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Dekarube v Agieroudi [1975] NRSC 2; [1969-1982] NLR (B) 134 (16 January 1975)

[1969-1982] NLR (B) 134

IN THE SUPREME COURT OF NAURU

Land Appeal No. 20 of 1974

RUBENIT DEKARUBE AND OTHERS

v.

AGIEROUDI AND OTHERS

16th January, 1975.

Estate of deceased Nauruan - Administration Order No. 3 of 1938 - para (3) (b) - meaning of married - widower.

J., a Nauruan man, died intestate. He had been married but his wife had pre-deceased him. He left no issue. The manner in which his estate was to be distributed depended on whether he was to be regarded as married for purpose of paragraph (3)(b) of Administration Order No 3 of 1938.

Held: When regard was had to the context and to the provisions of para. (3)(c) of the Order, it was clear that for the purpose of para (3)(b) a widower is a married person.

Appeal allowed.

B. Dowiyogo for appellants
Respondents in person

Thompson C.J.:

This appeal relates to the following portions of land-

(1) portions nos. 170, 171 and 174, coconut land, all named Ibonge, in Meneng District;

(2) portions nos. 10 and 11, coconut land, both named Ianzan, in Anibare District;

(3) portion no. 256, phosphate land, named Anebe in Anibare District;

(4) portion no. 60, phosphate land, named Oquore in Uaboe District;

(5) portion no. 301, coconut land, named Anibare in Anibare District.

The appeal is against the decision of the Nauru Lands Committee published in Gazette No. 48 of 1974 that shares of those portions of land form part of the estate of the late Jimwereiy D. and should now belong to the respondents as beneficiaries of that estate.

The appellants are persons closely related by blood to the late Jimwereiy D. The respondents are not related by blood to Jimwereiy. They are related by blood to Eidino, the grandmother of Jimwereiy's first wife, Eidemenitag. All the portions of land to which this appeal relates originally belonged to Eidino.

Jimwereiy's ownership of shares of those portions of land was gazetted at various times between 1956 and 1974. One of the respondents has suggested that Jimwereiy did not own those shares of the land absolutely but had only a life-interest in them. That suggestion is at variance with the contents of the various Gazette Notices (all of which are referred to in the notice of the Nauru Lands Committee's decision published in Gazette No. 43 of 1974). Jimwereiy's ownership is shown without any qualification of it. No evidence has been adduced to show that the contents of those notices did not correctly represent the decision to which they related. I find as fact, therefore that Jimwereiy held his shares of those portions of land absolutely, and did not have only a life interest in them.

Mr. Agoko, the Acting Chairman of the Nauru Lands Committee, gave evidence that the Committee decided that the respondents were entitled to Jimwereiy's share in those portions of land, because he had clearly received them from his wife, or her mother or grandmother, and not from his parents or persons related to him by blood. The Committee accepted that Jimwereiy owned the land absolutely and that it formed part of his estate. It purported to apply the provisions of Administration Order No. 3 of 1938 and decided that they should be returned to the persons most nearly related by blood to the person from whom Jimwereiy received them, namely the respondents.

Mr. Agoko gave evidence that the Committee regarded Jimwereiy as a married man, notwithstanding that at the time of his death he was a widower, and consequently it intended to apply the provisions of paragraph (3)(b) of Administration Order No. 3 of 1938. He accepted that the Committee had misunderstood those provisions and that its decision did not accord with them. The decision would have accorded with the provisions of paragraph (3)(a) of that order, i.e. if Jimwereiy had been treated as "an unmarried person"; but Mr. Agoko stated that the Committee considered that that expression meant only a person who had never married.

The respondents were not represented and did not address the Court on the construction of Administration Order No. 3 of 1938 (which was read and explained to them by the Court), but one of them did suggest that Jimwereiy had never been lawfully married. His marriage to Eidemenitag and a later marriage to Eidiorebwe, were subsequently proved by the appellants by production of the Marriage Register by the Deputy Registrar of Births, Deaths and Marriages.

