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Eobob v Deduna [2006] NRSC 10; Civil Action No 16 of 2005 (15 December 2006)

IN THE SUPREME COURT OF NAURU

CIVIL ACTION NO.: 16/2005

BETWEEN:

BRENDAZ EOBOB
PLAINTIFF

AND:

RONALD DEDUNA
1ST DEFENDANT

AND:

NAURU LANDS COMMITTEE
2ND DEFENDANT

Mr. Leo Keke for the Plaintiff
Mr. Reuben Kun for the 1st Defendant
Mr. Bagadouwe Doubug for 2nd Defendant

DECISION

On the 23rd September 2005 in Civil Action No. 4/2005 Connell CJ made an order that Brendaz Eobob the present Plaintiff, should vacate "current residential accommodation in Portion 228" Denigomodu by 17th November. On the 17th November Brendaz obtained an order from the Chief Justice staying the order of 23rd September, "until determination by the Court of Civil Suit No 16/2005" (the present proceeding) which Brendaz had begun on the 8th November.

These proceedings seek, inter alia, this relief:

1. A declaration that the Committee’s decision as published in Government Gazette No. 87 of 24 December 2003, is invalid and ultra vires of the Committee’s powers under the Nauru Lands Committee Act 1951 – 1968;
2. An order that the publication of the Committee’s decision in Government Gazette is void and of no effect and that the Committee should publish a notice in the Gazette rescinding the determination;

100. A declaration that the land "Denigomodu" Portion 24 in Denigomodu remains undivided and is in the names of the fourteen landowners in accordance with the Court’s decision in Civil Action No. 9 of 2001;- -
     

In Civil Action 9/2001 Connell CJ decided that, "Portion 24 Denigomodu still remains within its present ownership of fourteen landowners" (at page 7 of the typed decision).
Brendaz and Ronald are two of the fourteen.

The Nauru Lands Committee held meetings on the 5th and 6th March 2003 to try to resolve a dispute between the 14 landowners who are split between members of two families. The minutes of the meeting of the 5th March show that there was no agreement that day between the land owners as to what to do. There is no dispute that a meeting of the 5th March was properly and regularly convened and conducted. It is what did or did not happen at the meeting on the 6th March which is crucial to the decision in these proceedings.

Ronald Deduna was in March 2002 a member of the Lands Committee. The minutes of the meeting showed him to have been present:

"Wednesday 6-3-06 10.00am

Committee members:-

Agege, Detsimoiy, Ronald, Ralph & Bagadouwe.

The Committee members have agreed that Portion 24 in Denigomodu should be divided into 2 parts;

1 portion for Adimim Deduna

1 portion for Linka Eobob

Findings of lands Committee from deceased estate LE/1, the Denigomodu coconut land from Egaga’s estate should go to Adimim Deduna and Renzo Paul and 2 siblings. That is the decision of the Committee.

Ronald Deduna (signature) Ralph T. (signature)"

Ronald – if the minutes are accurate – participated in a decision although he was a party interested in that decision.

In Land Appeal 1/1994, Medang Baguga the Nauru Lands Committee, Dillon CJ succinctly set out the principle of law:

"It is an elementary principle of natural justice that no one should sit in judgement upon his own cause. That Mr Kepae should act as Chairman of the Lands Committee upon the hearing of his own application for this disputed land was a flagrant breach of his duties and responsibilities as an independent Chairman."

No man may be judge in his own cause.

The decision of the Lands Committee made on 6th March 2002 to split Denigomodu 24 into two halves was gazetted on the 24 December 2003.

There followed Civil Action No. 4/2005 between Ronald as Plaintiff and Brendaz as Defendant. Ronald complained that Brendaz was still occupying a part of Denigomodu 24 which has been allocated to Ronald and his family; Brendaz refused to move to that part of Denigomodu 24, now designated Denigomodu 228, which had been awarded to him and his family.

On 23rd September 2005, Connell CJ made the order to which I referred at the beginning of this Decision.

The question of whether the decision of the Lands Committee on 6th March 2002 was regular was not raised before Connell CJ who naturally, therefore, assumed the regularity of the decision. It is only after the order for his eviction had been made that the point has been taken by Brendaz.

The crucial issue is whether Ronald Deduna was present and participated in the discussion leading to the decision of the Lands Committee on 6th March. If he were present and took part then the decision cannot stand.

I have already set out the minutes of the meeting. They show Ronald present and his signature at the foot. There were affidavits pro and con. I invited the parties, through Mr. Keke for the Plaintiff and Mr. Kun for the Defendant to call oral evidence.

Mr. Kun called four witnesses. Extracts from my notes of their evidence:

"Bagadouwe Doubug: Ronald was at both meetings. Participated in decision on both days. At meeting he was there as one of the landowners (6March) His presence for 6 was as a member of the committee."

Ralph Tamakin: I took the minutes. Don’t remember why Ronald signed. I can’t remember anything about the meeting except what is in the minutes.

XXmin: "Minutes are true and correct."

Leslie James Adam: Meeting on 6 March. Remember Wednesday I was there. Previous day was present. Not listed on 6 March. Don’t know why my name not there. Recall that Ronald not supposed to sit . Why his name appears because he was not with us. Recognize Ronald’s signature. Wednesday 6 March – don’t know not recorded. "Minutes true and correct."

Ronald Deduna: 6 March - I didn’t attend: outside. Don’t know why secretary gave it to me to sign after the meeting. I signed it because the Secretary gave it to me. Ralph . Just gave it to me.

XXmin: Minutes correct. I didn’t read minutes through before I signed. Signed because he gave it to me."

My impression is that none of the witnesses was very sure of what did happen or who was at that meeting; each was relying more on the Minutes than his own recollection. Each said the minutes were accurate. It would be strange for the minutes to show Ronald present if he were not. Whether he were present or not it is also strange for him to have signed at the foot of the minutes.

On the balance of probabilities I find that Ronald was at the meeting and took part in the discussion on a matter in which he was a party interested.

For the reasons given by Dillon CJ the decision made by the Lands Committee on 6th March 2002 cannot stand. It was invalid, fatally tainted by Ronald’s presence and participation.

It follows that the decision of Connell CJ made in ignorance of all this cannot, was made per incuriam. The point should have been taken by Brendaz in that action. Brendaz’s failure led the Chief Justice in error and the Chief Justice had no reason – unless his attention has been drawn to it – to consider the validity of the Lands Committee decision of 6th March 2002. However, that the point was not taken in Civil Action 4/.2005 does not avoid the point; whether it were taken or not the Lands Court decision is invalid. There is no way now that the point can be rebutted by Ronald. Brendaz’s failure to take the point may well be relevant in due course on the question of costs.

With respect to my predecessor, his decision in Civil Action 4/2005 must be regarded as no longer of application.

The result is that the parties are back to the position in which they were after the decision in Civil Action 9/2001. "Portion Denigomodu 24 still remains within its present ownership of 14 Land Owners."

The Plaintiff is entitled to remain where he is.

I shall hear the parties on the orders I should make.

THE HON. ROBIN MILLHOUSE QC.,
CHIEF JUSTICE

15th DECEMBER 2006