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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
WS NO. 1371 OF 2006
BETWEEN:
STEPHEN JOHN ROSE
& JOHN CHARLES HARRISON
Plaintiffs
AND:
THE INDEPENDENT STATE
OF PAPUA NEW GUINEA
Defendant
Waigani: Gavara-Nanu, J
2007: 18 October
& 29 November
JUDGEMENTS & ORDERS – National Court Rules, O 8 r 59 (1) – Correcting a clerical mistake or error – Actual orders at variance with the minute of the actual orders and the Certificate of Judgment – Errors in the minute made deliberately by a party – Subsequent variation of actual orders by the Court made after judgment was entered – Actual orders and the subsequent variation to those orders by the Court made in two different proceedings – Power of the Court to correct clerical mistakes or errors –Consequential orders.
Cases cited
Papua New Guinea Cases
Charles Maino v. Moi Avei SC648
Isidore Kaseng v. Michael Debege N2735
Orogen Minerals Ltd .v. Internal Revenue Commission N2467
Ralph Rakhinand Premdas v The State (SCR No.1 of 1979) [1979] PNGLR 329
Supreme Court Reference No.1 of 1997 SC526
The State & Ors v. Brian Josiah & Ors SC792
Wallbank and Mimifie v. The State [1994] PNGLR 78
Overseas cases
Autodesk Inc. Dyason (No.2) (1993) 67 CLR 270
Bailey v. Marinoff [1971] HCA 49; (1964) 125 CLR 529
Hall v. Harris [1900] VicLawRp 8; (1900) 25 VLR 455
Hatchinson v. Nominal Defendant [1972] 1 NSWLR 443
Hatten v. Harris [1892] A.C 560
Ivanhoe Gold corp. Ltd v. Symonds (1906) CLR 642
Lawrie v. Lees (1881) 7 App Cas 19
Muir v. Jenks [1913] UKLawRpKQB 82; [1913] 2 KB 412
R v. Cripps, ex parte Muldoon and Others [1984] 2 All ER 705
Shaddock & Assocs Pty Ltd v. Paramatta City Council [1982] HCA 59; (1982) 151 CLR 590
Tauro v. Tauro (1897) 14 WN (NSW) 113
Vitous v. Tuohill [1964] VLR 624
Woods v. Sheriff of Queensland (1895) 6 QLJ 163
Counsel
Plaintiffs – In person
K. Kua, for the defendant
1 Gavara-nanu, J: This is an application by the defendant made pursuant to Order 8 r 59 (1) of the National Court Rules seeking orders to correct clerical errors which the defendant says are in the minute of the orders made by Sakora, J on 12 February, 2007, which were entered on 14 February, 2007, for which a Certificate of Judgment was issued by the Registrar of the National Court on 20 February, 2007. The orders of 12 February, 2007 granted default judgment with damages to be assessed. The defendant says as a result of the errors, the minute and the Certificate of Judgment do not reflect the true intention of the actual orders pronounced by the Court on 12 February, 2007.
Background facts
3 To better appreciate the issues, it is appropriate that I set out the background facts giving rise to this application. In the Statement of Claim endorsed to the Writ of Summons filed on 22 September, 2006, the plaintiffs claim the following relief:
AND THE PLAINTIFFS THEREFORE CLAIM:-
38. (i) Special Damages of AUD$4,940,125.00
(a) General Damages for hardship, frustration, and stress associated with breach of contract.
(b) Interest pursuant to the Judicial Proceedings (Interest on Debts and Damages Act).
(ii) Such other orders as the Court deems necessary.
4 The plaintiffs’ claims arise out of a claim that the defendant breached a consultancy Agreement entered into between them in about April, 2002. As it can be seen from the relief sought, the plaintiffs claim a liquidated amount of AUD$4,940,125.00 and general damages with interest.
5 Following default by the defendant to file its Notice of Intention to Defend and Defence by 25 January, 2007, the plaintiffs filed a Notice of Motion seeking default judgment. The Notice of Motion came before Sakora, J on 12 February, 2007, and after hearing the plaintiffs, his Honour granted orders for default judgment to be entered with damages to be assessed at a later time. It is to be noted that before the grant of these orders, the lawyer for the defendant, Mr. Markus Nandape applied for an adjournment to 1.30pm on the basis that he did not have the carriage of the matter and he did not have his office file with him. The adjournment was to allow him to make representation on the plaintiffs’ application, but his Honour refused the application. The lawyer for the defendant was therefore not heard on the plaintiffs’ application. Thus, the orders were made without the defendant being heard.
6 The relevant parts of the transcript of the proceedings on 12 February 2007, appear in Annexure ‘D’ to Mr. Devete’s affidavit, more particularly at pages 5 to 9. It is noted from the transcript that Mr. Nandape made a determined application for an adjournment. It is noted that one other reason given by Mr. Nandape for his application for adjournment was that he knew nothing about the case, and that an adjournment would give him time to look at his file and be in a position where he could properly assist the Court in deciding the plaintiffs’ application. He also told the Court that an adjournment would not prejudice the plaintiffs. After refusing Mr. Nandape’s application, his Honour granted the orders and the gist of those orders appears at page 8 of the transcript, where his Honour said:
"...The Court grants the order sought, that is for entry of default judgment pursuant to O 12 r 25, r26 and r 28, Mr. Rose and Mr. Nandape. There has to be assessment of damages, gentlemen. But judgment on liability is ordered to be entered and all those matters you claim, Mr. Rose, will have to be – unfortunately, you have to go to Court to put material evidence before the court for assessment.
7 These orders were immediately queried by Mr. Rose, who appeared for the plaintiffs on the Notice of Motion. The exchange of comments that followed between Mr. Rose and his Honour appear at pages 8 and 9 of the transcript and they appear as follows:
MR ROSE: Your Honour could I ask this. The unliquidated part of this claim that the State has failed since 2002 is AUD$4,900,000 and I think $40 plus interest at 8 per cent per annum which is about-----
HIS HONOUR: Hold on. Let me have a look at the -----
MR ROSE: I think that is the liquidated claim and I think the State should pay that.
HIS HONOUR: Your writ of summons. Where are we? 4,940,125?
MR ROSE: Yes that is right. That is correct, your Honour.
HIS HONOUR: What are those damages in respect of?
MR ROSE: Damages. That was monies that were spent by myself and my partner and also monies that are owed to us on consultancy fees. And the interest was 8 per cent per annum. But I ask your Honour that they are liquidated and the unliquidated as assessed or as agreed.
