HIGH COURT OF SOLOMON ISLANDS

SHELL COMPANY (PACIFIC ISLANDS LIMITED)

-V-

KOREAN ENTERPRISES LIMITED
& THE PREMIER OF GUADALCANAL PROVINCE

HIGH COURT OF SOLOMON ISLANDS
(PALMER J.)

HEARING: 14TH MARCH 2001
JUDGMENT: 15TH MAY 2001

Sol-Law for the Plaintiff
A. Radclyffe for the First Defendant
Premier of Guadalcanal Province not represented.

Palmer J.: Since 1962, the Plaintiff, Shell Company (Pacific Islands Limited) (hereinafter referred to as “Shell”) had enjoyed peaceable, overt and uninterrupted use of the subterranean pipeline which traverses underground lands owned by the First Defendant (hereinafter referred to as “KEL”) and Second Defendant (hereinafter referred to as “the Province). KEL is the holder of lease estates in parcel numbers 191-023-131, 191-023-132, 191-023-133, and 191-023-134, (hereinafter referred to as “the KEL Land”). The Province is the owner of the perpetual estates in parcel numbers 191-023-90, 191-023-93, 191-023-102, 191-023-104, 191-023-105, and 191-023-106 (hereinafter referred to as “the Province Land”). Shell is the holder of the fixed-term estates in parcel numbers 191-022-67, 191-022-70 and 192-004-10 (hereinafter referred to as “the Shell Land”).

Shell is a supplier of fuel. The fuel pipeline is a vital lifeline to its business. It is made of steel, approximately 200 mm in diameter and is used for inward delivery of bulk fuel from ocean tankers which discharge fuel to the bulk storage facilities located on the Shell Land. The pipeline is constructed largely above ground on the Shell Land, but then travels underground under a dedicated road, then traverses some 10-20 metres from the waterfront, through the Province Land. The pipeline further traverses underground part of the KEL Land where it then forms a right angle junction out to sea. At the junction is a non-return valve (to prevent fuel flowing back into the sea) and an inspection hatch, which allows access to the non-return valve. 

The fuel pipeline was constructed in 1962. At that time the Province Land and the KEL Land were vested in the Crown. The Province acquired its perpetual estates, including the KEL Land from the Commissioner of Lands (hereinafter referred to as “the Commissioner”) on 8th July 1983. KEL acquired its lease estates from the Province on 14th July 1999. Up till July 1999 Shell enjoyed uninterrupted use of the pipeline. Shell has since been required to remove the pipeline. Shell therefore has come to Court for declarations on the rights of the parties regarding the pipeline.

THE ISSUES

Shell claims that the Province’s perpetual estates and KEL’s leasehold estates are subject to overriding interests pursuant to section 114 of the Land and Titles Act (Cap. 133) (hereinafter referred to as “the LTA”) including rights of way, an interest acquired by adverse possession under section 224(1) and a prescriptive easement under section 226(1). KEL denies the existence of such easement or overriding interest but in any event claims to be protected by the provisos to sections 224 and 226(1). A crucial issue would be the application of the provisos in sections 224 and 226.

OVERRIDING INTERESTS

Overriding interests are dealt with in Section 114 of the LTA.

“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;”

One of the overriding interests described above and relied on by Shell is an easement. Easements are defined in section 2(1) of the LTA as:

“means 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 a profit”

Section 226(1) in turn provides that an easement may be acquired by prescription. I quote:

“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; . . . . ”

Shell claims that absent Proviso (i), the facts set out in paragraphs 16 - 17 of the Statement of Agreed Facts establish a prescriptive easement under section 226(1) there being peaceable, overt and uninterrupted use of and access to the pipeline for a period of more than twelve years. The easement comprises the pipeline facility underground, the inspection hatch and such of the surface area above the pipeline to enable access, inspection and maintenance.

The language used in subsection 226(1) absent Proviso (i) is plain, simple and unambiguous. All Shell needed to prove is that it had peaceable, overt and uninterrupted enjoyment of the pipeline over the Province Land and the KEL Land for a period of twelve years. The facts agreed to establish (not disputed by KEL) that Shell had enjoyed peaceable, overt and uninterrupted use of the pipeline for at least 37 years. That is more than sufficient to show that Shell would have been entitled to, absent Proviso (i), an order that a record be entered in the perpetual estates of the Province and leasehold estates of KEL, of its easement. Unfortunately, this can only be done if Proviso (i) is overcome.

