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Agigo v Bop [1975] NRSC 4; [1969-1982] NLR (B) 122 (15 May 1975)

[1969-1982] NLR (B) 122

IN THE SUPREME COURT OF NAURU

Land Appeal. No. 9 of 1974

DEBEB AGIGO AND OTHERS

v.

ATEGAN BOP AND OTHERS

15th-May, 1975.

Estate of deceased Nauruan - decision of Administrator as to distribution - not on appeal from Central Court - no statutory authority for exercise of jurisdiction by Administrator - decision invalid.

According to the German records of land ownership, certain land belonged to N., a Nauruan chief. After N.'s death in 1915, F. claimed that the lard had belonged to her father, not N., and had become her property by inheritance from him. The dispute continued until 1929 when the Lands Committee recorded an opinion that the land belonged to E. However it published no decision in the matter. The dispute continued and in 1939 the Administrator personally inquired into it and published his 3ecision that the land did not belong to E. but belonged to N.'s heir, B. The dispute was not heard in the Central Court at any time. In 1955 and 1965 parts of the land were identified and surveyed. In 1955 the Lands Committee, and in 1965 the Nauruan Lands Committee, did not investigate the ownership of the land but simply applied the decision made by the Administrator in 1939. In 1974, following the death of one of B.'s successors in title to the land, the other successors agreed to a re-distribution between themselves of their interests in the land. That agreement was ratified by the Nauru Lands Committee and published. The appellants, who are the grandchildren of E., appealed against the decision, alleging that the Administrator's decision in 1939 was invalid and the decisions of the. Lands Committee and the Nauru Lands Committee in 1955 and 1965 were void because they were founded on it. They contended also that ownership of the land had been decided by the Lands Committee in 1929 and that that decision was binding.

Held:

(1) The administrator had no jurisdiction to decide on the ownership of the land, his decision not having been given in the determination of an appeal from the central Government. Although he had power to make laws, by Ordinances, he was himself subject to the rule of law and could not lawfully exercise judicial functions not conferred on him by law.

(2) The Lands Committee did not take a decision in 1929; it only expressed an opinion. That had no binding effect.

(3) The decisions if the Lands Committee and the Nauru Lands Committee in 1955 and 196- were invalid, as the Committee carried out no inquiry of its own but simply applied the invalid decision of Administrator.

(4) The question of the ownership of the land had never been validly decided.

Appeal allowed; question of ownership of the land to be decided by the Nauru Lands Committee.

D. Deiye for appellants
Respondents in person

Thompson CJ:

This appeal concerns the ownership of three portions of phosphate land, nos. 346, 347 and 378 in Meneng District; all the portions are called Magenae or Imagenae.

In the German records this land was shown as belonging to Chief Nobob. However, after his death in 1915 the appellants' grandmother Eimwange claimed that it belonged to her father Bwoin. In 1929 the Lands Committee heard tier claim and recorded its opinion in her favour. However, no decision was published in the Gazette and in 1938 the Administrator, Mr. Garcia, held an inquiry into the lands which had apparently belonged to Chief Nobob. He rejected Eimwange's claim and the Land Committee's opinion (or, as he called it "recommendation"). He published notice in Gazette No. 39 of 1938 declaring that the land belonged claimants to appeal or, as it is expressed in paragraph (4) of the Administration Order No. 3 of 1938, "to protest".

In 1955 the time arrived to demarcate two of the portions called Magenae. Neither Eimwange nor any of her family attended the field day and Mr. Agoko, the present Vice-Chairman of the Nauru Lands Committee, has expressed the view, from his examination of the Lands Committee's minute books, that they were not invited to attend, presumably because of Mr. Garcia's rejection of Eimwange's claim to the land. The determinations relating to the boundaries and ownership of portions nos. 346 and 347 were published in Gazettes Nos. 39 and 40 of 1955 respectively.

In 1965 the third portion called Magenae was demarcated. Mr. Agoko has given evidence that again no member of Eimwange's family was present at, or invited to attend, the field day. The determination in respect of the boundaries and ownership portion no. 378 was published in Gazette No. 29 of 1965.

All three portions were gazetted as belonging to the respondents and one other person as members of the family of Bop. The appellants did not appeal against any of the three determinations. Last year, apparently following the death of one of those shown in the Gazettes as an owner of the land, the three respondents as the surviving owners agreed between them-selves to a reallocation of their respective shares. That was approved and published by the Nauru Lands Committee in Gazette No. 23 of 1974 as its new determination of ownership. It is against that new determination in respect of all three portions that the appellants, the only surviving descendants of Eimwange, have brought this appeal.

