[1969-1982] NLR (A) 173

IN THE SUPREME COURT OF NAURU

Miscellaneous Cause No. 5 of 1980

EPEDIEY HUBERT HEDMON

v

MIZPAH DETENAMO

21st August, 1980.

Nauruan land - intestate succession - paragraph 3(b) of Administration Order No. 3 of 1938 - rights of widower or widow.

Action for declarations as to the rights of a widower or widow in respect of the land comprised in the estate of his deceased spouse who died intestate. The defendant was a widower, the plaintiff a close relative of his deceased spouse. The plaintiff sought declarations:

(1) that the defendant's interest in the estate terminated upon his remarriage;

(2) that his interest in the estate does not extend to a right to receive any of the royalties in respect of the phosphate extracted from land comprised in the estate;

(3) that his interest is limited to such use of the land as he can show to be reasonably required of him;

(4) that his interest does not extend to a beneficial interest in the Nauru Land Owners Phosphate Royalties Trust Fund.

Held: (1) Administration Order No. 3 of 1938 is poorly drafted and its provisions are not clear. In construing it the Court must have regard to the fact that it has been in force for more than 40 years and that in that time the rights of many persons have been determined by the Nauru Lands Committee and, in respect of phosphate royalties, the Nauru Local Government Council on the basis of the construction which they have given to it. If that construction is legally possible, it should be preferred. If the community generally now considers that the provisions should be other than as the Court construes them to be, Parliament can legislate accordingly.

(2) If the natural meaning were given to the words "to have the use of the land during his or her lifetime if required by him or her", the effective control of the whole of the land, including the granting of leases for the mining of phosphate, by other beneficiaries could be deferred by him until after his death. Also there is an ambiguity whether or not "use" extends to mining and what rights, if any, the widower or widow is intended to have in the proceeds of phosphate mined on the land.

(3) The construction adopted by the Nauru Lands Committee and the Nauru Local Government Council, and generally accepted by the community, is that the widow or widower receives a share of the land comprised in the estate, that share being equal to the share of each of the other of the deceased spouse's closest relatives, and that he is entitled to receive a similar share of the proceeds of phosphate mined on the land during his lifetime. At the end of his lifetime his share is divided among the other beneficiaries in the same shares as each already has of the spouse's estate. That construction, although not strictly in accordance with the letter of paragraph 3(c) is practical and achieves the result apparently intended. Since a strict literal construction would produce a palpably wrong result, the construction adopted by the Nauru Lands Committee and the Nauru Local Government Council is proper and should be affirmed by the Court.

(4) A widower's or widow's interest in the deceased spouse's estate does not terminate on remarriage.

(5) The suggested limit on use of the land by the widower or widow to such as he can show to be reasonably required by him would be unworkable in practice and, as it is neither expressly or implicitly provided for, the court should not introduce it.

(6) The provisions of section 19 of the Nauru Phosphate Royalties Trust Ordinance 1968 are ambiguous. Until they have been resolved by legislative amendment of section 19, it would be premature to decide the issue raised by the application for the fourth declaration.

R. Degoregore for the Plaintiff
The defendant in person

Thompson, CJ.:

The wife of the defendant died several years ago. The Nauru Lands Committee decided upon the inheritance of her estate; an appeal to this Court against that decision was unsuccessful. By that decision the defendant was given a "lifetime only" interest in a share of his wife's estate. He has now remarried.

The plaintiff is seeking a number of declarations. First, she claims that the defendant's interest terminated on his remarriage. Second, she claims that a "lifetime only" interest does not include a right to receive any of the royalties in respect of phosphate extracted from the land. Third, she claims that the defendant's interest is limited to such use of the land as he can show to be reasonably required by him. Fourth, she claims that his interest does not extend to any beneficial interest in the Nauru Land Owners Phosphate Royalty Trust Fund. The first three of these claims depend upon the construction of paragraph 3(b) of Administration Order No. 3 of 1938. The fourth depends on the construction both of that paragraph and of section 19 of the Nauru Phosphate Royalties Trust Ordinance 1968.

Paragraph 3(b) of Administration Order No. 3 of 1938 is as follows:

"(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."

If this were new legislation, or legislation to which effect had been given only infrequently, I should approach the task of construing it simply by ascertaining the usual meanings of the words used and, if they made good sense, stating its effect accordingly. But over the past 42 years this legislation has been the basis of countless decisions relating to the estates of deceased Nauruans. The Nauru Lands Committee has been obliged to construe it in order to make those decisions; and the interests of many Nauruans in land today depend upon those decisions. The Committee's construction of it has been somewhat unusual; but the Committee has had an unenviable task because of the execrable drafting. Words are used with different meanings in different paragraphs and sometimes in different sub-paragraphs of the same paragraph. In the circumstances I consider that, in order not to disturb unnecessarily the existing proprietary rights of many persons who are not parties to these proceedings, the proper course for this Court to follow is to examine the manner in which the Nauru Lands Committee has given effect to the legislation and to see whether it can properly be construed so as to have that effect.

