Harry v Kalena [2000] SBCA 1; [2001] 3 LRC 24 (19 April 2000)

[2001] 3 LRC 24

COURT OF APPEAL OF SOLOMON ISLANDS

HARRY

v

KALENA TIMBER COMPANY LTD

Court of Appeal
Mason P, McPherson and Los JJA
22 November 1999, 19 April 2000

(1) Contract - Joint parties - Whether joint and several - Agreement to acquire timber rights on customary land - Company entering into contract with nine landowners acting on behalf of tribe members - Company breaching environmental requirements in contract - Provision for notice of suspension of contract to be served in event of breach - Plaintiff landowner serving notice - Whether landowners joint or several parties to contract - Whether common law presumption that parties joint applicable - Whether plaintiff having power to serve notice without agreement of others - Law of Property Act 1925 (UK), s 81(1).

(2) Equity - Trust - Fiduciary duty - Agreement to acquire timber rights on customary land - Company entering into contract with nine landowners acting on behalf of tribe members - Whether landowners trustees - Whether trustees in relation to each other - Whether landowners required to exercise contractual power jointly - Whether plaintiff landowner having power to serve notice to suspend contract without agreement of other landowners.

The plaintiff and the members of his tribe owned, or claimed to own, under customary title an area known as the Sabere Vuvure land. In 1988 the plaintiff and a number of other landowners entered into a written logging contract, in the form of an agreement to grant timber rights on customary land, to the defendant, the Kalena Timber Company (K). The contract was signed on behalf of the tribes by the plaintiff and eight others who were described as 'trustees, representatives, or landowners'. Clause 30 of the contract provided that, in the event of a breach or failure to comply with certain obligations regarding, inter alia, the protection of the environment and the maintenance of the subsistence of the local people, 'the landowner shall serve one (1) months' notice requiring the company to comply with the agreement' and that, in the event of default the agreement could be suspended until the breach was remedied. In 1992 the plaintiff alleged that damage was being caused to land, trees and streams which were protected under the contract and his solicitor sent to the defendant notice of exercise of the cl 30 power requiring it to suspend logging activities. However, logging continued and in 1993 an injunction was obtained by the plaintiff restraining operations. The other landowner parties were joined as co - defendants at their request, to represent all other landowner parties except the plaintiff. The proceedings became dormant until, in 1999, the defendant applied to have the plaintiff's statement of claim struck out primarily on the basis that the contract was entered into jointly and that consequently the plaintiff was not able to exercise the cl 30 power without the assent or concurrence of the other landowner parties to the contract who, in fact, opposed his course of action. It was also contended that since the plaintiff was a trustee, he was required to act in unanimous agreement with the other trustees and that he was therefore not competent to institute proceedings. The application was dismissed and the co-defendants were struck out of the proceedings. The defendant appealed.

HELD: Appeal dismissed.

(1) At common law there was a presumption that a contract to which there were two or more parties on one side was joint, not joint and several and that presumption operated until the contrary was demonstrated. However, that presumption was not unqualified since s 81(1) of the UK Law of Property Act 1925, which, by virtue of Sch 3, para 1 of the Constitution of Solomon Islands 1978, formed part of the law of Solomon Islands, provided that 'a contract under seal ... made with two or more jointly ... to do any other act for their benefit ... shall be construed as being also made with each of them'. It followed that such a promise was several as well as joint. The question to be asked, therefore, was whether there was anything in the logging contract suggesting an intention on the part of the landowners that their rights were to be simply joint. The wording of cl 30 referred to 'the landowner' having the power to serve notice and clearly foresaw that the power could be exercised by one landowner acting on his own and there was no evidence to suggest that that was a drafting error. Whilst the existence of the reference to 'their agent' in cl 30 amounted to a possible ambiguity, other aspects of the contract such as the fact that it had always been envisaged that the landowners would keep their respective lands, rights, trees and timber separate and that each tribe would retain the pecuniary benefit from the logging on their land separate clearly suggested that the contract was to operate for each of the landowners separately. Equally, there was nothing in the Forest Resources and Timber Utilization Act (cap 40) which foresaw that those entitled to grant timber rights would become joint parties. It followed that the power conferred by cl 30 was exercisable•by each landowner who signed the contract and could be exercised without the concurrence, and even against the dissent, of the other parties to the contract (see pp 28, 29, 31, 32, post). Dicta of Parke B in Sorsbie v Park [1843] EngR 1079; (1843) 12 M & W 146 at 158 and Young v Abina (1940) 6 WACA 180 applied.

