Emmett v Emmett [2009] SBHC 29; HCSI-CC 46 of 2008 (13 July 2009)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No: 046 of 2008

BETWEEN:

ANITA MAREE EMMETT
Applicant

AND:

RONALD DOUGLAS EMMETT
Respondent

Date of Hearing: 24/4 2009, 1/5/2009 & 19/6/2009
Date of Ruling 13 July 2009

Counsel for Claimant/Applicant - Dr Makario Tagini
Counsel for Defendant – Mr P Lavery

RULING

Naqiolevu J:

1. This is an application by the Petitioner seeking a declaration for the distribution of the matrimonial properties as a result of the divorce between her and the Respondent, under the Islanders Divorce Act, which was granted by the Court on the 2nd of December 2008.

The Declaration sought are:

(1) A declaration that the properties outlined in the List appended as Schedule 1 are properties forming part of the matrimonial properties;

(2) A declaration that the Applicant is the joint owner of the residential house situated at Ranadi, Honiara in PN: 192-002-93;

(3) An order that the title to the property described in PN: 192-002-93 be delivered to the Applicant free of encumbrances;

(4) An order that the Respondent produce accounts for the business activities of Emmett Logging (SI) Ltd, Emco Pacific and Lagan Emco Joint Venture since 2003;

(5) An order that the Respondent produce details of his life insurance police

2. Circumstances of the Case

The couple commenced cohabiting about 1996 at that time they had no assets. On or about the 30th of August 1980 the parties got married and since then they formed two companies registered in Australia called Mintane Pty Ltd and Emmett Logging Australia Pty Ltd. The applicant holds 99% shares in these companies. In the course of doing business under those companies they acquired assets, a list of which was tendered, and attached as Schedule 1.

3. The parties sometime in the middle of 1996 moved to Solomon Islands where they later formed and registered the company called Emmett Logging (SI) Ltd, the applicant holds 50% share in the company. The couple agreed to transfer all the assets listed under Schedule 1 to Emmett Logging (SI) Ltd Solomon Islands. Furthermore the sum of $3,715.677.00 was loaned from this Australian companies.

4. The applicant on or about 29th August 2000 used her credit card to pay a life policy for the respondent MLC No. 1669-9700D in the sum of $142:77 which is to mature when the respondent turns 65 years old.

5. On or about 21st of June 2002 the parties bought a house situated in PN: 192-002-93 with funds from Emmett Logging (SI) Ltd. The property was registered under the name of their son, William Emmett. The property was registered under the said William Emmett on or about the 9th of May 2002.

6. The parties separated and live apart on or about the 22nd of April 2003, the Applicant has continued to reside in the property.

7. The Applicant and Respondent were granted a Decree Absolute dissolving the marriage under the Islanders Divorce Act, on the grounds of 5 years separation and irretrievable breakdown of marriage on the 2nd of December 2008.

8. Issue of Domicile

The Court before proceeding with the consideration of the application requested Counsel to address the Court on several issues relating to the parties ability to seek the order sought under the Islander Divorce Act. This is to satisfy itself if the parties come within the provision of the Act. The parties are both Australian citizens and married in Australia.

9. Counsel in their submissions assert that given they are both domicile in this jurisdiction they are entitle to the order sought under the provision of the Islander Divorce Act. Dr Tagini in his submission assert there is no expressed provisions in the Act to indicate that the term islander include persons of European lineage as the parties clearly are in this application. The Court in Solomon Islands have extended the definition of the term Islander not to restrict the scope of the term to the three races of the Pacific and cited the authority of Laiseuta -v- Laiseuta, Mahlon –v- Mahlon, Reid v Reid and the recent authority of Kevisi v Mergozzi.

10. Mr Lavery in his submission assert the provision of Section 3 5(1) (e) and 6 (1) of the Act and the form specifically prescribed under Section 6 of the Act. Mr Lavery further in support of his submission cited the authority of Leseuta -v- Leseuta, Mahlon -v- Mahlon, Reid -v- Reid and Kevisi –v- Mergozzi. The authority clearly indicate that there is consistent line of authority going back to Independence in 1978 and up to the present day that not withstanding that persons may be citizen of other countries, they acquire the status of "Islander" if they are shown to be domicile in Solomon Islands.