Mr. Deiye, representing the appellants, has submitted that the determinations of the Lands Committee and the Nauru Lands- Committee published in 1955, 1965 and in Gazette No. 23 of 1974 are all void because they are at variance with the "decision" of the Lands Committee in the matter in 1929." The respondents, on the other hand, have asserted that those determinations are valid because they conform with the decision of Mr. Garcia in 1938. Mr. Deiye has argued, however, that Mr. Garcia's decision was not capable of overriding the Lands Committee's decision because the Administrator had no jurisdiction to decide the matter.

In 1938 section 8 of the Laws Repeal and Adopting ordinance 1922 provided that nothing in that Ordinance should affect the rights, titles, estates or interests of Nauruans in land. Section 9 required that the institutions, customs and usages of the Nauruans should be permitted to continue in existence, subject to the provisions of Ordinances of the Island. The Council of Chiefs was a Nauruan institution and by Nauruan custom decided questions of inheritance, of owner-ship of land and of land boundaries. Apparently at some time in the 1920s it began to exercise that customary jurisdiction through a Committee consisting of some or all of its members. That Committee became known as the Lands Committee.

In the course of time a practice grew up of allowing persons dissatisfied with the decisions of the Lands Committee to appeal to the Central Court; those dissatisfied with the decisions of the Central Court were able to appeal further to the Administrator. The Central Court had no jurisdiction to entertain appeals against decisions of the Lands Committee; statutory provision existed for the Administrator to entertain appeals generally from the Central Court. After the Second World War doubts arose about the validity of the decisions of the Central Court and consequently also about the validity of the Administrator's decisions in further appeals from the Central Court. In 1956, when the Nauru Lands Committee was established by the Nauru Lands Committee Ordinance 1956, the opportunity was taken to validate all those decisions (section 8 of the Ordinance). However, the validation was limited to "decisions of the Administrator given on further appeal" from the Central Court. Mr. Garcia's decision published in Gazette No. 39 of 1938 is, so far as can be ascertained, not a decision on appeal from the Central Court. It appears that the parties to the dispute over Chief Nobob's lands had not been satisfied with the decisions reached by the Lands Committee in 1929 and had continued to dispute their ownership and that Mr. Garcia decided to resolve the matter himself. There is no record of any prior appeal to the Central Court; Mr. Garcia's decision refers to the recommendation of the lands committee, not to a decision of the Central Court.

The first issue of this appeal is, therefore, whether in 1938 Mr. Garcia, by virtue of his office of Administrator, had jurisdiction to hear and determine the dispute. If he did, that is the end of the matter so far as the appellants are concerned. The effect of the Laws Repeal and Adopting Ordinance 1922, and particularly section 17 of that Ordinance, was to establish in Nauru what is commonly called "the Rule of Law". This meant that the Administrator was required to act in accordance with the law. By virtue of the Nauru Island Agreement between the Governments of the United Kingdom, Australia and New Zealand, to which statutory recognition was given by two of those countries, the Administrator had the power to legislate by Ordinance. But he had no right to act otherwise than in accordance with the Agreement and the laws which he made.

It is necessary, therefore, to examine the Agreement and the laws of Nauru as they were in September, 1938, in order to ascertain whether Mr. Garcia had jurisdiction to hear and determine disputes relating to the ownership of Nauruan land. Article 1 of the Agreement vested "the administration of the Island" in the Administrator, that is to say it gave him executive authority. It then empowered him to make Ordinances "for the peace, order and good government of the Island." The Agreement did not expressly limit his executive powers, although it contained certain provisions which the Administrator had no power to alter. However, once he had made a law to govern any matter, without reserving independent- executive power for himself, it seems that, by virtue of the Laws Repeal and Adopting Ordinance 1922, he was required to exercise his executive power in accordance with that law.

Section 3 of the Native Administration Ordinance 1922 empowered the Administrator to make regulations "affecting, the affairs of native with regard to-

(a) ....

(b) the succession to property in case of intestacy;

(c) ....

(d) the rights to real and personal property."

