The issues in the case pose questions of law that arise simultaneously from
the Constitution, another statute, the SINPF
Act, customary law and to some
extent, adopted law. That convergence of the various heads of our law is the
result of
history and of the rapid social changes that have occurred and
continue to occur because of changes in the way of life, livelihood
and even
in the demands on live. The mix certainly presents difficult questions of
law. Court of course interprets and
applies the law as it is at the time of
the event; it does not decide what law is best in changed social order. It
is
for the Executive and Legislature arms of government to effect deliberate
change in the law if they consider it just to do
so, when overwhelming
social and economic changes occur and they have information that notion of
what is regarded as
just has or is changing. As long as no change in the law
has occurred, the court must apply the law as it stands.
Tustomary law is applicable in this case is clear from sectisections 75 and
76 of the Constitution and section 36 of the
SINPF Act. I state them here:
Thstitution:
/p>
(1) Parliament shall make provision for the application ofon of laws,
including customary laws.
(2) In making provision under this section, Parliament shall have particular
regard to the customs, values and aspirations
of the people of Solomon
Islands.
76. Until Parliament makes other provision under the
preceding section, the provisions of Schedule 3 to this Constitution shall
have effect for the purpose of determining the operation in Solomon Islands
-
a) of certain Acts of the Parliament o United Kingdom mentioned
ned
therein;
c) of customary law; and
d) of the legal doctrine of judicial precedent.
Schedule 3 of the Constitution:tion:
3. (1) Subject to this paragraph, customary law shall have effect fect as part of
the law of Solomon Islands.
(2) The preceding subparagshall not apply in respect pect of any customary
law that is, and to the extent that it is,
inconsistent with this
Constitution or an Act of Parliament.
(3Act of Parliament may:
a) provide he proof and pleading of cuof customary law for any purpose;
b) regulate the manner in whichhe purposes for which
customary law may be recognisednised; and
c) provide for the reson of conflicts of customary
law.
The Solomon Islands National Provident Fund Aspan>
36.
"(c) If no person is nominated to receive the amount or the portion, then
the amount or the portion shall, notwithstanding
any law to the contrary, be
distributed in accordance with the custom of the member, to the children,
spouse and other
persons entitled thereto in accordance with that custom:
Provided that where at the time of his his or her death a member was living with
another person as husband or wife of
that person, without proper marriage in
law or in custom and had so lived for a period of not less than one year
then
any child born to the member and that other person as a result of their
living together shall, for the purposes of this paragraph,
be deemed to be a
legitimate child of the member and shall be entitled to a share of the
amount or portion in accordance
with this paragraph"
Of course what I have stated is subject to whether any rule of cuof customary law
is found to be unconstitutional.
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Issues as Formulated by the Plaintiffsn>
Mr. Suri formulated 4 detailed issues in the originating
summons and 8 requested orders which themselves raisveral issues. For
con convenience 1 quote here Mr. Suri�s issues and requested orders:
"1. Whether the Applicant EILEEN GAVN GAVEKE is entitled to the amount of NPF
contributions and interests standing
to the credit of her deceased husband
in the National Provident Fund by virtue of section 36 (c) of the NPF
(Amendment)
Act.
<
2. Whether the Applicant JAWARD GAVEKE, is ents entitled to the amount of NPF
contributions and interests standing to
the credit of his deceased father in
the National Provident Fund by virtue of section 36 (c) of the NPF
(Amendment) Act.
3. If the answer to eithestion (1) or (2) or both ofth of them is in the
affirmative, is EILEEN GAVEKE or JAWARD GAVIEKE
or both of them entitled for
(sic) share of the distribution of the said amount of NPF contributions and
interests.
4. Whether the Second Respondent was negligent in carrying out its statutory
duties under the NPF (Amendment) Act.
