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Gadeanang v Ika [2021] NRSC 46; Civil Case 22 of 2020 (12 November 2021)

SUPREME COURT OF NAURU Civil Case No. 22 of 2020
AT YAREN
CIVIL JURISDICTION

BETWEEN

LEILANI GADEANANG Plaintiff

AND

JEFFERY IKA Defendant

Before : Fatiaki CJ

Date of Submissions: 8 July & 10 August 2021 (plaintiff)
26 July & 11 August 2021 (defendant)

Date of Oral Hearing: 12 August, 2021

Date of Judgment : 12 November, 2021

CITATION : Gadeanang v Ika

CATCHWORDS: “historical origins of consent form” ; “competing consent forms” ; “meaning and effect of a consent form” ; “priority of consent forms” ; “registration of a consent form” ; “different generation of signatories” ; “relevance of intention to build” ; “withdrawal of consent” ; “equitable maxims” ; “waiver and laches”.

LEGISLATION : ss 3, 4 , 6 & 15 Lands Act 1976 ; Laws Repeal and Adopting Ordinance 1922 ;

CASES REFERRED TO : Capelle v Capelle [2018] NRSC 39 ; Demaunga v Deireragea [2017] NRSC 87; Allen v Overseers of Liverpool (1874) LR 9 QB 180 ; ANZ (Vanuatu) Ltd v Gougeon [1999] VUCA 15; Kepae v Jeremiah [2019] NRSC 29 ; Hiram v Solomon [2011] NRSC 25 ; Koroa v Landowners of Portion 15 [2011] NRSC 22 ; Deireragea v Kun [2017] NRSC 35 ; Admur v Dongobir [2018] NRSC 40 ; Kamoriki v Kamoriki Civil Suit No 2 of 2017 ; Harris v Batsuia [2012] NRSC 13 ; Lindsay Petroleum Company v Hurd [1874] UKPC 2 .

APPEARANCES:

Counsel for the Plaintiff : L. Scotty
Counsel for the Defendant : J. Olsson

JUDGMENT

INTRODUCTION

1. This case concerns competing claims by close relatives to the use of a small piece of land in Anibare District known as “Land Portion 108 Atomaneab” (“the disputed land”). Both the plaintiff and the defendant have provided a “consent form” each with more than the requisite minimum percentage of landowner signatures on each form. Each form authorised the named beneficiary to use the disputed land for residential purposes.
   
2. The plaintiff’s “consent form” is dated 29 August 2016 , with 77% of landowner signatures collected over three (3) months between August and November , 2016 as clearly recorded in the form. The form was prepared and verified by Lands Department officials and has been approved by the Acting/Secretary for Land Management.
   
3. On the other hand , the defendant’s “consent form” which is clearly older , was signed by persons who are claimed to be the landowners of the disputed land at the time and includes , the plaintiff’s grandmother, “Buramen Edowa (IKA).” The defendant’s form although undated as to the signatures , bears a hand-written date : “22/05/2020” and initials , over the official stamp of the Director of Lands & Survey. It contains no verification or approval signatures nor what percentage of landowners signed the form.
   

THE CLAIM

4. On 6 July 2020 the plaintiff issued proceedings against the defendant “...for illegal interferences with legitimate authority”(whatever that means). The plaintiff avers that the disputed land is undivided common land that belongs to the extended “Ika family” of which she is a third-generation member and the defendant belongs to a second (older) generation together with the plaintiff’s mother.
   
5. In December 2020 after obtaining the necessary landowner signatures , start-up funds , and official approvals , the plaintiff began clearing , levelling and marking-out works on the disputed land with a view to building the foundation slab for her family home. The defendant stopped the plaintiff’s works.
   
6. Then in May 2021 when the works resumed , the defendant again stopped the works which led to the issuance of the present proceedings together with an inter-partes Motion and affidavit in support , seeking an interlocutory injunction to restrain the defendant from interfering with the plaintiff’s building works until the substantive matter is determined by the Court.
   
7. In her affidavit , the plaintiff confirms that she is the “biological daughter of Febrina Buramen” who is a co-owner of the disputed land. That in 2016 , she obtained the written consent (signatures) of a requisite majority of the landowners (77%) to build her family’s house on the disputed land. After accumulating the necessary funds and materials over four (4) years , the plaintiff began preliminary works to measure and peg-off a suitable site on which to build her house foundation in December 2020.
   

THE DEFENCE

8. The Statement of Defence was filed on 10 September 2020. In it , the defendant avers that he is the first cousin of the plaintiff’s mother. That he has a “consent form” signed by 100% of the owners of the disputed land including the plaintiff’s father , uncles , and aunts who are all deceased “except for one”. The defendant claims that being a “co-owner” of the disputed land from a “higher generation” than the plaintiff and , being the bearer of a “consent form”, he too , possesses “over-riding rights” to that of the plaintiff , to use of the disputed land.
   
