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Shell Company (Pacific Islands) Ltd v Korean Enterprises Ltd [2000] SBHC 99; HCSI-CC 323 of 2000 (5 October 2000)

CC 323, 00. HC

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 323 of 2000

SHELL COMPANY (PACIFIC ISLANDS) LIMITED

V

KOREAN ENTERPRISES LIMITED AND THE PREMIER OF GUADALCANAL
(Representing the Guadalcanal Provincial Executive and Assembly).

High Court of Solomon Islands
(Muria, CJ)

Civil Case No. 323 of 2000

Hearing: 28 July, 2000
Ruling: 5 October 2000

J. Sullivan for Plaintiff
Andrew Radclyffe for First Defendant
Second Defendant not present

MURIA CJ: This case arose out of a dispute over the plaintiff’s fuel pipeline (“the pipeline”) which was constructed aboveground on its own land but which traverses underground through the Guadalcanal Province’s (second defendant) land. From the Province’s Land; the pipeline then traverses part of the first defendant’s land (KEL’s Land), where it forms a right angle junction from which it leads out to sea. The pipeline is used for inward delivery of bulk fuel from ocean tankers to the bulk storage facilities.

Background facts

The brief background to this dispute can be shortly stated. The plaintiff, whose place of business is located next to the second defendant’s land, separate by a road that leads to the wharf and to the main Mendana Avenue in the Central Honiara, operates a bulk store and supply of fuel in Solomon Islands. In or about 1962, the plaintiff constructed the pipeline above ground from its land and then underground through the second defendant’s land a point on the first defendant’s land where the pipeline leads out to sea.

Originally, the whole of the first and second defendants’ land was held in the name of the Government as Crown land. In 1983, the Commissioner of Lands transferred the perpetual estate in the land to the second defendant. On 14 July 1999, the second defendant transferred by a lease, the KEL Land to the first defendant.

From the first defendant’s land the pipeline leads out to sea. It continues for about 100 metres along the seabed to mooring buoys which are specifically designed to take the discharging tankers.

Concerns had been raised with the plaintiff by the second defendant as far back as 1989, regarding the use of the pipeline in its land. The second defendant insisted that the plaintiff should obtain a grant of easement over the area along which the pipeline is situated on an annual rental fees of $3,000.00 and compensation of $2,500.00.

No amicable solution had been reached on the second defendant’s demand as the plaintiff felt that the compensation of $2,500 was too high and that the proposed $3,000.00 annual rental was very excessive.

Having been given the lease of the KEL Land, the first defendant intends to develop its land. It had written to the plaintiff expressing its concerns over the presence of the pipeline in its land. It had requested the plaintiff to remove the pipeline away from its KEL Land so that it can carry out its development on the land.

The second defendant has now also requested the plaintiff to remove the pipeline from Province’s land since attempts to resolve the Province’s demand failed.

Those being the brief background to this matter, I now turn to see what the case for the plaintiff is.

Case for the plaintiff

The case for the plaintiff in this matter had been succinctly put by Mr. Sullivan. It is the plaintiff’s case that it agrees that it has no registered easement over the land in question. However the plaintiff contended that it has acquired a prescriptive easement over the land through peaceable, overt and uninterrupted user of the pipeline for a period of 37 years. The plaintiff relies on section 226(1) of the Land and Titles Act which provides for acquisition of easement by peaceable, overt and uninterrupted enjoyment the land for a period of 12 years.

Even in common law, contended Counsel, presumption is made in favour of a long user and the Court should be reluctant to infer facts which would defeat a right that has been exercised for over a long period of time unless on the facts, such a presumption cannot be upheld. Reliance was placed on cases of Pugh -v- Savage [1970] EWCA Civ 9; [1970] 2 QB 373 and Goodman -v- Mayor of Saltash [1882] App. Cas. 633 (HL). It was further put by Mr. Sullivan that a presumption of a modern lost grant also applies in this case, a principle which operates in favour of an open and frequent user of a land over a long period time without any resistance from the owner. Reference was made to the case of Tehidy Minerals -v- Norman [1971] 2 QB 528. Counsel argued that the facts as agreed, supported the presumption of a modern lost grant which must result in a prescriptive easement in favour of the Plaintiff.

It was also contended on behalf of the plaintiff that it has a right of way, not only by prescription, but also by an implied grant based on necessity. This it was argued, has arisen because the Plaintiff has no other means of reaching his land as noted in Union Lighterage Co. -v- London Graving Dock Co. [1902] UKLawRpCh 142; [1902] 2 Ch. 557. Counsel also referred to United Land Co. -v- Great Eastern Railway Co. (1875) 10 Ch. App. LR 586 and British Railways Board -v- Glass [1965] 1 Ch 538. The case for the Plaintiff is also pressed upon the further contention that as the Plaintiff has right of way over the second defendant’s land, the first defendant’s lease is subject to that right of way. The Plaintiff has contended that it had acquired title to the hatch which is on first defendant’s land by adverse possession while possessing a prescriptive easement over the whole pipeline facility. Reliance was placed on continuous occupation of the KEL land for 37 years. By section 9 of the Limitation Act, the first defendant’s claim to recover the hatch is statute barred. Further reliance is placed on section 114, 224, 225 and 226 of the Land and Titles Act.

The other argument upon which the Plaintiff’s case is supported revolves around the issue of whether the Guadalcanal Province is a “local authority” for the purposes of the provsions of sections 224(1) (b) and 226 (1) (i) of the Land and Titles Act. It is the Plaintiffs contention that the definition of “local authority” in section 16 of the Interpretation and General Provisions Act (Cap. 85) has no application to sections 224 or 226 of the Land and Titles Act. This argument is prefaced on the distinction between the effect of the law passed by Solomon Islands Parliament and that passed by the Colonial power. The Plaintiff argued that Cap. 85 was a colonial law and governs the meaning of sections 224 and 226 and as such they are not laws passed by Parliament. The case of Y. Sato & Co. Ltd. -v- Honiara Appointed Council, (unreported) Civ. App. 15 of 1998 is distinguishable. Provincial Assembly constituted under the Provincial Government Act is completely different in character to Local Council which was governed by the Loca1 Government Act. The precise meaning of term “Provincial Assembly” must be ascertained at the time the law was passed. It was submitted that such was the position as expounded in Attorney General (NSW) -v- Brewery Employees Union (NSW) [1908] HCA 94; (1908) 6 CLR 469, 531 and Ashfield Municipal Council -v- Joyce [1978] AC 122 (PC). One final contention of the Plaintiff on this aspect of its case is that Guadalcanal Provincial Assembly is not “a local authority” within the meaning of that term in view of the Guadalcanal Provincial Devolution Order.

