Lauringi v Lagwaeano Sawmilling & Logging Ltd [1998] SBHC 145; HCSI-CC 131 of 1997 (6 April 1998)

CC 131 97 HC

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 131 of 1997

NELSON LAURINGI & OTRS

-V-

LAGWAEANO SAWMILLING AND LOGGING LIMITED & ANOTHER

High Court of Solomon Islands
(Palmer J.)

Civil Case No. 131 of 1997

Hearing: 3rd April, 1998
Judgment: 6th April, 1998

C. Ashley for the Applicant Defendants
G. Suri for the Respondent/Plaintiffs

PALMER J.: The Applicant applies by summons filed 25th March, 1998 to have inter alia, the Orders of the Court dated 25th August, 1997, 6th January, 1998 and Consent Order dated 27th January, 1998 be discharged in their entirety. Grounds relied on were:

“(a) The Plaintiffs were the losing party in the Malaita Customary Land Appeal Case which considered the appeal in respect of the Lagwaeano customary land and had not appealed against the said decision.

(b) The question of ownership of Lagwaeano customary land is not a serious issue to be tried to maintain the injunction.”

The Respondents naturally object on jurisdictional grounds, arguing that the issues raised had been canvassed before this court in an inter partes hearing before Awich J. on 22nd August, 1997 and ruled upon in his judgment dated 25th August, 1997. In essence, though this was not specified by learned Counsel, Mr. Suri, what he was saying was that it would be an abuse of the court’s process for this court to allow this summons to be heard as it would be akin to giving the Applicants a second bite at the cake. They’ve had their chance in the inter partes hearing and the learned Judge had ruled against them. If they disagree with the learned Judge’s ruling then they must do the proper thing and appeal; but not try to have the matter re-heard by another summons. Whether there has been an error of law or fact committed by the learned Judge, the Applicants are estopped from re-arguing these issues before the same court.

The issue in dispute is whether the court has power to allow the parties to re-submit on matters already canvassed and ruled upon by the court, because it was felt by the other party that in the first interlocutory hearing the learned Judge might have committed a mistake whether in law or fact and that thereby the same court should be allowed to amend or set aside its judgment or order.

The general rule of law is as contained in Halsbury’s Laws of England, 4th Edition, Volume 26, at paragraph 556, the learned Authors state:

“As a general rule, except by way of appeal, no court, judge or master has power to rehear, review, alter or vary any judgment or order after it has been entered either in an application made in the original action or matter or in a fresh action brought to review the judgment or order. The object of the rule is to bring litigation to finality, but it is subject to a number of exceptions. For example” a clerical error or an error arising from an accidental slip or omission may be corrected under rules of court or the court’s inherent jurisdiction. The court has inherent jurisdiction to vary or clarify an order so as to carry out the court’s meaning or make the language plain, or to amend it where a party has been wrongly named or described unless this would change the substance of the judgment. The court will treat as a nullity and set aside, of its own motion if necessary, a judgment entered against a person who was in fact dead or an non-existent company or in certain circumstances, a judgment in default, or a consent judgment. Where there has been some procedural irregularity in the proceedings leading up to the judgment or order which is so serious that the judgment or order ought to be treated as a nullity, the court will set it aside. In some cases Acts of Parliament which alter the law retrospectively have given the court express power to rescind, vary or grant relief against previous judgments or orders.

The court has no power to amend or set aside its judgment or order where it has come to an erroneous decision of fact or law, or where new material evidence has come to light, or if it transpires that the judgment or order had been obtained by fraud or false evidence: in such cases relief must be sought by way of appeal or, where appropriate, by separate action to set aside the judgment or order. The court may, however, amend or set aside a judgment or order following a failure to comply with rules of court.”

The grounds relied on by the Applicants with respect had been raised before the court in its earlier ruling dated 25th August, 1997. In respect of the first ground, Mr. Suri points out at bottom of page 1 and top of page 2 of the said judgment, that the said matter was considered by the court. I am satisfied that is correct.

Mr. Suri also points out that the recent Court of Appeal pronouncements in Mega Corporation Limited v. Nelson Kile and Others Civil Appeal No. 1 of 1997 and Allardyce Lumber Company Limited and Another v. Nelson Anjo Civil Appeal No.8 of 1996 on questions of customary ownership and injunctions were raised before the Court. Whether the learned Judge did take these into account or not and whether it is alleged that the said judgment is wrong or not in law is not a ground for this court to review or amend that judgment. If the Applicants disagree with that decision as erroneous in law or fact, the appropriate course of action to take is by way of an appeal. I couldn’t agree more. With respect, this application has been misconceived.

As to the issues pertaining to the felled logs that is a separate issue and subject to the consent orders before this court.

Also Counsels should note that this case came before his Lordship Mr. Justice Awich, who gave judgment in the interlocutory application for injunction and before whom this application should also have been brought. Counsels should not be seen to be choosing Judges as they wish.

ORDERS OF THE COURT:

1. Dismiss Summons filed 25th March, 1998.

2. Costs of the Respondent/Plaintiff to be borne by the Applicants/Defendants.

ALBERT R. PALMER
THE COURT.