[1969-1982] NLR (B) 17

IN THE SUPREME COURT OF NAURU

Land Appeal No. 4 of 1970

JOHN AREMWA AND OTHERS

v.

THE NAURU LANDS COMMITTEE

11th June, 1970.

Estate of deceased Nauruan - oral will - non-Nauruan to take land under will - whether permitted by Nauruan customary law.

Appeal against a decision by the Nauru Lands Committee not to include the first appellant, J., as a beneficiary entitled to share in lands comprising the estate of a deceased Nauruan. J. was Gilbertese by birth. After his father's death his mother married A., a Nauruan. A. accepted J. as member of his family but did not formally adopt him. J. has not become a Nauruan under the provisions of the Nauruan Community Ordinance 1955-1966. A. died in 1968; on his death-bed he made an oral will, which included provision for J. to receive a share of his estate. The other beneficiaries all agreed to his doing so but the Nauru Lands Committee ruled that J., not being a Nauruan could not receive land in Nauru as a beneficiary under the will of a deceased Nauruan. J. and all the beneficiaries appealed against that ruling.

Held: By Nauruan customary law a person who is not Nauruan cannot receive land in Nauru as a beneficiary under the will of a deceased Nauruan.

K. Aroi for the appellant
V. Eoaeo for the respondent

Thompson C.J.:

This is an appeal against the determination of the Nauru Lands Committee, published as Gazette Notice No. 211 of 1969, in respect of the succession to all the portions of land owned by Aremwa Reidi. Normally it is inappropriate that an appeal should be heard before the determination of the ownership of specified portions is made as the rights of the parties may differ in respect of different portions. However, Mr. Eoaeo, for the respondent Committee, informed the Court that the same consideration applied in respect of all portions and the evidence has made it clear that that is so.

This appeal is of a rather unusual nature. The beneficiaries in whose favour the Nauru Lands Committee made the determination wish the first appellant to be given an equal share with each of themselves and have joined him as co-appellants. The reason he has not been awarded a share by the Committee is that he is not a Nauruan.

The first appellant is the son of Aremwa's widow by a former marriage. His father and mother are Gilbertese. He was accepted by Aremwa as part of his family and took Aremwa's name but was never formally adopted by him. He has never become a Nauruan, as defined in the Nauruan Community Ordinance 1955-1966.

Undisputed evidence has been given by the first appellant's mother and by Mr. Aroi, a Member of Parliament, that Aremwa shortly before his death called for Mr. Aroi to come and informed him of his dying wishes that the appellant and a son named Sam should receive shares of his property when he died. I have no doubt that the Nauru Lands Committee is normally bound to distribute a deceased person's estate in accordance with his dying wishes, certainly if the details of those wishes are agreed to by the members of his family. Mr. Depaune and Mr. Eoaeo have given evidence, however, that that obligation does not exist when the deceased person's wish is that someone outside his family or a non-Nauruan should inherit land. They assert that in those circumstances Nauruan custom requires that the land should be distributed only among Nauruans who, if they wish to share it with a non-Nauruan to comply with the wishes of the deceased, must apply under section 3 of the Lands Ordinance 1922-1967 for the written consent of the President for them to transfer that share to him.

Mr. Aroi stated that he did not accept that the Nauruan custom as 	outlined by Mr. Depaune and Mr. Eoaeo was correct but was unable to state positively that it was incorrect or give any example of a non-Nauruan or a person outside the family of a deceased person being awarded a share of his estate by the Nauru Lands Committee or its predecessors, the Lands Committee and the Council of Chiefs. Accordingly I adjourned the appeal for nine days to give the appellants an opportunity to make enquiries and, if they could do so, to adduce evidence of examples of non-Nauruans and persons outside a deceased person's family being awarded a share of his estate without the written consent of the President or, before Independence, of the Administrator.

When the hearing recommenced, the appellants called two witnesses. The first of them was an old man named Gaudo who was Gilbertese by birth but had been brought to Nauru in the early years of this century by an aunt who was herself a Nauruan. He gave evidence that she brought him here to look after her because she had no son and that she adopted him, although without formality. He said that he inherited her land under her oral will but that before then, at her request, he had renounced his Gilbertese citizenship and obtained Nauruan citizenship. The second witness was a 58-year-old Nauruan, Mr. Heine, who stated that he knew Nauruan custom and that it permitted a Nauruan to give his land to a non-Nauruan while he was alive and to leave it by will to a non-Nauruan. The only instance he cited of a non-Nauruan receiving land under a will was Gaudo. He gave two instances of non-Nauruans being given land while the owners were alive.

In my view, the circumstances in which Gaudo inherited the land are as consistent with his having been accepted as Nauruan by the Council of Chiefs as they are with his having inherited the land as a non-Nauruan. The history of Nauru is full of instances of non-Nauruans having been adopted into the Nauruan community and thereafter accepted as Nauruans. Before the Nauruan Community Ordinance 1955-1966 was enacted there was no statutory basis for this; that Ordinance now provides such a basis.

The two instances of gifts of land to non-Nauruans of which Mr. Heine gave evidence are not inconsistent with the principles stated by Mr. Depaune and Mr. Eoaeo; the transfer to Lakinabol just before the Second World War required the consent of the Administrator under section 3 of the Lands Ordinance 1-2-1967 and it is quite probable that before giving his consent to the transfer he consulted the Lands Committee. The gift to William Harris was made at the time of the German administration of Nauru; the circumstances are not known and again it is quite possible that the consent of the Chiefs was obtained before the gift took effect.

The fact that the appellant has not been able to adduce any evidence to establish that a person who was definitely not accepted as a Nauruan inherited land or received it under a will supports the contention of Mr. Depaune and Mr. Eoaeo that non-Nauruans cannot inherit land or take it under a will and that they can receive land only by way of transfer approved by the President under section 3 of the Lands Ordinance.

Accordingly while I have some sympathy for the first appellant, I an unable to find that he has shown that this appeal should be allowed. Provision does exist, as I have already pointed out, under the provisions of the Nauruan Community Ordinance, for non-Nauruans who have lived here for a long time and become part of Nauruan society to be admitted as members of the Nauruan Community. It appears that the first appellant has not made any application under that Ordinance. Before finally dismissing this appeal, I wish to know whether or not he would make such an application if a further adjournment were granted. If he applied and his application were successful he would then of course be entitled to be included with the other appellants as a beneficiary of Aremwa's estate.

There is also one further matter to which reference must be made. Mr. Depaune has said that, if a son of Aremwa named am is alive, he would be entitled to a share of Aremwa's estate. Nei has given evidence that Same is alive. Even though, therefore this appeal must be dismissed in so far as it relates to the first appellant's right to share in the estate (unless he admitted into the Nauruan Community), the determination must be set aside and the matter referred back to the Nauru Lands Committee to investigate Sam's rights.

Before making a formal order I wish to know whether the first appellant intends to apply for admission to the Nauruan Community if the making of the order is delayed to enable him to	 do so and for his application to be dealt with by the Nauru Local Government Council.