Hou v Bobby [2023] SBHC 19; HCSI-CC 638 of 2020 (15 March 2023)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Hou v Jason Bobby
Citation:
Date of decision:	15 March 2023
Parties:	Diana Hou v Jason Bobby, Cecilia Temoua
Date of hearing:	26 August 2022
Court file number(s):	638 of 2020
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Faukona, DCJ
On appeal from:
Order:	1. The Petitioner will have; (a) 15 seater bus Reg. No. MC0097 now in the custody of the Petitioner. (b) A property in Auki, Malaita Province, consisting of a near completed house. The title must be immediately transfer to her if currently held by the Respondent. (c) A partly purchased plot of land at Gilbert Camp, Honiara. The Respondent to fully purchase that land within one month from the date of this judgment and title transferred to the Petitioner immediately thereafter. 2. The Respondent will have the following properties; (d) Vehicle (Hilux) reg. no. MAO429 now in the custody of the Respondent. (b) PN 191-004-1752 where he currently reside and the canteen located within. (c) PN 191-002-70 lower Panatina remains the property of the Respondent. 3. No order as to costs, parties to meet their own costs.
Representation:	Mr. J. Iroga for the Petitioner Mr. R. Tovosia Law Chambers Barristers, for The Respondent
Catchwords:
Words and phrases:
Legislation cited:	Married Woman Property Act 1882 (UK) S 17, Constitution S 3, Land and Titles Act S 163 (2), Subsection (3)
Cases cited:	Tavake v Tavake [1998] SBHC 118, Numomalo v Kanainao [2015] SBCA 5, Rimmer v Rimmer [1953] 1 QB 63, Pusau v Pusau [2001] SBHC 86

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 638 of 2020

BETWEEN

DIANA HOU
Petitioner

AND:

JASON BOBBY
Respondent

AND:

CECILIA TEMOUA
Co-Respondent

Date of Hearing: 26 August 2022
Date of Judgment: 15 March 2023

Mr. J. Iroga for the Petitioner
Mr. R. Tovosia Law Chambers Barristers, for the Respondent

JUDGMENT ON APPLICATION FOR DISTRIBUTION OF MATRIMONIAL PROPERTIES

Faukona R, DCJ: A petition for dissolution of marriage was filed by the Petitioner on 2^nd December 2020. On 20^th September 2021 a notice of dissolution of marriage, decree absolute was perfected by the court.

