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Deiye v Deiye [2008] NRSC 10; Civil Action No 4 of 2007 (19 December 2008)

IN THE SUPREME COURT OF NAURU.

Civil Suit No. 4/2007

BETWEEN:

ALEX DEIYE & ANOR
Appellant

AND:

ALVINA DEIYE
Respondent

Pres Nimes for the Appellant
Rueben Kun for the Respondent

Date of Hearing: 16 December, 2008.
Date of Judgement: 19 December, 2008.

JUDGMENT

An argument between plaintiff brothers and the defendant sister over the reception and division of rents from land leased to the Australian Federal Police.

Mr. Alexander G. Deiye the only plaintiff witness:Mrs. Alvina Aremwa (nee Deiye) the only defence witness. Word against word.

Several pieces of Deiye family land are leased out: some if not all to the Australian Federal Police. The rent of one property, known either as MQ57 (as the plaintiffs assert) or MQ47 (as the defendant maintains) is the subject of the dispute.

The plaintiffs’ case is that it was agreed between them and the defendant that she should act as their agent for the receipt of the rent: the rent was to be divided at to 5/16 to each of the three. The other 1/16 may be due to a nephew. Despite requests (which they say the defendant has ignored) the plaintiffs have not had anything.

To the contrary the defendant, asserts that their uncle, in 2000, gave her the land: it is hers and the rent from it is hers alone.

One of the few facts I can find with confidence is that rent paid by AFP is $2000.00 per month.

I have not seen either the lease or any other document which may complement the evidence of either the plaintiff or of the defendant.

Both were equally believable witnesses. Both cannot be correct – but which one is?

The plaintiffs bear the onus of proof. It is for them to prove their case on the balance of probabilities. There must surely be documents (the lease, for example) which would throw light on the matter? There must be other evidence which one side or the other could produce to show what is the true arrangement (if any)was between the members of thefamily?

The plaintiffs have failed to discharge the onus of proof but I am not satisfied that all the facts have yet been put before the Court. That being so, I shall nonsuit the plaintiffs.

They lose this action but are at liberty to bring fresh proceedings if they wish.

I may add that this, being an unhappy family dispute, the best solution would be settlement among the parties themselves.It may not be possible but I suggest to them that, with the help of their legal representatives, they should try and settle. Whether or not they try, whether they settle or whether fresh proceedings are taken are decisions entirely for them.

The plaintiffs are nonsuited.

ROBIN MILLHOUSE
CHIEF JUSTICE