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John To'ofilu v Oimae, Unreported, High Court of Solomon Islands CAC 5 of 1996, 19 June 1997 (Case Note) [1999] JSPL 14; (1999) 3 Journal of South Pacific Law

Case Note 4 of Volume 3, 1999

JOHN TO’OFILU v OIMAE¹

Unreported,
High Court, Solomon Islands, CAC 5/96, 19 June 1997.

 Facts:

The plaintiff’s son entered into a customary marriage with the defendant’s daughter. Bride price of SBD1,000 and six tafuliae (shell money) was paid according to customary practice. After living with the plaintiff’s family for one month the defendant’s daughter returned home. A short time afterwards she gave birth to an illegitimate child. The defendant had known that his daughter was pregnant by another man at the time of the bride price negotiations.

Claim:

The plaintiff claimed compensation in a sum equivalent to the whole of the bride price in the local court. This claim was based on the defendant’s breach of his customary duty to disclose his daughter’s pregnancy by another man during negotiations as to the amount of the bride price.

Outcome in the Local Court:

The defendant having admitted the breach of customary duty and indirectly conceded quantum by making no substantial submissions on point, the refund of the full bride price and expenses was ordered.

Grounds of Appeal to the Magistrates Court:

The defendant appealed from the decision on quantum on the grounds that, inter alia:

1. The person who had negotiated the bride price had not given evidence in the local court.
2. The local court had refused to allow the defendant to call his witnesses.
3. The court took into account irrelevant evidence concerning compensation of five tafuliae paid by a married man, who had taken the defendant’s daughter’s virginity.
4. The acceptance of the bride price formed the basis of a marriage in custom. If it had not been paid the defendant would not have allowed his daughter to leave his house and marry the plaintiff’s son.
5. The defendant’s daughter did not run away, but was turned out by her husband after they had lived together for one and a half months.

Outcome in the Magistrates Court

The appeal was successful in part. The Local Court’s decision was set aside and the defendant was ordered to refund half the bride price to the respondent and costs of the appeal, but no expenses.

Grounds of Appeal to the High Court

The plaintiff appealed on the grounds that the principal magistrate had taken into account matters that were irrelevant in customary law. In particular, the following part of the Magistrate’s judgment was objected to:

... bride price should not be taken as a yardstick to measure the man’s love for his would be wife. In this case clearly it was the man Ronny Respondent’s son who showed first sight love for Fiona. Whether the woman Fiona was pregnant before the marriage or not is a matter for negotiation so as to determine the amount of bride price to be paid to the girl’s family.

Outcome in the High Court

The appeal was allowed and the Magistrates Court’s order quashed. The Local Court order was reinstated with payment to be made within three months for the date of judgment. Costs were ordered to be paid by the defendant.

Legal Principles:

Ratio Decidendi

• The quantum of bride price is a question for discussion and negotiation between parents and other close relatives of the couple. There is a duty in customary law to disclose pre-existing pregnancy of the bride during those negotiations as it is a material fact, as, in custom, a bride who is considered chaste is more highly regarded than one who is renowned for being promiscuous.
• The husband-to-be’s love for the bride-to-be does not necessarily effect the way the bride price is fixed although it may give rise to negotiations as to the amount of bride price.
• Expenses related to the bride price such as expenses of transport to attend the bride price ceremony can be regarded as part of the bride price and should be dealt with in the same way.

Obiter Dicta

• The Local Court is far better placed that the Magistrates Court or the High Court to deal with customary claims as it is comprised of Court Justices from the same province and sometimes the same area who are familiar with the customary practices of the parties.
• To show the Local Court is wrong in customary law, the point of customary law must be specifically pleaded and proved. Love at first sight had not been proved to be a relevant factor in customary law.
• Rejection of the bride by the husband must be proved as a matter of fact and as a matter relevant in customary law to assessment of quantum before it could be relevant.
• There was no evidence that the amount of bride price to be returned where the groom rejects the bride is half.

Commentary:

The Status of Customary Law in Solomon Islands

Section 75 of the Constitution of Solomon Islands1978 states:

1. Parliament shall make provision for the application 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.

Unfortunately, no action has been taken under this section. Until it is, Schedule 3 of the Constitution of Solomon Islands, read with section 76, determines the operation of customary and other laws in the country. Schedule 3 provides in paragraph 3:

1. Subject to this paragraph, customary law shall have effect as part of the law of Solomon Islands.
2. The preceding subparagraph shall not apply in respect of any customary law that is, and to the extent that it is, inconsistent with this Constitution or an Act of Parliament.

