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Hedmon v Roland [1974] NRSC 2; [1969-1982] NLR (B) 112 (22 July 1974)

[1969-1982] NLR (B) 112

IN THE SUPREME COURT OF NAURU

Land Appeal No. 3 of 1974

TERESIA HEDMON AND OTHERS

v

FELICIA ROLAND AND OTHERS

22nd July, 1974.

Lands Ordinance 1921-1963 - section 3 - meaning of "transfer" - does not extend to devise of land by will.

O., a Nauruan woman, died leaving a valid will. By the will she devised certain land, which formed part of her estate, to the respondents. Section 3 of the Lands Ordinance 1921-1968 provides for it to be an offence for any person to transfer land without the written consent of the Administrator and that any such transfer is "absolutely void and of no effect". Neither C. nor anyone else had sought the permission of the President or any other person for the devise of the land to the respondents. The meaning of "transfer" in section 3 was raised as a preliminary issue.

Held: "Transfer" in section 3 of Lands Ordinance 1921-1968 means transfer inter vivos and does not extend to a devise by will.

K. Aroi for appellants
K.R. Adeang for respondents

Thompson CJ:

This decision relates to a preliminary issue raised by the Appellants, namely whether the determination of the Nauru Lands Committee which is the subject of this appeal is null and void because of failure to comply with the provisions of section 3 of the Lands Ordinance 1921-1968.

Section 3 of that Ordinance is as follows:

"3. (1) Any person, firm or company who, without the consent in writing of the Administrator, or a person duly authorized by the Administrator to give of, or for the granting of any estate or interest in any land, shall be guilty of an offence and shall be liable to a penalty not exceeding /10 (Ten pounds), or in default, imprisonment for a period not exceeding two months.

(2) Any transfer, sale, lease, contract or agreement made or entered into, in contravention of this section, shall be absolutely void and of no effect."

It is not disputed that the decision of the Nauru Lands Committee is that the estate of Othilia should be distributed in accordance with her will. Nor is it disputed that the consent of the President to that distribution has not been obtained, or even sought.

Mr. Aroi has submitted that, if effect is given to the Committee's decision, Othilia, by her will, will have transferred her lands to the persons named in it as beneficiaries; and the reference in section 3 to the Administrator must now be taken as a reference to the President, by virtue of Article 86(2) of the Constitution.

The latter of these submissions is apparently correct as there is no evidence that the responsibility for administration of the Ordinance has been assigned to a Minister. The first submission, however, depends upon the meaning which the word "transfer" has in section 3.

Mr. Aroi has asked this Court to have regard to the apparent intention of the Ordinance as a whole in order to construe section 3. He has suggested that the intention of the Ordinance is to protect the Nauruans from the risk of being, cheated into transferring their lands to non-Nauruans and so losing their heritage. I agree that, in order to construe one part of a statute, it is- usually necessary, to examine that part in the context of the whole statute. But having done so in this case, I am unable to accept Mr. Aroi's suggestion regarding the intention of the Ordinance was obviously intended in 1921 to facilitate the operation of the phosphate industry by the British Phosphate Commissioners. If section 3 did incidentally afford protection to the Nauruans, that was not its main purpose.

The word "transfer" is used in wide variety of ways in statutes and in transactions having an effect on persons' legally enforceable interests. Mr. Aroi has cited the case of Gathercole v. Smith [1881] UKLawRpCh 61; (1881) 17 Ch. D. 1 as authority for the proposition that the word should be given a very wide meaning. In that cap., at p. 7, James LJ. says "vow 'transfer' is one of the widest terms that can be used". But that statement was made in relation to the circumstances of that case, which concerned the question of what was meant by a pension not being transferable. The word is not always used with such a wide meaning and in order to decide it's meaning in any given instance it is necessary to examine the context in which it is used.

In section 3 of the Lards Ordinance it is used as one of a series of expressions relating to disposition of land, i.e. "transfers, sells, or leases, or enters into any contract for the sale, or lease of, or for the granting of any estate or interest in any land". Those other expressions all relate to inter vivos transactions. If the section had been intended to cover disposition by will, I should have expected the word "devise" to be used. In my view, having regard to the context of section 3 in the whole Ordinance, it is proper to employ the ejusdem generis rule to decide the proper meaning of "transfer" in that section. Having done so, I am satisfied that its meaning is limited to transfers inter vivos and that it does not extend to dispositions by will.

On this preliminary issue, therefore, the appellants are unsuccessful and their appeal, insofar as it is based on the ground that the Nauru Lands Committee's decision is null and void for lack of the President's consent, must be dismissed.