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Nauru Lands Committee v Grundler [1975] NRSC 10; [1969-1982] NLR (A) 26 (27 January 1975)

[1969-1982] NLR (A) 26

IN THE SUPREME COURT OF THE REPUBLIC OF NAURU

Miscellaneous Cause No. 2 of 1975

NAURU LANDS COMMITTEE

v

(1) EIDAWAIDI GRUNDLE; and
(2) EIBARUKEN & OTHERS

27th January, 1975.

Nauru Lands Committee - publication of decision in the Gazette - decision incorrectly stated - correction to be made.

Nauru Lands Committee - publication of decision - manner of wording the notice.

Application by the Nauru Lands Committee for an order for the correction of the Committee’s notice, published in the Government Gazette, of its decision as to the ownership of a portion of land. The portion had the same name as another portion. In publishing its decision in the Gazette the applicant showed incorrectly as the previous owner of the portion a previous owner of the other portion of the same name. It then published a notice purporting to correct its first notice but in fact failing to do so and adding more errors.

Held: (1) The Committee, deriving its power from the Nauru Lands Committee Ordinance 1956-1963, had no power to change any decision it had made but, if it published an incorrect notice of any decision, it was obliged to publish a further notice correcting that notice so that the decision as fully notified was the decision actually made.

(2) In order to minimise the risk of error in notices, the applicant should adopt a regular form of notice.

Mrs. M.L. Billeam for the applicant Respondents in person

Thompson, C.J.:

The Nauru Lands Committee has applied by an originating notice of motion for an order striking out certain decisions of the Committee published in the Gazette, for an order that different decision be published in the Gazette in substitution for them and for directions as to the proper wording of the public notice to follow that gazettal, i.e. the notice as to right of appeal. The applicant is asking also for an order that each party is to bear its own costs.

The decisions which the Nauru Lands Committee is seeking to have struck out all relate to land called Akaw, portion no. 136, coconut land, in Anetan District. They were published as, or as part of, Gazette Notices Nos. 209, 221 and 232 of 1974 respectively. In Gazette Notice No. 209 the previous owner of the land was shown as Eigugina and the present owners were shown as the second respondents. That Gazette Notice was published on 2nd August, 1974. Gazette Notice No. 221 contained what was stated to be a corrigendum. In fact it was the total deletion of the decision relating to portion no. 136 published in Gazette Notice No. 209. That Gazette Notice was published on 16th August, 1974. Finally, Gazette Notice No. 232, published on 26th August, 1974 contained a new decision relating to that land. It showed the previous owner as Eigugina but the present owner was shown as the first respondent.

The Acting Chairman of the Nauru Lands Committee, Mr. Agoko, has given evidence that Gazette Notice No. 209 did not record correctly the decision of the Nauru Lands Committee regarding the previous ownership of portion no. 136. He says that the Committee had in fact decided that there were two portions of land called Akaw, one belonging previously to Eigugina and the other to one of the second respondents, Eibaruken, and Enene, Erom and Eona; that the Committee had decided that portion no. 137 was the former of these and portion no. 136 the latter; that the second respondents were the persons entitled to the latter; but that, by some mischance, the draft notice of the Committee’s decision sent by it for publication showed portion no. 136 as having previously belonged to Eigugina.

Mr. Agoko has given evidence that, when the error was discovered, the Committee caused the so-called corrigendum to be published as Gazette Notice No. 221. Its intention was that its original decision as to portion no. 136 should subsequently be published correctly, i.e. showing the present owners as shown in Gazette Notice No. 209 but with the previous owners shown as Eibaruken, Enene, Erom and Eona. However, by some further mischance, the error was not corrected but repeated and made worse by Gazette Notice No. 232 which, instead of changing the details of previous ownership, substituted as the present owner the person entitled to the estate of Eigugina, namely the first respondent. How this error came to be made Mr. Agoko could not say, although, contrary to what he originally stated in his evidence, he admitted that he himself signed the copy of the decision sent for publication.

Mr. Dowiyogo has submitted that the Committee was estopped by its own record, and in particular the copy of the decision sent for publication by it and signed by its Acting Chairman, Mr. Agoko, from denying that the previous owner of portion no. 136 was Eigugina. He apparently did not impugn Mr. Agoko’s integrity but argued that, once the Committee had sent its decision, signed by the Acting Chairman, for publication, it could not set right any mistake which it made in the notice of that decision.

The other respondents have not opposed the Committee’s application, except as to the order for costs. The first two orders sought by the Committee would be favourable to them.

