CC 220 97 HC
IN THE HIGH COURT OF SOLOMON ISLANDS 

Civil Case No. 220 of 1997

EAGON RESOURCES DEVELOPMENT CO. (SI) LTD AND ANOTHER

V

JOHN REMOBATU

High Court of Solomon Islands
(Muria, CJ.)

Civil Case No. 220 of 1997

Hearing: 9 December 1999 
Ruling: 20 April 2000

J. Sullivan & T. Kama for Plaintiffs 
Steve Watt for Defendant

MURIA CJ: There are two applications before the Court, one, by the plaintiffs and the other, by the defendant. It was agreed that both applications be heard together.

The First Plaintiff’s application

The first plaintiff’s seeks firstly, an amendment to the order of this Court made on 4 October 1999 by correcting the date of making the order. Secondly, it seek to correct the order by deleting the amount, “$184,520.19” and inserting in lieu thereof the amount of “$577,683.82, less SBD equivalent of USD19, 490.50 calculated at the rate of exchange prevailing at 4 October 1999.” Mr. Sullivan of Counsel for plaintiff sought to support the plaintiff’s application under the “slip rule” pursuant to Order 30 r 11 or under the general power of the Court to amend pursuant to Order 30 r 12 of the High Court (Civil Procedure) Rules.

The Original Order of the Court.

The Order of the Court sought to be corrected was made on 4 October 1999 foi1owing an application by the first plaintiff for approval of expenses incurred in connection with the logging operations to be paid out of the total proceeds of the logs extracted and sold. The total proceeds of the logs sold was $577,683.82 and the amount approved and ordered by the Court to be released to the plaintiffs from that amount was $184,520.19.

As far as the Court is concerned, there is no difficulty in applying the slip rule to order correction of the date of the making of the formal order in this matter. The Order was made on 4 October 1999. However, when the formal order was drawn up, it bore the date 23 September 1999 as the date of the making of the order instead.

Order 30 r 11 empowers the Court to correct clerical mistakes in its judgments or orders or errors arising therein from accidental slip or omission. The insertion of the date 23 September 1999 was clearly a clerical mistake and should be corrected. I so order.
The first plaintiff further sought that the order made on 4 October 1999 be further corrected by deleting the amount “$184,520.19” and inserting in lieu thereof the amount “$577,683.82 less the SBD equivalent of USD19,490.50 (calculated at the rate of exchange prevailing as at 4 October 1999).” This second order sought is in the alternative to the application for leave to appeal filed on 3 December 1999 against the judgment of the Court given on 4 October 1999.

Counsel for the plaintiff argued in support of his application that the amount of $184,520.19 was a mistake made by the Court due to an error in calculating the voiul1’1e of logs shipped on board the numerous shipments as shown in Exhibit “WP3” in William Pita’s affidavit sworn on 25 June 1999 and filed on 28 June 1999. No challenge had been made to the Court’s finding of the average costs of production of S8D397.57 per cubic metre of logs nor was there any challenge to Court’s finding on the average volume of milled timber. The Court’s acceptance of Exhibit “WP3” as containing the record of volume and species of logs for each shipment of logs extracted from Bakobakolo land was again not challenged by the plaintiff. The only matter raised by the plaintiff was the mistake as to the number of shipments of logs which were thirteen as shown by “WP3” instead of only three.

Mr. Sullivan of counsel for the plaintiff, in his submission, did not argue that the judgment was wrong but rather it did not reflect the intention of the Court as shown by the reasoning in the judgment. There is force in Mr. Sullivan’s argument. When one turns to pages 4 and 5 of the judgment, there the Court stated:

“In the present case, Mr. Kama urged the Court to release “production costs” to the first plaintiff company from the proceeds of the sale of logs. We are not told how much is that, but I assume that on the basis of Mr. Austin Yam’s evidence, it should be calculated at the average rate of $397.57 per cubic metre of log. Mr. William Pita’s affidavit deposed that Exhibit “WP3” shows the record of volume and species of logs extracted and shipped after the Order of 26 February 1998 and Exhibit “WP4” shows the record of volume of timber extracted and milled from the land in question and which timber included those milled between August 1997 and August 1998, a total of 223.25 cubic metres.

