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Aingimea v Agoko [1973] NRSC 6; [1969-1982] NLR (B) 78 (9 August 1973)

[1969-1982] NLR (B) 78


IN THE SUPREME COURT OF NAURU


Land Appeals Nos. 5, 7, 10, 12 and 14 of 1973


ETTO AINGIMEA AND OTHERS


v.


BERTHA AGOKO AND OTHERS


BERTHA AGOKO


v.


ETTO AINGIMEA AND OTHERS


EIBAOEDA SCOTTY


v.


BERTHA AGOKO AND OTHERS


EIMANKOMWI ALIKLIK


v.


ETTO AINGIMEA AND OTHERS


MILKA DENITAGE AND OTHERS


v.


BERTHA AGOKO AND OTHERS


9th August, 1973.


Nauruan land - identification and ownership - ten portions within previously unidentified area of land - ascertainment of boundaries impossible - land to be divided into ten equal portions.


In 1937 the Nauru Lands Committee identified by name most of the land in a particular locality and decided who were the owners of the various portions. There was a low wall dividing the area into a northern part and a southern part; and there was another wall within each of those parts enclosing one section of each part. Field days were held in 1956 and on several other occasions thereafter up to and including 1970. A number of people put forward claims to the whole or part of the land. The Nauru Lands Committee decided eventually that the land comprised eight portions, two of them the sections enclosed by the walls, three in the remainder of the northern part and three in the remainder of the southern part. Claims that two other portions were comprised in the area were rejected. The evidence adduced before the Committee was inadequate for it to ascertain where the original boundaries of the several portions were situated. The Committee was satisfied that the two portions in respect of which it rejected the claims had been situated in the locality but were not satisfied that they were situated within the previously unidentified area of land. However, all other land in the locality had already been identified and its ownership determined; so the Committee's decision effectively deprived the owners of those two portions of any possibility of having their land identified at any time in the future. The persons who had submitted five of the claims appealed against the Committee's decision as to the portions comprised in the area and their sizes.


Held: There was insufficient evidence before the Committee and the Court to justify any of the ten claims being preferred to any of the others for inclusion within the previously unidentified area, or any portion being of a larger size than any of the others. As no other unidentified land existed in the locality and all the claimants had satisfied the Committee that they owned land in the area, the unidentified area should be divided into ten portions, and not only eight; and, as their original boundaries or the size of any of them had not been established, all the portions should be of equal size.


R. Akini for Etto Aingimea and Others
J. Aguko for Bertha Agoko and Eimankomwi Aliklik
B. Dowiyogo for Eibaoeda Scotty
K.R. Adeang for Milka Denitage and Others
R. Degoregore and K. Aroi for respondents in Appeals Nos. 5, 10 and 14, other than Bertha Agoko and Eimankomwi Aliklik


Thompson CJ:


These five appeals are all against the determinations of the Nauru Lands Committee published in Gazette No. 5 of 1973 concerning an area of phosphate land on the border of Anibare and Uaboe Districts. The land is completely surrounded by blocks the identity and ownership of which was determined by the Lands Committee in 1937. In the Government Surveyor's plan of the area made at that time the land was shown as divided into two parts. There was, and still is, on the ground a stone wall along the line of the division shown on the plan. The land was apparently not identified or its ownership decided in 1937. Why this was so is not recorded. No German sketch plans of the area are extant, as far as is known.


The Nauru Lands Committee by its determinations published in Gazette No. 5 of 1973 decided that the land comprised eight portions. These were:-


(1) Atabio, portion no. 337;

(2) Ijuwokoe, portion no. 334

(3) Ijuwokoe, portion no. 231;

(4) Atabio, portion no. 338;

(5) Atabio, portion no. 339;

(6) Idonga, portion no. 340;

(7) Ijuwokoe, portion no. 230;

(8) Ijuwokoe, portion no. 336.


The land was divided by the wall referred to above into a northern and a southern part. In each part there was a section closed off by other walls. The Committee decided that each of these was a portion, i.e. nos. 231 and 339. They then divided the rest of the northern part into three equal portions, i.e. nos. 230, 334 and 336. They decided that the rest of the southern portion should be divided equally into two, one division being portion no. 340 and the other being further divided equally into two, i.e. portions nos. 337 and 338.


In three of the five appeals the appellants are persons determined as owners of certain of the portions. All those appellants claim that what they were awarded was not a large enough part of the land. In the other appeals the appellants were not included as owners of any of the portions and claim to be entitled either to the whole of the land or to part of it.


