Reitsiyo v Nauru Lands Committee [2006] NRSC 6; SC Land Appeal No 02 of 2005 (6 August 2006)

IN THE SUPREME COURT OF NAURU

Land Appeal No. 02/2005

Between

EINGOA REITSIYO & ORS
APPELLANTS

And

NAURU LANDS COMMITTEE
1^ST RESPONDENT

And

EINGANGA OLSSON & ORS
2^nd RESPONDENT

Pres Nimes for Appellants
Bagadouwe Doubug for 1^st Respondent
Reuben Kun for 2^nd Respondent

DECISION

Application for leave to appeal out of time, variously said to be "against the purported determination of the Nauru Lands Committee published from time to time, viz in Government Gazette No. 10 of 1968 and in Government Gazette No 82 of 1972 respectively" (Notice of Appeal) and "against the determination of the Nauru Lands Committee published erroneously in Government Gazette No. 19 of 1961" (explanatory letter accompanying application).

The Applicant described as "Eingoa Reitsiyo" in the Notice of Appeal and in her affidavit sworn 15 June 2006 but who in oral evidence gave her name as "Eingoa Dabadouw", is a lady now aged 75.

Upon an application for leave there is no point in setting out more of the facts than in necessary to decide the application and I shall not do so.

Mr. Nimes called Mr. Bagadouwe Doubug, the present Chairman of the Nauru Lands Committee and Mr. Anton Ephraim, the Vice Chairman. Neither gentleman advanced the Applicant's case; they gave no relevant evidence.

To succeed, an application for leave to appeal out of time must show "gross irregularity of procedure in the determination of the Nauru Lands Committee, proven fraud, and failure of natural justice." (Practice Note No. 1 of 2006)

The Applicant swore an affidavit on the 15^th June 2006. The closest the Applicant came in her affidavit to alleging fraud was in these paragraphs:

3. "That I regret the delay in preparing this appeal for the reasons are mainly through recently discovered evidence that suggest that was something very wrong with the way that the committee dealt with the estate.......

8. That as far as I know, the Committee members did not want to give the lands back to us because some of them had some interest in the land and wanted the lands for their families. I also learned later that they improperly and corruptly awarded to members of the descendants of Tsiminita........

10. That the time has come for me to bring the matter before the Court so that these wrongs may be looked by the Court. So much injustice has been to us in regards to the distribution of Eigaonits properties. It is very wrong for my ancestors lands to be inherited by strangers because of uncertainties. I sincerely hope and pray that this Court will give me the opportunity to appear before and explain why the current situation regarding these land are unacceptable."

Fraud must be strictly proved. The material in the affidavit was quite insufficient to prove it.

The Applicant summed up her oral evidence when saying:

"I feel those lands should now be given to rightful owners because Dougi and Eigaonit had no issue. Not satisfied with Eigaonit's will: feel lands should be given back to me. Am only rightful owner and I wasn't even called."

I have great sympathy for the lady and am sure she is genuine in what she feels and in what she told me but she did not even hint at fraud in her oral evidence.

Fraud was not proved through her evidence. There was no attempt to show irregularity of procedure by the Lands Committee or failure of natural justice.

Having heard during the July sittings the evidence I have mentioned I adjourned the hearing until the present sittings to allow Mr. Nimes to call other witnesses. I did not wish to deprive the Applicant of any opportunity and, Mr. Kun consenting, granted Mr. Nimes' application for the adjournment, emphasizing that the case was to be decided in this session, no later.

On Monday afternoon I heard Mr. Nimes at length, putting every conceivable argument to demonstrate fraud in the sixties and seventies. My question after each of his arguments was, "Why was nothing done at the time or soon after?" He could give no answer favourable to his client and his argument by reference to various documents were not sufficient to show fraud, let alone strictly prove it.

Eventually Mr. Nimes called Mr. Porthos Bop, Director of Lands B Survey but, as with the gentlemen from the Lands Committee, Mr. Bop's evidence did nothing to assist the application. This application is no different from that in Eidemoude Bill B Ors v NLC 6 Margaret Depaune Land Appeal No. 3/2005 - an attempt to re-open matters decided many, many years ago and left settled until now.

During the hearing Mr. Nimes told me with some exasperation that I have a lot to learn about custom in Nauru. So I have. While I am learning, in considering Land Appeals out of time I am happy to follow the precedents set by my predecessor, Connell CJ, who had long experience in Nauru.

I propose to follow my decision in Land Appeal 3/2005 which in turn follows the decision of Connell CJ in Margaret Depaune vs Eidemoude Bill Civil Action 20/2003 and adopts the requirements in Practice Note 1 of 2006.

For two reasons - because neither gross irregularity of procedure in the determination of the Nauru Lands Committee or proven fraud, or failure of natural justice has been shown and because it is far too late, thirty or forty years too late, to complain - the application for leave to appeal out of time is dismissed.

Dated this 6^th day of August, 2006

THE HON. ROBIN MILLHOUSE QC.
CHIEF JUSTICE