If tswer to question (3) is in the affirmative for an order thar that:
(a) The First Respondent po the Applicant
(deceased's wife) EILEEN GAVEKE, one - third (1/3) of the contributiobution plus
interests and profits he received from the Second Respondent.
b) The First Respondent pays to the Applicant (deceased's sd's son) JAWARD
GAVEKE one - third (1/3) of the contribution plus
interests and profits he
received from the Second Respondent.
(c) The First Respondent provide an account of all monies and prnd profits he had
received from dealing with the deceased's
contribution.
If the answer to ion (4) is in the affirmative for an order that:
>
(d) The Second Respondent provide an account of a of all the monies kept by it in
trust for the deceased's estate.
(e) The Second Respondent provide anunt of all the monies it pait paid to
the First Respondent.
(f) The Second Respondent pay compensation to the Applicants herein.
And for:
(g) An order that Applicant's cost of this application be n be paid by the First
and Second Respondents.
ass="MsoNoMsoNormal" style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1">
(h) Such other orders as this court deems fit."
For convenience I have summarised and consolidated the issues into just 3,
namely:
1. Whether Mson Tanavalu, the father ofer of Francis Gaveke Tanavalu, the
deceased, was entitled to draw the contribution
of the deceased from NPF and
to use and distribute it in the way he did, given the fact that the
deceased , although a tribesman was educated, employed, lived away from his
tribe, had a minor child, married according to the beliefs of Christianity
to an educated woman who was also employed.
2. Whether the rights of the widow and minor child of FrancFrancis Gaveke
Tanavalu are to the NPF contribution of Frames,
and whether they have a
claim against Mr. Nason Tanavalu, the father of the deceased and if so
whether the reliefs that
may be ordered are 1/3 of the contribution to each
as claimed.
3. Whether Solomon Islands National Provident Fund was negligent in paying
the contribution of Francis Gaveke Tanavalu
over to Mr. Nason Tanavalu, the
father, upon the death of Francis and therefore liable to the widow and son
of Francis
for negligence.
Inconsistency with the Constitution
In resolving the issues raised, it is appropriate to start with the
he
fundamental question of inconsistency with the
Constitution. That is because
all laws to be applied in Solomon Islands must not be inconsistent with the
Constitution
of Solomon Islands adopted on 7 July 1978. That means that if
the plaintiffs or the defendants rely on the SINPF Act or on
customary law,
for the success of their cases, and should it be found that the particular
provision in the SINPF Act
or the particular rule of customary law, relied
upon, is contrary to any provision of the Constitution, that provision of
the SINPF Act or the rule of customary law will be inapplicable and so the
plaintiffs or the defendants will not be able
to rely on them. The result
will be that their cases or defences will be rejected. In short the
plaintiffs or the defendants
will then lose their cases. That statement of
the law comes from section 2 of the Constitution; it reads:
2. This Constituts the supreme law of Solomoolomon Islands and if any other
law is inconsistent with this Constitution,
that other law, to the extent of
the inconsistency, will be void.
When Fr Tanavalu died, his contribution was available for collectilection in
terms of sections 35 and 36 of the SINPF
Act. Section 36 has been amended
twice, the two sections in their present forms read:
lass="MsoNoMsoNormal" style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1">
35. Any employee or member of the Fund may by a memoraemorandum executed in the
prescribed manner nominate a person or
persons to receive in his or their
own right such portions of the amount payable out of the fund under section
33 on
his death as such memorandum shall indicate, and any employee who does
not nominate such a person may be required by the Board
to declare in
writing that he does not desire to do so:
Provided that the subsequent marriage of a nominator
shall render any nomination made by him null and void.