APPLICATION OF PROVISO (i)

This brings me to address the submissions of the parties on the effect of Proviso (i). KEL claims the benefit of Proviso (i). KEL’s claim is actually quite simple. They say, the Province is a local authority as defined under section 16(1) of the Interpretation and General Provisions Act (Cap. 85) (“the Interpretation Act”) and accordingly, Shell cannot acquire a prescriptive easement over its land. The same argument also applies in the case of adverse possession by prescription under section 224(1) of the LTA.

THE SUBMISSION OF SHELL ON PROVISO (i)

Shell attacks the defence raised by KEL on a number of fronts. It submits that to find the meaning of “local authority” used in Proviso (i), the Court should not look at the definition provided in section 16(1) of the Interpretation Act. Rather it should look at the meaning given to “local authority” used in section 3 of the repealed Interpretation and General Clauses Act (Cap. 1) (“the Repealed Act”). The meaning of “local authority” in section 16(1) of the Interpretation Act only applies to laws made by Parliament pursuant to section 59 of the Constitution (see definition of “Act” in section 16(1) of the Interpretation Act). The LTA is not an Act enacted by Parliament, according to that definition, in particular sections 224 and 226, and accordingly the definition of local authority in section 16(1) of the Interpretation Act does not apply. The LTA, like the Interpretation Act, is called an Act by virtue of the Citation of Ordinances Act 1978. It is a statute enacted by the colonial power in 1968, coming into force in 1969 as Cap. 93 and has effect as a law of Solomon Islands by virtue of covering clause 5 of the Solomon Islands Independence Order 1978. The appropriate definition therefore to be applied is that contained in the Repealed Act. When that definition is applied, local authority is defined as a “town council or local government council”. Local government council in turn is defined as “. . . means a local government council established under the Local Government Act.”. Clause 13 of the Solomon Islands Independence Order 1978 re-designated each Local Councils as “Provincial Assembly” and remained governed by the Local Government Act until Parliament passed the Provincial Government Act in 1981 under section 114 of the Constitution. The Provincial Assembly referred to in the Interpretation Act therefore can only mean the type covered by covering Clause 13.

THE MEANING OF LOCAL AUTHORITY

The crucial issue in the application of Proviso (i) is the meaning of “local authority”. Proviso (i) is very clear. No easement or profit may be acquired over an interest vested in a local authority. The question for determination is whether the Guadalcanal Provincial Assembly (“the GPA”), a local authority. 

When the LTA was enacted in 1969 (1st January 1969), a “local authority” was defined as “a town council or a local government council” (section 3 of the Repealed Act). The Repealed Act was already in force as law, on 28th July 1967. “Local government council” in turn was defined as “a local government council established under the Local Government Act”. A local authority in 1969 therefore was a local government council established under the Local Government Act (“the LGA”).

It is not in dispute that up until 1983 (8th July 1983), the Province Land and the KEL Land were vested in the Commissioner. Proviso (i) therefore prevented during that period of time, the acquisition of any prescriptive easement over those lands (this is not disputed). In 1978 (7th July 1978), by Clause 13 of the Solomon Islands Independence Order 1978, (“the Independence Order”) each Local Councils were re-designated “Provincial Assembly”, but continued to be regulated by the Local Government Act until Parliament passed laws relating to Provincial Government under section 114 of the Constitution. On 29 January 1982, the Provincial Government Act (Cap. 118) (“the PGA”) was brought into force. “Provincial Assembly” was now to be a creature of the PGA (section 7) and no longer the Local Councils set up under the Local Government Act (Cap. 14) (“the LGA”). The process of transition for the Province occurred on 1st August 1984; referred to as the “Second Appointed Day”. This was done under the Guadalcanal Province Devolution Order (No. 1 of 1984) (Legal Notice No. 47 of 1984). On said date, the existing Provincial Assembly, as it then was, under the LGA, became the new Provincial Assembly under the PGA. 