The basis of the Nauru Land Committee's decision was that all the persons to whom it awarded ownership of portions were entitled to land in the area, that there was no more undetermined land there and that their portions must, therefore, all be comprised in the land now in issue. It based its determination of ownership of those portions and their location on the following considerations:-


(1) Atabio, portion no. 337. Land called Atabio was registered in the Land Registration Book of 1928 as owned, as to a two-thirds share, by Mweiya and, as to a one-third share, by Eidomariro. Bertha Agoko is now entitled to the whole of Mweiya's estate and Eimankomwi to Eidomariro's. There was a dispute between Mweiya and a woman named Etute in 1938 about land in the area; Mweiya claimed that the whole or a part of it was his land Atabio. Bertha Agoko laid claim to it in about 1957. She described, but did not walk, the boundaries, which she said had been described to her by Mweiya.


(2) Ijuwokoe, portion no. 334. Land called Ijuwokoe was shown in the Land Registration Book of 1928 as belonging to the persons now shown as owners or to persons to whose estates those persons have now succeeded. As other land called Ijuwokoe had been determined in 1937 as being adjacent to the land now in issue and there was no other undetermined land left in the area, it was decided that this portion must be located within that land.


(3) Ijuwokoe, portion no. 231. The same considerations were taken into account in respect of this portion as in respect of portion no. 334.


(4) Atabio, portion no. 338. Land called Atabio was registered in the Land Registration Book of 1928 as belonging to the persons now shown as owners or to persons to whose estates those persons have now succeeded. However, in 1938 during the Lands Committee's inquiry into the dispute between Mweiya and Etute one of those persons, Dowaiti, had stated that he had given Mweiya the land. The Nauru Lands Committee, therefore, decided that two separate entries in the Land Registration Book of 1928, i.e. in respect both of that land Atabio and Mweiya's land of the same name, both in fact related to the same land. It was impossible to ascertain how much of the land Dowaiti had given away. So the Committee decided to divide what it would otherwise have awarded as one portion into two portions and to give one half (portion no. 337) to Bertha Agoko and Eimankomwi and the other to the persons now shown as the owners of portion no. 338.


(5) Atabio, portion no. 339. The same considerations were taken into account in respect of this portion as in respect of portion no. 334, save that the adjacent land in this case was land determined in 1938 as Atabio.


(6) Idonga, portion no. 340. In the-Land Registration Book of 1928 Etute was shown as the owner of land called Idonga. In 1938 in her dispute with Mweiya about the land now in issue she claimed the whole or part of it as her land Idonga. In 1956 the persons now shown as the owners of portion no. 340 claimed, as successors to Etute's estate, ownership of the land now in dispute. Mrs. Tebouwa walked what she alleged were the boundaries of her land. Although there is doubt whether she went right round them, it is clear that they were the outer boundaries of the whole of the land now in issue. She had herself been shown the boundaries by a former officer of the Government Surveyor's Department who allegedly had seen Etute walk them in 1938. The Nauru Lands Committee accepted that Etute's land Idonga must have been in the area but rejected the present owners' contention that it comprised the whole of the land in issue, because they viewed with suspicion the manner in which Mrs. Tebouwa had learned what line to walk as the alleged boundaries.


(7) Ijuwokoe, portion no 230.


(8) Ijuwokoe, portion no. 336.


In respect of both these portions the same considerations were taken into account as in respect of portion no. 334.


The Nauru Lands Committee tried to make the portions (other than the two formed by dividing one into two) as nearly equal in size as possible. However, the two portions enclosed by the walls, portions nos. 231 and 339, are considerably smaller than the other portions. They were allocated by the Committee to the parties who had not pursued claims to land in the area and whose rights there had been discovered only by the Committee's own researches. This somewhat rough justice was apparently acceptable to the persons decided upon as the owners of those portions, as none of them has appealed against either determination.


Bertha Agoko, Eimankomwi and Etute's successors have all put forward as their principal ground of appeal that in 1938 only Mweiya and Etute were disputing land in the area and that from 1956, when a field day was held, until after 1970 only they themselves were claiming land there. Mr. Agoko, appearing for Bertha Agoko and Eimankomwi, has suggested that the line drawn on the plan in 1938, and the wall which runs along that line on the ground, show that it was established at that time that the land now in issue was divided into two portions only. He contends that one of those two portions should be awarded to Bertha Agoko and Eimankomwi and the other to Etute's successors. Both Mr. Agoko and Mr. Akiri, appearing for Etute's successors, assert that no other parties are entitled to any of that land.


