Idurara v Idurara [2023] SBHC 96; HCSI-CC 334 of 2020 (4 September 2023)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Idurara v Idurara
Citation:
Date of decision:	4 September 2023
Parties:	Joyce Idurara v John Idurara
Date of hearing:	28 April 2023
Court file number(s):	334 of 2020
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Faukona; DCJ
On appeal from:
Order:	1. The following properties are awarded to the Petitioner; a. 1 x 4 bedroom house, Otelo village, Reef Islands. b. 2 x 2 bedroom house, Otelo village, Reef Islands. c. Building containing a shop at Lata. d. 1 x 3 bedroom house at Lata. e. 1 unit (5 door Rav 4) at Lata. f. FTE 191-052-897 with residential building at Kombivatu. g. 2 units cars Reg. No. MB4370 and MB4371 2. The following properties are awarded to the Respondent; a. 1 x 3 bedroom house at Rifle Range. b.1 x 3 bedroom house at Mbua Valley c. 2 vacant land at Kombivatu PN: 191-052-893 and FTE 191-052-894. d. Vacant land at Henderson PN: 192-004-115. e. 4 unit cars Reg Nos MC1774, MC2646, MC2647 and MC3257. 3. All the children of the marriage will remain in the custody of the Respondent, with liberty to move around to visit their mother any time they wish. 4. No maintenance is ordered, but the Respondent has fully responsibility over the children and all their affairs. 5. No spousal maintenance because the Petitioner had been living together with another man since 2020. 6. No order as to costs, parties to meet their own costs.
Representation:	Mr S Balea for the Respondent No one for Petitioner
Catchwords:
Words and phrases:
Legislation cited:
Cases cited:	Pettit V Pettit [1969] 2 WLR 9, Saimei V Kenekene [2007] SBHC54

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 334 of 2020

BETWEEN

JOYCE IDURARA
Petitioner

AND:

JOHN IDURARA
Respondent

Date of Hearing: 28 April 2023
Date of Ruling: 4 September 2023

Mr S Balea for the Respondent
No One for the Petitioner

Ruling on application for distribution of matrimonial Properties, custody and Maintenance of children

Faukona DCJ: This case commenced with the application for divorce filed on 17^th July 2020. On 30^th October 2020 decree nisi of divorce was endorsed and decree absolute was endorsed by the court on 4^th February 2021.

2. There is no order as to custody and maintenance of children. In fact Counsel did not address the Court on those issues. However they were entrenched in this application. Therefore the issues of custody and maintenance of children are inclusive in this ruling.
3. The main issue is distribution of matrimonial properties which was filed by the Respondent on 27^th October 2022.
4. These was no response filed by the Petitioner but I read all the sworn statements relevant to this application including in particular her sworn statement filed on 22^nd March 2021.
5. There was no respondent to the application for distribution of matrimonial properties filed on 27^th October 2022, by the Respondent.
6. Noted from Court record, on 28^th October 2022, the Court was informed that the Counsel representing the Respondent, Mrs. Munamua had died.
7. From then on, until the Respondent filed his written submissions on 3^rd November 2022, the Petitioner was not represented.
8. For two more adjournments after the Respondent had filed his submissions attempts were made to get the Petitioner to attend Court was difficult. Therefore the Court decided to make a ruling in this application to have it done.
9. The Court will read the application, written submissions by the Respondent and all the relevant sworn statements filed by both parties.
10. First of all, there is sworn statement of proof of service that the Respondent was served with the application and a sworn statement on 28^th October 2022.
11. Since she was served there was no response by the Petitioner and no submissions filed. She had sufficient time to find a lawyer, or herself appearing in Court. In any event neither of them was done.

Background history.

12. The Petitioner is this case is from Otelo village, Reef Islands, Temotu Province. The Respondent is from Walo village, Malaita Province, but had been living at Mbokonavera (1) and operating various businesses ever since.
13. On 24^th September 2009 the parties legally married at the Central Magistrate Court, Honiara. Before that, on 28^th March 2007 they entered into a customary marriage by payment of bride price.
14. After the marriage parties lived together in Honiara and cohabited and had four (4) issues, namely Bernsten Idurera 14 years, Constein Idurara 12 years, Jayden Idurara 8 years and Dunstern Idurara 7 years.
15. The Petitioner was a student at Waimapura Secondary School. By evidence she did not complete her School and left in 2005. Two years later she entered into a customary marriage to the Respondent on 28^th March 2007.
16. She was unemployed when they got married. However, upon marriage she was employed by the Respondent in his business and later look after the Respondent’s bottle shop at Kakabona village, West Honiara.
17. According to the sworn statement of Mr. Ningalo filed on 13^th January 2021, his relationship with the Petitioner developed over 2019 and in early 2020 they started to live together.
18. In 2018 the Petitioner started deserting the Respondent. In that year as well, Mr. Ningala started to transport the Petitioner to her work place at the bottle shop at Kakabona. That was the start of the everything.