(2) The individual landowners were trustees only in the sense that there was a fiduciary relationship between them and the members of their tribe or group in that they were to distribute the pecuniary benefit received from the logging of their area of customary land to the various members of their group or individuals who were entitled to receive it. The mere use of the word 'trustee' in the contract did not mean that a trust had been established in the complete and technical sense. Instead the landowners who were parties to the contract took on the character of trustees towards those whom they represented as signatories to the contract and to whom they were to distribute the proceeds. It was not the case that the landowners were trustees in relation to each other and that they therefore had to exercise their power under cl 30 unanimously. There was no evidence of an intention of the parties to surrender to the others such extensive powers over their land. It followed that the appeal would be dismissed (see pp 30–31, post). Dicta of Ward CJ in Allardyce v A-G [1988–89] SILR 78 at 97, in Tovua v Meki [1988–89] SILR 74 at 76 and Tito v Waddell (No 2) [1977] 3 All ER 129 applied.

Per curiam. A joint promisee could sue to enforce a promise and join a reluctant promisee as co-defendant. Although it was doubtful whether evidence was available or admissible to construe the contract as joint ratter than several, it was desirable to ensure that, at trial, the action was properly constituted as regards parties, i.e. that co-defendants who had been struck out of the proceedings, without any application by them to that effect, should continue to remain as parties, to avoid needless arguments and expense at the trail (see p 33, post). Cullen v Knowles [1898] UKLawRpKQB 139; [1898] 2 QB 380 and Lion White Lead Limited v Rogers (1918) 25 CLR 522 applied.

[Editors’ note: section 81(1) of the Law of Property Act 1925 (UK) is set out at p28, post]

Cases referred to in the judgment
Allardyce v A-G [1988-89] SILR 78, Sol Is HC
Cullen v Knowles [1898] UKLawRpKQB 139; [1898] 2 QB 380, UK QBD
Gandley Simbe v East Choiseul Area Council (1999, Appeal No 8/1997, unreported)
Josselson v Borst [1937] 3 All ER 722, [1938] 1 KB 723, UK CA
Lilo v Ghoma (1981, Customary Land Appeal Case 14/1981, unreported)
Lion White Lead Limited v Rogers (1918) 25 CLR 522, Aus HC
Pilley v Ribinson [1887] UKLawRpKQB 203; (1887) 20 QBD 155, 57 LJQB 54, UK QBD
Re Estate of James Sholu (1932) 11 NLR 37
Sorbie v Park [1843] EngR 1079; (1843) 12 M & W 146, 52 ER 1146
Tito v Waddell (No 2) [1977] 3 All ER 129, [1977] Ch 106, UK Ch D
Tovua v Meki [1988-89] SILR 74, Sol Is HC
Young v Abina (1940) 6 WACA 180, West Africa CA

Legislation referred to in judgment
Solomon Islands
Constitution of Solomon Islands 1978, Sch 3, para 1
Forest Resources and Timber Utilisation Act (cap 40), s8 (3)
Rules of the Supreme Court of the Judicature Act 1873

United Kingdom
Land Transfer Act 1897
Law of Property Act 1925, s 81(1)
Supreme Court of the Judicature Act 1873

Other sources referred to in judgment
Fowler’s Modern English Usage (2^nd edn) title ‘they, them, their’
9 Halsbury’s Laws of England (4th end) paras 617-621
Williams Joint Obligations (1949) paras 51-56

Appeal
The plaintiff, Aseri Harry, obtained an injunction (26 March 1993) restraining the appellant, Kalena Timber Company Limited, from continuing logging operations being carried on under an agreement to acquire timber rights on customary land between the plaintiff and eight other customary landowners, and the appellant. The appellant appealed from the decision of the Chief Justice dismissing it application to have the plaintiff’s claim struck out. The facts are set out in the judgment of the court.

19 April 2000. The following judgment of the court was delivered.

MASON P, McPHERSON and LOS JJA. The northern end of Rendova Island is inhabited by various different tribes, clans or groups of people, who occupy separate areas of land which they hold under customary title. The plaintiff and his people own, or claim to own, what is known as the Sabere Vuvure land, which is an area stretching inland from the north-east coast of the island. It is said to lie between the Mauru and the Ovrzu rivers. There is a dispute about its area or extent, which, however, it is not necessary to resolve here.