I have considered Mr. Yam’s evidence, and I accept that the average production cost of SBD397 .57 per cubic metre of log is fair and reasonable. Although Mr. Yam’s evidence shows production cost for the period of six months, it demonstrates the type of costs (variable and fixed) expected to be met by the plaintiff logging company in its operation. Of course, it would not be realistic to simply accept that the production costs estimate for one six month period as necessarily applicable to all other periods of operation. Hence in the present case, taking the average production cost of SBD397.57 one still has to go to “WP3” and “WP4” in order to see how much in real term would SBD397.57 produce.

Although Mr. Kama did not specify how much in terms of dollars and cents he sought to be released, paragraphs 6(b) and (c) of William Pita’s evidence are helpful. The volume of logs extracted and shipped after the Order of 26 February 1998 could be ascertained from “WP3” showing the date of shipments and volume of logs shipped.”

It was obvious that the Court accepted “WP3” and “WP4” as containing the records of the volume and species of logs extracted and volume of timber milled after the order of 26 February 1998. Unfortunately through mistake, the Court only took into account the period between 26 February 1998 to end of March 1998 and thus omitting the other shipments up to April 1999.

The order of 26 February 1998 allowed the plaintiff to extract and sell logs already felled from the land in question. The volume of logs extracted and shipped after 26 February 1998 were clearly shown in “WP3” which showed that the shipments were thirteen instead of only three. The period concerned was from 26 February 1998 to 1 April 1999. The Court mistakenly took the period to be only from 26 February 1998 to 1 April 1998 which showed only three shipments. The intention of the judgment of the Court was to allow the plaintiff the costs incurred in connection with the extraction and sale of those logs following the order of 26 February 1998. Such costs indeed must relate to the extraction and shipments of all the logs which were shipped in thirteen shipments. If by mistake or error the intention had not been manifested in the judgment or order, this Court, has the power to correct it, so as to carry out that intention. It can do so under its inherrent jurisdiction or under Order 30 r 11 of the High Court (Civil Procedure) Rules. This principle had been considered in Chessum & Sons -v- Gordon [1901] 1 QB 694, at 698-699 where A.L. Smith, M.R. after referring to the case of Preston Banking Co. -v- Allsup & Sons [1895] 1 Ch. 141 said:

“There was no question in that case of any “accidental slip or omission.” The application was made to the Vice-Chancellor of the County Palatine of Lancaster to rehear an order which he had made with regard to the costs of an application before him, the order having been drawn up and entered. The applicant there wanted to reopen the order as to costs, and to have another order made in its place, not upon the ground that the order as drawn up did not carry out the intention of the Court, but upon the ground that the original order was wrong and ought not to have been made. The Vice-Chancellor held that he had no jurisdiction to alter the order, and this Court affirmed his decision. That is very different case from an application to correct a judgment or order which has been some accidental slip or omission been drawn up so as not to carry out the intention of the Court. Where there has been such a slip there is always power, either under the inherent jurisdiction of the Court or under the provisions of Order XXVIII., r. 11, to correct the error and set the matter right. Order XXVIII, r.11, provides that “clerical mistakes in judgments or orders, or errors arising therein from any accidental slip or omission, may at any time be corrected by the Court or a judge on motion or summons without an appeal.” In my opinion the omission of this item of 160l. 11s. 8d. from the bill of costs carried in for taxation was an “accidental slip or omission” within the meaning of the rule, and the error in the judgment arising therefrom can therefore be corrected “at any time.” The error may be corrected even after the judgment has been drawn up and entered.”

There was an error in the order of the Court in this case and the Court is entitled to correct it on motion or summons. It is an error arising from an “accidental slip or omission” within the meaning of Order 30 r 11 of the Rules.

I therefore order that the order- made on 4 October 1999 be further corrected by deleting the amount “$184,520.19” and inserting in lieu thereof the following: “$577,683.82 less SBD equivalent of USD19,490.50 calculated at the rate of exchange prevailing as at 4 October 1999.”

The defendant’s application

By his notice of motion filed on 2 August 1999, the defendant had come to the Court seeking:

“1. The Plaintiffs’ Statement of Claim be struck out as failing to disclose a reasonable cause of action, and/or, in the alternative, that it is both frivolous and vexatious;

2. Judgment be granted in favour of the Defendant in terms of the Counter-claim with the quantum of damages to be assessed, on the grounds that there is no reasonable defence to the Counter-claim, and/or in the alternative, that the defence is both frivolous and vexatious;

3. The First Plaintiff by themselves, its servants or agents be permanently restrained from entering Bakobakolo land, the boundaries of which have been described in this matter pursuant to the logging agreement signed on 11 October, 1995 or for any other reason whatsoever save that any trees felled prior to the date of service of this order may be extracted and sold.

