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Giouba v Eidiatarab [1969] NRSC 3; [1969-1982] NLR (B) 1 (7 May 1969)

[1969-1982] NLR (B) 1

IN THE SUPREME COURT OF NAURU

Land Appeal No. 3 of 1969

GIOUBA AND EIDIATARAB
Appellants

7th May, 1969.

Written will - lack of signature of testator - will not necessarily invalid.

Appeal against a decision of the Nauru Lands Committee as to distribution of the estate of a deceased Nauruan. The petitioner alleged that the deceased left a written will which was valid by Nauruan customary law. A document was produced which purported to be the will of the deceased and bore what purported to be the signature of a Chief. It did not bear the signature of the deceased; it had on it the figures 1/12/31. The deceased died in Truk after the Second World War, i.e. between 1942 and 1945.

Held: (1) The fact that the will was not signed by the deceased did not necessarily make it invalid.

(2) The figures on the will appeared to indicate a date more than ten years before that on which the will was alleged to be made.

(3) The making of the will by the deceased had not been proved

Appeal dismissed.

Appi for the appellant
K.R. Adeang for the respondents

Thompson Ag. C.J.:

This is an appeal against the determination by the Nauru Lands Committee of the ownership of land named Atamwad, portion No. 128, in Uaboe District. The determination was published in Government Gazette No. 21 of 1967.

The appellants, an elderly couple, claim that Aria, the previous owner of a quarter interest in the land, gave it to them by will when he died. The Committee rejected their claim, did not accept the will as valid and determined that Aria's share in the land should be distributed among those entitled to succeed to his estate on an intestacy.

The will has been produced. The second appellant has given evidence of the circumstances in which it was made shortly before Aria's death in Truk during the Second World War. They have adduced evidence, given by the daughter of the late Chief Jose, that the will is in Chief Jose's handwriting.

There are two suspicious circumstances about the will. First, although allegedly made during the Second World War it bears the figures "1/12/31" which appear to refer to a date in 1931. Second, the appellants did not make any claim to the land until the Committee called them at the time when it was determining ownership of the land, presumably 1966 or 1967. This could be due to their lack of education and sophistication, which was very obvious when they were in Court, is none the less surprising.

The will is not signed by Aria, although it has his name written at the bottom, apparently by Chief Jose. As verbal wills were recognised under Nauruan customary law, the lack of a signature ought not necessarily to be fatal. On the other hand, when the will bears an incorrect date as well as is lacking a signature and the only evidence of its making is given by one of the beneficiaries, a very strong element of doubt arises.

Having considered the evidence very carefully, I am unable to take any different view from that taken by the Committee. I find that the appellants have not proved the validity of the will.

Accordingly, the appeal is dismissed.