HIS HONOUR: Al right, with respect, Mr Rose, I would differ with that because even if you have got a liquidated amount there, you would have to produce evidence of the expenses that were incurred, the performance of the consultancy or the contract; all of those would have to be proven. And it is appreciated you claimed a liquidated amount but those have to be established by evidence or agreed to together with all those other unliquidated sums that come under rule 28. But you got the judgment for liability and it is a matter of putting together your evidence and getting a trial date. So, the last order that goes with that order for entry of judgment is that, damages be assessed at the time convenient to the parties. And you can write to the Registrar, prevail upon him to set the matter down for hearing on assessment of damages.
MR ROSE: Okay. Thank you.
HIS HONOUR: Mr. Nandape, now you have got news to tell back at the office whoever is responsible for the file that there is an entry of judgment and the next step is assessment of damages and if you got no evidence then the plaintiff will go through as a matter of course.
MR NANDAPE: Thank you, your Honour.
HIS HONOUR: Thank you, gentlemen.
MR ROSE: Thank you.
8 It can be seen from this that the orders of 12 February, 2007 were not made with just brief remarks. They were made with fully considered reasons.
9 Following the grant of the orders, Mr. Rose then took out the Orders (the minute). The relevant parts of the minute appear in paragraph 2 of the minute. The minute is Annexure ‘E’ to Mr. Devete’s affidavit and paragraph 2 appears as follows:
2. The Default Judgment is entered against the Defendant for:-
(a) Special Damages in the sum FOUR MILLION NINE HUNDRED NINE HUNDRED FORTY THOUSAND ONE HUNDRED TWENTY FIVE AUSTRALIAN DOLLARS (AUD$4,940,125.00). (correction initialled)
(b) Interest pursuant to the Judicial Proceedings (Interest on Debts and Damages Act) at equivalent to ONE HUNDRED SIXTY THOUSAND TWO HUNDRED FORTY NINE AUSTRALIAN DOLLARS FIFTY THREE CENTS ($160,249.53 as at 31ST January, 2007). (correction initialled)
(c) The amount in (a) and (b) be paid out forthwith by the defendant (correction initialled)
(d) The amount in (a) and (b) be paid out forthwith by the defendant.
(e) General Damages for hardship, frustration and distress, as agreed or as assessed.
(f) Costs and expenses as agreed or as assessed.
(g) Such other orders as the Court deems necessary.
10 The Certificate of Judgment, which required Mr. Devete (Acting Solicitor General) to endorse payment of AUD$4,940.125.00 appears as follows:
CERTIFICATE OF JUDGEMENT
I, certify that STEPHEN JOHN ROSE & JOHN CHARLES HARRISON of in Person, P.O. Box 601, KONEDOBU, National Capital District, on 14th February, 2007, did obtain a judgment of the National Court in its favour, and that by such judgment the sum of AUD#4, 490,125.00 was awarded to it.
Date: 20th day of February, 2007
(Signed)
...........................
REGISTRAR
Waigani National Court
I certify that____
(a) the judgment may be satisfied.
Dated: day of 2007.
...................................
SOLICITOR GENERAL
11. On 19 June, 2007, the plaintiffs filed the proceedings in OS No. 338 of 2007, in which they sought leave for judicial review to obtain mandamus to compel Mr. Devete to endorse the Certificate of Judgment. On the same day, the plaintiffs filed a Notice of Motion seeking similar orders as those in the Originating Summons except for relief order No.7 in which the plaintiffs sought an order for mandamus. A separate Notice of Application for leave to apply for judicial review, a Statement pursuant to Order 16 r 3 (2) of the National Court Rules and a supporting affidavit by Mr. Stephen John Rose sworn also on 19 June, 2007, were also filed on the same day. It is appropriate that the Originating Summons and the Notice of Motion which are Annexures ‘H’ and ‘I’ to Mr. Devete’s affidavit are reproduced here for ease of reference.
12 The Originating Summons appears as follows:
ORIGINATING SUMMONS
The Plaintiffs apply for the following relief:
1. Leave of the Court pursuant to Order 16 Rule 3 of the National Court Rule to apply for judicial review.
2. A declaration that in all the circumstances it is appropriate that various rules of the National Court Act and Practice Directions be dispensed with so as to expedite the proceedings.
3. An order that the Court record and a Registry search in respect of National Court case 1371 of 2006 be produced.
4. A declaration that the Acting Solicitor General has a present duty in accordance with Section 14 of the Claims by and Against the State Act 1996 to endorse for payment, and make available to either the Applicants or to the Secretary for Finance, the Certificate of Judgment in respect of National Court case 1371 of 2006.
5. A declaration that the Plaintiffs are presently entitled to payment of the judgment debt awarded in respect of National Court case 1371 of 2006 for AUD$4, 940,125.00, plus post judgment interest at 8% per annum from the date of judgment.
6. An order that the First/Second Defendants show cause why the said Certificate of Judgment was not endorsed for payment and made available to either the Applicants or to the Secretary of Finance within the 60 day period prescribed by the Claims By and Against the State Act 1996, or as soon as possible after that.
7. Costs and expenses.
8. Such other orders as the Court thinks fit.
(Signed)
..............................................................
Stephen John Rose and John Charles Harrison
Dated the 19th day of June 2007.
13 The Notice of Motion appears as follows:
NOTICE OF MOTION
TAKE NOTICE that the Applicant will on June 2007, at 9.30 am move the National Court sitting at Waigani for the following orders:
1. Leave of the Court pursuant to Order 16 Rule 3 of the National Court Rule to apply for judicial review.
2. A declaration that in all the circumstances it is appropriate that various rules of the National Court Act and Practice Directions be dispensed with so as to expedite the proceedings.
3. An order that the Court record and a Registry search in respect of National Court proceedings WS 1371 of 2006 be produced.
4. A declaration that the Solicitor General has a present duty in accordance with Section 14 of the Claims By and Against the State Act 1996 to endorse for payment, and make available to either the Applicants or to the Secretary for Finance, the Certificate of Judgment in respect of National Court proceedings WS 1371 of 2006.
5. A declaration that the Plaintiffs are presently entitled to payment of the judgment debt awarded in respect of National Court proceedings WS 1371 OF 2006 for AUD$4, 940.125.00, plus post judgment interest at 8% per annum from the date of judgment.