In, seeking the court to make appropriate orders, the Plaintiff urged the Court to take into account matters such as the Plaintiffs long use of the land, the national interest in the pipeline, the disproportionate costs of removal and relocation of the pipeline, the prior knowledge of both the second and first defendants of the existence of the pipeline and the first defendant’s subsequent conduct in covering the pipeline (other than the hatch) by some 2 metres of fill. These matters should be properly considered in the exercise of the Court’s discretion when it comes to making the appropriate orders in this case.

Case for the first defendant

The case for the first defendant as put before the Court by Mr. Radclyffe, is that the Plaintiff has no registered easement relating to the pipeline, nor has it rights of entry on to the second and first defendants’ lands in connection with the use of the pipeline. Any easement right can only be acquired by grant under deed, prescription or statute. The deed dated 6th November 1959 granting Pipeline Licence for 30 years to the Plaintiff to lay and use the pipeline through the land in question expired on 6th November, 1989. Thereafter the Plaintiff has no “right attached” to the land.

It was contended for the first defendant that the Plaintiff could not acquire a prescriptive easement over the land in this case because of the provision (i) to section 226 (1) of the Land and Titles Act. Guadalcanal Provincial Assembly is a “local authority” with the meaning of section 16 of cap. 85 and so the provision applies. The Plaintiff may only have an overriding interest in the land. However, counsel for the first defendant strongly argued that section 114 of the Land and Titles Act cannot apply in this case as no rights of way, rights of water, easement or profits subsisting at the time the second and first defendants acquired interest in the land. Thus submitted Counsel that if the Plaintiff has no easement and no prescriptive rights relating to the pipeline, then it cannot have a right of way over the land.

If the court finds that the Plaintiff has an easement over the land in question, then the first defendant contended that such easement be extinguished under section 183 of Land and Titles Act. In the alternative, the first defendant suggests, that the easement (if any) be modified on the ground that the continued existence of the pipeline with the land impedes the reasonable user of the land for public and private purposes. Further it was suggested that in view of the change in character of the land and the neighbourhood, the easement (if any) be modified to take into account such change.

The thrust of the first defendant’s case is that the pipeline be removed and that the Plaintiff should pay damages and mesne profits of $5,000.00 per month from 19th July 1999 until the removal of the pipeline.

Case for the Second Defendant

The second defendant has not appeared nor make submission at the hearing of this matter. However its position in this dispute can be clearly ascertained from the materials before the court, especially from the correspondence between the second defendant itself and the Plaintiff ranging from July, 1989 to November 1999.

I note, however, that the second defendant had not entered an Appearance and that as a result the Plaintiff intends to seek a default judgment against it in this action. I will deal with this aspect of the case later in the judgment. For now I feel the matter can be dealt with on the basis of the argument on behalf of the Plaintiff and first defendant, as the legal issues involved may well affect the positions of all parties, including that of the second defendant.

Issues

A number of issues have been raised and the identification of those issues is necessary to properly resolve the dispute between the parties in this action.

It seems that the main issue in this case is whether the second defendant’s perpetual estate and first defendant’s lease are held subject to the Plaintiff’s overriding interest over the said land pursuant to section 114 of the Land and Titles Act. That entails, however, the consideration firstly, of the question as to whether or not the Plaintiff has an overriding interest in that land in question.

The other issue arising in this case is in relation to the applicability of the proviso to section 226 (1) of the Land and Titles Act. Essentially the proviso does not allow easement to be acquired over land or interest held by the Commissioner of Lands or a local authority. Consequently it is submitted by the first defendant, that the Plaintiff could not acquire easement over the second defendant’s land and the first defendant has the benefit of that protection.

Arising from the argument over the application of the proviso to section 226(1), the plaintiff now challenges the second defendant’s status as a “local authority” under that provision. The next issue, therefore, is whether the second defendant is “a local authority” within the meaning of the Act.

The other incidental issues arising from this matter concern the Plaintiff’s claim of rights of way and rights of occupation by adverse possession over the defendants land. As noted in the course of argument, and I agree, the determination of the issue of whether the second defendant is “a local authority” is also crucial to these rights which the Plaintiff is now claiming. With these issues in mind, I shall now turn to consider the law in this case.

The Law

As the land over which the disputes have arisen is a registered land, the starting point must be the provisons of the Land and Titles Act. I must apply the words of the Act and be cautious in accepting general statements of principles derived from other legistations, as well as being cautious of giving construction to the words of the Act incorporating equitable principles unless the express words themselves require that I do so. The case of Trading Company (Solomons) Ltd -v- PKR Pacific Sales Ltd [1980-1981] SILR 172 is clear authority for the approach which I have expressed. That case warns against casual acceptance of general expressions of principle used in other legislations from other countries which also have land registration system. It also discourages ready acceptance of general implication of equitable principles into the provisions of the Land and Titles Act.

I feel it would be useful to note the types of interest conferred on, as well as the rights of, the owner of a registered land. I think I can do no better than to set out the provisions of sections 109 and 110 of the Act for this purpose. Sections 109 and 110 are in the following terms:

“109. Subject to the provisions of this Act -

(a) the registration of a person as the owner of a perpetual estate shall vest in that person the perpetual estate in the land comprised in that estate together with all implied and express rights and privileges belonging or appurtenant thereto and subject to all implied and express obligations, liabilities and incients of that estate;

(b) the registration of a person as the owner of a fixed-term estate shall vest in that person the fixed term described in the grant thereof, together with all implied and express rights and privileges belonging or appurtenant thereto and subject to all implied and express obligations, liabilities and incidents of that estate;

(c) the registration of a person as the owner of a lease shall vest in that person the interest described in the lease, together with all implied and express rights and privileges belonging or appurtenant thereto and subject all implied and express obligations, liabilities and incidents of the lease which are to be performed or observed by the lessee.

110. The rights of an owner of a registered interest, whether acquired on first registration or whether acquired subsequently for valuable consideration or by an order of court, shall be rights not liable to be defeated except as provided by this Act, and shall be held by the owner, together with all privileges and appurtenances belonging thereto, free from all other interests and claims whatsoever, but subject-

(a) to the leases, charges and other encumbrances and to the conditions and restrictions (if any) affecting the interest, and show or referred to in the land register or implied by this Act; and

(b) to such liabilities, rights and interests as affect the same and are declared by section 114 (which relates to overriding interests) not to require nothing in the register;

Provided that nothing in this section shall be taken to relieve an owner from any duty or obligation to which he is subject as a trustee”

The provisions of section 109 have spelled out the nature of the interest vested in a registered owner, be he a perpetual estate holder a fixed term estate holder or a lease holder: Section 110 is what can be called the general defeasability section. Apart from its proviso, the section is drafted in wide terms as can be seen from the words “free from all other interests and claims whatsoever” used in the section. On the general view of the section, it would seem that the owner of a registered interests has a considerable immunity as to the use of his registered interest in the land. However section 114 provides that the owner of a registered interest shall hold such interest subject to certain overriding interests even if such interests are not noted on the register.