36. Where a member of the Fund dies, the amount standing to his credit in
the fund shall be dealt with by the Board in
the following manner
a) if his widow or any person over eighteen years is nominated to receive
the amount (or any portion of it) under section
35 then the amount of that
portion shall be paid to the widow or that person as the case may be.
b) If any person under eighteen years (other than his wido widow is nominated to
receive the amount) or (any portion of it)
under section 35 then the amount
or that portion shall remain in the Fund and shall be deemed to be held by
the Board
in trust for that person until he reaches the age of eighteen
years.
ass="MsoNoMsoNormal" style="margin-left: 72.0pt; margin-top: 1; margin-bottom: 1">
c) If no person is nominated to receive the amount or t or the portion, then the
amount or the portion shall, notwithstanding
any law to the contrary, be
distributed in accordance with the custom of the member to the children,
spouse and other
persons entitled thereto in accordance with that custom:
Provided that where at the time of his or her death a member was living with
another person as husband or wife of that
person, without proper marriage in
law or in custom and had so lived for a period of not less than one year
then any
child born to the member and that other person as a result of their
living together shall, for the purposes of this paragraph,
be deemed to be a
legitimate child of the member and shall be entitled to a share of the
amount or portion in accordance
with this paragraph."
There is nothing inconsistent with the Constitution in a law law that provides
for anyone to nominate another to collect
money, in this case, contribution
due to him. There is also nothing inconsistent with the Constitution, in a
law which
provides that money left as part of estate of a deceased may be
distributed to the children, spouse and other persons entitled
in that
custom. The expression, "notwithstanding any law to the contrary," simply
refers to any law other than
the Constitution. So the relevant provisions,
sections 35 and 36 of the SINPF Act are not inconsistent with the
Constitution
and are applicable; I shall add, not inapplicable because of
being inconsistent with the Constitution.
Question may still be raise it was raised by Mr. Suri, that a
particular rule ofle of custom may be pointed out to be
contrary to a provision
of the Constitution. Mr. Suri submitted that from the evidence the court
should not conclude
that money left by a deceased husband from Babatana on
Choiseul Island, is in custom, taken over by the father of the deceased,
distributed and used in the manner Mr. Nason Tanavalu has, to the exclusion
of a say or participation of the surviving
widow. He urged the court to find
that the money is payable to the surviving widow for herself and the minor
child. In
the alternative, Mr. Suri submitted that if the court found that
there was sufficient proof that the father, Nelson Tanavalu
is entitled in
custom to collect the contribution, then that rule of custom which dictates
inheritance to be patrilineal
to the exclusion of a say or participation of
a widow, is discriminatory on account of the sex of the widow and therefore
inconsistent with the Constitution. Mr. Suri who is usually thorough
about details of statutes, did not refer to the sections of the provisions
in the Constitution
on which he relied for that statement as to law about
discrimination. Perhaps he thought it to be common knowledge or did the
point come too late in the case? I noticed that the point of law was not
stated in the originating summons. The sections
of the Constitution that are
relevant to the question of discrimination are sections 3 and 15. Section 3
is in the nature
of preamble preceding naming of fundamental rights that
every person in Solomon Islands is entitled to. It states:
3. �every person in Solomon Islands is led to
fundamental rights and freedoms of the individdividual, that is to say, the right
whatever his race, place of origin, political opinion,
colour, creed or sex, but subject to respect for rights and freedoms of
others and for the public interest.
class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1">
The sectios on to state what are regarded as fundamental rights, I
I
quote:
a) life, liberty, securf
the person and the protection of the law.
freedom of conscience, of e of expression and of assembly and association,
and,
c) protection for the privacy of his home and other
property and from deprivation oion of property without compensation.
The relevant provisions in section 15 are these:
15. (1) Subject to the provisions of subsections (5),
(6) and (9) of this section, no law shall make any provision that is
discriminatory either of itself or in its effect.
(2) Subject to the provisions of subsections (7), (8)
and (9) of this section, non, no person shall be treated in a discriminatory
manner by any person acting by virtue of any written law or in the
performance of the functions of any public office
or any public authority.
class="Mss="MsoNormal" style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1">
(3) ....
p class="Mss="MsoNormal" style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1">
(5) Subsection (1) of this section shall nall not apply to any law so far as that
law makes provision-
(c) for the applicatin the case of persons of anof any such description as
is mentioned in the preceding subsection (or
of persons connected. with such
persons), of the law with respect to adoption, marriage, divorce, burial
devolution of
property on death or other like matters that is the persons of
on that description;
lass="Mss="MsoNormal" style="margin-left: 72.0pt; margin-top: 1; margin-bottom: 1">
(d) for the application of customary law;
(6) ......