When title was transferred from the Commissioner to the Province on 8th July 1983, the GPA in existence was still governed by the LGA. It had not changed over into the new Provincial Assembly set up under the PGA. That occurred on 1st August 1984. This meant when the titles were transferred to the Province, the titles were in effect transferred to the body called the GPA, but in reality was the former Guadalcanal Local Council (“the GLC”) governed by the LGA. By virtue of covering clause 13 of the Independence Order the GLC had simply been re-designated the GPA. So the titles held by the GPA on 8th July 1983, were the titles held in its capacity as the GLC under the LGA. Any suggestions therefore, that the GPA in existence on 8th July 1983, was a completely different entity to the GLC established under the LGA is without substance. This fact is crucial to the submission of Shell that the provincial assembly constituted under the PGA enacted in 1981 is of a completely different character to that of the local councils under the LGA. This submission is not true for the GPA in existence on 8th July 1983. The GPA in existence on 8th July 1983 therefore clearly fulfilled the definitions of a local authority under either the Interpretation Act or the Repealed Act.

That entity remained the same until the morning of 1st August 1984, when it then, by due process of law, became the GPA, set up under the PGA. Did it cease thereby to become a local authority after 1st August 1984? According to the submissions of the Plaintiff, this question must be answered in the affirmative. The GPA would not qualify to be a local authority under both the Repealed Act and Interpretation Act on said date. Overnight the GPA appears to have lost the garb of local authority. This I think is the absurdity, which the Plaintiff’s submissions, would appear to conclude at.

THE MEANING OF “ACT” OR “ACT OF PARLIAMENT”

Shell’s arguments result in taking the definition of “local authority” in section 16(1) as not applicable on the grounds that the LTA is not an “Act”, made by Parliament pursuant to section 59 of the Constitution. That process is reached by construing the definition of “Act” in the preface “In an Act” in section 16(1) to mean an Act made by Parliament pursuant to section 59 of the Constitution, consistent with the meanings of the words “Act” or “Act of Parliament” as defined. The LTA being a pre-Independence Act, the meaning of local authority in section 16(1) would not apply. 

Unfortunately, the construction of the meaning of “Act” in my respectful view is flawed. What the Plaintiff is actually doing thereby is to make the preface “In an Act”, say something it has not said, or unnecessarily restricting its application. The preface “In an Act” is not defined. What are defined are the words “Act” or “Act of Parliament”. Accordingly it is wrong to confine the phrase “In an Act” as meaning an Act made pursuant to section 59 of the Constitution. That would be equivalent to saying that the meaning of the word “Act” as used in that phrase is confined to an Act made pursuant to section 59. In my view, that is erroneous. The word “Act” in that phrase must be interpreted together with the words “In” and “an”. The correct interpretation must be that the preface “In an Act” refers to both pre-Independence Acts and Acts made pursuant to section 59 of the Constitution. It is in any of those Acts, that the definitions in section 16(1), including the word “local authority” is to be applied. So in the context of the LTA the meaning of “local authority” to be applied is “means a town council or a Provincial Assembly”.

The correct approach is to read section 16(1) with subsections 2(1)(b) and (3), which provides as follows:

“2. (1) This Act applies to the interpretation of and otherwise in relation to -

(a)	this Act;
(b)	any other Act made before the commencement of this Act, except in so far as a contrary intention appears in this Act or the other Act; and 
(c)	 - 

(3) The reference in subsection (1)(b) to “other Act” and in subsection (2) to “the Act” includes a reference to an Ordinance which may, by virtue of section 3 of the Citation of Ordinances Act 1978, be cited as an Act.”

In my respectful view, subsection 2(1)(b) and (3) make clear that the Interpretation Act is to be applied to the interpretation of all Acts. Where a certain word is not defined in an Act but defined in the Interpretation Act, it is to be applied except in so far as a contrary intention appears.

