Cape Esperance Company Ltd v Success Company Ltd [1995] SBHC 94; HC-CC 324 of 1992 (30 March 1995)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 324 of 1992

CAPE ESPERANCE COMPANY LIMITED
ROBERT VICTOR EMERY And JOHN SULLIVAN
ESTHEPIA INTERNATIONAL LIMITED

v.

SUCCESS COMPANY LIMITED
ROSELYN DETTKE

(Palmer J.)

Hearing: 30/3/95
Ruling: 30/3/95

J. Sullivan for First and Second Plaintiffs
T. Kama for Third Plaintiff
Messrs. Campbell and Tegavota for Defendants

PALMER J: The issue before this Court is to determine the question of capacity of the ten or so persons seeking to be joined as defendants under the Summons filed by the Defendants on the 10th of November, 1994.

Mr. Sullivan of Counsel for 1st and 2nd Plaintiffs, submits that because no relief is sought against those 10 persons in the Writ of Summons filed on the 27/9/93, that it would not be proper to join them as Defendants. Rather they should come in as Plaintiffs in a cross-claim or counter-claim against the Plaintiffs.

The relevant rules governing the question of joinder of parties is set out in Order 17 Rule 4 and Rule 5:

"4. All persons may be joined as defendants against whom the right to any relief is alleged to exist, whether jointly, severally, or in the alternative.

5. It shall not be necessary that every defendant shall be interested as to all the relief prayed for ......, but the Court may make such order as may appear just to prevent any defendant from being embarrassed or put to expense by being required to attend any proceedings in which he may have no interest."
   

In the Writ of Summons filed on the 27th of September, 1993, the Plaintiffs claim inter alia:

1. An injunction restraining the Defendants by themselves their agents, servants or contractors from
   

(a) conducting any timber operations and from felling or removing timber whether directly or indirectly from the area of Guadalcanal covered by the First Plaintiff’s Timber Licence No. TIM 2/5/81, namely Ward 1 Guadalcanal.

(b) interfering in any manner whatsoever whether directly or indirectly with the contractual relations between the Second and Third Plaintiffs pursuant to an agreement between the said Plaintiffs dated 29 April 1993 sanctioned by this Honourable Court on 17 May 1993 including but not limited to taking any steps which may directly or indirectly result in non-completion of the said agreement.

(c) interfering in any manner whatsoever whether directly or indirectly with the contractual relations between the First Plaintiff and the landowners of Ward 1 Guadalcanal pursuant to a Timber Rights Agreement dated 5 December, 1990.

The capacity in which the 10 persons seeking to be joined has been made as I understand it, as is as land owners of various customary lands within Ward 1 in their own right. Their contention, as is clear from the various affidavits filed to date is that, the Timber Rights Agreement, dated the 5th of December, 1990 relied on by the Plaintiff, is not binding on them despite the fact that the landowners who had signed that document, purported to do so in respect of all customary land areas in Ward 1. They argue that those landowners had no right whatsoever in law or custom (it seems) to have that agreement so executed in that manner. Those signatories therefore cannot even hold themselves out as trustees on their behalf.

This is the distinction to be made with Mr. Sullivan’s submissions, in respect of the statements expressed by the learned President of the Court of Appeal and Savage J.A. in relation to the case North New Georgia Timber Corporation and Golden Springs International (S.I.) Ltd v. Nelson Pulekevu and Others, Civil Case 387/93, in which their Lordships indicated clearly that the landowners of Gerasi land may have difficulty in establishing their standing to take up further claims for interlocutory relief directly against the Company. In that case, it is not in dispute that the North New Georgia Timber Corporation holds title to the timber rights on the statutory trusts as created under the North New Georgia Timber Corporation Amendment Act, 1984.

It is however, not the same case here. The 10 persons are not claiming as beneficiaries under the 5th December, 1990 Agreement, but as separate customary landowners over their own distinctive customary land areas within Ward 1, and therefore lawfully entitled to enter into negotiations with any other logging company on foreign investors to carry out logging operations over their customary land. Their claims therefore it seems may merge with the current two defendants, or may be completely separate.

The claim of the Plaintiffs therefore for relief against the current Defendant may only be partially complete, as there are at least 10 other landholding groups which have now come forward and are saying that the claims for relief by the Plaintiffs must necessarily be made against them as separate landowners to Roselyn Dettke, the 2nd Defendant.

I am satisfied that the right to relief of the Plaintiffs should necessarily be extended to include the other 10 persons so far identified, in their capacity as separate defendants, and accordingly, they should be so joined.

Costs be in the case.

A.R. PALMER
PUISNE JUDGE