IN THE SUPREME COURT OF NAURU

Land Appeal No. 3/2005

Between:

EIDEMOUDE BILL & ORS
Appellant

And:

NAURU LANDS COMMITTEE
1st Respondent

And:

MARGARET DEPAUNE
2nd Respondent

D. Gioura for Appellant
Lea D. Keke for 2nd Respondent

DECISION

Application for leave to appeal out of time against determination of the Nauru Lands Committee in an estate forming part of the estate of the late Egoraia of Nibok District published in the Government Gazette No. 37 of 1961.

The parties acknowledged that I am to consider the application on the written material before the Court and without hearing oral argument.

The application is an attempt, frankly admitted, to avoid the result of the decision in Civil Action No. 20/2003. In that action the present 2nd Respondent Margaret Depaune (with others) successfully sued the present Applicant (and others) for trespass.

In his characteristically careful and well reasoned judgment Connell C.J. said:-

Para 10 "

The documentation revealed clearly from 1929 to the present that the Anibubu land comprising portions 23, 27 and 28 were owned by Ebenwonon, the mother of Margaret D. Further, before the determinations made in G.N. No. 182 of 1961, family meetings were held, determinations were made by the Nauru Lands Committee clearly establishing the ownership of the children of Ebenwonon as stated in the Gazette No. 48 of 1931 following Ebenwonon's death, and in conformity with the BPC leases. There was no appeal on the 1961 determination and the land has remained in the hands of the children of Ebenwonon since 1929 and all rents have been paid to them. Mention was made of two leases signed by Hiram on behalf of his wife Ebenwonon in 1929. This signature was specifically witnessed by the Administrator thereby giving his authority for the signature at the time of acute frailty of Ebenwonon. The leases were made in conformity with the 1921 lands Ordinance and were valid."

Connell C.J. went on to remark:-

"Whilst the present case was not a land appeal but a case brought in trespass by the plaintiff, it was fought by the defendants as if it was to test the validity of land ownership. One can only say that the defendants failed utterly in this endeavour."

The Chief Justice made an order declaring, inter alia:-

"that the defendants are trespassers and unlawfully occupying the land known as Anibubu portion 27 in Denigomodu and the building, known as MQ31, upon the aforesaid land."

The present application is for leave to bring a land appeal out of time. Based on the same facts. Connell C.J. issued Practice Note No. 1 of 2006 an 18th January.

The first paragraph:-

"Where a land appeal that is out of time is lodged with the Supreme Court and the Court is called upon to make use of its inherent power which has statutory recognition under Section 72 of the Civil Procedure Act 1972, the grounds of such appeal are limited to allegation of gross irregularity of procedure in the determination of the Nauru Lands Committee, proven fraud, and failure of natural justice. It should be noted that error in application or interpretation of existing law will not be a ground for the acceptance of an appeal out of time."

The Practice Note reflects the decision of the Court of Appeal in Taylor and another v Lawrence and another ([2002] 2 All ER 353).

When one compares the facts found by Connell C.J. - findings which I accept without further enquiry - against the requirements of paragraph 1 of the Practice Note No. 1/2006, following Taylor & Lawrence, the application must fail. There have been shown in the application no gross irregularity of procedure, no proven fraud, no failure of natural justice.

That alone is sufficient to refuse the application. There is also an equally compelling reason. This application is for leave to appeal against a decision which the Nauru Lands Committee made about 45 years ago: a decision which has unchallenged until now. The principle of certainty of title demands that it should continue to stand. If Courts were to interfere - except in the rarest cases contemplated in Practice Note No. 1/2006 - the system of land tenure would be in chaos: no one would know when his or her title was to be challenged. To allow that to happen is unthinkable.

The application for leave to appeal out of time is refused.

THE HON. ROBIN MILLHOUSE QC.
CHIEF JUSTICE