7 FSM Intrm. 571-577

program: 1) survey and establish tentative boundaries, 2) notice and conduct preliminary inquiry, 3) notice and conduct formal hearing, 4) notice and issue determination of ownership, and 5) issue certificate of title. These duties are both administrative and adjudicative. Palik v. Henry, 7 FSM Intrm. 571, 574 (Kos. S. Ct. Tr. 1996).

It is critical that the Land Commission post notice on the land, at the municipal office, and at the principal village meeting place and serve notice on all interested parties at least thirty days in advance of a formal hearing and give similar notice of its determination of ownership. Notice is required because it gives a chance to be heard. Palik v. Henry, 7 FSM Intrm. 571, 576 (Kos. S. Ct. Tr. 1996).

The Land Commission is required by statute to give actual, not constructive notice for hearings to all interested parties and to post notice on the land, at the municipal office and principal meeting place at least thirty days in advance of the hearing. Palik v. Henry, 7 FSM Intrm. 571, 577 (Kos. S. Ct. Tr. 1996).

This case went to trial on the issue of whether defendant Jacob Henry was properly afforded procedural due process and statutory rights during Land Commission proceedings starting 1976 through 1979 on a parcel designated 040-K-03. The Court has received and considered all relevant testimony and evidence admitted at trial, as well as the closing arguments submitted by written memoranda.

had trouble retaining counsel and the case was dismissed without prejudice on May 1, 1990. Bingham filed the Complaint in this action on December 15, 1992, seeking a declaration of his rights to parcel 040-K-03 and damages from Jacob for his alleged wrongful possession of the parcel.

Jacob filed a timely answer, asserting an affirmative defense that the Land Commission determinations denied him due process of law. Before trial, the parties agreed to bifurcate and stipulated to the trial of Jacob's affirmative defense first. The issue tried was thus whether the Land Commission violated Jacob's right to due process of law or was otherwise contrary to law. The parties also stipulated that if decision on the issue favored Jacob, that the matter would be remanded to the Land Commission. If the issue was found in the favor of Bingham, trial would then proceed on Bingham's claim for damages.

As part of its regular duties, the Land Commission1 began to register parcels in the Innem section of Lelu Municipality in 1976. Bingham Palik filed an Application for Registration of Land Parcel for parcels 040-K-03 and 040-K-12, with the Kusaie Branch of the Ponape District Land Commission on January 21, 1976. In the Application, Bingham did not list any person as occupying the parcels adjoining the ones he applied to register.

Before the scheduled May 21, 1976 preliminary inquiry, the Land Commission prepared a preliminary sketch of the areas to be registered, including what are now designated as parcels 040-K-01, 040-K-03, and 040-K-12. The preliminary sketch indicated disputed areas and a boundary dispute at the western side of the area to be registered, involving those three parcels. In cases of competing claims, it was the practice of the Land Commission to notify all parties claiming an interest in the disputed area in advance of the preliminary inquiry, so that any interested party could attend the preliminary inquiry to make a claim.

As of December 1976, Soarku was identified as the ostensible owner of parcel 040-K-01. Jacob Henry is the eldest son of Moses Henry, who was an adopted son of Soarku. Jacob, representative of the heirs of Moses Henry, and his uncle, John P. Sigrah, are identified as the present ostensible owners of parcel 040-K-01.

Jacob was attending school in the United States in December 1976, and did not receive notice of the preliminary inquiry on parcel 040-K-03. The preliminary inquiries for both parcels were scheduled to be held on the same day, December 21, 1976. The preliminary inquiry on parcel 040-K-01 was scheduled to begin at 8:00 a.m., followed by the preliminary inquiry on parcel 040-K-02 at 8:30 a.m., and 040-K-03 at 9:00 a.m. At the preliminary inquiry on parcel 040-K-03, Bingham answered 27 questions from the Land Commission. The questions and answers were short, none longer than a single sentence. No evidence was submitted at trial of any other testimony or evidence considered at the preliminary inquiry on parcel 040-K-03.

After the preliminary inquiry, the Land Commission was satisfied that Bingham's claim to parcel 040-K-03 was well founded. Other than the Notice scheduling a preliminary inquiry for that date, the parties submitted no evidence that the preliminary inquiry on parcel 040-K-01 proceeded as scheduled on December 21, 1976, at 8:00 a.m.

On December 28, 1978, the Land Commission issued the Notice of Formal Hearing on parcel 040-K-03, scheduled for February 1, 1979. The Notice of the Formal Hearing on parcel 040-K-03 was served or posted as follows: (1) posted on the parcel in question on January 4, 1979; (2) posted at the municipal office and at the principal meeting place of the village on December 29, 1978; (3) served on Bingham Palik as ostensible owner on January 2, 1979; and (4) delivered to the radio station to be announced over the radio on January 4, 1979. Notice of the Formal Hearing on parcel 040-K-03 was not served on Jacob.