I am unable to accept Mr. Dowiyogo’s submission in its entirety. Certainly the Committee, once it has come to a decision and published it correctly, cannot in normal circumstances change its decision. If it has decided a question incorrectly, the persons adversely affected by the decision must exercise their right of appeal. (Of course, if some fraud has been perpetrated or there has been some gross defect in the Committee’s proceedings such as to render them null and void, the circumstances are not normal and the general statement that the Committee cannot correct its decision is not intended to apply to them.) However, where it has decided a question but has published that decision incorrectly, the publication of that decision can be corrected, at any rate within a reasonably short time after the incorrect publication, so that it is published as it was actually made. There can be no question of any estoppel arising from an incorrect notice of a decision.

Whether the first two orders sought in this case should be made depends on whether the Nauru Lands Committee made, before it caused Gazette Notice No. 209 to be published, the decision which it is now applying to have published or whether the decision published as that Gazette Notice was what the Nauru Lands Committee had decided at that time and the Committee has since changed its mind as to the correctness of that decision. If it is the former, the application should be granted; if it is the latter, the application cannot be granted.

It is unfortunate that the Committee did not record in its minute-book the decision which it made as to the previous ownership of the land. To make matters worse Mr. Agoko was by no means clear as to exactly when the decision was made. With regard to the second publication of the Committee’s decision, i.e. in Gazette Notice No. 232, however, it has to be borne in mind that some confusion of the land with portion no. 137, land of the same name but owned by Eigugina, could have arisen and caused the alleged further incorrect notification of the original decision. On balance, I am satisfied that the Committee did originally decide that one of the two portions of land called Akaw belonged previously to Eibaruken, Enene, Erom and Eona. It allocated portion no. 137 as Eigugina’s land of that name. Therefore, I accept that it also decided that portion no. 136 was the land which previously belonged to Eibaruken, Enene, Erom and Eona. The application to strike out Gazette Notices Nos. 209, 221 and 234 and for an order for correct publication of the decision should, therefore, be granted. When that has been done the first respondent will be able, if she wishes, to appeal against the decision and the substantive issues of identification and previous ownership of the land can be litigated.

With regard to the third order sought, apparently what is really required is the guidance of this Court as to what information should be included in the Gazette Notice of a decision of the Nauru Lands Committee with regard to the right of appeal which persons dissatisfied with the decision have. The Nauru Lands Committee Ordinance 1956-1963 provides (sections 6 and 7) that the decision of the Committee of any question in dispute before it is final, subject to there being a right of appeal against it which must be exercised within 21 days. No statutory obligation is imposed on the Committee to include in notices of its decisions any information about the right of appeal. However it is desirable that the information should be given; and, if it is given, it must be accurate and expressed in such a way that it is not misleading.

The questions about land which the Committee has to decide fall into the following categories:

(1) questions of identification of portions of land and of their boundaries;

(2) questions of ownership, that is to say, who are the persons, dead or still surviving, whose title to the land is established or evidenced by previous published decisions of the Nauru Lands Committee or the Lands Committee or by entries in the Land Registration Book of 1928 or in German records of land ownership; and

(3) questions of the distribution of the estates of deceased owners.

Sometimes questions in all three categories have to be decided at the same time. On other occasions the Committee has to decide only one question. However, the Committee’s present practice is to publish all its decisions in more or less the same form and members of the public reading them may be confused as to the questions decided and, in consequence, as to their right of appeal. Indeed, at times the Committee itself seems to have been confused about this matter.

In my view the difficulty can be substantially overcome if, where questions in more categories than one are decided at the same time, a separate notice is published in respect of the decision in respect of each question. As an example, if the Committee decides on a field day (1) that certain land is called Akaw and has certain boundaries, (2) that the owner were the late Enene and others, and (3) that the beneficiaries of Enene’s estate are Tiau D. and others, there should be three Gazette Notices. The first notice will show that the land has been identified as Akaw and given as its portion number the number 136. It will also refer to the plan of the portion published as an annexure to the Gazette. The second notice will show that Akaw, portion no. 136, belongs to the estate of the late Enene and others. The third notice will show the Committee’s decision as to the persons entitled to be the beneficiaries of Enene’s estate. (Of course, as this Court has pointed out in the past, the question of who are the beneficiaries of a deceased person’s estate should be decided in respect of the whole of the estate at the same time; it should not be decided portion by portion, as portions are identified on field days.)