6. An order that the First/Second Defendants show cause why the Certificate of Judgment in respect of National Court proceedings WS 1371 of 2006 was not endorsed for payment and made available to either the Applicants or to the Secretary of Finance within the 60 day period prescribed by the Claims By and Against the State Act 1996, or as soon as possible after that.
7. An order in the nature of mandamus or a mandatory injunction requiring the First Defendant to sign the Certificate of Judgment in respect of National Court proceedings WS 1371 of 2006 pursuant to s.14 (2) of the Claims By and Against State Act 1996.
8. Costs and expenses.
9. Such other orders as the Court thinks fit.
(Signed)
......... ...................................................
Stephen John Rose and John Charles Harrison
Dated the 19th day of June 2007
14 The plaintiffs’ application for leave for judicial review in OS No. 338 of 2007 first went before Lay, J on 22 June, 2007. However, his Honour did not hear the application because the matter was adjourned upon an application made by the defendant. But before granting the adjournment, his Honour made some observations in respect of the orders made on 12 of February, 2007, and the Certificate of Judgment. His Honour observed that according to the endorsement made on the file by Associate to Sakora J, the Certificate of Judgment was at variance with the orders of 12 February, 2007. The transcript of the proceedings before Lay, J is Annexure ‘M’ to Mr. Devete’s affidavit. In his observations, Lay, J said:
"Now, Mr. Rose, one thing which raises my curiosity with respect to the documents on the proceeding, the file for WS No. 1371 is that the claim seeks specified sum and you appear to have taken out judgment for a specific sum. Yet the endorsement on the file by the Associate to Justice Sakora suggests to me that the judgment which his Honour was giving was judgment for damages to be assessed at the later date. I raise that solely as a matter that the parties need to address when you come next Thursday".
15 On 25 July, 2007, the matter returned before Sakora, J for the plaintiffs to apply for leave for judicial review for grant of mandamus. On that day, the Court granted leave for judicial review, then went on to dispense with the requirements as to procedures relating to the hearing of the substantive relief for mandamus and granted mandamus against Mr. Devete on the same day compelling him to endorse the Certificate of Judgment. It is to be noted that orders granted were as in relief orders No. 2 and 7 in the Notice of Motion. On this day, his Honour also made rulings which purported to correct and vary the orders he made on 12 February, 2007.
16 On 20 August, 2007, Salika, J heard an application filed by the plaintiffs against Mr. Devete for contempt of Court for purportedly disobeying the Court orders for him to endorse the Certificate of Judgment. The plaintiffs’ application was filed under the proceedings in OS No.338 of 2007. His Honour, deferred his ruling to 22 August, 2007. On 22 August, 2007, Salika, J refused the plaintiffs’ application and in the course of his ruling, his Honour observed that orders made on 12 February, 2007, which granted the default judgment were at variance with the Certificate of Judgment. His Honour further observed that the purported variations made by Sakora, J on 25 July, 2007 to the orders made on 12 February 2007, were confusing and ordered that the matter should go back to Sakora, J for clarification. At page 6 of the transcript of the proceedings before Salika, J which is Annexure ‘Y’ to Mr. Devete’s affidavit, shows his Honour’s observations. His Honour said:
"And when his Honour was considering the application for mandamus to force the Solicitor General to sign, I note from the transcript as I was reading through, the transcript denoted that he did say that he ought to have awarded the liquidated part of the claim on 12 February, but then he did not vary his orders from the original order he made on 12 February. In my view, he ought to have varied that order on the 25 and so for those reasons – and I think this matter really should go back to his Honour; go to the original Court to have it fixed as to what he meant on 25 July. This matter should really go back to him to fix up because everybody is confused in this as to what the Court orders should be".
17 On 19 September, 2007, the matter returned before Sakora, J. His Honour adjourned the matter to 21 September, 2007. On this day, the matter was further adjourned to 5 October, 2007. It was on this day that his Honour heard the plaintiffs’ Notice of Motion on contempt charges against Mr. Devete. His Honour convicted Mr. Devete for contempt of Court and sentenced him to 6 months imprisonment with hard labour. However, the sentence was suspended until 22 October, 2007, when his Honour was to decide whether the whole of the term of imprisonment imposed should be served or only part of it or be fully suspended, depending on whether Mr. Devete delivered a letter of legal clearance to the Department of Finance with the endorsed Certificate of Judgment by that date.
18 These background facts are not in dispute. As it will be seen later, the plaintiffs rely on certain parts of Sakora, J’s rulings made on 25 July, 2007, to argue that in those rulings, his Honour did correct and vary the orders he made on 12 February, 2007, thus, the minute of those orders and the Certificate of Judgment are proper and valid. It was therefore argued that Mr. Devete ought to have endorsed the Certificate of Judgment.
19 The plaintiffs also argued that the Court on 12 February, 2007, did grant the orders sought in their Notice of Motion, including an order for the defendant to pay the specific amount of AUD$4,940,125.00 to the plaintiffs with interest.
Submissions
(a) By the defendant
20 Mr. Kua submitted that evidence shows that there is a substantial variation between the orders made on 12 February 2007, the minute of those orders and the Certificate of Judgment. It was submitted that the transcript of the proceedings on 12 February, 2007, shows very clearly that the orders were for default judgment to be entered with damages to be assessed. Mr. Kua submitted that, that clearly was the intention of the actual orders pronounced by the Court on 12 February, 2007. However, as shown in the minute of the orders, the orders entered included a judgment in favour of the plaintiffs for the specific amount of AUD$4,940,125.00 with interest and an order for the immediate payment of those amounts and general damages for hardship, frustration and distress "as agreed or as assessed".
21 Order 8 r 59 (1) under which the defendant is making this application provides:
"59. Minute of judgment or order.
(1) Where there is a clerical mistake in a minute of a judgment or order, or an error in a minute of a judgment or order arising from an accidental slip or omission, the Court, on application by a party or of its own motion, may, at any time, correct the mistake or error.
(2) Rules 56, 57 and 58 of this Order do not apply to a correction made under sub-rule (1) of this Rule".