(7) Subsection (2) of this secs section shall not apply to anything which is
expressly or by necessary implication authorised
to be done by any such
provision of law as is referred to in subsection (5) or (6) of this section.
(8) ......
(9) ......
Asas these sections are applicable to this case, section 3 me 3 merely
declares that people are entitled to fundamental
rights irrespective of sex,
subject to respect for the rights of others and for the public interest.
Thus far, Mr. Suri's
submission has substance. Then comes section 15(1)
which states that subject to stated exceptions in subsections (5), (6) and
(9), a law shall not include provision that is discriminatory either of
itself or in its effect. Does the word law therein
include customary law? I
do not think so, because the section refers to a law to be made in the
future and customary
law is not made; it evolves or was already pertaining
at the time of the adoption of the Constitution. The definition of customary
law in section 144 is stated as, "rules of customary law prevailing in an
area of Solomon Islands.� In any case
customary law, that makes provisions
for, among others, devolution of property upon death is one of the expressly
stated
exceptions to the provisions of 15(1) because it is one of the
circumstances mentioned in subsection (5)(c), namely, �law with
respect to
devolution of property on death�.� A wider exception that excuses
discriminatory customary law is (5)(d) It
states expressly that customary
law is exempted; all rules of customary law. What about the wide provision
of section
15(2)? It provides that no person shall be treated in a
discriminatory manner by another acting, "by virtue of any written
law,�
except in circumstances stated in subsections (7), (8) and (9). Does the
section include acting by virtue of customary
law? Again my answer is, not
so, because in my view, customary law is not "written law". The Constitution
does
not define the expression, written law, the expression is defined in
the Interpretation and General Provisions Act as, "an Act, any subsidiary
legislation or an imperial enactment.� That excludes customary law. So a
person acting
"by virtue of" customary law may treat another in
discriminatory manner if that is in accordance with the applicable
rule of
customary law.
If there are doubts about the interpretations I have made of subsesubsection (2),
I expect the doubts to be dispelled
by the literal and clear meaning of
subsection (5) which is one of the exceptions referred to in subsection (8)
itself
an exception to subsection (2).
It iconclusion that any action which otherwise is discriminatornatory by the
definition of discrimination in section 15
(4) of the Constitution, will not
be regarded as discriminatory under the Constitution if it is done or
omitted by virtue
of customary law. That is because the Constitution itself
exempts such discrimination. See similar approach by Williams and
Goldsborough JJA in interpreting provisions of the Constitution where the
Constitution itself permits exceptions to the
general principle, in the case
of The Premier of
Guadalcanal v. The Attorney General,
Civil Appeal Case No. 3 of 1997. The subject matter was of
course different, the reasoning is what has been followed in this case. The
issue in the case
was whether a system of electing members of provincial
government was unconstitutional. Ancillary point was taken that traditional
chiefs were usually men therefore including elected traditional chiefs would
discriminate against women, the system was
not democratic nor based on
universal suffrage. That submission was rejected by Williams JA in these
words:
"There is certainly force in that argument, but the athe answer in essence is
that the Constitution recognises that
the 'traditional chiefs' should play a
role in government at the provincial level. The Constitution itself
therefore
recognises this imbalance or discrimination and it will remain
until the role of 'traditional chiefs' under the Constitution
is
re-evaluated."