Section 114 provides as follows, so far as is relevant to the present case:

“114. The owner of a registered interest in land shall hold such interest subject to such of the following overriding interests as may, for the time being, subsist and affect the same, without their being noted on the register-

(a) rights of way, rights of water, easements and profits subsisting at the time of first registration of that interest under this Act;

...............................................

(g) the rights of a person in actual occupation of the land or in receipt of the rents and profits thereof, save where enquiry is made of such person and the rights are not disclosed;

................................................

(i) rights acquired or in the process of being acquired by virtue of any law relating to the limitation of actions or by prescription;”

The plaintiff has strenuously relied on paragraphs (a), (g) and (i) of this section as it is obvious that the overriding interests specified therein include rights of way, easements, rights of a person in actual occupation and rights acquired under the law relating to limitation of actions or by prescription.

The next provision of the law relied upon in argument by the parties is section 224 of the Land and Titles Act which provides for acquisition of land by prescription. The section provides as follows:

224. (1) The·ownership of an estate or a registered lease may be acquired, subject to Part VII against the person registered as the owner of the estate or the lease, as the case may be, by peaceable, overt and uninterrupted adverse possession of the land comprised in the estate or lease for a period of twelve years:

Provided that -

(a) the interest acquired in the land by virtue of this section shall be the interest of the owner against whom the adverse possession occurs; and

(b) no person shall so acquire the ownership of any estate or lease in any land vested in or owned by the Commissioner or a local authority.

(2) Any person claiming to have acquired an estate or lease by viture of the provisions of subsection (1) may, after having advertised or given notice in such manner as the High Court may direct, apply to the High Court for an order that he be registered as the owner thereof.

Under this section, ownership of an estate may only be acquired against the person registered as the owner of the estate or the lease. The plaintiff in this case claims ownership by adverse possession of a fixed term estate over the land covered by the inspection hatch in the first defendant’s land as well as a prescriptive right of way over the first defendant’s leasehold estate. The plaintiff also claims a prescriptive easement over the whole pipeline in the second defendant’s land.

The provision dealing with acquisition of easement in section 226 of the Act. I set out parts of this section as relevant to our present case.

“226 (1) Easements and profits may be acquired by peaceable, overt and uninterrupted enjoyment thereof for a period of twelve years:

Provided that no easement or profit -

(i) may be acquired over or in an interest which is vested in the Commissioner or a local authority;

(ii) shall be so acquired over or in an estate or lease, or freehold or leasehold interest (within the meaning of section 9 (1)) unless the owner thereof is, or by reasonable diligence might have been aware of such enjoyment and might by his own efforts have prevented it; and

(iii) shall be so acquired over or in an estate or lease, or freehold or leasehold interest as aforesaid, where the easement or profit has been enjoyed with a permission of the owner of the estate, lease, freehold or leasehold interest, as the case may be.”

The side note to this section reads: acquisition of easement and profits by prescription. Just as in the relation to the claim brought pursuant to section 224(1) of the Act, there are two aspects to this claim of land or interests by acquisition. The first relates to the question of limitation and the second is that of prescription. These two questions are central to the case before us.

The law on limitation

It is appropriate that I deal first with the law on limitation. In so doing, I set out first section 9 and 35 of the Limitation Act which were relied upon by the plaintiff in this case. Section 9 deals with limitation to recover land and it is in the following terms:

“9.(1) No action shall be brought, nor any arbitration shall be commenced, by the Crown or a public authority to recover any land after the expiration of thirty years from the date on which or, if it first accrued to some person through whom the Crown or the public authority claims, to that person.

(2) No action shall be brought, nor any arbitration shall be commenced by any other person to recover any land after the expiration of twelve years from the date on which the cause of action accrued to him or, if it accrued to some person through whom he claims to that person:

Provided that if the cause of action first accrued to the Crown or a public authority, through whom the person bringing the action or commencing the arbitration claims, the action may be brought or the arbitration may commence at any time before the expiration of the period during which the action could have been brought or the arbitration could have commenced by the Crown or the public authority or before the expiration of twelve years from the date on which the cause of action accrued to some person other than the Crown or the public authority whichever period first expires.

(3) The provisions of this shall have effect as supplementary to but not in derogation of the provisions of the Land and Titles Act.”

And section 35 provides as follows:

“35 (1) At the expiration of the prescribed period to bring an action or to commence an arbitration, for the recovery of any land, or profits therefrom or for the enforcement of any easement thereon, the title of the person to the land or the right of the person to such profits or easement shall be extinguished.

(2) the provisions of subsection (1) shall have effect without prejudice to the provisions of the Land and Titles Act and any other law relating to land.”

By section 9 of that Act, the period allowed is 30 years, by the Crown or public authority to bring an action for the recovery of land and 12 years by any other person to do the same. If that had not been done section 35 of the Act would operate to extinguish the title of the person to that land.

The doctrine of limitation is based upon the notion that the law places a time limit within which a person must exercise his rights and if he fails to do so after that period, that person is prevented from coming to the Court to enforce those rights and so his rights are therefore lost. The general statement of this doctrine can be found in Bird and Others -v- The Registrar of Titles [1980-1981] SILR 47, at 54 where Daly CJ described the basis of the doctrine as follows:

“The basis of the doctrine of limitation is that, after a period of time during which a person has failed to exercise high rights, that person is prevented from applying to a court to enforce those rights and therefore his rights are lost. In relation to land this means that if the owner is dispossessed by the adverse possession of another he must assert his rights within a certain period. If the owner doest not do so, that other acquires a right to the land because it cannot be reclaimed from him. The period is governed by the appropriate law of limitation relating to enforcement of rights before a court.”

In that case, the appropriate law of limitation applicable was the English Limitation Act of 1939. We now have our own Limitation Act (Cap. 18) which expressly deals with limitation and which is applicable in the present case.

Applying the law to the facts

The plaintiff accepts in this case that it has never been granted easement or licence for its pipeline to traverse the Province’s Land and KEL’s land since the Pipeline Licence granted to it by the Government on 6 November 1959 expired on 6 November 1989. It nevertheless insisted that it has overriding interests in the defendants’ lands pursuant to section 114 of the Land and Titles Act. I shall deal with each of the interests claimed by the plaintiff in turn.

