Perogolo v Loboi [2018] SBCA 28; SICOA-CAC 9006 of 2017 (12 October 2018)

IN THE SOLOMON ISLANDS COURT OF APPEAL

Case name:	Perogolo v Loboi
Citation:
Decision date:	12 October 2018
Nature of Jurisdiction	Appeal from Judgment of The High Court of Solomon Islands (Brown J)
Court File Number(s):	CA 9006 of 2017
Parties:	Francis Perogolo, Michael Liliau, Michael Ben, Hilda Kii and Paul Aruhuri v Andrew Loboi, Urosshill Trust Board and Attorney General
Hearing date(s):	9 October 2018
Place of delivery:	High Court of Solomon Islands- Court Room Six(6)
Judge(s):	Goldsbrough President Ward JA Lunabek JA
Representation:	Mr. J. To’ofilu for the Appellant Mr. D. Marahare for the 1st and 2nd Respondent Mr. S. Banuve and Hollison
Catchwords:
Words and phrases:
Legislation cited:	Civil Procedure Rule 2007
Cases cited:	Emco Pacific (SI) Ltd v Emmet, Evans v Bartlam, Allison v Medlin, Perogolo v Laugana, Loboi v Laugana
ExTempore/Reserved:	Reserved
Allowed/Dismissed:	The appeal is dismissed
Pages:	1-8

JUDGMENT OF THE COURT

1. This is an appeal from a ruling made by Brown J on 27 January 2017 striking out a category ‘C’ claim as an abuse of process pursuant to Rule 9.75(c) of the 2007 Civil Procedure Rules.
2. The category “C” claim had been filed on 26 February 2016 and the claimants sought declarations under rule 15.9.1 in respect to the ownership of some parcels of registered land. The land in question had been the subject of a number of previous High Court actions between the same or related parties. The declarations were sought in paragraphs 1 and 2 that:
   • “1. the claimants are entitled to the area or portion of land which is subject to the judgment for specific performance in the civil case 152 of 2009, which was acquired pursuant to the charging orders of March 27th 2012 in civil case 212 of 2008 and subsequently registered in the names of the first and second defendants herein and become part of these parcels of lands namely 191-079-20 and 21 and 191-081-1, 57 and 58.
   • 2. that the claimants’ right as determined in the judgment for specific performance in civil case 152 of 2009 should prevail over the charging orders of March 27th 2012 or any subsequent orders in the civil case 212 of 2008 made in favour of the first defendant herein.
   • 3. Consequential to the declarations sought hereof, an order that the perpetual estate registers in the parcels of lands referred to in paragraph 1 hereof be rectified by the third defendant on the ground as pleaded herein and the portions of land which subject to the judgment in civil case 152 of 2009 as surveyed, be returned and registered in the names of the appointed trustees of the claimants’ sub tribe.”
3. On 19 May 2016, the present first and second respondents filed an application to have the action struck out pursuant to rule 9.75. (a) to (c). Their statement of case suggested that the claimants were effectively seeking orders for rectification of the estates in the specified parcels on the ground of mistake and further that the claim;
   • “in effect is seeking to challenge court orders in High Court civil case 212 of 2008 that have never been challenged, appealed against or been set aside by any court of law of higher jurisdiction in that case effectively the claim is an appeal in disguise.
   • What the claimants are asking the court to do is to review its own orders. It is an established principle of law that the High Court has no jurisdiction to review its own orders even on the grounds of error in law apparent on the face of it. In this case, the claimant was not a party to case 212 of 2008 and the orders of the court in that proceeding are not appealed against.”
4. The application to dismiss the claim was listed for hearing on 27 September 2016 and the learned judge in an extempore judgment, under the heading “Application to dismiss Claim on the basis that the Court is asked to review its own orders”, stated:
   • “The principle (sic) issue, the legal or equitable effect of the benefit presumed by these claimants in cc 152/09 is a serious issue to be tried and should be allowed to proceed. The application to strike is refused. The costs of today’s hearing on the application will be costs in the cause. The proceedings will proceed pursuant to the usual directions, and be set down for pretrial conference.”
5. The pretrial conference was fixed for 25 October 2016. The day before it was heard, the Attorney General, for the Commissioner of Lands and the Registrar of Titles, filed his defence to the original claim. In his statement of case, he pleaded that the third defendants exercised their powers of registration in good faith in accordance with the various orders of the court in case 212 of 2008. He continued:
   • “These proceedings instituted by the claimant is a breach of the well-established principles [which forbid] the courts to make orders that affect or interfere with other proceedings.
   • Therefore, the allegations of mistake contained in the claimant’s statement of case cannot be sustained as this is clearly an attempt by the Claimants to acquire the perpetual estates that were obtained by the first and second defendants through the lawful orders of the Court in another matter cc 212 of 2008.”
6. In a lengthy judgment delivered on 27 January 2017 the learned judge summarised the effect of earlier decisions in some detail. He referred to the paucity of appeals from the earlier decisions and concluded:
   • “For the reasons given, since dealings with the registered parcels of land have been pursuant to court order and do not fall to be considered under section 118(2), I make the following orders 1. The claims are struck out pursuant to Rule 9.75(c) as an abuse of the process of the court”.
   • This was followed by consequential orders.
7. The grounds of appeal, filed with leave, raise numerous aspects of the earlier court decisions but, in counsel’s submissions to this court, Mr Hapa restricts his submissions to a suggested failure of the judge to follow the procedures laid down in the Civil Procedure Rules. He submits that the judge has failed to observe the difference between a trial preparation conference (TPC) under the provisions of Chapter 8 and the conference required in an application for judicial review.
8. Rule 8.14 sets out the purpose of the TPC in a category ‘C’ action:
   • “8.14 The purpose of a Trial Preparation Conference is:
   • (a) to identify precisely what are the issues between the parties that are to be determined in a trial; and
   • (b) to identify the evidence needed to prove these matters; and
   • (c) otherwise to ensure the matter is ready to be tried; and
   • (d) To see whether the matter can be resolved by alternative dispute resolution.”
9. In judicial review cases the Court must call a conference as soon as possible after the defence has been filed at which the court must consider the matters in rule 15.3.18;
   • “15.3.18 The court will not hear the claim unless it is satisfied that:
   • (a) the claimant has an arguable case; and
   • (b) the claimant is directly affected by the subject matter fully and directly; and
   • (c) there has been no undue delay in making the claim; and
   • (d) there is no other remedy that resolves the matter fully and directly.”
10. The two forms of conference are required to fulfil different aims. The conference in rule 8.14 is to ensure the case will be ready for trial whereas, in judicial review cases, the court will not allow the trial to take place unless it is satisfied of the matters listed in rule 15.3.18. Counsel for the appellants summaries his submission:
    • “The striking out of the category ‘C’ claim during TPC on 25 October 2016 amounted to an error of law because the TPC process is limited in its application that it does not sanction striking out by the Court. In any event, rule 9.75(c) is not applicable at TPC especially if parties are not aware of the courts intention to do so. In the present case, what should have happened was for the judge to use rule 8.16(c) to fix a date for hearing of the preliminary legal issue. That was not done and the claimants in the category ‘C’ claim were effectively ‘ambushed’ during TPC.”
11. Counsel was asked in this hearing what was meant by his reference to ambush. It was, he explained, that he had been taken by surprise and therefore did not have an opportunity to make submissions. However, he accepted that the judge had, in fact, made his intention plain in the conference and all counsel (including himself) had the opportunity to address on it.
12. Unfortunately his suggestion that rule 9.75 is not applicable at TPC is not an accurate account of the rules. Rule 9.75 makes it clear that the powers given to the court to dismiss proceedings apply in any proceedings on application by the parties or on the court’s own initiative.
    • “9.75 If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings:
    • (a) the proceedings are frivolous or vexatious; or
    • (b) no reasonable cause of action is disclosed; or
    • (c) the proceedings are an abuse of the process of the court;

