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Keppa v Adeang [2021] NRSC 35; Civil Case 15 of 2021 (3 September 2021)


IN THE SUPREME COURT OF NAURU CIVIL CASE NO. 15/2021
YAREN JURISDICTION


BETWEEN


RON KEPPA AND SHARENA DOGIREIY Plaintiffs
AND


VYKO ADEANG First Defendant


AND


DEDAUNO ENGAR Second Defendant


Before: Khan, J
Date of Hearing: 16, 20, 25 and 27 August 2021
Date of Ruling: 3 September 2021


Case to be referred as: Keppa and others v Adeang and others


CATCHWORDS: Application to strike out a claim under Order 15 r.19 of the Civil Procedure Rules 1972 on the basis that it discloses no cause of action against the defendants – Whether the claim should be struck out – What is the test for striking out a cause of action under Order 15 r.19 – Whether the claim is “so untenable that it cannot possibly succeed” – Whether the claim is an abuse of process of Court– What is counsels’ duties when appearing in ex parte applications for injunction and their general duties to the Court.


APPEARANCES:


Counsel for the Plaintiffs: N Ekwona
Counsels for the Defendants: D Aingimea and Ms Lekenaua



RULING


INTRODUCTION


  1. On 23 June 2021 Fatiaki CJ (Chief Justice) heard an application for an injunction inter parte against the defendants and made the following orders:
    1. Until further order the defendants are severally and jointly restrained from entering or remaining upon and/or building and/or bringing materials, vehicles and heavy-duty trucks and construction equipment on Land Portion No. 80 also known as ‘Adeto’ in Denigmodu District;
    2. The order extends to the defendants, their agents, servants, or workmen on the site;
    3. The plaintiff is to serve a copy of this order on the defence counsel by 4pm today;
    4. Liberty is reserved to the defendants to file and serve any application they wish to discharge and/or vary this injunction on 3 clear days’ notice to the plaintiffs;
    5. Costs reserved.
  2. The first and second defendants filed a summons pursuant to Order 15 r.19 of the Civil Procedure Rules 1972 and the inherent jurisdiction (application) of the Court on 11 August 2021 seeking an order that this action in its entirety be dismissed, inter alia on the following reasons:
    1. The suit discloses no reasonable cause of action against both the defendants;
    2. It may prejudice or embarrass the proceedings;
    1. It is frivolous or vexatious; and
    1. It is an abuse of process.
  3. For the sake of clarity, I shall continue to refer to the parties as plaintiffs and defendants rather than as applicants and respondents.
  4. The Chief Justice established the practice in this jurisdiction that once a matter is allocated to a judge, he becomes seized of the matter and continues to hear the case until completion including all interlocutory applications. After this application was filed the Chief Justice allocated this file to me.

DOCUMENTS FILED


  1. The following documents were filed on behalf of the plaintiffs:
    1. Writ of Summons filed on 21 June 2021;
    2. Statement of Claim filed on 21 June 2021;
    1. Originating Summons (ex parte) filed on 21 June 2021;
    1. Authorisation of representative suit;
    2. Affidavit of Ron Keppa filed on 21 June 2021;
    3. Affidavit of Julie Olsson filed on 21 June 2021;
    4. Supplementary Affidavit of Julie Olsson filed on 22 June 2021.
  2. The Chief Justice did not give written ruling for granting the interim injunction orders and in an extempore ruling on 23 June 2021 he stated:

“Having considered the application and the opposition to it and the papers and affidavits filed in support by both parties and noting the defendants application to strike out the claim I am satisfied that there is a serious question to be tried, raised by the plaintiff’s claim and affidavits including lawfulness of the works being undertaken on the land and whilst I accept that the defendants may not be the proper defendants to the ultimate claim being merely employees, I note that there is no asserted claim of right by either defendant to enter upon or work on the said land and accordingly the injunction will issue against the defendants both severally and jointly...”


