IN THE SOLOMON ISLANDS COURT OF APPEAL

NATURE OF JURISDICTION:	Appeal and cross-appeal from judgment of The High Court of Solomon Islands (Muria CJ)	
COURT FILE No.	Civil Appeal Case No. 19 of 1998
(An appeal from Civil Case No.149 of 1997)	
DATE OF HEARING:	3rd June, 1999	
DATE OF DELIVERY OF JUDGMENT:	24/11/99	
COURT:	Mason, P., Casey JA., Awich JA.	
		
PARTIES:	1. GOLDEN SPRINGS LIMITED AND 

2. NORTH NEW GEORGIA TIMBER CORPORATION	
		
	-V-	
		
	WARREN PAIA	
ADVOCATES		
For Appellants:	John Sullivan 	
For Respondent:	J. Corrin Care 	
KEYWORDS:	Summary judgment - Establishing Claim for Trespass and Conversion of Trees on Customary Land - Possession as Basis for Claim in Trespass. 

Good Defence on the merits or Other Reasons - Jus Tertii Triable Issues - Arguable Defence.	
EX TEMPORE/RESERVED:	Reserved	
ALLOWED/DISMISSED:	Allowed	
PAGES:	(1 - 20)	

JUDGMENT

THE COURT: The Appeal and Cross-Appeal. This is judgment in the appeal and cross-appeal against the judgment of his Lordship the Chief Justice, Sir John Muria, delivered on 13.10.1998. In the judgment, the learned Chief Justice granted application by Warren Paia, the respondent/plaintiff, for summary judgment. Mr. Paia was a representative plaintiff suing on behalf of himself and his tribe said to own, in custom, land known as Kazukuru Right Hand Land (KRHL) on New Georgia Island in the Western Province of Solomon Islands. Heard with the application for summary judgment was an application by the two appellants/defendants; Golden Springs International (SI) Company Limited, the first appellant/defendant and North New Georgia Timber Corporation, (NNGTC), the second appellant/defendant, to join other defendants. The application to join other defendants was refused. The summary judgment granted to the respondent the final relief that he asked for in the statement of claim. Notwithstanding, the respondent has cross-appealed on the ground that the Chief Justice did not rule on his application asking the court to condemn the appellants in contempt of court for an alleged disobedience of earlier interlocutory injunction orders made in the case on 23.7.1997. 

The Background 

The substantive case was this. The respondent, by writ of summons filed on 17.6.1997, sued the appellants, averring trespass to KRHL and conversion of trees harvested therefrom. He asked for the relief of: injunction restraining the respondents from entering the land, accounts of trees harvested, damages including the proceeds of the sale of timber logs harvested, royalty payments made to the second appellant and costs. Filed with the writ of summons on 17.6.1997, was the plaintiff’s notice of motion application for interlocutory injunction orders which he obtained on 23.7.1997. The Chief Justice made, among other interlocutory orders, the orders that the appellants be restrained from further operations, that they account for trees cut, that they pay the proceeds of sale of logs up to that point into a joint trust account, and that a survey of the land area be carried out. The first appellant is a company which carries on the business of logging, milling timber and exporting round logs; it carried out the operations to harvest trees on the land which the respondent says is part of KRHL, which the appellants deny. The operations were by authority of and arrangement with the second appellant. The licence was for logging on NNGTC land areas known as Dekurana, Koroga, Lupa, Rodani and Gerasi. 

The appellants did not file defence to the claim within the time limited, but on 17.7.1997 filed affidavits of Cesar T Paulo and John Wesley Talasasa to oppose the application of the respondent for interlocutory injunction, and on 23.1.1998 filed notice of motion application for joinder of Jesse Kana Titi, Hezoroni and Jacob Gasi as third defendants. The respondent reacted by filing notice of motion application for summary judgment on 7.4.1998. The appellants then lodged their defence at the registry of the Court on 27.4.1998; it was placed on the case file, and the Chief Justice considered it in the summary judgment application. At the hearing of the application for summary judgment and application for joinder of parties, on 30.4.1998, the respondent made verbal application asking that the appellants be condemned for contempt of court and be “penalised”. The ground was that the appellants had not complied with the earlier interlocutory injunction orders, made on 23.7.97. 

