Prichard v Delight [2017] SBHC 63; HCSI-CC 425 of 2011 (3 October 2017)

IN THE HIGH COURT OF SOLOMON ISLANDS
Civil Jurisdiction
(Maina J)

Civil Case No. 425 of 2011

BETWEEN: COLLIN PETER PRICHARD - Applicant/Petitioner

AND: GRACE DELIGHT - Respondent


Date of Judgment: 3^rd October 2017

Ms L. Ramo for Applicant/Petitioner
Mr L. Kwaiga for Respondent

RULING

Maina PJ:

Introduction

The applicant applies for Matrimonial Property Settlement in the marriage that was dissolved by Degree Absolute of the court perfected, signed and sealed on 14^th January 2013.
The applicant is seeking orders that:

1. The respondent pays the Applicant a fixed share in the Tawaihi Village Stay in the sum of SBD$290,000.00
   
2. The applicant be granted sole ownership of the Naha 3 Property in Leasehold Parcel no. 191-039-301
   
3. Cost and any other orders the court thinks fit.
   

Facts

The marriage of the Applicant and Respondent was dissolved on 14^th January 2013. On 27^th November 2013 the Applicant and Respondent executed an Agreement of Settlement of the Matrimonial Properties of marriage.

And in accordance with Matrimonial Property Settlement they signed a Consent Order and perfected, signed and sealed by the court on 5^th December 2013. And the matter was adjourned sine die with liberty to apply on 3 days notice. Basically the consent order require the properties of the marriage of the Applicant and Respondent dissolved on 14^th January 2013 be settled in accordance with Agreement of Matrimonial Property Settlement executed on 27^th November 2013.

This Agreement was to amicable settle the properties of the marriage described as Leasehold Parcel no. 191-039-309 at Naha 3, Honiara (the Naha Property), Tawaihi Village Stay at Marau with the items and proceed of Aluminium boat sale in the sum of $22,000.00 in DNS Partners Trust Account. It also provide for consent order that was signed and perfected on 5^th December 2013.

The arrangement did not work out as also confirmed the Respondent in her sworn statement filed on 8^th August 2017 in response to this application by the Applicant.

The Law

By virtue of Schedule 3 of the Constitution, section 17 of the UK Married Women’s Property Act 1882 applies in Solomon Islands and this provision gives either parties to a marriage, the liberty to apply by way summons, for settlement of matrimonial property. With that the applicant has a legal basis to apply for the distribution or settlement of their matrimonial properties.

And the Court of Appeal in the case Numomalo v Konainao [2015] SBCA 5, SICOA-CAC 29 of 2014 (24 April 2015) states the court’s duties is to its best to ascertain what intention of the parties, was or were, when the properties were acquired. And it is the ascertaining of these matters that will assist the court with the distribution of the properties of the marriage.

Applicant’s Case

In the sworn statement to support the application the Applicant stated that properties subject to this distribution i.e. the Naha Property and Aluminium boat and 40 horse Tohatsu were acquired from his saving from Australia.

The attempt to settle per the Agreement of settlement did workout and the Applicant has filed this application for distribution of the properties of the marriage.

Respondent’s Case

The Respondent said that she was fearful of the Applicant/Petitioner and involuntary signed the Agreement of 27^th November 2013. She asked the court to divide the properties equally among the applicant and her.

The Court

This application for distribution of Matrimonial Property with the sworn statement to support the application was filed on 29^th May 2013 and by the sworn statement for the proof of service filed on 18^th July 2013 they were served to the respondent on 27^th June 2013.

There is no dispute the properties were acquired during the marriage and for distribution and currently status of the properties are that Tawaihi Village Stay is out of business as the Respondent is operating other businesses she operates alone. And at this time, the Naha Property has ran down and needs major renovation.

It is not contested the Naha property and boat and engine were purchased with the personal savings of the Applicant from Australia and the land at Tawaihi Village Stay is owned by the Respondent. The materials and construction of the 3 permanent accommodation bungalows costs at the Village Stay were purchased by the Applicant for business activities at the time of the marriage.

With that it is clear that all properties were acquired during the marriage of the Applicant and Respondent and therefore are Matrimonial Properties.

The court is to distribute the properties of the marriage equally to the Applicant and Respondent. With not even type of properties for distribution to the parties a consideration would be a reasonable person’s view to be equal taking into account to the nature of the properties in issue.

To my view the following distribution is fair to the Applicant and Respondent and accordingly do order as follows:

1. The Leasehold Parcel no. 191-039-309 with the residential dwelling house at Naha 3, Honiara to the Applicant,
   
2. Aluminium boat and 40 horse Tohatsu valued at SBD$40,000.00 to the applicant or if it had been sold the cost of $20,000.00 to the Applicant,
   
3. Tawaihi Village Stay at Marau with the permanent accommodation bungalows to the Respondent; and
   
4. Cost in the cause
   
5. No further orders
   

THE COURT

......................................................
Justice Leonard R Maina
Puisne Judge