BETWEEN:
EARTHMOVERS (SOLOMONS) LTD.
>
Plaintiff
<
AND:
class="Mso="MsoNormal" align="center" style="text-align: center; margin-top: 1; margin-bottom: 1">
LAWRENCE INITO and OTHERS
Defendants
Mr. John Katahanas for thentiff
Mr. Charles rles Ashley for the 1st to 11th Defendants
Hearing: 25th June 1999
Judgment: 5th July 1999
Mr. Registrar Chetwynd:
This is an application by all the Defendants, bar the 12th
Defendant, to join the Attorney General as 13th Defendant. It is
opposed by the Plaintiff.
As a general rule the Plaintiff should be left to get on with his case in
the manner he sees fit. In other words, the
Courts should not impose a case
upon the Plaintiff. However, it is clear from the case involving the well
known greeting
card manufacturer in the UK, Raphael Tuck1,
that the Court can and will add a Defendant against the wishes of the
Plaintiff. In that case the new Defendant consented
to being joined in but I
do not believe that that changes the proposition that the Courts will add
Defendants in the
face of the Plaintiff�s objections.
2, it is still
good law. The first question then is why, on the face of it, do the first
eleven Defendants want to join
the Attorney General to this action? The
Court can inquire into the motives of the parties to a case, indeed in the
interests
of Justice, it is bound to do so. It does so from a different
perspective of the parties themselves. The Court is solely interested
in
allowing a fair hearing of all the issues between the parties. That does not
mean that the Court has to entertain
each and every claim by any particular
party, no matter how fanciful, rather it means that it has to reach a
reasoned
judgment as to the substantive issues and then ensure that those
issues are properly canvassed.
Wk then at the case which is set out in the paperwork beforeefore the Court.
That is, the pleadings to date and any affidavit
evidence lodged. It must
also be borne in mind that we are at an interlocutory stage in the
proceedings. I am not conducting
a full trial where evidence per se is
introduced and thoroughly challenged. I am entitled to reach a decision on
the
paperwork presently before me. If I feel I need further evidence or
further argument then I can call for it. If I am satisfied
that what is
before is sufficient for me to reach a reasoned decision then, as I say, I
am entitled to give a judgment
and make orders.
Looking at therwork so far lodged I can say that the issues are
rel relatively obvious. The Plaintiff�s claim is very
basic. The Plaintiff is
saying that I am the registered proprietor of the fixed term estate (of the
land in question),
you are on my land without permission and I want you off.
In response eleven of the Defendants say, in effect, you are not
(or ought
not to be) the registered proprietor. They raise several issues.
First, the Perpetual Estate was registered in the name of one Margaret
Law Lawrie Munro. There is "evidence"
of that from the Perpetual Estates
Register. That shows Mrs. Munro acquired the estate in 1970. On 31 December
1977 the
interest of Mrs. Munro is likely to have become a fixed-term estate3.
I say likely because there is nothing on the file about Mrs. Munro. Was she
a Solomon Islander ? If not then s100(1)
comes into play. If she was she (or
her heirs and assigns) should still hold the perpetual title. The Defendants
say
that in any event that would mean the Commissioner of Lands could not
have transferred the fixed term estate to the Plaintiff.
A
second issue raised by the Defendants is an isf estoppel. They say the
he
Commissioner of lands agreed to transfer
the "title" to one of the 12
Defendants. He in turn sold it off piecemeal to the other 11 Defendants.
A
third issue is whether or not the Defendants acquired prescriptive rights.
The Plaintiffs point out (in this application)
the provisions in the Land
and Titles Act which prevents such acquisition as against "any land vested
in or owned by the Commissioner or a local authority"4.
This provision only relates to ownership of the land. It does not deal with
interests less than ownership. What of overriding
interests as set out in
the Lands and Titles Act?5 The
Defendants say they were in actual occupation of the land before the vesting
in the Plaintiff of the fixed-term estate.
These issues are issues which will be resolved by evidence. Undoubtedly the
evidence of the Commissioner of Land will
be crucial to both parties. The
trial Judge will reach a decision on that evidence. If the Defendants
succeed in establishing
what is so far pleaded then the Plaintiff is
unlikely to succeed in its claim for possession. All this is well and good
but does it establish a sufficient reason to join in the main possessor of
relevant evidence, i.e. the Attorney General.
This is exactly what the
Plaintiffs are arguing. I should not join in an "outsider" to assist in
discovery
or assist one party in satisfying its evidential burden.
However, I am of the opinion that this case goes further than that. The
Defendants seek orders from the Court6.
In brief and basic terms they want the title to the land. If they succeed
against the Plaintiff the Court cannot order
the Plaintiff to give it to
them. That is something beyond the It �powers" of the Plaintiff. Practically
the Plaintiff
could simply walk away and not pursue its claim but that is
not quite the same thing. It is only the Attorney General (representing
those who administer the Registered Land scheme) who can satisfy the
Defendants demands in that respect. Moreover, the
Attorney General will
represent those who have taken several steps in the events which are the
subject matter of this
action.
I
look then at the Rules of this Court7. up>.
Order 18 relates to Third Party Proceedings. In particular O.18, r1. (c).
deals with cases where, "any question
or issue relating to or connected with
the said subject matter is substantially the same as some question or issue
arising
between the Plaintiff and the Defendant and should properly be
determined not only as between the Plaintiff and the Defendant
but as
between the Plaintiff and Defendant and the Third Party or between any or
either of them" I am of the firm
opinion that the issues which are involved
in this action cannot be resolved solely between the Plaintiff and the
Defendant.
There are consequences which will result from the outcome of the
action, no matter what the Court decides. There maybe claims
by the
Plaintiff against the Attorney General, claims by the Defendants against the
Attorney General, even conceivably
claims by the Attorney General against
either the Plaintiff or the Defendant or both, and that in order to limit
the
proliferation of litigation and a multiplicity of cases it is right and
proper for the Attorney General to be joined as a party
so that these issues
can be resolved at one time.
I
therefore make the following order:
class="MsoNormal" style="mae="margin-top: 1; margin-bottom: 1">
1. The first to eleventh Defendants do serve a Third party Notice on the
Attorney General (in the terms set out in Order
18 rule 1(2) of the High
Court (Civil Procedure) Rules 1964) within 14 days, together with a copy of
the Writ of Summons
and Statement of Claim, and the Defence and Counterclaim
filed on 4th February 1999.
2. The costs of this application be reserved toed to the Trial Judge
Dated this 5th day of July 1999
RD Chetwynd
Registrar
ENDNOTES
p class="MsoNormal" style="yle="margin-top: 1; margin-bottom: 1">
1. Amon -v- Raphael Tuck & Sons Ltd [1965] 1 All ER 273
2.
Wilson -v- Church
[1878] UKLawRpCh 191; (1878) 9 Ch D 552
3. Land and Titles Act Cap 133 s 100 (1)
4. Lands and Titles Act Cap 133 s 224(1)(b)
5. Lands and Titles Act Cap 133 s 114
6. Paragraph 23 of the Defence and Counterclaim dated 1st February 1999
7. The High Court (Civil Procedure) Rules, 1964
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/sb/cases/SBHC/1999/68.html