Easement

Section 2 of the Land and Titles Act defines “easement” as:

“a right attached to a parcel of land either to use other land in a particular manner or to restrict its use to a particular extent, but does not include profit”

The plaintiff’s claim of a prescriptive easement in this case is based on the suggestion that it has peaceable, overt and uninterrupted use of the pipeline and access to it for inspection and maintenance purposes for a period of 37 years. Whilst the Plaintiff accepts that it does not presently have a licence to have its pipeline traverse the defendants’ land, the defendants have not disputed the fact that the Plaintiff had constructed its pipeline through their land and has been using and accessing it for a period of 37 years. It is, however in my view, not simply a matter long uninterrupted use of the pipeline. The circumstances giving rise to the claim of long uninterrupted use of the pipeline are clearly important considerations in the present case.

The full right and liberty to have the steel subterranean pipe laid down within and under the land in question was given by Licence granted to the Plaintiff on 6 November 1959 for 30 years. Under that Licence the Plaintiff was to pay annual rental of £10, for the first 10 years and renewable during the next two succeeding 10 years. Clause 5 of the Licence shows that the rights and liberties granted under the licence were not transferrable. The Plaintiff had covenanted under Clause 6(1) that within six months from the determination of the Licence, it would remove from the said land the said pipeline and all valves, metres, fittings and other attachments. Thus with six months from 6th November 1989 (30 years from 6th November 1959) the Plaintiff’s rights to use the land in question for pipeline was ceased and was obliged to remove the pipeline. Obviously in this case, the Plaintiff did not do that. It has allowed the pipeline to remain on the defendants’ land.

The land in question, originally held by the Commissioner of Lands, was transfered to the second defendant on 8th July 1983 holding the perpetual estate in the land. The Plaintiffs Licence was still current then and I have no doubt the second defendant was aware of that. In anticipation of the expiry of the plaintiff’s Licence to use the second defendant’s land for the pipeline way, the second defendant organised a meeting on 10th July 1989 with the representatives of the Plaintiff and Commissioner of Lands. A memorandum of that meeting was produced and marked as “Document No. 24” in the Agreed Bundle of Documents. The purpose of that meeting was for the second Defendant to propose a formal agreement with the Plaintiff to establish an easement over the land for 50 year period on an annual rent of $3,000.00 together with an initial compensation payment of $2,500.00. Correspondence going back and forth from the parties on the matter followed thereafter, apparently with no compromise. The first threat by the second Defendant of legal action against the Plaintiff was made on 14th September 1990 in a letter to the Plaintiff from the Legal Adviser to second Defendant. By then the Plaintiff’s Licence had long leased and the second Defendant made it clear to the Plaintiff that it did not agree to the Plaintiff’s pipelines encroaching on its land unless an easement was granted. By 26th May 1995 the issue of easement had not been resolved. It was pointed out to the Plaintiff that if a suitable arrangement as to the easement had not been reached, the second Defendant would require the Plaintiff to remove its pipelines. On 4th July 1995 the Plaintiff wrote to the second Defendant conceding that it had no easement in respect of the pipelines and suggested entering into an easement agreement. A Draft Agreement was drawn up by the second Defendant and forwarded to the Plaintiff on 8th January 1996. When no response was received from the Plaintiff, the second Defendant sent a reminder on 20th May 1996, to which, the Plaintiff did not respond until 30th August 1996. The plaintiff by its letter of 5th September 1996, proposed to accept a lease of an easement for 10 years and to pay the second defendant rental at $1,000 per year for first five years. It proposed to pay to the second defendant $10,000 for lost of rent since 1989. The proposal was rejected by the second defendant in a letter of 13 November 1996. Further correspondence ensued in early 1997 when the plaintiff wrote on 3 February 1997 reiterating its offer and stating that second defendant’s suggestion of $3,000 per year was excessive. No agreement had been reached between the plaintiff and second defendant regarding the status of the plaintiff’s pipeline still existing under the second defendant’s land. When the second defendant granted the lease on 14 July 1999 of Parcel No. 191-023-134, which was part of the second defendant’s land, to the first defendant, the easement issue still had not yet been resolved.

The first defendant has by its letter of 19 July 1999 sought the plaintiff to remove its pipeline from the KEL land.

The above factual circumstances are important in assessing the legal status of the plaintiff’s pipeline in question since the claim by the plaintiff of “peaceable, overt and uninterrupted” use of the defendants land must be determined in the light of the circumstances applicable to the defendants’, knowledge and conduct over the issue of the existence of the pipeline on their land. This is a question of fact: Smith -v- Baxter[1900] UKLawRpCh 69; [1900] 2 Ch. 138.

Thus to resolve the case before us in this case, the question of whether the plaintiff has prescriptive easement over the defendants’ land must first be determined. The second question of whether the defendants’ hold their registered interest in land subject to the plaintiff’s easement is dependent on whether the plaintiff has a prescriptive easement in the land. This requires the plaintiff to establish two factors: firstly, that it has enjoyed the easement continuously for twelve years (s.226(1) and secondly, that it has done so as “a right” attached to land as defined in section 2 of the Land and Titles Act.

There is no doubt that the plaintiff has been using the pipeline which was constructed through the defendants’ land since 1962. This action was commenced on 1 October 1999 and so for 37 years the plaintiff has enjoyed the use of the pipeline and access to the defendants’ land for the purpose of conveying and reconveying petroleum through and inspection and maintenance of the pipeline. However, it must be noted that the “right” to lay the pipeline in the land in question was granted to the plaintiff under a Licence for 30 years from 6 November 1959. That Licence came to an end on 6 November 1989. It is true that when the second defendant took over the perpetual estate in the land from the Commissioner of Lands in 1983, it was binding upon it as successor in title to observe the ‘right’ of easement (if any) created over the land: Re Salvin’s Indenture [1938] 2 All E.R 498. If there was such right here, then the obligation to observe it can only be for the remaining six years up to 6 November 1989. The second defendant had done so. Thus the plaintiff had continuously enjoyed the use of its pipeline in the second defendant’s land for the whole period of 30 years granted to it under the Licence.

What is the position of the plaintiff’s ‘right’ to lay and use the pipeline after the expiry of the 30 years? If the plaintiff continued to enjoy as of right the easement after 6 November 1989, then it can be argued that the plaintiff had enjoyed that right without interruption for 37 years. However, that is not the position here. In the present case, the right to use the defendants’ land was conferred under a Licence which expired 30 years after it was granted. At the expiry of that Licence, the plaintiff’s leave or permission, which is what a Licence is, came to an end. More particularly in a case such as the present where the licence was not incidental to a tenancy nor was it a licence to enter and take away, the licensor was entitled to revoke the licence. See Thomas -v- Sorrell (1673) Vaugh, 330 and also Goldsack-v- Shore [1950] 1 KB 708. In reality the licence granted in the present case, was a contract and as such it was revocable on notice: Winter Garden Theatre (London) Ltd -v- Millennium Productions Ltd [1948] A.C. 173.

