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Olsson v Solomon Time Ltd [2024] SBCA 23; SICOA-CAC 37 of 2022 (18 October 2024)

IN THE SOLOMON ISLANDS COURT OF APPEAL

JUDGMENT OF THE COURT

Introduction

1. On 6 November 2009 William Fredrick Olsson and Gloria Elizabeth Olsson [the Appellants’] obtained judgment in the High Court against Solomon Time Limited [‘Solomon Time’]. On 6 July 2010 the Appellants obtained an enforcement order against Solomon Time. Solomon Time is now in liquidation.
2. On 25 July 2018 the Appellants obtained an enforcement order from the Registrar, against Pamela Kimberly who was a director of Solomon Time. Pamela Kimberly applied to the High Court for a stay of the enforcement orders against her. The ruling in that application was delivered on 9 July 2021. At paragraph [41] of that ruling the following orders were made:
   • “41.1 The enforcement order dated 25 July 2018 be stayed.
   • 41.2. The enforcement of the Olsson judgment debt against K’s property be suspended.
   • 41.3. The proposed sale by public auction by the Sheriff of land parcel, Nos. 192-004-829, 192-004-830, 192-004-831, and 192-004-832 (collectively “the Land”) advertised to be held at the High Court on Friday 12^th October 2018 at 10 am be stayed until further order.
   • 41.4. The Enforcement Order dated 25^th July 2018 and Seizure Order dated 31 August 2018 be set aside, or alternatively be set aside insofar as it purports to bind K whether pursuant to a judgment of the Court of Appeal or otherwise.
   • 41.5. The Notice of Seizure pertaining to the Land and issued by the Sheriff and dated 31^st August 2018 be set aside.
   • 41.6. Thereafter the said proposed sale of the Land be stayed permanently.
   • 41.7. The Olsson pay K’s Costs of and incidental to the application to be assessed if not agreed.
   • 41.8. The Olsson to pay the Sheriff’s cost of and incidental to the proposed sale of land to be assessed if not agreed.
   • 41.9. Current renewed enforcement order that will lapse on 25^th February 2022, if the effect is to recover money or property from K under S.21 of the Act are stayed. Any restraint on K’s property is also set aside.”
3. The Appellants then appealed that ruling to this Court. The grounds of appeal recorded as:
   • “The judge lacked jurisdiction and acted outside his powers and made egregious errors.”
4. The Court of Appeal heard the appeal on 29 September 2022 and delivered its decision on 4 November 2022. The Court dismissed the appeal. The Appellants have now applied for an order to recall the Court of Appeal decision that was delivered on 4 November 2022.

Power to Recall.

