Solomon Islands National Provident Fund Board v Olomane [2007] SBHC 30; HCSI-CC 490 of 2004 (15 May 2007)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 490 of 2004

SOLOMON ISLANDS NATIONAL PROVIDENT FUND BOARD

-v-

BILLY OLOMANE & OTHERS, MARY LEONIKI AND OTHERS AND JENNY RODOMALEFO & OTHERS

Date of Hearing: 15th May 2007
Date of Ruling: 15th May 2007

G. Fa’aitoa for the Plaintiffs
E. Saramo Public Solicitor for the 1st Respondent
M. Tagini for the 2nd Defendant

RULING on Summons seeking answers to questions posed by the Fund about the lawfully entitled beneficiary of a deceased Provident Fund Member’s contributions

Brown, J: On the 15 August 2003 Mr. Moses Leoniki died, leaving moneys in trust representing his contributions from his salary to the National Provident Fund. There is a sum in excess of $80,687.38 in trust. The SI National Provident Fund Board seeks this courts order because there are, in effect three classes of claimants to this benefit and a court order is necessary to protect it from suit by any other claimant other than the person to whom moneys are paid.

The first class is those persons nominated by the deceased contributor to become beneficially entitled to the money upon his death. This nomination is made under s. 32 of the SI National Provident Fund Act (Cap. 109). These claimants are the 1st respondents.

The second class are those named as the 2nd respondents, the deceased’s de facto partner at the date of his death. Letters of Administration of the Estate of the deceased were previously granted to Mary Maegwaidalo, so the 2nd respondent is the lawful representative of the Estate of the late Moses Leoniki.

The third class of claimant is the surviving wife of the deceased. The 3rd respondent, Jenny Rodomalefo was lawfully married to the deceased as evidenced by the Registry of Marriage extract showing the marriage took place on 4 August 1973. There is no evidence of any divorce in terms of the Islanders Divorce Act (Cap. 170).

I am satisfied on the material filed of the fact of the marriage on the 4 August 1973 and that in 1977 the Contributor separated from Jenny Rodomalefo. There is no evidence of any decree nisi or decree absolute (having been given by this court) of dissolution of such marriage.

In about 1992 the contributor contracted a customary marriage with Mary Maegwaidalo according to the customs of the Oibola, Langa Langa people of Malaita Province. There are three adopted children of this customary marriage.

On the 4 September 1978 the contributor executed a "nomination" in favour of his father, Billy Olomane and his niece Jane Batalia Alick, in equal shares.

The lawful Administrator of the contributor’s estate, Mary Leoniki, is the same person as the contributors’ de facto wife, Mary Maegwaidalo.

Section 32 of the National Provident Fund Act (cap. 109) provides-

"Any ....member of the Fund may by a memorandum executed in the prescribed manner nominate a person or persons to receives I his or their own right such portions of the amount payable out of the Fund under Section 30 on his death as such memorandum shall indicate..." "Provided that the subsequent marriage of a nominator shall render any nomination made by him null and void".

Section 33 of the Act sets out the manner in which contributions shall be dealt with on a contributor’s death where there is nomination or where there is no nomination. In this case I am satisfied there is a valid nomination as evidenced by the photocopy AMO "2" to the affidavit of Ms. Goretti Tarusia, the Manager Operations of the NPF.

Consequently the provisions of that section about the procedure which will be followed where no nomination has been made, do not apply.

The question (which Mr. Hou, for the 1st respondents (the nominees) says needs to be answered in the negative) is whether the "customary marriage" to Mary Maegwaidalo is a marriage which falls to be classified as a "subsequent marriage" in terms of the proviso to s. 32. For if the court was to find that the "customary marriage" does amount to that "subsequent marriage", then section 33, which sets out the procedure to follow in those circumstances, shall apply.

Before seeking answer to that question, I will deal with the standing of the Administrator of the Estate, for that issue is of small compass. The Administrator is responsible for the due administration of the estate of which she is seized (in possession of) at the time of her administration. In this case, she does not have the right to possession of the contributor’s entitlements, for long before his death; he made a nomination, which, in law effectively took the NPF moneys from becoming a part of his estate. For the Act, s. 32 makes explicit, that the nominee is "to receive in his or their own right such portion...", not a right to claim through the deceased, but a right arising at the time of nomination, contingent only upon the death of the contributor.

