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Grundler v Namaduk & Ors [1974] NRSC 7; [1969-1982] NLR (B) 101 (4 February 1974)

[1969-1982] NLR (B) 101

IN THE SUPREME COURT OF NAURU

Land Appeal No. 1 of 1974

EIDAWAIDI GRUNDLER

v.

EIBARUKEN NAMADUK AND OTHERS

4th February, 1974.

Estate of deceased intestate Nauruan - no family agreement - interested parties heard by Nauru Lands Committee - decision reached by Committee but notice of decision not published until 1971 - notice not seen by interested party and appeal time-barred - whether irregularity vitiating decision or notice of it.

Eig., a Nauruan woman, died in 1938, intestate. Eid. claimed to be her adopted child. In 1962 the Nauru Lands Committee held a meeting of those claiming an interest in Eig.'s estate, in order to decide to whom ownership of one of the portions of land comprised in that estate should pass. Eid. attended that meeting and was given an opportunity to argue her claim. The Committee reached a decision but did not publish in the Gazette its usual notice until 1971. It was not seen by Eid. and the period allowed for appeal by section 7(1) of the Nauru Lands Committee Ordinance 1956-1963 expired long before she became aware of it. After the meeting in 1962 Eid. had made no effort to ascertain from the Committee what its decision was. She sought to have the decision, or the notice of it, declared void or ineffective.

Held: (1) The long delay in the publication of the notice was most unsatisfactory. But Eid's failure to learn of the decision was due principally to her having made no effort to find it out.

(2) The decision was undoubtedly valid, as there was no irregularity in the procedure preceding it. An irregularity in giving notice of a decision may render the notice ineffective but in the circumstances of the instant case it did not do so.

By Court: When notice of a decision is sent for publication in the Gazette, a copy should be sent to all interested parties or their representatives.

B. Dowiyogo for the applicant
G.R. Clark for the respondents

Thompson C.J.:

The applicant is seeking an order to set aside the decision of the Nauru Lands Committee published in Gazette No. 28 of 1972 that phosphate land named "Aror", portion No. 37 in Anetan District, which formerly belonged to the late Eigugina, now belongs to the respondents.

The application is expressed as being for "special leave to appeal" against the decision. This Court has no power to grant "special leave to appeal" against decisions of the Nauru Lands Committee. However, because of the lack of professionally qualified persons to represent litigants in the Courts of Nauru, this Court has on a number of occasions since 1968 agreed to deal with such applications as though they were for the decisions to be set aside. That was done where the applications were based on allegations of such gross irregularity as to render the decisions null and void. As the allegations on which the present application was based were of that nature, I agreed to deal with it as an application to set the decision of the Nauru Lands Committee aside. It has been presented as such an application.

The application was lodged on 1st August, 1972, about five weeks after the decision was published in the Gazette. It contained the following statements of fact as the basis of the application:

"3. The portion was originally owned by the late Eigugina.

4. Early in 1971 the appellant Eidawaidi Grundler of Anabar District approached the Nauru Lands Committee and told them of her interest in the estate of the late Eigugina on the ground that she is the adopted child of the late Eigugina by Nauruan custom.

5. The appellant informed the Nauru Lands Committee of her wish that the distribution of the residue of the estate of the late Eigugina be determined especially while she is alive so that she may have the opportunity to address the Nauru Lands Committee and to substantiate her interest in the estate by virtue of her right as an adopted child of Eigugina, but the Nauru Lands Committee did not then have time to determine the estate in question.

6. When the Nauru Lands Committee determined its present decision the appellant was never notified that the estate of the late Eigugina was being determined and consequently the appellant never became aware of the present determination until now.

7. The appellant humbly submits that she did not have ready access to Government Gazettes and since she was never notified by the said Committee of the present determination although she has informed them of her interest she would not know of any determination and consequently she was not able to observe the time limit for lodging of appeals."