So far as concerns the claim of the persons shown as owners of portion no. 338 to own part of the land as a portion named Atabio. Mr. Agoko submits that the whole of the land of that name was given by Dowaiti to Mweiya. In support of that contention he has pointed to the evidence that Dowaiti supported Mweiya's claim against Etute and said he had given the land to him while Detudamo, one of the persons registered in 1928 as a co-owner of the land with Dowaiti, was Chairman of the Lands Committee hearing the dispute and failed to deny it. Mr. Aroi, representing the persons now shown as owners of portion no. 338, submits that, as Dowaiti owned only a quarter share in the land, that was all he could have given away. Mr. Agoko's contention that the whole of the land Atabio was given depends on the correctness of his assertion that the whole of the land now in issue was in dispute between Mweiya and Etute. There is nothing in the record of the dispute made in 1938 to indicate how big an area was in dispute; it could have been about one small part of the land now in issue. Mr. Agoko's assertion that the whole of the land was in dispute rests, therefore, on the significance, if any, of the walls on the land and possibly on the fact that Etute walked the boundaries of the whole area - if the hearsay evidence of Mrs. Tebouwa of what she was told by an officer of the Government Surveyor's Department, now deceased, is to be believed.


I turn now, therefore, to consider what weight should be given to the fact that Mrs. Tebouwa was able in 1956 to walk all or most of the outer boundaries of the land in issue. She has admitted that she was not shown those boundaries by Etute or any other previous owner but by the officer concerned. But she has said that he told her that he had seen Etute walk those boundaries in 1938. The Nauru Lands Committee refused to give any weight to Mrs. Tebouwa walking the boundaries on the ground that the officer who showed them to her could have ascertained them for the purpose from his department's records. In view of the lapse of nearly 18 years since he had allegedly seen Etute walk the boundaries it is incredible that, not being personally interested in that land, he should have remembered accurately those boundaries when he must have seen so many walked during his years of service in the department. But even if he was one of those rare people with an ability totally to recall what they have seen, all he had seen was Etute show boundaries which had just recently been demarcated when the identity and ownership of the surrounding portions were determined. As field days were doubtless held for the purpose and she would have seen the owners of those surrounding portions walk those boundaries, only a reasonable capacity for accurate observation was necessary for her also to be able to walk them. It is significant that the Lands Committee did not award the land to her in 1938. In my view, therefore, the Nauru Lands Committee was right in refusing to give to the fact that Mrs. Tebouwa could walk the outer boundaries any greater weight than it gave to the fact that details of other portions of land of the same names as those of the surrounding blocks appeared in the Land Registration Book of 1928 or in Gazettes and had to be located somewhere in the area.


Reverting, then, to Mr. Agoko's contention that half the land in issue is one portion named Atabio and that the whole of it was given to Mweiya by Dowaiti, I have now to consider whether the existence of the wall across the centre of the land supports it. In my view it does not. There has been thoroughly reliable evidence of three other walls within that land. If each wall is to be regarded as showing the boundary between different portions, the area must have comprised at least four portions and possibly more. There is, therefore, no evidence on which this Court can reach the conclusion urged by Mr. Akiri and Mr. Agoko that the dispute of Mweiya and Etute was necessarily about the whole of the land now in issue. There is no evidence to support Mr. Agoko's contention that Dowaiti had given away the whole of the portion called Atabio; indeed the fact that land of that name was recorded both in his name and in Mweiya's in the Land Registration Book of 1928 is strong evidence that he had not given the whole of it away.


With regard to Mr. Aroi's submission that Dowaiti had given away only his one quarter share, if that had been the case it is difficult to understand why Dowaiti is still shown as one of the owners of land of that name both in the Land Registration Book of 1928 and in Gazette No. 44 of 1955. It is clear that he did not give his own share. No doubt he gave part of the land on behalf of all the owners. How much he gave is now impossible to ascertain. That being so, the decision of the Nauru Lands Committee to regard the portion as being equally shared between Mr. Agoko's clients and Mr. Aroi's is reasonable. Indeed, to have decided that one or other of those groups had a larger share than the other would have been unfair, as there was, and is, no evidence on which such a decision could have been based.


The existence of four portions of land named Ijuwokoe and of one other portion named Atabio, the locations of all of which had not previously been determined, and the present ownership of those portions is evidenced by entries in the Land Registration Book of 1928 and Gazette No. 41 of 1937 respectively. In the absence of any evidence giving reason to believe that any of the entries in the Land Registration Book were incorrect or that two or more of the entries related to the same portion of land, the Nauru Lands Committee properly decided that those five portions existed. As other land of the same names was included among the portions surrounding the land now in issue, and as there is no other undetermined land anywhere nearby, the Committee was also correct, in my view, in deciding that all those portions must be comprised within that land.