The English common law and equity also apply in Solomon Islands, provided that they are not inconsistent with any applicable customary law.²

Accordingly, the status of customary law is that it is a recognised source of law under the Constitution, which ranks it above common law and equity, but below provisions of the Constitution. It is inferior to Acts of Solomon Islands parliament, but it has been held not to be inferior to English legislation.³

In a case such as this one, it was noted that the parties came from the same language group and that they did not dispute the customary practice of payment of bride price. Where parties come from different areas and have different customary laws the position would not be so straightforward. There is currently no guidance as to how the applicable customary law would be distilled in such cases or even whether it should be applied at all. Questions such as this need to be addressed by parliament, pursuant to the mandate contained in s75 of the Constitution.

Jurisdiction of the Local Court

The Local Courts (formerly called ‘Native Courts’) were established by individual warrants, under the hand of the Chief Justice, pursuant to the Local Courts Act (Cap 46). Section 3 provides that Local Courts shall be constituted in accordance with the law or customs of Islanders of the area in which the court has jurisdiction. They have jurisdiction over disputes between Solomon Islanders who are within the geographical area covered by the court, to the extent set out in their warrant. Criminal jurisdiction is limited to minor offences. Civil jurisdiction is generally limited to $1,000, although this sum may be exceeded by consent, as would appear to have happened in the current case. Also, the defendant must be ordinarily resident within the jurisdiction or the cause of action must have arisen there. The Local Court also has exclusive jurisdiction in customary land cases, subject to the requirement that disputes must first be considered by the local chiefs.⁴

As noted by Palmer J, the Local Court is much better placed than the Magistrate's Court to deal with customary claims. It is constituted by three Justices who come from the same Province and sometimes the same area as the disputants. They are therefore familiar with all customs in the area. Unfortunately, appeals in civil and criminal cases go to the Magistrates Court, rather than a customary court. Decisions are also subject to review by the District Magistrate.⁵ Whilst appeals in customary land disputes go to the Customary Land Appeal Court, there is a further right of appeal to the High Court. Appeal lies on matters of law only, but matters of fact are often ‘dressed up’ as law. Other frequently pleaded grounds of appeal are bias on the part of the members of the Court. The high proportion of appeals could be said to defeat the object of having customary cases heard by those knowledgeable in the custom of the area. Consideration might be given to abolishing the right of appeal or establishing an alternative procedure.

Practice and Procedure

The High Court held in this case that customary law must be specifically pleaded and proved. Paragraph 3(3) of Schedule 3 of the Constitution states that an Act of Parliament may: -

1. provide for the proof and pleading of customary law for any purpose;
2. regulate the manner in which or the purposes for which customary law may be recognised; and

100. provide for the resolution of conflicts of customary law.

Unfortunately, Parliament has not exercised its powers under this paragraph. This failure has led to difficulties for the Courts in trying to determine how to deal with claims and defences based on custom. Allardyce Lumber Company Limited v Laore⁶ makes resolution of this problem even more vital. In that case, Ward CJ suggested that, on a proper reading of paragraph 3(3) of Schedule 3 to the Constitution, custom should not be considered by the courts until an Act of Parliament provided for the proof and pleading of customary law.

In 1993, the Customs Recognition Bill was introduced in Solomon Islands’ Parliament with a view to remedying this omission. The Bill provides for customary law to be proved as if it were a question of fact. The strict rules of evidence are not to apply and the following facts are relevant:

1. Any transaction, practice or usage by which the right or custom in question was treated, claimed, modified or recognised, asserted or denied, or inconsistent with its existence; and
2. Particular instances in which the right or custom was claimed, recognised, or exercised or in which its exercise was disputed, asserted, or departed from.

The court may also refer to reference works and statements by Provincial Governments or Area Councils.

Unfortunately, the Bill has still not been fully debated. It also raises the question of whether a requirement that customary law be proved as if it were a question of fact derogates from its status as a source of law, conferred by the Constitution.

Precedent

The Customs Recognition Bill does not state whether findings of customary law would form precedents for future cases. In Solomon Islands, customary law may differ dramatically between customary groups. In this case, Palmer J took into account the fact that the ‘parties appear to come from the same language group’. Precedents could only be applied in subsequent cases between members of the same customary group. The possibility of conflict of custom is recognised by the Bill, which provides that where a question arises as to which of two or more systems of custom should prevail, and the evidence is not conclusive, the court shall adopt the system required by the justice of the case.

JENNIFER CORRIN CARE
SENIOR LECTURER,
UNIVERSITY OF THE SOUTH PACIFIC

ENDNOTES:

1. Unreported, High Court, Solomon Islands, CAC 5/96, 19 June 1997.
2. Constitution of Solomon Islands, 1978, Sch 3, para 2.
3. K v T and KU [1985/6] SILR 49.
4. Section 2, Local Courts (Amendment) Act 1985.
5. Section 21.
⁶ Unreported, High Court, Solomon Islands, cc 64/89, 10 August 1990.