Akamwarar v Eiraidongio [1971] NRSC 1; [1969-1982] NLR (B) 29 (24 February 1971)

[1969-1982] NLR (B) 29

IN THE SUPREME COURT OF NAURU

Land Appeal No. 21 of 1970

NEI TAKEA AKAMWARAR

-v-

EIRAIDONGIO AND OTHERS

24th February, 1971.

Estate of deceased Nauruan - paragraph 3(b) of Administration Order No. 3 of 1938 - family agreement - what constitutes agreement - when it becomes unalterable.

Appeal against a decision of the Nauru Lands Committee as to the distribution of the estate of a deceased Nauruan based upon an alleged family agreement. A. died intestate, leaving a widow, N.T., but no issue. The Nauru Lands Committee held a meeting of those who would be entitled to succeed to A.'s estate on the intestacy, in accordance with paragraph 3(b) of Administration Order No of 3 of 1938, if there were no family agreement; the purpose of the meeting was to see whether they could reach agreement on the distribution of the estate. All of them except N.T. agreed upon a certain distribution. There being, therefore, no agreement, all but N.T. left the meeting. N.T. remained behind and after some discussion with the Committee said that she agreed to the distribution already agreed to by the others. The Committee was satisfied that there was agreement as to the distribution of the estate and arranged for publication of it in the Gazette. Eight days later N.T. went back to the Committee and said that she had changed her mind and no longer agreed to the distribution. The Committee informed her that the matter was already decided, was in the course of being published and could not be altered. N.T. appealed on the ground that there was no family agreement because the meeting was over and the other members of the family not present when she told the Committee that she agreed. Her second ground of appeal was that, until the distribution based on the agreement was gazetted, she could resile from the agreement.

Held: (1) Although the other members of the family were not present when N.T. agreed to what they had already agreed to, a family agreement came into existence when she stated her agreement to the Committee.

(2) Unless a family agreement has been reached by unfair means, e.g. coercion, undue influence or want of understanding, the distribution agreed to is unalterable, except by a new agreement of all the family or by an order of the Supreme Court.

K.R. Adeang for the appellant.
B. Dowiyogo for the respondents.

Thompson C.J.:

This appeal is brought against the decision of the Nauru Lands Committee that the interest of the appellant's late husband, Akamwarar, in a number of portions of land should be divided into four parts with each of the three respondents receiving one part and the appellant receiving a life interest in the fourth part. That decision was published as Gazette Notice No. 200 of 1970 in Gazette No. 42 of 1970.

The facts are not in dispute. The respondents are the brother and sisters of the appellant's late husband. The appellant was lawfully married to him; there are no surviving issue of the marriage. Akamwarar died intestate. In default of any agreement to the contrary, the appellant would be entitled to a lifetime interest in the whole of her late husband's estate, both realty and personalty. On her death the property would fall to be divided among the respondents but until then they would have only a reversionary interest in it. Such is the effect of paragraph 3(b) of the Regulations Governing Intestate Estates published as Administration Order No. 3 of 1938 and the custom of the Nauruans as developed by the Council of Chiefs, the Lands Committee and, most recently, the Nauru Lands Committee.

As the result of the other provisions of the Regulations and the custom of the Nauruans, if the family of a person who has died are in complete agreement about the distribution of his property the property will be distributed in accordance with that agreement. In the present case the Nauru Lands Committee called a meeting of Akamwarar's family to discuss his estate but there was no agreement. If that state of affairs had continued, the Committee would have been obliged to award the appellant a life interest in all the estate. However, after the other relatives had left, the appellant changed her mind and informed the Committee that she was willing to give the respondents shares of the land equal to her own. The Committee regarded this as an agreement between the members of the family and made their determination of the distribution of the estate on that basis. Eight days later the appellant changed her mind again and returned to the Committee; but by then the determination had been made and was in the course of publication.

Mr. Dowiyogo has suggested that there was a gift by the appellant of part of her interest in the land. If that were so, it would be invalid because of the provisions of section 3 of the Lands Ordinance 1921-1967. However, I am satisfied that it was not a gift of an interest already vested in her but an agreement as to the distribution of the land of the deceased before any interest had been vested in anyone, except possibly as administrator of the estate prior to distribution. It was not an agreement directly with the other members of the family but it was an agreement by the appellant to surrender a substantial part of her interest in the land in their favour. There is no evidence of coercion, undue influence or failure by the appellant to understand the consequences of the agreement; she explicitly stated that she wanted the respondents to share the land equally with her. The Nauru Lands Committee was correct in regarding the agreement as one to which it should give effect. The determination which it made, and which is published in Gazette Notice No. 200 of 1970, was, therefore, correctly made.

Mr. Adeang has submitted, however, that, even though the Committee's original determination may have been correct, it should have cancelled it when the appellant came back eight days later. I am unable to accept this argument as sound; there must be a point of time when, the matter having been decided, it is unalterable except on the ground that an injustice has been done, e.g. because of coercion, undue influence or want of understanding. That point of time is clearly the moment when the Committee has made its decision and sent it for publication. At that stage the Committee has finished its duty in the matter and cannot properly reopen it except with the consent of all the parties concerned or on the order of this Court.

Accordingly the appeal must be dismissed and the decisions of the Nauru Lands Committee published in Gazette Notice 200 of 1970 confirmed.