This approach is also consistent with the application of section 5(1) of the Independence Order which makes clear that Acts like the LTA, are deemed to have been made in pursuance of the Constitution. I quote:

“5. (1) The revocation of the existing Orders shall be without prejudice to the continued operation of any existing laws made, or having effect as if they had been made, under any of those Orders; and the existing laws shall have effect on and after the appointed day as if they had been made in pursuance of the Constitution and shall be construed with such modifications, adaptations, qualifications and exceptions as may be necessary to bring them into conformity with the Solomon Islands Act 1978 (c) and this Order.”

The case of Y. Sato & Company Limited -v- Honiara Appointed Council, Civil Appeal Case No. 16 of 1998 (unreported) Judgment delivered 21st January 1999, (“Y. Sato’s Case”) actually dealt with this particular question. One of the questions the Court of Appeal of Solomon Islands was asked to determine, was inter alia, whether the Local Government Act, was an Act of Parliament within the meaning of section 106 of the Constitution. The Appellant had sought to argue that the licence fees charged by the Honiara Appointed Council, under the LGA were not done under an Act of Parliament as defined in section 16(1) of the Interpretation Act. Section 106 of the Constitution forbade the imposition of tax except under an Act of Parliament.

The Court of Appeal considered the effect of section 5 of the Independence Order and stated as follows:

“In our view, the effect of s. 5 was to continue in operation the Local Government legislation existing immediately before the Constitution came into effect as if that legislation had been made in pursuance of the Constitution by the National Parliament. Accordingly, the pre-existing Local Government legislation was, when the Constitution came into force, deemed not only to continue but also to do so as an “Act of Parliament” within the meaning of s. 106 of the Constitution.” 

In my respectful view, the statement of the Court of Appeal applies on all fours to this case. If section 5, can have the effect of deeming the pre-existing Local Government legislation as an “Act of Parliament”, within the meaning of section 106 of the Constitution, then I fail to see why or how s. 5 cannot also perform the same task in relation to the LTA. The LTA, not only has effect as a law of Solomon Islands, (as submitted by learned Counsel Sullivan at paragraph 28 of his written submissions), but also, as if it had been made in pursuance of the Constitution; in this case, pursuant to section 59. To that extent, the definition of local authority in section 16(1) of the Interpretation Act applies to the GPA.

The absurdity highlighted earlier on in applying the interpretation submitted by the Plaintiff to section 16(1) simply means that every time the meaning of “local authority” is sought, one would have to resort to the Repealed Act. But a repealed legislation is simply that. It no longer speaks to what is current. Where it has been superseded by another legislation, it is to that legislation one must have recourse to for purposes of interpreting the current status. Section 9(1) of the Interpretation Act provides that “An Act speaks from time to time”. In my respectful view, the definition of “local authority” in section 3 of the Repealed Act, with specific reference to the status of the GPA stopped speaking on the day the Interpretation Act came into existence as law; on 29th September 1978. Thereafter, the Interpretation Act started speaking and is the legislation one must have recourse to for the interpretation of the word “local authority” in current circumstances. 

But even if I should be wrong on the above, it is a fact that the LTA was amended by the National Parliament as early as 1978. In 1979, there were at least two amendments. The result being, by process of amendment, it became an Act of the National Parliament (Y. Sato & Company Limited v. Honiara Appointed Council (ibid)). It is immaterial sections 224 and 226 of the LTA had not been amended. If what Plaintiff says is true, that the LTA is not an Act of Parliament, then Parliament cannot amend without first adopting the LTA as an Act of Parliament. But that does not happen because by virtue of section 5(1) of the Independence Order, the LTA is deemed to be an Act of Parliament. Parliament therefore can amend at any time.

The result therefore is that no easement could be acquired over the Province Land and the KEL Land. The same reasons also apply to the issue of adverse possession under section 224(1) of LTA and hence it is not necessary to address that claim in any detail.

RIGHTS OF WAY

The final claim Shell relies on is a right of way under section 114(a) of the LTA. It argues that a right of way is distinct from an easement. KEL submits that a right of way is not distinct from an easement and therefore is covered by Proviso (i) in section 226(1). 

A right of way is not defined under the LTA whilst an easement is. Section 2(1) of the LTA defines easement as:

“means 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 a profit”.

