LAND MATTERS

First, if you have a possible interest in a land, you should file a claim. Then you should look at the other claims. The documents on file with the Land Court are public documents. You have a right to look at those documents at the Land Court during its regular business hours. If you do have problems looking at the files, you can contact the MLSC Palau Office for assistance.

The maps at the office of Lands and Surveys are also public documents, and you have the right to look at their files and maps at that office during regular business hours. These maps should be available at the Land Survey Office for your inspection. Be careful that you look at the map that the Land Court will be using for the hearing.

After filing a claim with the Land Court or a case in court, you have to wait for the hearing. In the meantime, there is another way of trying to settle land disputes. This is by talking with the other people who are claiming the property. The court system, including the Land Court, is there to handle disputes which cannot be settled by the people themselves. Often no one is satisfied with the final decision of the court. This is because they disagree with the decision or the length of time involved or simply because of the stress of having to testify in court and the bad feelings it leaves amongst neighbors or clan or family members. Therefore, we emphasize that it is always better for you to settle this matter amongst yourselves without attorneys or the court. Another way to settle the matter is through the mediation process the Court has established. For more information on this, you can contact the MLSC Palau office directly.  Before the Land Court can conduct a hearing on a particular piece of land, it must give notice of the time, date and place of the hearing. If you have previously filed a claim with the Land Court, you should receive personal notice of when and where the hearing will take place. If you have not filed a claim with the Land Court prior to the hearing, the only notice you will get is if you hear an announcement on the radio, see the notice posted on the land, or see a notice at the Land Court, the Courthouse, the Post Office, or the government building in your state. We have represented people who filed claims for land, but did not receive personal notice of the hearing. Sometimes this has been because the claim form did not get into the proper file at the Land Court, so the Land Court staff was not aware a notice needed to be sent. Other times this has been because a hearing, initially scheduled for one date, was postponed to another date. In all cases we can recall, we have been successful in having the Court remand the case to the Land Court for the taking of the client's evidence and the issuance of a new decision by the Land Court. When lawyers talk about personal notice, it does not mean that the Land Court officer has to give written notice to you. It is sufficient under the law if the Land Court officer leaves the written notice for you at your home or workplace, provided the officer leaves the notice with a person of suitable age who lives or works at that place. Even if you are not properly served with notice, if you actually learn about the hearing, it is best that you attend the scheduled hearing in order to protect your rights. You should show up for the hearing whenever there is a possibility that you might have some type of interest in the land being heard. If you are not sure you should raise your claim or have the Land Court officers tell you that your land is not involved. Do not give up your claim if there is a possibility that you have a right to the land. Otherwise, you may not be able to raise it later.  If you do not receive notice of the hearing in time for you to be prepared to present your evidence, or if, at the last minute, one or more of your witnesses is unable to attend the hearing due to illness or transportation problems, or if you need to be away from your state for business, medical treatment or other legal proceedings, you have the right to ask the Land Court panel to continue the hearing -- to reschedule the hearing to another time when you will be able to present all of your evidence. These hearings are very important. The chances are that this will be your last opportunity to present your evidence. If you know you will not be able to present all of your evidence at the scheduled hearing, you should contact the Land Court as soon as possible to request the continuance. If you do so, be sure to get something in writing from the Land Court confirming that the hearing has been postponed. If there is not time to request a continuance prior to the scheduled hearing, you need to make your request at the time of the scheduled hearing.

Sometimes, the Land Court has granted the continuance and simply rescheduled the hearing. Other times, the Land Court has proceeded with the hearing, but provided that additional testimony would be taken at a future time. We believe the entire hearing should be continued, but if the Land Court proceeds with the hearing, you must go ahead with what evidence you can, and then present your additional evidence during the later hearing. We have represented people in cases where the Land Court promised to hold a later hearing for additional testimony and then forgot to hold the hearing, instead going ahead and issuing its Determination without hearing all the evidence. In these situations, the MLSC Palau Office has been successful in having the Court remand the case to the Land Court for the taking of additional testimony and the issuance of a new Determination.  If you request a continuance and the Land Court panel refuses to reschedule the hearing and refuses to hold a later hearing for the taking of additional evidence, it is important that you do your best to make the record clear that you requested a continuance, the reasons you requested the continuance, and that the Land Court panel refused to grant your request. When we refer to "the record", that means that, once the tape recorders have been turned on, and the Land Court panel has begun the hearing on the land you wish to claim, you need to make a statement in front of the microphone, close up -- not from the back of the room, asking for the continuance and stating why you need it. Then ask the Land Court panel whether they are granting or denying your request. When they have denied your request, then state that you object to their proceeding with the hearing, but that you will proceed to present what evidence you have.