Another interesting feature of the plaintiffs Licence in this case was that it was not assignable. In fact, one of the grounds for determination of the licence was if the plaintiff purported to transfer or assign the rights and liberties granted under the licence. See Cl. 5 of the Licence. It is also worth nothing that the licence was determinable at the end of the thirtieth year. These features of the plaintiff’s licence demonstrate that the plaintiff’s enjoyment of the use of the defendants’ land was permissive. This is contrary to the rules for acquisition of easement by prescription. These rules were expressed by Thesiger LJ in Sturges -v- Bridgman [1979] 11 ch. D 852 at 863 as nec vi, nec clam, nec precario, that is to say the enjoyment must not be violent; it must not be secret or it must not be permissive. In relation to enjoyment of easement as permissive, Farwell J said in Burrows -v- Lang [1901] UKLawRpCh 101; [1901] 2 Ch 502 at 510 on the question: What is precarious?:

“That which depends not on right, but on the will of another person.”

Again generally speaking, enjoyment granted under a licence or permission from the owner of the servient tenement confers no right to the easement. It rebuts the presumption that such enjoyment was obtained under a claim of right to the easement. Such a position was long held by the Courts. See Monmouthshire Canal Co. -v- Harford [1834] EngR 332; (1834) 1 C.M. & R.. 614; Tone -v- Preston [1883] UKLawRpCh 193; (1883) 24 Ch. D 739; Chamber Colliery Co. -v- Hopwood [1886] UKLawRpCh 90; (1886) 32 Ch. D. 549.

The present case now before the Court is a case where the plaintiff simply claims a right by way of easement over the defendants’ land pursuant to the continued use of the pipeline constructed in 1962 through the defendants’ land. No mention was made by the plaintiff in the pleadings that the fact of enjoyment was had by virtue of a licence granted on 6 November 1959 for 30 years which had expired naturally on 6 November 1989. The case of Tickle -v- Brown [1836] EngR 254; (1836) 4 A & E. 369 would appear to support the practice that in such a case as the present one, a licence conferring the enjoyment ought to be pleaded.

Having said all that, in my Judgment, the legal position of the plaintiff, in so far as its use of the defendants land to lay the pipeline, was that the enjoyment thereof was granted by a licence or permission and as such it conferred no right to the easement claimed by the plaintiff in this case, up to 6 November 1989. Section 226(1)(iii) of Land and Titles Act clearly provides that no easement shall be so acquired in an estate or lease where the easement has been enjoyed with a permission of the owner of the land. The permission was enjoyed by the plaintiff for the full 30 years but not as of right. There is therefore no right of easement conferred on the plaintiff in the defendants land in this case for 30 years but only a licence or permission to use the defendants’ land to lay the pipeline and use it.

The second question as to whether the defendants hold their land subject to plaintiff’s easement for 30 years from 6 November 1959, must follow the outcome of the first question. In the light of what has been said, in my judgment as there was no right of easement during that period but a mere licence, the defendants could not have held their land subject to any such easement.

Period between 6 November 1989 to 19 July 1999

After the expiry of the licence, the plaintiff has continued to enjoy the use of the defendants’ land. This was claimed to have been so until 19 July 1999 when the first defendant gave notice to the plaintiff for the removal and relocation of its pipeline from its land. Between 6 November 1989 to 19 July 1999 was a period of 9 years and 4 months. There was no licence or permission granted by the defendants allowing the plaintiff to use their land. It could be argued, however, that the defendants impliedly granted the plaintiff the right to do so.

As I see it, the plaintiff faces two hurdles on its claim of uninterrupted enjoyment of a right of way and prescriptive easement. As to uninterrupted enjoyment of a right, the evidence does not support such a claim. Between 1983 and 1999 there had been continuous correspondence between the second defendant and plaintiff regarding the use of the land in question. The plaintiff, having admitted that it had no registered easement over the land, was aware of that and continued to negotiate with the second defendant as to how it could secure its continued use of the land. No agreement had been reached even by the 19 July 1999. The evidence supports the defendants’ contention that the plaintiff’s continued use of the land in question had been contentious since the expiry of its licence in 1989. The correspondence between the second defendant and plaintiff, the negotiations between them, the existence of an apparent and continuous protest by the second defendant of the use of its land by the plaintiff since then together with the clear admission by the plaintiff of not having a registered easement over the defendants’ land were clearly sufficient to defeat the plaintiffs claim of peaceful, uninterrupted enjoyment of the land in question. See Easton -v- Swansea Waterworks Co. [1851] EngR 559; (1851) 17 Q.B. 267 and also Dalton -v- Angus (1881) 6 App. Cas. 786.

As to the plaintiff’s claim of prescriptive easement, the Court is bound to consider this in the light of the notion of acquiescence. For as Fry J said in Dalton -v- Angus, “.... the whole law of prescription and the whole law which governs the presumption or inference of a grant or convenant rest upon acquiescence.” The language of section 226 (1) of the Land and Titles Act that easements may be acquired by “peaceable, overt and uninterrupted enjoyment” is clearly consistent with the notion that consent or acquiescence is essential to acquisition of easements by prescription. For there can be no peaceable or uninterrupted enjoyment of such easements where the parties are continuously in a state of “warfare” protesting to destroy the peaceful enjoyment of such easements. On this position of the law. Thesiger LJ, in delivering the judgment of the Court of Appeal in Sturges -v- Bridgment succinctly put the position, thus:

“the law governing the acquisition of easements by user stands thus: Consent or acquiescene of the owner of the servient tenement lies at the root of prescription, and of the fiction of a lost grant, and hence the acts or user, which go to the proof of either the one or the other, must be, in the language of the civil law, nec vi nec Icam nec precario; for a man cannot, as a general rule, be said to consent to or acquiesce in the acquistion by his neighbour of an easement through·an enjoyment of which he has no knowledge, actual or constructive, or which he contests and endeavours interript, or which he temporarily licenses. It is an mere extension of the same notion, or rather it is a principle into which by strict analysis it may be resolved, to hold, that an enjoyment which a man cannot present raises no presumption of consent or acquiescence.”

In the present case, no consent or acquiescence can be inferred from the defendants for the plaintiff to continue to use their land since the expiry of its licence in 1989. It is true that at common law the presumption is made in favour of a long user and the Court will be slow to infer facts which would defeat a right which has been exercised for a long time. Pugh -v- Savage (above). However where there is evidence to the contrary, that is to say, evidence showing that support for the long user cannot be maintained, the Court is bound to infer from the facts that the presumption ought to be rebutted.

