To'ofilu v Oimae [1997] SBHC 33; HC-CAC 005 of 1996 (19 June 1997)

HIGH COURT OF SOLOMON ISLANDS

Civil Appeal Case No. 5 of 1996

lign="center">ter">JOHN TO'OFILU

V

OIMAE

Beforlmer,lmer, J

Hearing: 16th May, 1997 -997 - Judgment: 19th June, 1997

Counsel: P. Lavery for the Appellant; C. Solosaia for the Respondent

PALMER J.:

The Appellant appeals against the orders of the Magistrates' Court (Malaita) dated 24th August, 1994, sitting at Auki as follows:

"l. The Magistrate's Court erred in finding that " . . . bride price should not be taken as a yard stick to measure the man's love for his would be wife".

2. The Magistrate's Court erred in stating that "the " was solemnised before the Registrar of Marriage in Honiara ....."

3. The Magistrate's Court erred by saying "As there was a rejection of the wife by her husband, it is only fair that half of the bride price should be refunded".

4. The Appellant appeals against the awarding on the 3 tafuliae and $500. 00."

The facts of this case can be summarised as follows. A marriage transaction in custom had been entered into between the son of the Appellant (John To'ofilu) and the daughter of the Respondent (Oimae). Part of the customary marriage transactions between the parties included the payment of bride price. The parties appear to come from the same language group and do not dispute that the payment of bride price is an accepted customary practice.

The matter first came before the Malaita Local Court on 20th October, 1993. In the hearing before that court, the Defendant (Oimae) entered a plea of "liable" to the claim of the Plaintiff. In other words, he admitted the claim of the Plaintiff right from the beginning. It is important therefore first to ask what was the claim of the Plaintiff which was admitted to by the Defendant. We do not have a copy of the statement of the claim as filed before the Local Court, but we do have recorded in very clear terms, in the Plaintiff's own words, his claim as recorded in the record of proceedings. At page 1 of the Local Court records of proceedings, the Plaintiff stated:

"I would like to claim bride price payment must refund, 6 tafuliae, $1,000.00. Fares Honiara to Auki and returned 20 x 25 equal $1,000.00. Truck hire $240.00 worth of pigs, Bag of rice and etc. $1,100.00. Detail 3 pigs. 4 bags of rice. Maefasia got pregnant already at home before I bought bride payment. She stayed with my family in Honiara during one month then returned home. I have heard from people that Maefasia born a child on the way. Parents never told me she was pregnant while I asked her to marry my son. If I know she been pregnant I cannot pay bride price payment."

The claim of the Plaintiff in custom, can be summarized thus:

(1) that the Defendant's daughter had been made pregnant by someone else, (this is not in dispute);

(2) that the Defendant knew this fact, whereas the Plaintiff did not, (we do not know whether the son of the Plaintiff knew about this or not, but this appears to have little effect on the question of determining the amount of bride price to be paid);

(3) that in the circumstances, the Defendant owed a duty in custom to disclose this material fact to the Plaintiff during the course of discussions and negotiations for the amount of bride price to be fixed;

(4) that the Defendant did not disclose this fact;

(5) that the Plaintiff thereby was deprived of the opportunity to either re-negotiate the amount of the bride price fixed or to decline to pay the amount asked for. The Plaintiff says in his statement before the Local Court that had he known that the girl was pregnant, he would not have paid the bride price claimed;

(6) that in the circumstances, the Plaintiff must be compensated in custom for this breach of customary duty or obligation, the quantum being the refund of the bride price in its entirety.

It was this customary claim it seems, that the Defendant admitted when his case came before the Local Court. It was also for this reason, that the Local Court decided not to have any witnesses called by either party (a proper decision to make in the circumstances). The only issue before the Local Court therefore was that of quantum. Should the Defendant repay the full amount of the bride price as compensation or some lesser amount, or none at all? When it came to the Defendants turn to speak to the Plaintiff's claim however, he said very little on the issue of quantum, thus indirectly accepting the quantum of compensation also claimed by the Plaintiff.

The Local Court accordingly had no difficulty in finding for the Plaintiff. It accepted that the Defendant had not been honest in his dealings with the Defendant, in not disclosing a material fact; that his daughter had been made pregnant by someone else. Thus finding that there had indeed been a breach in custom which entitled the Plaintiff to claim for compensation; this being the refund of the bride price in full and related expenses. The Local Court stated at page 2:

"According to Malaita custom only virgin are paid with high price. Therefore this Court found Oimae (defendant) not honest in telling John To'ofilu the truth and deemed John To'ofilu (plaintiff) evidence to be true. Also Oimae (defendant) admitted the fact so such a bride price and other expenses will be refundable due to marriage breaking by Maefasia and parent plaintiff. According to Malaita custom must refund full bride price and expenses."