5. In Solomon Islands the power to recall a judgment was set out in Lihwei Lau v Land Board and Commissioner of Lands [2023] SBCA 21. This Court said at paragraph 5:
   • “The proper course when there is a final judgment of this Court, where correction is needed, is to apply to recall the judgment and seek the necessary corrections.”
6. In Lihwei Lau v Land Board, the Court of Appeal had confirmed a finding that as a result of fraud and mistake, title to several parcels of land were rectified and returned to Crown ownership. Counsel for the Attorney General had not disclosed to the Court that one of those parcels of land had been subject to a consent order to which the state was a party. In those circumstances had the Court been aware of the consent order in respect of the title of one of the parcels of land, the order for rectification would not have been made in relation to that parcel. The Court allowed a recall of the earlier ruling for the limited purpose of making that correction.
7. The decision in Lihwei Lau v Land Board is consistent with the decision in Short v Ariki [2021] CKCA 2 where the Cook Islands Court of Appeal allowed a recall of an earlier ruling. The Court had determined an appeal which concerned Article 60 (2) and (3) of the Constitution. Article 60 had been amended by section 7 of the Constitution Amendment 2009/17 prior to the earlier Court of Appeal ruling however the original Article 60 and not the amended Article 60 was placed before the Court of Appeal and was relied on by the Court. The ruling had therefore proceeded on the basis of a wrong version of the relevant law. The Court said at paragraph [12] “...when a Court has not had its attention drawn to a legislative provision of plain relevance, or for some other very special reason, the Court may recall its judgment.” The Court referred to the New Zealand Supreme Court decision of Saxmere Company Ltd v Wool Board Disestablishment Company Ltd (No 2) [2009] NZSC 122. In Saxmere the New Zealand Supreme Court said at paragraph [2]:
   • “[2] Three categories of case have been recognised by the New Zealand courts in which a judgment may be recalled if not already perfected. They are conveniently set out in the judgment of Wild CJ in Horowhenua County v Nash (No 2):
   • First, where since the hearing there has been an amendment to a relevant statute or regulation or a new judicial decision of relevance and high authority; secondly, where counsel have failed to direct the Court’s attention to a legislative provision or authoritive decision of plain relevance; and thirdly, where for some other very special reason justice required that the judgment be recalled.”
8. The judgment of Wild CJ in Horowhenua County is reported at [1968] NZLR 632 (SC) at 633.
9. The Appellants have referred this Court to several authorities. The first is from the High Court of Australia, Autodesk Inc and Another v Dyason and Others [1993] HCA 6; [1993] 176 CLR 300. The Court reminded itself that the jurisdiction to reopen a judgment is to be exercised with great caution. At paragraph 4 of the judgment the Court said:
   • “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 and that this misapprehension of the facts or the relevant law and that misapprehension 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 re-argue their cases.”
10. The Appellants have also referred the Court to European Court of Human Rights, Strasbourg, Weeks v United Kingdom Application No 9786/82, Judgment 2 March 1987. The Appellants referred to paragraph 30 of that decision which was not concerned with an application to recall a judgment but with the settled principle of judicial review of decisions of an administrative authority. The Appellants have referred to the parts of the decision that refer to the terms ‘illegality’, ‘irrationality’ and ‘procedural impropriety.’
11. The Appellants have then referred to 101115379 Saskatchewan Ltd v Saskatchewan (Financial and Consumer Affairs Authority) 2019 SKCA 50. While that decision is not the leading authority of the Court of Appeal of Saskatchewan on the issue, it helpfully reviews the decision of Storey v Sazelenchuk [1985] 40 Sask R 241 (CA) which said:
    • “But while many authorities may be cited to the effect that a court has jurisdiction to rehear before the formal order is entered, I have been unable to find any case where after judgment was given on the evidence, as in the present case, a court reheard, reviewed or practically retried a case on the grounds that the court had been mistaken in its interpretation of the evidence; and I am of the opinion that such application should only be entertained under very exceptional circumstances, otherwise there could be no finality to litigation.”
12. The Court went on to discuss special and exceptional reasons for recall. The Court of Appeal at paragraph [14] set out three circumstances in Canada where a rehearing was granted. The first was where a relevant point of law involving the construction of a statute was not argued. The second was where a subsequent decision of a higher Court might affect the outcome. The third was where a relevant statutory provision that governs the case was not brought to the Court’s attention. The Court then set out instances where such an application was refused. The first and third examples, where a rehearing was granted, were similar to the situation before the Cook Islands Court of Appeal in Short v Ariki.
13. The Appellants then referred to a decision of the Employment Court in New Zealand, New Zealand Nurses Organisation v Waikato District Health Board and another [2016] NZ Emp C 89. This New Zealand case has no relevance to the matter before the Court as it was concerned with the Employment Relations Act 2000 that provided as part of that legislation a procedure for seeking a rehearing.
14. We accept that there is a power for the Court of Appeal to exercise a discretion to recall an earlier decision of the Court where counsel has failed to direct the Court’s attention to a legislative provision or authoritative decision of plain relevance, as in Short v Ariki. This situation does not arise in the present case. Also there is such a power for some other exceptional reason such as where a material fact, being one that would have affected the decision of the Court, was not put before the Court. An example of the second situation is Lihwei Lau v Land Board.

