Home | Databases | WorldLII | Search | Feedback Supreme Court of Nauru

In re Dogirouwa [1969] NRSC 2; [1969-1982] NLR (B) 9 (7 May 1969)

[1969-1982] NLR (B) 9

IN THE SUPREME COURT OF NAURU

Land Appeal No. 14 of 1969

Appellant: DOGIROUWA

7th May, 1969.

Written will of deceased Nauruan - no compliance with statute law - whether valid by customary law -requirements for validity by customary law.

Appeal against the decisions of the Nauru Lands Committee in respect of the estates of two deceased Nauruans. One of the deceased died intestate. The other dictated a will to a Chief as he was dying in Truk during the Second World War. The will was written down by the Chief. It was not signed by the deceased.

Held: The will was valid by Nauruan customary law.

Appeal allowed in part.

K.R. Adeang for appellant
Respondents in person

Thompson Ag. C.J.:

This is an appeal against the determinations of the Nauru Lands Committee in respect of two portions of land, Nos. 128 and 274 both named Amwareobwiden, in Yaren District. The determinations were published in Government Gazette Nos. 43 and 69 of 1966.

This land originally belonged to one of the parents of the appellant Dogirouwa's husband, Agiriowa. It was inherited by Agiriowa's eldest sister, Eirina. Eirina died in 1928 and the land was inherited by her daughter Eigugu. Eigugu died unmarried and without issue early in 1939.

During these sittings the Court has heard another appeal in respect of these two portions of land (Appeal No. 22) and has ascertained that, after Eigugu's death, the family held a meeting, as provided for in the Regulations Governing Intestate Estates (Administration Order No. 3 of 1938), and agreed that this land should be distributed to Agiriowa - ¼, Udibe (the brother of Agiriowa and Eirina) - ¼; Dedage (Eirina's maternal uncle) - ¼; and the parents of Dogitao - 1/8 each.

Subsequently Dedage died without issue and the two surviving brothers, Agiriowa and Udibe, inherited half of his share each. Agiriowa died in Truk in 1944 owning 3/8 of both portions of the land. Subsequently, in 1945, Udibe died in Nauru; he left no issue.

The appellant has given evidence that, on the day before his death, Agiriowa made a will leaving all his property in equal shares to the appellant and Gumaer. That will is before the Court (Exhibit 2).

It is necessary for the Court to decide whether or not the will is valid under Nauruan customary law. It does not conform with the requirements of English statutes apparently adopted by the Laws Repeal and Adopting Ordinance, 1922-1964; however, those statutes are adopted only so far as they are applicable to the circumstances of Nauru (section 13). Section 9 of the Ordinance provides that the institutions, customs and usages of the Nauruan are not affected by the other provisions of the Ordinance. There is no doubt that in the past verbal wills were recognised; this is evidenced by the request made by the Administrator in Administration Order No. 19 of 1923, to which one of the respondents directed the Court's attention, that written wills should be made in future. In a Land Appeal in 1955 (In re Meneng portions 286 and 315 and Yaren portion 133, ex the estate of Eidukiri) the Central Court accepted the validity of verbal wills and gave judgment for the beneficiary named in a verbal will.

I have no doubt, therefore, that by Nauruan custom verbal wills could validly be made and also written wills lacking the formality required by statute. I am satisfied that Exhibit 2 is the genuine will of Agiriowa written down for him by Chief Jose as he lay dying in Truk in August, 1944. I am also satisfied that under Nauruan custom it is valid to pass Agiriowa's estate to the beneficiaries named in it. Accordingly Agiriowa and Gumwaer are each entitled to be shown as the owners of a 3/16 share of both portions of land.

It appears that, when Udibe died, there was no meeting of the family to try to agree to the distribution of his 3/8 share of the two portions or, at least, that, if there was a meeting, there was no agreement. Udibe's share had then to be distributed in accordance with the provisions of paragraph (3)(a) of the Regulations governing Intestate Estates (Administration Order No. 3 of 1938), that is to his nearest relatives.

The nearest relatives by birth had all died already, that is Udibe's parents, his sister Eirina and her children and his brother Agiriowa. Agiriowa and the appellant had had no children. A child named Gumwaer had, however, been taken by them to Truk. The appellant claims that they had adopted him and that he was therefore entitled to succeed to Udibe's estate in the same way as a natural son of Agiriowa.

It seems quite likely that, even before the introduction of the Adoption of Children Ordinance, 1955-1966, a child who was recognised under Nauruan custom as having been fully adopted could inherit the property of his adoptive parents. Camilla Wedgewood in her Report on Research Work on Nauru Island (1936) page 23, says "I was told" that an adopted child can inherit from its adoptive parents. However, the use of the words "I was told" indicates that she was not fully satisfied on this point.

The appellant has admitted that the adoption was not registered. Reference to the Government Gazettes of the years shortly before the Second World War shows that a few adoptions were gazetted The only evidence supporting the alleged adoption is the appellant's own. It is unfortunate that she did not press for this matter to be determined in the years immediately following Udibe's death, when other people would have been available who could give evidence about the alleged adoption. As it is, she has allowed over 20 years to elapse and is now unable to call any independent witness on the matter. Having given the matter careful consideration I am not satisfied that she has proved that Gumwaer was adopted by Agiriowa so as to give him under Nauruan custom the status of a natural son for the purpose of succession.

I therefore find that Agiriowa died without leaving any issue and that Udibe's 3/8 share must pass to the respondents, who are the nearest surviving relatives.

One of the respondents referred to a number of Administration Orders, none of which is relevant except Administration Order No. 3 of 1938 which sets out the Regulations governing Intestate Estates. Those Regulations are subsidiary legislation; the Nauru Lands Committee Ordinance 1956-1963 is both a principal statute and later in time. Its provisions prevail over those of the Regulations where there is any conflict. I am satisfied that the Committee had jurisdiction to make the determinations against which this appeal is being taken.

In the judgment in Appeal No. 22 I stated that I would make a full determination of the ownership of the two portions of land, Amwareobwiden, portions 128 and 247, at the conclusion of the judgment in this appeal. I do so now. The portions are both to be shared as follows:

Dogitao Derame 1/4; Dogiriouwa Agirouwa 3/16; Gumwaer Jone 3/16; Etoe Debaiga 1/24; Deibaneb Dabwa 1/24; Eigaejoeo Tekaburoro 1/32; Eidouwea Derangatamo 1/32; Agnes Douwongo 1/32; Bibiana Kun 1/32; Odanga Agigo 1/96; Debeb Agigo 1/96; Agabin Agigo 1/96; Ebein Agigo 1/96; Abouke Dowadi 1/48; Noddie Mwea 1/48; Niddie Mwakin 1/48; Baugie Joseph 1/48; Ronnie Detogia 1/48; Charley Biang 1/96; Einow Biang 1/96.