Lihwei Lau v Land Board and Commissioner of Lands [2023] SBCA 21; SICOA-CAC 9018 of 2021 (10 October 2023)

IN THE SOLOMON ISLANDS COURT OF APPEAL

Case name:	Lihwei Lau v Land Board and Commissioner of Lands
Citation:
Decision date:	10 October 2023
Nature of Jurisdiction	Appeal from Judgment of The High Court of Solomon Islands (Faukona J)
Court File Number(s):	9018 of 2021
Parties:	Lihwei Lau and Xiaoli Haung v Land Board and Commissioner of Lands, Si QI Jenny Guan, Power Trading SI Limited, Grand Pacific Investment Limited, Silva Dunge, Nester Maelanga, Commissioner of Lands, Registrar of Titles
Hearing date(s):	10 October 2023
Place of delivery:
Judge(s):	Hansen P Palmer CJ
Representation:	L Kwaiga for the Appellant S Banuve for the 1st Respondent No Appearance for the 2nd Respondent E Soma for 3rd Respondent J Apaniai for 4th Respondent No Appearance for 5th and 6th Respondent S Banuve for 7th and 8th Respondent
Catchwords:	Recall of Final Judgment
Words and phrases:
Legislation cited:
Cases cited:
ExTempore/Reserved:	Ex Tempore
Out Come:	Appellants’ application Dismissed Corrected by excluding Power Trading (SI) Ltd land from the rectication order
Pages:	1-5

Judgment of the Court

1. The matter before us which arises from Civil Appeal number 18 of 2021, has a chequered background and an unfortunate outcome because of the failure to make proper disclosure to this Court.
2. The initial proceedings related and arose because of the corrupt dealings of an Acting Commissioner of Lands. As a consequence of that, various parcels of land near Henderson were transferred to other parties. When the fraud was discovered, the Attorney, on behalf of the Land Board and the Commissioner of Lands, sought rectification of the titles, to take them back into Crown ownership. The Attorney was successful in the High Court and an appeal was lodged. The decision in that appeal was handed down on the 28^th of April at the conclusion of the last session. The appeal was dismissed. The findings of fraud and mistake were upheld and rectification was ordered over a number of parcels of land.
3. Subsequent to that, an application was lodged by Sol Law, representing Power Trading Solomon Islands Limited, who had been a 3^rd Defendant in the lower Court proceedings. They applied for a Stay of the Order on the basis that they had entered into a Consent Order in the High Court with the State, that accepted they were genuine purchasers and their title was not subject to the fraud and mistake relating to the other lots.
4. That Consent Order has been presented to the High Court; it is a perfectly proper document. It was signed by Counsel for Power Trading and the Solicitor General and endorsed by the trial Judge. Unfortunately, for reasons that had not been satisfactorily explained, the Solicitor General who appeared on the appeal did not advise the Court that the State was party to the Consent Order, notwithstanding he was a signatory to it.
5. As a consequence, the Order of the Court ordering rectification included the lot that was the subject of the Consent Order between the Land Board, Commissioner of Lands and Power Trading. Accordingly, Power Trade filed an application seeking a stay of the High Court Order and the exclusion of Power Tradings lot from any rectification order of this Court. That application, is in fact in the wrong form. The proper recourse when there is a final Judgment of this Court, where correction is needed, is to apply to recall the Judgment and seek the necessary corrections. There are only extraordinary circumstances that can give rise to this Court reopening a final decision.
6. This case is being muddied because the Appellant, in particular the 2^nd named the Appellant, has filed its own application somehow maintaining that the Consent Order had to be disclosed to them and that somehow the Consent Order affected their client’s lot. We do not accept that argument.
7. The first point is this Judgment was handed down in open Court, and since then the Appellants and Respondents (subject to what I am about to say) had no standing, so we do not consider that Mr Kwaiga’s clients had standing to file the application they did. In any event despite extensive questioning this morning, we have heard no evidence to suggest that somehow or other those Appellants are entitled to have the Judgment recalled and that they are entitled to some relief. They do not have a Consent Order in the lower Court, which is an extraordinary event as I have just mentioned. Accordingly, it is inevitable that the application lodged on behalf of the Appellant’s on the basis of lack of standing must be and is dismissed.
8. On the other application, as I noted, it should be an application for recall. It is not in the proper form but the application in itself, covers all of the necessary matters relating to recall. Accordingly, we will deem it to be an application for recall.
9. To that limited extent, our Judgment of 28^th October is recalled. It is corrected by deleting from the rectification section of the Judgment the lot that is subject of the Consent Order properly owned by Power Trading South Island Limited. (Lot 192-004-1629).
10. Which means that PN 192-004-1629 is excluded from our rectification Order in the appeal 18 of 2021 delivered on the 28^th April this year. That brings us to question of costs.
11. We award costs on the application filed by Sol-law and right through till this hearing and this decision today to Power Trading (SI) Ltd on a party and party to be taxed if not agreed.
12. On the application filed by the Appellants, which we have dismissed, there will be no order for costs.

Sir John Hansen
Acting President of the Court of Appeal