STATEMENT OF CLAIM


  1. In the statement of claim it is alleged that both defendants are strangers to the plaintiffs; that the first defendant manages a security company, whilst the second defendant manages and controls the construction of houses being built on Land Portion 80 (Portion 80) also known as ‘Adeto’ in Denigmodu District.
  2. It is further alleged in the statement of claim that the defendants are carrying out work on Portion 80 without plaintiffs required written consent of 75% and more, and until ownership of the land is resolved by the Court.

REPSENTATIVE PROCEEDINGS

  1. The defendants raised objections about the correctness of the representative proceedings. In their submissions they stated that the plaintiffs claim to be representing some other persons who are owners of Portion 80 and it makes reference to “RKSD01” which they claim expressly states that the defendant is “Nauru Rehabilitation Corporation”; and they submit that there is no consent or approval by the persons signing ‘RKSD01’ to commence these proceedings against the two defendants.
  2. It is further submitted that as provided in Order 12 r.13 of the Civil Procedure Rules 1972 that numerous persons for who this writ was filed do not “have the same interest”. Mr Aingimea submitted that Julie Olsson described herself as “a secondary land right owner” to Portion 80 and he submitted that there is no such thing as a secondary land rights owner and Mr Ekwona agreed with that submission and stated that in Nauruan context a person is either a land owner or not and that there is no such thing as a secondary land rights owner.
  3. It was further submitted that in ‘RKSD01’ Julie Olsson appears to be representing her mother, Paula Olsson and that there is no written authority or power of attorney from her mother authorising her to represent her.
  4. It was further submitted that since the characteristic of a representative suit is lacking it should be dismissed as was done in Smith v Cardiff Corporation[1] where it was stated that:

“Held, that to bring a representative action under R.S.C., Ord. 16 r.9 it must be shown: first, that all the members of the class had a common interest; secondly that they all had a common grievance; and thirdly, that the relief was in its nature beneficial to them all. Whether all the tenants had the common interest or not, that did not fulfil the second and third qualifications. The affluent tenants would, in effect, subsidize the less affluent; there were two classes of tenants whose interests were not only not identical but in conflict, and the relief sought was not beneficial to them all. The case accordingly did not fall within the strict terms of Ord. 16, r.9. The bracketed words in the writ should be struck out, so that the action should proceed not as a representative action but as an action brought by four individuals.


  1. Under Order 12, r.13 (which is similar to Order 15, r.12(1) of the White Book 1997 Volume 1) this Court is vested with discretion and it is stated at Order 15. r.12(1) as follows:

The rule as to the representative proceedings should be treated as being not a rigid matter of principle but a flexible tool of convenience in the administration of justice, and should be applied, not in any strict or rigorous sense, but according to its wide and permissive scope (per Megarry J. in John v Reese; Martin v Davis; Rees v John [1970] Ch.345; [1969] 2 All E.R. 274 (division of opinion between plaintiff and those he claimed to represent). This echoes what Lord Lindley said in Taff Vale Ry. Co v Amalgamated Society of Railway Servants [1901] A.C. 424 at 443: “The principle on which the rule is based forbids its restriction to cases for which an exact precedent can be found in the reports. The principle is as applicable to new cases as to old, and ought to be applied to the exigencies of modern life as occasion requires.”


  1. I note that there are many short comings in the plaintiffs’ action to file a representative proceeding but notwithstanding that I will allow the proceedings to continue.

STRIKE OUT APPLICATION


  1. Both defendants filed an application to strike out the case against them on the basis that they are carrying out work on the land on the instructions of Ingrid Aingimea, who is a land owner.
  2. The statement of claim filed by the plaintiffs was very brief, and understandably so as it was filed to seek interlocutory reliefs. It lacked particulars as to what the plaintiffs were actually asking this Court to do in terms of determination of ownership of Portion 80, however, in the affidavit of Julie Olson filed on 21 June 2021 she states at [2] that:

[2] Members of the Keppa and Dowedia families filed a suit against the Nauru Lands Committee regarding prior determinations it made; and, 2 service providers who are conducting business on LP80, Adeto without the required consent of landowners.