Late in 1988 the plaintiff and a number of other persons entered into a written logging contract with the first defendant, Kalena Timber Company. The contract, which is in the form of an agreement to acquire timber rights on customary land, is dated 6 December 1988, and is in the standard terms adopted in such cases. It was executed by the first defendant under its corporate seal and signed on behalf of the various tribes by the nine individuals, who are described as ‘trustees, representatives, or landowners’, whose names and signatures appear on the written contract.

The contract confers on the defendant company the right to fell, harvest and extract timber for sale from the customary lands between Pike Creek and the Uvuzu River (which includes the Sabere Vuvure land) in return for payment to the landowners’ representatives of a royalty of 15% of the FOB shipment value of the logs. The contract contains, as such contracts always do, various provisions designed to ensure the protection of the environment; for maintaining the subsistence of the people who live there; for the construction of roads; the preservation of sacred and historic sites, and so on. Clause 30 provides that, in the event of a breach or failure to comply with those provisions, the landowner may give a month’s notice requiring the defendant company to comply with the agreement and, in default, to suspend the agreement until the breach in question is remedied or the obligation fulfilled.

Logging activities started soon after the contract was entered into in 1988. By about 1992, the defendant had begun felling and removing timber from the Sabere Vuvure land. The plaintiff claimed that the work was not being done in compliance with the contractual provisions and was causing damage to land, trees and streams which under the contract ought to have been protected from harm. He complained to the Forestry Division of the Ministry of Natural Resources, which sent an inspector to investigate. As a result of his report, the defendant company was required to suspend activities on the land; but, shortly afterwards it was, apparently with official approval, permitted to resume logging operations on the Sabere Vuvure land.

In the meantime, however, the plaintiff had consulted the Public Solicitor, who on 24 September 1992 wrote to the defendant company giving notice of exercise of the power conferred by cl 30 of the contract of suspending the logging operations. Despite this letter logging continued and, on 26 March 1993, an injunction was obtained by the plaintiff in the action in the High Court restraining operations until trial or further order. In August 1993 Palmer J made orders joining at their request the second and third defendants Mr Willie Lianga and Mr George Lilo, who were two of the other parties to the logging contract, and ordering that they represent all the trustees who were parties to the contract other than the plaintiff himself. These orders were, however, discharged at the hearing from which this appeal now comes.

In 1993 and 1994 pleadings were delivered in the action, after which the proceedings became dormant until 1999, when the first defendant, with the support of the other two defendants who had been added, applied to strike out the plaintiff’s statement of claim. The application was dismissed by the learned Chief Justice, and it is from his Lordship’s decision that the present appeal is now brought.

The substantial ground of appeal is that the logging agreement dated 6 December 1988 is a contract that was entered into jointly, with the consequence (so it is submitted) that, as one only of the nine other joint parties to the contract, the plaintiff is not entitled to exercise the power under cl 30 to suspend the logging operations without the assent or concurrence of those others, who are in fact opposed to that course. In so far as the plaintiff is a trustee, it is, it was also submitted, incumbent on trustees to act unanimously; and it was therefore not competent for the plaintiff to institute proceedings alone with a view to enforcing the written contract executed by all of them in 1988.

The starting point of the appellant’s submission is that at common law a contract to which there are two or more parties on one side is, until the contrary is demonstrated, presumed to be joint, and not joint and several. See 9 Halsbury’s Laws of England (4th edn) paras 617-621. It is perhaps more accurate for this purpose to speak, as Halsbury’s does, of joint promises by or to more than one person; for the presumption applies as much to a covenant or promise under seal as to a simple agreement or promise supported by consideration. Indeed, in the present case, the short answer to the appeal may be that, because the first defendant’s promise was executed under its corporate seal, it satisfies s 81(1) of the Law of Property Act 1925 (Eng), which provides:

‘A covenant, and a contract under seal, and a bond or obligation under seal, made with two or more jointly, to pay money or to make a conveyance, or to do any other act, to them or for their benefit, shall be deemed to include, and shall, by virtue of this Act, imply, an obligation to do the act to, or for the benefit of, the survivor or survivors of them, and to, or for the benefit of, any other person to whom the right to sue on the covenant, contract, bond or obligation devolves, and where made after the commencement of this Act shall be construed as being also made with each of them.’

