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Diema v Leeman [2009] NRSC 21; Land Appeal No 6 of 2008 (8 August 2009)

IN THE SUPREME COURT OF NAURU

Land Appeal 6/2008

BETWEEN:

GERALDINE DIEMA (nee Amwano) & Ors
Appellants

AND:

JUANITA LEEMAN & Ors
NAURU LANDS COMMITTEE
Respondents

Mr. Rueben Kun for appellants
Mr. Pres Nimes for 1st Respondents
Mr. Robert Kaierua for 2nd Respondents

Date: 8 August, 2009.

DECISION (EX-TEMPORE)

Appeal from a decision of the Nauru Lands Committee.

The deceased died intestate. He had been lawfully married and had five children by that union but for 30 years before his death he lived in a de facto relationship with another lady and had children by her.

After his death the family not being able to agree on a distribution of the estate, the Nauru Lands Committee decided that all the children of the deceased, legitimate and illegitimate should share in the estate. The appellants dispute that decision and rely on the Regulations governing

Intestate Estates made by Administration No. 3 of 1938 pursuant to section 4 of the Native Administration Ordinance No. 17 of 1922:-

"(3) If the family is unable to agree, the following procedure shall be followed:-

......(c) Married – with children – the land to be divided equally between the children, and the surviving parent to have the right ............"

Mr. Nimes argued most persuasively that the Nauru Lands Committee has often decided that all children, legitimate and illegitimate, should share in an estate: that the Regulations were made over 70 years ago, are no longer in conformity with current mores, should not be strictly interpreted and, if strictly interpreted, will cause hardship.

Mr. Kun, supported by Mr. Kaierua for the Nauru Land Committee, had argued that pursuant to Regulation (3) (c) only legitimate children are to share in the estate.

On a strict interpretation of the Regulation I am of opinion that only legitimate children are to benefit -

"Married – with children – surviving parent." "Surviving parent" is governed by "married" at the beginning of the sentence and should be construed as a parent married to the deceased: "children" should be construed as children of the lawfully married parents.

The Nauru Lands Committee was in error in its decision.

The testator could have benefitted his other children by making a will but did not do so. That being so the Regulations must govern the distribution.

If the authorities upon consideration conclude that the Regulations are now out of date they should be repealed on amended. That is a matter for the Executive and Parliament. In the meantime the court is bound by the law.

The appeal is allowed and the matter is sent back to the Nauru Lands Committee for reconsideration in accordance with this decision.

Hon. Robin Millhouse QC
CHIEF JUSTICE