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Eoe v Bop [1973] NRSC 5; [1969-1982] NLR (B) 65 (27 February 1973)

[1969-1982] NLR (B) 65

IN THE SUPREME COURT OF NAURU

Land Appeals Nos. 18 and 19 of 1972

RALPH EOE

v.

JAMES ATEGAN BOP

and

EIWITA ADIMIM

27^th February, 1973.

Irregularity of procedure - decision of Lands Committee in 1938 - appellant not given opportunity to be heard - Committee's decision published in Gazette - Gazette read out at public meeting attended by appellant - no action taken by appellant at the time - delay of 35 years - application to set aside decision rejected.

R. was the son of A. Ei and El. were the granddaughters of A. by an earlier marriage. A. died before 1928. In that year entries in the Land Registration Book showed that R. claimed to own land called Anurung and that Ei. and El. claimed to own land called Eatedogi. The land had belonged to A. In 1937 the land Anurung was identified by the Lands Committee which published a notice in the Gazette showing Ei. and El. as the owners. At that time the Chiefs were required to hold public meetings to read out each item of the Gazette, and all Nauruans were required to attend those meetings. In 1962 a further Gazette notice was published in respect of the land. In 1962 the Nauru Lands Committee also decided that the land Eatedogi belonged to Ei. and El. and published its decision in the Gazette. R. took no action in 1937 or 1962 to challenge the ownership of Ei. and El. or to assert his own in respect of either portion of land. He did so only in 1972. At the meeting of the Nauru Lands Committee which preceded its decision in 1937 that Ei. and El. were the owners of the land the Committee heard one of R. 's older sisters but did not give R. an opportunity to be heard. It based its decision on the land Anurung in 1962 on its decision in 1937 and again did not give R. an opportunity to be heard. R's older sister may have been authorised by R. and the other members of the family to represent them but there is no record of that. She stated, contrary to R.’s interests, that the land belonged to Ei and El.

Held: (1) Unless the sister was authorised by R. to represent him, the Lands Committee should have given him a chance to be heard; because of the entry in the Lands Registration Book of his claim to the land. Its failure to do so was a serious irregularity which prima facie vitiated its decisions

(2) However, because the notice of the decision had been read out to R. at the time and he had taken no action within a reasonable time thereafter, he could not do so now, 35 years later.

D. Deiye for the appellant
Respondents not represented; first respondent present

Thompson CJ.:

In 1972 Einiga Bop died and the Nauru Lands Committee decided how her estate should be distributed. The decision was published in Gazette No. 50 of 1972. All her shares in portions of land were to be shared equally by her two children, the two respondents. The appellant has appealed in respect of the decision insofar as it relates to two portions of land -

(1) Anurung, phosphate land, portion no. 209, in Anibare District, and

(2) Eatedogi, coconut land, portion no. 296, in Anibare District.

At the outset of the hearing of these two appeals the appellant's representative admitted that the appellant could not challenge the respondent's entitlement to be the sole beneficiaries of Einiga's estate. However, he contended that those portions should not have been included in Einiga's estate or that Einiga's share of them should have been less and the appellant should have been a co-owner with her.

Gazette notices of decisions of the Lands Committee and the Nauru Lands Committee respectively were published in 1937 and 1962 showing Einiga and her cousin Elizabeth as the only two owners of Anurung and Eatedogi; they were shown as having equal shares in each of them. The appellant has informed the Court that these proceedings are really applications for those two decisions to be declared null and void, so that the question of ownership of the two portion can be redetermined.

The Nauru Lands Committee Ordinance 1956-1963 provides for appeals to lie against the decisions of the Nauru Lands Committee in respect of land disputes. Before 1956 an unathorised practice had existed, dating back to well before the Second World War, of the Central Court entertaining appeals against the decisions of the Lands Committee and of the Administrator entertaining further appeals from the Central Court. The decisions on those appeals were validated by the Nauru Lands Committee Ordinance 1956-1963.

Publicity was given to the decisions of the Lands Committee, and still is given to the decisions of the Nauru Lands Committee, by their publication in the Gazette. Before the war, when meetings were held by the Chiefs at which the Gazette was read and at which attendance was compulsory, there can be no doubt that the publicity afforded by such publication was excellent. At present, because few people apparently read the Gazette and no public meetings are held, this method of giving publicity to the Nauru Lands Committee's decisions is less satisfactory. With the advent of a local broadcasting service, better means of publicity are available and it is to be hoped that advantage will soon be taken of them.

The Lands Committee before 1956 was the customary body, which had evolved out of the Council of Chiefs, for deciding land disputes and questions of succession to the estates of deceased Nauruans. Before the war it apparently consisted of some, if not all of the Chiefs. It was a body of considerable standing and, in the absence of clear evidence of impropriety, its decisions should be upheld on the basis that omnia prae-sumunturrite acta esse. Since 1956 the Nauru Lands Committee has been a statutory body. Its decisions are statutorily declared to be final, subject to appeal to this Court within a certain time. The only circumstances in which they can be set aside, otherwise than on an appeal commenced, within the time limit, are where there was such gross impropriety in the manner in which the Committee reached its decision that its decision must be regarded as a nullity.