There was some debate before us whether the Law of Property Act 1925, and in particular s 81(1) of it, forms part of the law of Solomon Islands. We entertain no doubt that it does. In terms of para 1 of Schedule 3 to the Constitution, the Law of Property Act is an Act of the Parliament of the United Kingdom of general application in force on 1 January 1961, and s 81(1) is part of it. Although it does not apply in Scotland, it none the less remains an Act of the United Kingdom of general application. We agree with the West African Court of Appeal that the expression ‘of general application’ refers primarily to the subject matter of the statute rather than its geographical ambit. See Young v Abina (1940) 6 WACA 180 at 184, rejecting the conclusion reached in Re Estate of James Sholu (1932) 11 NLR 37, and holding that the Land Transfer Act 1897 (Eng) applied in Nigeria.

In s 81(1), the critical words for present purposes are ‘a contract under seal ... made with two or more jointly ... to do any other act for their benefit ... shall be construed as being also made with each of them’. It has the effect of making such a promise several as well as joint: Josselson v Borst [1938] 1 KB 723 at 739, 9 Halsbury’s Laws (4th edn) para 620. The language of s 81(1) is perhaps not well adapted to cover cl 30 of the contract unless that clause were to be construed as embodying an undertaking by the first defendant company to refrain from logging operations once notice has been given under the clause. But in any event, and independently of whether or not s 81(1) can fairly be applied to cl 30, the common law predilection for giving joint, rather than joint and several, effect to a promise by two or more persons is not unqualified. The correct rule, said Parke B in the Exchequer of Pleas in Sorsbie v Park [1843] EngR 1079; (1843) 12 M & W 146 at 158, is that:

‘... a covenant will be construed to be joint or several according to the interest of the parties appearing upon the face of the deed, if the words are capable of that construction ... Suppose there were a covenant with A and B jointly, that a certain thing should be done by the covenantor; both of those persons must ... sue separately; for though the words be prima facie joint, they will be construed to be several, if the interest of either party appearing on the face of the deed shall require that construction.’

See also 9 Halsbury’s law (4th edn) para 620. The first question then is to see whether there is anything in the ‘interest’ of the landowners under this contract suggesting an intention that their rights should be several, or joint and several; or, in any even, not simply joint.

Clause 30 of the logging contract is in the following terms:

‘Where the company fails to comply with its obligation or is in breach of the provisions of this agreement the landowner shall serve one (1) months’ notice requiring the company to comply with the agreement and in default the company’s operation under this agreement will suspend until the breach is remedied or obligations fulfilled, and such formal notice through the public solicitor acting as their agent to comply with such obligations.’

From this it can be seen that, far from conferring a power exercisable only by all of the landowners acting jointly to give notice of suspension under its provisions, the language of cl 30 is to precisely the opposite effect. It speaks not of ‘the landowners’ serving notice, but of ‘the landowner’ doing so. It is true, as Mr Sullivan pointed out, that the concluding reference in the clause is to ‘notice through ... their agent’ in circumstances where the singular possessive pronoun ‘his’ might perhaps have been expected instead. But, although Fowler at one time described it as a practice ‘not favoured by grammarians’ (Fowler’s Modern English Usage (2nd edn) title ‘they, them, their’), an ‘anaphoric’ reference to a singular pronoun or noun is neither so unusual nor so ungrammatical as to excite suspicions of textual inaccuracy. Such constructions, says Fowler’s current editor (see 3rd edn), are ‘hardly noticed anymore’. We were invited by Mr Sullivan to read the word ‘landowner’ in cl 30 as a typing or possibly a drafting mistake for ‘landowners’; but there is nothing in the clause or anywhere else in the material to suggest that an error of that kind has taken place. The most that can be said is that the presence of ‘their’ at the end of cl 30 intrudes a possible ambiguity that may need to be resolved by reference to other aspects of the written contract.

The question is whether there is anything else in the logging contract to confirm, or contradict, the language of the opening words of cl 30 in conferring on a single landowner the power to give a notice under that provision. As regards their interests, there are indications in the contract that the landowners and those whom they represented in signing the contract were always intended to keep their respective lands, their rights and their trees and timber or its proceeds, separate from those of other landowners under the same contract. There is, for example, nothing to suggest that some form of condominium was intended to result from the contract, or that a pooling of timber resources, rights, logs or royalties was ever contemplated. To bring about a result like that, something resembling a series of mutual transfers of rights or interests would have been needed. Instead, the contract is at pains, for example, to require the defendant company to plan its operations so as to log out each identified clan area in turn, and ‘to avoid logging adjacent areas at the same time’ (cl 20). The plain purpose of this provision is to prevent logs taken from an area of land owned by one clan or group of people from being mixed or confused with those of another. Merchantable logs, it is provided in cl 6: ‘must be measured marked and their site recorded for payment at the nearest bush yard to where they are felled. Detailed records must be maintained for reference by inspectors and the representatives when required.’

