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Itsimaera v Grundler and Others [1974] NRSC 9; [1969-1982] NLR (B) 107 (3 May 1974)

[1969-1982] NLR (B) 107

IN THE SUPREME COURT OF NAURU

Land Appeal No. 2 of 1974

EGADEIYA ITSIMAERA

v

EIDAWAIDI GRUNDLER AND OTHERS

3rd May, 1974.

Nauru Lands Committee - decision of dispute - time when decision becomes unalterable.

E. died intestate in 1938. A family agreement about the distribution of her estate was possibly reached in 1939; but, if it was, the details of what was agreed are now unascertainable. In 1961 the Nauru Lands Committee met to decide a dispute between persons claiming to be entitled to succeed to E.'s estate. The Committee reached a decision but did not publish it and, instead, reopened its inquiry into the matter in 1962. It then reached a different decision, which it published in 1971. One of the claimants sought to have effect given to the decision reached in
1961.

Held: A decision of the Nauru Lands Committee does not become final until it is "given", by notice of it being published in the Gazette. Before then the Committee can alter or abandon it as it thinks fit.

K.R. Adeang for the applicant
B. Dowiyogo for Eidawaidi Grundler
D. Deiye for the other respondents

Thompson C.J.:

The applicant, who claims to be an adopted child of Eigugina, who died in 1938, is applying to have the judgments of this Court in Land Appeals No. 8 of 1973 and No.1 of 1974 and the decisions of the Nauru Lands Committee in respect of land named Aror, phosphate land, portion No. 37 in Anetan District and the land named Anequanne, phosphate land, portion No. 38 in Anetan District set aside. The Committee's decisions in respect of those portions of land were published in Gazette No. 28 of 1972 and Gazette No. 8 of 1971 respectively. Both with regard to the distribution of Eigugina's estates; so did the two decisions of the committee.

The ground on which the application is made is that either there was already in existence a family agreement made in 1939 about the distribution of Eigugina's estate or, if there was no such agreement or its terms were not ascertainable, the matter has been finally decided by the Nauru Lands Committee in 1961. In either event, it was submitted, the question of the distribution of Eigugina's estate had been finally decided by 1961 and the Nauru Lands Committee had no authority thereafter to make any decisions in the matter at the variance with the agreement or the 1961 decision. Any such decisions would be null and void and, in consequence, this Court could not entertain an appeal against them except on the ground of their invalidity.

Mr. Adeang, who represents the applicant, has asked this Court not only to set aside its two previous judgments and the two decisions of the Nauru Lands Committee but also to order the re-investigation by the Committee of the applicant's claim to inherit the estate as Eigugina's adopted child. With respect, if his application to set the judgments and decisions aside were granted on either of the grounds on which he has applied for them to be set aside, this Court could only order that effect be given to the family agreement or the decision of the Committee made in 1961. To order a further investigation of the Applicant's claim would be to require the Committee to make further decisions which, if they differed from the family agreement or the 1961 decision (whichever the Court found in these proceedings to be binding) would be null and void for precisely the same reasons as the judgments and decisions to which the present application relates.

However, unless it is established that the Nauru Lands Committee was bound either by a family agreement or by a decision made by it in 1961, the question of what order to make upon the setting aside of the judgments and decisions does not arise.

August, 1940, a Gazette Notice was published in Gazette No. 33 of 1940 that the Curator of Intestate Estates intended "to effect distribution of the following deceased estates accordance with the family agreements made before the Intestate Estates Investigating Committee". The estates listed included that of Eigugina. That Notice is strong evidence that there was a family agreement. However, the only other evidence available, which consists of records maintained by the Committee (which was bought into existence early in 1939 and which had practically the same membership as the Lands Committee), is inadequate to establish what the terms of the agreement were. There is a record of proceedings when the Committee discussed the distribution of the estate of Eigugina on 26th April, 1939 - four months after her death. It is apparent, from the face of the record, however, that no family agreement was reached on that day. The other document available is a book bearing on its cover the title "Estates - Distribution of the Lands Committee". In that book is an entry dated 17th August, 1939, i.e. a year before the Gazette Notice referred to above, showing that Eigugina's beneficiaries were "AKAWO, DEINGOA AND OTHERS". It seems most likely that a family agreement was reached in August, 1939, but what the terms of it were cannot now be ascertained. The Nauru Lands Committee cannot be bound by a family agreement of which the terms are unascertainable.

Mr. Adeang recognised this fact and suggested that it was the reason why the Committee dealt with the matter afresh in 1961. A record of meetings held on 10th and 11th July, 1961, show that the Committee heard interested parties and persons allegedly representing Eigugina's family and that it decided how her estate was to be distributed. There was definitely no family agreement on this occasion; the Committee simply considered all the facts available to it and the arguments put to it by those claiming shares in the estate, and made its own decision.

However, it did not publish its decision and in 1962 it re-examined the matter afresh. From the evidence given by Mr. Agoko Doguape, a member of the Nauru Lands Committee, it seems that its reasons for the doing so were dissatisfaction with the role played at the previous meetings by Chief Denea, who was Eigugina's cousin. Mr. Adeang has submitted that, once the Committee had made its decision and it had been recorded in the Minutes, that decision was final and could not be altered. In this regard he referred to the provisions of section 6 of the Nauru Lands Committee Ordinance 1956-1963.

The question before this Court is, therefore, at what point of time a decision of the Nauru Lands Committee has been made, so that it is unalterable and is final and binding. Section 7 of the Ordinance refers to decisions of the Committee being "given" but does not specify how they are to be given. In practice - and the practice existed before the Committee was given statutory existence by the Ordinance - its decisions are given by publication in the Gazette. In view of the provisions relating to appeals, it would clearly be objectionable for effect to be given to a decision of the Committee which had not been given by publication e.g. payment of phosphate royalties to persons in whose favour an unpublished decision had been given. But the fact that a decision does not take effect until it has been given does not necessarily mean that it has not become final and unalterable at some time before it is given.

It is necessary, I think, to examine the nature of the Committee's functions and of its decisions. Under section 6 of the Ordinance it "has power to determine questions as to the ownership of, or rights in respect of, land". Its function is essentially a judicial function. That being so, it is reasonable to compare the nature of its decisions with that of decisions of the Courts, and to apply similar rules to alterations of its decisions as apply to alteration of the judgments of Courts.

Where a Court consists of several members they usually discuss the merits of a case and eventually decide on the judgment to be given. The judgment may be prepared and placed on the file ready to be given at the time to which the proceedings have been adjourned for the purpose. Then, before the judgment is given, one member of the Court may realise that they have overlooked some point of law or some piece of evidence and persuade his colleagues that the judgment should be altered or totally rewritten. Until the judgment is actually given, in whatever manner the judgments of that Court are given, it can be altered as many times as the members wish. In the same way, members of the Nauru Lands Committee may agree on a decision and a minute may be made of it. But, if subsequently, before the decision is "given" i.e. published, any member considers that it should be altered and can persuade the other members accordingly, I can see no reason why the Committee should not alter it or abandon it and make a new decision.

In my view the time at which a decision of the Nauru Lands Committee becomes unalterable (except with the consent of the parties or by this Court on appeal) and is final and binding is when it is given, that is to say; when it is published in the Gazette. That being so, the decisions of the Nauru Lands Committee on the distribution of Eigugina's estate given after 1961 are not null and void because of the decision made in 1967; nor, accordingly, are the judgments of this Court given on appeal from two such decisions.

The application is dismissed.