Tupe v Perogolo [2024] SBCA 13; SICOA-CAC 4 of 2024 (21 March 2024)

IN THE SOLOMON ISLANDS COURT OF APPEAL

Case name:	Tupe v Perogolo
Citation:
Decision date:	21 March 2024
Nature of Jurisdiction	Application for leave to appeal out of Time
Court File Number(s):	4 of 2024
Parties:	John Tupe V Francis Perogolo, Hilda Kii, Ramolous Noni, Reginald Maneugu And Michael Ben Walahoula, Attorney-General
Hearing date(s):	19 March 2024
Place of delivery:
Judge(s):	Palmer CJ
Representation:	Rodger Tovosia for Applicant/Appellant
Catchwords:
Words and phrases:
Legislation cited:	Court of Appeal Rules, r 9 (1) Solomon Islands Courts (Civil Procedure) Rule 2007, r 9.75, r 9.70 S 229 (2)
Cases cited:	Waterhouse v Reef Pacific Trading Ltd [1996] SBCA 5, Lazarus Estates Ltd v. Beasly [1956] 1 QB 702
ExTempore/Reserved:
Allowed/Dismissed:	Dismissed
Pages:	1-9

JUDGMENT OF THE COURT

1. This is an application for leave to appeal out of time pursuant to rule 9(1) of the Court of Appeal Rules against the judgment of the court below dated 31^st October 2023.
2. That judgement dealt with two applications that were heard together. The first application was for default judgment filed on the 23^rd August 2022 by the Claimants (1^st Respondents) against the 2^nd Defendant, the Applicant/ Appellant in this proceeding.
3. The second one was an application for strike out of the proceedings filed on 2^nd March 2023 by the 2^nd Defendant (Applicant).
4. In his judgment, the Deputy Chief Justice dismissed the second application for strike out but granted the application for default judgment as follows:
   • “Orders:
   1. Application to strike out dismiss.
   2. Application for default judgment granted.
   3. Grant all reliefs sought in the Claim.
   4. Cost of this hearing be paid by the 2^nd Defendant to the Claimant on standard basis if not agreed upon.”
5. A notice of appeal has been attached to the Application for leave to appeal out of time filed on the 19^th January 2024. This is supported by a sworn statement of the Applicant, filed also on 19 January 2024.
6. That application sets out the reasons for the delay in filing a notice of appeal in time.
7. In essence, the blame or cause of the delay is placed on the behaviour of the Applicant’s initial counsel, Ron Law who represented the Applicant in the High Court.
8. In his application the Applicant states that while the ruling or decision was dated 31^st October 2023, he could not say if it was delivered in open court or the decision placed in the pigeon-hole of counsel. He says he was not aware of the ruling until a copy was provided to him by officers of the Solomon Islands Broadcasting Corporation on the 22^nd December 2023. He says that he attempted to have an appeal filed thereafter but because it was during the Christmas break it was difficult to instruct any counsel to file an appeal.
9. He says that a copy of the ruling was also served on him by the Claimants in the second week of January 2024.
10. He says that since then it was difficult to take instructions from Mr. Dive who had left for his home village and could not be contacted therewith.
11. He says that his right to file an appeal in time had been denied by the actions of his lawyer.
12. While this may sound like a good ground for delay, there is also the second question of whether there is some merit in the appeal that must of necessity be also considered.

Grounds of Appeal.