In short, the whole tenor of the contract presupposes, as Mr Sullivan for the appellants himself confirmed, that each tribe or group was intended to retain the pecuniary benefit of the logs produced by felling and extracting timber from their own particular area of land. It would no doubt be possible for a logging company to enter into a distinct and separate contract for logging each area of land owned or occupied by a particular tribe or group of people. Doing so in a patchwork and spasmodic fashion would, however, almost certainly be less economical than felling and extracting trees progressively and in a systematic way over a much larger area. Moreover, when the time came to make royalty payments, the logging company would be faced with the administrative burden of making frequent small payments to numerous different groups of people or individuals. Instead, under the procedure described in some of the material in the appeal record, what was done here was to establish an association with a board of trustees to receive and distribute the payments to the various people or individuals entitled to receive them. By that means, the trustees were able to give, and the defendant company to get, a good receipt for royalty payments made under the contract.

It was no doubt essentially for that limited purpose that the landowners and representatives who signed the contract on behalf of their respective peoples were designated in it as ‘trustees’. That was evidently the function Ward CJ had in mind in Allardyce v A-G [1988-89] SILR 78 at 97, when his Lordship said:

‘Any persons so named who sign the agreement will be the people who receive the payments as representatives of their clan or line. As such they are clearly in a fiduciary relationship and a constructive trust is set up. Whilst their position derives from customary rights, the representative rights which they have to sign such an agreement and to receive the payments are entirely statutory.’

See also Tovua v Meki [1988-89] SILR 74 at 76, where the learned Chief justice reverted to his earlier remarks on this subject. It does not, of course, follow from the mere use of the words ‘trust’ or ‘trustee’ in a contract, an instrument, or even a statute, that a trust is necessarily intended in the complete and technical sense in which those expressions are understood and enforced in equity. See the authorities discussed by Megarry V-C in Tito v Waddell (No 2) [1977] Ch 176 at 211-216 (the second Ocean Island case). In the context of customary land, Daley CJ at one time remarked that the word ‘trust’ is often used in Solomon Islands in a way that is different from its use in relation to the principles of equity elsewhere: Lilo v Ghoma (1981, Customary Land Appeal Case 14/1981, unreported).

Effect can for the most part sufficiently be given to the word ‘trustee’ in the logging contract in this instance by saying that a representative landowner who executes a contract in that form assumes the character of trustee on receiving from the defendant company a royalty payment for which he is bound to account to others, whether according to customary law or otherwise. There is no occasion to go to the length of saying that, by entering into the contract, such a representative undertook to exercise his power under cl 30 of giving a suspension notice as trustee with others, or only with the assent or concurrence of all the other landowners who also became parties to the contract. A conclusion to that effect would have far-reaching consequences. It would mean that none of the landowners would ever be in a position to give a notice under that clause in respect of his people’s land as long as any of the other landowners chose to withhold his consent to that course. To stultify the power to suspend logging operations, the defendant company would need to do no more than prevail on any one of the landowners not to assent to a notice being given under cl 30. As long as that state of affairs continued to prevail, the company could, with impunity, continue to log an area in contravention of the detailed provisions of the contract regulating the way in which the work is required to be carried out. A notice could not be given under cl 30 unless all of the landowner parties agreed to it.

