Gobure v Denea [1972] NRSC 4; [1969-1982] NLR (B) 55 (20 June 1972)

[1969-1982] NLR (B) 55

SUPREME COURT OF NAURU

Land Appeal Nos. 2, 3 and 4 of 1972

BETWEEN:

EIDUGUNEIDA GOBURE

AND:

EIGORIEDU DENEA;

BETWEEN

EIBAIRUKEN NAMADUK (and others)

AND

EIGORIOEDU DENEA;

BETWEEN:

BEN ARUBE HUBERT

AND:

EIGORIEDU DENEA

20th June, 1972.

Administration Order No. 3 of 1938 - meeting of family of deceased - relatives of more remote degree not entitled to attend.

Will of deceased Nauruan - property bequeathed to named person - indication in will that testator told that person his wishes in respect of distribution of the property.

D. died intestate in 1965 or 1966, leaving a widow D., a full brother, A., and possibly an adopted son, B. The Nauru Lands Committee held a meeting of the family as required by Administration Order No. 3 of 1938 to see whether agreement could be reached on the distribution of D.'s estate. The meeting was attended by D., A. and B. Agreement was reached. A. was to receive some of D.'s estate. A. then died leaving a will, the relevant part of which read:

"All my lands E. shall deal with (or "decide") them...I have given E. all about this land; she will have the say if the time comes for discussion".

The Nauru Lands Committee erroneously published in the Gazette a notice showing the widow as owner of some of the lands comprised in D.'s estate which should have been received by A. E. appealed against that notice on the ground that the lands belonged to A., not the widow. The grandchild and two great-grandchildren of the sister of D.'s mother appealed on the ground that they should have been invited to attend the family meeting and that, as they had not been, effect should not be given to the agreement reached at that meeting. B. also' appealed on the ground that a week after the agreement was reached A. had sought to resile from it. However, B. had taken no action in the matter between the time of the agreement in 1966 and he commencement of the appeal in 1972, although notice of the distribution agreed to was published in the Gazette in 1966.

HELD: (1) As D. left a full brother, relatives of more degree were not entitled to attend the family meeting.

(2) The notice published showing D.'s widow as owner of the lands was erroneous. They belonged to E., as beneficiary under A.'s will.

(3) Although it was clear that A. had informed E. of his wishes regarding the distribution of his lands, there was no evidence what those wishes were. E. was intended to take as a beneficiary but with an obligation, imposed by Nauruan custom and enforceable only by social pressure, to give effect to A.'s wishes.

B. Dowiyogo for Eduguneida
R. Akiri for Eibairuken and Others
K.R. Adeang for Ben Arubi Hubert
Respondent in person

Thompson C.J.:

These three appeals are all against the determination of the Nauru Lands Committee published in Gazette No. 13 of 1972 in respect of four portions of phosphate land:

Anini, Portion No. 18, in Ijuw District

Botibab, Portion No. 28 in Anetan District

Debidouwe, Portion No. 276, in Anetan District

Anibara, Portion No. 82, in Nibok District.

It was in fact, a re-distribution of the ownership of those portions. That was determined originally in 1971 but the determination was set aside by this Court on appeal on the ground that the persons who are the appellants in Land Appeal No. 3 of 1972 had not been given as full an opportunity to present their case as justice required.

A share in all four portions belonged to Denea, the late husband of the respondent, who died in 1965 or 1966. His ownership of his share of each portion had been determined by the Lands Committee and the Nauru Lands Committee; there are separate gazettals in respect of each, the first being in 1936 and the last in 1955. In 1966 the Nauru Lands Committee held meetings of Denea's family after his death, in accordance with Administration Order No. 3 of 1938. They were attended by the respondent, by Denea's brother Agakar and by Ben Arube Hubert, the appellant in Land Appeal No. 4 of 1972, who claimed to be Denea's adopted son. Denea was not survived by any other brother or sister or by any natural child.

Mr. Akiri has submitted that the appellants in Land Appeal No. 3 should have been called to attend those meetings. One of them is the grandchild of the sister of Denea's mother; the other two are great-grandchildren of the same sister. Their degree of relationship to Denea was, therefore, comparatively remote. Denea had left a full brother, Agakar, and a widow. There was no reason why relatives as distant as the appellants whom Mr. Akiri represents should have been called to the family meetings. That the Committee did not call them certainly does not vitiate the determination it made in 1966.

