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Daniel v Cook [1971] NRSC 2; [1969-1982] NLR (B) 33 (14 April 1971)

[1969-1982] NLR (B) 33

IN THE SUPREME COURT OF NAURU

Land Appeal No. 1 of 1971

D. DANIEL

-v-

P. COOK AND OTHERS

14th April, 1971.

Estate of deceased Nauruan - Administration Order No. 3 of 1938 - family agreement - some land comprised in estate not yet identified and gazetted - agreement binding in respect of distribution of whole estate, including such land.

Application for leave to appeal out of time against a decision of the Nauru Lands Committee in respect of the ownership of certain portions of land. D. died during the Second World War. A family meeting was held as required by Administration Order No. 3 of 1938 and, after several adjournments, agreement was reached as to the distribution of D.'s estate. The Nauru Lands Committee then published in the Gazette notices showing the ownership of such part of the land comprised in D.'s estate as had been identified and gazetted as belonging to D. Notice of the agreement was not published, nor was notice of the distribution of other land comprised in D.'s estate which had not yet been identified and gazetted. In 1958 the Nauru Lands Committee determined the identity of three portions of land as land which had belonged to D. Without holding any further meeting of the family the Committee published in the Gazette a notice showing the ownership of those portions in accordance with the distribution of D.'s estate agreed upon by the family soon after the Second World War. The application before the Court was to declare void the decision in respect of the ownership of those three portions on the ground that the agreement did not relate to those three portions and a new family meeting should have been held to see whether agreement could be reached about them.

Held: (1) Although the fact of the family agreement soon after the Second World War was not published in the Gazette, it was established by the evidence that an agreement was in fact reached.

(2) Although an agreement as to the distribution of the estate of a deceased Nauruan is not conclusive as the ownership of any land which apparently forms part of the estate but has not yet been identified as having belonged to the deceased, it is conclusive as to the distribution of the whole of the estate. Consequently, when a portion of land is identified as having belonged to the deceased, and thus as forming part of his estate, it passes to the beneficiaries agreed upon in the shares agreed upon.

Applicant in person
Respondents in person

Thompson C.J.:

This is an application for special leave to appeal against the determinations of the Nauru Lands Committee published in Gazette No. 13 of 1958 in respect of three portions of land, 'Atamiriro' coconut land, in Buada District, 'Aebure' coconut land, in Ewa District and 'Aemwar' phosphate land, in Ewa District.

In its judgment in Land Appeal No. 15 of 1970, this Court referred to the provisions of section 7 of the Nauru Lands Committee Ordinance 1956-1963 relating to appeals against the determinations of the Committee. It noted that there is no express provision authorising the extension of the time for appealing beyond 21 days and that, although Knox-Mawer C.J. had given such leave during the first sessions of the Court in 1968, the circumstances in which it could properly be given were restricted to cases where there had been such gross irregularity in the proceedings of the Committee that its determination was in fact a nullity.

In this present case the applicant asserts that there was such an irregularity. He alleges that the Committee failed to hold a family meeting about the inheritance of Dabe's half-share of each of the three portions and gave interested parties no opportunity to be heard on the matter before the determinations were made. He pointed out that, as the parties were not aware that the determinations were being made, they would not have been expecting the notice published in the Gazette and would have been likely to miss seeing it. Thus their opportunity of appealing within 21 days of that publication would have passed before they became aware that it existed.

Evidence of the Committee's records has been given by a present member of the Committee. It appears that no meeting of the family was held immediately prior to the determinations published in 1958 in respect of the three portions. The respondents do not seek to assert that any family meeting was held then. Similarly it appears that none of the interested parties had an opportunity to be heard in the matter immediately before the determinations were made.