22 The defendant has relied upon a number of cases, including Wallbank and Mimifie v. The State (1994) PNGLR 78, in which the Supreme Court acknowledged the jurisdiction of the Court to reopen a case for purposes of correcting an error resulting from a misapprehension of facts or law. The Supreme Court in that case adopted and followed Autodesk Inc Dyason (No.2) (1993) 67 CLR 270. The defendant also placed reliance on Charles Maino v. Moi Avei SC648; Orogen Minerals Ltd v. Internal Revenue Commission N2467, per Sakora, J and Isidore Kaseng v. Michael Debege N2735, per Kandakasi, J. In Orogen Minerals Ltd v. Internal Revenue Commission, Sakora J in the exercise of the powers conferred by O 8 r 59 (1), ordered interests to be paid on an amount awarded to a party, for which interest was not awarded by the trial judge. In Isidore Kaseng v. Michael Debege, Kandakasi J, cited Orogen Minerals Ltd v. Internal Revenue Commission with approval and went on to correct two Certificates of Judgment which did not reflect the actual orders pronounced by the Court by setting the two Certificates of Judgment aside, using the same powers under O 8 r 59 (1) of the National Court Rules. In that case, the actual order of the Court was for default judgment to be entered with damages to be assessed, but the processes of the Court were subsequently manipulated which resulted in the Certificates of Judgment being issued for an inflated amount of over K20m.
23 It was submitted by Mr. Kua that in the instant case, there is a substantial variation between the orders made on 12 February, 2007, and the minute of those orders and the Certificate of Judgment. Thus, it was submitted that the errors must be corrected in the interest of justice as were done in Orogen Minerals Ltd v. Internal Revenue Commission (supra) and Isidore Kaseng v. Michael Debege (supra).
24 It was further submitted that the transcript of the proceedings on 25 July, 2007 in OS No. 338 of 2007, confirmed the actual orders made on 12 February, 2007, which also goes to prove the errors in the minute of those orders and the Certificate of Judgment. In support of this submission, Mr. Kua referred to page 7 of the transcript of the proceedings on 25 July, 2007, in OS No. 338 2007, which is Annexure ‘M’ to Mr. Devete’s affidavit, in which his Honour confirmed the orders made on 12 July, 2007. His Honour said:
"Issue was taken by Mr. Palek of counsel in relation to the orders that I made on 12 February this year and entered on the 14th contending that the damages that were awarded were not liquidated damages so that the amount of AUD$4,940.125 as special damages together with general damages that were claimed should be assessed. And in support of this contention there was the transcript from the day that I heard the motion and gave the order. There was also the certificate of judgment that the registrar signed and there was the endorsement on the file by my associate. And I concede that from a perusal of those documents the order that I gave or made were orders pursuant to Order 12 rules 25 and 26. Those are the circumstances under which an application for default judgment can be made but more importantly rule 28 which is an order for damages to be assessed and the initial order ought to have been an order granting – sorry, let me say that again – judgment on liability only and the assessment of damages to take place at a future date in relation to the claims that were made."
25 It was argued that, if the State is manoeuvred, or forced into paying out this substantial sum of money to the plaintiffs in circumstances where there was no actual order for that sum of money to be paid to them; the end result is the State and the people of Papua New Guinea will suffer substantial injustice through loss of substantial amount of public funds.
26 Mr. Kua also argued that the granting of leave for judicial review by the Court and the granting of mandamus to compel Mr. Devete to endorse the Certificate of Judgment on 25 July, 2007, then subsequently finding Mr. Devete guilty for contempt of Court and sentencing him to 6 months imprisonment on 5 October, 2007, all resulted from the errors referred to above. The Court is therefore urged to exercise its powers conferred by O 8 r 59(1) and correct the errors which Mr. Kua argued are the root cause of these injustices and set the record straight.
27 Moreover, it was submitted that on 25 July, 2007, the purported variation of the orders made on 12 February, 2007, were made as a result of a misapprehension of the law, i.e. the provisions of s.12 (3) of CBAS Act, which provides:
"12. Judgment against the State
(3) Where in a claim against the State the State is in default within the meaning of the National Court Rules, then notwithstanding, that a plaintiff’s claim for relief is for a liquidated demand, judgment shall not be entered against the State for the sum claimed unless the claim relates to a debt only, and in all other cases judgment shall be entered for damages to be assessed and, where appropriate, for costs."
28 Mr. Kua contended that Sakora J, did not address his mind to this provision. In any case, it was argued that by operation of this provision (law), because the plaintiffs’ claim does not relate to a debt only, judgment could not possibly be entered against the defendant for the specific amount of AUD$4, 490, 125.00. Mr. Kua submitted that the plaintiffs’ Statement of Claim pleads several causes of action. He placed reliance on the case of State & Ors v Brian Josiah & Ors SC792 in which the Supreme Court considered s. 12 (3) of the CBAS, Act. In that case, the Supreme Court in its unanimous decision said:
"Although not referred to by counsel, particularly counsel for the Appellants, the third error relates to the amount of K4, 673,420.73 ordered by the learned trial judge against the appellants in default of pleadings. As we have indicated earlier in our judgment, the claim was not for a liquidated demand. It was also not a claim for a debt only. Consequently, in granting an order for the amount claimed in default of pleadings, the learned trial judge acted contrary to the provisions of s.12 (3) of the Claims By and Against the State Act".
29 Mr. Kua therefore contended that this provision prohibits the payment of the specific amount of AUD$4,940,125.00 with interest to the plaintiffs.
30 Mr. Kua also submitted that this is not the case where the defendant is trying to rehash the arguments it has already exhausted or made to the Court because on 12 February, 2007, the lawyer for the defendant was not given the opportunity to address the Court on the plaintiffs’ application for default judgment. He said the lawyer for the defendant asked for adjournment but it was refused and the Court proceeded to hear the plaintiffs’ application and went on to grant the default judgment without giving the defendant an opportunity to be heard. Therefore this is the first time the defendant is making representation to the Court to correct the obvious error created as a result of the defendant not being allowed to assist the Court at the time when the application was made by the plaintiffs for default judgment. In other words, the defendant had no opportunity to raise these arguments until now. Had the defendant been allowed to address the Court on 12 February, 2007, the provisions of s.12 (3) of the CBAS Act would have been pointed out to the Court. This is therefore the first opportunity for the defendant to raise these issues and to assist the Court to correct the error on the records.
31 It was finally submitted that the purported corrections and variations made by Sakora J on 25 July, 2007, to the orders made on 12 February, 2007, do not have any binding effect, because the issues did not properly arise before him on 25 July, 2007. On that day, his Honour was presiding over proceedings in OS No. 338 of 2007, to hear and consider the plaintiffs’ application for leave to apply for judicial review. It was therefore contended that, any remarks his Honour made including correcting and varying the orders made on 12 February, 2007, were obiter dicta with no binding effect. Furthermore, it was argued that, his Honour had no powers to correct and vary the orders made on 12 February, 2007, which had already been entered and no leave was sought by the plaintiffs for the variations. Mr. Kua also submitted that even if the issues had properly arisen before his Honour; s. 12(3) of the CBAS Act, would still operate as a bar to a judgment being given to the plaintiffs for the liquidated amount of $4,940,125.00.
