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Duburiya v Agoko [1973] NRSC 2; [1969-1982] NLR (B) 74 (4 May 1973)

[1969-1982] NLR (B) 74

IN THE SUPREME COURT OF NAURU

Land Appeal No. 6 of 1973

D. DUBURIYA AND ANOTHER

v.

BERTHA AGOKO

4th May, 1973.

Will of deceased Nauruan - family agreement to disregard will - beneficiary under the will not party to agreement - agreement without effect.

Estate of deceased Nauruan - wife of member of Nauru Lands Committee a possible beneficiary - the member should take no part in proceedings.

M. died in about 1956 leaving a written will, under which B. was the sole beneficiary in respect of part of M.'s estate. M.'s family met and agreed that the will should be disregarded. The Nauru Lands Committee decided that effect should be given to the will. B.'s husband was a member of the Nauru Lands Committee. The appellants claimed that the decision of the Committee was invalid because he took part in its deliberations. In fact he did not do so.

Held: Administration Order no. 3 of 1938, which provides for the family of a deceased Nauruan to meet in order to see if agreement can be reached on the distribution of his estate, applies only to the estates of Nauruans who have died intestate. The family cannot, by agreement among themselves, cause the will to be disregarded (unless, perhaps, they are the only beneficiaries under it).

By Court: If B.'s husband had taken part in the deliberations of the Committee, it would have been improper. However, as the Committee had only to give effect to a decision reached by the Committee in 1956 before he was a member of it that M.'s will was valid, his participation could not have affected the decision, even if he had participated.

Appellants not represented; second appellant, J. Akibwib, present; Respondent not represented.

Thompson C.J.:

This appeal relates to a portion of phosphate land, Atabio, portion no. 337 in Anibare District. The Nauru Lands Committee, in a determination published in Gazette No. 5 of 1973 (G.N. No. 20/73), decided that the portion previously belonged to Mweiya, a two-thirds share, and Eidamwariro, a one-third share, and that it now belonged to Bertha Agoko, a two-thirds share, and Eimankomwi Aliklik, a one-third share. The ownership of the land by Mweiya and Eidamwariro, and its extent, are the subject of other appeals. In this appeal the appellants are concerned only with Mweiya's share, if in fact he did own a share. The appellants have not sought to show that they are entitled to Eidamwariro's share, if she had one. As the Nauru Lands Committee's decision that Bertha Agoko now owns a two-third share was made on the basis that under Mweiya's will she was the sole beneficiary in relation to that land, the one-third share which it was decided now belongs in Eimankomwi is not in dispute in these present proceedings.

The will to which the Nauru Lands Committee gave effect in awarding all of Mweiya's share in Atabio to Bertha Agoko was produced to the Court by a member of the Nauru Lands Committee from the Committee's archives. It provides that Bertha Scotty (now Bertha Agoko) is to have Atabio and states that the bequest was made because she looked after Mweiya during his illness.

In the grounds of appeal the appellants refer to a family meeting held in 1972 at which the family agreed not to abide by the will. No evidence was led to prove this and it appears that only the two appellants approached the Nauru Lands Committee about the matter. However, where there is a valid will, it is not to be set aside because of a family agreement to that effect less the beneficiaries agree also. Administration Order No. 3 of 1938, which provides for distribution of an estate in accordance with any agreement reached by the family of the deceased person relates only to the estates of persons who have died intestate. When there is a will, the Nauru Lands Committee has first to decide whether it is valid or not. If it is valid, there is no intestacy and, subject to any agreement by the beneficiaries to any variation of its terms, the estate must be distributed in accordance with it. If it is found to be invalid, only then does the question arise whether the family can agree on how the estate should be distributed. In order to decide whether or not a will is valid, the Nauru Lands Committee should hear all available evidence and in particular anything alleged by members of the family opposing its acceptance as a valid will.

In this case the member's of Mweiya's family were heard by the Nauru Lands Committee in 1956 on the question whether the will was valid or not. It appears from the minutes recorded in the Committee's minute book at that time that some members of the family agreed that it should be accepted as valid while others wished it to be rejected. No agreement as to its validity was reached at that time. In 1964 the Committee had to determine the distribution of certain portions of land which formed part of Mweiya's estate. It then published a determination relating to the whole of Mweiya's estate (Gazette No. 49 of 1964). It decided that any land owned or shared by Mweiya which had been devised by his will should be distributed in accordance with the will. The second appellant in these proceedings, J. Akibwib, appealed against that decision. The appeal was heard by the Central Court; its decision, dismissing the appeal and confirming the Committee's decision, was published in Gazette No. 10 of 1965.

The appellants now seek to have that decision of the Central Court set aside on the ground that one of the three members of the court, Mr. J.D. Audoa, was a witness of the will and, therefore, not independent. In my view this Court has no power to set aside the judgment of the Central Court. Article 88 of the Constitution provides that the judgments and orders of that Court have the same force and effect as if they had been delivered or made by this Court. This Court cannot, generally, set aside or alter its own final judgments; it cannot, therefore, set aside a final judgment of the Central Court such as that given in this instance on the merits of the case after a full hearing of an appeal. Even if it were possible to set aside the judgment I should not be willing to do so. Nauruan custom was for wills to be witnessed by the Chiefs and other leaders of the community. They acquired no interest in the estate by witnessing a will. It has not been alleged that Mr. Audoa had any reason to favour the beneficiaries named in the will. Certainly it would have been better if some other person could have taken his place on the bench for the hearing of the appeal, as he might have been required to give evidence. But it cannot be said that he had any personal interest in upholding the validity of the will if it should not have been upheld.

The judgment of the Central Court in that appeal decided the issue which the appellants now seek to have decided in another manner. The issue is res judicata. Mweiya's share of the land Atabio, if he in fact had a share, must be distributed in accordance with the terms of his will, that is to say it must pass to Bertha Agoko alone. Accordingly the appeal must be dismissed.

Before closing this judgment I should refer briefly to an allegation made by the appellants that there was a serious impropriety in the manner in which the Nauru Lands Committee reached its decision in respect of Atabio published in Gazette No. 5 of 1973, namely that Bertha Agoko's husband, who is a member of the Committee, took part in its deliberations. In this particular case the Committee was bound by the Central Court's decision in 1965, as Mr. Depaune has pointed out, to reach the decision which it did. It would, nevertheless, have been most improper for the Committee to have allowed Mr. Agoko to take part in its deliberations on the matter. In the evidence of notes made in the minute books I am satisfied that in fact he did not take part in those deliberations.

This appeal is dismissed.