The period of marriage:

19. The period the marriage union of the parties was from 28^th March 2007 to 4^th February 2021. Any property acquired whilst the marriage was current that will be considered in the distribution of matrimonial properties. Any property acquired before marriage or after shall not be considered.
20. There is unchallenged evidence that the Respondent had established his business activities since 1997, 10 years before parties got married?
21. Therefore the total number of properties the parties acquired during the span of their marriage are;

1. Properties at Otelo village, Reef Islands.

(a) 1x 4 bedroom house.
(b) 2 x 2 bedroom house.

2. Properties at Lata station, Santa Cruz

(a) Retail store and building
(b) 1 unit (5 doors) Rav 4 Toyota used as taxi at Lata.
(c) 1 x 3 bedroom house at Lata.

3. Properties in Honiara.

(a) 2 unit cars (used for taxi) Reg. NOS: MB 4370 and MB 4371.
(b) 1x3 bedroom house at Mbua Valley.
(c) 1x3 bed room house at Rifle Range
(d) 2 vacant land at Kombivatu FTE 191-052-894 and FTE 191-52-893.
(e) 3 bedroom house at Kombivatu in FTE 191-052-897.
(f) 4 unit cars Reg Nos. MC1774, MC2646, MC 2647 and MC 3257.
(g) Vacant land at Henderson FTE 192-004-115.