The burden on any person seeking to prove such impropriety heavy. It is not enough to show that there is an absence: of certainty that all proper procedures were followed. It must be affirmatively proved that they were not and that the resulting impropriety was of a gross nature which led to serious injustice.

The appellant is one of the children of Adako, a man who died in 1920. Adako married three times. One of his first two marriages was to the grandmother of Einiga and Elizabeth. The third marriage was to the appellant's mother. At the time of Adako's death, the appellant was about ten years old. Both the portions of land to which these proceedings relate belonged to Adako Einiga and Elizabeth were decided to be owners by virtue of their being children of two of Adako's daughters. The appellant claims that those portions should have been his or that he should have shared them with Einiga and Elizabeth.

The appellant gave evidence that he did not know of any distribution of Adako' s estate after his death or of any meetings held by the Chief of the District for that purpose; that he did not know of, or take part in, the general registration of lands by the Chiefs in 1928; that he did not know of the decisions in 1937 and 1962 about Anurung and Eatedogi; and that no land is registered in his name.

On the matter of publicity, Mr. Deiye, representing the appellant, pointed out that the spelling of the-names of the two portions in the Gazette notices was different from what it has been in the German Ground Book entry relating to Adako's lands.

At the time of Adako's death, it was apparently the custom of the Nauruans for the Chief of a deceased person's district to hold a meeting of the family shortly after his death and for the succession to the estate to be decided upon then. That decision was final and binding on all members of the family. That practice, was changed only later with the establishment of the Council of Chiefs and latterly the Lands Committee. In 1928, when the general registration of lands took place, various members of Adako's family registered various portions of his estate in their names. Fifteen portions were registered in the names of the appellant and his brothers. One of these was Anurung; but. Eatedogi was not included. It is evident from this that there although possibly some uncertainty remained.

In 1962, when the ownership of Eatedogi, portion no 296, had to be decided by the Nauru Lands Committee, the Committee did what it usually does; it referred to the Land Registration Book of 1928 and found that that land was registered in the names of Einiga and Elizabeth only. It may have referred to the German Ground Book; in that case it could quite properly have come to the conclusion, from the entries in respect of his land in the Land Registration Book of 1928 under the names of various members of his family and the failure of the appellant and his brothers to register land called Eatedogi, that the land belonged without dispute to Einiga and Elizabeth. It did not invite anyone else buy Einiga and Elizabeth to attend and identify the lard. The appellant complains of this; but, in view of his failure to register land of that name himself in 1928, when he was at least eighteen years old and must have been aware of what was taking place, there was no impropriety in the course adopted by the Nauru Lands Committee. Accordingly, the application in respect of the land Eatedogi must fail.

With regard to the decision of the Lands Committee in 1937 about the land Anurung, Mr. Depaune, a member of the Nauru Lands Committee, has produced a book kept by the Committee in that year in which there is recorded a statement made to it by one of Adako's older daughters. Mr. Deiye has challenged the authenticity of the document because it is not signed but there is no doubt that it is part of the Lands Committee's records and I am entirely satisfied as to its authenticity.

The daughter who made the statement said that the land Anurung belonged to Einiga and Elizabeth. Mr. Depaune gave evidence that in those days it was usual for the Lands Committee to ask a family to send a member to represent it; before the Committee and that it was usual for the family to send one of the older members to represent it because he or she had a knowledge going further back in time than the younger members. He expressed the view that the daughter whose statement is recorded in the Lands Committee’s book attended as the pointing out that her interests were not the same as the appellant's. There is certainly no direct evidence that she was sent by the family to represent it, although apparently the Committee accepted her as its representative as it did not inquire further into the matter.

It appears, therefore, that there may have been quite a serious irregularity in the manner in which the Lands Committee dealt with the question of the ownership of Anurung in 1937. However, as I have already noted, at that time the Gazette was read out by the Chiefs at meetings at which attendance was compulsory. Although the spelling of the name of the land in the Gazette notice was different from the spelling of it in the German Ground Book, the spelling was the same as registered in the Land Registration Book of 1928 under the appellant's name. Clearly the pronunciation was the same; it was only a matter of how the sounds were transcribed. That being so, the appellant - and likewise his brothers in whose names the land was also registered in the 1928 register - should have had no difficulty in recognising the name when it was read out, particularly as names of the owners were given as two of Adako's grandchildren. In my view, this gave the appellant ample notice of the Lands Committee's decision about the land Anurung and he could, if he wished, have appealed within the time then allowed for the purpose. He failed to do so and cannot now, 35 years later, repair the omission. The application in respect of the land Anurung must, therefore, also be dismissed.

Both appeals and the applications for declarations in respect of the 1937 and 1962 decisions as to ownership of the two portions of land to which the appeals relate are dismissed.