When a married Nauruan dies intestate leaving no issue but a surviving widow or widower, the Committee ascertains who are the most closely related members of the deceased's family. Often they are his brothers and sisters; sometimes they are cousins. Then, in respect of the deceased's proprietorial share in any piece of land (always an undivided share), the Committee allocates to each of those members of the family and the widow or widower an equal undivided share of that share, but with the widow or the widower taking his or her share only for the duration of his or her life. Upon his or her death, that share is automatically shared equally, in undivided shares, by all those who received equal undivided shares with him or her. Thus, if there are eight brothers and sisters, each of them and the widow or widower receives an undivided one-ninth share of whatever the deceased's share of any land was. The widow or widower holds that one-ninth share only during his or her lifetime; upon his or her death it does not form part of his or her estate but each brother or sister who received a one-ninth share with him or her receives a further one-eighth of that one-ninth share, bringing the share of each brother and sister up to one-eighth. Because the shares are undivided, none of those sharing can deal with the land otherwise than as agreed to by all the others having an undivided share in it. If it is phosphate land, the phosphate royalties are shared in accordance with the share each person has in the land; the widow or widower receives his or her share and is entitled to the corpus, not merely the interest on it.

It appears, from evidence given to this Court in land appeals over the past eleven years and from claims made in cases such as that concerning the estate of Chief Nobob which was eventually decided in 1938, that before Administration Order No. 3 of 1938 was made the rights of a widow or widower of an intestate deceased Nauruan were not clearly defined by Nauruan custom. In some instances he or she appears to have received nothing, but in other cases to have received some of the estate as full beneficial owner. The latter cases appear to be inconsistent with what appears to have been the general principle of Nauruan customary law that land must "stay in the family", unless taken by conquest. But that principle was not of universal application; for instance, some alienation of land inter vivos to persons outside the family appears to have been permitted. It seems that in 1938, when he made Administration Order No. 3 of 1938, the Administrator sought to give effect so far as he could to Nauruan custom but to define rights which were ill-defined by that custom. Unfortunately he did not use clear language and he left Nauru shortly after making the order, before he was able to give clear guidance to the Lands Committee on how to give effect to its provisions.

In 1938 phosphate royalties were much smaller than today and the rate of extraction of phosphate lower. In earlier times the Nauruans appear to have valued land on topside more for its tomano and other trees than as a source of phosphate royalties. Possibly that accounts for the failure of the Administrator to distinguish between coconut land and phosphate lands in the Order. Be that as it may, it seems that the Administrator intended to give the widow or widower a right do use all and any of the land of the deceased, not only a part of it. It seems likely also that he had in mind some combination of the English common law concepts of life interest and usufruct but quite what interest he had in mind is not clear. It could not be full occupational rights because, if the deceased owned only an undivided share in the land, he would have had no full occupational right to be transmitted to any successor. The same difficulty arises in respect of a right to plant crops or to take the produce of the land. It seems unlikely that the Administrator intended the widow or widower to have a right to the corpus of all the royalties for phosphate mined on the land to the exclusion of the rights of the other beneficiaries; the language used is not appropriate for that. On the other hand, it is unlikely that he intended to exclude the widow or widower entirely from all benefit from use of the land for the mining of phosphate. One possible intention was that the widow or widower should have a right to have the whole of the deceased's share of the phosphate royalties from the land invested and to receive the whole of the interest on it during his or her lifetime. But then the corpus of the moneys invested would be tied up and unavailable to the other beneficiaries until after the death of the widow or widower. Also problems would arise over possession, control and investment of the corpus. In those circumstances, it was not unreasonable for the Nauru Lands Committee to give effect to the provisions of paragraph 3(b) of Administration Order No. 3 of 1938, as it has, in a manner which, although not strictly in accordance with its letter, is practical and achieves substantially the result apparently intended. That being so, I decline to make the declaration sought in paragraph 1(ii) of the Statement of Claim, that is to say that a widow or widower is not entitled to receive phosphate royalty payments in respect of phosphate mined from land in which he or she has a "lifetime only" interest.

With regard to the first declaration sought, that the "lifetime only" interest of a widow or widower in any part of the estate of a deceased Nauruan lapses on his or her remarriage, paragraph 3(b) of the Order does not expressly provide for that. Is it, therefore, to be implied from the manner in which the provision is expressed or the nature of the provision itself? In my view, it is not. If that had been the Administrator's intention, he could easily have used the word "widowhood" instead of the word "lifetime". The social purpose of the legislation may be seen as protection of the widow or widower from destitution; but remarriage does not necessarily remove the need for such protection. So the social purpose argument is not sufficiently cogent to outweigh the considerations based on the language used. Accordingly I decline to make the declaration sought in paragraph 1(i) of the Statement of Claim.

With regard to the declaration sought in paragraph 1(iii) of the Statement of Claim, namely that the widow or widower must show the other beneficiaries that his or her use of the land is reasonable, there is no basis for importing such a condition, certainly in respect of the receipt of phosphate royalties. I decline to make the declaration.

The fourth declaration sought concerns the question whether a person having a "lifetime only" interest in land is a "beneficiary" for the purposes of section 19 of the Nauru Phosphate Royalties Trust Ordinance 1968. This matter was not fully argued by either party to these proceedings. Until 1995 no person is entitled to receive any benefit from the Nauru Phosphate Owners Royalty Trust Fund. The provisions of section 19 as to which persons are to receive shares in the interest on the moneys in the Fund after 1st July, 1995, are ambiguous. A decision as to what the provision ought to be needs to be made by the Cabinet; then clear legislative provision needs to be drafted to replace the existing provision; and the legislation needs to be presented to Parliament and, if it satisfies Parliament, to be enacted. I should certainly hope that the existing provisions of section 19 are amended well before 1995 so that the rights and interests of beneficiaries, and who the beneficiaries are, is made absolutely clear. No useful purpose would be served by this Court making any declaration at this time as to the effect of the existing provisions of section 19. I decline, therefore, to make the declaration sought in paragraph 2 of the Statement of Claim.