Tanavalu v Tanavalu [1998] SBCA 8; CA-CAC 3 of 1998 (25 November 1998)

IN THE SOLOMON ISLANDS COURT OF APPEAL

Nature of Jurisdiction:	Appeal from a judgment of The High Court of Solomon Islands (Lungole-A wich J).
Court File Number:	Civil appeal Case No.3 of 1998.
Date of Hearing:	20 October 1998
Date of Delivery Judgment:	25/11/98
The Court:	Mason P, McPherson JA, Williams JA
Parties:	Eileen Gaveke Tanavalu and Jaward Gaveke Tanavalu
	(An infant by Eileen Gaveke Tanavalu next friend)
	Appellants
	-V-
	Nelson Tanavalu
	First Respondent
	AND
	Solomon Islands National Provident Fund Board
	Second Respondent
Advocates:	Suri for appellants
	Mrs. Samuel for first respondent
	Rose for second respondent
Key Words	Solomon Islands National Provident Fund Act -distribution where no nomination - sections 35 and 36 considered - customary law - held widow and infant son no right to participate in distribution.
Extempore/Reserved:	Reserved
Allowed/Dismissed:	Dismissed
Pages:	6

..............................................

IN THE COURT OF APPEALOF SOLOMON ISLANDS
Civil Appeal No.3 of 1998

BETWEEN:

EILEEN GAVEKE TANAVALU AND JAWARD GAVEKE TANAVALU
(an infant by Eileen Gaveke Tanavalu next friend)
Appellants

AND:

NELSON TANAVALU
First Respondent

AND:

SOLOMON ISLANDS NATIONAL PROVIDENT FUND BOARD
Second Respondent

JUDGMENT - THE COURT

At the time of his death on 10 November 1992 Francis Tanavalu (the deceased) was a contributor to the Solomon Islands National Provident Fund (“the Fund”) created pursuant to the Solomon Islands National Provident Fund Act (“the Act”). The Second Respondent, Solomon Islands National Provident Fund Board, was the trustee of the Fund. Consequent upon the death of the deceased $11,079.33 was available for distribution among the appropriate beneficiaries.

Relying on the customary law governing inheritance in Babatana, South Choiseul, the second respondent paid that sum out to the deceased’s father, Nelson Tanavalu, the first respondent. In so doing the second respondent had regard to the fact that the deceased had not made a valid notification of beneficiaries in accordance with the provisions of the Act.

That distribution was challenged by the deceased’s widow and infant child (the appellants). They sought a declaration in the High Court that each was entitled to share in the distribution of the amount payable out of the Fund, and nominated one-third each as the appropriate apportionment.

Lungole-Awich J declined to make a declaration in favour of the appellants and held that the second respondent had correctly distributed the money in question. From that decision this appeal is brought.

Sections 35 and 36 of the Act as at the date of death were in the following terms:

“35. Any employee or member of the Fund may by a memorandum executed in the prescribed manner nominate a person or persons to receive in his or their own right such portions of the amount payable out of the Fund under s.33 on his death as such memorandum shall indicate, and any employee who does not nominate such a person may be required by the Board to declare in writing that he does not desire to do so: Provided that the subsequent marriage of a nominator shall render any nomination made by him null and void.

36. Where a member of the Fund dies, the amount outstanding to his credit in the Fund shall be dealt with by the Board in the following manner:

a) If his widow or any person over 18 years is nominated to receive the amount (or any portion of it) under s.35 then the amount of that portion shall be paid to the widow or that person, as the case may be;

b) if any person under 18 years (other than his widow) is nominated to receive the amount (or any portion of it) under s.35 then the amount or that portion shall remain in the Fund and shall be deemed to be held by the Board in trust for that person until he reaches the age of 18 years;

...

c) if no person is nominated to receive the amount or the portion, then the amount or the portion shall, notwithstanding any law to the contrary, be distributed in accordance with the custom of the member to the children, spouse and other persons entitled thereto in accordance with that custom:

Provided that where at the time of his or her death a member was living with another person as husband or wife of that person, without proper marriage in law or in custom and had so lived for a period of not less than 1 year then any child born to the member and that other person as a result of their living together shall, for the purposes of this paragraph, be deemed to be a legitimate child of the member and shall be entitled to a share in the amount or portion in accordance with this paragraph.”

In the instant case there was no valid nomination made by the deceased. At or about the time of joining the fund he signed on 20 July 1989 a nomination form naming as beneficiaries his brother and a nephew. That nomination became void on 7 February 1990 when he married the appellant. No fresh nomination was made, therefore the money in question had to be dealt with by the second respondent in accordance with s.36(c) of the Act.