Determination by the Chief Justice of the Application for Summary Judgment 

The Chief Justice dealt with the respondents’ application on the footing that it was a summary judgment application, so we assume that memorandum of appearance had been filed. He granted the application; he stated: “judgment to the entered for the plaintiff”, the respondent in this appeal. He granted a permanent injunction restraining the appellants from entering the land which he decided belonged to the respondent according to custom. The Chief Justice then, ordered damages for trespass and conversion to be assessed, ordered that the respondents account for money received for logs exported, ordered that the second appellant pay money it had received as royalty to the respondent, and ordered that the appellants pay costs. 

The learned Chief Justice based his decision to grant the summary judgment on his determination that the land on which the appellants carried out logging was between Enoghae and Mbaeroko rivers, that the land was outside the statutory land area of NNGTC from which NNGTC could harvest timber and could authorise Golden Springs to do so, and that the land was part of KRHL, the land that the respondent owned in custom. He concluded that NNGTC wrongfully authorised Golden Springs to enter the land and harvest timber from it and that both appellants therefore had no defence. The determination as to customary ownership of the land between Enoghae and Mbaeroko was drawn from a map, plan No.2189, filed as schedule to the North New Georgia Timber Corporation Act, No.9 of 1979 (now Chapter 43 in the 1996 Revised Edition of the Laws), and from previous court cases especially the three cases that the Chief Justice referred to in his interlocutory judgment of 23 July 1997. The cases are: W. Paia and D. Bisili -v- I. Talasasa, CLAC No.6 of 1979, Paia -v- Talasasa [1980- 81] SILR 93 and Beti, Bisili and Paia -v- Allardyce Lumber Company Limited and Others, Civil App. No.5 of 1992. 

It seems that the Chief Justice did not address in details, the verbal application of the respondent for order of contempt; he however, repeated the order that the sum of $72,255.40 be paid into trust account “if not yet paid”. He might have assumed that the respondent, having obtained summary judgment and orders for all the final relief he asked for, would not insist on the application for contempt order. 

The Law as to Summary Judgment 

Application for leave to enter judgment in a case such as this one, on the ground that the defendant has no defence, is made under Order 14 of the High Court (Civil Procedure) Rules, 1964. Application in cases in which the claim is for specific performance is made under Order 15. Order 14 with which we are concerned is the equivalent of Order 14 in the Rules of the Supreme Court of England, 1883, as amended before the Rules of Supreme Court (Revision), 1962. It is now well settled that under a procedure of the kind prescribed by Order 14 the defendant has only to show an arguable defence in order to secure a grant of leave to defend. In Leslie Allison -v- Monique Medlin Civ. App. Case No. 7 of 1996, at p.12, McPherson JA quoted the observations of Barwick CJ in General Steel Industries Inc - v- Commissioner of Railways (NSW) (1964) 112 CLR 125 at 128-129 in these terms: 

“The jurisdiction summarily to terminate an action, ‘is to be sparingly employed and is not to be used Except in a clear case where the Court is satisfied that it has the requisite material and necessary assistance from the parties to reach a definite and certain conclusion’.” 

The Law as Applies to this Case 

In their submissions both counsel in fact put in issue for our determination the whole question of when court may grant summary judgment. The issues they raised were; whether in the affidavits and materials presented to the Court below, and whether in the judgment of the Chief Justice, the respondent established a case for summary judgment, and if so, whether the appellants, by their affidavits and materials, demonstrated that they had defence on the merits or that they had other grounds, to entitle them to leave to defend. In the first place, the respondent had to establish his claim clearly. To answer that, the appellants had to raise sufficiently arguable questions as to facts or law so that their defence would be regarded as real and not a sham, if they were to succeed against the application. 

We were unable to accept the first and seemingly attractive submission of learned counsel Mr. J Sullivan, for the appellants, that since the amendment of ss.5 and 8 of the North New Georgia Timber Corporation Act, in 1980, a plan comprising the map showing the southern boundary of the land area of NNGTC was to be filed, but the plan has not been filed, with the result that the respondent’s claim would be defeated. Mr. Sullivan challenged the authenticity of plan No: 2189 which was on the Commissioner’s file. It was our view that plan No.2189, a map bearing the certificate of the Commissioner of Lands dated 15.12.1997, was in fact the only map on record. That together with section 131 (2) of the Lands and Titles Act, deeming a copy or extract of a document certified by the Registrar to be prima facie evidence, persuaded us to reject Mr. Sullivan’s submission. On the evidence we are satisfied that the plan should be accepted as according with the requirements of the First Schedule (as amended) of the NNGTC Act 1979. 