The appeal sought to be recalled

15. At paragraph 3 of this judgment the grounds of appeal are set out. The notice of appeal did not set out any basis for the assertion that the judge lacked jurisdiction nor any basis for the assertion he had acted outside his powers. There was nothing put forward in the notice to demonstrate in what way he had made egregious errors.
16. The judge in the Court below had before him an application to stay enforcement proceedings against Pamela Kimberly. This is because following the decision of the Court of Appeal on 11 May 2018 the Appellants had sought and obtained the enforcement order against Pamela Kimberly in her personal capacity. The judge in the High Court granted the application and made orders that implemented that decision. He had as part of his judgment concluded that Pamela Kimberley and two named companies of which she was a director were added to the enforcement orders in 18 November 2011. The Court of Appeal had held in their judgment dated 2 November 2012 that the lower court lacked jurisdiction to add the two companies as he did on 18 November 2011. Pamela Kimberly had not been added on that date. That had occurred the previous year. For that reason the Court of Appeal in 2022 made comments at paragraph 37 that the Court did not agree with the conclusion the judge appears to have reached that the Court of Appeal in 2012 must have struck out the order to join Pamela Kimberly as a party to the enforcement proceedings.
17. The judge in the High Court had ordered that the enforcement order made by the Registrar on 25 July 2018 and a seizure order dated 31 August 2018 were set aside so far as they bound Pamela Kimberly. The Court of Appeal therefore was required to consider whether, in making that order, the High Court judge had jurisdiction to do so or if he acted outside his powers. To determine this issue the Court needed to consider the legality of the enforcement order and the seizure order.
18. One relevant fact was whether the Appellants had brought a claim against Pamela Kimberly under the Companies (Insolvency and Receivership) Act 2009. The Court of Appeal in 2012 made it clear that in order to enforce the judgment against Pamela Kimberly personally, required that course to be followed. Contrary to the submission of the Appellants this Court in 2018 did not overturn that decision. The Court of Appeal was then required to determine whether the Registrar had power to grant leave under schedule 5 of that Act. This Court does not have to agree with the path by which the judge in the lower Court arrived at his conclusion, rather the Court on looking at the evidence must consider whether the rulings made in the Court below were rulings a Court was entitled to make on the available evidence.
19. The importance of commencing proceedings under Companies (Insolvency and Receivership) Act 2009 is that Pamela Kimberly was not a party to the proceedings in which judgment was granted. Even though she was a director of the losing party, she needed to be afforded the opportunity to respond to the claim that she should be personally liable for the debts of the company Solomon Time in accordance with the procedures provided by that Act. It is not relevant that she was examined by the Court when required to submit to such examination.
20. The Court of Appeal considered whether the High Court judge had acted outside his power and whether he lacked jurisdiction to make the orders he made. At paragraph 36 of the Court’s judgment the Court turned to the allegation that the High Court judge had made egregious errors. The Court did not agree with the part of the High Court decision that recorded that the Court of Appeal had in 2012 struck out the order to join Pamela Kimberly as a party to the enforcement proceedings. However that did not make her personally liable for the debts of Solomon Time.
21. The second important fact relevant to the claim against Solomon Time was whether the Appellants had obtained leave under the company legislation to allow enforcement of the judgment debt against Solomon Time after Solomon Time had gone into liquidation. The Appellants have not put any documentation before this Court to show they have done so.
22. This is not a situation where this Court sits on appeal from its earlier decision. The high threshold the Appellants must show is not whether the 2022 decision might have been decided differently, it is whether there was a situation similar to that described in Short v Ariki or in Lihwei Lau v Land Board where the Court had proceeded on a misapprehension of the relevant law or on the central facts that gave rise to the reasons for the decision. As set out those central facts were whether the Appellants had commenced the relevant proceedings under the Companies (insolvency and Receivership) Act 2009 and whether the Appellants had obtained leave to pursue the enforcement proceedings after the liquidation of Solomon Time. We are not persuaded that the Court was misled on either of those two central issues.
23. The authorities referred to make it clear that an application for recall is not an opportunity to re-argue the appeal. The Appellants have set out in the submissions and sworn statement reasons they submit the 2022 Court of Appeal ruling should be recalled.