The Preliminary Inquiry on parcel 040-K-01 began on May 6, 1979, and was continued until May 29, 1979. In both sessions, either John P. Sigrah or Jacob acknowledged the claim of Bingham. On May 29, 1979, Jacob filed an Application for Registration of Land Parcel for parcel 040-K-01, listing Bingham as one of the persons occupying parcels adjacent to parcel 040-K-01.

On May 31, 1979, the Land Commission issued a Notice of Formal Hearing on parcel 040-K-01, scheduled for July 2, 1979. The Notice was posted on the land in question, at the municipal office, and at the principal meeting place; and was served on the ostensible owner, Jacob Henry, all on May 31, 1979. Notice of the Formal Hearing on parcel 040-K-01 was not served on Bingham.

The Land Commission issued a Determination of Ownership dated January 31, 1985, in favor of John P. Sigrah and the Heirs of Moses Henry, represented by Jacob Henry, for parcel 040-K-01. This Determination of Ownership was not appealed. The Land Commission issued a Determination of Ownership dated March 29, 1985, in favor of Bingham Palik, for parcel 040-K-03. This Determination of Ownership was not appealed. Certificates of Title for both parcels were issued on May 28, 1987, consistent with the respective Determinations of Ownership.

The Kosrae State Land Commission, and those in several other Federated States, are a legacy of Trust Territory administration of Micronesia. Land Commissions were created in each district of the Trust Territory to systematically register land and determine ownership. 67 TTC 101. Once a section of land in a district was considered for registration, the Land Commission undertook a program of up to five distinct steps: (1) survey and establish tentative boundaries; (2) notice and conduct preliminary inquiry; (3) notice and conduct formal hearing; (4) notice and issue determination of ownership; and (5) issue certificate of title. 67 TTC 101 et seq.

In fulfilling these duties, the responsibility of the Land Commission was both administrative ) registration of uncontested claims to parcels ) and adjudicative ) determination of ownership of disputed claims. Id. Although each stage was critical, the focus in this and other disputed cases falls generally on the adjudicative portions of the process, the preliminary inquiry, the formal hearing, and the determination of ownership.

After the initial survey, the Land Commission should in all cases institute a preliminary inquiry to record the claims to the areas to be registered. 67 TTC 107(1)(a). At the preliminary inquiry, the Land Commission should hear parties and witnesses and when possible adjudicate the claims. 67 TTC 107(1)(b). The practice of the Kosrae Land Commission was to notify all persons claiming an interest in a disputed area in advance of the preliminary inquiry, so that the person could attend the preliminary inquiry and make a claim. "Interested party" therefore means any person who claims an area, or a portion of an area in dispute, including a disputed boundary. See, e.g., Etpison v. Perman, 1 FSM Intrm. 405, 420-21 (Pon. 1984).

In this case, the sketch prepared by the Land Commission after the survey and marking of boundaries, but before the preliminary inquiry on either parcel, indicated a disputed area between parcel 040-K-01 claimed by Jacob Henry, and parcel 040-K-03, claimed by Bingham Palik. Thus, Jacob was an interested party in the parcel claimed by Bingham, and Bingham was an interested party in the parcel claimed by Jacob. Despite the identification of a disputed area between the parcels claimed by Bingham and Jacob, the Land Commission did not give Jacob notice of the preliminary inquiry on the parcel Bingham claimed. Likewise, the Land Commission did not give Bingham notice of the preliminary inquiry on the parcel that Jacob claimed. This basic error had far-reaching effects.

Plaintiff argues at great length that Jacob's mother attended, or could have attended, the preliminary inquiry on parcel 040-K-03, claimed by Bingham Palik. Plaintiff's argument is that the preliminary inquiries on the two parcels in question were originally scheduled to take place on the same day, December 21, 1976, and only one half hour apart. The preliminary inquiry on parcel 040-K-01 was scheduled to begin at 8:00 a.m., while the one for parcel 040-K-03 was scheduled to begin at 9:00 a.m. Plaintiff also cites Jacob's supposition that his mother might have attended the preliminary inquiry on that date. Plaintiff concludes that Jacob's mother must have been in attendance at the preliminary inquiry on parcel 040-K-03.

The Court declines to make this inference. The evidence on which it stands is not solid. First, no direct evidence that Jacob's mother attended any inquiry on December 21, 1976, was adduced at trial. This was only Jacob's supposition, his guess, that his mother could have attended. Jacob was not in a position to observe whether his mother attended any preliminary inquiry in Kosrae on December 1976, because he was then attending school in the United States. Second, other than the schedule, no evidence that the preliminary inquiry on parcel 040-K-01 took place on December 21, 1976 as originally scheduled, was adduced at trial. In fact, the evidence points to a preliminary inquiry on that parcel held more than three years later, on May 6 and May 29, 1979. Third, no evidence was submitted on the preliminary inquiry on parcel 040-K-03 showed that Jacob's mother was in attendance. In short, plaintiff asks the Court to conclude that Jacob's mother attended because she might have attended a preliminary inquiry that might have taken place an hour before the preliminary inquiry in question, even though there is no direct evidence that she did attend either inquiry. These are slender reeds, too thin to support the inference that plaintiff urges. Because of the lack of evidence, the Court cannot find that Jacob's mother attended the preliminary inquiry on parcel 040-K-03.