HEARING OF THE STRIKE OUT APPLICATION


  1. During the hearing of the application on 20 August 2021 I was informed that the plaintiffs had filed a writ against the Nauru Lands Committee and Dedouno Engar and ors in action No. 24 of 2021 seeking a declaration by this Court that Nauru Lands Committee’s publication in Government Gazette No. 86/1995 (GN86/1995) was unlawful and it should be set aside.
  2. A copy of the statement of claim was given to me which states as follows:
    1. The plaintiffs are the descendants and heirs to the estate of a Nauruan Demamwi of Denigmodu.
    2. The 1st defendant is a statutory body established under Nauru Lands Committee Ordinance 1956 – 2013, which by practice has assumed the role of the defunct District Chiefs, as the administrator of deceased Nauruan estate in accordance with the terms of Administration Order No. 3 of 1938.
    3. The 2nd respondents are legal heirs of the deceased Nauruan Manuye of Boe District.
    4. By the 1920’s Demamwi was on record as being the sole owner of several parcels of land in Denigmodu, including the land situated at topside known as ‘Adeto PL Portion 80’.
    5. Demamwi died intestate in 1920’s the ownership of Adeto PL80 became vested in the deceased’s three children namely, Keppa, Frieda and Dowedia each with a 1/4th share and a remaining ¼ interest going to his widow, Eidagatowe. This determination was published in Government Gazette No. 30, 21st July 1934.
    6. The publication in regards to the distribution of the landed estate of Adeto PL80 in Denigmodu given above was not made until after the death of Frieda sometime in 1932 so that by Government Gazette No. 30 of 1934, Frieda’s ¼ interest had already gone to her son Dempsey.
    7. 7. Dempsey died intestate on Nauru sometime in the 1940’s and his estate was not dealt with until 1958 and at this meeting the Manuye was given a life only interest in the whole of the estate of the deceased Dempsey.
    8. 8. By a meeting held at the Domaneab on 11th February 1970, Manuye through his own initiative directed the NLC to accelerate the return of all lands that were derived from the estate of Dempsey to the reversionary heirs to Dempsey’s estate, except for Adeto PL80. This block had not been mined at the time and so Manuye expressed his wish to keep and maintain control over his life interest in the land.
    9. 9. By Government Gazette No. 11 of 1970 under GN No. 43/1970, the Nauru Lands Committee made a determination in respect of Adeto PL and again held that Manuye owned an interest in Adeto PL80 albeit on a life only tenure.
    10. Manuye died intestate in 1980, survived by his two daughters Eigada Uera and Eunice, however, his estate was not redistributed at any time soon after his death until 1995.
    11. By Government Gazette No. 14, 15th March 1995, GN No. 86/1995 the Nauru Lands Committee purported to distribute the life only interest in Manuye in Adeto PL80 apparently on the suggestion that the deceased Manuye held an absolute interest, rather than on a life only interest. The Nauru Lands Committee made the determination knowing that Manuye’s interest was only a life only interest by virtue of his wife and son, and furthermore the interest cannot be passed on to his collateral relatives. The Nauru Lands Committee whether aware of the pre-existing condition of Manuye’s life only interest in PL80 or not, it was beyond its jurisdiction to alter the pre-existing condition.
    12. The NLC ought not to have made a determination in regard to the interest of Manuye in realties that he held a life only interest in Adeto PL80, Denigmodu and since Manuye’s interests in the land had already been made and published in Government Gazette No. 11 of 16th March 1970. Its fait accompli that his interest had been already determined. It was not necessary to go through the same process again.
    13. Since the NLC did not have jurisdiction to re-examine and distribute Manuye’s interest in this particular block of land PL80, Denigmodu, that the fact that it did determined unlawful render its determination null and void ab inito and that no determination was made in 1995. The determination made by the NLC in 1970 automatically goes into effect the moment Manuye died.