The present case clearly shows that the evidence contained in the agreed bundle of documents is such that the inferrence against long interrupted user is irresistible. In the same way the presumption of modern lost grant cannot be supported in this case. Firstly, the plaintiff’s enjoyment of the use of the pipeline through the defendants’ land for 30 years was under a licence which conferred no right to the easement claimed in this case: Ward -v- Kirkland [1967] Ch. 194. Secondly, from 1989 when the licence expired to July 1999 there is clearly evidence to show that the plaintiff’s continued use of the pipeline concerned had been contentious and pressure had been continuously exerted upon the plaintiff to remove its pipeline. Such a set of circumstances would be sufficient to defeat the doctrine of modern lost grant.

The case of Tehidy Minerals Ltd -v- Norman [1971]2 QB 528 while proceeding to grant rights of common grazing to the defendants based on the doctrine of modern lost grant since they had 30 years uninterrupted enjoyment of the grazing, recognised that the presumption of lost grant is rebuttable. It can be rebutted where the evidence establishes that such a grant would be impossible to grant. In the present case, the plaintiff enjoyed the use of the pipeline for 30 years under the licence granted to it, in which case it could never have acquired any right higher than a permissive character, and so it could therefore never be, or become a foundation for the presumption of a lost grant: Attorney General -v- Horner [1913]2 Ch 140.

In any case, the language of section 226 (1) of the Land and Titles Act requires that for the right of easement to be acquired it has to be by peaceful, overt and uninterrupted enjoyment for a period of twelve years. Between 6 November 1989 to 19 July 1999 was only a period of 9 years and 4 months which did not fulfil the period required under the law. Thus neither prescriptive easement nor modern lost grant could be acquired in this case.

Whether there is a right of way.

The claim by the plaintiff that it has a right of way in the present case, must be established by evidence. In terms of section 114(1) of Land and Titles Act the plaintiff must establish the right of way “for the time being” subsisting and affecting the defendants registered interest in the land. In the context of this case, the words “for the time being” used in section 114(1) should be taken to refer to the particular time when the defendants acquired their respective registered interest in the land. For the second defendant, that would be on 8 July 1983 and for the first defendant, that would be 14 July 1999. In Ellison -v- Thomas (1862)31 LJ Ch, 867 at 869, Kindersley, VC considered the word “for the time being” and said:

“The words “for the time being” are capable of different interpretations, according to the context; for example, they might be used with a context showing clearly that they were intended to point one single period of time; and a case was put of a person intending to give a promissory note to a company, and, giving it to the secretary “for the time being”, meaning clearly the person who appeared to be the secretary at the particular time when the note became payable. It might be, according to the context, that the same words would apply to a succession of periods. Take the common case of a petition for payment of dividends to the rector of a certain parish “for the time being”, which of course, would point not to a single period but a succession of periods.”

The plaintiff in the present case would therefore have to show that the right it now claims, existed, at the time the defendants acquired their registered interest in the land. It is true that the right of way under the Land and Titles Act need not be registered. However, its existence must first be established for it to be enjoyed bearing in mind that a right of way can only pass by prescription, grant or necessity. In the present case, the plaintiff claims the right of way by prescription, as well as by necessity.

In so far as the claim against the second defendant is concerned, it can be said that as from 8 July 1983 when it became successor in title to the land, it took the land subject to the rights of the plaintiff conferred under the licence. Those rights are expressly stated in the licence as:

“.........the full right and liberty to lay down two steel pipes of such strength and so joined in every part as not to permit the escape of any petroleum .... passing through them .... TOGETHER with full right and liberty during the continuance of this licence to convey and reconvey petroleum ... and from time to time with the approval of the said British Solomon Islands Protectorate Ports Authority first had and obtained to inspect, take up, cleanse, repair, remove and replace the said pipelines .. , and for such purpose to enter on and perambulate over the pipeline way doing no unnecessary damage to the said lands and restoring the surface to its condition prior to such work or as near thereto as shall be reasonably possible.” (Clause 1 of the Licence).

The rights expressed in this Clause were such that in reality, they were permission granted to the plaintiff to use the land during the continuance of the licence and from time to time, with approval from British Solomon Islands Protectorate Ports Authority (later the second defendant), to enter and carry out inspection, repair etc of the pipelines.

In such situation, the enjoyment of the defendant’s land can hardly be regarded as enjoyment “as of right”. As Lord Davey put it in Gardener -v- Hodgson’s Kingston Brewery Co. [1900] 1Ch 592,597.

“An enjoyment as of right must be nec vi nec clam, nec precario”

It is no longer nec precario when the enjoyment is by permission from the owner of the servient tenement, for it depends not on right but on the will of another person: Burrows -v- Lang (above). This was the position of the plaintiff in this case, firstly with the Commissioner of Lands up from 6 November 1959 to 7 July 1983 and then with the second defendant from 8 July 1983 to 6 November 1989. Such a position is inconsistent with right as pointed out by Buckley LJ in Attorney General -v- Horner (above) where he said at page 178:

“It appears to me in the present case, that the evidence is inconsistent with right, and that the user is consistent only with permission to enjoy what the supposed grantor did not want, if and so long as that user might be consistent with the rights of third parties, and also with the grantor’s right to use his own property from time to time in a reasonable manner. Such a user never could have been ‘as of right’ in its inception; it could never acquire during its continuance any higher than a permissive character, and it therefore never could be, or become, a foundation for the presumption of a grant.”

As to the plaintiff’s claim of a right of way by prescription in such circumstances described in the present case, the answer can be found in the words of Willes J. in Mills -v- Colchester Corporation [1867] UKLawRpCP 43; (1867) LR 2 CP 476 at 486

“In the case of prescription, long enjoyment in order to establish a right must have been as of right and therefore, neither by violence, nor by stealth nor by leave asked from time to time.”

It would be difficult for the plaintiff to establish a right of way acquired by prescription or grant in this case during its 30 years licence.

Between 6 November 1989 to 14 July 1999, the plaintiff is in no better position to rely on any right of easement or right of way than it had before then. Certainly in my judgment, that in the light of the continuous protest by the second defendant to obstruct the plaintiff’s continued enjoyment of its land it can hardly be said to be consistent with the claim of uninterrupted enjoyment or any implied grant of easement or right of way. Can it still be said that since the plaintiff had been using a way upon the defendants’ land for 30 years under Licence and thereafter for 9 years that it impliedly did so as of right? I think not, and on the facts of this case, it could not be said that the plaintiff’s use of a way upon the defendants’ land during either period (1959 to 1989 and 1989 to 1999) was as of right..

