Chand v Mati [2005] FJHC 565; HBA0007.2004L (10 August 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

CIVIL APPEAL NO. HBA0007 OF 2004L

BETWEEN:

RAVI CHAND
s/o Raj Karan
Appellant

AND:

ANMOL MATI
d/o Deo Sharan
Respondent

Counsel: Mr. E. Maope for the appellant
Mr. S. Shah for the respondent

Date of Hearing: 10 August 2005
Date of Judgment: 10 August 2005

EX TEMPORE JUDGMENT

The appellant by petition of appeal dated the 6^th November 2003 appeals the decision of the Learned Magistrate at Lautoka on the 16^th October 2003. The appeal is pursued only with respect to paragraphs 1 (d), (e) and (f). Those paragraphs might be summarized as being the award of aggravated damages in the sum of $30,000.00, the award to the petitioner of 40% share in the matrimonial property to be held on a constructive trust and the variation of the maintenance order which requires that maintenance in the sum of $80.00 per week be paid.

The respondent concedes that there is no provision in this country for the awarding of aggravated damages. This then leaves two issues, the subject of the appeal, that is the distribution of the matrimonial property and the maintenance of the respondent to the appeal.

The appellant then relies on grounds (4), (6) and (8) as detailed in the petition. Those grounds might be summarized as being that the Learned Magistrate failed to accord the appellant natural justice, in that, he took into account assumptions and didn’t give the appellant the opportunity to be heard on all issues and further that the Learned Magistrate erred in law and fact by taking irrelevant and unfair considerations into account in determining the award of 40% with respect to the matrimonial essence.

I have had the benefit of written submissions on behalf of the appellant and oral submissions on behalf of the respondent.

The judgment of the Learned Magistrate dealt, not only with the issues, the subject of the appeal but also with the petition for dissolution of the marriage, which proceeded on the grounds of cruelty. The Learned Magistrate in his judgment found that there had been a marriage of some 23 years but during the marriage, the respondent to this appeal, the wife, had been subjected to domestic violence in what he described as a volatile home environment. He also found that the respondent, wife, had contributed to the marriage as a mother and homemaker whilst not being a member of the paid workforce. He noted that the petitioner was 45 years old, the respondent 50 years of age and that she had never worked for gain and perhaps unskilled and that it would be very late for her to be trained for gainful employment.

The Learned Magistrate had the benefit when making his deliberation of considering the evidence that had been given by the parties and by the witnesses called. He had the opportunity to consider the demeanour of the witnesses when they gave their evidence both in chief and under cross-examination. He took into account the principles expressed in various New Zealand and English decisions in determining that the wife had an entitlement to a distribution of the matrimonial property notwithstanding that she had not contributed monetarily to the acquisition of that property. The Learned Magistrate was clearly correct in his finding.

It is submitted that the Learned Magistrate fell into error because he did not have before him any evidences to the value of the property. Certainly it would appear that there was no evidence of value but similarly, the order of the magistrate is that the respondent receive a percentage of the matrimonial assets and their contents, not that she receive a particular amount of money and in fact the ultimate order that the Learned Magistrate made was that 40% of the matrimonial home and domestic chattels be held under a constructive trust for the wife.

I am of the opinion that it was and is not necessary for there to be a consideration of the value of the property to conclude that a party is entitled to a specified percentage. The situation would of course be quite different if it were, that an order was being made for the payment of a nominated amount of money.

The appellant submits that an appropriate percentage would be for the respondent to the appeal to have 20% of the matrimonial assets held on trust for her.

As I have said, it is an accepted principle in this country as elsewhere that a party to a marriage is entitled to share in the matrimonial assets notwithstanding that there is no monetary contribution and it is necessary for courts to take account of the contribution that parties make in kind, such as being a mother and homemaker, which in this instance was for a period of 23 years. As I have also said that the Learned Magistrate had the benefit of assessing the evidence that was placed before him.

On the basis of the reasons expressed in the judgment of the 16^th October 2003, I am of the opinion that the order and finding of the magistrate with respect to the matrimonial assets is not wrong in principle nor at law and accordingly, I see no basis to disturb it.

With respect to the order to pay maintenance in the sum of $80.00 per week, it would appear that on the 14^th February 2001, the appellant paid to the respondent the sum of $40,000.00 which was held in bank account by him.

On the 10^th December 2001, some 8 months later, it would appear that a maintenance order was made by consent at the Nausori Magistrates Court. That order sought to treat the $40,000.00 paid by the appellant to the respondent as maintenance. The order uses the words “shall be given solely to the complainant for her personal use and maintenance”.

The evidence given by the appellant to the Learned Magistrate was:

“I have a bank account, I gave her because there will be argument. There was never argument. I gave her to please her. When in

Nausori Court I did not pay $40,000.00 for her. I gave her $40,000.00 in February. I gave her before this case. In February 2001, I did not give her the money as maintenance.”

The Learned Magistrate found that the respondent to this appeal had from February 2001 until the date of his judgment been using those funds, that is the $40,000.00, to live on. The Learned Magistrate then went on to find that there had been a change in circumstances in any event since the time of the order in December 2001 at Nausori Magistrates Court and he then found that there was a ground for the variation of the maintenance order and thereupon ordered that sum of $80.00 per week be paid. Again, the Learned Magistrate was in the position to hear and see the parties give their evidence.

He had before him some evidence of the income of the appellant and he had before him evidence from the respondent as to her circumstances. I must say I have great doubt as to the basis upon which the $40,000.00 was paid and more particularly, to the circumstances surrounding the consent order of December 2001.

Upon the material before me, it would appear that the Learned Magistrate was entitled to form the views that he did with respect to the need for maintenance and there is nothing before me to suggest that his finding or order was wrong in principle or at law. Accordingly, I do not propose to upset either of the orders of the magistrate that are ultimately the subject of this appeal. The appeal will however be allowed in part in that, the fourth order of the Learned Magistrate that is “aggravated damages against the respondent in the sum of $30,000.00” is set aside.

Order 5 which currently reads “The petitioner is entitled to 40% share of the matrimonial home and domestic chattels in the matrimonial home in Waqadra, Nadi, and that the respondent hold the same under constructive trust for the Petitioner” is varied by the addition of “such entitlement shall include 40% of the net income from the property.” In all other respects, the orders of the Learned Magistrate are confirmed.

As the appeal has been allowed in part, it is appropriate I think that there be some concession with respect to costs and accordingly, I order that the appellant pay two-thirds of the respondent’s costs as assessed or agreed.

JOHN CONNORS
JUDGE

At Lautoka
10 August 2005