As with the preliminary inquiry, Bingham was not given notice of the formal hearing on parcel 040-K-01, claimed by Jacob; Jacob was not given notice of the formal hearing on parcel 040-K-03, claimed by Bingham. The original inquiry showed a boundary dispute and disputed areas. Yet the Land Commission did not inform each side of the other's preliminary inquiry. Neither side was therefore noticed to the other's formal hearing. The failure of the Land Commission to identify Bingham and Jacob as interested parties in each other's parcels was thus compounded. Neither received notice, and neither attended the formal hearing on the other's parcel.

The original sin was compounded further still. Having received no indication of an adverse claim in the first place, neither Jacob nor Bingham was given notice of the determination of ownership of each other's parcel, as to which each made a claim. Notice of the determination of ownership was required to be served in the same manner as the formal hearing. 67 TTC 114. Bingham had no notice to appeal a determination of ownership favoring Jacob, and Jacob had no notice to appeal a determination of ownership favoring Bingham.

The failure of the Land Commission to invite the parties to each other's preliminary inquiries, and the subsequent failures of service of notice of the formal hearings and determinations of ownership denied due process of law. Etpison, 1 FSM Intrm. at 422-23. Notice is critical because the Land Commission acted in both instances as an adjudicative body conducting a rational decision making process. Id. at 422. At the preliminary inquiry and the formal hearing, witnesses are questioned, evidence is submitted, parties may be represented by counsel who may question the witnesses. Notice is required because it provides a chance to be heard. Id. at 424. The adjudicative process anticipates that both sides to a dispute may present their arguments at the same time, and to cross-examine each other's witnesses. Although some evidence shows that the Land Commission considered the claims of Jacob and Bingham separately, it should have considered them together. The entire procedure is

What may be more significant than respect for the process is the subject of the proceedings, land. There is a substantial interest in assuring that land disputes are decided fairly because of the fundamental role that land plays on Kosrae, and throughout Micronesia. Heirs of Mongkeya v. Heirs of Mackwelung, 3 FSM Intrm. 92, 98 (Kos. S. Ct. Tr. 1987). In land cases, notice requirements shall be followed. The Court therefore holds that the failure to serve actual notice denied Jacob Henry due process of law. The failure to serve actual notice would deny Bingham due process of law had he pled it. As to him, the failure to serve actual notice was contrary to law. Due to the violations in the notice requirement, both judgments of the Land Commission are void. Etpison, 1 FSM Intrm. at 428.

Plaintiff argues that Jacob received at the very least constructive notice of the preliminary inquiry, the formal hearing, and the determination of ownership, and waived his right to appear and present his claim to the land. The Court discerns little leeway in these notice requirements. First, the notice requirement is given as imperative, notice "shall" be given as follows. 67 TTC 110(1). Second, the notice requirement is conjunctive, not disjunctive. There is no word "or" between possible methods of notice. Notice must be given in each of the manners specified. Id.

Third, 67 TTC 110 itself provides for both constructive notice ) posted on land, at municipal office, and the principal meeting place ) and actual notice served on interested parties. Id. Although 67 TTC 112 provides for notice for hearings in the disjunctive, by "actual or constructive" notice, the Court concludes that the more specific provisions of 67 TTC 110 requiring actual notice apply here. The more specific statute takes precedence over the less specific. See Olter v. National Election Comm'r, 3 FSM Intrm. 123, 129 (App. 1987).

Finally, the Court notes some significant failures of notice even if it were to allow for constructive notice. For parcel 040-K-03, notice of the formal hearing was posted on the land in question, and given to the radio station to be broadcast on January 4, 1979. That was not thirty days in advance of a hearing to be held on February 1, 1979. Potential error would still exist even if constructive notice were allowed.

Plaintiff's lengthy argument is built around authorities from the United States. Because land ownership determinations in the FSM are conducted using different procedures and resources than such determinations in the United States, it is not appropriate to adopt the same legal reasoning employed in US jurisdictions. Wito Clan v. United Church of Christ, 6 FSM Intrm. 129, 133 (App. 1993).

The Court inserts a note of caution in its order of remand. This order goes to the process by which the Land Commission served notice, not its method of adjudicating the claims. The Land Commission can, and certainly should, refer to its previous findings and conclusions, and all of the testimony received at the prior inquiries and hearings. The decision of the Land Commission is not here at issue. It is the method by which it reached a decision and communicated it that was in error.

The determinations of ownership on parcels 040-K-01 and 040-K-03 are vacated. The matter is remanded to the Land Commission to take action consistent with this opinion, including, as necessary, preliminary inquiries as to both parcels, formal hearings as to both parcels, and determinations of ownership as to both parcels.