RELIEF SOUGHT


  1. In view of the above facts stated above the plaintiffs seek the following reliefs:
    1. A declaration by the Court that the determination of Nauru Lands Committee published in Government Gazette No. 86 of 1995 was unlawful and had no effect; and
    2. An Order setting aside the determination of Nauru Lands Committee as published in the above Gazette respecting the distribution of interests derived from Adeto PL80 in Denigmodu.
  2. On 20 August 2021 Mr Ekwona sought further time to respond to Mr Aingimea’s submissions and he was allowed time until 25 August 2021 to do so when he submitted inter alia:
    1. “That there had been an error of law made in respect of determination of Nauru Lands Committee ... that was the crux of the matter”;
    2. “The serious question is that the Lands Committee had committed an error of law in determining the estate of a person who held a life only interest and decided to extend the life of that interest.”
    1. “Have given it life ... have extended its life and thus distributed the estate as if that restriction was not part of that interest ... I think they used to call it error on the face of law ... or on the record ... now its all error of law and previously that would have been the case.”
    1. In response to a question by the Court as to why an appeal was not lodged in 1995 he stated: “Well I think that in the ... at the time, none of the parties ... none of the people who are and ... shall recall ... heirs in waiting or revisionary owners did not attend the enquiry or hearing held at that time nor were they aware of the outcome of that decision ... Your Honour in 1995, when this decision was made, the forebearers or the parents of the present owners would have been in their late 70’s or 80’s, they were simple people, they expected Nauru Lands Committee not to make such a mistake ... that is expectation that what the previous Lands Committee had already determined would be applied ... to do the right thing ... the Nauru Lands Committee ... hold verified initially decision to the landowners that they hold verified with their relationship with the landowners they are expected to look after the interests of every landowner ... they are put there by the previous Government by the Administrator to ensure that the interests of the land are protected ... their duty of care towards landowners is far greater than any other duty.”
    2. “and ... prior to 2012, the Court has always exercised its inherent jurisdiction to grant leave on application based on gross irregularity and flawed but not on facts ... the plaintiffs are only aware of this irregularity when just recently perhaps last year it became apparent that Nauru Rehabilitation Corporation were carrying out reclamation work on PL80 and in a small place like Nauru one thing lead to another and then bingo ... They found out that certain people who were listed as owners of the land are not entitled to be listed as owners of the land ... Nauru Lands Committee was corresponded by the plaintiffs on a number of occasions and not once they acknowledged the position of the plaintiffs ... Your Honour that is the issue ... That is the question.”
  3. Mr Ekwona also stated in his submissions that an application for leave to file an appeal out of time was also filed on 21 June 2021 together with other documents filed for the application for interim injunction. I asked him as to whether this was brought to attention of the Chief Justice at the hearing on the 23rd June and his response was – “it was in the Court file and the Chief Justice did not raise any questions” and he later conceded that he did not inform the Chief Justice about the application for leave to appeal out of time.
  4. I sought clarification from Mr Ekwona as to whether this Court has jurisdiction to deal with the determinations made by the Nauru Lands Committee in GN No. 86/1995 and his response was: “We are seeking that declaration” and he further stated that: “I think that the legal authority of the Court is derived from the provision of the Nauru Lands Committee (Amendment) Act 2012 so that as from 2012 the Parliament has given jurisdiction to the Court whereby previously the Court we had to rely on its inherent power but now it has been statutorily empowered to decide that question”; and he also stated “I think the constitutional ... the Constitution for Nauru has already vested the power to the Supreme Court to be final arbiter on all customary matters including land”.

