THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
Cite as Nakamura v. Moen Municipality,
7 FSM Intrm. 375 (Chuuk S. Ct. Tr. 1995)

[7 FSM Intrm. 375]

ECHEN NAKAMURA et al.,
Appellants,

vs.

MOEN [WENO] MUNICIPALITY,
Appellee.

CA (TSC) No. 37-88

DECISION

Soukichi Fritz
Chief Justice

Decided:  January 24, 1996

APPEARANCES:
For the Appellant:     Charles Greenfield, Esq.
                                    Micronesian Legal Services Corporation
                                    P.O. Box 129
                                    Kolonia, Pohnpei FM 96941

[7 FSM Intrm. 376]

For the Appellee:      Kachuo Eko, Trial Counselor
                                    Assistant Attorney General
                                    Office of the Chuuk Attorney General
                                    P.O. Box 189
                                    Weno, Chuuk FM 96942

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HEADNOTES
Administrative Law ) Judicial Review
     Because the Chuuk State Supreme Court has jurisdiction to review administrative agency decisions as provided by law, its trial division, under 67 TTC 115, exercises appellate review of Land Commission decisions.  Nakamura v. Moen Municipality, 7 FSM Intrm. 375, 377 (Chk. S. Ct. Tr. 1995).

Administrative Law ) Judicial Review
     The Chuuk State Supreme Court has limited review of administrative agency decisions and cannot act as a finder of fact unless it grants a trial de novo.  A trial de novo is only authorized in reviewing an administrative hearing where the action is adjudicative in nature and the fact finding procedures employed by the agency are inadequate.  Nakamura v. Moen Municipality, 7 FSM Intrm. 375, 377-78 (Chk. S. Ct. Tr. 1995).

Administrative Law ) Judicial Review
     In reviewing decisions of administrative agencies the Chuuk State Supreme Court shall review the whole record and due account shall be taken of the rule of prejudicial error.  Nakamura v. Moen Municipality, 7 FSM Intrm. 375, 378 (Chk. S. Ct. Tr. 1996).

Administrative Law ) Judicial Review
     The Chuuk State Supreme Court will not overturn factual findings of the Land Commission that turn on witness credibility because such findings are not clearly erroneous.  Nakamura v. Moen Municipality, 7 FSM Intrm. 375, 378 (Chk. S. Ct. Tr. 1996).

Property ) Deeds
     When a deed may be legally insufficient to transfer a property because of an inaccurate recitation of its size, it may still be relied on as an expression of the intent of the parties at the time.  Nakamura v. Moen Municipality, 7 FSM Intrm. 375, 379 (Chk. S. Ct. Tr. 1996).

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COURT'S OPINION
SOUKICHI FRITZ, Chief Justice:
     This matter came before the court on appeal from the Chuuk State Land Commission's [Commission herein] Determination of Ownership awarding title to Lots 012-A-26 and 012-A-27, commonly known as Nepinis and Unupouson, to Moen Municipality [Municipality herein].  The Commission found that the property in question had been sold to the Municipality by Efou the head of the Masano lineage of Iras now represented by the Appellants [Nakamura herein].  Nakamura claimed that the land was not sold but rather leased.  The appellants were represented before this court by Mr. Charles Greenfield of MLSC.  The appellee was represented by Mr. Kachuo Eko, Assistant Attorney

[7 FSM Intrm. 377]

General.1

Jurisdiction
     The Trial Division of this Court has jurisdiction to review the decisions of an administrative agency pursuant to Article VII, 3(c) of the Chuuk Constitution.  That provision states that the "trial division of the State Supreme Court has jurisdiction to review the action of any state administrative agency, board or commission, as may be provided by law.  Chk. Const. art. VII, 3(c).  The Judiciary Act states that the "Trial Division shall have the authority to review all actions of an agency of the Government . . ."  Chk. S.L. 190-08, 17(1).  Section 17(2) of the Judiciary Act defines agency as "each authority of the Government of this State" excluding the State Legislature or the courts.  Chk. S.L. 190-08, 17(2).  Finally, 67 TTC 115, which still governs the Commission's proceedings, gives the Trial Division appellate review of Commission decisions.  See Chk. Const. art. XV, 9 ["A statute in force in the State of Chuuk on the effective date of this Constitution continues in effect to the extent it is consistent with this Constitution, or until amended or repealed."].