In order that the combined effect of decisions of various questions relating to one portion of land may be easily ascertainable, there should be added to each notice of a decision about that portion a note stating the Gazette Notices by which those other decisions were notified. Thus, if the question of who are beneficiaries of the estate of Enene was decided (this Court has no knowledge whether or not it has been decided) in 1955 by, say, Gazette Notice No. 15, the Gazette Notice in the example given above showing that Akaw, portion no. 136, belongs to the estate of Enene and others should have added to it a note to the effect that the beneficiaries of Enene’s estate were decided by Gazette No. 15 of 1955. There should be similar notes about the estates of the other deceased persons shown as previous joint owners of the land with Enene. The Gazette Notice should also contain a note of the number of the Gazette Notice by which the decision of the identification of the land and of its boundaries was published.

If a separate Gazette Notice is published in respect of each question decided, problems should not arise over the statement to be made in it as to the right of appeal. The right of appeal exists only in respect of the question to which the decision relates. That can be stated simply as follows: “Any person who is dissatisfied with this decision of the Nauru Lands Committee may appeal to the Supreme Court within 21 days of the publication of this notice.”

I direct, therefore, that the decision of the Nauru Lands Committee to which the application relates is to be republished in two separate Gazette Notices as follows:

“(First Gazette Notice)

DETERMINATION OF IDENTITY AND BOUNDARIES OF LAND

The Nauru Lands Committee hereby determines the identity of certain land as follows:

The Nauru Lands Committee has determined the boundaries of this land as shown in the plan annexed to this issue of the Gazette.

(Note: The Nauru Lands Committee’s decision as to the ownership of this land is published as Gazette Notice No. ...... of 1975.)

Date: .......................
Secretary ..................,
Nauru Lands Committee

Any person who is dissatisfied with this decision of the Nauru Lands Committee may appeal to the Supreme Court within 21 days of the publication of this notice.”

AND

“(Second Gazette Notice)

DETERMINATION OF OWNERSHIP OF LAND

The Nauru Lands Committee has determined the ownership of certain land as follows:

(Notes: (1) The Nauru Lands Committee’s decision as to the identity and boundaries of this land is published as Gazette Notice No. ..... of 1975.

(2) The Nauru Lands Committee’s decision as to the beneficiaries of the estate of Enene is published as Gazette Notice No. ....... of ............

(3) The Nauru Lands Committee’s decision as to the beneficiaries of the estate of Eona is published as Gazette Notice No. ....... of .............

(4) The Nauru Lands Committee’s decision as to the beneficiaries of the estate of Erom is published as Gazette Notice No. ....... of ............)

Date: ...............

Secretary ..................,
Nauru Lands Committee

Any person who is dissatisfied with this decision of the Nauru Lands Committee may appeal to the Supreme Court within 21 days of the publication of this notice.”

In the “Note” in each notice the details of the Gazette Notices must be inserted by the Nauru Lands Committee before the Notices are published. If the beneficiaries of any of the three estates referred to have not already been agreed or determined, the statement regarding the decision of the beneficiaries of that estate should be omitted from the “Note” to the second notice and the Nauru Lands Committee should hold family meetings without delay in order to see if agreement can be reached. If agreement cannot be reached, the Nauru Lands Committee must immediately decide in accordance with Administration Order No. 3 of 1938 who the beneficiaries are. In either case the agreement or decision is to be published in the Gazette.

For the guidance of the Nauru Lands Committee I suggest that in future decisions as to the beneficiaries of estates of deceased persons should be published as follows:

“DETERMINATION OF THE BENEFICIARIES OF THE ESTATE OF THE LATE ............................................... OF ............................ DISTRICT.

1. The Nauru Lands Committee has ascertained that the late .......................... had been determined by decisions of the Nauru Lands Committee (or its predecessor the Lands Committee) to be the owner of the following land:

2. The Nauru Lands Committee has ascertained that the following records exist which show that the late ........................ probably owned other land as follows:

3. The Nauru Lands Committee has determined that the beneficiaries of the estate of the late ........................ are:

(a) in respect of the land shown in paragraph 1 above:

(b) in respect of the land shown in paragraph 2 above (if the deceased owned the land):

Date: ...................

Secretary ..................,
Nauru Lands Committee

Any person dissatisfied with this decision of the Nauru Lands Committee may appeal to the Supreme Court within 21 days of the publication of this notice.”

With regard to costs, these proceedings have been necessitated by an error on the part of the applicant. However, the error was made in good faith by a tribunal which exists principally for the benefit of those who have disputes about land which require to be litigated; its fees are minimal. It would not, I consider, be appropriate to order the Committee to pay the respondents’ costs. I order that each party should bear his own costs.