Kopung Brothers Business Group Inc v Kasieng [1998] PGNC 95; N1774 (25 September 1998)

Unreported National Court Decisions

N1774

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WS NO. 903 OF 1995
BETWEEN:
KOPUNG BROTHERINESS GROUP IOUP INC.
PLAINTIFF
AND:
SAKAWAR KASIENG
FIRST DEFENDANT
AND:
THE STATE
SECOND DEFENDANT

Mount Hagen

Injib>
1 July 1998
9 July July 1998
15 July 1998
5 August 1998
25 September 1998

PRACTICE AND PROCEDURE - Judgments - Error in judgment - National Court - Jurisdiction of a judge of the National Court to correct error in judgment of another judge of the National - Principles applicable.

Cases Cited

Re Swine -v- Swine [1885] UKLawRpCh 197; [1885] 30 Ch. D. 239

Milson -v- Carter [1893] UKLawRpAC 44; [1893] AC 638

Dick Mune -v- Paul Poto SC 508 [1996]

Counsel

P Kunai for the Plaintiff

No appearance for the Defendants

25 September 1998

INJIA J: This is an application by the plaintiff before me to correct an error in a judgment given by another judge of the National Court sitting at Mt. Hagen on 19 September 1997. The plaintiff having lost his right of appeal by virtue of the expiry of the time limited for lodging an appeal, he seeks to invoke this Court’s (National Court), inherent jurisdiction at common law to rectify a mistake in its own judgment pursuant to the Supreme court decision in Dick Mune -v- Paul Poto SC 508 (1996).

The mistake relates to the correct figure allocated for damages for economic loss in the body of the judgment which was not reflected in the figures under the “summary of awards” section which appears at the end of the judgment by His Honour Lenalia AJ in this same matter. As there appears to be an error on the part of the plaintiff in this application in understanding the correct figures involved, I quote the relevant passage of His Honour’s judgement in full as it appears at pages 13-14 of his judgment:

“On economic loss the plaintiff claims K25,500.00. Unfortunately there is once more no evidence to support so large an amount. First there is no evidence to support how much money the plaintiff was making a month from the trade store while the trade store was in operation. It is assumed by witnesses for the plaintiff that monthly profits made from operating the trade store they would have made K1,500.00. The plaintiff basically claims for the months from May 1994 to September 1995 some 17 months times K1,500.00 amounts to K25,500.00. Whilst on this, there is an allegation by the Registrar of Companies that the plaintiff had failed to lodge statement of its assets and liabilities pursuant to s 28(2)(f) of the Business Groups Incorporation Act (see Ann. “D”). Despite this, loss of business profits was occasioned to the plaintiff’s conduct of its business affairs for which I am entitled under the Rules to place a value on economic loss. I therefore place a value of K500.00. For the seventeen months while the plaintiff was a going concern the value placed by the Court is simply multiplied by the seventeen (17) months amounts to K10,200.00..........

What is due to the plaintiff is summarised in the following manner:

(a)	Trade store building	K 8,500.00
(b)	Value of stock on hand	K 1,000.00
(c)	Two (2) coffee scales	K 500.00
(d)	Two (2) coleman lamps	K 90.00
(e)	Sundry items	K 500.00
(f)	Economic loss at K750.00 per month x 17 months	10,200.00

The total amount due to the plaintiff is K20,790.00. I therefore enter judgement for the plaintiff in the sum of K20,790.00 due and payable forthwith plus interest to run from the date of issuance of the Writ of Summons. Costs shall follow the event.”

The plaintiff’s notice of motion seeks the following orders:

“1. &##160& Thatfina final Orde Order of the Court made on 19th September 1997 and on 13th October 1997 be amended to read”.

#160;0;Judt is entered for the Plaintiff in the sum of K23,340.00 and interest inst in the the sum osum of K3,681.28, a total sum of K27,021.28”.

The affidavit in support of the plaintiff’s notice motion of Mr. Kunai of counsel for the Plaintiff, sworn on 19 January 1998 reads, in part:

“2. ـ A perusperusal of the Court Judgement reveals that there is an error as to the correct amount of the total judgement as the economic loss figure is incorrect. The correct amounthe jut shoe K23,3K23,340.00 and interest included should beld be K27, K27,021.28 and not K20,790.00 as the total figure for economic loss is not correct. The correct figure for economic loss should be K12,750.00 and not K10,200.00 because in the judgment the economic loss was assessed for 27 months at K750.00 per month.”

