Sasango v Beliga [1987] SBMC 5; [1987] SILR 91 (5 August 1987)

[1987] SILR 91

IN THE MAGISTRATES’ COURT OF SOLOMON ISLANDS
MALAITA DISTRICT

Civil Case No. 95 of 1987

SASANGO

v

BELlGA

Magistrates’ Court, Malaita District
(M.W. Lodge, Principal Magistrate)
Civil Case No. 95 of 1987

Judgment: 5th August 1987

Custody of children - matrimonial property - applicability of custom rules - evidence of custom - welfare of children paramount consideration.

Facts:

The plaintiff claimed custody of her seven children, and the return of certain custom valuables including pigs, shell money and porpoise teeth. They were being held by the defendant and his brothers, who were the brothers of the plaintiff’s late husband. The defendant argued that according to Malaita custom the children and the property passed to him after the death of the plaintiff’s husband as he had contributed to the bride price for the plaintiff.

Held:

The paramount consideration is always the welfare of the children. The rules of custom have effect and must be considered, and it may be desirable for the children to live according to the custom rules. Custom must be proved by evidence. Considerations of the welfare of the children must prevail and on the facts of this case it is in the best interest of the children to live with the plaintiff. Sukutaona v. Houanihou [1982] S.I.L.R. 12 followed.

Lodge PM: In this case the plaintiff has applied to the court for three orders under s.22 of the Magistrate’s Courts Act; an order for custody of her 7 children, an order restraining the defendant from molesting the plaintiff and an order for the return of certain property.

The facts upon which the application is based are not in dispute. The plaintiff is a widow, and the defendant is her late husband’s brother. The plaintiff’s husband died about two years ago but the plaintiff continued to live in his home village until April 1987. At that time she was caught out in a brief affair with another man. The defendant and his brothers were angry about this and chased the plaintiff out of the village, refusing to allow her to take her children and holding on to all the property which they said had belonged to the plaintiff’s husband.

The defendant claims that in custom he has the right to all the children. He says that he and his brothers paid for Mariawana and following the death of her husband, he has control over both Mariawana and the children. As Mariawana has committed a serious breach of custom, he is entitled to chase her away but keep the children.

The plaintiff on the other hand bases her claim on the contention that the paramount consideration in custody cases is the welfare of the children and that customary law is of secondary importance. She says that the interests of the children would best be served by allowing them to remain with her.

The question of which law is to be followed in cases such as this has been considered before by the courts in Solomon Islands. The matter was considered by the Chief Justice in the case of Sukutaona v. Houanihou [1982] S.I.L.R. 12. In that case the Chief Justice ruled as follows:

"It is quite right that custom law is now part of the law of Solomon Islands and courts should strive to apply such law in cases where it is applicable. However it must be done on a proper basis of evidence adduced to show the custom and its applicability to the circumstances. This evidence should be given by unbiased persons knowledgeable in custom law or extracted from authentic works on custom.....

In any event it remains open to question to what extent rules of custom law of the kind discussed in this case should be firmly applied to cases where the welfare of children is at stake.

The courts have always regarded the interest of the children to be of paramount importance and should continue to do so.

Due regard for the custom background may well be an important factor in deciding where that interest lies in the sense that custom rules may well be designed to protect the children from an unsatisfactory family life where, for example, a husband or a wife has gone off with another partner and the custom rule says that parents should not have custody."

In deciding this case I am bound to follow this precedent and accordingly I must consider the interests of the children as the paramount factor.

Mariawana is the natural mother of all the children and they have lived with her all their lives. She has not been criticised as a mother and I am satisfied that she is able and suitable to bring up the children properly in accordance with the expectations of normal village life in the Solomon Islands.

The defendant has not chosen to give me a great deal of information about his living conditions at home, or his ability to bring up the children, but I see no reason to suppose that the children would not be adequately provided for with him at Faufu village. I am sure that it would be a perfectly normal village environment.

I do think however that it would be better for the small children in particular to stay with their mother. There is obviously a strong natural bond between children and their mother, and these children have spent all their lives so far close to their mother. When they are old enough they would be able to make their own decision as to whether they wish to stay with their mother’s family or go and stay with Balasido’s family.

As to the older children, Filomena and Lucia, there is very little to differentiate between the two claims in terms of their welfare. I have considered the custom rules put forward by Balasido and I accept that in custom the man’s line may have rights over the wife and the children of the marriage. It could be seen as desirable for the children to follow the rules of custom. However, as far as it affects the welfare of the children, I cannot accept that Mariawana’s conduct was so bad as to adversely affect the children’s welfare or give them an unsatisfactory family life.

On balance I think that it is probably desirable that all the children stay together. This is particularly so as there seems to be a permanent rift between Balasido and Mariawana and it is unlikely that if the children were split up they would see much of each other.

I therefore find that it is the best interests of all the children to remain with their mother and I award custody to Mariawana.

I will now turn to consider the claim for the return of six tafuliae, one thousand porpoise teeth and four pigs. As to the tafuliae and the porpoise teeth the plaintiff claims that four of the tafuliae and the porpoise teeth are her own property, and two of the tafuliae were entrusted to her by her late husband for the children.

The defendant admits that the tafuliae are for the children but says that in custom Mariawana has no right to any property of her own. He also says that she must pay compensation to him for the affair she had in April.

I can only give a decision on the basis of customary law if that law is proved by evidence of the relevant custom. Such evidence should be impartial and unbiased. In this case the defendant has not produced any such evidence. He did call a number of his brothers as witnesses, who all said that in custom the husband’s property must pass to them, not the widow. I can accept that this proposition is correct and I can also accept that there may be a valid claim for compensation against Mariawana.

However, it is not the plaintiff’s case that the property belonged to her husband. She says it was her own personal property, except for two tafuliae. There is no impartial evidence of customary law before me to prove that a widow must give up all her personal property to the husband’s brothers.

I believed the plaintiff’s evidence about the property and I find as fact that four tafuliae, and one thousand porpoise teeth belong to the plaintiff. They are hers and she has a right to immediate possession of them. The defendant is wrongly detaining the chattels and must return them. The two remaining tafuliae I am satisfied were for the children. As I have granted custody of the children to the plaintiff I cannot see that the defendant any longer has the right to keep them and I order him to return them to the plaintiff to be kept for the children.

As to the four pigs the defendant denied that they belonged to Mariawana, though he admitted that they were fed by her. He said that they were kept in his fence and really belonged to Stephen. Stephen was called as a witness, but he said nothing about the pigs. The pigs have now died in any case. Though it is suggested that Balasido killed them, there is insufficient evidence to establish this as a fact, and Balasido himself strenuously denied killing them. It is not possible to make a certain finding as to whether the pigs were killed, and thereby converted in law, or whether they died from natural causes and would have died in any event. In these circumstances I cannot see how Mariawana’s claim in detinue or conversion can succeed. The chattels claimed do not exist any more and there is insufficient evidence to establish that the defendant has lost possession of the chattels by converting them, or in breach of any contract with the plaintiff. I find that the claim for the four pigs must fail. At best, Mariawana would have a claim in negligence if she could prove that Balasido carelessly allowed the pigs to die, or killed them himself.

The final claim is for a non-molestation order. While I accept that Balasido did assault Mariawana in April 1987 there is no evidence of any further assault since then. I also take into account that Balasido has now been sentenced to six months in prison, and that Mariawana has left Faufu village and is unlikely to return.

It is rarely appropriate to make a non-molestation order for an indefinite period and in this case, where it is unlikely that violence will recur within the next few months, I decline to make the order.