APPEARANCES:

For the Plaintiff:   Snyder H. Saimon, trial counselor

                                 P.O. Box 1017

                                 Tofol, Kosrae   FM   96944

For the Defendants:   Benjamin Joshua, in pro per

                                         Kosrae   FM   96944

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Civil Procedure ) Injunctions; Property ) Registered Land

Civil Procedure ) Injunctions

Civil Procedure ) Injunctions

Civil Procedure ) Injunctions

Civil Procedure ) Injunctions

Civil Procedure ) Injunctions

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     The Plaintiff’s Motion for Preliminary Injunction was continued on June 20, 2005. Snyder Simon appeared for the Plaintiff. Several of the heirs of Nena and Agnes Mike appeared on behalf of the Defendants. Benjamin Joshua appeared as the lead spokesperson for the Defendants. Canney Palsis, MLSC, appeared to inform the Court of the non-representation of the Defendant, due to a conflict of interest, and due to ongoing representation of the Defendants by trial counselor Akiyusi Palsis.

I.  Findings of Fact.

     Based upon the pleadings, evidence received at the hearing and the record, I make the following

findings. Plaintiff is a named fee owner on the Certificates of Title for parcels 009-K-06 and 009-K-07, located in Fwinfoko, Lelu, issued on February 28, 1986. Plaintiff is an heir of Elise Akinaga, who is the named fee owner on a Certificate of Title for parcel 043-K-06, located at Innem, Lelu, issued on January 22, 1993. Plaintiff is acting as administrator for parcel 043-K-06, on behalf of her deceased mother.

      Plaintiff’s mother, Elise Akinaga, granted verbal permission many years ago to Agnes Mike and her family to use all three subject parcels. Agnes and Nena Mike, and their heirs have used all three parcels for residential and farming purposes since World War II. Elise Akinaga never withdrew permission for the Defendants to use those three parcels at any time before her death.

     The Defendants have relied upon use of the three parcels for more than sixty years, and have planted short term and long term crops on the parcels. Defendants have also utilized the subject land to bury members of their family. When the Certificates of Title were issued for the subject parcels, the Plaintiff started to exercise her authority as owner, and attempted to eject the Defendants from the parcels. Defendants have refused to vacate the parcel and Plaintiff has not been able to develop the parcels. Defendants question the authority of the Plaintiff with respect to the Innem parcel 043-K-06. Defendants claim that their immediate removal from the three parcels would cause substantial hardship upon them. The only evidence presented at the hearing as proof of ownership of the subject parcels were the three Certificates of Title referenced above.

     Plaintiff now seeks a Preliminary Injunction to prohibit Defendants from any unlawful activity and further activity on the subject parcels, until this matter is resolved.

     The standard for issuance of a preliminary injunction has been long established. This Court must consider the following four criteria in determining whether to grant a preliminary injunction:

Seventh Kosrae State Legislature v. Sigrah, 11 FSM Intrm 110 (Kos. S. Ct. Tr. 2002).

     Based upon the evidence presented at the hearing, the record and the law, I considered the four criteria as follows.

1. The likelihood of success on the merits of the party seeking injunctive relief

     The Plaintiff is the named owner on two Certificates of Title for the subject parcels. Plaintiff is an heir of her mother, Elise Akinaga, who is the named owner on the third subject parcel. For this proceeding only, Defendants do not dispute ownership of the Fwinfoko parcels by the Plaintiff. Defendants do not dispute ownership of the Innem parcel, but only question the authority of the Plaintiff to serve as administrator for the parcel.

     A Certificate of Title is prima facie evidence of ownership. Jonas v. Paulino, 9 FSM Intrm. 513 (Kos. S. Ct. Tr. 2000). Courts are required to attach a presumption of correctness to a Certificate of Title. Marcus v. Truk Trading Corp., 11 FSM Intrm. 152 (Chk. 2002). Based upon the Certificates of Title which were presented at the hearing, the Plaintiff is presumed to be an owner of the subject parcels. This factor of the likelihood of success on the merits weighs in favor of the Plaintiff.