2. The outstanding issue after the dissolution of marriage is the distribution of the matrimonial properties. The parties are quite vocal about the existence of such properties acquired through the life time of their marriage. And both have agreed in their submissions that the number of properties to be distributed is seven.
3. On the out-set it is fundamentally important to point out that there was no issue out of the marriage of the parties.
4. On 9^th March 2020, the Petitioner filed what she termed as application for equal distribution of the matrimonial properties.
5. From material evidence on file, the Court is able to gather certain properties, their identities and locations. The following are the properties to be distributed;
   1. FTE in PN. 191-043-54 located at Mbaranamba with 2 storey building structures, registered in the Respondent’s name.
   2. FTE in PN. 191-002-70, located at lower Panatina with double storey building structure, registered in the Respondent’s name.
   100. FTE in PN. 191-004-1752 located at Henderson with a canteen structure, registered in the name of the Respondent.
   4. Hilux vehicle reg. No. MA 0429.
   5. 15 Seater bus Reg. No. MC 0097.
   6. A plot of Land at Kunu, Auki, still not transferred.
   7. A plot of land at Gilbert Camp, yet to be transferred.
6. The list of properties, their status and locations is expounded in” Exh. JB” and schedules as 1, 2, 3 and 4 which attached to the Respondent’s sworn statement dated 28^th June 2022. The parties seem to concede that the parties are the properties acquired during the course of their marriage. There are two additional properties listed in the application filed on 9^th March 2022. However seven in all is the final number of properties.
7. Also, noted is a significant factor that in a matrimony home comprises of father, mother and children. In this case according to the petition filed on 2^nd December 2020, parties do not have child.
8. However, in the Petitioner’s sworn statement filed on 9^th March 2022 in support of the application to settle matrimonial properties, the petitioner included an adopted child seven (7) years old and namely, Geralah Togiamae. In any event that was six (6) months after the notice of dissolution of marriage was perfected by the court on 20^th September 2021. It must therefore the reality that the child was adopted after the petition was filed and after the Petitioner had left the Respondent sometimes in June 2020.
9. The parties had entered into a civil religious legal matrimonial marriage in a Church on 8^th July 2010. They lived together as husband and wife for 9 years and 11 months, after which the wife departed the union in June 2020.
10. At that time when the marriage was subsequently in a broken state and the parties left their ways, they were by themselves.
11. Unfortunately, there is no provision in the Islands Divorce Act to deal with settlement of matrimonial properties. Therefore S.17 of the Married Women Property Act 1882 (UK) is borrowed under schedule 3 of the SI Constitution to have it applied.
12. S.17 states, “In any question between a husband and wife as to the title to, or possession of a property, either party... may apply... to any Judge of the High Court of England, and the judge may make such orders in respect to the property as he sees fit”.
13. Premise on that provision the Petitioner filed this application for settlement of seven properties located in various locations, after the Court had dissolve the marriage on 20^th September 2021.
14. The effect of the Act gave complete independence to all married woman regarding rights of ownership of all manner of property and right to enter into contract and to sue and be sued on the same footing as the husband.^[1]
15. The interpretation of S.17 has been decided in numerous cases. However, such cases have not been consistent in terms of conclusive approach to deciding cases under this provision. In Rimmer V Rimmer, the relationship had given rise to difficulties of proof when the marriage break down and the ownership of properties in issue.
16. In any event, one thing is certain that the power of the Court under s.17 has been agreed to as being discretionary depending upon the evidence before the Court on case by case basis.
17. The extend of the discretionary power has now being settled by the case of Pettit V Pettit. The position is that whilst the Court does have discretionary power to make orders under S. 17, such discretionary does not extend to make orders that vary agreed or established proprietary rights to the property. The proprietary rights of the parties must be picked up where they are, not to be picked and shared between the parties, simply because it proves difficult to work out the intention for the parties.^[2]
18. Whilst the discretionary power and its extension is precisely clear, one other aspect emphasize in the case Numomalo v Kanainao^[3], last paragraph of page 9, states, “after seeing and hearing the witnesses, the Court has to try and conclude what was in their mind at that time of acquisition, and then make an order which, in the changed conditions, if any, family gives effect to what the parties must be taken to have intended at the time of the transaction,” see also Pusau V Pusau.
19. Where the rights of parties are well defined, the ordinary principle apply, and where the court can clearly see that the parties intended that a particular property belong to one or both jointly, whatever happens, there is no discretion in the court to override that intention.
20. Where the home and contents are in dispute, for there are family assets acquired with no thought of what is to happen in the future should the marriage break down.
21. It would appear the dispute circles around only two properties, FTE in PN.191-004-1752 (Henderson), and FTE in PN.191-002-70 (Lower Panatina) which is the major concern of the Petitioner. The rest of the properties will remain as parties suggested. The Petitioner even suggested urging the Court to make an order that those two properties be sold and proceeds equally distributed between both parties after deduction of the loan.
22. The Petitioner’s case is those properties were acquired during the course of their marriage and the intention was to jointly own by both couples.
23. That she had contributed by involving as a legal wife in assisting the Respondent caring for him, cooking for him, washing his clothes, helping with paper work for loan and discussing and sharing of ideas and need to purchase those properties.
24. The Respondent’s case is that at that time and during the subsistence of the marriage the Petitioner was not employed, she earned nothing and contributed nothing towards the acquisition of the properties. She was merely depended entirely on him for all her needs, wants and education.

Analysis of evidence.