22. It would appear the distribution allocation suggested by the Respondent in his application is contested on four properties only, located at Kombivatu, Honiara. The issue of custody and maintenance is also contested.
23. The properties are:
    • (1) FTE 191-052-897 with a residential building (Kombivatu).
    • (2) FTE 191-052-894. Vacant land. (Kombivatu).
    • (3) FTE 191-052-893. Vacant land. (Kombivatu).
    • (4) A land with 1 x 3 bedroom house at Lata.
24. The Petitioner contested that FTE 191-052-897 and FTE 191-052-894 were her own. She got the titles for those two estates. FTE 191-052-894 was transferred to her by A.E Enterprise for a transfer consideration of $115, 230. 00 on 14^th February 2017, FTE 191-052-897 was transferred to her by A.E Enterprise for a transfer consideration of $99, 600. 00 on the same date.
25. Concerning FTE 191-052-893 was purchased jointly by her brother and sister. There is no copy of any registered title as yet produced as evidence in regards to this land.
26. Upon FTE 191-052-897, the Petitioner had built a residential house. Two other lands are still undeveloped.
27. The Petitioner argues that those lands at Kombivatu and Lata were purchased with monies she accumulated over the years from her canteen located at Otelo village, Reef Islands according to her sworn statement filed on 13^th January 2021.
28. In 2018 she moved to Lata Station and started her business under a business name “Joy Shop.” After 1½ years of operation it was ceased to operate.
29. The Respondent’s argument is based on his sworn statement filed on 26^th November 2020. He deposed the only property acquired during the current of the marriage is the land including the building at Kombivatu which the Petitioner currently residing.
30. Other properties at Kombivatu and one at Lata were secretly purchased by the Petitioner, from monies she got from his business. After learning of that dishonestly acts, provoked him to commit domestic violence.
31. The question to pause, is the Petitioner telling the truth that she purchased those properties from proceeds and interests from her canteen at Otelo village started with $1500.00, and then moved to Lata in 2018 which ceased one and half years later.
32. Quite contrary to that, is the sworn statement of the Petitioner filed on 8^th September 2020, in reply to counter-claim that Mr. Ningalo did not live with her at Kombevatu. She also stated that Mr. Ningalo lived in his own house at Mbua Valley and she lived with her family at Kombivatu.
33. The Petitioner as I perceived is quite untruthful in her evidence. Her sworn statement filed in September 2020, she could have deposed an update of what is going on. Instead her evidence runs contrary to Mr Ningalo evidence. They in-fact had a relationship in 2019 and stated to live together early in 2020.
34. In assessing the source of income the Petitioner acquired, it is unbelievable that she would acquire vast amount of money as $115,230.00 and $99,600.00 from a village canteen. The canteen moved to Lata the capital, of Temotu Province, and operated for roughly one and half years then completely closed.
35. The properties the Petitioner purchased at Kombivatu was probably before July 2017, which therefore registered in her personal name on 28^th July 2017. There is no evidence when she purchased the property at Lata. At that time of purchases the couples were still living together, but life started to rock. Mr. Ningalo started to transport the Petitioner to and from work in 2018, under an agreement.
36. Both FTE 191-052-894 and FTE 191-052-897 were registered on the same date. I could able to conclude they must be purchased on the same date or probably on interval of one or two days.
37. So where would the Petitioner get the source of funds to purchase those properties?
38. Am for sure not from a canteen started with just $1500.00 relatively small. Even moving to Lata where population of work force resided. However it operated for about years and then it closed down. Can the canteen’s earning capable of purchasing two registered land, one contributed, and one at Lata. And capable of building two residence houses. It can be possible to build a house when the stock in the shop amounts to $60,000.00 to $70,000.00 according to the submissions by the Respondent. But for more is unbelievable.
39. The only option is that the Respondent could be telling the truth that the Petitioner had been using the money from his business to purchase those properties. Though there is no evidence brought by documentation or audit report on missing money, however I could infer from the facts related in evidence surrounding the purchases of those lands. And looking at the Petitioner’s source of income.
40. In any event, I noted that the Petitioner was employed by the Respondent’s business immediately after marriage. The last position she held was managing or in charge of the Respondent’s bottle shop at Kakabona.
41. In 2018 there is evidence that Mr. Ningalo by an agreement used to transport the Petitioner to Kakabona attending work. Undoubtedly, providing transport for some months or whole of the year end up in having a relationship. I doubt their relationship commenced in 2019, but rather in 2018, during the period of transportation.
42. Therefore I must adjudge the distribution of disputed matrimonial properties according to the test provided in a civil case that is proof on the balance of property who is likely to tell the truth.
43. Upon assessment of evidence, apparently it seems the Respondent is telling the truth on the balance. This does not mean I would strictly abide with the suggested distribution he proposed. But ought to realize the Court has exercise some portion of power to distribute depending on circumstances of this case and principal of fairness.
44. In case of Pettit V Pettit [1969] 2 WLR 9, stated that the Court does not have the discretion to vary proprietary rights. The proprietary rights of the parties must be picked from where they are and not to be picked up and shared because it proves difficult to work out the intention of the parties.
45. In Saimei V Kenekene [2007] SBHC54, HCSI 243 of 2005, the court took account of the welfare of the children is of paramount importance, care, welfare, upkeep and residence, as one of the prime factors in the distribution, and who has the custody right.
46. In the Kenekene case the court was dealing with one property and a residence house built on it. In this case there are multiple properties.
47. In respect of property FTE 191-052-893 which was jointly purchased by the Petitioner and his brother and sister.
48. The Respondent’s version questions, and strongly denies that FTE 192-057-893, Kombivatu was jointly purchased by Peter Moake and her elder sister Barbara Alfred.
49. He explained in his sworn statement filed on 29^th April 2021 that P. Moake completed School at Honiara High in 2014. In 2015 he stayed with him, unemployed.
50. In 2016 he went home to the Reef Islands and got married. In the same year the Respondent built 2 bedroom house for him and his wife, at Otelo village. He remains there until today.
51. He questions if he is one among the three who jointly contributed to purchase the property. Where is his source of money coming from to share in the purchase?
52. Concerning Barbara, the Respondent explains, Barbara also unemployed residing at Naha. He assisted her on her request to pay 2 galvanized posts, walling timbers, toilet bars. Where could she obtain the money from to jointly purchase the property?
53. The Respondent’s version is clear and not challenged. I must therefore accept his version of evidence.
54. In the final analysis I hereby, distribute the entire properties in accordance to my view based on evidence and fairness.

Properties awarded to the Petitioner

1. Properties at Otelo village in the Reefs;
   • (a) 1 x 4 bedroom house.
   • (b) 2 x 2 bedroom houses.
   • Those houses are awarded to the Petitioner.
2. Lata, Santa Cruz Properties.
   • (a) Retail store and building at Lata.
   • (b) 1 x 3 bedroom at Lata.
   • (c) 1 unit (5 doors Rav 4) at Lata.

Those properties are awarded to the Petitioner.