32 Mr. Kua submitted that the defendant has made out all the necessary grounds for the minute to be corrected of the obvious errors which are clearly clerical in nature.
(b) By the plaintiffs
33 The plaintiffs raised two main objections to this application. One is based on res judicata and the other on estoppel. The objections were raised together. As I understand the submissions by Mr. Harrison who appeared for the plaintiffs, these objections are raised on the basis that the issues which the defendant is raising before me had already been considered and determined by Sakora, J on 25 July, 2007. Mr. Harrison therefore argued that the defendant is estopped from raising the same issues by reason of the doctrine of res judicata. As to estoppel, it is also raised on the basis that the specific amount of AUD$4,490.125.00 claimed is a debt owed to the plaintiffs by the defendant which arose from a promise made by the defendant under a contract, that it would pay the amount to the plaintiffs for services rendered. Mr. Harrison therefore argued that the judgment entered (the minute) and the Certificate of Judgment are proper and valid and they reflect the actual orders pronounced on 12 February, 2007. He said the specific amount claimed is a debt properly arising from a breach of that promise by the defendant, thus it was properly awarded to the plaintiffs on 12 February, 2007, which was subsequently confirmed by Sakora J, on 25 July, 2007.
34 Mr. Harrison also contended that while it is true that the Court on 12 February, 2007, ordered default judgments to be entered with damages to be assessed, the Court also said that "orders sought" in the Notice of Motion were granted. He argued that, this is clear from the transcript of the proceedings on 12 February, 2007. He argued that any doubt arising from the orders made on 12 February, 2007 were clarified and laid to rest on 25 February, 2007 when Sakora, J, expressly corrected and varied the orders he made on 12 February, 2007. All these are deposed in the affidavit sworn by Stephen John Rose on 18 October, 2007, which the plaintiffs relied upon. The transcript of 12 February, 2007, is Annexure "B" to Mr. Rose’s affidavit. It is in 9 pages and the part relied upon by Mr. Harrison appears at page 8 in the second paragraph. The paragraph reads:
"The Court grants the Orders sought, that is, for the entry of default judgment and default judgment pursuant to O 12 rr 25, 26 and 28, Mr. Rose and Mr. Nandape. There has to be an assessment of damages, gentlemen. But judgment on liability is ordered to be entered and all those matters you claim, Mr. Rose, will have to be – unfortunately, you have to go to Court to put material evidence before the Court for assessment." (emphasis mine)
35 The plaintiffs therefore rely on the early part of the opening sentence in this paragraph where the Court said, "The Court grants the orders sought,.." It was argued that the only way one can read this phrase is the orders sought in the plaintiffs’ Notice of Motion that was moved on 12 February, 2007, one of which was the claim for the specific amount of AUD$4,940,125.00, were all granted by the Court.
36 The plaintiffs also rely on certain parts of the transcript of the proceedings on 25 July, 2007, where they say Sakora J corrected and varied the orders of 12 February, 2007. They appear in Annexure ‘D’ to Mr. Rose’s affidavit. The relevant parts of the transcript are at pages 7, 8, 9 and 11 and his Honour at pages 7 and 8 said:
"Issue was taken by Mr. Palek of counsel in relation to orders that I made on 12 February this year and entered on the 14 contended that the damages that were awarded were not liquidated damages so that the amount of AUD$4,940,125 as special damages together with general damages that were claimed should be assessed. And in support of this contention, there was the transcript from the day that I heard the motion and gave the order. There was also the Certificate of Judgment that the Registrar signed and there was the endorsement on the file by my Associate. And I concede that from a perusal of those documents, the Order that I gave or made were Orders pursuant to O 12 rules 25 and 26. Those are the circumstances under which an application for default judgment can be made but more importantly Rule 28 which is an order for damages to be assessed and the initial order ought to have been an order granting – sorry, let me say that again – judgment on liability only and the assessment of damages to take place at a future date in relation to the claims that were made.
So on an interpretation of liquidated and liquidated damages, I have with respect in the many adjournments and deferrals that have made you suffer had the opportunity to look at the case law and Rules in relation to what are liquidated damages and liquidated damages. Rule 27 authorizes the award of liquidated damages. Rule 28, unliquidated where the claim must be tried by a full blown trial where evidence will be produced.
Now, just noting the matters that I have had assistance from and mentioning a few of these because in the end result whilst I concede that what Mr. Palek says is what I said in the transcript and the endorsements of the file by my Associate, the Certificate of Judgment is different and so it does not reflect what I said. The transcript is, the transcript that is out.
...My conclusion is that the amount that was claimed as special damages were liquidated damages and therefore what I said that are reflected in the transcripts were said in error.
So the special damages or liquidated damages properly to be granted and the law as I discussed it with the assistance of those resources and I have mentioned, Rules and case law bear me up on this... And from my canvassing of the case law, I concluded that the amount that was claimed as special damages were properly to be characterised as liquidated damages and ought to have been awarded pursuant to r 27. And that the general damages or frustration, distress and in other situations, there are medical expenses that are incurred as a direct result of breaches of contracts, all of those come under general damages and they have to be established by evidence."
37. Then at page 9 in the second paragraph, his Honour said:
"Now, judgment was entered, certificate of judgment was issued and contrary to the transcription and the endorsement what property ought to have been done was to make an order for liquidated damages, that the over AUD$4 million claimed properly to be characterised as liquidated damages capable of award under r 27 of O 12, following from rr 25 and 26."
38. Then at page 11 in the second paragraph, his Honour said:-
"So in the end result, the orders made in default of the filing of a notice of intention to defend and the defence itself within the time limits generously given under the Claims By and Against the State Act and not available to other litigants as required under the ordinary National Court Rules, the orders would have to be rectified to reflect the proper situation, and that is the claim was a mixed claim with liquidated amounts identifiable able to be calculated, determine from available sources, no issue taken with them, so they should have been granted and it was remiss of this Court. I unreservedly acknowledge that it was remiss of the Court to not grant special damages pursuant to r 27.
General Damages, yes, properly ordered to be assessed by the parties filing the necessary evidence, if not oral then usually it is affidavit evidence so that the Court can convene to assess the damages as to whether or not those general damages that were claimed ought to be granted. Judgment on liability, Judgment on liquidated damages in relation to special damages and then judgment on general damages, stress, frustration and all those adverse effects that can have on a person unable to obtain justice or relief. And those have been recognized in this
jurisdiction."
