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Numomalo v Konainao [2015] SBCA 5; SICOA-CAC 29 of 2014 (24 April 2015)

IN THE SOLOMON ISLANDS COURT OF APPEAL



NATURE OF JURISDICTION:
Appeal from Judgment of the High Court of Solomon Islands (Apaniai J.)

COURT FILE NUMBER:
Civil Appeal Case No. 029 of 2014
(On Appeal from High Court Civil Case No. 390 of 2012)

DATE OF HEARING:
16 April 2015

DATE OF JUDGMENT:
24 April 2015

THE COURT:
Goldsbrough P
Ward JA
Wilson JA

PARTIES:
JOHN MARK NUMOMALO

- V -

MARY NUMOMALO NEE KONAINAO
ADVOCATES:

Appellant:

Respondent:
Mr A Rose - Rose's Legal Services

Ms K Kohata, assisted by Mr S Valenitabua – Public Solicitors Office
KEY WORDS:
Matrimonial property – three houses and canteen on TOL land – orders for receipt of rents – whether fair and just in all the circumstances
EX
TEMPORE/RESERVED:
RESERVED

ALLOWED/DISMISSED
The orders of the Court are as follows:

(1) Appeal allowed.
(2) Order 2 set aside.
(3) Orders in lieu of Order 2 –
  • (a) That the Wife continue to rent out the upper part of House No 2 and apply the rent received towards her own maintenance and that of the five children of the marriage until she dies or the house is sold;
  • (b) That the Wife continue to rent out the basement part of House No 2 and after making the following payments to the Husband from the rent received –
    • (i) $426.88 per fortnight until his liability to the ANZ Bank for moneys advanced for the improvement of the basement is discharged, and
    • (ii) $400.00 per month until his liability to the Church of Melanesia for moneys advanced for the improvement of the basement is discharged
apply the balance of the rent towards her own maintenance and that of the five children of the marriage until she dies or the house is sold or further earlier order of the Court.

(4) Order 4 amended by the deletion of the words "to meet the obligation of the Respondent [Husband] to the loan from ANZ Bank and the advance from the Church of Melanesia".

(5) That there be liberty to apply.

PAGES
1- 11

UDGMENT OF THE COURT


  1. This is an appeal against part of a decision by the High Court in respect of the distribution of matrimonial property following divorce.
  2. The trial judge determined that the parties were joint owners of two houses on the same parcel of land. The appeal is against his Lordship's orders with respect to the rents from one of the houses and a canteen also on the land.

The Facts


  1. The parties were married in June 1987. They separated in July 2003, and were divorced in 2013. There are four natural children of the marriage, who were aged 27, 26, 21 and 15 years respectively when the decision was made in August 2014. There is also a child adopted in custom, who was aged 22 at the time of the decision. We shall refer to all of those children as "the five children of the marriage".
  2. The appellant ("the Husband") has entered into a new relationship, of which there are three children.
  3. In 1989, during the marriage, a parcel of land was acquired in the Husband's name pursuant to a Temporary Occupancy Licence ("the TOL land"). That TOL land was acquired for the purpose of building a family home.
  4. In about 1990 a two-bedroom house was built on the TOL land ("House No 1"). The Wife made no financial or material contribution towards its construction, her primary role being that of homemaker and mother. The Husband and Wife intended that house to be the family home. That is where the Wife and the five children of the marriage were living at the time of the hearing before the High Court.
  5. Some years later another house was built on the TOL landas an investment property ("House No 2").The upstairs area was completed during the marriage, in about 1995. In about 2011the Husband constructed rooms in its basement. For this purpose he borrowed money from the ANZ Bank andfrom his employer, the Church of Melanesia. The Wife did not make any financial or material contribution to either the initial construction of the upstairs section or the later construction of the basement area.
  6. In about 2006 the Husband built a third house on the TOL land ("House No 3"). The Wife made no financial or material contribution towards its construction.
  7. There was also a canteen on the land, described by the trial judge as "a temporary building". It was built by a cousin brother of the Husband, who was paying rent of $800 per month.
  8. The trial judge recited, and apparently accepted, the Wife's evidence that the rent from House No 2 was the only means of survival for her and the children. The Husband had not been providing any financial assistance towards the children's welfare and had taken some of the rent for House No 2 without making any of it available to support the Wife and children. The Wife and children would have nowhere to go if ordered to vacate House No 1.
  9. His Lordship also recited, and apparently accepted, the Husband's evidence of improving the basement of House No 2 with a loan from the ANZ Bank and an advance from his employer. His Lordship found that there was $22,317.78 owing to the bank in August 2013, and that repayments on that loan were $426.88 per month [sic].As at August 2013 the balance owing on the advance from the Church of Melanesia was $20,903.00, and repayments were $600 per month.
  10. The Husband was living at Rifle Range, Honiara with his new family. There was no evidence who owned the house in which they were living or of what, if any, rent the Husband was paying.