It was contended by Counsel for the plaintiff that the Act has no provision preventing a prescriptive right of way. Whilst that may be so, the common law doctrine of prescription exists in Solomon Islands and modified by the provisions of the Land and Titles Act, in particular, sections 224 to 227 of Part XXIII of the Act. Section 226(1) (iii) prevents the acquisition of easement where the easement has been enjoyed with the permission of the owner of the estate and a right of way in a positive easement: Borman -v- Griffith [1930] 1 Ch 493. That permission can either be oral or in writing. In this case that permission was by licence which expired on 6 November 1989. Section 226(1) would operate to prevent such a right being acquired where the enjoyment of which is by permission. The enjoyment of the use of the way upon the defendants’ land after 6 November 1989 could not be said to be uninterrupted for reasons which I have already dealt with in this judgment. It certainly in my judgment, does not comply with the statutory period of “uninterrupted enjoyment for a period of 12 years” either.

Right of occupation through adverse possession

Then it is said that the plaintiff has been in continuous occupation of the small area of the first defendant’s land covered by the inspection hatch for 37 years. It is therefore argued that the plaintiff acquired title to that part of the first defendant’s land by adverse possession by virtue of sections, 9 and 35 of the Limitation Act (Cap. 18) and section 224(1) of the Land and Titles Act. Section 224 of the Land and Titles Act concerns with acquisition of land by prescription. However, that may be achieved by “peaceable, overt and uninterrupted adverse possession” of the land for 12 years. The Limitation Act also deals with the question of “adverse possession” in section 20. Two matters must be established by the claimant before time can begin to run against the owner of the land and these are set out in section 20 (1) and (5). These are:

(1) the person entitled to the land has been dispossessed or has discontinued his possession; or

(2) adverse possession has been taken by some person in whose favour the prescribed period runs.

It will be seen that in relation to both prescription and limitation, the notion of “adverse possession” is essential. The essence of such a possession is that it must be “peaceable, overt and uninterrupted”. It would appear that section 20 (7)(C) of the Limitation Act requires such possession to be more than mere formal entry onto the land, whether such formal entry is continuous or not. It thus falls upon the plaintiff to establish adverse possession in this case and that it was peaceable overt and uninterrupted. In Marshall -v- Robertson (1905) 50 SoI. Jo. 75 (cited in Bird and Others -v- The Registrar of Titles), Warrington J. said:

“what is the fact that they (the claimants) have to prove? It seems to me that it is not sufficient for them to prove mere acts of ownership - that is to say, acts which an owner might do, but they must prove possession on their part and dispossession ..... of the rightful owners .If the right action never arose, then the statute has not run in their favour”

What constitutes proof of possession and dispossession of course, varies from case to case depending on the nature of the property as pointed out in Techbild Ltd -v- Chamberlain (1969) 20 P. & C. R 633 where it was held that:

“(1) an owner of land did not necessarily discontinue possession of it i.e. abandon it, merely by not using it, but each case depended on the nature of the land or property in question and the circumstances under which it was held”, and

“(2) a finding on adverse possession required some affirmative unequivocal evidence of discontinuance, consistent with an attempted to exclude the true owner’s possession, the nature of the property being, again relevant”. Sachs L.J. said that “In general intent to exclude the true owner has to be inferred from the acts themselves. The suggestion should be guarded against that, in all cases where, there are equivocal acts, expressions of intent are necessarily relevant if they are not brought to the notice of the true owner”.

As to the meaning of “adverse possession” Lord Evershed MR. said in Moses -v- Lovegrove [1953] 1. All. E.R. 1279, at p. 1282:

“According to the ordinary sense of the words, adverse possession must, I should have thought, be possession adverse to - that is to say, inconsistent with and in denial of - the right of the landlord to the premises...”

The agreed facts in the present case do not in my view lend support to the plaintiff’s claim of adverse possession of the first defendant’s land. Possession of the land was in the hands of the second defendant and later transferred to the first defendant on 14 July 1999. The first defendant continues to hold possession of the land ever since holding a leasehold title over the land. The second defendant’s intention was to have the plaintiff removed its pipeline from its land. That intention was manifested by the numerous correspondence and meetings and negotiations between the plaintiff and officers of the second defendant.

The second defendant granted the leasehold over that portion of the land to the first defendant who also manifested an intention of removing the pipeline, and in particular, the inspection hatch, from its leasehold land. There is no evidence of exclusion of others, in particular, the titleholders (first defendant) from the land and there is no evidence of user inconsistent with the plans of owners to use the land. Thus within the meaning of the words “adverse possession” given in Moses -v- Lovegrove, no adverse possession can be said to exist in this case against the first defendant who was registered as the owner of the lease. On the facts of this case, no title can be said to have been acquired by the plaintiff over the first defendant’s land either under the provisions of the Limitation Act or by prescription under the Land and Titles Act.

Whether the Guadalcanal Provincial Assembly “a local authority”

The plaintiff’s next contention is that the second defendant is not “a local authority” with the meaning of that expression as defined in section 16(1) of the Interpretation and General Provisions Act (Cap. 85). As such the plaintiff can acquire adverse possession over the hatch and prescriptive easement over the whole pipeline facility.

The Land and Titles Act does not define “local authority” but there can be little doubt as to its meaning under the Interpretation and General Provisions Act (Cap 85) where under section 16(1) it provides:

“16.(1) In an Act-

‘local authority’ means a town council or a Provincial Assembly.”

A question was asked whether the above definition is applicable of the provisions to sections 224(1)(b) and 226(1)(i) of the Land and Titles Act. The plaintiff’s contention is that it does not. It argued that the word “Act” means a law made by Parliament pursuant to section 59 of the Constitution. Sections 204 and 206(now 224 and 226) of Land and Titles Act were laws made by colonial power in 1968 and enforced in 1969 and as such they not passed by Parliament under section 59 of the Constitution. I cannot accept this contention. Section 5(1) of Solomon Islands Independence Order 1978 expressly provides that “existing laws shall have effect ... as if they had been made in pursuance of the Constitution” that is, by the National Parliament. Thus, the Land and Titles Act although made by the colonial power, was deemed not only to continue but also to do so as an “Act of Parliament:” See Y. Sato Co. Ltd –v- Honiara Appointed Council (CA) Civ. App. Nos. 15 and 16 of 1998 (unreported) which is clearly on point.

The Interpretation and General Provisions Act applies to the interpretation of the provisions of the Land and Titles Act unless a contrary intention appears in the Land and Titles Act itself. No definition of “local authority” appears in the Land and Titles Act and so the definition in section 16(1) of the Interpretation and General Provisions Act applies. That being so, the expression “local authority” in sections 224(1)(b) and 226(1)(i) covers the second defendant in this case. Consequently, no adverse possession can be acquired against the second defendant since it acquired the land on 8 July 1983 nor can prescriptive easement be acquired against it.