If an adverse claimant asks for a continuance, and you do not want the hearing continued, you may object or request that at least your evidence be heard. As we previously indicated, it is best if the hearing can be held all at one time, but if it would be difficult for you to gather your witnesses again, or if your witnesses are elderly or sick and you worry they might pass away soon, you should ask that their testimony be taken right away. If you present all of your evidence, you should still attend the later hearing, when the adverse claimant presents his evidence. This is because the adverse claimant may testify to matters to which you want to respond, or you may want to ask questions of the adverse party to remind him of facts that support your claim, rather than his.  You have the right to ask questions of all witnesses -- the adverse party, the other witnesses for the adverse party, and your own witnesses -- in addition to giving your own testimony. When you ask any questions, speak into the microphone -- close up, not from the back of the room. We have represented people in appeals in which important information was not recorded because the person asking the question, or the person answering the question, has not spoken into the microphone. Also, it is important that you speak clearly into the microphone. The people who prepare the written version of the hearing testimony are sometime unable to determine what was said because the witness did not speak clearly. Again this means that important information is missing from the record when the case is appealed. It may also mean that the Land Court panel does not clearly understand the testimony.

When we say that you have a right to ask questions of witnesses, this does not mean that you can ask questions any time you feel like it. There is an orderly procedure to Land Court proceedings, just as there is in a Courtroom.

At the start of the hearing, the Land Court panel should identify the land for which the hearing is being held. This is usually done by identifying the Tochi Daichio number, the new cadastral lot number, and the name of the land. The most important identification is the cadastral lot number -- at least in terms of the boundaries of the land. The boundaries identified by the cadastral lot number are usually the boundaries of the land that will be awarded to you if you are the successful claimant.The name of the land is the least important way of identifying the land, as different claimants may have different names for the land. If the Land Court calendar or the notice you receive about the land hearing states a different land name than you use, don't worry about it. Just make sure that, when it is your turn to testify, you make clear to the panel the name you use to refer to the land. Also have your witnesses testify clearly as to the correct name of the land.

The Tochi Daichio number is an important way of identifying the land. In all other states for which there is a Tochi Daichio, except Peleliu and Anguar, the Tochi Daichio is presumed to be correct. In Peleliu and Anguar States, the Tochi Daichio is a record of ownership, but it may or may not be correct.

If you claim to own the land you claim because you are the Tochi Daichio owner, or because you claim to have received the land from the Tochi Daichio owner, or because you are the heir of the Tochi Daichio owner, then you need to convince the Land Court panel to find that the Tochi Daichio is correct -- at least with regard to the listing for this particular piece of land.

On the other hand, if you claim ownership of the land in some other way, you want the Land Court to ignore the Tochi Daichio.

Later in this presentation, we will talk more about presenting evidence to support or oppose the Tochi Daichio.

Once the land has been identified, the Land Court panel usually identifies the claimants and makes certain all claimants are present. One claimant is usually referred to as the Claimant, while all of the other claimants are usually referred to as "Adverse Claimants". There is no legal significance in whether you are called a claimant or an adverse claimant.  The Land Court panel then usually asks each of the claimants to look at the map and state whether the claimants agree with the boundaries of the land reflected on that map. Although each claimant is to present his evidence in turn, the Land Court panel may have all claimants state whether they agree with the map boundaries before any testimony is taken from anyone, or the panel may have each claimant examine the map and state his agreement or disagreement with the boundaries of the land just before each claimant begins to present his own evidence. Either way is okay. The important point is that, if you disagree with the boundaries on the map, you must state your disagreement on the record. Again, this means speaking into the microphone -- up close, not from the back of the room.

