POHNPEI LAW REPORTS
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IN THE MATTER OF LAND TRACT No. 75191,
ROHI KITTI ENERIKO ALFONS,
Pohnpei Civil Action No. 4-89
Trial Division of the Pohnpei Supreme Court
February 8, 1989
Appeal from the determination of ownership of land Tract No. 75191 situated in Rohl Kitti, by the Land Commission. The notice of appeal was filed four days after the statutory period of 120 days allowed for appeals from determinations of the Land Commission. The appellee moved to dismiss the appeal on the ground of late filing of the appeal. But the appellant's counsel urged the Court to take a lenient view of the delay in view of the appellant's limited level of sophistication, and his ignorance of the law relating to the limitation of time within which to appeal.
A review of the Land Commission's record revealed the presence of issues (1) whether the common law doctrine of adverse possession was properly applied in the case, and (2) whether the Land Commission's earlier determination in respect of a different parcel of land covered by German Deed No. 325 engulfed part of or any portion of Tract No. 75191.
The Trial Division of the Pohnpei Supreme Court, EDWEL H. SANTOS, Chief Justice, remanding the case to the Land Commission to re-open it on specific issues, held:
(1) that the appellant's argument would not be accepted by the Court because he was represented by counsel both at the Land Commission hearing and in the preparation of his appeal;
(2) that the late filing of the appeal being attributable to the appellant's
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counsel, as the appellant did not act pro se in the Land Commission proceedings and in the appeal process, special consideration could not be given by the Court to excuse the late filing of the appeal; and
(3) that there being issues relating to the proper application of the common law doctrine of adverse possession and the proper identification of the law a remand was an appropriate disposition of the appeal.
1. Appeal and Error - Appellate Procedure - Filing of Notice of Appeal from Determination of Land Commission
Where the appellant retains the services of counsel at the Land Commission's hearing and also in the preparation of his appeal the late filing of the appeal to the Trial Division of the Pohnpei Supreme Court need not be attributed to the appellant, but to his counsel.
2. Appeal and Error - Appellate Procedure - Filing of Notice of Appeal
The limited level of sophistication of the appellant in the Court procedures resulting in the mere ignorance or a failure of the appellant to inquire about the law is not sufficient excuse for the late filing of a notice of appeal.
3. Appeal and Error - Appellate Procedure - Filing of Notice of Appeal Criteria Excusing Late Filing
Where an appellant files a late notice of appeal from the determination of the Land Commission, in order to excuse such late filing the criteria considered by the Court include:
(a) whether there is a "most unusual circumstance" involved which resulted in the late filing; for example, where the failure to file on time results from the default of some officer of the Court;
(b) whether the delay is the result of default or irregularity of public officials for which the appellant is not responsible and the appellant has acted with due diligence upon learning the situation; and
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(c) whether the dismissal of appeal not timely filed will result in substantial injustice.
4. Land - Title - Adverse Possession - Deeds
At common law it has been established that where a deed does not adequately describe the land conveyed, there can be no title to pass, or if the description does not identify the land with the degree of certainty essential to ascertain the boundaries and identity thereof, the instrument lacks one of the first essentials of color of title... one cannot claim color of title by deed beyond what the deed purports to convey; a deed can not serve as a color of title to land not included in the description. A deed which describes part of a tract does not constitute color of title to the part of the tract not described so as to establish constructive adverse possession to the whole from the possession of part. (3 Am Jur. 2d, Adverse Possession, Section 147)
Counsel for Appellant: Dino Donre
Micronesian Legal Services Corporation
Counsel for Appellee: loanis Kanichy,
Public Defender's Office
EDWEL H. SANTOS, Chief Justice
The Pohnpei Land Commission determined on September 7, 1988, that Tract No. 75191, situated in Rohi Kitti, belonged to the appellee, Sadosy Une. Service of the determination was made on Sadosy Une and on Hainrich Iriarte, counsel for the appellant, on
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the same day, September 7, 1988. Hainrick Iriarte then informed the appellant of the Land Commission's determination on November 8,1988. The appellant consequently sought assistance of the Micronesian Legal Services Corporation Office approximately two weeks before January 9,1989, forthe possibility of an appeal. The Micronesian Legal Services Corporation then lodged an Appeal Notice with this Court on January 9, 1989. This filing was approximately four days longer than the statutory period of 120 days allowed for appeals from determinations of the Land Commission. A determination of ownership by the Land Commission shall be subject to appeal by any party aggrieved thereby to the Trial Division of the [Pohnpei Supreme] Court at any time within one hundred twenty days (120) from the date of said determination. 67 TTC 115. The appellee moved to dismiss the appeal on the ground of late filing, and the lack of jurisdiction. Hearing was had on the motion to dismiss in my chambers on February 7, 1989, and both parties with their counsel were present.