The evidence given to this Court by a member of the Nauru Lands Committee, who had with him the relevant records of the Committee's proceedings, and by the applicant herself has established that in 1962 the Committee held a meeting to decide who was entitled to inherit those portions of land which had belonged to Eigugina which had not yet been distributed to the beneficiaries of her estate. The meeting was attended by the applicant, by the respondent Eibaruken and by another woman named Eigadaiy. After the meeting the Committee decided that the respondents were entitled to all the portions of land as the beneficiaries of Eigugina's estate. However, their location and boundaries had not been ascertained. So the Committee decided not to publish its decision at that time. (This appears to have conformed with what was then the practice of the Committee in respect of its decisions about the distribution of estates, a practice apparently based on a misunderstanding of the effect of the provisions of Administration Order No. 3 of 1938 that no decision as to ownership of any land is to be final until the title of the person from whom such ownership has been derived has been ascertained. Fortunately, the practice has been discontinued and decisions as to the distribution of estates are now published immediately).

When the first of the remaining portions of Eigugina's land was identified and surveyed in 1971, the Committee held no more meetings but simply applied its decision made in 1962 and published a decision that the respondents were the owners of that portion. The next portion of Eigugina's land which was identified and surveyed was "Aror". Again, the Committee applied its 1962 decision and, without any further hearing of interested persons, decided that, as the land was Eigugina's, it now belonged to the respondents.

The facts differ greatly from those alleged in the application. The applicant has admitted that after the meeting in 1962 she did not approach the Committee about Eigugina's estate until after the publication of its decision about the land "Aror". While, therefore, it has been established that the applicant received no personal notification of the Committee's 1962 decision or of the decision as applied to the land "Aror", it has also been established that she made no enquiries of the Committee over a period of ten years after the meeting which she attended in 1962 to discuss Eigugina's estate. While, therefore, I regard it as most unsatisfactory that the Committee's decision in 1962 was not published at the time and that no notice was given to the applicant when the notice about the land "Aror" was about to be published ten years later, I am satisfied that the applicant's failure to learn of the Committee's decision in sufficient time to appeal against it was due in large measure to her own failure over a period of ten years to take any steps to find out what was the outcome of the meeting held by the committee in 1962.

Mr. Clark has submitted that cases already decided by this Court establish that, for a decision of the Nauru Lands Committee to be set aside as void, it must be shown that there and an irregularity in the publication of a decision would not render the decision void. That submission is sound so far as it goes; but it appears to be still open for this Court, while treating a decision as valid, to hold in an appropriate case that the giving of the decision was ineffective due to gross irregularity. This, however, is not an appropriate case because much of the blame for the applicant's failure to become aware of the giving of the decision in good time rests on the applicant herself. The application will be refused.

Before I make a formal order, however, I think it desirable to comment briefly on the Nauru Lands Committee's present practice of giving its decisions by notice in the Gazette, without any personal notice to interested persons. This has apparently been the practice since before the Second World War. It is, however, not very satisfactory. The Committee is a tribunal with powers in land matters analogous to those of a Court. However, whereas leave can be granted for persons aggrieved with decisions of the Courts to appeal out of time, no such power exists in respect of appeals against decisions of the Committee. That being so, it is even more important that all persons interested in the decisions of the Committee should know when and how those decisions are being given than it is in the case of a Court's decisions. But, whereas a Court is required to give personal notice to all the parties to any proceedings in which a decision is to be given, the Committee does not give such notice.

The Nauru Lands Committee Ordinance 1956-1963 is silent as to the manner in which decisions of the Committee are to be given. Publication in the Gazette is a very suitable manner of giving them; notices in the Gazette are authoritative and readily ascertainable in later years. But there appears to be no strong reason why, when a decision is sent for publication in the Gazette, a notice should not be sent to every interested person informing him of the fact. The number of persons interested in a decision about one portion of land may in some cases be large; but the Committee ought to be able in most such one of their number to whom notice could be given for all of them.

The present system may be reasonably satisfactory where interested persons are literate and have easy access to issues of the Gazette as soon as they are published; but it is not adequate where those persons are illiterate or do not have easy access to issues of the Gazette soon after their publication. As the consequences of failure to become aware of a decision of the Committee early enough to be able to appeal against it can be most serious, the present practice could in some cases cause injustice. Consideration, should, therefore, be given by the Committee to modifying its practice so as to ensure that all interested persons do know when decisions affecting them are to be published.

The application to set aside the decision of the Nauru Lands Committee is dismissed.