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Ikirir v Duburiya [1972] NRSC 1; [1969-1982] NLR (B) 39 (5 January 1972)

[1969-1982] NLR (B) 39

IN THE SUPREME COURT OF NAURU

Land Appeal No. 10 of 1971

IKIRIR

v.

DUBURIYA AND OTHERS

5th January, 1972.

Estate of Nauruan dying intestate - Administration Order No. 3 of 1938 - meeting of family - meaning of "family" - widow a member of the family.

E., a Nauruan woman, died intestate some time before the Second World War. She left surviving her five children, including D. D. died during the Second World War. The appellant, I., is the widow of D. E.'s estate comprised a number of portions of land. The Nauru Lands Committee decided many years ago who should inherit such of those portions as had already been identified and found to belong to E. In 1971 the Committee identified another of the portions, Atagadeto, and found that it had belonged to E. It then called a meeting of members of E.'s family, i.e. her four surviving children in accordance with the provisions of Administration Order No. 3 of 1938, in order to see if they could agree on who should inherit that portion. They agreed to share it equally among themselves. I. appealed on the ground that as D.'s widow she should have been included as a member of the family and that the agreement reached in her absence was invalid.

Held: (1) Although the ownership of the land by E. and its extent could not be finally decided at the time of E.'s death, the persons entitled to inherit from her any right she might have in it should have been decided at that time.

(2) Although "family" is used in Administration Order No. 3 of 1938 apparently with different meanings in different contexts, for the purpose of the provisions relating to the holding of a meeting of the family to see if agreement can be reached as to distribution of the estate of the deceased it includes the widow or widower of the deceased.

(3) If the family meeting had been held at the proper time, D. would have been alive and able to attend. If, as was likely he had obtained a share in the land, I. as his widow would have been entitled to attend the family meeting in respect of his estate and, in default of agreement being reached at that meeting, to have a life interest in a share of his estate. She was, therefore, entitled to attend the family meeting in respect of E.'s estate in place of D.

Appeal allowed

K.R. Adeang for appellant
B. Dowiyago for respondent

Thompson C.J.:

This appeal relates to portion No. 30 phosphate land, named 'Atagadeto' in Anetan District. By a determination published in Gazette No. 39 of 1971 the Nauru Lands Committee decided that the portion belongs to the respondents and that the appellant has no share in it.

Land called 'Atagadeto' belonged to Eimwaeong who died before the Second World War. She left a number of children surviving her; one of them was Dengait, the husband of the appellant. The respondents are all children of Eimwaeong, except for Akiwib who is a grandchild. Dengait died during the Second World War, i.e. several years after the death of Eimwaeong.

Although land called Atagadeto is shown in the Land Registration Book of 1928 as belonging to Eimwaeong, it was identified and surveyed only this year. (Indeed, the identification was disputed and is the subject of Land Appeals Nos. 11, 15 and 16 of 1971 which are also before this Court during these sessions). It is not disputed that before this year the question of who should inherit the land from Eimwaeong had not been decided by the Nauru Lands Committee, although the inheritance of some at least, of her other land was decided a long time ago.

When the land had been identified, therefore, the Committee still had to determine the inheritance. In order to do so they applied the provisions of Administration Order No. 3 of 1938 and called a meeting of the family of Eimwaeong. The appellant was not invited to attend. The respondents agreed to the land being distributed among themselves and the Committee determined its ownership accordingly. Mr. Adeang, who represents the appellant in these proceedings, has submitted that the appellant should have been invited to attend the meeting as a member of the family and that, as she was not invited and did not attend, there was no proper agreement by the family.

Administration Order No. 3 of 1938 is an unfortunate example of a layman's drafting of legislation in respect of a matter requiring considerable drafting skill. Paragraph 3 reads as follows:-

"(3) If the family is unable to agree, the following procedure shall be followed:-

(a) In the case of an unmarried person the property to be returned to the people from whom it was received, or if they are dead, to the nearest relatives in the same tribe.

