Kulolo v Loboi [2017] SBCA 9; SICOA-CAC 2 of 2017 (13 October 2017)

IN THE SOLOMON ISLANDS COURT OF APPEAL

NATURE OF JURISDICTION:	Appeal from Judgment of The High Court of Solomon Islands (Brown J)
COURT FILE NUMBER:	Civil Appeal Case No.02 of 2017 (On Appeal from High Court Civil Case No. 221 of 2014 & 67 of 2016)
DATE OF HEARING:	11 October 2017
DATE OF JUDGMENT:	13 October 2017
THE COURT:	Goldsbrough P Ward JA Hansen JA
PARTIES:	SAM KULOLO & PETER PUKUVATU –V- ANDREW LOBOI & ANOR
ADVOCATES: APPELLANT: RESPONDENT:	Mr. P. Tegavota Mr. D. Marahare
KEY WORDS:	JUDICIAL REVIEW: APPEAL:
EXTEMPORE/RESERVED:	RESERVED
ALLOWED/DISMISSED	DISMISSED
PAGES	1- 3

JUDGMENT OF THE COURT

1. Purporting to be a claim for Judicial Review, the originating claim (as amended) in this matter was filed 23 March 2016. The claim was ended prior to trial on 31 January 2017 when an order striking out the claim was made under Rule 9.75 of the Solomon Islands (Civil Procedure) Rules 2007 (the Rules). At the same time an order was made removing any caveats entered by the two Appellants in relation to parcels of registered land 191-079-20 and 191-080-57 and 191-079021, 191-080-58 and 191-080-1.
2. These and other parcels of land had been the subject of proceedings in the High Court begun in 2008 and 2009. Orders in those cases had been respectively made in 2010 and 2011. The effect of the 2008 proceedings was the sale of one of the parcels of land the subject of this claim which, the claim attempts to assert, was contrary to the interests of the claimants.
3. This land is registered land and, therefore, the protections set out in the Land and Titles Act [Cap 133] apply. Unless noted in the Register of Land or falling within the provisions of section 114 of Cap 133 (overriding interests) an interest is not capable of being enforced. Section 118 (2) deals with a bona fide purchaser for value where the seller is a trustee and protects that purchaser. Section 218 (3) provides protection to a purchase on a sale by court order.
4. The Appellants seek to vindicate what they say is their interest in land as members of a tribe entitled to occupy the land which, they maintain, was previously held in trust but which has been allowed through no fault of them to be effectively repossessed to settle a debt. They maintain that they were not parties to the 2008 proceedings but that the property held by two of their tribe (Savino Laugana and Thomas Botu) who were parties to the case was treated as assets belonging to those two when in fact it was held in trust for the benefit of members of the Gaubata tribe.
5. In the 2009 proceedings the same two men were named as First Defendants but this time as representing the Gaubata tribe. In those proceedings they were the losing party.
6. In neither instance was there an appeal against the decision of the High Court.
7. Given those circumstances, it soon becomes apparent that this claim is, if not a backdoor appeal against decisions of 2010 and 2011, then a claim for judicial review of the High Court itself. Whilst counsel for the Appellants stressed that he does not seek to challenge any of the decision or orders previously made in the High Court, the only route to any success in unravelling the transactions that have, over the years, taken place as a result of the various court orders is to review their effect.
8. There is, as pointed out by the Respondents to this appeal, ample authority to suggest that the High Court cannot review itself.
9. Whether faced with an application for strike out under Rule 9.75 of the Rules or a Conference under Rule 15.3.16 any court will look to ensure that there is an arguable case. There are obviously differences depending upon the applicable rule but that general statement still holds true.
10. One further matter requires mention. The strike out application was heard consolidated with another matter brought by different parties against the same two defendants being Andrew Loboi and Urosshill Trust Board. The other claim, in 076 of 2016 was also struck out. There is no appeal against that part of the order made in the consolidated proceedings.
11. In the reasons for judgment beginning at paragraph 2 the trial judge sets out the history of the claim and how each earlier civil case affected the land. He recites from the claim that the Respondents must have been registered as owners by mistake or fraud because the Appellants are the beneficial owners. The history continues and concludes when the judge notes that the effect of the decision in 152 of 2009 was to extinguish any claim of right to customary land sold to Andrew Loboi. It is necessary, at this juncture to recall that the Appellants were parties to that 2009 proceeding and that no appeal was made against that decision.
12. In Emco Pacific (SI) v Anita Emmett [2012] SBCA 7 this Court said:-

If the court in 287 of 2011 were to make an order of the type sought it would amount to that court holding that the court in 46 of 2008, by making an order or giving consideration to making an order, gave Emco an entitlement to seek damages against Mrs Emmett. No court could make such an order affecting an order made by a court in other proceedings or affecting the right of a party to make submissions in those other proceedings.

13. Following that principle, which we accept as valid, the court in 221 of 2014 could not make order which affected an order made by a court in other proceedings. Nor, in our view, may the High Court review itself. In re the Estate of Felix Panjuboe [2002] SBHC 98 adopting the dicta from Charles Bright & Co Ltd. V Sellar [1903] UKLawRpKQB 175; [1904] 1 K.B. 6.
14. For those reasons this appeal is dismissed. Costs of and incidental to this appeal are ordered to be paid to the Respondents by the Appellants, such costs to be agreed or assessed.
    

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Goldsbrough P

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Ward JA

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Hansen JA