The Nature of the Review of Administrative Decisions
     The Judiciary Act sets forth the limited nature of the review of administrative decisions.  The court in reviewing an administrative decision may:

     declare unlawful and set aside agency action, findings and conclusions found to be: (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) contrary to constitutional right, power privilege, or immunity; (3) in excess of statutory jurisdiction, authority, or limitation, or short of statutory rights; (4) without observance of procedure required by law; (5) unsupported by substantial evidence in a case reviewed on the record of an agency hearing provided by statute; or (6) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court.

Chk. S.L. 190-08, 17(2)(b).2

     The court first notes that Nakamura has requested not only that the Commission's adjudication be set aside but that title to the land be awarded to her and her lineage. The court in reviewing an administrative decision under 17(2)(b) does not have that authority.  The court may only set the findings aside under these provisions and point out the errors if any and then remand the case to the Commission for further proceedings.  To grant Nakamura's request to rule that she and her lineage are the owners of the property, would require the court to substitute its judgment for that of the Commission.  A reviewing court does not have that authority as it is not the finder of fact.

     It is only in the situation that the court grants a trial de novo that court may then adjudicate ownership as then it becomes the finder of fact.  Cf. Ungeni v. Fredrick, 6 FSM Intrm. 529, 531, 1 CSR 14, 16 (Chk. S. Ct. App. 1994).

[7 FSM Intrm. 378]

Trial de Novo
     In the initial appeal pleading, a trial de novo was requested as an alternative form of relief.  A trial de novo is only authorized in reviewing an administrative hearing where the action is adjudicative in nature and the fact finding procedures employed by the agency are inadequate.  Friends of Endangered Species, Inc. v. Jantzen, 760 F.2d 976, 982 n.5 (9th Cir. 1985).  While the Commission's Determination of Ownership is clearly adjudicative in nature, Nakamura does not claim the fact finding procedures were inadequate.  In fact Nakamura claims just the opposite.  She contends that the fact finding procedure was sufficient for this court to substitute its judgment for that of the Commission and award her title to the land.  Thus a trial de novo is not authorized in this situation and the court is therefore not authorized to grant the particular relief requested.

Standard of Review
     In reviewing decisions of administrative agencies the "court shall review the whole record . . . and due account shall be taken of the rule of prejudicial error."  Chk. S.L. 190-08, 17(2)(b)(6).  Nakamura has raised five claims several of which are variations on the basic fact pattern.

Factual Findings of the Commission
     First, Nakamura claims that the Commission's decision is unsupported by substantial evidence under 17(2)(b)(5).  The appellate court when reviewing challenges to factual finding uses the clearly erroneous standard.  Cheni v Ngusun, 6 FSM  Intrm. 544, 546, 1 CSR 35, 37 (Chk. S. Ct. App. 1994).  This standard requires the reviewing court to presume the findings are correct and give "`due regard' to the `opportunity of the trial court to judge . . . the credibility of the witnesses.'"  Id. (quoting Chk. Civ. R. 52(a)).  The appellate court must be especially circumspect in the review of factual findings when there is conflicting evidence presented on issues of fact.  Id.

     The Commission found that Efou who was the head of Nakamura's lineage sold the land to the Municipality.  No one has challenged that Efou was the head of the lineage at the time in question.  Nakamura's contention is based entirely on her view of the testimony received at the hearing.  It was Nakamura's testimony that the land was not sold but was leased.  Yet she was not present at the transaction between Efou and the Municipality.3  Additionally her signature appears on a deed that sells the land in question to the Municipality.  This is a finding of fact by the Commission.

     This court finds that this issue turns largely on the matter of witness credibility. The fact that Nakamura signed a deed that clearly stated the land had been sold to the Municipality would justify the Commission's lack of reliance on her testimony.  But this court will not substitute its judgment on matters of credibility in place of the original trier of fact.  Nakamura has failed to carry her burden of proof that the factual findings the Commission reached from the testimony were clearly erroneous.