Proothe Applicable Rules of Customary Law
<
The question consistency aside, consideration is now given to proof of
of
the rules of customary law applicable in the
tribe of the deceased. The
deceased in fact before his marriage named in writing, his brother Pattison
Tanavalu and his
nephew Brendon Kia, as his nominees to whom his
contribution would be paid in the event of death. The nomination was made in
terms of section 35 of the SINPF Act. Parties did not take issue about the
nomination having been cancelled, as a matter
of law, by the subsequent
marriage of the deceased to Eileen. Learned counsel, Mr. Augustine Rose for
the National Provident
Fund, emphatically made the point. The contribution
is regarded as one in which no nominee was named. It is therefore
distributed in accordance with section 36(c), in accordance with the custom
of the member, to the children, spouse and other
persons entitled in the
custom. For ease of reference I quote again the subsection here:
"(c) If no person is nominated to receive the amount or the portion, then
the amount or the portion shall, notwithstanding
any law to the contrary, be
distributed in accordance with the custom of the member to the children,
spouse and other
persons entitled thereto in accordance with that custom;
<
Provihat where at the time of hiof his or her death a member was living with
another person as husband or wife of that
person, without proper marriage in
law or in custom and had so lived for a period of not less than one year
then any
child born to the member and that other person as a result of their
living together shall, for the purposes of this paragraph,
be deemed to be a
legitimate child of the member and shall be entitled to a share of the
amount or portion in accordance
with this paragraph."
The Divergent Accounts e Rules of Customary Law Presented by Parties
The wand Mr. Nason Tanavalu gave different versions of what the the rules
of customary law are in dealing with that part
of the estate which is money,
in this case NPF contribution. The version of the Solomon Islands National
Provident Fund
agreed with that of Nason Tanavalu to the extent that
inheritance in custom in Babatana is patrilineal and so the father of
a
deceased person from Babatana takes charge of the estate and distributes it
in accordance with the custom in Babatana.
NPF's case is that it acted
correctly and without any negligence when it paid the contribution to the
father of the deceased.
Parties spent a lot of time in proving their
versions of the rules of customary law applicable.
The widow testified that in their custom, property comprising deceased
estate is regarded as being in two parts; communal
and personal belonging.
The later included money such as contribution to NPF. She stated
unequivocally that money is
inherited by the children of the deceased so the
contribution collected should be given to Jaward. When asked in cross -
examination by learned counsel Mrs. Samuel, for the defendant, the father in
law, whether in custom she, the widow, inherits
estate of her husband, the
widow said, "If legally I am entitled then I can get my share." When asked
further
by another counsel, she said, "That is what I am fighting for, I
want to know the legal position." Her witness, Abednego
Pitakamoki, PW2, in
his testimony, supported the testimony of the widow that property in
estate are of two kinds. Land and trees are inherited by the tribe in
patrilineal
succession. According to him, personal property which would
include money and contribution to NPF would be inherited by the
children of
the deceased and that the widow gets the personal property if she looks
after the children. When asked to
say whether a widow who leaves the
deceased's home without permission or agreement gets any part of
inheritance, he said
that if the widow goes with a young child she would get
part, but if not, she would get nothing. He emphasised that personal
property belongs to the children. So in proving her claim, the widow made
available evidence that it is a rule of custom
that Jaward is entitled to
the NPF contribution, the whole of it. She did not make available evidence
that in their custom
she, the widow, is entitled in her own right to a share
of the estate. She ended by stating that she wanted to know the legal
position. That implied that she did not know the rule of customary law or
any other law, about her entitlement, if any.
It is not important that she
did not know the "legal position" under any other law. It is important that
she
did not know the "legal position" in customary law because customary law
is proved by evidence and she was there
to testify about the rules of custom
applicable so as to prove them.
The testimony of the father in law was that inheritance iir custom is
by patripatrilineal inheritance. It is from father
to son and also from son to
father. According to him, he, the father of the deceased, takes charge of
the whole estate
including contribution to NPF. He distributes it in his own
discretion to any relatives. The deceased's child who is a minor
gets a
share, and that he, the father, and relatives have a duty to look after the
minor child. He testified that he
has been living up to that duty by paying
school fees and giving money for maintenance of Jaward out of his own money.
