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Arububun v Tsiode [1972] NRSC 5; [1969-1982] NLR (B) 45 (5 January 1972)

[1969-1982] NLR (B) 45

IN THE SUPREME COURT OF NAURU

Land Appeals Nos. 11, 15 and 16 of 1971

AKIBWIB ARUBUBUN

v

DETAMAIGO TSIODE AND OTHERS

DETAMAIGO TSIODE AND OTHERS

v

DUBURIYA AND OTHERS

DETAMAIGO TSIODE AND OTHERS

v

THE NAURU LANDS COMMITTEE

5th January, 1972.

Nauruan Land - identification and determination of ownership - land not previously identified but surrounded by identified portions - number given to it by Government Surveyor - not necessarily only one portion.

Nauruan land - identification and determination of ownership - land not previously identified but surrounded by identified portions - Nauru Lands Committee satisfied that land is two portions - boundaries between those portions not ascertainable - division of land into two equal portions proper.

In 1937 all the land surrounding a small area of land was identified and its ownership established by the Nauru Lands Committee. The identity and ownership of the small area of land was not decided. In 1939 the Government Surveyor allocated a number to it, as was the practice in respect of portions of land which had been identified and of which the ownership was established. He did so apparently without consulting the Nauru Lands Committee. In 1971 a field day was held by the Committee to decide the identity and ownership of the land. Two families claimed it and each established to the satisfaction of the Committee that it owned a portion of land in that locality. As all the other land there had been identified and its ownership established in 1937, the Committee decided that both portions must be located within the previously unidentified area of land. One family showed the Committee where it claimed the boundaries of its portion to be; those boundaries extended into neighbouring portions of which the ownership had previously been established and took in about half of the previously unidentified area of land. The other family did not claim to know the boundaries of its portion. The Committee decided that, as the boundaries of the two portions could not be established with certainty, the land should be divided into two equal portions. Both families appealed, on the ground that the land comprised only one portion and relied on the fact that the Government Surveyor had allocated one number for the whole of it, thus recognising it as one portion.

Held: (1) As the land had not been identified when the Government Surveyor allocated the number to it, his doing so did not establish that it was in fact only one portion.

(2) As the actual boundary dividing the two portions could not be ascertained, the Committee acted properly in dividing the land into two equal portions.

Akibwib in person
Dowiyogo for Detamaigo and others
Doguape, Vice-Chairman, N.L.C. for the N.L.C.

Thompson CJ.:

In Gazette No. 39 of 1971 the Nauru Lands Committee published its determination in respect of certain land at Anetan. In about 1937 the portions on all sides of the land were determined but its identity and ownership were apparently not decided. Certainly they were not recorded in the Government Surveyor's maps. However, at some time after the Second World War a portion number, 30, was allocated to it.

In the middle of 1971 the Nauru Lands Committee held a field day on the land to give persons claiming its ownership an opportunity to show the Committee its boundaries as proof of their claims. Duburiya, one of the children of the late Eimwaeong, claimed that it was land called 'Atowidudu' which had belonged to Eimwaeong and which now belonged to her children and grandchild. (The appellant in Land Appeal No. 11, Akibwib, is the grandson). He pointed out certain points as the corners of the boundaries; the land enclosed by those boundaries was approximately half the size of portion No. 30 and, although mainly within that portion, extended outside it into portions determined in about 1937 as belonging to other persons.

The Nauru Lands Committee searched the Land Registration Book of 1928 for land called 'Atowidudu' to which Eimwaeong might have had title but found none registered. They did, however, find a portion registered as 'Atagadeto'. It is not disputed that 'Atagadeto' is the name of a place on adjoining land from which it is possible to look down from topside onto the coconut lands of Anetan District. There is a card in the possession of the Department of Lands and Survey which was made out in 1939 which records unidentified land called 'Atowidudu' as part of Eimwaeong's estate but the authority for that entry having been made is not known. Duburiya had seen that card before he went on the field day.

Because of the failure of Duburiya to show the boundaries correctly and because he gave the land a name not recorded in the Land Registration Book, the Committee required time to consider his claim. In the meantime Detamaigo, on behalf of all the appellants in Land Appeal No. 15, came to the Committee and asked it to locate their land 'Ubwidina'. As a result of its investigations and researches the Committee came to the conclusion that 'Ubwidina' was located in the area where portion No. 30 was shown on the map. As the identity and ownership of all the other land in the area had been established long ago, the Committee was driven to the conclusion that 'Ubwidina' was comprised in portion No. 30.