The Deeds
     The next issue Nakamura raised concerns the deed she signed.  She does not anywhere claim

[7 FSM Intrm. 379]

that it is not her signature on the deed or that she did not understand the meaning of the deed.  Her argument is now that although she signed the deed, the deed was not property filled in and the deed did not transfer all the property.4  Nakamura's contention is based on the claim that Nepinis contained a larger portion of land than was transferred by the deed she signed.  The deed states that the land sold to the Municipality "known as Nepinis consists of 2.706 acres more or less . . . ." Nakamura claims that Nepinis alone is over 3 acres according to the map attached to the deed given the lineage in 1954.  The other land involved is Unupouson [sometimes called Nepinis also] and it consists of 1.24 acres or .502 hectares. Nakamura claims that since less than the whole was transferred and the specific portion was not specified the deed is inoperative to transfer any portion of the land. But Nakamura has not closely checked the original deed that gave the land to her lineage in 1954.  While the map shows the size of Nepinis as over three acres, the 1954 deed only gives the Masano lineage of Iras 0.563 hectares.  Thus, if the court were to adopt the rule advanced by Nakamura then the original deed to the Masano lineage of Iras is also inoperative as it did not describe which lesser portion of the whole was transferred to them.  Under Nakamura's theory the 1954 deed could not have transferred the land to them and title would still remain with the government.

     If the area stated in the two original deeds given to the Masano lineage of Iras by the 1954 deeds [0.502 hectares + 0.563 hectares = 1.065 hectares (1 hectare = 2.471 acres) or 2.63 acres] are added together the 1965 deed of sale signed by Nakamura contains all of the two properties owned by the Masano lineage combined.

     While the 1965 deed may not be legally sufficient to transfer the property [neither was the 1954 deed] in question, the Commission could have justifiably relied on the document as an expression of the intent of the parties at the time to sell all of the property in question.5  Therefore the court must reject this assignment of error.

Finding that Both Efou and Iariuo had authority over the land
     The next point that Nakamura takes issue with is that the Commission found that Efou and Iariuo had the legal authority to sell the land.  No one questions that Efou was the head of the lineage in 1965 and could alienate the land if he choose.  The fact that the Commission also found that Iariuo also had the authority to sell the land. If the finding that Iariuo has the authority to sell the land is deleted from the findings the outcome is still not altered.  This finding constitutes harmless error and it does not affect the outcome.

Other issues
     The other two issues raised also must be rejected.  One is that the Commission found that the buildings that were built on the land constitute a presumption that the land was owned by the Municipality.  On the record as a whole and giving due regard to the harmless error rule, removal of this issue from the Commission's findings still results in sufficient evidence to support the Commission's adjudication.

[7 FSM Intrm. 380]

     The final issue raised is merely a summary of the other arguments and must also be rejected as the court as rejected them individually.

Conclusion
     The court must conclude that there was sufficient evidence from which the Commission could have concluded that the land in question was in fact sold to the Municipality and there is no reason to set the Determination aside.  Nonetheless, the court will modify the Determination of Ownership in one respect in accordance with the Chuuk Constitution.

     The property having been acquired by a governmental agency the constitution requires pursuant to Article XI, 2, that should the Municipality cease to use the property for public purposes the title to the land in question will be returned to the Masano lineage of Iras.  Therefore the official Determination of Ownership and Certificate of Title on file at the Chuuk State Land Commission will be modified to reflect this provision.
 
     Accordingly, the decision of the Chuuk State Land Commission is affirmed as modified.

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Footnotes:
 
1.  Neither counsel participated in the Commission hearing.
 
2.  This statutory language is taken verbatim from the United States Federal Administrative Procedure Act.  See 5 U.S.C. 706.
 
3.  The other testimony relied on by Nakamura comes from Teruo Marcus who also claimed that the Municipality was granted only use rights over the property.  Teruo while acknowledging that Efou was the head of the lineage at the time in question was not present at the transaction and "did not know who in his lineage talked with the Government and granted them permission to use the property."  Appellant's Brief at 10.
 
4.  The court notes that the [1965] deed in question is not an original.  While there is reference in the record to agreements signed both by Efou and Nakamura in 1965, no party produced an original deed or lease agreement concerning the 1965 transaction.
 
5.  The court also takes notice that Truk District Legislature in appropriating the money indicated the money was appropriated to purchase the land.  See Acts of 6th Truk District Congress, Pub. L. No. 6-8 (Dec. 21, 1962).