He has kept $4,000 in bank for the child, used $1,000 to pay for funeral
expenses, $2,000 to buy tombstone, gave $2,000 each
to Parttison, his son,
and Brendon his daughter's son who lives with him. The father of Brendon did
not marry the mother,
so he, Nason Tanavalu, regards Brendon as his
son. He used the sum of $79 for personal purposes. He said that in their
custom, he may
give some part of the estate to the widow, but it was in his
absolute discretion. The widow in this case left their home without
permission or agreement and in that case she was "cut off" from the family,
she gets nothing. His witness,
Benae Pazabeto, DW2, supported the testimony.
Another witness, Noula Tili, DW3, called by SINPF also supported the father
in law. The witness herself was a woman. She related two instances to
support her testimony; one was her own personal
story when her father died
when she was very young.
The eve of the parties are not divergent in as far as the positiosition that
inheritance in the deceased's tribe in Babatana
in Choiseul is that
inheritance is by patrilineal succession. There was divergence as to whether
that meant that the
inheritance though patrilineal is only in the descending
direction, that is, from father to son or whether it was also in the
ascending direction, that is, from son to father as well. The testimonies of
Pazabeto and Tili, were much more unequivocal,
especially that of Tili. They
were also very detailed. I accept as proved that inheritance in the custom
of the deceased's
tribe in Babatana is by patrilineal succession and may be
in the descending or ascending direction. It is in the ascending
direction
if there is no son of age of the deceased. Mr. Nason Tanavalu was entitled
in custom to take charge of all
the property, the contribution inclusive,
the estate of his son Mr. Francis Tanavalu and to distribute.
Was Mr. Nason Tanavalu, entitled to distribute the estate s discretion?
I conclconcluded from the evidence that in the
rules of their customary law a
father in law whose son has died without leaving a surviving son of age has
some discretion,
but not absolute discretion. In the first place he must
keep some of the estate for the maintenance of the minor son, in this
case,
Jaward. The rule proved is that a father in law would keep some of the
estate for the maintenance of minor children
whether they be sons or
daughters. Upon the male becoming of age, part of the estate kept if still
available, is given
to him to inherit in accordance with patrilineal
succession. In exercising his discretion the father of the deceased must
ensure that children of the deceased are taken care of; some part of the
estate must be held in trust for that purpose
and for inheritance. The
extent is a matter of discretion. If there is a son of age, the father of
the deceased does
not take charge, that son does. No evidence or submission
was made to persuade the court that the decision to keep $4,000 for
Jaward
was an abuse of discretion in custom. I find that Mr. Nason Tanavalu was
entitled to decide on the amount to be
kept for Jaward to be $4,000. It must
be noted that even if it were not Mr. Nason Tanavalu taking charge, the
funeral
expenses amounting to $3,000 would still have to be paid from the
estate. The discretion about spending that sum was also not
an abuse of
discretion.
Was Mr. Nason Tanavalu entitled according to the ruletheir customary
law tlaw to distribute $2,000 each to Pattison and
Brendon? There was contention
from the widow that it was not the rule in custom that the father in law
could distribute
part of the estate to the brother or nephew of the
deceased. No evidence was led to support that contention. The father in
law
stated that the rules of customary law give him the authority to do so if he
so wishes, and that Brendon, the son
of his daughter, was his son because
Brendon has no father and lived with him, the grandfather. Testimonies of
Banae
Pazabeto and Noula Tili supported that position. The fact that the
deceased, although before marriage, nominated them to receive
the
contribution, supports the case of the father in law that in custom they
could benefit and had responsibility towards
Jaward Persons nominated under
s.35 of the SINPF have beneficial interest in the contribution they collect.
There has
been proof that in customary law, Nason Tanavalu was entitled to
make distribution of some of the estate to Pattison, the brother,
and
Brendon, the nephew of the deceased.
What about the $79 that Nason said hd for his own purposes, was, was he
entitled to do so? From the evidence it appears
he has discretion to use
some of the estate, but he is to bear in mind the larger interest of the
deceased's son, Jaward.
