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Hedmon v Ika [1980] NRSC 2; [1969-1982] NLR (B) 148 (5 November 1980)

[1969-1982] NLR (B) 148

IN THE SUPREME COURT OF NAURU

Land Appeal No. 8 of 1980

WALLY D. HEDMON

v.

MARTINA IKA (AS TRUSTEE)

5th November, 1980.

Gift of land by Nauruan - not perfected until transfer approved by the President under section 3 of the Lands Act 1976 - if gift revoked before then, subsequent approval does not perfect it.

Appeal against transfer of land notified by the Nauru Lands Committee in the Gazette. W.H. was the son of H. and T.H. T.H. died in 1976 and the distribution of her estate was decided upon and finalised in that year. In 1979 H. died. During the family meeting to try to reach agreement on the distribution of H.'s estate, W.H. promised to give P.I. a share in the lands he had inherited in 1976 from T.H. The promise was made without valuable consideration. Subsequently W.H. revoked the promise. The Nauru Lands Committee nevertheless published a notice that P.I. had a share in the lands inherited by W.H. from T.H. No application was made to the President to approve the transfer under section 3 of the Lands Act 1968.

Held: A gift of land made without valuable consideration can be revoked at, any time before it is perfected by a transfer of ownership made following the President's approval to the transfer being given under section 3 of the Lands Act 1976. The gift was revoked by the appellant before it had been perfected and no transfer had taken place.

Appeal allowed.

Mrs. M.L. Billeam for appellant
R. Kaierua for respondent

Thompson C.J.:

The decision of the Nauru Lands Committee is incorrect in form. It decided a long time ago how Theresia Hedmon's estate should be distributed. The fact that one portion of land was overlooked and has been dealt with only now does not warrant the Committee's altering the distribution. The appellant agreed to make a post-distribution gift of part of the estate to Peter Ika. What should have been gazetted in respect of this most recent portion of Theresia's estate was a distribution as determined originally, in 1976. That should have been followed by notice of transfer of a share in the land by the appellant to the respondent. Before that could have been done, the President's consent to the transfer was required by section 3 of the Lands Act 1976.

The issues in this appeal were all decided in Civil Action No. 3 of 1979 and the principle of issue estoppel prevents either party now asserting any facts other than those found in that case in relation to those issues. It is clear therefore, that the appellant's offer to give a share of Theresia's estate to Peter Ika was made in the course of a discussion of the estate of the appellant's father. Some other members of the family wanted Peter to have a share of the father's estate but the appellant, who could simply have refused to agree to that, suggested instead that he should give part of his share of his mother's estate to Peter. On that basis the other members of the family ceased to press for his inclusion in the father's estate. What the appellant obtained in return for his undertaking to give a share of his part of Theresia's estate to Peter was simply a cessation of that pressure on him to agree to Peter being given a share of the father's estate.

That being so, the consideration which he received for his undertaking was not a valuable consideration. The gift, therefore, was gratuitous. It has not yet been perfected. The appellant made it clear before Civil Action No. 3 of 1979 that he revoked the gift. The Nauru Lands Committee has no power to perfect the gift on the appellant's behalf after such revocation.

Accordingly the appeal must be allowed. The decision of the Nauru Lands Committee is set aside and an order substituted that the land Atagapara portion no. 189, Anibare District, be distributed to the persons, and in the shares determined by the Nauru Lands Committee in 1976 in respect of Theresia's estate, i.e. the appellant one-half share and Johnny Hedmon one-half share i.e. after sharing the 1/3 share which their father had for his lifetime only.