HIGH COURT OF SOLOMON ISLANDS
Civil
Case No. 224 of 2001
HAROLD HILLI
(As Representative of himself and
Family and Members of Nono Tribe)
assclass="MsoNormal" align="center" style="text-align: center; margin-top: 1; margin-bottom: 1">
00">
v
LETIPIKO BALESI And Others
High
urt Of Solomon Islands
Before:
Frank O. Kabui, J
Civil
Case No: 224 of 2001
Date of
Hearing: 27 November 2001
Date of
Judgment: 04th December 2001
Mr. D.
Hou for the Plaintiff
Mr. J.
Apaniai for the 1st - 4th Defendants
Mr. P.
Tegavota for the 6th Defendant
JUDGMENT
to which a Survey Report, “Exhibit “A” was attached.
Finding
by the Court
ass="MsoNormal" sal" style="margin-top: 1; margin-bottom: 1">
The
interim injunction order sought by the Pthe Plaintiffs in their exparte Notice of
Motion filed on 15th August 2001 is in the following terms-
1. &nnbsp;;&nspp;&nsp; &nsp;
...
... ... ... ... .... ... .../spannt>
2. & 2. ... .. ........ .. ... .... ... ...
3. Anninjun tiotraesing nhe 4the 4th and 6th defendants, their
servants or agents or otherwise from further enteNono
and/o
d andsaid tered and/lling extracting and and removremoving
ing
timbetimber fror from them the said said land.”
>
4. &nnsp;&&nsp;;Fuspher to otho other orders deem fit by the court.
font "Time Roma
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5. p;&nssp; And that the costs of this this application be costs in the cause.
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classclass="MsoNormal" style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1">
6 &bsp; ;&nbssp;&nbp; &nsp; r beeadjourned do a date tote to be fixed by the Registrar.
span "EN-GB" styl style="foe="font-sint-size: 12.0pt; letter-spacing: 0pt">
“...That the 4th and 6th defendants, their servants or
agents or otherwise be restrained from further entering Nono land as edged
red on the map
exhibited as “A” herein and/or Ose land and the registered
land described as parcel No. 143-0081-1 as coloured in blue and
green
respectively on the said map for the purposes of felling, extracting,
removing timber and/or round logs from the
said land”...
<
Again,
its about Nono Land, Ose Land Land and Parcel No. 143-008-1. By Summons
filed on 25th October 2001, the 6th Defendant sought a
number of orders, one of which was in the following terms-
..."
1. That paragraph 2 of nhe im erim order dated the 24th
August 2001 be set aside, and or in the alternative order be set aside.
2. &nbs; &nbbsp;&&nbp; &nsp; &nbbp;&n……p; ….
0">
& nbsp;
3. &nnbsp; &nnbsp; That thet the plainplaintiff pays the costs of this application.
4. & 4. That tur coo g tnt sach otch other or further orders as it
sees fit”...
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<
Again,
it refers to the interim injunctive oive order of 24th August 2001
which is about Nono Land, Ose Land and Parcel No. 143-008-1. In my ruling on
6th November 2001, I discharged the interim order of 24th
August 2001 which meant that the interim injunctive order would no longer be
in effect as regards Nono Land, Ose Land
and Parcel No. 143-008-1. This is
all clearly set out in my ruling on 6th November 2001. In support
of his application, Mr. Hou cited Liliau v Trading Company (Solomons) Limited
(No. 2) [1983] S.I.L.R 40, Eagon Resources Development Co. Ltd v Marabatu
(Civil Case No. 220/1997), Shell Company (Pacific Islands) Limited v Korean
Enterprises Limited (Civil Case No. 323/1997), Samson Siamakana v Pirivoroso
and Others (Civil Case No. 253/1999) and Aerolifit International Limited v
Mahoe Heli-Lift (Solomon Islands) Limited and Others (Civil Case No.