(b) Married - No issue, - the property to be returned to the family or nearest relatives of the deceased. The widower or widow to have the use of the land during his or her lifetime if required by him or her.

(c) Married - with children - the land to be divided equally between the children, and the surviving parent to have the right to use the land during his or her lifetime. When an estate comprises only a small area of land the eldest daughter to receive the whole estate and other children have the right to use the land during their lifetime."

The word 'family' is used without a definition and it is apparently distinguished in paragraph (3) from both 'nearest relatives' and 'widow'. But, if it is to be distinguished from nearest relative what meaning can it be given? It might be argued that 'nearest relatives' means persons outside the immediate family but the provisions of sub-paragraph (a) of paragraph (3) preclude this; those provisions have effect only if there is a 'family' which has not been able to reach agreement and it is inconceivable that persons outside the immediate family would take before members of the immediate family. Prior to 1938, it was apparently not uncommon for wives to inherit their husband's land. In some families the wives played a dominant role. I find it hard to believe that they were not included in the family meetings which originally the Chiefs and then the Lands Committee held in order to determine to whom deceased estates should pass.

There is a further reason, within Administration Order No. 3 of 1938 itself, for thinking that the person who drafted that order intended the widow to be included in the term 'family'. If she was not, the family would comprise only the blood relatives of the deceased and they could always prevent her obtaining a life interest in the estate by agreeing among themselves to exclude her. Would they ever in such circumstances fail to agree among themselves and so let her into a life interest under paragraph (3)(b)? The very existence of that sub-paragraph, however, presupposes such a possibility.

I am satisfied, therefore, that generally the widow of the deceased must be included as a member of the family for the purpose of the meeting held to try to reach agreement as to the distribution of her late husband's estate. In the present case, however, the position is more complicated. If the meeting of the family to try to agree on the inheritance of the land 'Atagadeto' had been held when it should have been held, i.e. immediately after Eimwaeong's death as part of a general meeting to determine the inheritance of all the property real and personal comprising her estate, the appellant's husband, Dengait, would have been entitled to attend; if he had not reached agreement with the others entitled to attend, the land 'Atagadeto' would have been shared between Eimwaeong's children, including himself. If a share of the land had passed to him, the appellant would have been entitled on his death to take part in the family meeting held to determine who should inherit it and, if no agreement had been reached, she would have had a life interest in the whole of Dengait's share of it.

It would be anomalous and unjust if, because the inheritance of the estate of Eimwaeong was not decided when it should have been but only 30 years later, the appellant were to have no standing at all in the matter. In order for justice to be done she should, as the person entitled in default of agreement to the contrary to take a life interest in Dengait's estate, have been afforded an opportunity to take Dengait's place at the meeting of the family even though she was not herself a member of Eimwaeong's family. This doubtless is an extension of the normal concept of the family but it is necessary if injustice is to be avoided in cases where, through a failure on the part of the Nauru Lands Committee or its predecessor to take the proper action at the correct time, a member of the family who should have been heard as to the inheritance has died without issue but leaving a widow or widower.

Since it is clear from the evidence of the respondent, Akibwib, that, if a meeting were held now, the other members of the family would not agree to the appellant's taking more than a life interest in the share of the land which would have been Dengait's and she would not agree to less, it would be pointless to return this matter to the Nauru Lands Committee for a meeting to be held. I shall order that the land be shared on the basis that there was no agreement and as though the distribution had taken place when it should have, i.e. immediately after Eimwaeong's death.

Insofar as the determination relating to portion No. 30 published in Gazette No. 39 of 1971 is a determination of the persons who are to inherit Eimwaeong's interest in phosphate land called 'Atagadeto' in Anetan District, the determination is varied so as to read:

Duburiya 1/5

Eduar 1/5

Epangatsi 1/5

Akibwib 1/5

Ikirir 1/5 (LTO)

The decision of this appeal does not relate to the identification of the land or its size. Whether Portion No. 30 is the land 'Atagadeto' which belonged to Eimwaeong and whether its boundaries are correct is a matter dealt with in Land Appeals Nos. 11, 15 and 16 of 1971.