 The appellant's counsel argued that special consideration ought to be given to the appellant for his ignorance of law
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relating to the time limitation within which an appeal from the determination of ownership rendered by the Land Commission may be lodged. This argument cannot be accepted because the appellant was represented by counsel at the Land Commission's hearing and also is represented by the Micronesian Legal Services Corporation counsel in the preparation of his appeal. Accordingly the late filing need not be attributed to the appellant but to his counsel. If the appellant was acting pro se in the Land Commission proceedings and in the appeal process, special consideration may be given.
 The appellant's counsel also argued that given the limited level of sophistication of the appellant in the court procedures which resulted in his filing his notice of appeal late, the Court should adopt a policy of leniency in reviewing the appellant's situation which led to the late filing, and determine an appropriate relief to such situation on a case-by-case basis. The Trust Territory Court had dealt with a situation like this as the Court said in Milne v. Tomasi, 4 TTR. 488:
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"Mere ignorance of or failure to inquire about the law is clearly insufficient excuse for late filing of the notice."
In view of the expressed 120-days statutory period within which an aggrieved party must file his appeal from a Land Commissioner's determination of ownership, coupled with the authority cited supra, the Court cannot accept the argument.
 The issue of late filing of notice of appeal had been ,addressed by the predecessor Court of this jurisdiction in many instances, and the Court had then developed the criteria for consideration as to whetherto grant an excuse for an appellant who filed notice of appeal late. The criteria enunciated in the cases include:
(a) There must be a "most unusual circumstance" involved which resulted in the late filing. An example of such a most unusual circumstance is where the failure to file on time results from the default of some officer of the Court. San Nicolas v. Bank of America, 6 TTR 568.
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In the San Nicolas case, supra, the Court said:
Where notice of appeal was filed one day later than the 30 days period for filing, and no unusual circumstances warranted exception to rule that late appeal will not be accepted, appeal would be dismissed.
Under this test, the appellant's argument here would be rejected and the appeal dismissed.
(b) The delay is the result of default or irregularity of public officials for which the appellant is not responsible, and the appellant has acted with due diligence upon learning the situation. Ngodrii v. Trust Territory, 2 TTR 142.
(c) The third category is where dismissal of an appeal not timely filed would result in substantial injustice. Aguon v. Rogoman, 2 TTR 258. Under the third category the Appellate Court may review the record in cases where the appeal is not timely filed.
Upon consideration of the advisory precedents established by the predecessor Court, this Court adopts, as a starting point for determining whether an appeal which is not timely filed should be
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allowed, the three tests above, that is:
(a) whether there exists some most unusual circumstance which resulted in the late filing, or
(b) whether the late filing was due to the default or irregularity of certain public officials, for which the appellant is not responsible, and he acted diligently upon learning of the situation, or
(c) whether dismissing the notice of appeal not timely filed would result in a substantial injustice.
 In the case at bar categories (a) and (b) are not satisfied. Category (c) may have some bearing on the case because a review of the Land Commission's record reveals the presence of the issues of (1) whether the common law doctrine of adverse possession was properly applied in this case, and (2) whetherthe Land Commission's earlier determination of a different parcel of land covered by German Deed No. 325 already had engulfed part of or any portion of Tract No. 75191.
For this reason the Court considers that a remand is an appropriate disposition. The parties having concurred for a remand, it is Ordered that the case be and is remanded to the
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Pohnpei Land Commission for a limited purpose of reopening the case to determine the following issues.