APPLICATION FOR LEAVE TO FILE APPEAL OUT OF TIME


  1. I was not able to find a copy of the application for leave to appeal out of time in the Court file and nor was a copy made available to me at the hearing on 25 August 2021. I then called this matter on 27 August 2021 to allow Mr Ekwona to provide me with a copy of that application. On 27 August 2021 Mr Ekwona advised the Court that an application for leave to appeal out of time was not filed on 21 June 2021 and therefore he could not provide me with a copy. He said that he had a draft copy and undertook to file a copy later that day within 1 to 2 hours. He also stated that he had contemplated filing a judicial review application but after the amendment of the Nauru Lands Committee Act in 2012 he stated that: “Yes, that is one aspect Your Honour, I am saying in appeal matter there is technical dispute as to ownership then I think an appeal would be the best forum.”
  2. When the whole matter is considered together including the statement of claim filed on 21 June 2021, the statement of claim in civil action 24 of 2021, the very extensive submissions made by Mr Ekwona and his undertaking to file an application for leave to appeal out of time it is safe to conclude that the plaintiffs’ entire case is to set aside the NLC determination in GN 86 of 1995.
  3. Mr Ekwona submits that there are many ways to set aside the determination in GN 86/1995 including a declaration by this Court that it was void ab initio, as well as a judicial review application and the application for leave to appeal out of time. Mr Aingimea submitted that the determination by Nauru Lands Committee in GN 86/1995 was made 26 years ago and it cannot be set aside by way of a civil suit and the only option open to the plaintiffs is to file an application for leave to appeal out of time and if they were to so then they will have to overcome the limitation period of 20 years as provided in the Limitation Act 2017.

WHAT IS THE TEST FOR A STRIKE OUT APPLICATION?


  1. The test for summarily dismissal of an action was set out in General Steel Industries Inc v The Commissioner for Railways (N.S.W.)[2] it is stated at pages 128 and 129 as follows:

“The plaintiff rightly points out that the jurisdiction summarily to terminate an action is to be sparingly employed and is not to be used except in a clear case where the Court is satisfied that it has the requisite material and necessary assistance from the parties to reach a definite and certain conclusion. I have examined the case law on the subject to some of which I was referred in argument and to which I append a list of references. There is no need for me to discuss in any detail the various decisions, some of which were given in cases in which the inherent jurisdiction of a Court was invoked and others in cases in which counterpart rule to Order 26, r.18, where the suggested source of authority to deal summarily with the claim in question. It is sufficient for me to say that these cases uniformly adhered to the view that the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action – if that be the ground on which the Court is invited, as in this case, to exercise its powers of summary dismissal – is clearly demonstrated. The test to be applied has been variously expressed; “so obviously untenable that it cannot possibly succeed”; “manifestly groundless”; “so manifestly faulty that it does not admit of argument”; “discloses a case which the Court is satisfied cannot succeed”; “under no possibility can there be a good cause of action”; “be manifest that to allow them” (the pleadings); “to extend would involve useless expense”. (Emphasis added)


At times the test has been put as high as saying that the case must be so plain and obvious that the court can say at once that the statement of claim, even if proved, cannot succeed; or “so manifest on the view of the pleadings, merely reading through them, that it is a case that does not admit of reasonable argument”; “so to speak apparent at a glance”.


  1. It was further stated in General Steel Industries Inc (NSW) at pages 129 and 130 as follows:

“As I have said, some of these expressions occur in cases in which the inherent jurisdiction was invoked and others in cases founded on statutory rules of Court but although the material available to the Court in either type of case may be different the need for exceptional caution in exercising the power whether it be inherent or under statutory rule is the same. Dixon J (as he then was) sums up a number of authorities in Day v Victoria Railways Commissioners[3] where he says[4]: “A case must be very clear indeed to justify the summary intervention of the Court to prevent a plaintiff submitting his case for determination in the appointed manner by the Court with or without a jury. The fact that a transaction is intricate may not disentitle the Court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious. But once it appears that there is a real question to be determined whether of fact or law and the rights of the parties depend on it, then it is not competent for the Court to dismiss the action as frivolous and vexatious and an abuse of process.” Although I can agree with Latham CJ. in the same case when he said that the defendant should be saved from the vexation of the continuance of useless and futile proceedings[5]. In my opinion great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed Tribunal. On the other hand, I do not think that the exercise of jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiffs claim. Argument, perhaps even on an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed.” (Emphasis added)


WHETHER THERE IS A REASONABLE CAUSE OF ACTION AGAINST THE DEFENDANTS?


  1. The test to be applied as set out in General Machinery is “so obviously untenable that it cannot possibly succeed”; “manifestly groundless”; “so manifestly faulty that it does not admit of argument”; “discloses a case which the Court is satisfied cannot succeed”; “under no possibility can there be a good cause of action”; “being manifest that to allow them (the pleadings) to stand would involve useless expense”.

