Bibi v Raza [1993] FJHC 13; Hbc0109j.89s (15 February 1993)

IN THE HIGH COURT OF FIJI
At Suva
Civil Jurisdiction

CIVIL ACTION NO. 109 OF 1989

Between:

AIEJA BIBI
d/o Nasir Mohammed
Plaintiff

- and -

1. HASAN RAZA
s/o Nur Mohammed
1st Defendant
2. WESTPAC BANKING CORPORATION
2nd Defendant

Mr. V. Maharaj for the Plaintiff
1st Defendant in Person

JUDGMENT

On the 5th of April 1989 the plaintiff issued an originating summons seeking various orders against her estranged husband in terms of the Married Women's Property Act (Cap.37). The summons was later amended at the close of the plaintiff's case to include a prayer under Section 119 of the Property Law Act (Cap. 130).

In particular the plaintiff claims the matrimonial home which is built on a native leasehold at Nasea, Labasa registered in the joint names of both the plaintiff and the defendant.

The defendant for his part also claims to be the sole beneficial and lawful owner of the property on the basis that that was always their intention when they first purchased the property in 1987 and also because all mortgage repayments were made by him.

It is therefore necessary to deal briefly with the evidence in the case so as to determine the relative contributions and interests (if any) of the parties in the matrimonial home.

As a starting point however I have noted the terms of Section 34 of the Land Transfer Act (Cap.131) which provides:

"(1) ... unless the contrary intention is expressed in the instrument of title, where two or more persons are registered as proprietor of any estate or interest in land ... they shall be deemed to be entitled to the same as tenants in common.

(2) Where two or more persons are entitled as tenants in common to any estate or interest in land ... they shall unless the contrary intention is expressed in the instrument of title, be deemed to hold the same in undivided equal shares."

Accordingly in the absence of any contrary indication expressed in the lease (of which there are none) the plaintiff and defendants are in law deemed to be 'tenants in common' of the land and any buildings erected on it, holding undivided equal shares which in this case means half shares.

The parties however have sought to lead evidence to prove unequal shares or contributions towards the acquisition of the matrimonial home and accordingly it is necessary to consider more closely that aspect of the case.

The parties were married in Suva on the 29th of September 1966 and shortly thereafter moved to live with the defendant's parents on their farm at Waiqele, Labasa. They remained on the farm for sometime and eventually moved to Labasa Town where the defendant was employed as a Saleman with Morris Hedstroms Ltd. During this time the elder of the parties two sons was born.

Then in 1969 they began operating a Cafeteria business under the name: "Hassans Cafe" from premises strategically located in the town.

In its initial 7 years the day-to-day operations of the cafeteria was looked after by the plaintiff as the defendant was in full-time paid employment. After the birth of their second son however the plaintiff claims the business became too much for her to operate and so the defendant resigned from his position with Morris Hedstroms and took over the running of the cafeteria. The defendant however claims the cafeteria was being run 'unprofitably' and that's why he resigned his job.

On the 4th of September 1978 the matrimonial home was bought with a small deposit and a larger loan from the Bank of Baroda with which the parties were banking at the time.

There is some dispute as to where the initial deposit for the purchase price of the house originated but it is common ground that the mortgage was repaid from the earnings of 'Hassans Case' within a very short time of approximately 3 years and whilst it was being jointly managed by both the plaintiff and the defendant.

In the course of the hearing however both parties attempted to 'down-play' the other's contribution to the purchase of the house.

The plaintiff testified that she worked long hours in the cafe whilst the defendant drank grog in the market. She also did part-time tailoring at nights and contributed $150 towards the repayments of the house.

The facts remains however that the plaintiff had 2 young children to care for at the time and the principal source of repayments of the house mortgage was 'Hassans Cafe' which was the only business being run at the time.

The defendant for his part described how after he resigned his job at Morris Hedstroms due to the drop in their cafeteria business, he trebled the number of tables in the cafe and doubled the quantity of newspapers sold from the cafe. At the time the plaintiff remained home caring for their 2 sons and cooking meals. She also helped daily in the shop for an hour. He denied that the plaintiff did tailoring part-time and implied that she was not sufficiently familiar with licensing and public health requirements to be able to run the cafeteria on her own.

