Mangale v Rafe [2021] SBHC 14; HCSI-CC 81 of 2019 (1 February 2021)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Mangale v Rafe
Citation:
Date of decision:	1 February 2021
Parties:	Martha Mangale v James Mua Rafe
Date of hearing:	24 November 2020
Court file number(s):	81 of 2019
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Faukona, DCJ
On appeal from:
Order:	1. That the property in Parcel No. 191-004 - 49 in the joint names of the Petitioner and the Respondent be transferred in favour of the children as owners in common in equal undivided shares according to the following: 2. The registered interest of the Respondent to be transferred in the names of the two eldest daughters. 3. The Petitioner’s registered interest to remain but as a trustee to other two children Franko Rafe and Shane Rafe until they come of age. 4. Any party refuses to execute the transfer instruments, the Registrar or the Assistant Registrar of the High Court shall execute the instrument. 5. That the Respondent gave vacant possession of the matrimonial property to Petitioner and the children within 30 days from the date of this decision. 6. Possession is hereby granted to the Petitioner so that she and the children reside in the matrimonial home.
Representation:	Mr. Steward Tabo for the Petitioner No one for the Respondent (Absent)
Catchwords:
Words and phrases:
Legislation cited:	Married Woman’s Property Act 1887 (UK) section 17
Cases cited:	Saimei v Kenekene [2004] SBHC 54, Goodhew v Goodhew [ 2008] SBCA 7, Numomalo v Konainao [2015] SBCA 5, Tavake v Tavake [1998] SBHC 118, Pettit v Pettit [1969] UKHL 5; [1969] 2 W.L.R 966

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 81 of 2019

BETWEEN

MARTHA MANGALE
Petitioner

AND:

JAMES MUA RAFE
Respondent

Dat of Hearing: 24 November 2020
Date of Decision” 1 February 2021

Mr. Steward Tabo for the Petitioner
No one for the Respondent (absent)