APPEAL PROCESS – NAURU LANDS COMMITTEE DETERMINATION


  1. All decisions of the Nauru Lands Committee had to be appealed against under the Nauru Lands Committee Act 1956 within 21 days or with leave of the Court beyond 21 days under s.7 of the Nauru Lands Committee (Amendment) Act 2012. If an appeal is not lodged within the period of 21 days or any extension granted by the Court then that would have been the end of the matter – but under the Nauru Court of Appeal Act 2018 s.19(c) an appeal can be lodged only on a point of law to the Nauru Court of Appeal.
  2. S.7 of the Nauru Lands Committee Act 1956 as amended in 2012 is the only provision available to a person who is dissatisfied with the decision of the Nauru Lands Committee to lodge an appeal which bestows jurisdiction on this Court. In Temaki v Bam[6] Vaai J stated at [17], [18], [26] and [27] as follows:

[17] The Solicitor General for a third party submitted that since neither appeal was filed within 21 days, nor leave of the Court was sought to appeal out of time, the decision of the Nauru Lands Committee has crystallised into finality and is not capable of being varied, altered or tampered with by the Court or any other body.


[18] It is also submitted that the defendant instead of appealing the decision of the Nauru Lands Committee as provided for by Statute, the defendant has sought in these proceedings to challenge the Nauru Lands Committee’s decision by Judicial Review.


The challenge had been disallowed. Counsel relied on the decision of Madraiwiwi CJ in Rodney Henshaw v Secretary for Justice[7] which adopted the approach of Lord Templeman in Regina v Inland Revenue Commission ex parte Preston[8] at page 862:


“Judicial Review is available where a decision-making authority exceeds its powers, commits an error of law, commits a breach of natural justice, reaches a decision which no reasonable tribunal could have reached, or abuses its powers. Judicial Review should not be granted when an alternative remedy is available.”


[26] The defendant cannot by these proceedings challenge the validity of Nauru Lands Committee’s decision on the grounds of jurisdictional error. Firstly, there are procedures under the Civil Procedure Rules which must be complied if Judicial Review is to be pursued. Those have not been complied with. Secondly, the challenge mounted by the defendant in these proceedings is a subtle attempt to appeal the Nauru Lands Committee’s decision through the back door.


[27] Regrettably, the plaintiff assisted the defendant to come in through the back door by seeking to join the third party to come in to defend and justify the decision of the Nauru Lands Committee. The Solicitor General was justified in insisting that the back door should be shut and the defendant be disallowed to raise the defense of jurisdictional error or any other challenge to the decision which for all purposes is final.


  1. Vaai J stated at [17] of Temaki v Bam that if appeal is not lodged within 21 days or any extension thereof, then the decision of the Nauru Lands Committee crystalises into finality and cannot be varied, altered or tampered with by the Court or any other body. That is the appeal process that Mr Ekwona gave an undertaking to file and pursue on 27 August 2021, and in doing so has effectively conceded, that that is only the process open to the plaintiffs to challenge GN 86/1995, and in my view rightly so.
  2. For the reasons given above I find that the plaintiffs’ case is (to borrow the words of Barwick CJ) “so untenable that it cannot possibly succeed”; or “manifestly groundless that it has no chance of success”.
  3. Further in light of the plaintiffs’ counsel’s concession that an appeal process is the only avenue open to them to challenge the Nauru Lands Committee’s decision rather than filing the civil suit, the plaintiffs have abused the process of this Court by filing this claim.
  4. In the circumstances invoking the powers vested in this Court under Order 15, r.19 and the inherent jurisdiction of the Court I find that the plaintiffs claim has no chance of success against both the defendants and is dismissed.