Signature on the 2022 Judgment

24. The decision of the Court of Appeal was delivered on 4 November 2022. The copy provided has been signed by one of the three judges sitting on the appeal and bears the stamp of the Court of Appeal. The decision was delivered a little more than four weeks following the hearing of the appeal so that it is not unusual for it to be certified as the judgment of the Court by one of its members. The Appellants have put forward no authority or legislative basis for their submission that the manner of signing the judgment renders it invalid. In any event the submission is not relevant to an application for recall.

Jurisdiction of the Court of Appeal

25. The first issue raised under this heading relates to whether Pamela Kimberly was removed from enforcement proceedings by the Court of Appeal orders of 2012. The Court in 2022 correctly found that she had not been removed, but as the Court made plain that did not make her personally liable for the debts of Solomon Time. It could not therefore be said to be a pivotal question as submitted by the Appellants.
26. The second issue raised under this heading alleged that the Court failed to observe procedural rules, determining the appeal on new and novel grounds introduced on the day of hearing. That plainly is not so. The First Respondent did not raise grounds of appeal. She responded to the grounds raised by the Appellant. Fundamental to demonstrating that the High Court judge was in error in quashing the enforcement order was the need to consider whether the order of the Registrar was lawful. If it were not lawful the Appellants would in effect be asking the Court to give effect to an unlawful order. It is irrelevant whether or not the Registrar’s enforcement order was challenged by the Responded earlier. We find the problem arose because of the lack of particulars set out in the grounds of appeal.
27. As set out in paragraph 3 above, the notice of appeal read contained three allegations. The first was that the judge had acted outside his jurisdiction, the second that he acted outside his powers and the third that he made egregious errors. There is nothing pleaded to demonstrate in what way he acted outside his jurisdiction nor outside his powers. No egregious errors were specified. The First Respondent had sought further particulars but it is clear that none were provided. The Court then was left to deal with the issues as presented by the Appellants.
28. The Appellants have submitted that the Court of Appeal is not a Court of original jurisdiction. They submit that the Court has jurisdiction to review matters adjudicated by the High Court. This submission overlooks section 12 of the Court of Appeal Act which provides:
    • “12. For all the purposes of and incidental to the hearing and determination of any appeal under this Part of this Act and the amendment, execution and enforcement of any order, judgment or decision made thereon, the Court of Appeal shall have all the power, authority and jurisdiction of the High Court of Solomon Islands and such power and authority as may be prescribed by rules of Court.”
29. Although the Court of Appeal was asked to hear an appeal by the Appellants against the orders of the judge in the High Court that does not mean that it does not have the powers and jurisdiction of the High Court in addition to its appellate powers. The High Court was asked to stay the orders made by the Registrar in relation to the enforcement of the judgment obtained in the High Court on 6 November 2009. The Appellants complain that there was not a review of the Registrar’s decision. The submission overlooks rule 15.3.18(d) of the Solomon Islands Courts (Civil Procedure) Rules 2007 that prevent the Court from hearing a judicial review unless the Court is satisfied that there is no other remedy that resolves the matter fully and directly. A stay of the Registrar’s orders would resolve the matter fully and directly. There was therefore no power to review the Registrar’s decision as submitted by the Appellants.

The Appellants submitted under paragraph 2.3:

“The High Court made orders to effectively remove Kimberly from the enforcement order. These are the orders that were being appealed.”

30. A review of the orders makes it clear that this is not so. Pamela Kimberly was joined as a party to the enforcement order against Solomon Time. As this Court has said more than once being joined to the enforcement order did not make Pamela Kimberly personally liable for the debts of Solomon Time.
31. There is nothing raised in the Appellants’ submissions under the heading ‘Jurisdiction of the Court of Appeal’ that would entitle the Court to exercise its discretion to recall the decision on this Court delivered on 4 November 2022.

