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Akken v Nauru Lands Committee [2009] NRSC 10; Land Appeal No 3 of 2008 (31 March 2009)

IN THE SUPREME COURT OF NAURU

Land Appeal 3/08

BETWEEN

Gwaine Akken
APPELLANT

AND

Nauru Lands Committee and Estate of Amos Cook
RESPONDENTS

Rueben Kun for Appellant
Pres Nimes Ekwona for Estate

Date: 31 March, 2009.

DECISION – (Ex tempore)

After discussion between the Bench and Mr. Kun for the appellant and Mr. Nimes for the respondents the parties have agreed that the appeal should be allowed and the decision of the Nauru Lands Committee determining the beneficiaries of the Estate of the late Amos Cook published in the Government Gazette of 5th March, 2008 be quashed. The Nauru Lands Committee should reconsider the distribution of the Estate in accordance with the Orders of Chief Justice Barry Connell dated 11th May, 2001 and his (undated) Order in Civil Action 01/05.

For the convenience of the Nauru Lands Committee set out below are the two Orders.

Order of 11th May 2001

The Nauru Lands Committee are to determine the Chape estate as an intestate estate (See decision of Donne, C.J. 22 August 1997 – Quested Akken v Nauru Lands Committee & Anor – Civil Action No. 8/94).

1. The Nauru Lands Committee are first to revoke any previous Determinations of the estate whether in part or as a whole which had been made by the Committee at a time when the said estate was dealt with under the terms of a customary will.

2. The Nauru Lands Committee are directed to carry out the determination without any further delay having regard to the fact that the original Decision of the Supreme Court invalidating the will was dated 22 August, 1997.

3. The determination of the said estate by the Nauru Lands Committee to be gazetted.

Order(undated) in Civil Action No. 01/2005

After hearing the parties, the Court ordered:-

That the Nauru Lands Committee and the Curator of Intestate Estates comply with the Order of this Court in Civil Action No. 12/98 dated 11 May 2001, a copy of which is appended to this Order.

Note

In relation to the above order, the Nauru Lands Committee and the Curator of Intestate Estates should note the following points.

1. Previous determinations on land, that is, GN No. 96/1994 and Personalty in 1994 and 2002 need to be revoked by the gazette Notice.

2. Notice of family meetings to determine land and personalty to be held promptly upon notice being given to all concerned parties.

3. When the Nauru Lands Committee and the Curator of Intestate Estates have made their determinations these should then be immediately published in the gazette.

A copy of the letter dated 31 December 1998 of Acting Chairman N.L.C. Adolph Capelle to Registrar, Supreme Court, is attached for confirmation with a reply of the Registrar, Mr. G.L. Chopra, dated 22 February 1999. It was noted during the Chambers hearing that the letter of Adolph Capelle did not disclose that a family meeting had taken place as required for an intestacy nor that consideration had been given to distribution of personalty. In any event,there is no evidence that the determination contained in this letter was ever published in the gazette nor that earlier determinations had been revoked.

During the Chambers hearing, I (Barry Connell C J) ruled that where there was an invalid will which resulted in an intestacy, all previous determinations must be revoked, and new determinations made and published on the basis of the intestacy rules both for Realty and Personalty.

The court emphasizes that the Nauru Lands Committee must comply strictly with the Orders. The Interim Injunction dated the 27th June, 2008 to remain in force until further order after the re-determination of Nauru Lands Committee.

ROBIN MILLHOUSE
CHIEF JUSTICE