Having considered Duburiya's claim, the Committee decided that he had substantiated that Eimwaeong's children and grandchild owned land in the area of portion No. 30. The identity of portion No. 30 had never been determined. Where an area of land has not been determined as one portion, the fact that all the land round it has been determined and its outer boundaries are established does not necessarily mean that it is not in fact two or more portions; there may be internal boundaries dividing it into a number of portions. The Nauru Lands Committee decided that that was the position in respect of portion No. 30, that it was in fact two portions, Eimwaeong's 'Atagadeto' and Detamaigo's 'Ubwidina'. As Detamaigo could not show the boundaries of 'Ubwidina' or state its size and Duburiya had shown an area of land approximately half the size of portion No. 30, the Committee decided to divide the land into two equal portions and arranged for the Director of Lands and Survey to decide upon and demarcate a line which would have that effect. When that had been done, the Committee allocated the northern portion as 'Atagadeto' to Eimwaeong's children and grandchild and the southern portion as 'Ubwidina' to Detamaigo and the other appellants in Land Appeal No. 15. The Director of Lands and Survey then allocated the number 30 to the portion 'Atagadeto' and gave the portion 'Ubwidina' a new number, 131.

Of the persons determined as owners of 'Atagadeto' Akibwib has appealed against the division of the land and the allocation of the southern half to Detamaigo and his co-owners. Detamaigo and his co-owners have also appealed against the division of the land, the allocation of the northern half to Eimwaeong's children and grand child and the re-numbering of the southern half. As the same issues have to be determined in all the appeals, they have been heard together and this judgment is in respect of all of them.

Akibwib has based his appeal on the fact that the land was previously shown on the map as one undivided block and had a portion number. This is also one of the grounds of Detamaigo's appeal. If the land had not only been given a number but had had its name recorded, I should consider that fairly strong evidence that the land should not be divided. However, it was merely numbered. The numbering was done by the Government Surveyor, not the Nauru Lands Committee or its predecessor, the Lands Committee. The mere fact that a number was given to the block is not evidence that the Lands Committee ever decided that it was one indivisible portion. Akibwib's appeal, therefore, must fail and so must Detamaigo's insofar as it is based on the same ground.

There is, however, another ground to Detamaigo's appeal. There is a record of proceedings before the Nauru Lands Committee or the Lands Committee some years ago at which Detamaigo's predecessor in title to the land 'Ubwidina', Demaije, stated that the land was among portions surveyed by the Germans. Mr. Depaune, questioned about the weight given to this by the Nauru Lands Committee when it considered whether the land should be divided, said that the Committee regarded it merely as an assertion made by Damaije in support of his own claim and, therefore, not necessarily correct. In my view, the most important fact relevant to this issue is that, in spite of those earlier proceedings and Damaije's evidence in them, apparently no identification of the land was ever made; certainly none was recorded.

Neither party, therefore, has satisfied me that there are any good reasons why the land could not have comprised two portions, as decided by the Nauru Lands Committee. Detamaigo, however, has attacked the identification of the northern half of the land as 'Atagadeto' on the ground that Duburiya claimed it as 'Atowidudu' and also because 'Atagadeto' is the name of a place on adjacent land. Mr. Dowiyogo submitted that it was a name which could not be applied to a portion of land. Duburiya, questioned about this, suggested that the land might have been known by two names 'Atowidudu' and 'Atagadeto'. It is not disputed that the land was given to Eimwaeong by Mweija at a time when Duburiya was alive. Duburiya is not very old. It seems at least possible that in 1928, when the Chiefs went round all the Districts recording in the Land Registration Book the names of portions and their owners, Eimwaeong had not long owned the land, had forgotten its name and had stated only that it was at 'Atagadeto'. It seems that by 1939 the Government Surveyor had obtained information from some source that the name of the land was 'Atowidudu'. As long as Duburiya and those entitled to own the land with him do not in future claim other land as 'Atagadeto', there seems to be no reason why, if they wish it to be called 'Atowidudu', a name known to their family for more than 30 years, it should not be so called. I am quite satisfied that the Nauru Lands Committee correctly determined that the northern half of the portion No. 30 was Eimwaeong's land. The appeal by Detamaigo and his co-appellants must, therefore, fail.

As neither party have the precise boundaries or size of their land and the area of land shown by Duburiya was about half of the size, of the old portion No 30, the solution adopted by the Nauru Lands Committee of dividing the land into two equal portions by a straight line across the middle was the only one reasonably open to them.

Accordingly I dismiss all these appeals. The determination in respect of portion No. 131, 'Ubwidina', is confirmed. The determination in respect of portion No. 30 is also confirmed subject to the name being altered to 'Atowidudu' and subject also, so far as the details of ownership are concerned, to the decision of this Court in Land Appeal No. 10 of 1971. In applying the decision in that appeal, all references to portion No. 30 as 'Atagadeto' are to be taken as references to that portion under the name of 'Atowidudu'.