25. The acquisition of the first property, that is, Mbaranamba property, FTE in PN 191-043-54, was done and registered in the name of the Respondent in 2013, about three years after the legal marriage of the parties. Even then there was no issue. Only the parties were living together at Henderson.
26. The manner in which the Mbaranamba property was acquired is an issue and may tantamount to criminal allegations according to the Petitioner.
27. The Respondent in evidence stated that the property was bought by Tatalana Building and Construction Company for him. Who at that time was the shareholder and Director of the Company? In challenging that evidence the Petitioner attached Exh. “DRH2” to her sworn statement filed on 19^th July 2022.
28. The exhibit is a Company House document that recorded the directorship and shareholding of Tatalana Builders Company. The documents reveal that, the respondent was never a Director or Shareholder of Tatalana Builders Company since 2006 or thereafter when the Directorship changed hands and Shareholders ceased.
29. Further, the Petitioner stated in evidence that the Respondent was an ordinary employee of Tatalana Building Construction Company. As a matter of fact he misappropriated huge sum of money from the Company, and subsequently was terminated.
30. That piece of evidence as attested to by the Petitioner was never challenged. It must be accepted that the Mbaranamba property was purchased with misappropriation of funds belonging to the Respondent’s employer.
31. Accepting that as a source in acquiring the first property, would the Petitioner accepted as part of her intention with the Respondent, or was she a willing couple to indulge in that sort of activity, which from her evidence precisely expressed as criminality in nature.
32. I would not think the Petitioner would give herself up and substituted with evilness in order to acquire equitable intention to share the value of the property.
33. What actually transpired, gathered from the evidence, is that the Respondent had acquired the first property through misappropriation of his employer’s funds. That intention was his own, unless the wife had agreed to indulge in such activities which is doubtful in the circumstances of this case.
34. The property may be regarded as matrimonial property from the outside perception, however, its acquisition was done individually with secrecy to conceal even without the knowledge and intention of the wife (Petitioner).
35. Where knowledge of the wife (Petitioner) was apprehended, due to misdeed then it cannot be logic to treat that as a common intention of parties to acquire the Mbaranamba property on the basis of equal ownership. The fact is that there was no common prior knowledge and intention of the parties to carry out misappropriation activities. As such the intention of the parties were unequivocal, therefore the property cannot be treated as matrimonial property own by both the petitioner and respondent on equal basis.
36. The idea of domestic duties of the wife in assisting the husband, for instance, caring for him, cooking for him, washing his clothes, special care and assistance in times of ill-health, and common discussion of ideas are discounted by the merit of s.17 of the Married Women Property Act 1882 (UK). Discounted in the sense that those intimated assistance do not qualify a married women to claim equal ownership, or part of the properties acquired by the husband during the course of the marriage. If she contributed nothing financially to the acquisition of the property, unless by agreement, then she has nothing of any share of it.
37. What the Courts admonishes in an attempt to resolve disputes related to family properties is common intention and what parties agreed upon at the time of acquisition of the property. In property (1) there is no evidence of common intention by the parties or agreement in acquiring the property to be owned by both.

Property (3).

38. There is evidence that property (1) was mortgaged to Bred Bank to obtain a loan to purchase property (3) PN 191-004-1752, Henderson. This property was registered in 2014.
39. In the Petitioners sworn statement of 19^th July 2022, paragraph 4 she stated that she did help out with paper work and follow up on the loan arrangements. Undoubtedly she was aware of the loan arrangements but never intent or thought of that she could be part of the application as husband and wife.
40. However, at paragraph (15) of the same statement she agreed that the Respondent’s name alone be registered as the title holder of the property. That implicated consenting to the respondent to apply for loan under his own personal name excluding herself. .
41. It is my respectable view that any commercial registered property in any township in this country, acquired purportedly in the nature of matrimonial property, should click critical thinking whether the wife should be part take of it, or has a share in it. Do not think green grass will continue to flourish until the end. If there should any right that must not be withheld back from the wives. The wives must be alerted and be critical, husbands must not be selfish.
42. Therefore, a property constructed with loan money, financially it’s a bank property. Even if the title in the property is in the joint names of husband and wife.
43. Pursuant S.163 (2) Land and Titles Act, a registered charge on a loan amount is an encumbrance and cannot be transferred pursuant to subsection (3) of the Act.
44. In this case property (1) was registered in the sole name of the Respondent. The bank loan was in the name of the Respondent as the applicant. On both documents the names of the Petitioner was not mentioned therein. That would imply she had contributed nothing to it.
45. There is no evidence that both parties consented to apply for the loan jointly. The Petitioner was merely a bystander. If she had participated in the loan arrangement she should have realized that it was best her name be entered as joint applicants for the loan. Nothing ever occurred or ever thought of.
46. The principle of encumbrances and none transferable of the property mortgaged under bank loan make, is quite difficult to interfere with the rights of the bank.
47. If the Court should yield to the suggestion by the Petitioner that is to order the bank to sell properties 3 and 2 and shared the balance after the bank had redeemed itself from the outstanding loan, then on the outset the concern bank should have been a party to this distribution effort. Sadly the bank was not included as a party in the application for distribution. Should that been done the Court would have heard from the Bank concerning its policies and law guiding mortgaging of properties and their effects.
48. Meantime am afraid without views of the Bred Bank, property (3) cannot be disposed of in any way by an order of Court.
49. Not only that, but I find there is no evidence that parties had common intention to own the 3rd property (Henderson property) in common in the first place.

