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Akepae v Detanamo [1978] NRSC 3; [1969-1982] NLR (B) 143 (16 January 1978)

[1969-1982] NLR (B) 143

IN THE SUPREME COURT OF NAURU

Land Appeal No. 7 of 1977

EIDUBWE AKEPAE

-v-

MIZPAH DETANAMO

16th January, 1978.

Estate of deceased Nauruan - intestacy - Administration Order No. 3 of 1938 - para. (3)(b) - failure by husband to support deceased - husband's rights under para. (3)(b) not affected.

M., the husband of the deceased, allegedly deserted her and failed to support her towards the end of her life; but there was no divorce or formal separation. The Nauru Lands Committee decided that he was entitled, under the provisions of para. (3)(b) of Administration Order No. 3 of 1938 to a life interest in the deceased's estate. One of the appellant's grounds of appeal was that M. was not entitled to any interest in his wife's estate because of his alleged desertion and failure to support her.

Held: The provisions of para. (3)(b) of the Administration Order No. 3 of 1938 are unambiguous in the matter; mere desertion or failure to support does not deprive a husband of his entitlement to a life interest in his deceased wife's estate.

D. Gioura for appellant
Respondent in person

Thompson C.J.:

So far as the first ground of the appeal is concerned i.e. that in spite of the provisions of regulation (3)(b) of Administration Order No. 3 of 1938 the respondent as widower of the deceased should not have a life interest in the deceased's estate because he had deserted her and failed to support her, the appeal must fail. The Administrative Order is quite clear. It is not alleged that the marriage had been dissolved; the respondent, if the facts alleged are true (and this Court has not heard evidence yet on which it can decide that question) nevertheless is the widower and entitled to a life interest by reason of regulation (3)(b).

If that regulation is contrary to what the Nauruan community consider it should be, the remedy lies in their hands to lobby their members of Parliament to change the law. Custom is overridden by statute and, if it is the wish of the Nauruans that custom should prevail, it will be necessary to provide for this by statute, i.e. by Act of Parliament; in that case the law should be clearly stated as, after 40 years, it will probably not be possible for this Court to ascertain what the custom was before the regulations were made.

This Court will, therefore, not hear evidence on the first ground and, insofar as it is based on that ground, the appeal must fail.