11. The Court having considered the submission and the clear authorities in this jurisdiction, further after establishing the intention of the parties and the long period of domicile in this country is of the view that they clearly come with the term of Islanders to qualify them to seek the order sought.

12. The Court is considering the Petitioner’s application for granting the declaration has carefully considered the submissions both oral and written form by both counsels.

13. Respondent’s Submission

Counsel for the Respondent submitted that the provisions of the law under the Islanders Divorce Act, clearly entitled the petition to maintenance and nothing else. The provision of Section 21 of the Act only make provision for the custody, maintenance and education of the children and the maintenance of the wife. There is clearly no provision for the distribution of property.

14. Mr Lavery submit the Court must interpret the law as written. The Court cannot interpret the law that will change the intention of the Legislation.

15. Counsel for the Respondent in further submission assert the Married Women’s Property Act 1882, does not apply in the Solomon Islands because it did not apply in Scotland and is therefore not an act of general application in the United Kingdom.

16. Counsel further assert the ACT was in effect repealed by the BSIP Legislative Council when it passed the Islanders Divorce Act in particular Section 21. This localized statutory provision deals with the financial outcome of divorce in this jurisdiction in so far as they apply to islanders.

17. Counsel contend insofar as the ACT is inconsistent with this provision, it cannot survive and refer to Schedule 3 of the Constitution, "save as far as they are inconsistent with, any law of Solomon Islands".

18. Counsel submit if the ACT has any application he need go no further than agree with the submission on behalf of the Petitioner.

19. Counsel assert the ACT provides a procedure to declare and enforce the pre-existing property rights of the parties, those actually existing before the divorce. The Petitioner’s submission only refer to 50% ownership of Emmett Logging (SI) Ltd (and claim unsubstantiated), to a share of the matrimonial house. There is no shred of evidence that she ever owned any part of Emico Pacific (SI) Limited which was the owner of MV Buccaneer. The evidence shows this company was incorporated, and was granted its investments approval, after the parties separated. The ACT cannot touch its assets.

20. Counsel asserts there is no application before this Court as provided by the ACT which must be by Originating Summons in the prescribed form.

21. Petitioner’s Submission

Counsel for the Petitioner submit that whilst the Islanders Divorce Act limits the power of the Court to only make orders with respect to custody, maintenance and education of the children. The Court has in various cases gone beyond the Act to distribute matrimonial property for instance the provision of Section 17 of the Married Women’s Property Act 1882, which is applicable to Solomon Islands as statute of general application and principles of equity as provided under Schedule 3 of the Constitution.

22. Counsel cited the authority of Tavake –v- Tavake which Kabui J, as he then was, said "the effect of Section 17 of the Married Women’s Property Act, 1882, is that either the husband or a wife or an interested party may apply to the High Court in any question as to the title to, or possession of property and the Court may make such order with respect to such property in dispute as it thinks fit".

23. Counsel further submit the High Court interpreted Section 17 of the Act in the case of Pusau –v- Pusau when Kabui J considered the intention of the parties at the time of acquiring their matrimonial home, the parties, had the intention to own the property in equal shares, therefore they both have equal shares in the home.

24. The Court in considering the provision of the Islanders Divorce Act, which clearly is restrictive in its application to maintenance of the wife. The Court in this regard must consider whether a petitioner who has being part of a marriage for a period of time and has contributed to the property, have some recourse the provision of the Constitution.

25. The Court is of the view that assistance may be available under the provisions of the Constitution, in particular Section 75 and 76 and indeed Schedule 3.

Section 75 of the application of the law state:

75. (1) Parliament shall make provision for the application of laws, including customary laws.

(2) In making provisions under this section, Parliament shall have particular regard to the customs, values and aspirations of the people of Solomon Islands.

76. Until Parliament makes other provision under the preceding section, the provisions of Schedule 3 to this Constitution shall have effect for the purpose of determining the operation in Solomon Islands: -

(a) of certain Acts of the Parliament of the United Kingdom mentioned therein;

(b) of the principles and rules of the common law and equity;

(c) of customary law; and

(d) of the legal doctrine of judicial precedent.

26. It is clear that the provision of Section 76 of the Constitution make provisions for the situation such as this where the law is inadequate and enables an aggrieved party proceed to find relief where there is no provision in the legislation.