Misapprehension of the Facts

32. At paragraph 3 of the Appellants submissions the Appellant lists what are said to be misapprehension of the facts and the law in subparagraphs (a) to (z). At paragraph (a) the alleged error is whether the Appellants were employed by Solomon Time under one or more contracts. While there may have been only one written contract that could not possibly be an error on a material fact relevant to the personal liability of Pamela Kimberly for the debts of Solomon Time. Subparagraphs (b) and (c) there is no error identified. At paragraph (d) the Court had said that the enforcement order issued in 2010 had expired. The Appellants submit that it had not expired but had been stayed by operation of law. Even if there was merit in this argument, the comment was about an enforcement order against Solomon Time. As the Appellants acknowledged Schedule 5 of the Companies (Liquidation and Receivership) Act 2009 prohibits enforcement or the continuation of enforcement a remedy over or against the property of Solomon Time without the agreement of the liquidator or a Court order. As repeatedly has been pointed out an order against Solomon Time does not make Pamela Kimberly personally liable for the debts of Solomon Time even if she has been joined as a party to the enforcement order. That does not mean the comment by the Court of appeal was wrong or the Court had been misdirected as to the law.
33. Subparagraph (e) alleges a misapprehension of the law relating to the Companies (Liquidation and Receivership) Act 2009. This is not an appeal against the decision of the Court of Appeal, it is an application to recall. There is no allegation that the provisions of that Act were not placed squarely before the Court of Appeal. Subparagraphs (f), (g), (h) relate to the orders made in 2016 and 2017 leading to the Court of Appeal order in 2018. The Appellants submit that the Court in 2022 have misrepresented the decision of the Court of Appeal in 2018. A review of that decision makes it clear that such a submission is without merit. We repeat this is not an appeal from the decision of this Court in 2022.
34. At subparagraph (i) the Appellants seek to change how the Court of Appeal had framed the differences in the enforcement orders of 2016 and 2018. What was set out by the Court of Appeal was accurate and part of the background to the appeal that was heard. The submission that it may have been framed differently is not relevant to the application before this Court. At subparagraph (j) the Appellants referred to paragraph 24 of the Court of Appeal’s 2022 decision and submitted that the facts law and history of the case were misrepresented by the Court of Appeal. A close reading of paragraph 24 shows that the Court had correctly set out the issue for determination. The Court said:
    • “24. With the background set out, we turn to the substantive appeal. Both here and in the court below, the matter turns on whether the order made by the Registrar on 25 July 2018 was properly made. It was that order which was the subject of the hearing in the High Court when the court was asked to stay its effect.

The Court then set out the terms of the order made by the Registrar.

