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Detsiyogo v Degoregore [1975] NRSC 5; [1969-1982] NLR (B) 139 (27 November 1975)

[1969-1982] NLR (B) 139

IN THE SUPREME COURT OF NAURU

Land Appeals Nos. 7 and 8 of 1975

SOHRAB DETSIYOGO

v.

ROY DEGOREGORE AND ANOTHER

ROY DEGOREGORE

v.

EIDENGARENGAR U. TAMAKIN

27th November, 1975.

Land - dispute over boundaries - Nauru Lands Committee to decide on balance of probabilities.

The Nauru Lands Committee investigated the identity of certain portions of land and their boundaries. The evidence available was scanty and not of great weight. The Committee then made its decision. Appeals by the persons adjudged to be the owners of two adjoining portions against the decision as to the common boundaries of those portions.

Held: The Nauru Lands Committee has to decide questions of identification of land and its boundaries on the balance of probabilities, however scanty the evidence may be.

K.R. Adeang for appellant,
Sohrab Detsiyogo Respondent/appellant,
R. Degoregore, in person
K.R. Adeang for respondent Eidengarengar

Thompson CJ.:

These two appeals both relate to a decision by the Nauru Lands Committee, published in Gazette No. 53 of 1975, that a portion of coconut land named Iyatarinbawo, and allocated the portion number 139, is situated within the boundaries of portion no. 138, named alternatively Ngengen and Anetsiw, in Anetan District. The appellant in Appeal No. 7 is one of the owners of portion no. 138 and the respondents in that appeal are the persons named as owners of portion no. 139. The appellant in Appeal No. 8 is one of the persons named as owners of portion no. 139, and the respondents are the owners of portion no. 138. For the sake of convenience, in this judgment the expression "the, appellant" will be used to refer to the appellant in Appeal No. 7 and the expression "the respondents" to refer to the respondents in that appeal. The two appeals have been heard together as they are in the nature of cross-appeals. The appellant claims that portion no. 139 should not be within the boundaries of portion no. 138, while the respondents claim that it should be within those boundaries but of larger dimensions.

The only evidence available to the Nauru Lands Committee and in this Court was:

(1) German sketches of the pieces of land to the east and the west of the land which has now been allocated the portion number 138;

(2) entries in the German Ground Book relating to land called Ngengen and land called Yatarinbawo;

(3) an entry in the Land Registration Book of 1928 relating to land called Iyatarinbawo;

(4) a Gazette notice published in 1931 concerning a dispute over the ownership of land called Iyatarinbawo;

(5) evidence of certain persons having cleared the land at a time when clearing of land by owners was compulsory.

The German sketch of the land to the east of portion no. 138 shows that the part of portion no. 138 immediately adjoining that land was known, at the time when the survey was made, as Ngengen and belonged to Teguob, the uncle of the appellant's ancestor, Daimon. The German sketch of the land to the west of portion no. 138 does not show either the name or the owner-ship of the part of portion no. 138 immediately adjoining that land.

The German Ground Book shows that land called Ngengen was owned by Daimon, a nephew of Teguob. Probably Teguob had died between the time when the sketch was made and the time when the entry was made in the German Ground Book. Teguob is said to have died without issue. The German Ground Book does not show the location of the land, except that it was in Anetan District. It shows also that the land called Yatarinbawo belonged to an ancestor of the respondent but again does not show its location.

The Land Registration Book shows the respondent Roy Degoregore as one of the owners of land called Iyatarinbawo situated in Anetan District but does not show where in that District the land was located.

The Gazette notice relating to the dispute also does not show where the land called Iyatarinbawo was located.

Evidence was given to the Nauru Lands Committee by a woman called Eibware Olsson that in the time of General Griffiths, i.e. 1921 to 1927, the respondent Roy Degoregore and his relatives cleared the land which is now portion no. 139. In this Court one of the persons named by the Nauru Lands Committee as an owner of portion no. 138 gave evidence that he and his relatives cleared portion no. 138 both before and immediately after the war and that the respondents and, their relatives did not do so.

The Nauru Lands Committee, therefore, had no clear reliable evidence on which to make its decision as to the owner-ship of the land which is now portions nos. 138 and 139. The only apparently independent witness before it was Eibware Olsson and the Committee decided to accept her evidence. The appellant has suggested that she conspired with the respondents to give false evidence but adduced no evidence of any conspiracy. Eibware did not given evidence in this Court.

In a case such as this certainty is impossible. All that can be known is that the part of portion no. 138 which immediately adjoins the land to its east was known as Ngengen in German times and belonged to Teguob, and that the respondents own land some-where in Anetan District called Iyatarinbawo, the location of which was previously undecided. There is no reliable evidence of the identity or ownership of the land which is now portions nos. 138 and 139 except for the part immediately adjoining the land, to the east of portion no. 138.

In those circumstances, the Nauru Lands Committee had to weigh the other evidence before it, nebulous and unreliable as that evidence undoubtedly was, and to decide the identity and decision was correct. But it is equally impossible to say that it was wrong and there is no proper basis of evidence on which this Court could substitute a decision of its own for that of the Committee with any greater chance of that decision being correct.

Neither party has shown any adequate reason why this Court should interfere with the decision of the Nauru Lands Committee. Both appeals are, therefore, dismissed.