COUNSELS DUTY TO COURT


  1. A practitioner has a duty to the courts to act with candour and good faith. I refer to rule 12 of the Legal Practitioners (Professional Conduct) Rules 2019 where it is stated inter alia: that a practitioner owes candour, fairness, and good faith to the Court and a practitioner must not mislead the Court.
  2. In this matter it is quite obvious that Mr Ekwona did not read all the documents prior to appearing as counsel in the application for injunction, as during the hearing on 20 August 2021, he was taken aback when he was referred to the statement of claim. He stated that he did not know that a Statement of Claim in fact existed as he was only relying on the Originating Summons when he appeared before the Chief Justice. He stated that he was not aware of it and to quote him:

“I wasn’t aware of it ... I did not file the document ....”


  1. When he was further asked as to whether he signed it and he stated: “I signed it’”. He further stated that: “Your Honour I have to say I did not read it. I read it and my impression is that they were according to my instructions, I did not type them out” and he further stated that: “anyway Your Honour I think that can be alleviated by asking the Court for me to withdraw this statement of claim”. He also informed the Court that an application for leave to file an appeal out of time was filed together with other documents on 21 June 2021 and when asked to produce a copy thereof on 27 August 2021 he said that it was not filed.
  2. I wish to send a timely reminder to all practitioners that when you appear in any matter you have to be properly briefed and be conversant with the case, and more so when you appear in ex parte applications. In that regard I draw your attention to an article by Hon Mr Justice Anderson titled “Ethical Obligations in Ex Parte and other Interim Applications”[9] where His Honour stated as follows:

“Ethical responsibility to the Court


I turn now to the matter of ethical responsibility to the Court. On an ex parte application there is an immediate and constant reminder in the certificate required by r 237(1). It should not be necessary to refer to this requirement but I have to conclude that it is more or less arcane because judges sometimes receive papers with the certificate omitted. Judges always check ex parte applications for the certificate. We do so because we wish to be assured, before contemplating the exercise of our powers without the benefit of adversarial scrutiny, that a solicitor in the capacity of an officer of the Court, or counsel, has thoroughly checked the papers for propriety and correctness. Judges consciously rely on r 237(5). The scope of the responsibility on the certifying practitioners is explained thus in McGeehan on Procedure para 237.02(5):


The practitioner certifying must "personally" satisfy himself that the notice of application and affidavits comply with the code. This requires personal perusal and consideration. The practitioner certifying is not justified in accepting the word of another, whether partner, employee solicitor, or secretary that such compliance exists. Note, however, that his obligation under this heading extends merely to satisfaction that the papers comply with the rules .... The practitioner certifying must also satisfy himself that the order sought is one that ought to be made. It follows that a practitioner should not certify an ex parte motion where upon consideration he reaches a personal view ... that the order involved should not be made. He cannot operate simply on instructions when he believes the order which might be obtained would be improper .... Wilful non-compliance would be a technical contempt, and would also open the practitioner concerned to professional disciplinary action.”


  1. One aspect of Miss Olson’s affidavit is of concern to me where she stated at [2] filed on 21 June 2021 that:

[2] Members of the Keppa and Dowedia families filed a suit against Nauru Lands Committee regarding prior determinations it made; and, 2 service providers were conducting business on LP80, Adeto without the required consent of landowners.


  1. In all the documents that have been referred to me I was not referred to any document filed against the Nauru Lands Committee prior to 21 June 2021 if it was indeed filed it should be in the Court records, however, if it is not in the Court record then the Court has been misled.

COSTS


  1. Both parties had agreed to make submissions on costs after the determination of the application to strike out and I will therefore set a date for hearing of submissions on costs.

CONCLUSION


  1. In conclusion I state that the action against both defendants is dismissed and all orders made on 23 June 2021 is set aside.

DATED this 3 day of September 2021


Mohammed Shafiullah Khan
Judge


[1] [1954] 1QB 210
[2] [1964] 112 CLR
[3] [1949] 78 CLR 62
[4] [1949] 78 CLR at 91
[5] [1949] 78 CLR at 84
[6] [2019] NRSC 22; Civil Suit No. 3 of 2018 (26 July 2019)
[7] [2015] NRSC 9
[8] [1995] 1 Appeal Case 835
[9] [1991] NZLR FSP7

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