The Trial Judge's reasoning


  1. The Wife filed a Claim seeking "an order...to determine the distribution of matrimonial properties following the dissolution of marriage."
  2. The trial judge identified the applicable law as the Married Women's Property Act 1882(UK). His Lordship said that the critical issue was the intention of the parties at the time the houses were constructed. As his Lordship noted, there had been cases where it was held that s 17 of that Act did not give the Court power to make orders varying agreed or existing property rights.
  3. Consistently with the view that the Court had no discretion to distribute the property ina manner inconsistent with the agreed or existing rights to it, his Lordship concluded that the Husband and Wife were joint owners of House No 1 and House No 2, and that the Husband was the sole owner of House No 3. His reasons for reaching those conclusions may be summarised as follows:
  4. His Lordship continued –

"27. I am satisfied that House No 1 and House No 2 were built during the marriageand that at the time they were built both the [Wife] and the [Husband] understood and intended the houses to be family houses, that is, houses owned by the [Husband], the [Wife] and their children. The developments claimed to have been carried out later by the [Husband] to the under part of House No 2 does [sic] not change the ownership position of that house although it may be relevant as regards the liability to repay any existing loan obtained to carry out the developments under House No 2.


28. The [Husband] asserts that House No 2 was not meant to be a family home and that he had the house built as an income-earning property. The [Husband] did not say to whom the income belong. Surely, it must be the family's income. Furthermore, that is what he is saying now – after divorce. No such assertion was made at the time the houses were built. I reject that assertion.


29. For these reasons, it is my view that ...both the [Wife] and the [Husband] are joint owners of House No 1 and House No 2."


Orders made by the Trial Judge


  1. His Lordship made these orders:

The appeal

  1. On appeal the Husband sought orders –
  2. Counsel for the Husband made these submissions:
  3. This Court considers the errors identified by counsel for the Husband to be no more than typographical errors in the written reasons for judgment. As counsel for the Wife submitted, it was apparent from other passages in the written reasons that his Lordship understood the true facts.
  4. In determining this appeal, this Court will take account of the evidence before his Lordship and of further evidence relating to matters that have occurred since the trial.

Further Evidence


  1. The Husband failed to provide particulars of his financial commitments to his new family, both before the trial judge and before this Court. In response to a direction by this Court, he provided particulars of his currently outstanding liabilities to the bank and his employer.
  2. After his Lordship's judgment, the Husband removed furniture from the basement of House No 2. The Wife then installed new carpet, curtains, some furniture and a flush toilet, and had running water connected to the basement of that house.
  3. This Court was informed that rent of $3,000.00 per month was payable on each of the upper and basement parts of House No 2. Rent of $800.00 per month was payable on the canteen. The upper floor of House No 2 was let to government employees, but because government payments were delayed, the Wife had not received rent.
  4. As at the hearing of this appeal, all of the children of the marriage were living at home with the wife and financially dependent on her. The Wife used money received from the rent of the basement of House No 2 to fund the educational needs of the children. However, she had not received the rent for the first quarter of this year, and the Husband's solicitor had written to the tenant calling on it to suspend payment of the rent for the next quarter until after the determination of this appeal.
  5. On the available evidence, the Husband's liability to the bank had been reduced by contributions from the Wife not necessitated by the trial judge's order, as well as payments by the Husband and probably also the rent from the canteen.