The Local Court accepted the submission of the Plaintiff in custom and confirmed that it was correct in custom; bearing in mind that the Justices of the said Court are persons from the same Province and familiar with the customs of the parties. The total amount awarded was $5,955.00.

I should note that no issue has been raised as to the jurisdiction of the Local Court to hear this customary dispute. Also that the Local Court is far better placed than the Magistrates' Court or this Court to deal with such claims in custom in that it is comprised of Court Justices who come from the same Province and sometimes from the same areas, and are familiar with the customary practices of the parties.

On appeal to the Magistrates' Court, the following points were raised:

"1. The woman Ellen that came to see us to asked our daughter, Fiona to be married to her son Rony did not appear in the Court only Malakai appeared in Court and he was not the person who asked for my daughter.

2. The Judge will not allow my witnesses to help me in my Court case. I am sure, it is my fundamental right in my country to forward witnesses if it is important to the case. Why did the Court not allow our witnesses to help us in court case?

3. Fiona has fallen in love with the married man, Mr Olimanu abut 5 months ago and Mr Tisa (Oimae's brother) and ourselves took a compensation from Mr Olimanu worth 5 shell money. The Court now uses past history of this case against us. We should point out that the present case is not related in any way whatsoever. This has been explained previously. This shell money paid by the married man (not single man) was paid simply because he has taken advantage of my daughter and it was strickly a compensation because our daughter was a virgin. This is the reason why unjust was carried out on 20/10/93 in Auki Court.

4. If Miss Ellen and/or Mr Malakai did not handed the $1,000.00 and 6 shell money, we would never allowed our daughter to leave the house. We would wish to remind the Court that Rony and our daughter were not only married by the law of the Solomon Islands, via the signing of marriage in the Registry in Honiara, on or about the 28th January, 1993, but they are automatically marriage by the age old local custom of excepting (sic) payment for marriage.

5. After all proper proceedings, as explained in point 4, Rony decided to dispose of his legally married wife. Our daughter did not ran away from her husband. The fact remains, that the couple have actually lived together as man and wife for 1 1/2 months."

After considering these points, the Magistrates' Court made the following orders:

"Appeal is allowed partly to determined the amount of bride price to be refunded. The Local Court order is set aside and therein substituted this order:

Appellant to pay or refund half of the bride price to the Respondent namely:

1) 3 tafuliae equivalent to $1,200. 00 cash.

2) $500. 00 cash

3) Sea fare Honiara / Auki / Honiara, truck hire to Fulisango and return, purchase of 3 pigs, 4 bags of rice are all expenses. Court would disallow all expenses.

Appellant to pay costs of appeal in the sum of $100.00.

Both parties are advised that if you are not happy with the decision, you have 90 days to lodge an appeal to the High Court.

Respondent is at liberty to apply for execution."

The crucial issue raised on appeal by learned Counsel, Mr Lavery for the Appellant before this Court was that the learned Principal Magistrate had taken into account irrelevant matters and thereby made orders which could not be substantiated in customary law. In particular, he referred to the comments of the learned Principal Magistrate at page 2 of the judgment:

"However bride price should not be taken as a yardstick to measure the man's love for his would be wife. In this case clearly it was the man Ronny Respondent's son who showed first sight love for Fiona. Whether the woman Fiona was pregnant before the marriage or not is a matter for negotiation so as to determine the amount of bride price to be paid to the girl's family."

Mr Lavery points out that the issue is not whether the Respondent's son (Ronny) showed first sight love for Fiona or not, but rather that there had been a lack of frankness and honesty on the part of the Respondent in their dealings on the question of the amount of the bride price to be paid. The Respondent had not disclosed a material fact about his daughter. In custom, a bride who is considered chaste is more highly regarded than one who may be known for her loose behaviour. The point stressed was that the claim of the Appellant in the Local Court had been clearly admitted by the Respondent and therefore it was not open to the learned Magistrate to substitute his own views without any evidentiary support or basis in "customary law". In this case, there was no basis in custom for him to make the finding that the bride price should have been halved, in view of the fact that it was Ronny who had shown first sight love for the bride to be and secondly, rejected the bride after marriage. These he submits were immaterial to the question of calculating the quantum of compensation to be paid.