Those determinations, however, were made some 14 or 15 years after Dabe's death and it is the respondents' case that the distribution of Dabe's estate had been settled before 1950. Administration Order No. 3 of 1938 requires that, when any Nauruan has died, a meeting of the members of his family should be held to try to reach agreement on the distribution of his estate. If agreement is reached, that is then binding. In order that the land titles records in the Department of Lands and Survey can be kept up to date and correct, it is desirable that the fact of the agreement and the details of the portions of land to which it relates should be published in the Gazette. Those portions are likely to fall into two categories, portions of which the boundaries have been determined and which have been surveyed and numbered, and portions not yet surveyed and numbered. In respect of the first of these categories the family agreement is conclusive of the ownership; a list of those portions showing their names, Districts and numbers and also the names of the new owners as agreed should be published in the Gazette. In respect of the second category, the agreement is conclusive of the rights of persons claiming the portions as beneficiaries of the estate of the person deceased but is not conclusive of their rights of ownership as against other persons claiming title otherwise than as beneficiaries of his estate. A separate list of the names of these portions and the Districts in which they are alleged to be situated should be published.

Unfortunately, in the past details of family agreements were not always published in the Gazette. When they were published, they did not show the details of the estate. The fact that they were not published, however, does not affect the validity of the agreements reached. Paragraph (4) of Administration Order No. 3 of 1938 requires the publication in the Gazette of the Committee's determination that the deceased owned the land distributed as his estate by the agreement before the agreement is conclusive of the new ownership resulting from the distribution. It specifically recognises that the details of the distribution of the estate may not be published in the Gazette. Doubtless a lot of existing uncertainty about the ownership of some Nauruan lands could have been avoided if, when the families agreed about their distribution, the details had been published. It is unfortunate that Administration Order No. 3 did not make such provision and it is to be hoped that in future, although not strictly required by statute, the full details will be published by the Nauru Lands Committee. However, for the purposes of these proceedings what is important is that a family agreement about the inheritance of the estate of a deceased Nauruan, once reached and whether published or not, is conclusive of the rights of persons claiming as beneficiaries. When any determination has to be made by the Nauru Lands Committee thereafter about any portion of land comprised in the estate, there is no need to hold any further meeting of the family of the deceased in order to determine to whom the deceased's interest in the land has passed.

If, therefore, in the present case there was agreement before 1950 by Dabe's family about the inheritance of Dabe's estate, no further meeting of the family needed to be held in 1958 before the determinations were made to which the present application relates. The applicant denies that any agreement was reached. However, he called as a witness one of the respondents, Jockinal. Jockinal gave evidence that some time after the war, but before 1950, the family eventually agreed that Dabe's estate was to be divided into four shares, the surviving sister, that is the applicant's mother, Margaretha, receiving one share and the children of the three deceased sisters receiving the three shares which their mothers would have received if they had been alive. He said that the members of the family present, including Margaretha and himself, then signed the Lands Committee's book. Jockinal, although a respondent, was put forward by the applicant as a witness in support of his case. His daughter stays with Margaretha and he himself is provided with food and has his clothes laundered by Margaretha. In the witness-box he showed no signs of ill-will towards the applicant or Margaretha. He appeared truthful.

Margaretha in her evidence denied that she signed the Lands Committee's book. However, she admitted that the family meeting, which started in 1944, continued after the war and that, although some members of the Committee favoured her claim that she alone should inherit all Dabe's estate, the Head Chief, Detudamo, took the opposite view that all the family should share in it and eventually persuaded all the members of the Committee to adopt his view.

It seems that the family meeting had continued throughout with a view to obtaining agreement with the assistance of the members of the Lands Committee. Unfortunately some of the record books of the Committee are missing, including the one with the details of those meetings. I regard it as significant that, although Margaretha apparently regards the distribution of the estate as having been decided by the Committee after Detudamo had persuaded it not to accept her claim, no notification of any determination was published in the Gazette. Taking this into account, together with the evidence of Jockinal and Margaretha, I am satisfied on a balance of probabilities that, when the Committee all eventually came round to Detudamo's point of view, the members of the family, including Margaretha, agreed, possibly in Margaretha's case with some reluctance, to Dabe's estate being shared in the manner stated by Jockinal. If it had been otherwise, it is inconceivable that Cook D. would have agreed subsequently to Dougouge's estate being similarly shared, as clearly he did.

I find, therefore, that there was not any irregularity in the proceedings of the Nauru Lands Committee which led to the three determinations to which this application relates. The determination in respect of the portion 'Aemwar' was based on an incorrect understanding of the ownership of the land prior to Dabe's death; the error was corrected by a determination published in Gazette No. 48 of 1961. Accordingly, the application for special leave to appeal in respect of these three determinations is dismissed.