The contention of the second respondent as to the meaning of that subsection was upheld by the learned trial judge. In short it was held that who was entitled to participate in the distribution of the inheritance was governed by the custom of the deceased’s tribe, namely Babatana, South Choiseul.

There was ample evidence before the learned trial judge to justify his findings that:

(i) the law applicable to the distribution of the money in question was the customary law of the tribe in the Babatana area of South Choiseul;

(ii) the rules of customary law governing inheritance in Babatana, South Choiseul, provide that inheritance is patrilineal in the descending direction, and also in the ascending direction if the deceased does not leave a son of age to inherit;

(iii) the rules of customary law in Babatana entitle the father of a deceased husband, who has not left a surviving son of age, to take charge of the deceased’s estate and to distribute it to the children, widow and relations of the deceased, according to the father’s discretion;

(iv) the rules of customary law in Babatana require the father of the deceased to exercise his discretion by setting aside from the inheritance a sum for the infant son, and in the circumstances $4,000 was reasonable;

(v) the rules of customary law in Babatana entitle the deceased’s father in his discretion to pay some amount of the inheritance to the widow, but, in circumstances where the widow had left his house, he was entitled in the exercise of his discretion to distribute nothing to the widow;

(vi) the first respondent was entitled to distribute the inheritance as he did, that being in accordance with the customary law in Babatana;

(vii) the second respondent was entitled in accordance with the customary law in Babatana to pay the monies in question to the first respondent and was not guilty of negligence in so doing.

The submissions by counsel for the appellant concentrated on the construction of s.36(c) of the Act. On his approach the spouse and children had an automatic entitlement under the section to participate in the distribution of the Fund. In addition to them, other persons determined in accordance with custom also had an entitlement. Finally, the question of distribution between the three groups (spouse, children, and other entitled persons) was to be determined by custom.

It is important to have regard to the scheme of the Act in construing s.36 and in particular paragraph (c) thereof. Sections 35 and 36 read together clearly provide for a scheme of distribution on the death of a member. There must be a nomination in the prescribed manner if the member’s widow or some other particular relative is to benefit. Any purported nomination, otherwise than in the prescribed manner, will be ineffective. That means, for example, that a nomination could not be made by the deceased’s will. The effect of the Act is that the deceased’s entitlement from the Fund would not form part of his estate for testamentary purposes. If the deceased died intestate without leaving a valid nomination, the entitlement would not form part of his estate in intestacy. Those matters flow from the words “notwithstanding any law to the contrary” in the section. If there is no valid nomination then the entitlement is distributed according to s.39(c).

Further, it is not without significance to note that prior to s.36(c) being amended in 1990 to its present form, it provided that the entitlement, in the absence of a valid nomination, would be distributed as on intestacy; that is in accordance with s.84 of the Wills Probate and Administration Act which gave the widow and children a right to participate to a specified extent in the distribution.

The construction contended for by the appellant involves a two stage process. Firstly, a determination of entitlement of other persons in accordance with custom, and secondly a determination of distribution among all beneficiaries (wife, children, other persons) in accordance with custom. In support of that approach it was pointed out that the reference to custom appears twice in the section.

Having regard to the history of the section and the fact that pursuant to s. 36(a) the widow only has a right to participate in a distribution if there is a valid nomination in her favour, one must reject the submission that the widow and child have an automatic entitlement pursuant to s.36(c). Once that position is reached the only available conclusion is that their entitlement is dependent upon custom.

It is not for this court to comment on the desirability or social implications of such a provision. Parliament has decreed how entitlement is to be established and that is the end of the matter.

Counsel for the appellants submitted that the “mischief’ addressed by the 1990 Amendment was the failure to recognise any persons having a claim on the deceased’s bounty pursuant to customary law. He submitted that the words “other persons entitled thereto in accordance with that custom” were inserted to overcome that deficiency.

For the reasons given above that submission must be rejected. The new s.36(c) had wider consequences than that, and the section as a whole recognised that the widow only had a right to an entitlement if nominated.

The Constitution (s. 15(5) and c1.3 of Schedule 3) recognises the importance of customary law to citizens of the Solomon Islands. The former provision recognises that the application of customary law may have certain discriminatory consequences. The learned trial judge was correct in holding that the Act was not unconstitutional because s.36(c) discriminated against the widow.

Finally the learned trial judge was correct in concluding that the distribution made by the second respondent was proper and in accordance with the requirements of s.36(c). It was not negligent in doing what it did.

The appeal should be dismissed with costs.

Mason P
McPherson JA
Williams JA