4 The First Plaintiff to apply into Court forthwith the sale proceeds arising from the sale of logs extracted from the land to date or to be extracted pursuant to the proviso in order 3 herein.

5. The First Plaintiff forthwith to give an account to date of all logs by volume and species extracted from the said land to date and also an account of all royalties paid to the Second Plaintiff or any other person in respect of the said logs.

6. A penal notice be attached.”

Mr. Watt of counsel for the defendant pivoted his client’s case on the argument that the plaintiffs Statement of Claim did not disclose a reasonable cause of action. I think I can deal with this question very briefly. However, before I can do so, it is worth bearing in mind the caution expressed by the Court of Appeal in Leslie Allinson -v- Monique Medlin Civ. App. No.7 of 1996 (Judgment dated 15 April 1997) (unreported) regarding the exercise of the Court’s summary jurisdiction to put an end to an action. Agreeing with Kapi P, in not ordering the amended defence in that case to be struck out, McPherson and Casey JJA said at p.12 of the judgment:

“The jurisdiction to summarily terminate an action is to be sparingly employed and is not to be used except in a clear case where the Court is satisfied that it has the requisite material and the necessary assistance from the parties to reach a definite and certain conclusion.”

The above-remarks were adopted from Barwick- CJ in General Steel Industries Inc. -v-Commissioner of Railways (NSW) (1964) 112 CLR 125. Thus if there are materials before the Court in the present case which raise serious questions for the Court to determine, then it cannot be said that the Statement of Claim does not disclose a reasonable cause of action or that it is frivolous and vexatious.

In the present case, the plaintiff was issued with a licence to fell and remove trees for sale. The prerequisite to the issue of that licence was the lawful execution of the Timber Rights Agreement (TRA) between the company and the representatives of the landowners who had the right to grant timber rights over the land in question. In this case, a TRA was executed and among the representatives who entered into the timber rights agreement with the first plaintiff in this case were the second plaintiff, the defendant and three other trustees. The first plaintiff now relies on that TRA and the licence and says that it has a valid licence to operate in the area covered by the licence. The defendant now says, among other things, that the TRA to which he was party was invalid. Again the defendant also now denies his people being a party to the threats of violence against the first plaintiff’s workers and machinery in August 1997’; resulting in a restraining order made against him and members of his Matupoqe line on 2 December 1997. These and other matters disclosed in the affidavit evidence together with the Statement of Claim and Defence and Counterclaim and Defence to Counterclaim obviously raise a number of serious issues for the Court to resolve. The claim as to the validity or invalidity of the first plaintiff’s licence is a serious matter and must be tried. They cannot simply be brushed aside as disclosing no reasonable cause of action or as frivolous and vexatious.

In those circumstances, the order sought in paragraph 1 of the defendant’s notice of motion cannot be granted and it is refused. The order sought in paragraph 2 is a direct consequence of the order prayed for in paragraph 1 which is refused. That, too, must also be refused. The orders sought in paragraphs 3, 4 and 5 have already been the subject of the order of this Court made on 26 February 1998 and there is no need to deal with them again. I decline to do so. The order for a penal notice under paragraph 6 is unnecessary and is refused.

The result is that the defendant’s notice of motion is dismissed.

Conclusion and orders

Having considered these two applications, the Court has come to the conclusion that the first plaintiff's application must be granted and the defendants application should be refused.

On the first plaintiff’s application:

Order: 

1. The order made on 4 October 1999 and signed, perfected and entered on 22 November 1999 be corrected by deleting the date “23RD DAY OF SEPTEMBER 1999” and inserting therein the date “4TH DAY OF OCTOBER 1999” as the date of the making of the Order.

2. The order made on 4 October 1999 be further corrected by deleting the amount “$184,520.19” and inserting in lieu thereof the amount “$577,68382Iess the SBD equivalent of USD19, 490. 50 (calculated at the rate of exchange prevailing as at 4 October 1999).”

3. Costs of the application be costs in the cause.

On the defendant’s application:

Order: 

1. The notice of motion is dismissed.

2. No order for costs.

(Sir John Muria)
CHIEF JUSTICE