Mr. Dowiyogo has drawn attention to the fact that one of these portions was registered as being in Uaboe District and that the land now in dispute is in Anibare District. As the land is on the border of the two Districts and the precise boundary line was uncertain until all the land in the area had been determined, no significance can be attached to the fact that the owners registered that portion as being in the adjoining district.


I find, therefore, that the Nauru Lands Committee's decision to apportion the land in issue so as to provide for four portions named Ijuwokoe and the three named Atabio, with the owners of these portions as shown in Gazettes No. 5 of 1973 was correct. The appeals of Bertha Agoko, Eimankomwi Aliklik and Etto Aingimea and her co-appellants must, therefore, all be dismissed.


It is necessary now to consider whether the persons shown as the owners of Idonga, portion no. 340, are the true owners of that portion. The appellants in Appeal No. 14 allege that they are not. In the Land Registration Book of 1928 Etute is shown as the owner of land of that name and, as already noted, in 1938 she was claiming that the land now in issue was, or included, that portion. Mrs. Tebouwa gave evidence in these proceedings that Etute had said that she was given the land by a man named Demwan for breast-feeding his son Ratagaij. Demwan, Mrs. Tebouwa claimed, was related to Etute. The appellants in Appeal No. 14 claim to be entitled to share land named Idonga with a man named Heinrich. Land of that name is registered in the Land Registration Book of 1928 as jointly owned by the appellant's mother, Eigagen, and Heinrich. Heinrich is the son of Ratagaij.


The appellants complain that they were not invited by the Nauru Land Committee to put forward a claim for their portion Idonga to be located within the land now in issue. Evidence has been given, which I accept, that Heinrich put forward such a claim but that it was rejected. As he was the oldest of the joint owners, the Committee could not unreasonably have believed that he represented all of them. However, I indicated that, as the appeal was by way of a rearing a novo, the appellants should present in this Court the case in support of their claim, and they did so.


Mr. Adeang on their behalf has gone to considerable lengths to prove that Etute was too young to have breast-fed Ratagaij. In my view he has established that fact. Nevertheless, Etute was registered in 1928 as the owner of land named Idonga and was claiming the land now in issue in 1938, apparently after field days had been held in the area. Her claim was not disputed at that time by Heinrich or Eigagen and I can only conclude that she was entitled to a portion of that name. However, as her claim is based essentially on the entry in the Land Registration Book in her favour there is no reason why on the same basis the ownership of another portion of the same name by the appellants and Heinrich should not be accepted. Mr. Depaune gave evidence that the Nauru Lands Committee rejected Heinrich's claim for the portion to be included in the land now in issue because he told the Committee that "the former Committee, with the help of the Survey people, had told him that his Idonga was included in the boundaries of Mockin", a portion owned by Heinrich and adjoining the land determined as portions nos. 231 and 340. No satisfactory explanation has been given to this Court of the former Committee's decision. The portion is shown on the sketch plan of the area kept by the Department of Lands and Survey as being called only Mockin. Heinrich has not appealed against the rejection of his claim but his co-owners have. In my view, the position of these appellants and Heinrich is in no way different from that of all the other persons whom the Nauru Lands Committee has decided by its determinations published in Gazette No. 5 of 1973 to be the owners of portions within the land in issue. They are entitled to be regarded as having a portion of land named Idonga somewhere in Anibare District. If the portion of that name belonging to Etute's successors is to be included within that land, then on the same principle as was applied in deciding to locate the four Ijuwokoes and the three Atabios there, the Idonga belonging to those appellants and Heinrich should also be included in that land.


Finally, Mrs. Eibaoeda Scotty has appealed against the determinations of all the portions on the ground that the whole of the land in dispute is land called Mockin which belongs to her. She was unable to walk the boundaries but stated who the owners of adjacent portions were in such a way as in fact to claim the whole of the land. The Nauru Lands Committee rejected her claim because, although she was shown in Gazette No. 52 of 1937 as owning a portion named Mockin jointly with four other people, it was not registered in 1928 in their names or in the name of anyone through whom they might claim it and in consequence in 1957, when she claimed certain land as a portion named Oquore, a portion registered in her name in 1928, the Committee had decided that, while it was properly called Oquore, it was also the portion standing in her name as Mockin, that is to say that it was one portion with the two names.