It can not have been the intention of the parties to surrender to others such extensive powers over the land whose people they represented as signatories to the contract in 1988. The scheme of the Forest Resources and Timber Utilization Act (cap 40), whether in its current form or as it was before the most recent consolidation, affords no support for such a power on the part of other landowners who together enter into such a logging contract. In specifying the functions of the area council on an application to fell and remove timber from customary land, s 8(3) of the Act requires that discussion take place with the applicant and it specifies a number of matters that are to be determined. They include:

‘(b) whether the persons proposing to grant the timber rights in question are the persons, and represent all the persons, lawfully entitled to grant such rights, and if not who such persons are;’

In Gandley Simbe v East Choiseul Area Council (1999, Appeal No 8/1997, unreported), it was said that the task of identifying the customary owners who are willing and agree to grant timber rights is ordinarily an essential step in the process of determining whether a timber rights agreement may be entered into under the Act. The purpose is to ensure that those entitled to grant the timber rights, or their representatives, are consulted about the proposal to log the land. There is, however, in s 8(3)(b), nothing at all to suggest that all those entitled to grant timber rights will become joint parties to the ensuing contract, with a power of controlling the land or the timber rights of everyone else who is a party to the same contract. The appellant’s submission gains no assistance from the terms of s 8(3)(b), or from the presence in it of the expression ‘all the persons’ lawfully entitled to timber rights.

The question of interpretation remains, in the end, whether the power under cl 30 of giving notice to the first defendant company to suspend operations in an area subject to the logging contract is exercisable severally by the individual landowner who signed the contract as representative on behalf of the customary landowners entitled to grant timber rights in that area; or whether he may do so only jointly and so with the concurrence of the other landowners who entered into the contract. To the extent that there is an ambiguity in cl 30, it is legitimate to look at other contractual provisions in order to see whether the plaintiff and the other landowners retained their respective separate interests in the land and timber rights or the proceeds of their realisation. On doing so, the answer is plain. The power conferred by cl 30 is exercisable by each landowner who signed the contract, and may be exercised without the concurrence, and even against the dissent, of the other parties to the contract. The promise by the first defendant company in cl 30 is, by its terms and in its context, several and not joint in its effect.

That leaves it to be considered whether the plaintiff was entitled to bring this action without the intervention of the other landowners. On the view we have formed of the proper interpretation of cl 30, there is no place here for the rule that one of a number of trustees is bound to join as defendants all other trustees who are unwilling to join as co-plaintiffs. The plaintiff does not seek to litigate any question affecting money or property the subject of a trust for other landowners. The rule requiring joinder also applies in proceedings by one joint contractor to enforce a joint promise: see Glanville Williams Joint Obligations (1949) paras 51-56; but here the rights of the promisees under cl 30 are several and not joint. Because, however, the proceedings before us are to strike out a pleading and so are not final but interlocutory, there may be a need to accommodate the possibility of evidence being adduced at the trial that may conceivably throw further light on the question whether the promise in cl 30, or the power it confers, is joint rather than several.

It must be doubted whether any such evidence is available or admissible to construe the contract; but, on the off-chance that it is, it would be beneficial to ensure that at trial the action is properly constituted as regards necessary parties. In Cullen v Knowles [1898] UKLawRpKQB 139; [1898] 2 QB 380 Bigham J said that a joint promisee could, as co-plaintiff, sue to enforce a promise upon joining a reluctant promisee as co-defendant. The decision was applied by the High Court of Australia in Lion White Lead Limited v Rogers (1918) 25 CLR 522 at 551-552, where Isaacs and Rich JJ said that, having joined as defendant the other contracting party as well as his own joint promisee, the plaintiff had a right to a declaration that he was no longer bound to proceed with the contract. Barton J, who agreed with the other two learned justices, said ((1918) 25 CLR 522 at 545) that 'all the parties interested were before the court, and, once there, the court was fully entitled to adjudicate'. The old pleas in abatement and demurrers for want of parties were abolished by the Judicature Act. Under Ord 16, r procedural questions of misjoinder or non joinder now fall to be determined by striking out or adding the names of those who should either be removed from or joined as parties in the proceedings. See Pilley v Robinson [1887] UKLawRpKQB 203; (1887) 20 QBD 155. In a matter like this, it is technically not a question of identifying a cause of action, but of making sure that all persons interested are present as parties to receive such relief as is capable of being granted by the court at the trial and judgment. We were informed. from the bar table that the second and third defendants were struck out of the proceedings without any application being made by either party to that effect. Although from what we know of the matter, there now seems to be only the slightest possibility that their presence as parties to the proceedings will be necessary, we consider it is, in order to avoid needless argument and expense at the trial, preferable that they continue to remain as parties to the action until it is finally determined.

The Chief Justice was correct in refusing to strike out the statement of claim. The appeal is therefore dismissed with costs. The cross-appeal is allowed by restoring the order numbered 1 made by Palmer J on 19 August 1993, which was that Willie Lianga and George Lilo be joined in the action as representatives of the trustees other than the plaintiff.

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