Property (2).

50. The Respondent in his sworn statement filed on 28^th June 2022, stated that he mortgaged property (1) Mbaranamba PN 191-043-54 and property (3) Henderson PN 191-004-1752 to obtain a loan from Bred Bank to acquire property (2) PN 191-002-70 lower Panatina. This property was registered in 2018.
51. After acquiring the loan the Respondent went into bank arrears. So property (1) Mbaranamba was sold to assist in the repayment of the loan. Despite that repayment bank loans in millions are still outstanding.
52. My observations, views and ratio decendi will be the same as what I have attested to in property (3) at Henderson as above. Suffice to say that in Business Banking in Volume 3 Halsbury law of England, paragraph 157, it states:

“In taking security over court or subject to litigation, bankers are deemed to have notice, if they know an action is pending of possible rights of Solicitors to charging order for example the plaintiff’s interest, and if a charging order is made it will ordinarily have priority to the bankers charge.”

53. In this case there is no evidence Bred Bank was informed of this application to distribute two properties which are under mortgage. If they were notified but failed to attend then according to Halsbury Laws above, they are deemed and any order the court may make takes priority over the bank charge.
54. Sadly the bank was not aware of this application and neither a party to it. Therefore to make an order affecting the mortgage (security) would be unfair.
55. Second reason is that when a loan was approved, as I understand, there is an agreement endorsed by the bank and the borrower and that which guide the parties in their responsibilities and obligations until the loan amount plus interest are fully repaid.
56. In this case the Petitioner is not a party to that agreement. The obvious reason is that she was not the co-applicant to acquire loan which was secured by mortgaging of property (1) and (3).
57. In conclusion it is obvious there was no common intention of parties to acquire properties (2) and (3). There is no evidence available to affirm in any action or by words or even by implication.
58. The encumbrances by mortgaged properties do not also qualify the Petitioner to have a share. She was not part of the loans arrangement in terms of co-applicant or any other indulgent that will qualify her.
59. Subsequently the Court has no other proposals to resume to, to distribute what it terms as matrimonial properties.
60. The proposal conveyed by the Petitioner in her evidence and submissions is not workable and not harmonized within the bounds of law. Hence the only alternative is to resume to the proposal submitted by the Respondent.
61. I must therefore accept the distribution proposal alluded to by the Respondent.

Orders:

1. The Petitioner will have;
   • (a) 15 seater bus Reg. No. MC0097 now in the custody of the Petitioner.
   • (b) A property in Auki, Malaita Province, consisting of a near completed house. The title must be immediately transfer to her if currently held by the Respondent.
   • (c) A partly purchased plot of land at Gilbert Camp, Honiara. The Respondent to fully purchase that land within one month from the date of this judgment and title transferred to the Petitioner immediately thereafter.
2. The Respondent will have the following properties;
   • (a) Vehicle (Hilux) reg. no. MAO429 now in the custody of the Respondent.
   • (b) PN 191-004-1752 where he currently reside and the canteen located within.
   • (c) PN 191-002-70 lower Panatina remains the property of the Respondent.
3. No order as to costs, parties to meet their own costs.

The Court.
Hon. Justice Rex Faukona.
DEPUTY CHIEF JUSTICE.

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^[1] Tavake V Tavake [1998] SBHC 118; HCSI-CC 280 of 1996 (9 August 1998) paragraph 2, page 4.
^[2] Ibid (2).
^[3] [2015] SBCA 5; SICOA-CAC 29 of 2014 (24 April 2015).