We accepted the other submission of Mr. Sullivan that the learned Chief Justice erred in deciding that the three previous court cases referred to above, conclusively determined, for the purposes of this case, the question of customary right or ownership in the customary land areas in question. With greatest respect to the Chief Justice, he was correct in stating that the cases determined the boundaries and therefore rights as between the parties in the cases. He, however, overlooked the point that the cases did not determine the rights of the respondent to the extent that his rights as against those of the second appellant in this case have also been determined and settled for the purposes of this case. May be Mr. Wesley Talasasa’s rights were determined, but Mr. Talasasa, even though he was the chairman of NNGTC, was not the same persona as NNGTC; his rights were not the same as those of NNGTC. The second appellant was not a party in any of the cases, the respondent Mr. Paia, was. His rights were determined as against those of the other parties in those cases and not as against the rights of the second appellant, NNGTC. That erroneous determination was central to the decision of the learned Chief Justice in granting the summary judgment, without the error, his final decision granting the summary judgment would have been different. 

Mr. Sullivan’s submission that the respondent “lacked possession” of the land in question and that appellants entered upon the land by authority of third parties who had superior title, was intended to raise the issue that the respondent’s claim in trespass was lacking in material particulars because the right to sue in trespass depends on possession, the respondent’s claim was not adequately stated and therefore not clear enough for summary judgment to be granted. The submission was also intended to support the appeal point against the rejection by the Chief Justice, of the application to join the three non-parties as third defendants. Appellants asserted that the intended parties had superior right to possession and right to ownership in the trees harvested, and that appellants claimed under their superior titles. Mr. Sullivan illustrated his submission by pointing out that according to affidavit filed, the respondent did not in 1972 assert his claim to ownership in the land when the Commissioner of Lands appointed an Acquisition Officer under s: 61 of the Lands and Title Act, to determine customary ownership in the land. 

Learned counsel Ms Corrin Care, for the respondent, replied with much emphasis, that since appellant’s case about possession was that they came into possession by authority of non-parties, appellant’s intended defence was to fail because it raised jus tertii, further that joinder of the non-parties was merely intended to raise jus tertii, it would be improper joinder. 

In our view, appellant’s case was more than raising mere Jus tertii, the mere superior title of the non-parties or third parties. Appellants raised the point that their authority came from third parties who had better title than the respondent, and so the appellants claimed the right to be on the land as against the respondent, by authority of people who had superior title to that of the respondent. That is not raising mere jus tertii, the appellants were actually claiming for themselves superior title under the asserted superior title of the third parties. The cases of Glenwood Lumber Company Limited v Philip [1904] AC 405, and Nicholls -v- Ely Beet Sugar Factory [1931] 2 Ch 84, which were cited to us are authorities for what we have stated. In Nicholls, Farwell J said on page 86: 

“I must now deal with the plaintiff’s right to maintain this action. That is largely a question of law. I find as a fact that the plaintiff is and has at all material times been in possession of these two several fisheries, under what appears to be a good title from the apparent owners. He brings this action accordingly. Is it open to the defendants to put his title in issue, if by so doing they are only setting up a jus tertii? 

It is well settled that in an action of trespass a defendant may not set up a jus tertii. He may set up a title in himself, or show that he acted on the authority of the real owner, but he cannot set up a mere jus tertii. That is well settled, and was not seriously disputed.” 

On the facts of this case, the defence that the appellants were on the land by authority of people with superior title to that of the respondent was tenable defence which entitled the appellants to leave to defend the case. 

We note that in the statement of claim the respondent did not aver possession, but he averred title which confers right to possession, although it may be deferred possession or right to possession of vacant land yet to be occupied. A claim in trespass could be based on the averment. We are, however, of the view that when appellants denied the boundary given by the respondent and asserted that the respondent had never been in possession of the land, and further that the respondent had failed to claim customary ownership right in 1972 at the proceeding of the Acquisition Officer, even though that is not conclusive proof of customary ownership, appellants did raise several real issues of facts worth taking through the usual procedures up to trial. 