39 Mr. Harrison argued that from these excerpts of his Honour’s rulings on 25 July, 2007, it is clear that his Honour corrected the orders he made on 12 February, 2007. He also argued that the corrections were consistent with what his Honour said on 12 February, 2007 by the phrase: "The Court grants the orders sought." It was therefore argued that the liquidated amount of AUD$4,940,125 claimed by the plaintiffs should be paid with interest and the general damages as to distress, frustration and so forth be assessed pursuant to O 12 r.25, r.26, and r.28 as ordered on 12 February, 2007. Mr. Harrison also argued that, Sakora, J made it very clear on 25 July, 2007, that the liquidated amount of AUD$4,940.125.00 had to be paid as it was claimed pursuant to O 12 r 27 of the National Court Rules.
40 Mr. Harrison further argued that estoppel operated against the defendant because liquidated amount arose out of a breach of contract by the defendant, which the defendant cannot deny. He argued that the defendant had agreed to pay for services rendered, and the plaintiffs have rendered those services. In support of this submission, he placed reliance on a passage in Cross on Evidence Third Edition, at page 271, where the learned author says:
"Where an estoppel binds a party to litigation, he is prevented from placing reliance on or denying the existing of certain facts...From the point of view of the party in whose favour they operate, estoppels could be regarded as something which renders proof of certain facts unnecessary; also it is possible to argue that estoppel is better regarded as a matter of pleading or substantive law, rather than a rule of law."
Estoppels are of three kinds – by record, by deed and by conduct. After each of them has been considered, reference will be made to the question of the right place for estoppel in a comprehensive exposition of the law."
"In the frequently quoted words of WIGRAM, V.C., "where a given matter becomes the subject of litigation in, and of adjudication by, a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.
(2) Issue Estoppel
The second kind of estoppel by record inter parties is often called "issue estoppel’; it may be regarded as an extension of the first for, to quote Lord Denning, M.R., "within one cause of action, there may be several issues raised which are necessary for the determination of the whole case. The rule then is that, once an issue has been raised and distinctly determined between the parties, then, as a general rule, neither party can be allowed to fight that issue all over again.
42. Mr. Harrison also relied upon a passage in Cheshire & Fifoot’s Law Of Contract Eighth Australian Edition, at page 1077 where the learned authors amongst other things, say that a debt upon proof has to be paid. Mr. Harrison further relied on a passage in Bullen & Leake & Jacob’s Precedents of Pleadings Thirteenth Edition at page 1078, where the learned authors say that debt arises where there is part performance of the contract and once the contract is performed the amount equivalent to the service provided should be paid, i.e, on quantum meruit basis. It was therefore submitted that the plaintiffs having performed their part of the contract by rendering services, the defendant is obligated to pay for those services.
43 Reliance was also placed on Ritchie’s Supreme Court Procedure (NSW), at pages 262, 263 and 264 which deal with slip rule, in particular, a part in paragraph 20.10.2 where the learned author says a judgment or order can be corrected or set aside after entry, if the judge had misinterpreted the facts or was misled. The case of Hall v. Harris [1900] VicLawRp 8; (1900) 25 VLR 455 was cited in support of this proposition. Mr. Harrison also relied upon a part in paragraph 20.10.3, where the learned author discusses the courts inherent powers to amend an entered judgment if it does not represent the true intention of the actual judgment or order pronounced by the court. The case of Lawrie v. Lees (1881) 7 App Cas 19, was cited in support of this proposition.
44 It was also argued that the issues before me are not matters that can be dealt with under O 8 r 59 (1) of the National Court Rules, and the only way these issues can be properly addressed is in an appeal to the Supreme Court as the issues are substantive. Mr. Harrison’s argument was based on his contention that the defendant is in effect asking this Court to review Sakora, J’s rulings, which he submitted can only be properly done on appeal. It was therefore, submitted that, I do not have the power to hear and decide the issues raised by the defendant.
Reasons for decision
45 It should be stated at the outset that my task here is not to review the rulings made by Sakora, J, on 25 July, 2007, but to correct clerical errors which the defendant contends are obvious on the face of the minute (judgment entered) of the orders made on 12 February, 2007. I have been urged to do this in the exercise of the inherent powers conferred by O 8 r 59 (1) of the National Court Rules. It goes without saying that any correction made to the minute of those orders will have a carry over effect on the Certificate of Judgment as the Certificate of Judgment forms part of the Court order. See, Isidore Kaseng v. Michael Debege (supra). I should therefore look at the orders made on 12 February, 2007 and the minute of those orders and decide whether there are clerical errors in the minute which should be corrected.
46 Having said the above, it should also be said that in the course of deciding whether there are corrections to be made to the minute of the orders made on 12 February, 2007, I am not precluded from making observations on the rulings made by Sakora, J on 25 July, 2007, as they relate to the issues before me.
47 The first issue that arises is whether I have the power to decide the issues raised by the defendant. This is an issue raised by the plaintiffs, who have argued that these issues should be raised in an appeal, and that I do not have the power to decide them.
48 A related issue that arises, although not raised by the plaintiffs, is whether I can correct the errors which arise from the orders made by another judge (Sakora J). This is a question of law and I propose to address it first. In my opinion, the question turns on the application of the established principles on slip rule. It is sufficient to start with the case of Wallbank and Mimifie v. The State (supra), a case relied upon by Mr. Kua. In that case, the Supreme Court adopted the principle enunciated in Autodesk Inc. v. Dyson (No. 2) (supra). The principle applies to a slip made by a court in an earlier judgment, which the same court would be required to rectify. Thus, the point to note here is that, such slip would be by the Court; which may arise as a result of a court proceeding on a misapprehension as to the facts or the law. This principle was expounded by Mason CJ in his judgment in Autodesk Inc. v. Dyson (No.2) at pages 302 to 303, where his Honour said:
"These examples indicate that the public interest in the finality of litigation will not preclude the exceptional step of reviewing or rehearing an issue when a court has a good reason to consider that, in its earlier judgment, it has proceeded on a misapprehension as to facts or the law. As this is a final court of appeal, there is no reason for it to confine the exercise of its jurisdiction in a way that would inhibit its capacity to rectify what it perceives to be an apparent error arising from some miscarriage in its judgment. However, it must be emphasized that the jurisdiction is not to be exercised for the purpose of re-agitating arguments already considered by the court; nor is it to be exercised simply because the party seeking a rehearing has failed to present the argument in all its aspects or as well as it might have been put. What must emerge, in order to enliven the exercise of the jurisdiction, is that the court has apparently proceeded according to some misapprehension of the facts or the relevant law or that this apprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing. The purpose of the jurisdiction is not to provide a backdoor method by which unsuccessful litigants can seek to reargue their cases".