Obviously a right of way is a type of easement. It is a right to pass and repass over the servient tenement. Usually it is appurtenant to a dominant tenement to use the servient tenement as a means of access to or egress from the dominant tenement for some purpose connected with the enjoyment of the dominant tenement, according to the nature of that tenement (“Introduction to Land Law G.W. Hinde, D. W. McMorland and P.B.A. Sim Wellington Butterworths 1979 paragraph 6.016”). Rights of way can be either public or private. We are concerned here with private rights of way. Rights of way can be of various kinds and may be for limited purposes only: e.g. a footway, horseway, carriage way, way to church, agricultural way, etc. (Osborn’s Concise Law of Dictionary 6th edition). It is a term used to describe a right belonging to a party to pass over land of another (Black’s Law Dictionary 6th edition). In Cannon v. Villars (1878) 8 ChD 415, Jessel M.R. describes a right of way as follows:

“As I understand, the grant of a right of way per se and nothing else may be a right of footway, or it may be a general right of way, that is a right of way not only for people on foot but for people on horseback, carts, carriages, and other vehicles. . . Now one of those circumstances, and a very material circumstance, is the nature of the locus in quo over which the right of way is granted. If we find a right of way granted over a metalled road with pavement on both sides existing at the time of the grant, the presumption would be that it was intended to be used for the purpose for which it was constructed, which is obviously the passage not only of foot passengers, but of horsemen and carts. Again, if we find the right of way granted along a piece of land capable of being used for the passage of carriages, and the grant is of a right of way to a place which is stated on the face of the grant to be intended to be used or to actually used for a purpose of carriages, there again it must be assumed that the grant of the right of way was intended to be effectual for the purpose for which the place was designed to be used, or was actually used.

Where you find a road constructed so as to be fit for carriages and of the requisite width, leading up to a dwelling-house, and there is a grant of a right of way to that dwelling-house, it would be a grant of a right of way for all reasonable purposes required for the dwelling-house, and would include, therefore, the right to the user of carriages by the occupant of the dwelling-house if he wanted to take the air, or the right to have a wagon drawn up to the door when the wagon was to bring coals for the use of the dwelling-house. Again if the road is not to a dwelling-house but to a factory, or a place used for business purposes which would require heavy weights to be brought to it, to a wool warehouse which would require bags or packages of wool to be brought to it, then a grant of right of way would include a right to use it for reasonable purposes, sufficient for the purposes of the business, which would include the right of bringing up carts and wagons at reasonable times for the purpose of the business. . . .Prima facie the grant of a right of way is the grant of a right of way having regard to the nature of the road over which it is granted and the purpose for which it is intended to be used; and both those circumstances may be legitimately called in aid in determining whether it is a general right of way, or a right of way restricted to foot-passengers, or restricted to foot-passengers and horsemen or cattle, which is generally called a drift way, or a general right of way for carts, horses, carriages, and everything else.”

Cannon v. Villars (ibid) is authority for the proposition that a right of way is a right to utilise the servient land as a means of ingress and egress for a purpose connected with the use of it. It is clear Shell had enjoyed a right of way over the said land since 1962 for accessing the hatch and non-return valve for the purpose of inspection, repair and maintenance. This would have also included the right to access the pipeline under ground at any time for purposes of repair and maintenance.

Whilst a right of way is a type of easement and can be registered as an easement, an easement is not necessarily a right of way. The LTA treats them separately. In the definition of easements, the question whether a right of way is an easement is left open. Paragraph 114(a) also mentions right of way separately from easements. If it had been intended to include rights of way in subsection 226(1) it would have been specifically mentioned together with easements. It did not however and accordingly I am not satisfied a right of way is also covered under Proviso (i) in section 226(1).

The fact there is intervening land, (the Province Land) makes little difference to that right of way provided it is beneficial to the dominant land (Todrick v. Western National Omnibus Co Ltd [1934] Ch. 561 (CA) 573 - 574 (Lord Hanworth MR), 580 (Romer LJ); 590 (Maugham LJ); Pugh v. Savage [1970] 2 Q.B. 373, 381-382 (Cross LJ)). In this instance it is clear beyond doubt the right of way benefits Shell as its use is directly linked to the subterranean pipeline. Without the right of way, Shell would not be able to access the pipeline, hatch and non-return valve for purposes of inspection, maintenance and repair and thereby being able to fulfil its business obligations in storing and distributing fuel.