The undeniable fact remains however that after the matrimonial home was paid off the plaintiff opened her own business in the name of 'Sinai Restaurant' and single-handedly ran it profitably for several years before selling it for a five figure sum.

I am more than satisfied that the house was purchased at a time when marital relations was good between the parties and was intended to be their matrimonial home. It was registered in their joint names and the mortgage was repaid through the joint efforts of both parties and although there was an attempt on both dies to down play the contributions of the other, I am not at all persuaded that their share in the matrimonial home is anything other than equal and I so find.

Indeed the defendant admitted as much in cross-examination when he said in answer to counsel's questions:

"Between 1975-1978 no problem with my wife. She cooked meals, helped in the shop for an hour, cared for our children. That's why I bought house in both our names as a family home. Intended to be our permanent home when we stayed together."

A great deal of evidence was led on behalf of the plaintiff to show that she was an able business-woman and I have no reason to doubt that. Much was also made of the various vehicles and furniture items that were purchased during the course of the marriage and which the defendant claims the plaintiff has wrongfully taken as her own.

On the other hand the plaintiff complains that the matrimonial home is under threat of a 'mortgagee sale' because the defendant has defaulted in the repayment of a loan he raised to run his cafe.

Whilst I accept that factor may be a significant matter between the plaintiff and the defendant, it is irrelevant in my view in so far as it relates to the mortgage of the second defendant bank.

I note that both parties individually raised loans from the bank for their respective businesses on the security of the matrimonial home. Needless to say this would not have been possible had they both not agreed at the time.

Suffice it to say for present purposes that I do not propose to deal with such items which are insufficiently proved to be 'matrimonial property' and in any event do not form part of the claim in this instance which relates almost exclusively to the single most valuable asset in the marriage, the matrimonial home.

The plaintiff presently lives with her 2 sons in Delainavesi outside Suva. She has filed for a divorce in the Magistrates Court, Suva and it does not appear likely that she will ever return to live in Labasa. Certainly she expressed no such desire or intention in her evidence before me.

I am also mindful that the defendant, his 'de-facto' wife and their child reside in the matrimonial home and that the defendant continues to make irregular payments towards an outstanding loan. He also has an interest in a cane farm from which he derives some income and where possibly he may find an alternative place to live. Unlike the plaintiff however he has not offered to pay for her share of the house in the event that this Court should so find that she is entitled to a share. He remained adamant that the plaintiff had already 'helped herself' to her share of the assets accumulated during their marriage.

In their evidence both parties appeared to accept that the matrimonial home is worth between $60-$70,000. I am also aware that there is an outstanding mortgage over the property and that the rental income from the property has been frozen pending the outcome of these present proceedings.

In all the circumstances I am of the view that the best and least complicated manner in which to finally settle this issue is to direct a sale of the matrimonial home for the best price that can be obtained. The sale is to be conducted by the plaintiff's solicitors after a proper valuation of the property has been obtained from a registered valuer.

By way of further directions I order:

(1) That the sale shall be by public tender conditional upon the approval of the Court and upon the consent of the N.L.T.B. being first had and obtained;

(2) That the aforesaid valuation shall be the 'reserve price' of the land;

(3) That the parties shall de everything necessary to effect and facilitate the valuation and sale of the property and, in particular, shall execute within 14 days of the execution of a 'sale and purchase' agreement, a registrable transfer of the lease;

(4) That all purchase money shall be paid into Court and be accompanied by a Certificate pursuant to Order 31 r.3(b) of the High Court Rules;

(5) That the mortgage (if any) of the second defendant bank shall be first discharged from the purchase price;

(6) Then all outstanding land rental and town rates are to be paid;

(7) Thereafter all reasonable expenses incurred in the valuation, sale, discharge and transfer of the property shall be deducted from the purchase price;

(8) The balance remaining shall then be paid to both parties in equal shares; and

(9) Any accumulated rental monies are to be shared equally between the parties.

Liberty is hereby reserved to all parties to apply generally for any further directions as may be necessary.

(D.V. Fatiaki)
JUDGE

At Suva,
15th February, 1993.

HBC0109J.89S