Mr Solosaia of Counsel for the Respondent on the other hand, takes the view that the approach taken by the learned Principal Magistrate was more in line with the customary practice of the parties in the area. That where the groom rejects the bride, the quantum of the bride price to be returned is halved. Only in the case where the bride herself runs away is the full amount of the bride price expected to be returned.

Unfortunately, no customary evidence has been produced to support this submission from the bar table. Mr Lavery points out also and correctly, that when the opportunity was given to the Respondent to dispute or challenge the quantum claimed by the Appellant in the Local Court (the proper court with Court Justices versed in the customary practices of the parties), he never did so. He points out too that the Local Court would have been in a much better position to consider these submissions of the Respondent than the Magistrates' Court or this Court.

I have considered carefully the findings of the learned Magistrate, but with respect must find that he had over-stepped the mark by considering the following irrelevant matters and allowing these to influence him as to the quantum of compensation to be paid:

(1) that it was the Appellant's son who had showed first sight love for Fiona;

(2) that it was the husband who had rejected the wife.

The first issue had never been raised in the Local Court as a matter relevant to the question of calculating the quantum of compensation. But even if it had been raised somehow but not recorded, it would still have been irrelevant to that issue. The question of calculating the amount of bride price to be paid is obviously a matter for discussion and negotiation between the parents and other close relatives of the two young couples to be. This is quite separate and distinct from the feelings of love that the young man might have for his would be wife. The fact that the young man loves the girl may have given rise to the arrangements for discussions and negotiations on the bride price, but does not necessarily affect the way the bride price is to be fixed. The learned Magistrate therefore was quite right in saying that bride price should not be taken as a yardstick to measure the man's love for his would be wife. Whether it was Ronny who showed first sight love for Fiona or not is immaterial to the question of fixing the amount of bride price to be paid. It also has little bearing it seems on the question whether the Respondent thereby is extricated from his customary obligation to disclose any material fact that would affect the amount of bride price to be paid. I note this has not been raised or suggested in the Local Court or the Magistrates' Court.

The crucial issue for determination before the Local Court and the Magistrates' Court was on the question of calculating the quantum of compensation to be paid to the Appellant. It should be pointed out that the issue concerning first sight love for Fiona had never been raised in the Local Court by the Respondent as a matter relevant to the question of calculating the quantum of compensation. It was only raised for the first time it seems, in the Magistrates' Court but with no evidentiary backing in custom. The learned Magistrate accordingly had no basis in custom to allow that submission to be taken into account in calculating the quantum of compensation.

The second issue taken into account by the learned Principal Magistrate pertained to the rejection of the wife by the husband, that in the circumstances it was only fair that half of the bride price should be refunded. I should also point out here, that this issue had never been raised in the Local Court by the Respondent as an issue which would be relevant to the question of calculating the amount of compensation to be paid to the Appellant. It was simply raised as a matter of fact by the Respondent in the Local Court when addressing that Court as to the question of quantum. It was only in the Magistrates' Court that it was raised for the first time as a matter relevant to the question of quantum, but again with no evidentiary backing in custom. If the Respondent seeks to submit that the Local Court had been wrong in applying the appropriate "customary law", then that particular customary law should have been specifically pleaded and evidence adduced in its proof. All that we have heard came from the bar table, which with respect is insufficient. The Magistrates' Court accordingly was wrong in considering that point and taking it into account without more. It had no evidentiary basis in customary law to find that because there had been a rejection of the would be wife by the husband, that the quantum of the bride price to be refunded should be halved in the circumstances.

In his orders, the learned Principal Magistrate also differentiated between wedding expenses and bride price. Whilst he was correct in making that distinction, unfortunately, he failed to take into account the fact that the claim of the Appellant was not in respect of wedding expenses, but in respect of the bride price and related expenses. These were considered by the Local Court to be correct and allowed. I see nothing wrong with that finding of the Local Court. Mr Lavery pointed out in Court that the expenses claimed were all related to the payment of the bride price. The sea fares amounting to $1,000.00 were in respect of persons who travelled all the way from Honiara to Auki to attend the payment of the bride price ceremony. The truck hire included was in respect of travel from Auki to the village of the bride to attend the bride price ceremony by the group from Honiara, and the foods detailed formed part of the bride price payment.

I am satisfied this order of the learned Principal Magistrate should also be set aside.

Accordingly, the appeal should be allowed, the orders of the Magistrates' Court quashed and the following orders substituted:

1. Appeal upheld.

2. Orders of the Magistrates' Court quashed.

3. Re-instate orders of the Local Court, payment to be made within 3 months from date of judgment.

4. Costs of the Appellant if any, to be borne by the Respondent.

ter">ALBERT R. PALMER
THE COURT.