IN THE SUPREME COURT OF NAURU
AT YAREN	
CIVIL JURISDICTION		 		          Civil Suit No. 22/ 2018
								
BETWEEN

GAIMEN DENUGA 
Plaintiff
           
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LOCKLEY DENUGA & OR 		     	     Defendants

BEFORE:		Chief Justice Jitoko

APPEARANCES:	
Counsel for the Plaintiff:			S. Valenitabua (PLD)
Counsel for the 1st and 2nd Defendants:	V.Clodumar (pleader)

Date of Submissions:				17 February, 2020
Date of Judgment:				9 September, 2020

Case may be cited as:	“Denuga v Denuga & Or.” 

Catchwords – Interests in land – Whether consent of landowners can be withdrawn – Right of tenants – section 7 Public Health Ordinance 1925 – Homes to be kept clean.

JUDGMENT 

INTRODUCTION

1.	This case involves claim of plaintiff’s right to build an extension at his place of residence at Rooms 3 and 7, Block 76 on Portion 146 at Location in Denig District. The Plaintiff is partial owner of land portion 146 named as ‘Anupudu’.

2.	The Plaintiff also claims that prior to building an extension in the said portion he gained support from other land owners and got the consent letter dated 27.09.18 from 56 out of 74 land owners. 

3.	Defendants claim that the Plaintiff has no right to build an extension at the back of Room No. 4 at Block 76, Portion 146 in Location Denig District. Defendants also claim that on 22.11.18 all the landowners who had signed the earlier consent letter had revoked their consent. Defendants in addition claim that the tenants of Block 76 had signed a petition for eviction of Plaintiff from Rooms 3 and 7 as he is causing nuisance and disturbing the peace in the surrounding area.  

BACKGROUND

4.	The plaintiff and defendants are part-owners of the land Portion 146 in Location, Denig District. This property was inherited by the parties through their common ancestor Lorenzo A. Denuga who was holding 1/12 share in the portion 146 and Nauru Lands Committee side gazetted in G.N. No. 408/1987 had determined that the portion 146, Anpudu is owned by Lorenzo A. Denuga having 1/12 shares of the portion. The NLC further determined vide gazette G.N. No. 409/1987 that after the death of Lorenzo A.Denuga, his share was held by Eateijabon Eidoeiyeda L.Denuga as beneficiary and she held 1/12 share as LTO. On 10th December 2008, Nauru Lands Committee vide G.N.No. 465/2008 had determined that the Estate of the late Eidoeiyeda L Denuga shall be distributed among its beneficiaries 1/144 share of land portion 146 Anpudu in Location Dening District as under: 
(a)	Carmen Wills
(b)	Lockley Denuga
(c)	Gordon Denuga
(d)	Douglas Denuga
(e)	Madona Rodiben
(f)	Gaynor Denuga
(g)	Enza Denuga
(h)	Gaimen Denuga
(i)	Cassa-Delphina Gourab
(j)	Madrina Dimapillis
(k)	Timothy Denuga
(l)	Charity R. Kam
 
5.	The inherited portion 146 Anpudu contains a concrete apartment that was build and owned by British Phosphate Corporation (BPC) and later by the Nauru Phosphate Corporation (NPC). The apartment contains 8 rooms. Plaintiff occupies room no# 3 situated on the ground floor and room no# 7 which is situated right on top of room no# 3. The Defendants occupy room no# 4 and room no# 8. 

6.	The dispute arose among the parties when the plaintiff created a marking in the land area and while he was trying to construct an extension structure including a garage adjacent to room no. 3. The Plaintiff claims that prior to doing construction of extension for build-up structure and garage he had procured consent from the other land owners. The Plaintiff in his support, had filed consent letter signed by 56 landowners out of 74 landowners. 

7.	The defendants claim that it was the plaintiff who first attacked the two defendants and used degrading words as to his ownership and ethnicity. The defendants claim that due to the behaviour of plaintiff, the family members residing in location block 76, portion 146 Anipudu, Dening District had filed petition to either evict or remove the Plaintiff and his wife from the dwelling place. 

8.	The defendants claim that they had no objection if plaintiff builds his extension and garage behind rooms no. 3 and 7 however, plaintiff should not be allowed to encroach behind rooms no. 4 and 8. 

9.	The defendants also claims that plaintiff had failed to get 75% of landowners consent which is the threshold level and prerequisite requirement under s. 6 of the Lands Act 1976.  The plaintiff has fallen short of this threshold level since only 53 out of 74 landowners have signed the consent form which is only 71.62%. On the contrary, the defendant has produced revocation letter signed by 57 landowners which makes it 77.02%. 

10.	On November 2018, the plaintiff filed an interlocutory summons seeking an interim injunction to prevent the defendants, intervening with the plaintiffs’ construction and building of a garage on Land Portion 146, Denigmodu District known as Anupudu.  At the same time the summons sought an Order preventing the defendants from building or constructing extension to their residence on Land Portion 146.  Affidavit in support by the plaintiff was also filed.  Concurrent with the interlocutory summons, the plaintiff also filed a Writ of summons which sets out his Statement of Claim.

11.	On 16 January 2019, the plaintiff filed an amended interlocutory summons that further to the orders being sought above added:

“(3) that the Defendants whether by themselves their servants, and/or agents, be restrained from interfering with the plaintiffs occupation of his residence being Rooms 3 and 7 in Block 76, Anupudu Denigomodu, through assaults, trespass, or any other means, until final determination of this dispute.

12.	According to plaintiff’s Counsel and supported in the plaintiff’s Supplementary affidavit, prayer (3) is pleaded because there has been altercations between the parties and have resulted in the plaintiff and his wife suffering injuries.