Reg 49(2) of the Act says "a nomination shall not be revoked by any will or by any other act, event or means whatsoever".

That regulation recognises the effectual assignment of the debt to the nominee (contingent upon the event of the death) and should not be read to suggest that it, by itself, overrides the subsequent wishes of the contributor who may, subsequently by a will for instance seek to include as a portion of his estate, these moneys in the National Provident Fund. The debt, represented by moneys in the fund, is, without anything more, assigned by virtue of s. 32 and no longer falls to be determined by "will, act, event or means whatsoever".

For that meaning in s. 32 is plain. (See Daly CJ in Re – Application of Minister for Western Provincial Affairs (1983) SILR14. What then of the customary marriage. Does it render the nomination null and void?

By s. 19(1) of the Islanders Marriage Act (cap. 171);

"When any marriage is registered in accordance with s. 18, each party to the marriage shall for the purposes of the law of divorce be in the same position as though such marriage had been celebrated under the provisions of this Act or Ordinance".

Section 18 of the Marriage Act provides for voluntary registration of marriages in accordance with custom, by application to the District Registrar of the District in which they reside to have the marriage registered under the Act. While a customary adoption by the late Moses Leoniki and Mary Maegwaidalo was said to have been accepted and approved by a Magistrate at Auki, no application to register the customary marriage has been claimed by Mary Maegwaidalo in her affidavit, nor is there any such record in evidence of such registration. The fact of such a registration may raise a presumption of irregularity, for s. 19(1) clearly supposes a marriage registered under s.18 "shall for the purposes of the law of divorce, be in the same position as though such marriage had been celebrated under the provisions of this Act...".

The earlier marriage to Jenny Rodomalefo had been celebrated under the provisions of the (earlier) Marriage Act for the Registrar of Marriages has entered particulars in his Register as have said. Consequently by virtue of s. 12(a) of the (old) and current Islanders Divorce Act (Cap 170); "A marriage is void and the Court shall pronounce a decree of nullity in respect there of if it is proved – that at the time of the ceremony of the marriage one of the parties was already married and the earlier marriage was still subsisting".

I am satisfied, as I have said, that the earlier marriage was valid. I am further satisfied, in the absence of any evidentiary proof of a divorce before the death of the contributor, that it was still subsisting at the time of his death.

Section 12(a) then, raises a presumption on the facts which I have found in this case, that the Customary Marriage is void. It is not the intention of the legislature to countenance two subsisting marriages to be recognised at law, between two persons. That is plain on a reading of the warning against bigamy to be found in s. 19(2) of the Marriage Act.

Of course rights and obligations which have arisen through custom, as a consequence of these persons living together and adopting three children in those circumstances, remain unaffected. But for the purposes of the Act, the use of the phrase "subsequent marriage" (s. 32) refers to "Marriage" as understood under the Marriage Act, (whether contracted under the Act or according to custom) so that where the earlier marriage was subsisting at the time of death, that Marriage cannot be said to be a "subsequent marriage" to the date of the nomination.

I need make no finding on whether that later "customary marriage" is void in terms of the Marriage Act but in law the subsisting marriage celebrated on the 4 August 1977 cannot be seen to be a "subsequent marriage" in time to that of date of the nomination under s. 32 of the Act.

Nor can the "customary marriage" be seen to be a "subsequent marriage" for the earlier marriage was still subsisting. It had not been dissolved by court order or death at the time of the customary marriage.

The questions posed by the applicant then, shall be answered in so far as the various classes are entitled to claim to receive contributions; as to the 1st classes or 1st respondents claim, yes for that the nomination is valid; in terms of s. 32 of the Act.

As to the 2nd classes or 2nd respondent, no for that the contributions held in trust do not form part of the deceased’s estate for the purposes of administration;

As to the 3rd respondent no for that the nomination was made subsequent to the time of the lawful subsisting marriage; so that the Board may discharge its obligation as trustee by payment of the debt due to the lawfully entitled nominees.

Each party shall pay their own costs.

THE COURT