Mark v Waneasi [1996] SBHC 108; HCSI-CC 360 of 1992 (12 November 1996)

CC 360 92 HC

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 360 of 1992

JOYCE MARK

-V-

PETER WANEASI

High Court of Solomon Islands
(Palmer J)

Civil Case No. 360 of 1992
Hearing: 22nd May, 1996
Judgment: 12th November, 1996

M. Samuels for the Applicant
L. Kwaiga for the Respondent

Palmer J: The parties were divorced in this Court on 19th March, 1993, and a decree nisi for dissolution of marriage issued on the same day and made absolute three months later. The case was then adjourned to chambers for hearing of the outstanding issues pertaining to custody and maintenance of the children, and ownership of a chainsaw acquired during the term of the marriage. In the hearing before this court on 22nd May, 1996, it was agreed by learned Counsels that the questions on custody and maintenance of the children do not need to be heard by the court. The only outstanding issue therefore before this court relates to the question of ownership of the chainsaw - brand- Stihl 090.

At the said hearing, it was also agreed that Counsels would make written submissions in respect of the issues raised in court. Despite numerous reminders, this has not been done. Rather than waiting any longer, I have decided to issue this written judgment.

For the Applicant to successfully claim that she is entitled to sole ownership of that chainsaw or its sale proceeds, she has to prove that it is either non-matrimonial property, that it belonged to her and not to the Respondent or, that it had been bought with separate money not related or connected to the marriage union.

Unfortunately, even the evidence relied on by the Applicant before this court would not have been sufficient to support her claim. In court, she stated that the chainsaw had cost her $800.00 and purchased with money from a term deposit that she had kept from money given by the Respondent in favour of the children. It is clear therefore that those funds had come originally from the Respondent, and within the marriage union. This is confirmed by the Respondent in his evidence that the moneys held in the term deposit belonged to the family. His version on the facts though, is slightly different; that $400.00 came from savings obtained from fishing and the other $200.00 from their passbook. Which ever version is accepted, it is clear that the chainsaw had been acquired and bought with money from the marriage union. The Applicants claim therefore for separate ownership of the chainsaw must be dismissed. The question as to whether the Applicant in spite of this finding, is still entitled to claim possession of the whole of the said chainsaw or its value where it had been sold, remains and must be addressed.

Has the Applicant shown that she is entitled to possession of the chainsaw? The evidence on this issue unfortunately does not go in her favour. It has not been disputed that the chainsaw had been used by the Respondent, and that he was the person with the necessary skills to use it in the family; not the Applicant. Accordingly there can be no issue raised about the fact that the chainsaw had been kept by the Respondent and used.

In 1990, the Respondent went to Honiara, taking with him the chainsaw. He stated in evidence that the chainsaw by then was no longer working and needed to be repaired. His purpose for taking it to Honiara accordingly was to have it repaired. He found out however, that it would be very expensive to repair and that he did not have the necessary funds to do it. He says that he has not done anything to it since.

The Applicant on the other hand says that the chainsaw was working when it was taken to Honiara by the Respondent. She also claims that it had been sold by the Respondent and with the money received he had bought a new chainsaw. Unfortunately, no supporting evidence has been produced in court in support of this allegation. The Respondent on the other hand denies selling it. When contrasted with the evidence of the Respondent, I am not satisfied that it had been shown on the balance of probabilities that the chain saw had been sold.

As at this present time, it is not clear where that chainsaw is. Most likely it is with the Respondent. Taking all the above circumstances into account, the appropriate course of action to take in my respectful view would be to have that chainsaw valued and then sold, and the proceeds distributed equally between the parties.

As to the chainsaw frame claimed by the Applicant, that originally belonged to the father of the Respondent. The Applicant says that it had been given to them as a gift, whilst the Respondent says that it had been given to him and his brothers for use as and when required. Having assessed the evidence, I am not satisfied that it had been shown that that frame should also be included as part of the matrimonial property. Accordingly, I order that it be excluded.

ORDERS OF THE COURT

1. Order that the chainsaw be valued and sold, and the proceeds shared equally between the parties.

2. Order that the chainsaw frame be excluded as matrimonial property.

3. Each party to bear their own costs.

Albert R. Palmer
Puisne Judge