2. The possibility of irreparable injury.

     The party seeking protection must be faced with irreparable harm before the conclusion of the litigation. There must be a clear showing that immediate and irreparable injury or loss or damages would otherwise occur, and there must be no adequate alternative remedy. Seventh Kosrae State Legislature v. Sigrah, 11 FSM Intrm. at 113-114.

     Plaintiff argues immediate and irreparable harm will result before trial of this matter through activities of the Defendants. Defendants have completed burials and continue to plant short and long term crops on the parcels. Plaintiff argues that she is unable to develop the parcels while the Defendants occupy the parcels.

     Defendants argue they would suffer immediate and irreparable harm if forced to immediately vacate the parcels. Defendants have occupied and used the parcels for sixty years and rely upon use of the parcels for residential and farming purposes.

     Plaintiff has had notice and has known that the Defendants have occupied the subject parcels for many years. At least since 1986, when the Certificates of Title were issued for the Fwinfoko parcels, Plaintiff, as an owner, had authority to seek ejection of the Defendants. She did not. Instead, Plaintiff has waited nearly 20 years since she has been awarded title to bring this action.

     Plaintiff, as an heir of Elise Akinaga, had authority to seek ejectment of the Defendants, at least since the death of her mother. She did not. Plaintiff waited until this time to bring this action. Plaintiff’s failure to take action to assert her ownership rights for many years may be viewed as a waiver to Defendants’ actions which have taken place after Plaintiff’s status as an owner was finalized. Nonetheless, any actions of the Defendants in the future to plant crops or conduct burials on the subject land will constitute irreparable harm.

     Based upon the record and upon the evidence presented at the hearing, I conclude that the Plaintiff has shown potential irreparable harm to the subject parcels by Defendant’s future actions. This factor weighs in favor of the Plaintiff.

3. The balance of possible injuries or inconveniences to the parties from granting or denying relief.

     If injunctive relief is denied, Plaintiff will continue to experience interference with her development of the subject parcels, as Defendants will continue to occupy those parcels. If injunctive relief is granted, the Defendants will suffer injuries and inconveniences by being forced to vacate the parcel and losing resources for residence and farming.

     Plaintiff seeks assistance of this Court only years after obtaining title to the subject parcels, and has allowed the activities of the Defendants to continue until this request for injunctive relief. After failing to develop the parcels for many years, Plaintiff now demands the immediate removal of the Defendants for development purposes.

     Defendants, with the permission of Elise Akinaga, have occupied and used the parcels for sixty

years, a substantial period of time. They rely upon the land for farming and food resources and claim that an immediate removal would cause substantial hardship. Based upon these considerations, the balance of possible injuries or inconveniences to the parties weighs in favor of the Defendants.

4. Impact on the public interest.

     The final criteria to be considered in an application for injunctive relief is the impact upon public interest. There is strong public interest in the protection of the land registration and ownership determination process. There is strong public interest in the Court’s upholding of presumption of correctness to a Certificate of Title, the finality of land ownership decisions, and the rights of fee owners of land to assert their ownership rights, including seeking ejection of trespassers from their land. This factor weighs in favor of the Plaintiff.

5. Conclusion.

     Based upon careful consideration of the testimony and other evidence submitted at the hearing, the record in this matter, arguments of counsel and applicable law, I conclude that three of the four factors weigh in favor of the Plaintiff. Accordingly, the Plaintiff’s Motion for Preliminary Injunction is granted as follows.

     A Preliminary Injunction is entered against the Defendants as follows:

     Defendants shall immediately inform this Court in writing upon the return of their counsel, Akiyusi Palsis, to the State of Kosrae. Upon the return of Mr. Palsis to Kosrae State, the Court shall enter an order establishing pre-trial deadlines and a trial week for this matter, at the earliest possible date. Defendants, through their counsel, may also seek modification of this Preliminary Injunction.