13.	This Court on 29 January, 2019 upon hearing both counsel ordered as follows:
“1. That for the time being both the plaintiff and the defendants are to resist from constructing, building, or extending their homes and/or residences on Land Portion 146, known as Anapudu, Denigomodu District.”

14.	Following a physical inspection of the land in issue by the Court with the parties, the Court identified that the following issues were contentious matters:
1.	The land boundaries outward to sea at the backyard and between Rooms 3 and 7 and Rooms 4 and 8 on block 76 portion 146.

2.	Whether there is encroachment by the Plaintiff (occupiers of Rooms 3 and 7) on the defendant’s’ property (occupier of Room 4 and 8).  

15.	The court consequently requested the Director of Lands and Survey, to survey and submit a report to the Court on the seaward boundary between the owners of rooms 3 and 7 and owner of rooms 4 and 8. 

16.	The Director of Lands and Survey duly submitted its Report on 14 June 2019 with a Detail Plan and GIS location of the subject area as attachments.  The Report does not assist the Court greatly in ascertaining the issue of encroachment alleged by the defendants, but it was apparent to the Court from the physical inspection of the site that the plaintiffs activities on the ground, were encroaching on the outside and seaward portion of land directly opposite Rooms 4 and 8. 

Issues for Determination

17.	The parties have agreed to the following issues for determination which are: 
1) Whether the consent once given by landowners can be revoked later by those landowners? 
2)  Whether there is encroachment by the plaintiff onto the defendants’ land in the plaintiff’s attempt to extend and build his garage? 

3)  Whether any nuisance is caused by plaintiff to the defendants and other resident on the portion of 146, Denig District? 

CONSIDERATION  

18.	The primary issue, is the determination of the status of the plaintiff on the land and consequently on his right to bring this action.  There is not a doubt that the plaintiff Gaimen Denuga is a beneficiary to Land Portion 146, Denig District, as determined by the Nauru Lands Committee, and therefore has a legal right to remain on the property. 

Issue 1: Whether the consent earlier given to the plaintiffs by the majority of landowners, can be revoked?

19.	It is contended by the defendants that the consent for the construction of the extension to the plaintiff’s portion of Block 76, and specially, the garage, obtained by the plaintiffs’ wife from the majority of the landowners, had been withdrawn.  In support they had tendered to Court the revocation petition signed by family majority. 

20.	The defendants further submit that the plaintiff’s wife did not have the authority to go around gathering the landowners’ consent, since she is not a landowner, and therefore the petition and the consent was invalid.

21.	As to the second issue, the Court considers the consent collected by the wife of the plaintiffs as a valid document.  It must be assumed that the wife was acting as the agent of the husband, who is a part-owner of the land.  The landowners who signed the petition knew that she was the wife of the plaintiff and that the purpose of the petition was for consent to build on Block 76 for the plaintiff and his family. 

22.	As to the withdrawal of the consent the law is clear that consent may be withdrawn at any time, but with consequences, for example, if the party, acting in reliance of it, had acted and incurred costs and expenses.  In such a situation, the party is entitled to compensation and damages for the loss incurred. 

23.	In this instance, the plaintiff has only just begun to peg the grounds, for the building of the extension, and the costs and damages, if any, would be minimal.   There is some question raised as to the number of the landowners who signed the revocation document, but it is sufficient for the Court to be satisfied, that the numbers constituted the required majority under this Act. 

Issue 2: Whether there is encroachment onto the defendants’ backyard into Rooms 4 and 8 of Block 76 by the plaintiff’s extension work?

24.	From all the evidence gathered by the Court during the site inspection as well as the inference to be drawn from the Director of Lands and Survey report, the Court concludes that the construction of the plaintiff’s extension of his tenement, including, the garage, would encroach onto the backyard of Rooms 4 and 8, the property of the defendants.

Issue 3: Whether there is nuisance caused by the plaintiff to the defendants and other residents of Block 46, with littering and un-kept front yard?  

25.	The issue, as the Court had earlier informed the parties, is not for the Court to adjudicate upon.  It is property in the province of the Department of Health under the Public Health Act 1925.

CONCLUSION

26.	To get more clarity about the dispute particularly on the issue of encroachment by the plaintiff on the property of defendant, the court made site visit and inspected the premises along with both the counsel. After visiting the disputed site behind room 3 and room 4 where the intended construction of the extension and garage is planned, and considering the layout with the survey report filed by the Director of Lands and Survey the court finds that the concerns of encroachment raised by the defendants was valid. 

FINDING

27.	The plaintiff by extending his residence and garage behind rooms no. 3 and no. 7 has encroached on the property of defendants, the owners of rooms no. 4 and no. 8.

28.	The consent of the majority landowners for the plaintiffs to extend his garage had been legally withdrawn by the same landowners.

29.	That should the plaintiff wish to continue with the construction of the extension of a garage seaward and totally within the boundaries of Rooms 3 and 7, he should get a plan certified by the Director of lands and Survey first.

30.	Any extension that encroaches onto the boundaries of Rooms 4 and 8 would need the consent of the defendants and portion 146 landowners. 

ORDERS

1.	The plaintiff to stop from further construction of extension and building of his garage as originally planned. 

2.	The plaintiff is directed to follow the demarcation released by Director of Land and Survey in his Report and Survey Plan;

3.	The plaintiff is further directed that the construction of his garage should not extend beyond 10.32 meters as shown in the survey plan filed by the Director of Land and Survey. 

4.	That the interim injunction dated 29 January 2019, stopping the defendants from interfering with the plaintiff’s occupation of Rooms 3 and 7 and his and his family’s right to quiet enjoyment of the residence, is to continue until otherwise directed by the Court.

5.	No order as to costs.

DATED this 	9 day of September 2020 

__________________
Filimone Jitoko
Chief Justice