It is in any case not unreasonable that he used the
small sum of $79, bearing in mind the responsibility he took upon himself
especially in arranging the funeral. He has since been offering financial
support to Jaward towards school fees and maintenance.
The total sum he
mentioned as money he has spent for the welfare of Jaward is far more than
$79. Jaward visits him and
he takes Jaward back to the mother. The widow has
not made a case for the $79.
The case against Solomon Islands National ProviFund
is that it was negligent in carrying out its, "statutory duties",
unde under the
SINPF Act. The specific provisions in the Act were not cited, but Eileen,
the widow, stated in her affidavit,
negligence in making inquiry about
information relevant to section 35. The section is about nomination of
recipients
of the contribution. I think that the question of negligence
would arise mainly in the care or lack of care taken when making
payment,
and that would be under section 36. The question of nomination of payees,
under section 35 does not arise because
the nominations made were cancelled
by operation of law upon the subsequent marriage of the deceased. The only
question
that comes to my mind about section 35 would be; was NPF under a
duty to draw attention of Francis to the fact that the nomination
he had
made was cancelled by his subsequent marriage? Section 35 does not have
provision imposing the duty on NPF to
inform a member upon his or her
marriage, of the cancellation of nomination, although NPF states the law in
the nomination
paper. Were section 35 to impose a duty, there would have to
be first a way by which NPF would be made aware of subsequent
marriage of a
member. The section, however, gives NPF authority and discretion in
exercising the authority to require
a member to make nomination or to state
that he does not wish to. That, however, is a discretion not a duty. In any
case
the nomination made before marriage, in this case, was far from being
favourable to the widow, it could never be basis for
claim in negligence.
The nomination named two of the people she now contends had no right to
receive any part of the
contribution. It is my decision that there is no
duty on NPF under section 35 which could have been breached in this case.
NPF was not negligent under section 35. I can only suggest that it is not
every member who would know or remember that
his nomination is cancelled
upon his marriage. Many might not make new nomination simply because of
ignorance or forgetfulness.
NPF might consider a way to get that information
across to members. I think NPF could receive a lot of responses confirming
or cancelling nomination after subsequent marriages if it sent out reminder
notices reminding members that their subsequent
marriages had cancelled
their nominations and that they may make nomination again or confirm that
they do not wish to.
Under section 36 the a duty where there is no nominee, to ensure that
the the money is distributed in accordance with
the custom of the member. NPF
has a duty therefore to ensure that when it makes payment upon the death of
a member, it
does it in a way that is not inconsistent with the custom of
the deceased or will lead to avoiding compliance with custom.
Put in another
way, NPF has a duty to ensure that when it makes the payment, it does it in
a way that sets in motion
distribution in accordance with the custom of the
member. There is no set way to do it, the section does not spell out a way.
It is therefore open to NPF to decide on the precaution it will take. It has
decided upon requiring the payee to fill
an application form wherein the
applicant provides his personal particulars, one of those particulars is his
relationship
to the deceased. The form must be signed and verified by a
witness who personally knows the applicant. The next measure is
that the
applicant makes a statutory declaration in which he states his relationship
to the deceased and how he claims
in custom that he is entitled to collect
the contribution. A statutory declaration is of course an affidavit, a lie
stated
in it could be purjery for which the deponent could face criminal
charges. Mr. Nason Tanavalu was asked to fill the form and
make the
declaration and he did. In my view NPF lived unto its duty in ensuring that
the money paid would be dealt with
terms of s.36. It would be absurd to
expect NPF to hold elaborate inquiries that may involve travelling to the
village
of every deceased member or gathering witnesses in order to
determine what a particular custom is. I find that NPF was not
negligent in
its duty under section 36. The plaintiffs case for negligence against NPF is
dismissed.