Mrs. Scotty gave evidence that she claimed that land only as Oquore and was never told that it was to be regarded also as her land Mockin. For that reason she had not appealed against the decision. No reason for the decision is known. Possibly the Committee took the view that, as no land called Mockin was registered in Mrs. Scotty's name in the Land Registration Book of 1928, the gazettal in 1937 must refer to land registered in that book under another name. If that was so, the Committee was, in my view, regarding the Land Registration Book as more authoritative than experience has shown it to be. It is strong evidence of ownership of the portions detailed in it and the absence of any entry in respect of any portion is prima facie evidence that such a portion does not exist. But if there is a subsequent gazettal of ownership of such a portion (other than mere gazettal of a deceased person's estate), that must generally negative the inference to be drawn from the absence of an entry in the Land Registration Book. There is no evidence that the land Mockin referred to in Gazette No. 52 of 1937 was the same as the land Oquore.


The portion-claimed by Mrs. Scotty in 1957 as Oquore and awarded to her as Oquore and Mockin is adjacent to portions named Oquore. In my view there was no justification for giving that land the name Mockin; it was clearly Oquore. That being so, Mrs. Scotty and her co-owners have another portion named Mockin. I reject her claim to ownership of the whole of the land in issue as Mockin. It is easy for any person to ascertain the names of the owners of portions adjacent to land in dispute and no weight can be given to his knowing them. However, as already noted, Heinrich's portion named Mockin adjoins that land and there is no other undetermined land in the area. Mrs. Scotty is entitled to the benefit of the application of the same principle as that by which all the other persons have benefited whom I have found to own portions situated within that land, namely that her portion should be included because the land adjoins another portion there of the same name.


Having given full consideration to all the evidence of all the parties to these five appeals, and of the witnesses they have called, and to all that has been said by those represent ting them in these proceedings, I have come to the conclusion, for the reasons stated above, that the following portions must be included in the land in issue:-


(1) Atabio, owned as shown in respect of portion no. 337 in Gazette No. 5 of 1973;

(2) Atabio, owned as shown in respect of portion no. 338 in that Gazette;

(3) Atabio, owned as shown in respect of portion no. 339 in that Gazette;

(4) Ijuwokoe, owned as shown in respect of portion no. 334 in that Gazette;

(5) Ijuwokoe, owned as shown in respect of portion no. 231 in that Gazette;

(6) Ijuwokoe, owned as shown in respect of portion no. 230 in that Gazette;

(7) Ijuwokoe, owned as shown in respect of portion no. 336 in that Gazette;

(8) Idonga, owned as shown in respect of portion no. 340 in that Gazette;

(9) Idonga, owned as to one half share by Heinrich and as to one sixth share each by Milka Denitage, Lilac Japhet and Enna Gazette;

(10) Mockin, owned by Eibaoeda Scotty and the persons named in Gazette No. 52 of 1937 as joint owners with her, or their successors. (The identity of the successors, if any of those persons has died, has not been established in these proceedings.)


The boundaries of these portions and their respective sizes are unascertainable. With regard to the two portions named Atabio previously owned respectively by Mweiya and Eidomariro and by Dowaiti and his relatives respectively, there is no way of knowing its original size. There will now be a total of five portions named Atabio adjoining one another and also five named Ijuwokoe adjoining one another. There will be two Idongas and two or more Mockins. Possibly the sizes of the portions should bear some proportion to these numbers. However, that would presuppose that all groups of portions of the same name started by being the same size. There is no basis for such a presupposition; indeed, it seems unlikely. That being so, it is impossible to know whether any one of the portions which have to be fitted into the land in issue is bigger or smaller than any of the others and the only fair way of apportioning the land is in equal shares. As it is not known who are the owners of the land enclosed by the walls, it is unfair to allocate them as portions. The whole of the land must be split into ten equal portions without regard for the position of any of the walls. The portion named Mockin is to adjoin Heinrich's portion of that name (no. 126); the portions Atabio are to adjoin one another and be located adjacent to the portions of that name to the south and east of the land in issue; as far as possible. The portions named Ijuwokoe are to adjoin one another and be located adjacent to the portion of that name, no. 229, to the north of the land in issue, as far as possible. The two portions named Idonga are to adjoin one another.


The appeals of the appellants in Appeals Nos. 5, 7 and 12 are dismissed. The appeals of the appellants in Appeals Nos. 10 and 14 are allowed to the extent stated above. I set aside the determinations published in Gazette No. 5 of 1973 relating to the eight portions nos. 230, 231, 334, 336, 337, 338, 339 and 340 and order that the reapportionment be as set out above.


Direction


I direct that a plan showing the division of the land into ten equal portions be prepared by the Director of Lands and Survey and submitted to the Registrar for approval. The allocation of individual portions within groups of portions of the same name is then to be made by the Registrar drawing lots in the presence of the Director of Lands and Survey and a member of the Nauru Lands Committee (other than Mr. Agoko). The details are then to be published in the Gazette.


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