49 The situation presented to me by the instant case however, is different in that, it is more akin to the situation in Isidore Kaseng v. Michael Debege (supra) where an error to be corrected is a clerical error which is made not by the court but by someone outside the court; such as a party to the proceedings when taking out orders or a clerk of the court or an Associate when drafting the orders as it sometimes occurs. In the instant case, the errors are said to have occurred when Mr. Rose, in the course taking out the orders (the minute) for the orders made on 12 February, 2007, mistook those actual orders by putting or including orders which were never made on 12 February, 2007. Thus, the errors being clerical, the defendant is invoking O 8 r 59 (1) of the National Court Rules, for this Court to correct, which the defendant says are obvious on the face of the minute. This was the approach adopted in Orogen Minerals Ltd and Isidore Kaseng. It should however be noted that the situation in Orogen Minerals Ltd was slightly different to this case and in Isidore Kaseng because in Orogen Minerals Ltd, the error was an omission made by the trial judge, in not ordering interest on the amount awarded. The error was corrected by Sakora, J by ordering interest on the amount awarded. His Honour did so in the exercise of the powers conferred by O 8 r 59(1).
50 The inherent jurisdiction of the Court under O 8 r 59(1) to correct such errors is wide and an all embracing description of the Court’s power was stated by Sir John Donaldson MR, in R v Cripps, ex parte Muldoon and Others [1984] 2 All ER 705 at 710 where it was said:
"It is surprisingly wide in its scope. Its primary purpose is akin to rectification, namely, to allow the court to amend a formal order which by accident or error does not reflect the actual decision of the judge....But it also authorizes the court to make an order which it failed to make as a result of the accidental omission of counsel to ask for it....It even authorizes the court to vary an order which accurately reflects the oral decision of the court, if it is clear that the court inadvertently failed to express the decision which it intended....However, it cannot be over-emphasised that the ‘slip rule’ power can never entitle the trial judge or a court to reconsider a final and regular decision once it has been perfected, even if it has been obtained by fraud.... We say ‘final’ decision because different considerations apply in the case of orders which are provisional, because, for example, they were obtained ex parte, and we say ‘regular’ because again different considerations arise where the order may be said to be irregular for any of a variety of reasons".
51 Here, I am asked to exercise the same powers to correct the apparent clerical errors in the minute of the actual orders made on 12 February, 2007. But before I decide whether I have the power to correct the errors, I should return to the earlier issue which arises from the plaintiffs’ contention that the issues raised by the defendant should be raised in an appeal. To my mind, this issue turns on what effect can be given to his Honour’s rulings on 25 July, 2007, which purportedly corrected and varied the orders made on 12 February, 2007.
52 Having considered the arguments advanced by both parties, I am of the respectful opinion that the rulings made by his Honour on 25 July, 2007, have no binding effect. This view is based on the fact that the rulings were obiter dicta, in that, at the time his Honour made the rulings, the issue in respect of correcting and varying the orders made on 12 February, 2007, did not properly arise before him. At the time, his Honour made those rulings he was presiding over proceedings in OS 338 of 2007, and the issue before him was the plaintiffs’ application for leave for judicial review for grant of mandamus. That was the only issue pleaded before him by the plaintiffs. Furthermore, the orders made on 12 February, 2007, were made in these proceedings, i.e WS No. 1371 of 2006, which is completely different from OS No. 338 of 2007 proceedings. In this regard, I have noted that in relief orders No. 3 in both the Originating Summons and the Notice of Motion that were before his Honour, the plaintiffs sought orders for the Court file in these proceedings, i.e WS No. 1371 of 2006, to be brought before the Court; but the transcript of the proceedings of 25 July, 2007, shows that no order was made granting that relief nor was the file brought before the Court. The end result with respect is that the matter was not before his Honour, thus the rulings made by his Honour on 25 July, 2007, which purportedly corrected and varied the orders made on 12 February, 2007, were obiter dicta, thus, having no binding effect. See, Ralph Rakhinand Premdas v. The State (SCR No. 1 of 1979) [1979] PNGLR 329 at 368, and Supreme Court Reference No. 1 of 1997, SC 526.
53 There are several points of law which also arise as a matter of course which also operate as a bar to the rulings made by his Honour on 25 July, 2007, from having any effect. First, the orders which were made on 12 February, 2007, had already been entered and therefore, they could not be varied without leave of the Court; O 12 r 8(2) of the National Court Rules. There is no evidence that the plaintiffs sought leave for those variations. As a general rule, the Court had no power to vary the orders after they were entered. See, Woods v. Sheriff of Queensland (1895) 6 QLJ 163 at 164 and 165; Ivanhoe Gold Corp Ltd v. Symonds (1906) CLR 642 at 670 and Vitous v. Tuohill [164] VLR 624 at 631. The basis for this rule was stated by Gibbs J (as he then was) in Bailey v. Marinoff [1971] HCA 49; (1971) 125 CLR 529 at 539, where his Honour said:
"The rule rests on the obvious principle that it is desirable that there be an end to litigation and on the view that it would be mischievous if there were jurisdiction to rehear a matter after a full hearing."
54 On 12 February, 2007, there was a full hearing of the plaintiffs’ application for default judgement. Therefore the only way his Honour could correct and vary the orders made on 12 February, 2007, on his own motion was if he had misunderstood facts or was misled. See, Hall v. Harris (supra), and such variations would be for the purposes of bringing the minute or the orders entered containing the errors into harmony with the actual orders pronounced. See, Lawrie v. Lee (supra). But there is no evidence that his Honour misunderstood facts or was misled when he made the orders on 12 February 2007. Secondly, the variations made on 25 July, 2007, were substantive alterations to the original orders made on 12 February, 2007, thus it was with respect, not open to his Honour to make those variations. See, R v. Cripps, ex parte Muldoon and Others (supra). Thirdly, the requirements of s.12(3) of the CBAS, Act, which are fundamental to all claims against the State, were with respect misapprehended. The section provides that, where a claim against the State is for a liquidated demand, unless the claim relates to a debt only, no judgment can be entered against the State for the liquidated amount claimed. Thus, where a claim against the State is for a liquidated amount as well as for general damages, as is the case here, the Court is only empowered to enter judgment for damages to be assessed, in the event of a default by the State. See, State & Ors v. Brian Josiah & Ors (supra). The counsel did not bring this issue to the attention of his Honour. Thus, his Honour’s rulings on 25 July, 2007, in that regard also appear to have been made per incuriam.