9. Whatsmore , his form “carries more weight” having been obtained earlier in time and being endorsed by the “elder landowners of the first generation” as opposed to the signatories of the plaintiff’s form who are mainly sourced from the more recent third and fourth generations and includes , at least one signatory who has subsequently retracted her signature.
   
10. The defendant also asserts that the plaintiff and her mother knowingly failed to inform the co-owners whose signatures they had obtained on the plaintiff’s form , of the potential conflict with the defendant’s earlier acquired consent of the then landowners for him to use the disputed land.
    
11. More specifically , and given the limited area of the disputed land (estimated at : “50 feet x 75 feet)” , the defendant claims that he and the plaintiff’s mother reached a “family agreement” in which “... the defendant and the plaintiff would fairly share the land with the defendant building near his wife’s family land (which shares a common boundary with part of the disputed land) and the plaintiff to build on the opposite end” of the disputed land.
    
12. If I may so , assuming it is feasible , this “family agreement” sounds eminently sensible and reasonable in the circumstances even though the plaintiff was not a party to it. and , the defendant has evinced no clear intention or indeed a need , to commence any construction soon on the disputed land.
    
13. In summary , the defendant denies deliberately “interfering with the plaintiff’s legitimate authority” and asserts his own prior “legitimate authority” to use the disputed land to the plaintiff and her mother’s knowledge. The defendant , in turn , seeks the dismissal of the claim and an injunction restraining the plaintiff from constructing any housing on the disputed land until the matter is finally resolved by the Court.
    

REPLY TO DEFENCE

14. In her Reply , the plaintiff denies that the defendant had obtained the requisite percentage of consenting landowners insofar as the majority of the co-owners who signed the defendant’s “consent form” were his own siblings and not unrelated “arms-length” owners.
    
15. The plaintiff denies defrauding or “hoodwinking” the landowners who signed her “consent form” and claims instead , that the defendant had no real intention of ever building on the

disputed land because he has had over twenty (20) years to build but has not done so and

because he now already has “....many other homesteads for his personal use.” In other words, the defendant was being unfairly acquisitive in acting pre-emptively against more genuinely needy relatives.

16. With the plaintiff’s Reply , pleadings were closed and the parties filed ten (10) “agreed facts” on 29 June 2021 with a single “agreed issue” as follows :
    

AGREED FACTS

“ 1. The land under dispute is Land Portion No. 108 aka Atomoneab , Anibare. It lies on

the inner ring of the main road , across from the sand and sea.

2. That the two (2) parties belong to the Ika family.
   
3. That the Plaintiff’s grandmother and the Defendant’s biological father were siblings

and they are deceased.

4. That the Defendant obtained 100% consent from original owners to use and build a

house on the said land portion.

5. That the Plaintiff obtained 77% consent from contemporary owners.
   
6. That the Plaintiff’s grandmother signed consent for the Defendant to use LP108
   
7. That the only living original owner , Dogadaube , signed the Defendant’s consent at the material time , but refused to sign the Plaintiff’s consent.
   
8. That the Defendant was not able to identify another piece of land for the Plaintiff to use and build , therefore the parties agreed to build on opposite ends of the said land.
   
9. That the Defendant stopped workers carrying out construction on the land.
   
10. That the Plaintiff received Housing Scheme start-up assistance towards the

construction of her house.”

AGREED ISSUE :

“Whether the second consent for the Plaintiff superseded the first consent for the Defendant to use and build on LP 108 ? ”

17. Given the agreed facts , counsels were ordered on 29 June 2021, to file written submissions on the above issue under appropriate subheadings including :
    
    • (a) whether registration determines the validity and priority of a consent Form ? and
    • (b) what constitutes registration ?
      
18. The plaintiff filed two (2) written submissions on 8 July and 10 August 2021 , and the defendant filed three (3) response submissions on 26 July and 11 August, 2021. I am grateful for the submissions provided to the Court as well as Counsels’ oral submissions on 12 August 2021 at the hearing of the case.
    

PLAINTIFF SUBMISSIONS

19. Counsel for the plaintiff opened his submissions with an analysis of the signatories on the defendant’s “consent form” to the effect that most are siblings of the defendant who may have affixed their signatures to the form well after their father Billy Ika’s demise in 1985.
    

Whatsmore , all other signatories are dead except for the defendant’s adoptive father Dagadaube Ika who himself is a “first cousin to the defendant”. The meaning and relevance of these latter claims concerning the defendant’s late “father” and “adoptive father” , is not entirely clear.

20. Given that a number of the defendant’s signatories had passed away long before the defendant’s “consent form” was stamped and dated on 22 May 2020 , counsel quaintly submits that the consent Form should be : “....considered an unfinished historical ancient-relic or a half caste between old and new that does not comply with the

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