Thus far, we have not seen any hearing records in which the Land Court has had anyone testify about how the map was prepared. We consider this improper, as the preparation of the map, in some cases, is an important issue. Also, you should be aware that the map used by the Land Court is not the same as any Tochi Daicho map that you may have seen; instead, it is called a worksheet map. Hopefully, if you have a Tochi Daicho map, you will be able to see your boundaries on the worksheet map. But make sure to say that you can't tell if you are not sure about the boundaries.  Also, some people do not know how to read maps. Some people know their land only by pointing it out at the site of the land itself. When you are asked whether you agree with the map, do not say you agree if you cannot see, or if you do not know how to read the map. You can respond by saying "I cannot read the map." If you attended the monumentation of the land, you may also wish to add "If the map shows the boundaries that I showed the surveyors when we did the monumentation, then I agree. If not, I do not agree."

It is very helpful if at least one of your witnesses is able to read the map and confirm whether the boundaries on the map match the boundaries on the land which were set during monumentation, or, if you did not attend the monumentation, whether the boundaries on the map match the boundaries you know for the land. However, in some cases, at the time of monumentation, the claimants and the claimants to neighboring lands did not agree about the boundaries. If this is your situation, you need to be very careful about what you say about the map. You need to know that the map shows where you said the boundaries are, not where your neighbor or another claimant said they were. You can look at the map prior to your hearing. If there is sufficient time, you can go to the office of Lands and Surveys and get a copy of the map, take it out to the land, and try to determine if the map reflects the boundaries you indicated. If the map is not accurate for the boundaries you claim, you need to be prepared to describe to the Land Court panel the correct boundaries. Then you can testify, "the boundary marked 03654 should be about 50 feet to the southwest.  "An alternative, in case you do not have sufficient time to take a copy of the map to the land to compare it, or if you cannot afford to get a copy of the map (they cost between $6 and $10) is to tell the panel you do not agree with the map boundaries, and ask that they examine the site of the land so you can show them the correct boundaries. They should agree to this, although they may choose to take the testimony of all the claimants and their witnesses before adjourning to look at the land.

If they visit the site of the land, whether in the middle of the hearing or at the end, you need to make sure that a record is made of the boundary you point out to them. This can be done by measuring the distance from the monument to the place you say the boundary is, and having the panel prepare a simple statement at the site that the measurement was done and the boundary you showed them was 50 feet southwest of marker 03654. You, the Land Court panel, and the other claimants and witnesses who go to the site of the land, should all sign and date the statement. The statement need not say that everyone agrees that your boundary is the correct one. It only needs to say that they agree the boundary you claim is 50 feet southwest of marker 03654. The statement is then put into the Land Court file and is part of the record. It is helpful if you make a second copy of the document for yourself to ensure the Land Court copy does not get lost.

Another way to have your evidence about your boundary on the record is for everyone to return to the hearing place, turn on the tape recorder, and have the Land Court panel state on the record that they just returned from visiting the site of the land and found that the boundary you claim was 50 feet southwest of marker 03654.If the panel refuses your request to visit the site of the land, make sure your request to go to the land is on the record. Again, this means speaking into the microphone when you make your request.

After the first or all of the claimants has stated his agreement or disagreement with the map, the Land Court panel will begin the testimony about the facts upon which each claimant bases his ownership claim. The panel will ask one claimant to take the stand -- to sit in the witness chair. The claimant will be sworn to tell the truth. The panel will have the witness identify himself. The panel will then have the claimant testify to explain his claim. When the claimant has finished, the panel may ask the claimant questions to clarify certain points to ensure they understand his testimony. Make sure to answer their questions. However, if you do not understand the question, say so. Also, if you are not sure of the answer, tell them that you are not sure. When the panel is done asking questions, they should then ask the other claimants whether they want to ask the claimant any questions. You have the right to ask questions. If you think the claimant will provide information helpful to your claim, ask appropriate questions. You do not have to ask questions to make that claimant's case clearer or stronger, unless you feel it would be helpful to you to understand their claim better, in case you become convinced their's is the proper claim, instead of your own.  When all of the adverse claimants have had the opportunity to ask all of the questions they want to ask, that claimant will be asked to step down and present any witnesses he has. The witness for that claimant will then be sworn to tell the truth and told to identify himself. The claimant will then ask his witness questions. When the claimant is done, the Land Court panel will then ask the witness questions. When the panel is done, you and the other adverse claimants will have your opportunity to ask questions. Remember, it is your right to ask questions, so do not let the Land Court panel prevent you from asking questions. If you feel you are being cut off, politely state into the microphone that you have additional questions to ask. If you still are cut off, politely ask the panel if they are denying you your right to ask questions.