I find as fact that Jimwereiy was lawfully married to Eidemenitag but that he was a widower at the time of his death. I also find as fact that he owned absolutely his shares in the portions of land which are in dispute in this appeal and that they form part of his estate. It is necessary, therefore, to decide in accordance with the provisions of Administration Order No. 3 of 1938 who the beneficiaries are to be in respect of that part of the estate.

It is not disputed that Jimwereiy's family was unable to reach agreement about the distribution of the estate. The provisions of paragraph (3) of the Order must, therefore, be applied. Paragraph (3) is as follows-

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

(a) in the case of an unmarried person the property to be returned to the people from whom it was received, or if they are dead, to the nearest relatives in the same tribe.

(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.

(c) Married - with children - the land to be divided equally between the children, and the surviving parent to have the right to use the land during his or her lifetime. When an estate comprises only a small area of land the eldest daughter to receive the whole estate and other children to have the right to use the land during their lifetime."

If Jimwereiy was "an unmarried person", his shares of the land in dispute in this appeal must "be returned to the people from whom it was received, or if they are dead, to the nearest relatives in the same tribe"; that is to say that the beneficiaries of his shares of that land are to be the nearest relatives of, apparently, Eidino who are of the same tribe as Eidino. The respondents are the nearest relatives by blood of Eidino but there is no evidence whether they belong to her tribe; but the appellants have not suggested that they are not the persons entitled to receive that part of the estate if it has to be returned in accordance with paragraph (3)(a) to the people from whom it was received.

However, Mr. Dowiyogo has supported the view taken by the Nauru Lands Committee that Jimwereiy's estate has to be distributed in accordance with paragraph (3)(b) of the Order, i.e. that he was "married". That sub-paragraph provides for "the property to be returned to the family or nearest relatives of the deceased". Therefore, if the estate is distributed in accordance with paragraph (3)(b), the respondents are not entitled to be beneficiaries, as they are not members of "the family or nearest relatives of the deceased", and the appeal must be allowed.

Generally a marriage is regarded as ceasing upon the death of either of the spouses and it is, therefore, unusual to find a widow or widower classified as a married person. However, unless "married" in paragraph (3) is given the extended meaning of "being or having been married", the effect of paragraph (3)(a) and (c) is that the legitimate children of a person are the beneficiaries of his or her estate if he or she is survived by his wife or her husband, as the case may be, but are not the beneficiaries if that person died a widower or widow. That would be a ludicrous result. certainly the Nauru Lands Committee and this Court have always taken paragraph (3)(c) to apply to the estates of all persons who have been survived by legitimate issue, although this Court has never previously had to consider the meaning of "married" in paragraph (3).

Although generally in construing a statute words should be given their natural meaning, the context may indicate that a word is intended to have another meaning. Administration Order No. 3 of 1938 is very poorly drafted; instances occur within it of words being used with apparently different meanings in different places. But there is nothing to indicate that the word "married" in paragraph (3)(b) was intended to have a different meaning from that which it has in paragraph 3(c). Indeed, the identical structure of the two sub-paragraphs is evidence of the contrary intention, that the word should bear the same meaning in both of them.

I am satisfied, therefore, that in both sub-paragraphs the word "married" must be given the extended meaning of "being or having been married". That being so, Jimwereiy's estate must, subject to any decision which this Court may make in Land Appeal No. 19 of 1974 that the appellant in that appeal was the lawful son of Jimwereiy, be distributed in accordance with paragraph 3(b) and the respondents are not entitled to receive any part of it.

The appeal is allowed. The respondents are not entitled to be beneficiaries of any part of Jimwereiy's estate. However, before any final decision can be made as to who are entitled to be the beneficiaries in respect of Jimwereiy's shares of the portions of land in dispute in this appeal, it is necessary to hear and decide Land Appeal No. 19 of 1974.