55 The end result is the orders made on 12 February, 2007, remain, valid and unaltered.
56 The plaintiffs have also argued that in the orders made on 12 February, 2007, his Honour granted the orders sought in the Notice of Motion thus, the judgment was given for the liquidated amount of AUD4,490,125.00, which was one of the orders sought in the Notice of Motion. They relied on the phrase: "The Court grants the orders sought...", which appears in the opening sentence of the orders made on 12 February, 2007. I reject this argument for two reasons. First, when one reads the whole of his Honour’s ruling, there cannot be any doubt that judgment on liability was entered for the plaintiffs, but the damages were to be assessed. That was the clear intention of the actual orders pronounced. Secondly, if there was any doubt remaining on those orders, his Honour subsequently made it crystal clear on 25 July, 2007, that on 12 February, 2007, he ordered default judgment to be entered against the defendant with damages to be assessed. He also said, after considering the relevant case law, he realized that he had made an error on 12 February, 2007. His Honour then went on to correct what he said was an error in the orders he made on 12 February, 2007. The intention of the actual orders pronounced must be deduced from the whole of the judgment. The plaintiffs cannot nit pick on a single phrase in the judgment and rely on it to say that the judgment was for the amount they claim. That was in my respectful opinion mischievous and amounted to an abuse of process. It suffices to note that his Honour also did not agree with the plaintiffs on this point.
57 Having decided that orders of 25 July, 2007, have no binding effect, the issues of res judicata and estoppel which the plaintiffs raised in respect of those rulings also have no basis. They can only arise for my consideration, if they related
to the orders of 12 February, 2007, because that is what I am left to consider.
58 I return now to consider the question of whether I have the power to correct the errors contained in the minute. I am of the firm
view that I have the power to correct any errors in the minute because such errors would be clerical, which were made by a party,
and therefore are of the kind to which O 8 r 59 (1) of the National Court Rules applies. See, Muir v. Jenks [1913] UKLawRpKQB 82; [1913] 2 KB 412 and Shaddock & Assocs Pty Ltd v. Paramatta City Council [1982] HCA 59; (1982) 151 CLR 590. It follows that the issues raised by the defendant are not matters which have to be raised on appeal. They are matters which are
within the competency of this Court to deal with. This principle was stated by Lord Watson in Hatten v. Harris [1892] A.C 560, when his Lordship said:
"Where an error of the kind has been committed it is always within the competency of the Court, if nothing has intervened which would render it inexpedient or inequitable to do so, to correct that record in order to bring it into harmony with the order which the judge obviously meant to pronounce. The correction ought to be made on motion, and is not matter (sic) either for appeal or rehearing."
59 Furthermore, for the reasons already given, although the orders made on 12 February, 2007, were made by another judge, I have the power to correct the errors in the minute. This, as I alluded to earlier was the approach taken by the Court in Orogen Mineral Ltd and Isidore Kaseng. See also, Woods Sheriff of Queensland (supra) and Hatchinson v. Nominal Defendant [1972] 1 NSWLR 443. See, also R v. Cripps ex parte Muldoon and Others (supra), where it was said at page 710:
"The ‘slip rule’ power is not a power granted to the trial judge as such. It is one of the powers of the court, exercisable by a judge of the court who may or may not be the trial judge who was in fact the trial judge."
60 The correction to be done here is to delete from the minute the orders regarding the payment of $4,940,125.00 with interest, which the Court never made but were included by Mr. Harrison when taking out the orders. This Court in that regard has the inherent powers to correct the errors. See also, Tauro v. Tauro (1897) 14 WN (NSW) 115.
61 As to the Certificate of Judgment, it is a court document, authenticity of which derives from the judgment entered or the minute of the actual order given, thus the corrections made to the minute must also flow on to the Certificate of Judgment. There is another reason why the Certificate of Judgment must be corrected. It does not conform with Form 1 in the Schedule to the CBAS Act, as required by s.13(2) of that Act, in that under that Form, the Solicitor General has a choice to either endorse or not to endorse the Certificate of Judgment. It is appropriate that I set out in full Form 1 in the Schedule to the CBAS Act, for ease of reference.
SCHEDULE
PAPUA NEW GUINEA
Claims By and Against the State Act
Sec. 13 (2)
CERTIFICATE of JUDGEMENT.
A.B.V. The Independent State of Papua New Guinea
I certify that A.B; of , on 19 , did obtain a judgment of the (name of court) in his favour, and that by such judgment the sum of K was awarded to him.
I certify that –
(a) the judgment may be satisfied
OR
(b) the State proposes to take further action in this matter and satisfaction of judgment cannot take place.
Dated ..........19......
Registrar (or clerk).
(name of court)
(Registrar (or Clerk)
(Name of Court).
62 It can be seen from this that the Certificate of Judgment issued on 20 February, 2007 contains serious clerical mistakes and omissions. The Certificate of Judgment not only reflects the mistake in the minute of the orders made on 12 February, 2007, but it has also omitted paragraph (b) above which provides:
(b) the State proposes to take further action in this matter and satisfaction of the judgment cannot take place.
63. This omission in the Certificate of Judgment is fatal to the plaintiffs because, it effectively denied the defendant, a right that is availed to it by s. 13(2) of the CBAS Act, to decide whether further action should be taken on the matter. Furthermore, it does not reflect the actual orders pronounced by the Court on 12 February, 2007.
64 It follows that the Certificate of Judgment is also rendered invalid by these errors and omissions.
65 In the result, I am compelled to grant the relief sought by the defendant in the Notice of Motion filed on 15 October, 2007. I therefore grant the Orders in terms of relief orders Nos. 5, 6, 8, 10 and 11 in defendant’s Notice of Motion with slight amendments to relief order No. 5. Thus, the Orders of the Court are as follows:-
" 2. Judgment for liability is entered against the defendant with damages to be assessed at a time convenient to the parties."
66 Orders accordingly.
___________________________________
The Plaintiffs in Person
Posman Kua Aisi Lawyers: Lawyers for the defendant
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