RIGHT OF WAY BY PRESCRIPTION

Is there a right of way arising by prescription under The Prescription Act, 1832? The Prescription Act, 1832 is an Act of the Parliament of the United Kingdom of general application and in force on 1st January 1961 pursuant to Schedule 3 to the Constitution. It therefore has effect as part of the law of Solomon Islands. Section 2 of the said Act provides that such rights may be acquired where the right has been enjoyed thereto “without interruption for the full period of twenty years”. Also section 2 makes clear such rights can be acquired against the Crown. Has such a right in law been established? In my respectful view, the answer must be in the affirmative. Up until 19 July 1999, (a period of more than 37 years) Shell had enjoyed the peaceable, overt and uninterrupted use of the pipeline for purposes of bringing on shore bulk fuel for storage and distribution. It had also enjoyed uninterrupted access over the same period, for its staff to inspect, repair and maintain the pipeline, hatch and non-return valve (see paragraphs 16-17 of the Statement of Agreed Facts). I am satisfied at all material times the Province and KEL were aware of the existence of the pipeline, the non-return valve and the inspection hatch, but more importantly the right of way enjoyed by Shell. In my respectful view, the Province and KEL acquired their interests subject to this right of way enjoyed by Shell. That right of way was already in existence on 8 July 1983 (from 1962 to 1983, twenty years had lapsed) when the Province acquired title to its properties. The same applied to KEL on 14 July 1999 when it too acquired its lease from the Province. The result is that Shell has succeeded in establishing a right of way as an overriding interest under section 114 of the LTA.

Mention was made of section 183 of the LTA in the event this Court found in favour of an easement. That being not the case, section 183 does not apply. Section 183 makes specific reference to an easement or profit. But even if it could be argued that a right of way would amount to an easement in any event, I am not satisfied the conditions spelled out in paragraphs 183(a), (b) and (c) had been fulfilled. For argument sake, I set out the section in full:

“The High Court shall have power, on the application of any person interested in land affected by an easement or profit (whether created before or after the commencement of this Act) by order wholly or partially to extinguish or modify the easement or profit (with or without payment by the applicant of compensation to any person suffering loss in consequence of the order) on being satisfied that - 

(a)	by reason of changes in the character of the property or the neighbourhood or other circumstances of the case which the Court deems material, the easement or profit ought to be held to be obsolete;

(b)	the continued existence of the easement or profit impedes the reasonable user of the land for public or private purposes without securing practical benefits to other persons or, as the case may be, will unless modified so impede such user; or

(c)	the proposed extinguishment or modification will not injure the person entitled to the benefit of the easement or profit.

Under paragraph (a) the requirement is that there are changes which the Court deems material which would result in the right of way being deemed obsolete. Unfortunately I am not satisfied such public or private purposes have rendered the easement obsolete. The right of way remains relevant to the business and purpose for which it had been used since 1962. The same reason applies to paragraph (b). Whilst the continued existence of the right of way may impede the reasonable user of the land for public or private purposes, it cannot be said it does not secure practical benefits to other persons. The right of way is crucial to the storage and supply of fuel by Shell and Mobil Oil Australia Limited. Paragraph (c) is also obvious. The extinguishment or modification of the right of way will be a very expensive exercise for Shell and to that extent will be injurious, though Shell may have to consider at some stage it seems relocation as the city expands and develops. But that is a separate matter.

RELIEF SOUGHT

In view of the findings of this Court, it seems to me that the orders sought by the Plaintiff should be granted. As to paragraph (1), a declaration should be granted which recognizes the interest of the Plaintiff being, a right of way under section 114(a). As to paragraph (2), a permanent mandatory injunction should also be granted. Under paragraphs (3) to (5), damages to be assessed, costs and interest in favour of the Plaintiff. I bear in mind however, Counsels indicating to this Court at close of their submissions that orders should be reserved pending determination of the issues. That has now been done and accordingly, case stands adjourned to chambers hearing to a date to be fixed by the Registrar on application by the Plaintiff for purposes of submission on appropriate orders to be made, unless orders by consent are made.

THE COURT