the court may, on the application of a party or on its own initiative, order that the proceedings be dismissed generally or in relation to that claim.”

13. In his extempore ruling, the judge stated:
    • “The principle issue, the legal or equitable effect of the benefits presumed by these claimants in cc 152/09, is a serious one to be tried and should be allowed to proceed. The application to strike is refused.”
14. It is clear that, once he considered the much more detailed facts, he changed his mind and, as we have seen, dismissed the case. There is no suggestion that he gave notice that he might change his mind before the hearing on 27 October 2016 but when that presented itself as a possible outcome, he told counsel and invited submissions from counsel on that possibility. We have no doubt that, had any party taken by surprise asked for time to consider the issue, he would have been given it but they all, including the Claimant, made their submissions then.
15. In a reserved judgment, the judge dismissed the case as an abuse of the court’s process. It is unfortunate that he did not clearly state the reason for reaching that conclusion. We do not accept his changed approach to the purpose of the conference would or could have given ground for a suggestion of abuse of the court process.
16. However, submissions were made to the Court that the whole effect of the claim was to seek to have the court make orders that effect or interfere with other proceedings. In the case of Emco Pacific (SI) Ltd v Emmet (2012) SBCA 7 at paragraph 21, this Court stated:
    • “The fifth order sought refers to ‘orders sought by’ Mrs Emmet presumably in 46 of 2008. 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 Emmet. 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, it is clear that essentially the action is an attempt to curtail the matrimonial proceedings. Even having regard to the caution referred to in cases such as Evans v Bartlam (1937) AC 473 and Allison v Medlin (1996) SBCA3, this is clearly a case where it was appropriate to strike out a claim summarily.”
17. We accept that the whole thrust of the claim was to seek to have the court reconsider the meaning, scope and effect of the earlier decisions on this issue. That clearly amounted to an abuse of the process of the court and the learned judge was correct, in the light of that, to dismiss the case.
18. The appeal is dismissed and the judgment is confirmed with costs to the first and second respondents.

......................................................
Goldsbrough P
......................................................
Ward JA
......................................................
Lunabek JA