13. I will turn next therefore to this important question whether there is some merit shown so that there is reasonable prospect of success of the appeal.
14. The case authority which sets out the minimum requirement to be demonstrated on the application for leave to appeal or on the proposed grounds of appeal, is the case of Price Waterhouse v. Reef Pacific Trading Ltd^[1], in which the following principles were set out for determination as to whether leave should be granted or not:
    • “Extension of Time.
    • We start with the premise that there is no appeal on foot until an extension of time is granted to enable the appellants to properly institute an application for leave to appeal. The power to extend time is clearly given by s 19(b) of the Act. This provision simply gives a very wide discretion to the Court. In exercising this discretion we bear in mind the following principles:
    1. The discretion to extend time will not be granted as a matter of course.
    2. An applicant whose right of appeal is extinguished by the expiration of time must show some good or acceptable reason why the time in which to file an appeal was allowed.
    3. There must be some merit in the proposed grounds of application for leave or proposed grounds of appeal.
    4. The onus is on the applicant to satisfy the Court.
    5. Whether time is extended or not is always in the discretion of the Court.”
    • (Emphasis added).
15. The proposed grounds of appeal are set out in the draft also attached to the Application for leave to file an appeal out of time.
16. The first ground is more of an allegation of procedural error on the part of the judge in placing less weight on rule 9.75 of the Solomon Islands Courts (Civil Procedure) Rules 2007 (“the Rules”) as opposed to rule 9.70 and does not allege an error of law.
17. Rule 9.70 at paragraph (a) deals with the question of reviving a claim that had been discontinued without the leave of the court.
18. It is not clear on the facts of the case if an earlier claim had been discontinued in this same case or a completely separate case altogether. If it was a separate case then the appropriate course to take would have been an appeal where one of the parties is aggrieved by the decision of the court. The issue of leave does not feature at all. Only if it were in the same case which had been discontinued and there is an application to revive the same claim, that an application for leave is required. That is the intent and purpose of rule 9.70 of the Rules.
19. If however, there is an allegation that the same parties with the same cause of action and reliefs are entailed, then an appropriate course to take may be to file an application for strike out on the grounds of res judicata, being that a cause of action may not be re-litigated once it has been judged on the merits. Once a court renders a final judgment on the merits, then the matter has been brought to a “finality". In such situations, an appropriate course of action to take if one party is aggrieved is to file an appeal.
20. No submissions have been filed in support of this application. This court is left to find the facts as set out in the sworn statements attached. Counsel must learn to have its submissions summarised and filed as well if it wants priority to be given to its application for leave; that should be standard practice in applications for leave to appeal.
21. It appears on the facts that there is an earlier case, being civil case 431 of 2019, filed on or about the 5^th August 2019. The same Claimant is involved as in cc 469 of 2021, and one of the defendants John Tupe (1^st Defendant in cc 431 of 2019 and 2^nd Defendant in cc 469 of 2021), is the same. The subject of the dispute, being the land parcel however in those two cases are different. In cc 431 of 2019, the land parcel is the PE in parcel number 191-079-14, whilst in cc 469 of 2021, the land parcel is PE in parcel number 191-079-2.
22. It is important to note that these are two separate parcel numbers and so that distinction should be made clear when any submission is being made so that the court is not misled by counsel.
23. Rule 9.75 is fairly straightforward and deals with frivolous and vexatious proceedings.
24. As to the second ground, it alleges that the judge erred in law to take into account facts of the case which are not pleaded in any sworn statement, thereby leading the judge to refuse the application to strike out the whole of the proceeding in the lower court.
25. This ground is rather ambiguous as to what is being alleged as amounting to an error of law. There is no written submission in support of the application for leave to justify the element of merit in this proposed notice of appeal and is left to the court to find out what is meant.
26. Where registered land is involved, there are registered documents under the hand of the Registrar of Titles or his officers that will be sufficient proof of the documents filed in court, unless there is contrary evidence being adduced to prove otherwise, in particular where fraud or mistake is alleged. It is up to the Applicant to establish this as a meritorious matter worthy to be considered on appeal. That has not been done in relation to this ground.