The case that NPF and or Mr. Nason Tanavalu pay 1/3 of the ibution to
each of thof the plaintiffs is dismissed. Jaward�s
share of $4,000 now in the
bank is already more than 1/3 of $11,079.33, which is $3,693.11. Costs are
awarded to the
defendants against the plaintiff, Eileen Tanavalu only for
the reasons I have stated earlier in the judgment.
<
It arified here that Mr. Nason Tanavalu has already exercised ised his
discretion in custom and put aside $4,000 for Jaward.
The sum may be used
for the welfare of Jaward only. Parts may be drawn and given to the widow as
the need arises, for
use consistent with the interest of Jaward Mr. Nason
Tanavalu remains the trustee.
Summary
The law applicin the distribution of the estate of Francis Gaveke
T Tanavalu, including the sum of money due as contribution
from Solomon
Islands National Provident Fund, is the customary law of his tribe in
Babatana area, South Choiseul.
The National Provident Fund was not negligent in making payment of the
contribution of Francis upon his death, to Nason
Tanavalu, also referred to
as Nelson, the father of Francis. NPF took precaution by, requiring the
payee, Nason Tanavalu,
to state his particulars including his relationship
to the deceased, and to make a statutory declaration stating whether he
was
entitled in his custom to collect the contribution.
The rules of customary law governing inheritance in Babatana, South Choiseul
is that inheritance is patrilineal in the
descending direction, but also in
the ascending direction if the deceased does not leave a son of age to
inherit.
rules of customary law in Babatana, entitles the father of r of a deceased
husband, who has not left a surviving son of
age, to take charge of the
deceased's estate and to distribute it to the children, widow and relatives
of the deceased,
according to the father's discretion. Nason Tanavalu was
entitled to exercise his discretion to distribute the estate to Jaward
Gaveke Tanavalu, the infant child of the deceased, Pattison Tanavalu, the
brother of the deceased and Brendon Kia, nephew
of the deceased who lived
with Mr. Nason Tanavalu because Brendon's father did not marry the mother.
<
The rules of customary law of Babatana does not allow the father of the
deceased, Nason, to exercise his discretion to
the extent that nothing is
left to the infant child of the deceased. The sum of $4,000 out of
$11,079.33 is reasonable
sum set aside for Jaward.
The rules of customary law of Bab entitles the
father in law to exercise his discretion to refuse to distribute any pany part
of
the estate to the widow, Eileen Gaveke Tanavalu on account of her having
left the home without compliance with custom
or by permission or agreement
of the deceased's parents. Generally, however, the father in law would be
entitled to exercise
discretion to distribute to the widow an amount of the
estate he deems appropriate.
The rules of customary law of Babatana regarding administration and
distribstribution of deceased estate is not unconstitutional
because of
discriminating against the widow on account of her sex, because the
Constitution itself allows discrimination
in the rules of customary law and
generally in provisions of law regarding devolution of property upon death.
An infant sues through its Next Friend. Failure toly, resulting in no
p prejudice to the infant may be condoned, in
that event, if costs are due
from the plaintiff, the order for costs will not be made against the infant,
but against
the person at whose instance the infant's case was filed at
court including the infant's solicitor. In this case costs are
awarded
against Eileen Gaveke Tanavalu.
Comment
During pleading stage parties identified customary law as an issue. They
sought direction as to proof. It was agreed
that each of the three parties
call, among others, one witness knowledgeable in the custom of the deceased.
NIPF commendably
agreed to meet the costs of calling the witnesses.
Understandably arranging for the witnesses took a long time. Then after
evidence had been received, parties rightly applied that they be given time
to prepare written submissions in view of
the difficult questions of law
involved. Court allowed that, but also insisted on hearing oral submissions
in court.
It took too long for written submissions to be received from
counsel. Shorter time could have been taken. I am grateful for
the effort
all the counsel made to identify and bring witnesses knowledgeable in the
rules of customary law, to court.
Dated this 12th>
At the High Court
Honiara
lass="Mss="MsoNormal" align="center" style="text-align: center; margin-top: 1; margin-bottom: 1">
Lungole - Awich
Ju Judge
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