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Adiedabwe v Bill [1975] NRSC 3; [1969-1982] NLR (B) 131 (28 January 1975)

[1969-1982] NLR (B) 131

IN THE SUPREME COURT OF NAURU

Land Appeal No. 18 of 1974

ADIEDABWE AND ANOTHER

v

SELINA EIDIE BILL AND OTHERS

28th January, 1975.

Decision of Nauru Lands Committee - need for prompt publication.

Field days were held by the Nauru Lards Committee between '960 and 1962 to identify portions of land in a certain area. Notices were published by the Committee inviting persons who claimed to own lands in that area to attend the field days and identify their land and its boundaries. Many people, including one of the two applicants, did so, but not all on the same days. The applicants allegedly were unaware of the respondents' claim that the land belonged to them and were given no opportunity to dispute their claim. in 1974, after 12 years of apparent inaction in the matter, the Nauru Lards Committee published in the Gazette its decision., which was that the land was the respondents' . The applicants did not become aware of the decision or its publication until the time for appealing against it had expired. They applied to have it set aside as invalid in that they had not been given a proper opportunity to be heard by the Committee before it made its decision. The Committee's minute book containing a record of the field days was missing.

Held:

(1) On a balance of probabilities, the applicants have not been given a proper opportunity to be heard.

(2) The delay between the field days and the publication of the Committee's decision was such that the applicants should not be prejudiced on account of their failure to check the Gazette for its publication.

By Court: Decisions of the Committee should be published without delay.

Application granted; decision of the Nauru Lands Committee set aside.

R. Degoregore for appellant
B. Dowiyogo for respondents

Thompson CJ:

This is an application to set aside a decision of the Nauru Lands Committee on the ground that the applicants were not given an opportunity to present their claims to the Nauru Lands Committee.

The applicants have both given evidence. One stated that he was not aware of any field days held to decide the boundaries and identification of the land in dispute. The other, Mr. Degoregore, stated that he showed the Committee the boundaries on one occasion but was not informed of any later field days or present when any other person claimed the lard. The respondents have called as a witness the Acting Chairman of the Nauru Lands Committee to give evidence. It is unfortunate that the field days in which this land was identified were held 12-14 years ago and a minute-book in which the minutes of those field days may have been recorded is now missing. Also, because of the lapse of time the Acting Chairman cannot recall the actual identification of the land by the respondents.

The evidence of the applicants has, therefore, not been refuted by the witness called by the respondents. I find as fact that it is more likely than not that they were not given notice of the field day on which the respondents identified the land as theirs and were awarded it by the Committee and that they had no chance to put forward their claim in opposition. The application must be allowed.

Before making a final order I wish to draw attention to the unsatisfactory consequences of long delays in the Committee publishing its decisions about the identification, boundaries and ownership of land. As we have seen in this case, memories fade and records become lost over a period of years. When a dispute arises those who made the decision do not recall and have no record of the circumstances in which they made it. Also, with the time for appealing limited by statute to 21 days after the giving of the decision, delay in publishing a decision can result in serious injustice. A person may well have been given the Gazette regularly to find out what the Committee decided. But after some years his vigilance may have lapsed, or he may have become ill or travelled overseas; in any event, the longer the delay in publishing a decision the greater must be the risk that it will pass unnoticed until too late for appeal.

I suggest, therefore, first that, unless a long delay in the publication of a decision is unavoidable, every decision made by the Nauru Lands Committee should be published without delay. I suggest second that, where a long delay in unavoidable, the Committee should send a notice to every person adversely affected by the decision, i.e. every person who has made a claim which has been rejected by the decision. The notice should 1 inform such persons that the decision is about to be gazetted.

The Nauru Lands Committee has a duty to decide certain questions in dispute and the experience of this Court is that generally it does so very fairly. However, the interests of justice also require that persons who may be dissatisfied with the Committee's decisions should be enabled to become aware of the decisions early enough for them to be able to appeal within the statutory time-limit. If the Committee would either adopt the suggestions which I have made above or find for itself other satisfactory ways of ensuring that persons affected by its decisions do become aware of them in sufficient time to be able to appeal against them if they wish, it would obviate the risk of injustice being suffered by the persons concerned being, in effect, deprived of the right of appeal.

The application is allowed. The determination in respect of portion no. 138 published as Gazette Notice No. 328 of 1974 is set aside as void. The questions of the identification of the land and of its ownership must be determined afresh by the Nauru Lands Committee and its new determination published in the Gazette. Persons dissatisfied with that determination will have a right of appeal to this Court against it.