Adun v Heinrich [2010] NRSC 13; Land Appeal 3 of 2009 (19 May 2010)

IN THE SUPREME COURT OF NAURU

Land Appeal 3/2009

Between:

LYDIANA ADUN AND ORS
Appellant

And:

BENEFICIARIES ESTATE OF EIGAGA HEINRICH
1^st Respondent

And:

NAURU LANDS COMMITTEE
2^nd Respondent

Mr. Pres Nimes for the Appellant
Mr. David Aingimea for the Respondent, Nauru Lands Committee

Date of Hearing 19 May, 2010

JUDGMENT

In a number of Land Appeals in this session Mr. Aingimea, appearing for the Nauru Lands Committee, has taken the preliminary point that the appeal is out of time.

Section 7(1) of the Nauru Lands Committee Ordinance:

Appeals from decisions of Committee

A person who is dissatisfied with a decision of the Committee may, within twenty-one days after the decision is given, appeal to the Central Court against the decision.

Mr. Aingimea referred to the decision of Thompson CJ in Land Appeal 20/1970. (Dibebe Beiyoun v. Adeang Deireragea & Others Nauru Law Reports 1969 to 1982 Part B, Land Appeals, pages 27 and 28):-

The time for appealing to the Supreme Court against the determination by the Nauru Lands Committee on questions of ownership of land is limited by section 7 of the Nauru Lands Committee Ordinance 1956-1963 to 21 days. No provision is made in that Ordinance or any other law for the Supreme Court to have power to extend that time. It is only, therefore, in cases where there was such irregularity in the proceedings before the Nauru Lands Committee that its determination can be regarded as nullity, which the Supreme Court should declare void, that an extension of time can properly be granted in order to enable that declaration to be made.............

"If this Court were to regard the proceedings of the Nauru Lands Committee as irregular whenever some one or more persons who subsequently alleged that he had an interest in the subject matter of the proceedings was not aware of that interest at the time of the proceedings, the door would be open to many people to challenge old decisions of the Committee on which the people concerned have based their affairs for years. The stability and certainty which the Nauru Lands Committee Ordinance is intended to provide in land matters would be shaken, if not destroyed"

In a Memorandum in Land Appeal No. 2/2010 I accepted the decision: said I would follow it.

In this appeal (3/2009), as appears for the Notice of Appeal the decision was gazetted on the 3rd of December, 2008. The Notice of Appeal is dated 24^th March 2009. Well out of time, well beyond 21 days.

[I should refer to another decision of Thompson CJ in a Appeal 2/1974 (Egadeiy Itsimaera v Eidawaidi Grundler and others, Nauru Law Reports 1969 to 1982 Part B Land Appeals, page 107) in which he decided that time in Section 7(1) of the Ordinance runs from the date of publication in the Gazette. I accept His Honour's reasoning and shall follow it.]

Both Mr. Kun (in written submissions in another appeal) and Mr. Nimes (orally) have made submissions to avoid the time provision.

Mr. Kun referred to section 72 of the Civil Procedure Act:-

Saving of Inherent Powers of the Courts

72. Nothing is this Act shall be deemed to limit or otherwise affect the inherent power of any Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.

That inherent power does not extend to ignoring the plain provisions of an Act of Parliament. The section does not help Mr. Kun's and Mr. Nimes' argument.

[I may also mention section 70 of the Act which allows the court to extend "any period fixed or granted by any court or judge ......." The section does not go as far as extending a time limit fixed by Parliament].

Mr. Nimes, perhaps correctly, pointed out that conditions in Nauru have changed since the Ordinance was made and the present law may work unfairly. That is a matter which Parliament may care to consider but changed conditions do not give the Court power to over-ride the present law. Only Parliament may do that by amendment.

Mr. Nimes also referred to Practice Note No. 1 of 2006, a copy of which is appended to these Reasons. The Practice Note does not help his argument. In it Connell CJ points out how limited are the grounds of appeal given by section 7 (1) of the Ordinance. The Practice Direction follows- and so implicitly adopts - the decisions of Thompson CJ to which I have referred.

This appeal is plainly out of time and must fall at this first hurdle.

It was agreed by counsel that I should hear argument in this appeal, decide the point and follow the decision in several other appeals. I shall write separately in each but based on this decision.

The appeal is dismissed.

21st May, 2010.

Hon. Robin Millhouse QC
CHIEF JUSTICE