In asking questions, you do need to make certain that you are asking relevant questions. We will talk later about what things are relevant.

When the first claimant has presented all of his witnesses, the next claimant will testify, be asked questions, and then the witnesses of the second claimant will testify and be asked questions. This continues until all claimants and all witnesses have testified.  If, after hearing the testimony of all the witnesses, a claimant wishes to present testimony on a new issue or story that had not been discussed when that claimant was presenting his claim, he can ask to present "rebuttal" testimony. This is not an opportunity to testify all over again about what was already stated. Rebuttal testimony is limited to new things that a later witness said.

If you find you forgot to present your evidence about a particular fact, you can ask the panel to "suspend the rules" to permit you to present an additional matter that you forgot to mention. The Land Court panel should permit you to do this. Make sure your request is on the record.

If they deny your request, tell them which witness you want to testify and generally the testimony you expect that witness would give. Then renew your request. If the panel still refuses to let the person testify, tell them you object and may appeal.

One thing that is very important about testifying -- you must use people's names. A major problem in many of the appeals MLSC has done is that it is frequently difficult to determine who the witness is talking about. The Land Court panel may be equally confused. Many times people refer to several people, and then begin talking about he or she. It is difficult for a person reading the written record to determine which "he" or "she" the witness is talking about. Use the names of people. And if you refer to a person by one name, but a previous witness has referred to that person by another name, state that both you and the previous witness are referring to the same person. After you make that point clear, you can continue by referring to the person using the name you are more familiar with.  Another thing that is helpful is if you can be more specific when referring to the time of certain events. Frequently people testify that certain things happened during the German, or Japanese, or American administrations. Sometimes this is sufficient, but there are times, particularly when talking about the American administration, when it is important to know if something happened before or after certain years. This is because different laws were in effect during different years of the American administration. We will talk about this in more detail later in this presentation.

Witnesses are supposed to testify about things they have personal knowledge about -- things they saw happen, and things they know about from their own personal knowledge. It is not helpful to the Land Court panel if you tell them something which you know only because someone else, who saw the thing happen, told you about it. Since older relatives have passed away, sometimes the only way your claim can be explained is by you telling what older relatives told you. But if the person who saw the event is still alive, and if that person is mentally competent, it is much better to have that person testify, rather than you testifying that this other person told you about it. You might be surprised of some of the people still living who may have some helpful information to present at the hearing. You need to just talk to people who may have been alive at the time you are describing to find out.  Some of you will have documents that you want the Land Court panel to consider. It is very important that you clearly identify any documents you present to the panel. This means referring to the document by its date and title and the persons who signed it. Normally, any document you wish to submit should be marked by the Land Court panel as an exhibit, such as Exhibit A or Exhibit 1. This is even more important when you, or other claimants, submit more than one document. Once the Exhibit is marked, you can then refer to it in your testimony as Exhibit A, instead of saying, "the July 15, 1975 Deed of Transfer".

It is also very important to explain how the document was prepared. If possible, have someone who was present when the document was prepared, preferably someone who signed or witnessed the document, explain who prepared the document, whether the person who signed it could read it or if someone else translated it, where the document was signed, the names of everyone present when it was signed, and other details. There is a reason for testifying in detail about these documents. You not only need to make sure your evidence gets into the record and is understood by the Land Court panel, you also want your evidence to be convincing. The more evidence you can present to show that your evidence should be believed, the better chance you have of winning your claim.  Sometimes it is not possible to present testimony to support the document. Everyone who signed the document, or witnessed the signing of the document, may have passed away. In such cases, you need to present what evidence you can. Evidence about how the document came into your possession is helpful -- it was given to you by your father on his deathbed -- or whatever the facts are in your particular case.

