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Cappelle v Dowaiti [1972] NRSC 2; [1969-1982] NLR (B) 51 (7 January 1972)

[1969-1982] NLR (B) 51

IN THE SUPREME COURT OF NAURU

Land Appeal No. 19 of 1971

SUSANNAH CAPELLE AND OTHERS

v.

MWAREOW DOWAITI

7th January, 1972.

Nauruan land - dispute in time of German Administration - decided by German Administrator - decision revised in 1932 on application by child of one of the parties to the dispute - land awarded to that child alone - customary obligations owed by that child to the other children of that party.

Nauruan land - distribution by owner before death - most of land given to one child and a cousin jointly - customary obligations to other children imposed.

Ei. was the daughter of Ed. After Ed.'s death in the time of the German Administration there was a dispute over Ed's land. Ei.'s claim to it was unsuccessful. M. was the son of Ei. and D. Ei. died before 1928. After her death M. tried to recover Ed.'s land. In 1932 he was awarded it by the Lands Committee. No interest in the land was formally awarded to any of the other children of Ei. and D.; but M. sought their help in clearing the land after it had been awarded to him. D. died in 1940. Before he died he gave most of his land to M. and his cousin De., who was then the Head Chief. The appellants, the children of another child of Ei. and D., claim that M. was awarded the lands of Ed. as representative of all Ei.'s children and that D. gave his lands to M. and De. subject to an obligation they use it and any income from it for the benefit of the whole family.

Held: (1) The decision of the Lands Committee in 1932 awarding Ed.'s lands to M. must be regarded as final. Nevertheless, as Ei. did not make a will leaving her interest in Ed.'s land to M., the Lands Committee must have awarded him the land, as was not unusual at the time, subject to obligations to allow the other children of Ei. and D. to use the land and benefit from the income from it.

(2) The gift by D. of his lands to M. and De. was made subject to their accepting similar obligations in respect of it.

K.R. Adeang for the appellants
Respondent in person

Thompson C.J.:

The respondent is one of the nine children of Dowaiti and Eimangang. The appellants are the children of Eonomen, one of the sisters of the respondents. She died before 1928. Eimangang died before her. Dowaiti died in about 1940.

Eimangang was the daughter of Tsinaru and Ediaiago. Ediaiago owned certain land which, in the time of the German Administration, was awarded after her death to persons other than Eimangang, possibly to the relatives of Tsinaru, although they were claimed by Eimangang. After Eimangang's death Eonemen tried to recover these lands; she was not successful. After her death the respondent tried to recover them; in 1932 he succeeded. The decision given in the time of the German Administration was reversed and the land was awarded to the respondent.

Before Dowaiti died he gave all his land away; of his phosphate land only one portion was given to any of his children other than the respondent and it has been suggested that he gave that portion to them because he had received it subject to an obligation to give it to them. The rest of his phosphate land and most, if not all, of his coconut land Dowaiti gave to the respondent and his cousin Detudamo.

The appellants claim that the respondent recovered Ediaiago's land as representative for them, as their mother was entitled to inherit Eimangang's land, and that he has held it since then on trust for them. In respect of Dowaiti's land they allege that the respondent and Detudamo were given the land to use for the benefit of the whole family, for instance to raise money to pay school fees and to build houses.

The respondent denies that, when he recovered Ediaiago's land, he did so otherwise than on his own behalf. He admits, however, that he did ask other members of the family to clear some of it when it was first recovered; that, he says, occurred only once. He admits also that the land had not been left to him by his mother or his grandmother by will. He denies that Dowaiti's land was given to him and Detudamo otherwise than for their own sole use and benefit.

The decision of the Lands Committee must be regarded as final. However, in view of the history of the dispute over Ediaiago's land, it is difficult to see any basis on which the respondent could have claimed the land for himself alone. It had not been left to him by will. It seems that, at least before 1938, it was not uncommon before the Second World War for the whole of an estate to be awarded to one child but there are reasons for believing that in some of those cases obligations rested on that child to allow the other children to use the land and benefit from its income, subject to his having control and, possibly, to their keeping together as a family. Not only was there apparently no good reason why the respondent should inherit the land for his sole benefit to the exclusion of his brothers and sisters and their children but he actually called upon some of them to help him clear the land. From these facts I am satisfied that he did receive the land subject to certain obligations towards his brothers and sisters and their children. No doubt those obligations depended upon the customs of the Nauruans in force at that time. Those obligations were not owed to Eonemen's children only; the appellants have not proved that they or their mother were in any special position, different from that of the other brothers and sisters and their children. Whether the obligations were obligations of honour or obligations enforceable by proceedings before the Courts or any customary tribunal I am unable to ascertain; no evidence was adduced on this point and the Nauru Lands Committee made a decision on it as they found that the appellants had failed to prove that any obligation had been incurred.

I propose to record a finding that obligations of a customary nature were incurred and then to remit the case back to the Nauru Lands Committee to decide what the nature of those obligations was by Nauruan custom in 1932 and whether it is now enforceable. In considering the question whether the obligation is enforceable now, any attempt to enforce it in the past, or a failure to do so, may be relevant.

So far as Dowaiti's land is concerned, I accept the evidence adduced by the appellants that the respondent was given it on the understanding that he and his cousin, who was then the Head Chief and a man of progressive outlook, would use it and the proceeds from it for the benefit of the whole family. Again I am unable from the evidence available to ascertain the precise nature of the obligations and the extent to which they were enforceable under Nauruan custom in the late 1930's when Dowaiti gave the land. As in the case of Eidiaiago's land, I shall record a finding that the respondent received his share of Dowaiti's land subject to obligations to his brothers and sisters and their children, but I shall refer the question of the nature and enforceability of those obligations back to the Nauru Lands Committee for decision.