The geographical argument raised regarding the area of authority of the second defendant as a “local authority” is one that I do not favour. Geographical location of “a local authority” as defined cannot derogate from the legal status and autonomy of the second defendant. The legal status of the “local authority” is not depended upon geographical conformity.

Decision on the issues

The determining issues in the present proceedings are relevantly put by Counsel for the plaintiff as: (1) whether, but for the provisos to sections 224(1) and 226(1) of the Land and Titles Act the plaintiff has overriding interests or prescriptive easement over the defendants’ land and (2) whether the first defendant enjoys the benefit of those provisos. I have dealt with those issues in this judgment and the questions must be answered in favour of the defendants.

There is the counterclaim for a mandatory injunction against the plaintiff. As the defendants succeed in these proceedings, they are entitled to such an order. Counsel for the plaintiff urged the Court to consider a number of factors in exercising its discretion whether or not to grant mandatory injunction in this case. Of the five matters urged upon the Court to take into account, I feel only two of them are relevant for consideration in the light of the circumstances of this case, namely national interest and costs of removal and relocation.

The question of public or national interest is a relevant, matter for consideration in an injunction case. Where, however, substantial damage will be caused to the claimant in the absence of an injunction, the claimant’s rights should prevail over the public interest. See Miller -v- Jackson [1977] EWCA Civ 6; [1977] QB 966; [1977] 3 All ER 338 and also Kennaway -v- Thompson [1980] EWCA Civ 1; [1981] QB 88.

There is a substantial difference between the above two mentioned cases and the present one. The above two cases were concerned with nuisance resulting in apprehended injury to the plaintiffs who were near the cricket field (Miller’s case) and artificial lake (Kennaway’s case). In the present case, the plaintiffs licence to lay and use the pipeline through the defendants’ land expired on 6 November 1989. The second defendant had continuously urged the plaintiff to enter into an agreement to continue to use the pipeline through the second defendant’s land. The plaintiff admitted it had no easement over the second defendant’s land after the expiry of its licence. No agreement had been reached between the second defendant and plaintiff despite the second defendant’s attempt to formalise such an agreement by ·way of a Grant (see page 75 of the Agreed Bundle of Documents). Thus all along since the expiry of its licence, the continuous existence of the plaintiff’s pipeline through the defendant’s land had been a trespass since then. This would clearly entitled the defendants a mandatory injunction.

As to the costs of removal and relocation, I do not feel that this issue can bear heavily on the Court’s mind in this case. No evidence had been shown that the plaintiff is incapable of meeting the costs of relocating the pipeline concerned out of the defendants’ land. It was simply said that it would be expensive to do so. The plaintiff was a company incorporated in Great Britain and has branches in other parts of the world including Solomon Islands and Papua New Guinea. Undoubtedly it possesses assets substantial enough to meet the relocation of just one pipeline which is about 100 metres in length. To allow such an argument together with substituting damage for injunction in a case such as this would be as Lord Lindley LJ said in Shelfer -v- City of London Electric Co. [1894] UKLawRpCh 212; [1895] 1 Ch. 287, 315:

“.... to allow a wrong to continue simply because the wrong doer is able and willing to pay for the injury which he may inflict”

such a notion if disregarded would lead to a practice whereby the Court would, in the words of Lord Summer in Leeds Industrial Co-operative Society -v- Slack [1924] AC 851 at 861:

“.....fix the price at which an intending tortfeasor should be judicially licensed to violate the rights of another ... allow the big man ... to have his way, and to solace the little man by giving him a cheque that he does not ask for.”

There is also power in the Court to grant both damages and injunction in a proper case: Gilling -v- Gray (1910) 27 TLR 3. In the present case the first defendant seeks damages and mandatory injunction against the plaintiff and I bear in mind that only the first defendant seeks such remedies. The second defendant did not file appearance nor appear at this hearing .It has basically left the case to be handled by the first defendant.

In the light of all that had been said in this judgment, the first defendant would be entitled to the orders it seeks in its counter claim. However I make no formal order at this stage as agreed between the parties save to say that should the need arises after this judgment to make one, the Court would no doubt make it on the terms, if not agreed by the parties, to be fixed by the Court.

The default judgment against the second defendant

The second defendant did not enter an appearance in these proceedings. Consequently the plaintiff seeks a judgment in default of appearance against the second defendant. Generally speaking where two or more defendants are sued jointly and some of them make default of appearance, the plaintiff may enter judgment against those in default. But no execution can be made of such default judgment until the final outcome of the trial of those who appeared: Order 13 r 6 of the High Court (Civil Procedure) Rules, 1964. However, the present case is one that concerns the rights of the parties over land. In such a case in my view, the provisions of r.6 and r.9 of Order 13 must be considered. For ease of reference, I set out those rules hereunder:

“O. 13....

r 6. Where the writ is indorsed as in the last preceding rule mentioned, and there are several defendants, of whom one or more appear to the writ and another or others of them fail to appear, the plaintiff may sign interlocutory judgment against the defendant or defendants so failing to appear, and the value of the goods and the damages, or either of them, as the case may be, may be assessed, as against the defendant or defendants suffering judgment by default, at the same time as the trial of the action or issue therein against the other defendant or defendants, unless the Court shall otherwise direct.

Provided that the Court may order that the value and amount of damages, or either of them, shall be ascertained in any way which the Court may direct.

............................

r 9. In all actions not by the Rules of this Order otherwise specially provided for (including actions for the recovery of land and a claim for mesne profits), in case the party served with the writ does not appear within the time limited for appearance, upon the filing by the plaintiff of a proper affidavit of service, and, if the writ is not specially indorsed under Order 3, Rule 5, of a statement of claim, the action may proceed as if such party had appeared, subject, as to actions where an account is claimed, to the provisions of Order 16.

The effect of those two rules read together, in my view, would be to allow the trial to proceed against all the defendants without prejudice to the plaintiff’s entitlement to enter judgment against those defendants who were in default of appearance.

In the present case, although the plaintiff is entitled to a judgment in default of appearance against the second defendant, the matter proceeded to trial as if it had appeared. At the conclusion of the hearing and in the light of the findings of the Court in this judgment, it would not be allowed such a judgment to be entered against the second defendant, since the plaintiff would not “be entitled” as of right to such judgment.

Conclusion

The issues raised for the Court’s determination have been dealt with and answered in this judgment. The Court has also dealt with the rights and entitlement of the parties herein. It now remains for the Court to make the formal order. However, in view of the agreement of the parties on this aspect of the case, I shall postpone the making of the Order which ought to be made in this case until the expiration of 21 days from the date of this judgment, unless the parties have, in the meantime, agreed to the terms of such order within the bounds of this judgment.

Costs of this hearing are reserved until the making of the order mentioned above.

(Sir John Muria)
CHIEF JUSTICE