1. The boundary line which separated lands covered by German Deeds 325 and 313.
The record talks about a stream separating the lands covered by German Deed 313 and German Deed 325, and that this is allegedly shown on the faces of the respective German Deeds. The Land Commission needs to consider the best evidence rule to examine the original deeds if available to satisfy itself as to whether there was a stream which separated the lands covered by German Deeds 325 and 313 in Rohi, Kitti. The record also talks about a boundary clearing wherein one, Domingko Martin testified he took part, that somewhere on the boundary so cleared, Domingko Martin and some others erected a new boundary marker which apparently stretches or connects the boundary from a German boundary located outside of Sadosy Une's house, thence to the boundary erected by Domingko Martin and others thence crossing a stream points to another German boundary at Mauricio's house. This apparently is a new boundary, and it is what the Land
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Commission determined to be the correct boundary.
2. What was the real basis upon which the doctrine of "adverse possession" was invoked if the parcel now designated as Tract No. 75191 was earlier purchased by Unesang and later confirmed in 1948 to Ingkarnasion.
The Land Commission will need to re-examine the metes and bounds of a parcel supposedly to cover German Deed 325 which was the subject of its earlier determination of ownership made in about 1984 to determine whether there is in fact any over-lapping of Tract No. 75191 into that 1984 determination re: German Deed 325.
The proper identification of the boundaries and laterdevelopments or changes that took place within the area in question since 1948 is important for decision because the record apparently relied upon by the Land Commission does show some unclarity if not contradictions.
For example in Domingko Martin's testimony we find these gaps: When their grandfather gave a parcel to Unesang and Ingkarnasion, Domingko Martin, Angkel, loanis and Victorino were
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the ones who cleared the boundary, presumably that boundary of the area given to Unesang and Ingkarnasion. But then his next testimony totally contradicted the first as we read:
Q. Ni ahnsou me kumwail mwatih lain wet, lain wet doke wasa me pid Ingkarnasion?
A. Wasa me irepeseng Alanso oh Angkel.
Q. Pwehki omwi koasoia lain, lain en ire peseng nan pwungen ihs?
A. Angkel oh Alanso.
Domingko Martin's testimony here is very confusing and quite misleading because ‘IF THEY WERE TO CLEAR THE BOUNDARY OF THE PARCEL THEIR GRANDFATHER WAS GIVING TO UNESANG AND INGKARNASION, WHY WOULD THEY BE BOTHERED TO CLEAR THE BOUNDARY LINE BETWEEN ALANSO AND ANGKEL'S LANDS.' Mr. Martin's testimony left this issue unanswered, at least as reflected in the record. A determination of the issue is crucial because it will help clarify:
1. the true boundary between the lands covered by German Deeds 325 and 313 and
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2. the issue of adverse possession, because if, among other elements, Angkel took part in the clearing of the boundary, and that clearing was to set aside the area given to Unesang and Ingkarnasion, ratherthan merely to show the boundary line between Alanso and Angkel, that it stretches onto a portion of the land covered by German Deed 325, then Angkel and his successors, including the appellant here may well be held to keep silent.,
 On the other hand one should note that although there was an alleged sale of land to Unesang which led to the clearing of the boundary as testified to by Domingko Martin, and that later in 1948 a document was executed purporting to convey an unidentified area of land to Angkarnasion, that 1948 document was recorded with the Clerk of Court as late as April 14, 1969. Thus the lack of particularity of the 1948 document purportedly to convey a piece of land to Angkarnasion, plus the registration of that document in 1969 raises the issue of whether adverse possession was properly applied by both Sadosy Une and the Land Commission. It has been established in the common law of adverse possession that where a deed does not adequately describe the land conveyed,
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there can be no title to pass. If the description does not identify the land with the degree of certainty essential to ascertain the boundaries and identity thereof, the instrument lacks one of the first essentials of color of title. One cannot claim color of titIe by deed beyond what the deed,purports to convey; a deed can not serve as a color of title to land not included in the description. A deed which describes part of a tract does not constitute color of title to the part of the tract not described so as to establish constructive adverse possession to the whole from the possession of part. 3 Am Jur 2d, Adverse Possession Section 147.
The Land Commission is to re-open the hearing solely forthe purpose of determining the two issues herein stated, and to make amended findings and determination if the additional evidence received so justifies. So ORDERED, February 8, 1989.