[1969-1982] NLR (B) 61

IN THE SUPREME COURT OF NAURU

Land Appeal No. 5 of 1972

Susannah Capelle and Others 

v

Mwareow Dowaiti

20th June, 1972

Nauruan customary "trusts" - nature and extent of obligations - enforceable only by social pressure; not by the Courts. '

Nauruan customary "trusts" - governed by custom - English rules of equity not applicable.

M. is the owner of certain land jointly with his brother S. Their ownership arose in circumstances imposing on them customary obligations towards other members of their family. Some of the other members sought a declaration that M. and S. were holding the land on trust for them as beneficial owners and that the English law of trusts and rules of equity were to be applied.

Held: (1) Nauruan custom imposed a form of trust on M. and S. They were obliged to provide other members of their family with such help as was reasonably required by them, regard being had to the means of those other members. M. and S. had provided such help and, at least in part, discharged their obligation.

(2) Nauruan custom, not the English law of trusts or rules of equity, governed-the obligations of M. and S. It was enforceable only by social pressure, not by the Courts.

K.R. Adeang for the appellants
Respondent in person.

Thompson CJ.:

This appeal relates to a number of portions of land originally gazetted in the name of the respondent alone but now owned jointly by him and his brother Samson Dowaiti.

Last year the appellant brought proceedings in the Nauru Lands Committee with a view to establishing that the respondent held the land in trust for them and himself and of phosphate extracted from it. On appeal from the determination of the Committee, I found it proved that the respondent had certain obligations of a customary nature cast upon him when he received the land. The evidence, however, was insufficient for me to ascertain what those obligations were or whether they were intended to be enforceable. The dispute was, therefore, referred back to the Committee to hear evidence on those questions and to determine them. The committee decided that the obligations were unascertainable and were not enforceable. Against that decision the present appeal is brought.

Having heard all the evidence adduced by the appellants and the respondents - and particularly in view of the evidence given by Susannah Capelle - I am satisfied that the respondent was under no obligation to share the land with anyone else or to share in any predetermined manner all or any of the proceeds of the land with anyone.

It is clear from the old records that land was frequently inherited in the old days in unequal portions. At one time it was apparently usual for the eldest daughter to receive either all of it or a much larger part of it than her brothers and sisters, on the basis that she had certain responsibilities for her younger brothers and sisters. By the 1930's, some Nauruans were becoming better educated and it seems that in some cases the more educated brother was given the land and expected to undertake responsibilities for his brothers and sisters. The present case appears to be one such.

The responsibilities of the child who received his or her parent's land were never defined although I have no doubt that Nauruan society recognised readily whether he was under taking his responsibilities properly and honouring his obligations to his brothers and sisters or whether he was not doing so. Doubtless social pressure was brought to bear on him if he was not doing so. Those obligations were, however, never enforceable by any action other than social pressure

I am satisfied that the respondent has obligations of the nature towards the descendants of his father, Dowaiti. Indeed, not only does he have such obligations but he had honoured them in the case of that branch of the family to which the appellants belong by giving money to two of the members of the family; his brother Samson, from the royalties for phosphate from those lands, has bought a car for another member.

In deciding the extent of his obligations the respondent can reasonably be expected to have regard for the extent of the needs of the members of the family and is clearly entitled to take into account in assessing those needs the amount of land already owned by those members, particularly any derived from the same source as the land received by the respondent from Dowaiti. The appellants' mother, Eonemen, although in fact the eldest sister of the respondent, was brought up by her grandmother, Dowaiti's mother, and upon her death inherited, as appears to have been common practice, directly from the grandmother; that is to say she received some of the land, which would otherwise have passed to Dowaiti and his two brothers. The respondent is entitled therefore, in my view, to consider that Eonemen's children, i.e. the appellants, had been provided for already to a considerable extent out of the lands coming down from Dowaiti's side of the family.

Susannah Capelle herself has been on bad terms with the respondent for over 40 years. She has admitted that, apart from bringing proceedings to try to make him give her a share in the land which he had received from Dowaiti, she did not ask him for anything. As I have already observed, he and Samson have given assistance to those members of Eonemen's branch of the family who asked him for it. I find, therefore, that he has, to some extent at least, honoured his obligations.

Mr. Adeang suggested that his obligations are in essence those of a trustee and that the rules of equity should be applied to enforce those obligations.

However, certainty as to beneficiaries is lacking. Furthermore, by virtue, until 1971, of section 9 of the Laws Report and Adopting Ordinance 1922-1967 and, since then, of section 3 and 4 of the Custom and Adopted Laws Act 1971, custom prevails over the imported principles and rules of equity. In this case the custom is that such obligations are not enforceable by any process of law, only by social pressure.

Mr. Adeang also suggested that there was a custom peculiar to the family that the lands should be held jointly by all the family. He instanced the alleged decision of Dowaiti and his two brothers to give their lands in Uaboe District to three of their sons jointly to manage for the family. The evidence of Dibwet Jose, one of the three sons, who was called as a witness by Mr. Adeang, was that there was no such decision. Furthermore, the separate ownership by Eonemen of some lands derived from Dowaiti's mother is inconsistent with such a custom.

The appeal is dismissed.