DECISION ON DISTRIBUTION ON MATRIMONIAL PROPERTY

R. Faukona DCJ: This case was commenced by way of petition for divorce filed by the Petitioner on 18^th February 2019.

2. A decree nisi for dissolution of marriage was granted on 26^th July 2019, followed by absolute dissolution endorsed on 18^th February 2020.
3. The outstanding issue for consideration now is for the Court to determine the distribution of the matrimonial property in PN 191-004-49. Unlike other cases, the Petitioner has filed claims for possession and ownership whilst the Defendant filed nothing at all. In any event it is the legal obligation upon this Court to consider fair distribution of the property.
4. As a background note the property is located at Tasahe in Honiara. However there is no evidence to indicate the ratio each party contributed to the purchase. All that is available is that both had equal share to the property. Documentary evidence affirms that both had their names registered as FTE owners in equal terms. That for sure is a translation of the idea of formal matrimony which the parties formalized on 14^th July 2004 at the Transfiguration Church, Vura Parish, Honiara.
5. After securing the property the parties and their children resided therein in a temporary house built. The house was built from a loan acquired by the Petitioner from ANZ Bank in the amount of $28,750.00.
6. It may seem that after the marriage the family was never at peace. There was evidence of the Respondent not present at home for sometimes. When he was at home he would abuse by shouting, arguing, mistreating and intimidating his family. Around 1999 the Petitioner obtained restraining orders in the Magistrates Court to protect her and the children.
7. It would appear the parties must have lived together for some years before married in 2004. A clear indication affirms by the age of their first born daughter who was 23 years at the time of filing of this case on 14^th May 2019. She would have born in 1997.
8. In any event, the Petitioner left the matrimonial home with the children in 2011 for the first time. By then the temporary accommodation was yet to be completed.
9. In 2012 the Respondent called the Petitioner demanding money and threatening that he would sell the property. In 2013 the Respondent and the children returned home and she continued constructing the temporary house. In 2014 the Petitioner secured another personal loan of $55,000.00 from Pan Oceanic Bank. With the loan the Petitioner was able to procure materials and constructed a permanent house. The loan was secured by the Petitioner’s NPF contribution.
10. If the Respondent had not assisted in any way to participate in the construction of the houses, then it is with no doubt that marriage certificate clearly indicated that the Respondent was unemployed even on the date of marriage. Evidence further reveals that the Respondent had never been employed until to this date.
11. In such circumstances, he had nothing to contribute to construct or even to assist in subsistence provision to the family. The Petitioner was both the father and mother of the family, a rare situation which cannot be accepted in any community or society in Solomon Islands.
12. Indeed the Respondent had failed to manifest the responsibility vested on him as a father. He has an attitude problem succumbed by aggression, abusive and disrespectful. He has failed to honour his promise to provide care and offer security to his family; instead he became an element of threat and fear.
13. The legal basis for distribution of the matrimonial property is the application of Section 17 of the Married Women’s Property Act 1887 (UK). In this jurisdiction it was made possible to apply by virtue of Schedule 3 of the Constitution.
14. S.17 vested power upon the Court to exercise discretion in distribution of matrimonial home, after dissolution of marriage, depending on the evidence in each case. In the case of Tavake V Tavake^[1], Kabui J adopted the pronouncement in the case of Pettit V Pettit [1969] UKHL 5; [1969] 2 W.L.R 966 which stated “that the discretionary does not extend to making orders that vary agreed or established proprietary right to property. In other words the Court does not have the discretion to vary proprietary right under S.17 in the absence of agreed or implied proprietary rights. The proprietary rights of the parties must be picked up from where they are and not to be picked up and shared because it prove difficult to work out the intention of the parties”.
15. In the case of Numomalo V Konainao^[2], the Court of Appeal stated, “it is not expected that a transaction between the spouses prior to their marriage or when they are happily married be evidenced in the same way as or ordinary Commercial transaction in where the rights of the parties are sufficiently defined the ordinary principles of law apply and where the Court can clearly see that the parties intended that a particular property should belong to one or both of them jointly, whatever happened, there is no discretion in the Court to override that intention”. This is particularly true where the matrimonial home and contents are in dispute.
16. In the cases of Goodhew V Goodhew^[3], the static approach in the cases of Tavake V Tavake and Numomalo V Konainao was rather relaxed. Paragraph 34 (part thereof) stated, “The just outcome depends on the circumstance and must have regard to the legitimate interest of both parties. The outcome will also be significantly affected by the presence of the children and which of the parties will have immediate responsibility of their care should they not be independent”.
17. In another case Saimei V Kenekene^[4], the Court took account of the welfare of children as of paramount interest. That includes their care, welfare, upkeep and residence. The Court concluded where the matrimonial home is a shared property must first be considered in favour of the children.
18. From the Kenekene case the prime determinant factor the Court considered is who has the custody. In the current case the custody issue is a free movement of children, but permanent residence is with the mother, the Petitioner, ever since even throughout the years of turmoil.
19. In the Kenekene case the Court eventually ruled that the house should be transferred in favor of the two children of the marriage and possession granted to Kenekene so that she and the children may reside in the matrimonial home.
20. In the first two case authorities, both can well be identified as adopting none discretionary static kind of approach. Instead reference to the intention of parties is paramount and took precedent which the Court must somehow labour to discover the purpose at that very moment when the parties acquired the interest in the property.
21. If that is the paramount consideration, then would the Respondent an unemployed party, ever since, took advantage of the marriage and acquired equitable interest as the Petitioner in the property?
22. As an unemployed party the Respondent contributed nothing to the purchase and construction of the two uncompleted buildings erected by the Petitioner on the land. Worst still he provided nothing as a father to lay on the table as all fathers would oblige to do.
23. The cases of Goodhew V Goodhew and Saimei V Kenekene discuss above, has paved the way that discretionary though not absolutely removed, but regard must be had for the interest of the parties and that which would affect the children and which party take care of the children.
24. Naturally the welfare of the children is still placed in the highest priority as it may seem. That should take precedent over the interest of the parties. More solidified, that should add weight upon the shoulder of the party who has the custody and care for the children.
25. In this case the Petitioner has been taking care of all the children. She ensures the children are provided with food, shelter, clothing and education, as the basic need for human survival. She is an employee of FFA and had managed by herself until her first daughter who is now 23 years of age and the rest follow suit. She did it single handed without any assistance from the Respondent.
26. The Respondent is entitled to be described as a domestic violence being and a self-centered father and husband. He often lived with the children and brought home nothing. Yet he wants to benefit out of the property which he shared nothing to construction. However the Petitioner had suffered extensive losses; in energy looking after the four children and financial loss in terms of repayment of the two loans. At one stage she kept on enduring hardships and financial woes. What then should be her ultimate reward and the children she had been caring and nurturing?
27. At one stage the Respondent threatened to sell the property unless he was given $40,000.00. That was an event that preceded his previous consent to transfer the property to the children. In fact he was playing a fake game for money reasons. Unfortunately the Petitioner gave him $20,000.00 and that subsequently fell into the devils pit, what a man, what a story to tell, it’s sad.
28. The Respondent indeed had no empathy and love for the children. On two occasions he chased the Petitioner and the children out from their uncompleted temporary building. He destroyed the family clothing, suitcase, photographs and other valuables in particular those belonging to the elder daughter Miss Athena Rafe.
29. Sadly the children throughout the marriage had to put up and accept humility every circumstances experienced by their mother, the Petitioner.
30. The two eldest daughters Athena (23) and Samantha (19) had expressed themselves by filing sworn statements that both desire the property to be transferred to them. They had never lived in the property since they were chased out. And have expressed that they had been depending on the mother ever since and wanted the mother to reside with them on the property so that to them will be a home at last. Both further expressed that their mother had been responsible to buy materials to build the two uncompleted houses. She was the only mother who supported them and who will improve and develop the property for them.
31. In the final analysis the Respondent has not filed any defense. He has failed to attend Court on motion days and at this hearing as well.
32. I noted the evidence and submissions and the manner in which the Petitioner had suffered extensive losses and damages due to the attitude of the Respondent. The only reward merited is the grant of possession to the property containing the two houses to her and the children, as a reward for her toil she had endured throughout all the challenges and the hardships she and her children had encountered during her marriage life with the Respondent. I must therefore grant the following orders to reflect the total reality.

Orders:

1. That the property in Parcel No. 191-004 - 49 in the joint names of the Petitioner and the Respondent be transferred in favour of the children as owners in common in equal undivided shares according to the following:
2. The registered interest of the Respondent to be transferred in the names of the two eldest daughters.
3. The Petitioner’s registered interest to remain but as a trustee to other two children Franko Rafe and Shane Rafe until they come of age.
4. Any party refuses to execute the transfer instruments, the Registrar or the Assistant Registrar of the High Court shall execute the instrument.
5. That the Respondent gave vacant possession of the matrimonial property to Petitioner and the children within 30 days from the date of this decision.
6. Possession is hereby granted to the Petitioner so that she and the children reside in the matrimonial home.

The Court.

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^[1] HCSI – Civil Case No. 280 of 1996.
^[2] [2015] SBCA 5; SICOA – CAC 29 of 2014 (24 April 2015)
^[3] [2008] SBCA 7: CAC 36 of 2007 (18 July 2008).
^[4] [2007] SBHC 54; HCSI – CC 243 of 2005 (31 May 2007)