27. As to the third ground alleged, it alleges that the learned Judge acted ultra vires in granting the order to have the Perpetual Estate in parcel number 191-079-2 to be transferred to the Claimant (First Respondent), in that the trial judge acted contrary to the requirements of section 216 of the Land and Titles Act, and particularly as follows:
    6. The Second Respondent, at the death of Thomas Botu, did not register Savino Lauguana as the surviving owner of the interest of late Thomas Botu, in order to qualify Mr. Lauguana as the transferee; and
    7. That in the court below, the claimants did not produce material before the trial judge to qualify the claimants to attain the interests from the late Savino Lauguana or any of the deceased trustees, save as a transfer form, or letters of administration or certificate of sale or other relevant materials.
28. It is interesting to note that in the entries of the Register for the PE in Parcel 191-079-2, the two early entries contained details of caveats that had been entered, one in or about 4 August 2009, and the second one on or about 13 February 2018.
29. Then there is a third entry which was dated earlier than the second entry being 4^th August 2017. How that was not entered as a priority over the second entry can only be explained by the Registrar of Titles.
30. According to that entry, Savino Laugana, Farmer of Kongulai and Samuel Kulolo, Civil Servant of Mataniko village, were registered as joint owners. No details of the registration by transmission as to which Joint Owner had died and registration of the replacement trustee is set out in the Register, which is an anomaly.
31. As recorded on the Register, we do not know how that entry was made by virtue of transmission to Savino Laugana and Samuel Kulolo. In any event, details of the transaction can be obtained from the Registrar of Titles in respect of how that purported registration by transmission was done under Application 825/17 and lodged on 4^th August 2017 at the Registry of Titles Office.
32. In any event, there are some stark undeniable facts that stand out like a sore thumb over this purported registration lodged on the 4^th August 2017.
33. According to the undisputed finding of the learned judge in paragraph 25 of his judgment, he noted that Savino Laugana died on the 5^th June 2013, some four years earlier. How his registration could have been done in 2017 therefore could only have been fraudulently done, unless there is any other logical explanation provided, which is none.
34. We also do not know based on the entries in the Land Register for parcel 191-079-2, how Samuel Kulolo was registered as one of the trustees (joint owners) in respect of that parcel.
35. According to the undisputed finding of the learned Judge in paragraph 22 of his judgment, Thomas Botu died on the 20^th November 2011. The question which remains unanswered is who were the original trustees over the said parcel 191-079-2? Was it Savino Laugana and Thomas Botu as joint owners and trustees for the Kakau Valimauvo sub-tribe? If so why were their names not recorded in the said Register?
36. The next question in which the answer is not clear on the records as well is, how Samuel Kulolo was purportedly registered as a joint owner by transmission. In other words, from whose death was the transmission made and how?
37. These were the puzzling questions which the learned judge determined and came to the clear conclusion in his judgment at paragraphs 26 and 27, that these could only have occurred by fraud or mistake.
38. On the issue of proof of fraud, it unravels everything. See the case authority in Lazarus Estates Ltd v. Beasly^[2], in which Lord Denning sitting in the Court of Appeal said:
    • “No court in this land will allow a person to keep an advantage which he has obtained by fraud. No judgment of a court, no order of a Minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything. The Court is careful not to find fraud unless it is distinctly pleaded and proved; but once it is proved it vitiates judgments, contracts and all transactions whatsoever”. (emphasis added).
39. Once fraud is established it must necessarily vitiate the land dealings that had occurred and cannot be allowed to stand unless the exceptions set out in section 229(2) can be established on evidence to the requisite standard.
40. It is pertinent to note that the claim of the Claimants (First Respondents) is based on an earlier claim as well, being cc 152 of 2009, which has been repeated in the claim of cc 469 of 2021.

Conclusion.

41. On the issue therefore of whether there is some merit in the proposed grounds of application for leave or proposed grounds of appeal, I am unable to so find and accordingly, rule that leave should not be granted.

Orders of the Court:

1. Refuse leave to appeal out of time herewith.
2. The Respondents (Claimants) to have their costs as ordered by the Court below.

Sir Albert R. Palmer CBE
Judge of Appeal.

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^[1] [1996] SBCA 5; CASI-CAC 5 of 1995 (29 April 1996).
^[2] [1956] 1 QB 702; 2 WLR 502 per Lord Denning