Ms Corrin Care also raised the point that even if appellants were on the land by authority of someone who could give authority, the appellants’ logging operations were without licence and therefore illegal, the agreement giving timber rights should not be allowed to be carried out on the land. That point of law was raised before in this Court in the case of Allardyce Lumber Company limited and Dovele Development Company limited v Nelson Anjo, Court of Appeal Civil Appeal No: 8 of 7996. The Court stated on page 15: 

“While the trial judge considered that the balance of convenience did not favour the grant of an interlocutory injunction he nevertheless found that: 

‘the court must act to stop what appears to be a violation of the criminal law’. 

This ground of appeal raises important consideration of the proper exercise of the jurisdiction of the Court to prevent an infringement of the criminal law. However, it will not be necessary to deal with these issues, because in our view, the trial judge fell into error when he concluded that the interlocutory injunction was to stop a further violation of the criminal law. The implication of the trial judge’s ruling was that the appellants would continue to fell trees on Saqualele Land contrary to s 4 of the’ Act. 

Counsel for the appellants accepted in his written submissions that while the appellants may have committed an offence in felling the four trees in the past, there was no evidence that they would continue to fell other trees in the future. The intention was to simply use the road continuously to have access to Paraso Land. The use of the road of itself is not an offence under the Act. There was no apprehension that the appellants would continue to commit a criminal offence. We would allow this ground of appeal. 

As the interlocutory injunction can be supported on the balance of convenience, the formal order of the Court is that the appeal is dismissed with costs”. 

Although the point was not directly decided, it appears that the Court was of the view that a punishable violation of a provision in the Forests Resources and Timber Utilisation Act was not in itself determinant of the rights of parties in the related civil case concerned with balancing the private rights of the parties to the land. So according to Allardyce v Anjo, absence of a valid licence is a punishable criminal offence under the Forests Resources and Timber Utilisation Act, but it may not necessarily have consequences in the determination of the right of one party as against that of the other, to be on disputed land and to carry out logging operations. 

The provisions in the Act that create criminal offences raise questions of the interpretation of the Act as a whole. The question to be asked is whether the Act is intended to totally prohibit the transaction altogether unless done under licence or whether it is intended merely to penalise for carrying out the transaction if licence has not been obtained. We notice that in Nicholls the illegality (of polluting river) operated to defeat the defence of acting under superior title. That was a question of the construction of the statute applicable in that case, the report does not set out the statue so that a clear view can be formed. We think that in the circumstances of this case, the question of the consequences of the penal section in the Act is a question better left for the trial proper. It has been raised before us on facts which are in dispute, one such disputed fact is the boundary of the land. 

Conclusion 

For all the reasons we have given we have decided that the appellants, by their affidavits and by the reasons they have given, have demonstrated that there were issues of facts and of law that entitled them to leave to defend the case of trespass and conversion against them. We allow their appeal against the granting of summary judgment. Leave to defend is granted. 

As the dismissal of the application to join non parties was determined on the erroneous basis that the appellants and the intended third defendants had no rights in the land because previous cases had conclusively determined ownership in relation to the parties in this case, we also allow the appeal against the dismissal of the application to join the three non-parties. On the merits there are sufficient facts to show that common questions of facts and of law are likely to arise, we allow joinder of Titi, Hezron and Gasi, so that all the issues in the case are effectually and completely adjudicated upon and all questions in the cause are determined - see 017 r 1 and 11. Titi, Hezron and Gasi now become the third defendants. 

We remit the case back to the High Court for pleadings to proceed in the normal course from where they were interrupted. 

It is our view that when application for contempt of court was made, the High Court had to deal with it. We note, however, that the application was made orally in Court and apparently without notice to the appellants. We suggest that the respondent may properly make his application for contempt orders, now that the case is remitted to the High Court. The application is usually by notice of motion. 

The orders of the Court are: 

1. Appeal is allowed 

2. Leave is granted to the appellants/defendants to defend the case, No. HC CC 149 of 1997. 

3. Application to join Jesse Kana Titi, Hezoroni and Jacob Gasi is granted. 

4. Cross-appeal is allowed, the respondent may renew his application for contempt at the High Court. 

5. The case is remitted back to the High Court, pleadings are to resume from where they were interrupted. 

6. The respondent is to pay the costs of the appeal. 

7. No order as to the costs of the cross-appeal. 

A F Mason
President of the Court

M E Casey 
Judge of Appeal

Lungole-Awich
Judge of Appeal

Delivered in Court 
At Honiara 
On Wednesday the 24th of November 1999

Signature: Lungole-Awich
Judge who delivered Judgment