3. Honiara properties.
   • (a) FTE 191-052-897 with resident building at Kombivatu.
   • (b) 2 new cars Reg. Nos. MB4370 and MB4371.

Those properties are awarded to the Petitioner.

4. Lata properties.

I have awarded FTE 191-052 -897 (Kombivatu) to the Petitioner on the ground that when the children visit their mother they would be comfortable living with her in her own house. In respect to three bedroom house at Lata, I have award it to the Petitioner on the ground that when the children travel home to the Reef Islands for holidays or whatever they would use the house in Lata as a transit before travelling to or travelling back from Reefs.

Properties allocated to the Respondent.

5. Honiara properties.
   • (a) 1 x 3 bedroom house at Rifle Range.
   • (b) 2 vacant land at Kombivatu FTE, 191-052-893, and FTE 191-052-894.
   • (c) 4 unit cars Reg. Nos MC1774, MC 2646, MC 2647 and MC 3257.
   • (d) Vacant land at Henderson PN: 192-004-115.
   • (e) 1 x 3 bedroom house at Mbua valley.
55. I am satisfied that the Petitioner had purchased properties at Kombivatu and Lata with the stolen money from the Respondents business. The registration of the 2 vacant lands at Kombivatu should be rectified and the name of the Respondent should be registered instead, if both had been transferred.

The issue of custody of children.

56. The parties have four children out of their marriage. They are Bernsten Idurara should be 17 years by now, Constein Idurara should be 15 years by now, Jayden Idurara should be 11 years by now and Dunstern Idurara should be 10 years by now.
57. Since the parties had separated in 2018 the children were moving between the parties. In the defence filed on 29^th July 2020, three bigger children were living with the Respondent and the little one was residing with the mother.
58. In the sworn statement of the Petitioner filed on 8^th September 2020, two children were living with her, Bernstein and Constein, the other 2 were living with the Respondent.
59. By the sworn statement of the Respondent filed on 26^th November 2020, attested that all the children were living with him.
60. In another sworn statement filed by the Petitioner on 13^th January 2021, she deposed in paragraph 12, that she partly accepted that all the children started staying with the Respondent after she instigated this Court proceedings.
61. In conclusion, on the balance, I find the welfare of the children are in the hands of the Respondents. He has a number of properties including houses and lands and transport, to easy transport the children to school and business. He also opened Bank Accounts for each child. The balances as at the end of August 2020 looks good and promising.
62. I do not doubt that the Petitioner is also a capable mother to look after and care for the children. She also own a house at Kombivatu and at Lata. In any event the Respondent provides more capable welfare of the children and their future are in his hands.
63. Even without a Social Welfare report, due to the failure of the parties to request but evidence show clearly the responsibilities and status of the parties.
64. I must therefore award custody of all the children to the Respondent. In such situation there should be no maintenance, because of the children are living with their father.
65. To separate the children and allow one or two to live with the mother, would contrary to the interest of the children who would love to live together, enjoy together and play together. Their togetherness will sustain and support each other.
66. The children will have total freedom to move between each party no more control by one particular party.
67. I shall refuse to award any spousal maintenance to the Petitioner because of the fact she had been residing with another man who she treat as partner since early 2020.

The Orders:

1. The following properties are awarded to the Petitioner;
   1. 1 x 4 bedroom house, Otelo village, Reef Islands.
   2. 2 x 2 bedroom house, Otelo village, Reef Islands.
   100. Building containing a shop at Lata.
   4. 1 x 3 bedroom house at Lata.
   5. 1 unit (5 door Rav 4) at Lata.
   6. FTE 191-052-897 with residential building at Kombivatu.
   7. 2 units cars Reg. No. MB4370 and MB4371
2. The following properties are awarded to the Respondent;
   1. 1 x 3 bedroom house at Rifle Range.
   2. 1 x 3 bedroom house at Mbua Valley
   100. 2 vacant land at Kombivatu PN: 191-052-893 and FTE 191-052-894.
   4. Vacant land at Henderson PN: 192-004-115.
   5. 4 unit cars Reg Nos MC1774, MC2646, MC2647 and MC3257.
3. All the children of the marriage will remain in the custody of the Respondent, with liberty to move around to visit their mother any time they wish.
4. No maintenance is ordered, but the Respondent has fully responsibility over the children and all their affairs.
5. No spousal maintenance because the Petitioner had been living together with another man since 2020.
6. No order as to costs, parties to meet their own costs.

The Court.
Justice Rex Faukona.
DEPUTY CHIEF JUSTICE.