Regulations to govern the succession to, and distribution of, the estates of persons dying intestate were made under that section by Mr. Garcia. No other regulations were made relating to the rights to real and personal property. In the absence of statutory provision to the contrary, Nauruan custom continued by virtue of section 9 of the Laws Repeal and Adopting Ordinance 1922, as it does today by virtue of section 3 of the Custom and Adopted Laws Act 1971, to govern questions; relating to Nauruan wills and the devolution of property under the provisions of such wills. The Lands Committee, as the appropriate customary Nauruan institution, continued to have jurisdiction to decide disputes about ownership of land. In the case of intestate estates, Administration Order No. 3 of 1938 made on 19th March, 1938, (the "Order" is in fact a set of regulations made under the Native Administration Ordinance 1922) provided that no distribution of an estate was to be final "unless the ownership of the deceased has been determined previously by the Lands Committee or other authority authorised by the Administrator". Possibly this provision should be construed as a regulation regulating generally the rights to real and persona]. property, even though it is contained in regulations expressed to be concerned with the administration of the estates of persons who have died intestate. But, even if that were done, the Order goes on to require that the decision as to ownership should be "published in the Gazette with the usual opportunity given for protest". The notice published by Mr. Garcia in Gazette No. 39 of 1938 gave no opportunity for protest; on the contrary it stated that his decision was final. Even, therefore, if his. investigation and determination of the disputes as to ownership. was authorised by the provisions of Administration Order No. 3 of 1938, it was not published as required by that Order.

In the absence of statutory provision empowering the Administration to hear and determine disputes about land I come, with some reluctance, to the conclusion that, while doubt-less Mr. Garcia acted in good faith, he had no jurisdiction to give a binding decision in respect of the ownership of the lands alleged to comprise Chief Nobob's estate (or, if he had the jurisdiction, the decision was invalid because no opportunity was given to protest against it) and in consequence, while his findings may be of value to any tribunal obliged at this late stage to adjudicate in the dispute, they are not binding on the parties nor, if a binding decision was made by the Lands Committee in 1929, did they override it.

The second issue in this appeal is, therefore, whether a binding decision was made by the Lands Committee in 1929. Examination of the Gazettes nor the period when the Lands Committee dealt with the matter indicates that no decision was published in any issue of the Gazette. It is significant that Mr. Garcia stated that the Lands Committee had made a recommendation and the very fact that he felt obliged to undertake the inquiry indicates that the parties did not accept that the dispute had been finally adjudicated upon by the Lands Committee. Indeed, there is nothing the minute book (the contents of which are set out in the Nauru Lands Committee's written report to the Court in this appeal) to indicate that the Committee intended to give a decision and not merely to record its opinion as a step on the way towards making a decision. In all the circumstances I consider that, in the absence of publication of any decision, and of any clear statement in the minute book that the Lands Committee had reached a final decision, it would be unsafe to regard the dispute between Eimwange and Bop as having been determined by the Committee in that year. That being so, Mr. Deiye's submission that the determinations of the Lands Committee made in 1955, 1965 and this year are void because they conflict with a binding decision made in 1929 must fail.

However, the questions before the Nauru Lands Committee for decision in 1955 and 1965 related to the identification and demarcation of portions within an area of land, not to the ownership of the land called Magenae. Neither Eimwange nor any member of her family was invited to attend. They did not attend and were not heard. As Mr. Agoko has explained, the Committee was simply applying Mr. Garcia's decision as to the ownership of the portions called Magenae and deciding where they were situated in relation to adjacent portions. In-so far as the determinations purported to show the ownership of the portions, they were based on an invalid decision and the present appellants and their predecessors in title were not given any hearing. To the extent, therefore, that they show ownership, the three determinations published in 1955 and 1965 in respect of portions nos. 346, 347 and 378 are void because of the gross irregularity constituted by the failure to give a hearing to the appellants or their predecessors in title in respect of a question which had not previously been validly decided.

Because the determinations published in Gazette No. 23 of 1974 in respect of the three portions of land, i.e. the determinations which are the subject of this appeal, are based entirely on the determinations published in 1955 and 1965, they also cannot be allowed to stand. They must be set aside as void and, as the dispute between Eimwange and Bop, the predecessor in title of the present respondents, about the land Magenae has still not been validly determined, the Nauru Lands Committee must decide it now. It will be a most difficult task to undertake at this late stage. It is unfortunate that, when the Nauru Lands Committee Ordinance was being drafted, account was not taken of the irregular assumption of jurisdiction by Mr. Garcia, as it was in respect of irregular assumption of jurisdiction by the Central Court, and appropriate provision made. (Doubtless, like other defects in that Ordinance, this was a result of the drafting being done in Canberra by a person with no personal knowledge of Nauru on the basis of written instructions given by an Administrator who had no legal training.) But, difficult as the task will be, the parties are entitled to have it done properly. In carrying it out the Committee may properly have regard to any is not bound to adopt the reasoning o€ either the Committee or Mr. Garcia. The Nauru Lands Committee must decide the matter for itself on the basis of all the evidence presented to it, or which it is able to gather for itself, in the matter. The decision of the Committee, when published, will, of course, be subject to a right of appeal to this Court.