(B(CDE/FGHIJK  MW XY