Billy v Isabel Timber Company Ltd [2001] SBHC 148; HC-CC 046 of 2001 (15 October 2001)

HIGH COURT OF SOLOMON ISLANDS

CIVIL CASE NO. 46 OF 2001

STEPHEN BILLY

–V-

ISABEL TIMBER COMPANY LIMITED

HIGH COURT OF SOLOMON ISLANDS
(PALMER ACJ)

HEARING: 12TH OCTOBER 2001
JUDGMENT: 15TH OCTOBER 2001

A & H LAWYERS FOR THE APPLICANT/DEFENDANT
A. RADCLYFFE FOR THE RESPONDENT/PLAINTIFF

PALMER J.: The Applicant/Defendant (“Defendant”) seeks an order inter alia, that the following persons be joined as Second Defendants:

Clement Felo, Abenigo Kahe, Charles Dafe, Patteson Goti, Mazden Mairi, Gorrence Rozo, Andrew Gedi and Henry Rubaha (representing the Bagaho customary landowners).

The Defendant’s application is supported by the affidavit of Teo Siak Kui filed 18th September 2001. Mr. Apaniai for the Defendant bases his submissions on joinder on the ground that in order for the court to determine the questions of trespass and conversion properly the proposed second defendants should be joined as they are the landowners from whom the defendant had obtained its rights to enter into the disputed area. The Defendant relies on Exhibits “FG1” annexed to the affidavit of Clement Felo and Billy Gedi filed on 2nd May 2001, “TSK1”, “TSK2”, and “TSK3” annexed to the affidavit of Teo Siak Kui filed 18th September 2001, as giving it the permission to enter into the disputed area. At paragraph 5 and 6 of his affidavit, Teo Siak Kui explained that prior to commencing operations in October 2000, representatives of Bagaho landowners showed Defendant’s surveyors the boundaries of Bagaho land with that of Korighole land. He explained that the boundary shown was that as shown in Exhibit SB5 annexed to the affidavit of Stephen Billy filed 3rd April 2001. The area now disputed by the Plaintiff had been shown to the Company as coming within the boundaries of Bagaho land.

There has been a submission by Mr. Radclyffe that perhaps the appropriate way to deal with the Defendant’s application was to be by joinder as a third party rather than as a second defendant. I have considered this submission but unfortunately do not agree. The proper course would be to have the proposed second defendant joined as second defendant. The claim of the plaintiff against the defendant includes a claim for trespass and conversion. That necessarily implies that the plaintiff is the true landowner in custom over the disputed area. Unfortunately that is not necessarily so. It is clear there are opposing claims of ownership over the said disputed area (see Exhibit “RM4” annexed to the affidavit of Reeves Moveni filed 2nd May 2001) and that until that issue is finally determined as between the proposed second defendants and the plaintiff, the plaintiff cannot prosecute his claim independently of the proposed second defendants. The defendant is not merely claiming a contribution or indemnity from the proposed second defendants, they are saying that they have a valid defence to any actions of trespass against them based on the claims of ownership of the defendants. To join them merely as third parties would not be sufficient as the issues raised with the defendant have direct bearing on the rights of ownership of the proposed second defendants and they must be given opportunity to defend themselves. Those rights are independent of each other and have direct bearing on the rights of the defendant to enter and remove trees from the disputed area.

Order 17 rule 11 of the High Court (Civil Procedure) Rules, 1964 (“the Rules”) gives the court discretion to join such persons or whose presence may be necessary in order for it to be able to effectually and completely adjudicate upon and settle all the questions involved in the cause or matter. I am of the view that it is necessary to join the proposed second defendants in order for the court to properly deal with the issues raised in the claim of the plaintiff, otherwise it will only be hearing one side of the story. Accordingly I grant the order sought for the joinder of the persons named in the summons of the defendant filed 18th September 2001 as second defendants.

ORDERS OF THE COURT:

1. Order that Clement Felo, Abenigo Kahe, Charles Dafe, Patteson Goti, Mazden Mairi, Gorrence Rozo, Andrew Gedi and Henry Rubaha be joined as second defendants.
   
2. That the Writ and Statement of Claim be amended and served on the second defendants within 14 days.
   
3. Costs in the cause.
   

THE COURT.