35. At subparagraphs (k) and (l) the Appellants raise the conclusion that the Court drew from an application filed in 2016 for the renewal of the enforcement order against Solomon Time. The Appellants then invited this Court to draw a different conclusion. This discussion is not relevant to the issues of recall. The Court of Appeal was alive to the issues surrounding the history of the enforcement orders of 2016 and 2018. That could not be said to be a material fact that was not before the Court. At subparagraph (m) the Court recorded the timing of an application for a renewal of the 2016 order. The Court was not in error in that. The Appellants complain that although the application for the order was following the Court of Appeal ruling they made no mention of the order of the Court of Appeal in relation to the enforcement order. This cannot be of any relevance to the application before this Court. At subparagraph (n) the Appellants submit that the Court of Appeal acted outside its powers to review the enforcement order and the decision of the Registrar to renew the enforcement order. There is nothing put forward at paragraph (n) to support this submission which is plainly incorrect. The Appellants again use the term renewal of the enforcement order when the Court had explained its reasons for concluding it could not be a renewal and had to be a fresh enforcement order. At subparagraph (o) the appellants challenge the Court’s interpretation of the 2018 Court of Appeal ruling. Their interpretation cannot be correct as the effect of the order was not to renew the enforcement order, it merely put the parties in the position they were prior to the High Court ruling made on 8 September 2016. That was the date of the High Court ruling that was overturned by the Court of Appeal in 2018.
36. At subparagraph (p) there is no suggested error but the Appellants submit that the intent of the Court of Appeal in 2018 was to renew the enforcement order. The intention of the Court is clear from their orders. There is no merit in this submission which is irrelevant to the issue of recall. At subparagraphs (q) and (r) the Appellants refer to correct statements by the Court of Appeal. The Appellants return to their submission that the decision of the Registrar was a renewal although the Court of Appeal had clearly found otherwise, the Appellants then return to their submission that the High Court heard an application for a stay and not a review of the Registrar’s decision made on 25 July 2018. The submission is plainly incorrect. The effect of the submission would be asking the Court of Appeal to give effect to an unlawful order by the Registrar. That submission is untenable.
37. At subparagraph (s) the Appellants took issue with what was set out at paragraph [24] of the Court of Appeal’s 2022 decision. The Court of Appeal had correctly set out the relevant provisions of the Limitation Act and noted that there had been no request pursuant to section 39 of that Act.
38. At subparagraph (t) there is no error identified. The Court had used the expression “the appellant resort to extreme positions” and the Court gave examples in their ruling. For the Appellants to submit that the ruling was therefore biased towards the First Respondent is without merit. The Court was entitled to make the observation in light of the material before it. At subparagraph (u) the Appellant’s referred to what they submitted was a finding of the Court of Appeal at paragraph [37] where the Court disagreed with three pivotal reasoning made by the High Court judge hearing the application for a stay. The first of those has been dealt with. The Court of Appeal found that the Court in 2012 had not removed Pamela Kimberly from the enforcement orders against Solomon Time. That acceptance that the Court of Appeal was correct to do so removed that as an issue so far as the application for a recall of the Court of Appeal decision is concerned. The Court repeated that the order of the Court in 2012 did not make Pamela Kimberly liable for the debts of Solomon Time. The Appellants have ignored this important finding by the Court. There is nothing in paragraph [37] that supports the submissions made in the rest of subparagraph (u). At subparagraph (v) the Appellants refer to paragraph 38 of the 2022 decision where the Court had drawn their attention to the Court of Appeal decision in 2012 where at paragraph [9] the Court had said:
    • “The application is further compounded by reliance on the provisions of the Companies (Insolvency and Receivership) Act 2009. We are of the view that could only be done in fresh proceedings commenced under the said legislation. His Lordship was under the mistaken belief he had jurisdiction to grant leave to the Respondents under the said Act when no application had been initiated and leave obtained pursuant to the Act.”
39. The Appellants submitted the Court of Appeal in 2012 was in error by not recognising that relief was sought under that Act. We do not consider the Court was in error in 2012. The appellants were plainly made aware of the need to bring proceedings under that Act as long ago as 2012 but in the 12 years that have followed have not done so. At subparagraph (w) the Appellants complain of the use of the term ‘scandalous submissions’. The Appellants submit that this provided evidence of bias. We reject that submission. At paragraph (x) the Appellants query the advice given by the Court of Appeal in 2012 and the submission made by the Appellants that the requirement to commence fresh proceedings under the Companies (Insolvency and Receivership) Act 2009 is misconceived is not helpful to this application as it does not indicate a fresh fact that was not before the Court nor a reference to a legislative or binding decision that could justify an order to recall a judgment.
40. At subparagraph (y) the Appellants argue with the finding by the Court of Appeal that the debt became enforceable in 2009 and that the limitation period had expired. The statement by the Court was correct even though the Appellants have taken steps during the period since then. At subparagraph (z) there is no error of fact or law complained about. The Court recognised the accuracy of the judge’s description of Pamela Kimberly’s intent to escape from liability.
41. As can be seen none of the matters raised in what is described under the heading misapprehension of facts show material facts that were not before the Court in 2022.