One type of document that might be important are records from the Japanese time. Either, Japanese rental agreements or Tochi Daichio maps. If you have documents which are written in Japanese, you should make sure to get them translated. Along with submitting the document, you should try to have a written English translation. You should try to find someone to translate whom the Land Court judges will rely on or bring that translator to the hearing.

The information we have just given you is designed to make sure the hearing is conducted properly and that you get all of the evidence available to you into the Land Court record in a way that is clear, understandable and believeable. We will now explain some of the law that is applicable to land cases, which we hope will help you understand what facts you need to present to the Land Court panel.

The law regarding land is basically composed of three elements -- specific written statutes which discuss land, case law resulting from previous appeals or lawsuits involving land, and customary law. We will discuss statutory law first. You have a right to have your claim heard by a fair and impartial hearing panel. This means that none of the members of the Land Court should be related to any of the claimants to the land. This also means that none of the members of the Land Court should be biased against any claimant, or biased in favor of any claimant. If you believe that any member of the hearing panel will be biased against you, or in favor of any adverse claimant, you should tell the panel you believe you cannot get a fair hearing, identify the panel member you object to, and state the reason you think that panel member cannot be impartial. The hearing panel should then postpone the hearing until a different Land Court judge can be available to replace the one you object to. If, after hearing your reason for objecting to a member, the panel refuses to postpone the hearing, you need to make sure that your objection, the identification of the panel member you object to, and the reasons you believe you cannot get a fair hearing from that panel member, are made a part of the record. This means speaking into the microphone.  The Land Court will presume that a Tochi Daichio listing will be correct. This is based on court decisions requiring this. The courts have determined that the listing resulted from a program conducted in 1938 with considerable care and publicity under procedures which included notifying and calling the members of the clan together to decide how pertinent lands were to be registered, which made careful provision for proof that the clan or lineage involved had consented to the transfer of particular lands to individual ownership and which listed properties as lineage owned land, as land owned by a clan, and as individually owned land, making clear distinction between the different categories. For Peliliu State if it is not presumed to be correct by the Court, both the Land Court and the Court will look at the Tochi Daichio to see what it says about the ownership of each parcel of land in Peleliu. Therefore, there is a real advantage to claiming from the Tochi Daichio owner of the land. You then have to present evidence as to who currently owns the land, and trace that ownership back to the Tochi Daichio owner.

If you believe the Tochi Daichio is incorrect, you have to present enough evidence to establish by what is called a clear and convincing standard. Usually, to prove your case you have to show that it is more probable than not that your claim is the proper one. Another way of looking at it is that you have to establish on a scale that your evidence outweighs the other claimants, that is, that you it is 51% certain your claim is genuine. Under this clear and convincing standard, you have to prove that the Tochi Daichio listing is wrong by more than 51%; you could say that you have to establish that the chances are 75% sure that it is wrong.

Please remember that the Tochi Daichio listing could be wrong in two different ways. Either the wrong person is listed or that person is listed as the individual owner of the property where, instead, that person was to have claimed the property on behalf of a clan or lineage. If the Tochi Daichio is for individual ownership, the evidence necessary to refute it must be particularly strong. Again, this is very difficult to prove. Another type of argument that you can present is to argue that you or the person you are claiming through have lived on the land for over twenty years and have publicly claimed ownership of that land without any objection from anyone else for the whole time. This is called adverse possession. You, again, can not simply claim this; you have to present evidence which will show this is true. Examples of such evidence is people living in the area who witnessed your ownership of the land; customary events which would have established your ownership of the land, like an eldecheduch where the land was given to you; or witnesses or documents of people who had asked your permission to use the land. Remember that having a right to use the land is not the same as a claim of ownership. Also, if you are claiming adverse possession against a family, clan or lineage, it is even more difficult, if not impossible, to show hostile ownership.