387/1995). All these authorities were reviewed by Palmer, J. in the Aerolift
case cited above. Mr. Hou also cited Order 30, rule 11 and Order 43, rule 3
of the High Court (Civil Procedure) Rules
1964 (the High Court Rules). These
orders and rules were also the subject of comment by Palmer, J. in His
Lordship's
judgment delivered on 25th September 2001 in the
Aerolift case above. At pages 2-3, Palmer, J. said,
“...The juri jurisdiction of the court to recall and reconsider its decision with
regards to this case is vested in Order
43 rule 3 of the Rules (see Liliau's
case (Daly CJ) at page 4243), not Order 30 rule 11. Rule 11 of Order 30
deal with
the correction of clerical mistakes and accidental omissions. Rule
3 of Order 43 gives the court in my respectful view much
more than simply
correcting clerical mistakes or accidental omissions. It gives the court
power to recall an order that
it has made but before perfection and have it
reconsidered either on its own motion or on application. Of-course this
discretion is to be exercised judicially”...
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With
these remarksgree. (Also see my judgmentgment in Yee Bing Store Limited v
Yvette Miu Pong Yuen as Executrix of the
will of Henry Ta Tong Yee deceased
Civil Case NO. 12/1997). None of the authorities cited by Mr. Hou is in his
favour.
In Liliau’s case, the issue was that Daly, C.J made “a no order” for
costs following a
discussion with Counsel for both parties. That is, the matter of costs had
been raised but not pursued by Counsel.
However, a change of mind had taken
place and an application for costs was then filed that same day the “no cost
order”
was made. The matter was reopened and the Court dealt with it as
requested. In the Eagon’s case, there had been a mistake in the calculation
of costs. The Court allowed that mistake to be corrected. In the Shell
Company’s case, there had been a mistake of fact that a licence did exist
covering the use of the pipeline. In rejecting
the Plaintiff s application,
Muria, C.J. at page 2 of His Lordship’s judgment said,
“…In
the
present application, crux of the plafs case is that the judgment was
wrong because it wast was made contrary to the
agreed facts and basing on a
Licence which was said to be non-existent. That, if anything, is an attack
on the substance
as well as the correctness of the judgment. With respect,
that must surely be outside the application of Order 30 rule11 of
the High
Court Rules. Equally, it would be an improper use of the inherent
jurisdiction of the Court to correct its own
judgment where the challenge is
to the very basis on the judgment”...
Theimakana’s case is different from this case on the factsfacts and is
therefore irrelevant. The only common that runs feature through these
authorities cited by M Hou is the fact that Order 30 and Order 43, of the
High Court Rules had been discussed or referred
to the judgments delivered
in them Apart from that common feature, they are of no help to the
Applicant’s case. There
was no mistake of any sort in the ruling I made on 6th
October 2001. The discharge of the interim injunction in respect of Nono
Land, Ose Land and Parcel No. 143-008-1 was
my intention. It was the correct
expression of my intention. If the Applicant was not happy with the
correctness of my
intention, they must appeal or somehow set it aside. They
cannot force me to change my mind by resorting to the use of Order
30 and
Order 43 of the High Court Rules. The fact that a road had encroached into
Parcel No. 143-008-1, a fact revealed
only by a survey report conducted
after my ruling on 6th October 2001 cannot be used to alter that ruling.
That fact
was not before me on 27th August 2001 when I heard
the Summons filed by the 6th
Defendant. I do not in any way dispute that fact of the road encroachment
into Parcel No. 143-008-1 but I do say that
it is a fact that may entitle
the Applicant to file a fresh application for an injunction. It cannot be a
reason for
dislodging the discharge of the interim injunction. The
allegation that the Plaintiffs did not at the hearing on 27th
August 2001, expressly ask that the injunction be discharged in respect of
Ose Land and Parcel No. 143-008-1 should have
prevented the Court from
discharging the interim injunction would be a misunderstanding of the true
position. There was
no doubt that the cards were on the table and had to be
played. The 6th Defendant by his Summons demanded that the interim
injunction be discharged in its entirety. There can be no doubt that the
discharge of the interim injunction was meant
to cover Nono Land, Ose Land
and Parcel No. 143-008-1. There was more than enough evidence to show at the
hearing that
there was no case for keeping the interim injunction in force.
There was no reason at that time to do so. This case does not
fall within
the ambit of Order 30, rule 11 nor within the ambit of Order 43, rule 3 of
the High Court Rules. The Applicant’s
application is dismissed with costs.
p classclass="MsoNormal" align="center" style="text-align: center; margin-top: 1; margin-bottom: 1">
F.
O. Kabui
Judge
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