In re Bop [1969] NRSC 1; [1969-1982] NLR (B) 13 (1 May 1969)

[1969-1982] NLR (B) 13

IN THE SUPREME COURT OF NAURU

Land Appeal No. 20 of 1969

Appellant: JAMES ATEGAN BOP

May, 1969.

Estate of deceased Nauruan - no will - expression by deceased of wish that portion of land in estate be given to a named person - "trust" imposed on heir by Nauruan customary law - nature of "trust" - whether "trustee" has a legal obligation to "beneficiary".

Appeal against a decision of the Nauru Lands Committee as to the size of a portion of land. The land was part of the estate of N., who died in 1920. N. did not make a will, written or oral; but he had expressed a wish that his heir should give a certain named portion of land to E. No action was taken until 1965 to have a legal transfer of the land from the heir or his successors effected. The successors, including the appellant offered to transfer land to the extent of 5.138 acres; E.'s successors demanded more than 10 acres. The heir's successors then stated that they were giving only 0.128 acres. The Nauru Lands Committee gazetted E.'s successors as owners of the named land comprising the 5.138 acres originally offered by the heir's successors. The appellant appealed, on behalf of himself and the heir's other successors, against that gazettal, claiming that the heir had a complete discretion how much land he would transfer to E. and was not legally obliged to transfer the whole of the portion named by N. In 1938 the Administrator decided that the wish expressed by N. had imposed a "trust" on the heir but he used the term not in its legal, or equitable sense, but to describe an obligation of honour. In 1965 the Central Court constituted by three magistrates all of whom were Nauruans, stated in an obiter dictum that the heir had a discretion as to the size of the land he should give to E. to discharge his obligation.

Held: The obligation imposed on the heir was one of honour only and not enforceable by the Nauru Lands Committee or a Court.

Appellant in person
Respondents in person

Thompson Ag. C.J.:

This is an appeal against the determination of the Nauru Lands Committee concerning land named Anoror, portion 384, Mereng which was published in Government Gazette No. 55 of 1965. The appeal is not against the distribution as determined but against the size of the portion as decided by the Committee.

The land in dispute belonged to Chief Nobob, one of the three Great Chiefs of Nauru at the time of the First World War. Chief Nobob expressed the wish that his heir should distribute some of his estate to certain beneficiaries. Eidukiri was one of these; it was Nobob's wish that she should be given two portions of land one of which was the land named Anoror.

After Chief Nobob's death his heir failed to carry out his wishes. In 1938 a number of claims were made in respect of land comprised in the estate. One such claim was by Eidukiri in respect of the land Anoror. Her claim was dismissed by the Administrator. He recorded his findings, however, that he was satisfied that Chief Nobob had expressed the wish that that portion should be given to Eidukiri by his heir. The Administrator referred to the heir as having failed carry out the "trust" but it is clear from the rest of the Supplement to Government Gazette No.39 of 1938, in which the findings were set out, that the Administrator was not using the word "trust" in its legal, or rather equitable, sense but loosely to describe an obligation of honour. He did not find that Chief Nobob had made a verbal will.

Unfortunately, although the Administrator specified the land by name and by its section number, nothing was done, apparently, to demarcate its boundaries or to survey them. In due course, in 1956, the Committee recorded a determination that that portion belonged to Eidukiri but again the boundaries were not demarcated or surveyed.

In 1965 the Committee purported to determine the ownership of the land again and published a notice in the Government Gazette showing the appellant and others as the owners. One of the respondents to this appeal, Agigia, appealed against that determination and the Central Court upheld the appeal. In doing so, however, it stated that the size of the portion, still undecided, would be according to the discretion of Nobob's heir, in view of the Administrator's determination in 1938.

The appellant's case is that the effect of the Administrator's determination was to show that the heir of Chief Nobob had an obligation of honour to hand the portion Anoror over to Eidukiri, or her successors, but no legal obligation to do so. He submitted further that, as there was no legal obligation to hand over the land and as it was to come out of a larger area of land which belonged to him and its boundaries were undetermined, he had the right to determine the size of the portion in giving the land.

The respondents' case is that the Nauru Lands Committee is obliged to determine the boundaries on evidence and not merely adopt the appellant's decision on the size of the land. In fact, the Committee made its determination on the basis of an offer made to the respondents by the appellant. The respondents had claimed more than ten acres; the appellant told the Committee that, as far as he then knew, the size of the land was 5.138 acres but he would be willing to give six acres. The respondents did not immediately withdraw their demand for a larger area and said that they wanted time to consider the appellant's offer. At the next meeting the appellant, possibly through annoyance at the respondents' intransigence, withdrew the offer and said that he would give only 0.128 acres. The Committee then made its adjudication, determining the size as what the appellant had first offered. The appellant says that it had no right to determine the size as greater than his last offer.

The precise nature of the obligation lying on Chief Nobob's heir as a result of the Administrator's determination in 1938 is a matter of Nauruan customary law. This Court had little assistance from the parties on this aspect of the matter; on the other hand, there is the guidance afforded by the statement of the Central Court in 1965 that the heir had a discretion as to the size of the portion. That statement was, in my view, obiter dictum and not binding on this Court under the stare decisis rule. However, the members of that Court were all Nauruans of considerable magisterial experience. In the absence of any strong reason to come to a different decision, it is proper for this Court to follow, and adopt, their view of the matter.

I therefore find that the obligation on Chief Nobob's heir to hand over the land was an obligation of honour leaving him free to decide whether to give the land and, if so, how much of it. If he failed to hand the land over or to hand over a portion of reasonable size, he would be acting dishonourably and his standing in the eyes of other members of the community would no doubt suffer as a result. But Eidukiri and her heirs would have no remedy in law.

The appeal must, therefore, succeed.