Further: -

Schedule 3 of the Constitution:

(1) Subject to this Constitution and to any Act of Parliament, the Acts of the parliament of the United Kingdom of general application and in force on 1st January 1961 shall have effect as part of the law of Solomon Islands, with such changes to names, titles, offices, persons and institutions, and as to such other formal and non-substantive matters, as may be necessary to facilitate their application to the circumstances of Solomon Islands from time to time.

2 (1) Subject to this paragraph, the principles and rules of the common law and equity shall have effect as part of the law of Solomon Islands, save in so far as –

(a) they are inconsistent with this Constitution or any Act of Parliament;

(b) they are inapplicable to or inappropriate in the circumstances of Solomon Islands from time to time; or

(c) in their application to any particular matter, they are inconsistent with customary law applying in respect of that matter.

The principles and rules of the common law and equity shall so have effect notwithstanding any revision of them by any Act of the Parliament of the United Kingdom which does not have effect as part of the law of Solomon Islands.

27. In considering the provision of Section 75 as read with Schedule 3 of the Constitution, the Court is of the view that in applying the schedule, the provision clearly enables a party to a proceeding such as this to seek redress, through the Act of Parliament of the United Kingdom, in this instance the Married Women’s Property Act 1882.

28. It seems to me that having regard to the Married Women’s Property Act 1882, it is not inconsistent with Section 21 of the Islanders Divorce Act, and the Act (Islanders Divorce Act) does not provide any more by which the property of the wife or husband is to be divided based on their entitlements or the financial outcome of divorcees in this jurisdiction. It is completely different provision from Section 17 of the Married Women’s Property Act, and clearly not inconsistent.

29. The Court having regard to the provisions of Schedule 3 of the Constitution is of the view that it is clear that the principle of common law, and equity which is part of the law in Solomon Islands, may apply in this instance. The Court further is of the view that both common law and equity as applied is not inconsistent with the Constitution or the Statute in this circumstance.

30. The Court is further fortified by the principal of law enunciated by DALY, CJ in R-v- Ngera, where his Lordship in setting out the test to be applied when considering the general application pursuant to Schedule 3 of the Constitution said,

"I would prefer to frame the test in this way, that is, having regard to the statute under consideration as a whole, it is one that regulates conduct or conditions which exist amongst humanity generally and in a way applicable to humanity generally or is it restricted to regulating conduct or conditions peculiar to persons or institutions in the United Kingdom or in a way applicable only to persons, activities or institutions in the United Kingdom? If the former the statute is of general application. I should add that I used the words "United Kingdom" advisedly... as paragraph 1 of Schedule 3 does not restrict our received law to be the law of England".

31. The Court considers that Section 17 of the Married Women’s Property Act, 1882, does regulate conduct or conditions which exist amongst humanity generally and in a way applicable to humanity generally. Clearly its application is important to Solomon Islands, as it recognizes the rights of women over properties they acquire during the course of marriage.

32. The Court accepts as of vital importance if Section 21 of the Islanders Divorce Act is the "sole provision" that deals with the distribution of matrimonial property then "married women in this country would be at a great disadvantage".

33. The Court is of the view that in today’s society where Holy Matrimony is no longer deemed sacred or important, the effect of Section 17 of the Married Women’s Property Act 1882, must be recognized as a law of general application in the Solomon Islands. Women of this country must be given the "protection of the law to ensure they are not disadvantaged" in the distribution of their proprietary rights when their marriage comes to an end.

34. The Court is of the view that Kabui J correctly stated the law when His Lordship considered the effect of Section 17 of the Married Women’s Property Act that either the husband, or the wife in a divorce proceeding, may apply to the High Court any question as "to title, to or possession of property". See Tavake –v- Tavake. Further in Pusau –v- Pusau where both the Petitioner and Respondent had contributed equally to secure their matrimonial home, and had the intention to hold the property in equal share.

35. The Court having considered the principles of law as enunciated by numerous Court in this jurisdiction. Further having applied the provisions of general application pursuant to Schedule 3 of the Constitution. The Court is of the view that the Petitioner is entitled to the distribution of the matrimonial properties. However, will not grant the declaration sought until it is satisfied as to the individual proprietary rights of the parties to the matrimonial property under these proceedings.

THE COURT