Misapprehension of the Law

42. The Appellants then proceed to make detailed submission on the law but none of the matters raised are issues that were not squarely before the Court in 2022. The matters raised relate to what is described as the intent behind the Companies Act 2009 and behind the Companies (Insolvency and Receivership) Act 2009 and the Regulations promulgated under that Act.
43. The Appellants then made submissions as to their interpretation of the Rules of Court in relation to enforcement orders and to the Limitation Act. None of those submissions are new, nor do they assist with the application before this Court.

Conduct of Pamela Kimberly

44. The Appellants made allegations against Pamela Kimberly. The appeal was not about her conduct. It is not relevant to the application before this Court. The principal fact before the Court was that the Appellants have not brought any proceedings against Pamela Kimberly that would make her personally liable for the debts of Solomon Time. What Pamela Kimberly may or may not have done with properties registered in her name then is not relevant to the issues before this Court.

Natural Justice

45. The Appellant complain of the lack of natural justice because in their submission counsel for Pamela Kimberly has argued that the orders made by the Registrar in 2018 were orders the Registrar could not make. The Appellants submitted that the First Respondent was required to bring an application under rule 15 of the Court of Appeal Rules. We reject that submission. Central to the issue about the orders of the judge in the High Court being stayed was the legality of those orders. As set out above that was the issue the Court correctly identified at paragraph [24] of the judgment.
46. The Appellants’ notice of appeal set out no particulars that could focus the arguments on appeal in spite of the request for further and better particulars. The appeal was about whether or not the judge was entitled to grant the application for a stay and the consequential orders. The Appellants could not have been under any misapprehension that the appeal concerned the validity of those orders. The Court of Appeal was entitled to consider the validity of the orders even if the Court did not agree with all the conclusions at which the judge arrived. The Appellants argument amounts to asking the Court of Appeal to approve enforcement orders that could not lawfully be made. While the Appellants had obtained a judgment that they have not successfully enforced, they are under a misapprehension to submit that the Court can ignore the requirements of the law.
47. Under this heading the Appellants repeat the claim of bias. The Appellants complain that in different proceedings the judge the judge had not believed them and when the Appellants appealed that decision to the Court of Appeal, the Court had upheld the Judge’s finding. That judge was one of the three judges who sat on the appeal in 2022. Under this heading the submissions by the Appellants justify the comments made by the Court of Appeal in the 2022 decision. After that submission the Appellants repeated their submission about the First Respondent’s argument before the Court of Appeal, without an application being filed. As set out above this submission has no merit. The Appellants complain of delays in adjudication and raise the principle of laches. These submissions do not assist the Court with the application before it.
48. The Appellants then set out a lengthy attack on counsel for Pamela Kimberly. Having carefully considered those submissions we can find no basis for the concluding that the Court of Appeal was not entitled to make the findings that were made in the 2022 decision.

Conclusion

49. An application to recall a decision of the Court of Appeal requires exceptional circumstances. We accept there is a power to do so if there is a significant fact that would materially affect the decision that was not before the Court through no fault of the Appellants. We can find none. Similarly we can find no basis for an assertion that there is a legislative or other authoritative decision that was not before the Court of Appeal.
50. An application to recall a decision is not simply a re-running of the appeal as the Appellants have sought to do in the present case. In this case the Appellants have not brought proceedings to make Pamela Kimberly personally liable for the debts of her company. The joining of Pamela Kimberly to the enforcement order against Solomon Time did not make her personally liable for the debts of Solomon Time. In the more than eleven years since the Court of Appeal made it clear that fresh proceedings were required the Appellants have chosen to not commence such proceedings. In 2018 when the application for an enforcement order was brought before the Registrar there was no application to extend the time for enforcing the judgment beyond the six years allowed in the Limitation Act.
51. In these circumstances the high threshold required in the application to recall the decision of the Court of Appeal delivered on 4 November 2022 is far from being met. The application is refused.
52. As the Respondents did not take part in the application there is no order as to costs.

Muria P
Gavara-Nanu JA
Lawry JA