13.02.15 $ 426.88

23.02.15 $ 1600.00

27.02.15 $ 426.88

02.03.15 $ 1600.00

13.03.15 $ 426.88

10.04.15 $ 426.88


The source of the two amounts of $1,600.00 was not disclosed; they may have been rent from the canteen.


(c) As at 16 April 2015, the amount outstanding to the Church of Melanesia on account of cash advances for the basement of House No 2 was $6,000.00. The Husband had also incurred other advances to meet his children's fees and other family needs, the amount of which was not disclosed. There is no evidence whether interest is payable on the amounts owing to the Church of Melanesia as to the quantum and/or frequency of repayments required by the church.

Discussion


  1. The trial judge endeavoured to fashion orders for a financial settlement between the parties that allowed a "clean break" between them.
  2. The houses were built on TOL land. The trial judge determined ownership of them by the application of s 17 of the Married Women's Property Act, which provides that –

"In any question between a husband and wife as to the title to or possession of property, either party.... may apply by summons.... to any judge of the High Court of Justice in England.... and that judge may make such orders with respect to the property in dispute ... as he thinks fit."


His Lordship correctly identified the court's duty to do its best to ascertain the parties' intentions from the material before it.


  1. The approach to the interpretation of s 17 adopted by the English Court of Appeal in casessuch as Rimmer v Rimmer [1953] 1 QB 63 and In reRogers' Question [1948] 1 ALL ER 328 is described in Jackson and Turner Rayden on Divorce (9thed, 1964) at 463 – 464:

"The special nature of the relationship between husband and wife inevitably gives rise to difficulties of proof when the marriage breaks down and questions of ownership of property have to be decided. It is not to be expected that a transaction between the spouses prior to their marriage or when they are happily married will be evidenced in the same way as an ordinary commercial transaction. The Court, after seeing and hearing the witnesses, has to try to conclude what was in their minds at the time of the acquisition, and then make an order which, in the changed conditions, if any, fairly gives effect in law to what the parties must be taken to have intended at the time of the transaction itself. Where the rights of the parties are sufficiently defined the ordinary principles of law apply and where the Court can clearly see that the parties intended that a particular property should belong to one or both of them jointly, whatever happened, there is no discretion in the Court to override that intention. But where the Court is satisfied that the intention was to share, or is satisfied that both parties have a substantial interest, and it is not fairly possible or right to assume some more precise calculation of their shares, equality almost necessarily follows. This is particularly true where the matrimonial home and contents are in dispute, for these are family assets usually acquired with no thought of what is to happen should the marriage break down."
(Emphasis added, citations ommitted)


  1. This may be contrasted with the approach taken by the High Court of Australia in Wirth v Wirth [1956] HCA 71; (1956) 98 CLR 228 at 231-232 per Dixon J, Martin v Martin [1959] HCA 62; (1959) 110 CLR 297 at 306 and Hepworth v Hepworth [1963] HCA 49; (1963) 110 CLR 309 – that s17 was a procedural provision giving married persons rights to have proprietary interests determined summarily, and that it was inappropriate for the courts to give effect to an intention not contemplated by the parties at the time of the relevant transaction.
  2. In Goodhew v Goodhew [2008] SBCA 7 this Court said –

"28 Counsel for the husband submitted that the vessel and the Landcruiser (as well as other items) were entirely the property of the husband because they had been acquired with his assets alone and that it followed that the Married Women's Property Act 1882 did not give the wife any share in them. The trial judge rightly rejected this submission. The question is not whether the wife had acquired an equitable interest in this property – a matter to be determined under ordinary principles applying to the acquisition of property rights (see egPettit v Pettit [1969] UKHL 5; [1970] AC 777; Gissing v Gissing [1970] UKHL 3; [1970] 2 All ER 780) – but, rather, what financial settlement was just in all the circumstances. In this respect, whether the parties come under the Islanders' Divorce Act or the Matrimonial Causes Act 1950 as amended in 1956, the law in the Solomon Islands is that the fundamental character of the jurisdiction is the same. Of course, this does not mean that the actual legal status of the ownership of the property both at law and in equity can or should be ignored. Unfortunately, however, it is not possible to discern from the judgment of the trial judge what were the considerations that led him to conclude that it was just to make an order that, in effect, gave the wife a third of the overall net value of the matrimonial property, despite the fact that, in respect at least of the Landrover [sic] and the vessel, she had no legal or equitable interest in them."
(Emphasis added.)