The mistake referred to by Mr. Kunai is partly erroneous as much as the figures for economic loss appearing in the “summary of awards” section of the judgment is erroneous. First, the trial judge made it clear at p. 13 of his judgment that he was awarding K500 for economic loss per month for seventeen (17) months which is a total sum of K10,200. But the correct total sum in my calculation is K8,500. Secondly, the trial judge under item (f) of the “summary of awards” section at p.14 said he awarded K750.00 per month x 17 months, bringing the total sum awarded to K10,200. The sum of K750 per month is also an erroneous figure, the trial judge having awarded K500 per month for 17 months. Therefore, item (f) of the summary should read “Economic Loss at K500.00 per month x 17 months = K8,500.00. Thirdly, the plaintiff’s assessment as per Mr. Kunai’s affidavit of K750 x 27 = K12,750.00 months is also wrong. The correct figures should be K500 x 17 months = K8,500.

Having established the error committed by the trial judge, the issue is whether I, sitting as a judge of the National Court, have the jurisdiction to rectify an error in the judgement of another judge of the National Court. It is submitted by Mr. Kunai that I do by virtue of the Supreme Court decision in Dick Mune -v- Paul Poto, ante. In that case, the Supreme Court adopted the statement of principles at common law in re Swine -v- Swine [1885] UKLawRpCh 197; (1885) 30 Ch. D. 239 at 247 and Milson -v- Carter [1893] UKLawRpAC 44; (1893) AC 638 and concluded at p. 13:

“It follows from the foregoing that the trial judge had inherent jurisdiction in common law to rectify the mistake he made in his ruling”.

The point decided in Dick Mune -v- Paul Poto was that the trial judge of the National Court had an inherent jurisdiction at common law to rectify his own mistake made in his judgment. The point before me is different. I am asked to rectify an error in the judgment of another trial judge of the National Court. Do I have the jurisdiction to do so? In my view, the principles of common law are broad enough to grant me jurisdiction to do so as long as I am presiding as a member of the same Court and as long as the correction is made without injustice to the defendant. As Bowen CJ said in re Swine -v- Swine at p. 247:

I think the true view is, as stated by Lord Justice Cotton, that every Court, has inherent power over its own records as long as those records are within its powers, and that it can set right any mistake in them. It seems to me that it would be perfectly shocking if the Court could not rectify an error which is really the error of its own minister. An order, as it seems to me, even when passed and entered, my be amended by the Court at the time when the order was made, provided the amendment is made without injustice, or on terms which preclude injustice”.

The jurisdiction to rectify an error of another judge is discretionary and it must be exercised on proper grounds. These grounds include:

1. Thelavaiityilf tho tria trial judge. If the trial judge is available to exercise the jurisdiction himself, then he should be allowed to do so by all means.

2. &##160;; <60; The >The nature of the error sought to be rectified. If the error is one of form only, the error should be corrected as a matter of course. If the error is one of subs, they errhich doch do not not pertain to findings of fact on the evhe evidence or conclusions of law and application of findings of law to the facts should be open to correction. For to do otherwise would be akin to exercising the appellate Court’s function.

In the present case, the trial judge who made the erroneous decision is no longer a judge of this Court. The mistake that he committed is a simple one pertaining to calculation of figures. I am satisfied the defendant will not suffer injustice if the error is rectified. Therefore, I order: (1) that the figures appearing on page 13 of the judgement, on the last line of the first paragraph, should read K8,500 instead of K10,200. (2) That the figure appearing on page 14 of the judgment, in item (4) should read “Economic Loss at K500.00 per month x 17 months = K8,500.00”. (3) The total amounts appearing twice on the last paragraph on p. 14 (K20,790) of the judgment should read K19,090.

The plaintiff has also sought a specific order for interest at K3,681.28. The trial judge did not calculate interest but made an award for interest generally. In that situation, the provisions of Judicial Proceedings (Interest on Debts and Damages) Act (Ch. No. 52) apply. The parties should reach an agreement on interest in accordance with the provisions of that Act, failing which they could come back to this Court for assessment of interest.

Finally, I do appreciate that the plaintiff may not necessarily agree with my calculations of the correct figures. Therefore, I grant liberty to the plaintiff to re-apply for further corrections of my calculations, if any, within 14 days from the date of this ruling.

Lawyer for the Plaintiff: KUNAI & CO. Lawyers

Lawyer for the Defendant: SOLICITOR GENERAL