THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
CHUUK STATE
APPELLATE DIVISION
Cite as Marcus v. Suka,
8 FSM Intrm. 300a (Chk. S. Ct. App. 1998)

[8 FSM Intrm. 300a]

MACHKO MARCUS et al.,
Appellants,

vs.
 
JOE and POORLY SUKA,
Appellees.

CIVIL APPEAL NO. 6-95
OPINION

Argued:  December 2, 1997
Decided:  March 23, 1998

BEFORE:
Hon. Keske S. Marar, Associate Justice, Chuuk State Supreme Court, presiding
Hon. Lyndon L. Cornelius, Temporary Justice, Chuuk State Supreme Court*
Hon. Ready Johnny, Temporary Justice, Chuuk State Supreme Court**

*Chief Justice, Kosrae State Court, Lelu, Kosrae
**FSM Public Defender, Weno, Chuuk

APPEARANCES:
For the Appellants:     Manny Otoko, trial counselor
                       P.O. Box 903
                       Weno, Chuuk FM 96942
 
For the Appellees:      Hans Williander, trial counselor
                P.O. Box 389
                Weno, Chuuk FM 96942

*    *    *    *

HEADNOTES
Appeal and Certiorari ) Standard of Review
     The appellate division will not be set aside findings of fact unless clearly erroneous, and due regard will be given to the trial court's opportunity to judge the credibility of the witnesses.  Marcus v. Suka, 8 FSM Intrm. 300a, 300b (Chk. S. Ct. App. 1998).

Appeal and Certiorari ) Standard of Review
     Due regard must be given to the opportunity of the trial judge to weigh the witnesses' credibility.  During the testimony, a trial judge may take into account the witness's appearance, manner, and demeanor while testifying, his apparent frankness and intelligence, his capacity of consecutive narration of acts and events, the probability or improbability of the story related by him, the advantages he

[8 FSM Intrm. 300b]

appears to have had for gaining accurate or retentiveness of his memory as well as the lapse of time affecting it, and even the intonation of his voice and his positiveness or uncertainty in testifying.  It may affect the credibility of a witness that he is expressing his belief as to a particular matter, rather than his knowledge, or that he testifies positively rather than negatively; or that he has made prior statements which are inconsistent with his trial testimony.  Marcus v. Suka, 8 FSM Intrm. 300a, 300b-0c (Chk. S. Ct. App. 1998).

Appeal and Certiorari ) Standard of Review
     To reverse the trial division's findings of fact, the appellate division must find that 1) the trial division's findings are not supported by substantial evidence; 2) there was an erroneous conception by the trial division of the applicable law; and 3) the appellate division has a definite and firm conviction that a mistake has been made.  Marcus v. Suka, 8 FSM Intrm. 300a, 300c (Chk. S. Ct. App. 1998).

*    *    *    *

COURT'S OPINION
KESKE S. MARAR, Associate Justice:
      This is an appeal from the judgment of the Trial Division in an action to determine present ownership to the tidelands known as Nukunanang, located in Mechitiw Village, Chuuk State.

      The testimony during the trial was in sharp conflict as to the chain of title according to Chuukese tradition and custom.  A substantial amount of evidence was offered to show distribution among clan members and transfers of all and portions of the land by various persons who claimed prior rights in the land. Claims of ownership and rights to the lands were based on lineage, spoils of war, grants of fishing rights, and "mechen," a practice of placing stakes on the land marking the boundaries of a claim of rights or ownership.

     The Appellant contends that the Trial Division was in error for its lack of consideration of the practice of "Mechen," for its conclusion that all of the land in question had been transferred to Appellees and that the evidence was not sufficient to support the conclusion that the Appellees are the present owners.

     In essence, the Appellant complains of a single issue:  That the evidence was insufficient to support the findings of fact reached by the Trial Division.

     This issue is governed entirely by the provisions of Rule 52, CSSC Rules of Civil Procedure, which states in part as follows:  "Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses."

      Chuuk Rule 52 is identical to Rule 52, Federal Rules of Civil Procedure and under the system of laws in Chuuk State, the decisions of the United States Courts are authority for decisions of the Chuuk State Supreme Court.

     Cases in the United States Court where Rule 52 is applied hold that the findings of fact in the trial court are presumed to be correct and under Rule 52, the findings of fact will not be set aside unless clearly erroneous.  These cases hold that due regard must be given to the opportunity of the trial judge to weigh the credibility of the witnesses.  J.A. Jones Constr. Co. v. Englert Eng'g Co., 438 F.2d 3, 5 (6th Cir. 1971).

[8 FSM Intrm. 300c]

     Numerous witness gave conflicting testimony during the trial and it is for this reason that Rule 52 was promulgated.  During the testimony, the trial judge may:

take into account the appearance, manner, and demeanor of the witness while testifying, his apparent frankness and intelligence, his capacity of consecutive narration of acts and events, the probability or improbability of the story related by him, the advantages he appears to have had for gaining accurate or retentiveness of his memory as well as the lapse of time affecting it, and even the intonation of his voice and his positiveness or uncertainty in testifying.  It may affect the credibility of a witness that he is expressing his belief as to a particular matter, rather than his knowledge, or that he testifies positively rather than negatively; or that he has made prior statements which are inconsistent with his trial testimony.

81 Am. Jur. 2d Witnesses 662, at 665 (1976) (footnotes omitted).

     In addition to the foregoing guidelines, this Court has previously held that to reverse the findings of fact of the Trial Division, the Appellate Division must find that:  (1) the findings of the Trial Division are not supported by substantial evidence; (2) there was an erroneous conception by the Trial Division of the applicable law; and (3) the Appellate Division has a definite and firm conviction that a mistake has been made.  Cheni v. Ngusun, 6 FSM Intrm. 544, 547, 1 CSR 35, 38 (Chk. S. Ct. App. 1994).

     There is nothing to demonstrate that the criteria outlined in the Cheni case exist or that the findings of fact by the Trial Division were clearly erroneous.

     The judgment of the Trial Division in this case will be affirmed.