Mr. Adeang has submitted that the determination was improperly made for another reason. He adduced evidence that initially Agakar, Eigoriedu and Ben Arube Hubert agreed that Eigoriedu was to have all the land but subsequently, about a week after agreeing to that, Agakar notified the Nauru Lands Committee that he no longer agreed. Whether or not a family agreement before the Committee has become complete and irrevocable is a matter of fact in every case. In the present case, I do not regard the matter as open to dispute. The Committee's determination was published in Gazette No. 26 of 1966. Ben Arube Hubert was aware that the estate was being dealt with by the Committee. He is an educated man. He should have ascertained that, when the Gazette Notice in respect of the determination of the estate was published, it was correct. He had a right to appeal against the determination which was gazetted. He failed to do so. He cannot do so now.

In Gazette No. 26 of 1966, a number of portions of land forming part of Denea's estate are named. The distribution of other lands forming the balance of his estate is then stated in the following terms:

"Any other remaining blocks of lands owned or shared by the late Eugenius Denea deceased should be now distributed in the following manner:-

(a) blocks inherited by the late Eugenius Denea from his wife the late Eikaben deceased should be equally owned and shared by Eidugoneida and Arube H.

(b) blocks solely owned or shared by the late Eugenius Denea should be equally owned and shared by Agakar and Eigoriedu for the duration of her life time only. Upon her death, her shares will revert to Agakar."

The four portions of land to which the present appeals relate are not among those named in Gazette No. 26 of 1966. It is established that they were not inherited by Denea from his late wife, Eikaben. They fall, therefore, within the group of blocks in category (b) of "other remaining blocks of land", and the ownership of Denea's share in each of them passed in 1966 to Agakar and the respondent. It has been suggested by Mr.Akiri that, as Agakar died before the identity of these blocks was ascertained, ownership of Denea's shares in them never passed to him.

What the position would have been if the Committee's determination relating to the distribution of Denea's estate had not been made until after Agakar's death, there is no need to consider. He was alive when the distribution was determined. The fact that the Committee had not drawn up an exhaustive list of the lands comprising the estate is immaterial. Denea's shares in the four portions now in dispute undoubtedly passed to Agakar and the respondent.

When Agakar died, those shares in those lands comprised part of Agakar's estate. Agakar left a will which was accepted as valid by the Nauru Lands Committee. Its validity to dispose of Agakar's estate has not been challenged in these proceedings.

The will reads:

"All my lands Eiduguneida shall deal with (or "decide") them, in relation to phosphate lands and coconut lands. I have given all Eiduguneida about this land, she will have the say if the time comes for discussion. All my remaining belongings like clothing and similar things, my personalty, must be given to Eiduguneida and she will have the say in them. My passbook must also go to Eidunguneida. The house belonging to the N.L.G.C. is now registered in my wife's name and she will have a say in it where it shall go. That particular house which is registered in our names, myself and my brother Denea, my two granddaughters, Eimaino and Eimoun should occupy it. My Ron Wun, if I had it (or "if in existence"), should go to Eiduguneida."

Mr. Akiri and Mr. Adeang have submitted that the provisions of the will imposed on Eiduguneida an obligation to distribute the land in accordance with any wishes expressed to her by Agakar. Mr. Adeang called an elderly well-educated Nauruan, Mr. Heine, to give evidence of this. I am satisfied from the language used and from my knowledge of the customs of Nauruans of Agakar's generation gained in hearing Land Appeals over the past three years, that the lands were left to Eiduguneida to distribute in the manner in which she knew Agakar wished them to be distributed. However, I am equally satisfied that, as Mr. Heine has told the Court, the obligation was a moral obligation based on "the strong sense of duty which the old people have".

In the past such an obligation was not enforceable except by social pressure; it was a matter of conscience. It was not a trust as known to English law. The person to whom lands were left in this manner was normally expected to keep some for himself, quite often the lion's share. I am satisfied that Eiduguneida is not required simply to hold the lands as trustee for those who would have inherited them on an intestacy. It has not been established to whom she has an obligation to distribute any of them. As Mr. Heine implied, it is a matter of conscience. Undoubtedly, Eiduguneida should not keep all the lands to herself but should distribute as much Agakar wished her to. If she fails to do so, she will have to live with her bad conscience and, I should hope, the disapproval of the society in which she lives.

As the respondent has no right as the widow of Denea to any more than she received as a result of the determination in 1966, i.e. a life interest in half of Denea's share of each the four portions of land, she is not entitled to any of Agakar's estate.

Eiduguneida's appeal is allowed. The appeals of the appellants in Appeals Nos. 3 and 4 are dismissed.

THE COURT