  1. There is no challenge to the trial judge's finding that House No 3 was the Husband's property. We did not understand there to be any serious challenge to his finding that House No 1 and House No 2 were the property of both Husband and Wife. In any event, we accept counsel for the Wife's submission that his Lordship did not err in finding that it was the parties' intention that House No 2 be matrimonial property. He did not make any express finding as to the ownership of the canteen, which he described as a temporary building.
  2. In paragraph 27 of his reasons for judgment, his Lordship said that the improvements to the basement level of House No 2 carried out by the Husband did not affect the ownership of that house, although they might be relevant to liability to repay loans borrowed for that purpose. Counsel for the Wife submitted that his Lordship's views accorded with authority on the issue, and pointed to the Husband's consistent evidence that the improvements were to be for the children's benefit, particularly by the generation of sustainable income for their education.
  3. In relation to House No 2, the challenge is as to the fairness of the order that the Wife receive both the rent from the upstairs part and that from the basement part.
  4. His Lordship ordered that upon the sale of House No 1 and House No 2, the proceeds be equally divided between the Husband and the Wife. In other words, he did not interfere with the ownership of those houses. But he made provision for the maintenance of the Wife and children by ordering that she might live in House No 1 until her death, and that she receive the rent from house No 2 until she died or that house was sold. Further, he allowed the Husband to receive the rent from the canteen to be applied in the discharge of his liabilities arising from the improvements he had made to the basement of House No 2.
  5. The Husband's counsel submitted that because the canteen was built by the tenant, it was not matrimonial property and so the Husband should not have to use the rent from it in discharge of his liabilities to his bank and his employer. The Husband's counsel did not explain the basis upon which his client was entitled to keep the rent from the canteen as well as receive the rent from the basement of House No 2. Perhaps it was because the area of TOL land acquired in the Husband's name for the purpose of building a family home clearly exceeded what was needed for a family home.
  6. House No 2 is owned jointly by the husband and the Wife. The improvements to the basement which put in it in a condition where it could be rented out were effected by the Husband. He still has liabilities to his bank and to his employer for moneys borrowed to allow him to make those improvements. Meanwhile, pursuant to Order 2 made by the trial judge, the Wife is entitled to the whole of the rent from the basement. In our respectful view, there is substance in the Husband's contention that this is not fair and just.
  7. The Husband's financial liabilities arising from the improvements he effected to the basement of House No 2 may reasonably be expected to be further reduced, if not discharged, in the foreseeable future. So, too, may the Wife's financial responsibilities for the children of the marriage. It is not for this Court to speculate on the extent of the Husband's financial responsibilities for his new family when he has chosen not to adduce any evidence on the issue.
  8. We consider that the appeal should be allowed and that in lieu of Order 2, there should be separate orders with respect to rent from the upper part of house No 2 and the rent from the basement of that house. Further, Order 4 should be amended to provide that the Husband receive the rent from the canteen without having to apply it to the discharge of these liabilities.
  9. The rent from the upper part of House No 2 should continue to be paid to the wife, who should be allowed to apply it towards her own maintenance and that of the five children of the marriage until she dies or the house is sold.
  10. Until the Husband's liabilities to his bank and his employer for moneys borrowed to effect the improvements to the basement are discharged, there should be some sharing of the rent from the basement. By this we mean that the Husband should receive from the rent sufficient to satisfy those liabilities, and that the Wife should receive the balance of the rent and be allowed to apply it towards her own maintenance and that of the five children of the marriage.
  11. In all the circumstances there should be no order as to the costs of the appeal, and no change to the order for costs made by the trial judge.
  12. The orders of the Court are as follows:

Goldsbrough P
President of the Court of Appeal


Ward JA
Member of the Court of Appeal


Wilson JA
Member of the Court of Appeal

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