Civil
Case No. 162 of 1999
Hearing:
21st August 2001
Ruling:
21st August 2001
Mr. A.
for the Plaintiff
Mrs. A. Tongarutu for the Defendants
RULING
(Kabui,
J):
>
By summons filed on 1st August 2001, the Plaintiff seeks the
following orders-
1.
&nsp; & &nbhe Ruling of g of the Cohe Court in this matter pronounced on 20th
July, 2001 be dated 30th July, 2001 and to take effect from that
date; or
2.
&nbssp;&nnsp;& Isp; In the the alternative. Paragraph 3 of the said Order be varied so as to
allow the seven days
to commence the when ritten Ruling was
received by the Plaintiff�s Solicitors.
p>
3.
p;&nbbsp;&nsp; Csp; Costs to be in tuse.
acts
give rise to this application are set out in two affidavits filed by Mr.
N Nori, Solicitor for the Plaintiff.
One was filed on 1st and the
other was filed on 17th August 2001. Briefly, Mr. Nori filed an
Amended Writ of Summons on 27th July 2001 but had not been tested
in the name of acting Chief Justice
until 30th
July 2001. By this date, the Plaintiff was already out of the 7 days period
stipulated by the Court Order read out in
open Court on 20th July
2001. The Court ruling was signed by me on a later date. Mr. Nori collected
his copy from his pigeon�hole on Monday
30th July 2001.
This
Summons
class="Mso="MsoNormal" style="margin-top: 1; margin-bottom: 1">
This
application is based upon Order 43, rule 3 of the High Court (Civil
Procedure) Rules 1964 (the High Court Rules).
This rule states
�...Where any judgment is pronounced by they the Court, the entry of the judgment
shall be dated as of the day on which
such judgment is pronounced, unless
the Court shall otherwise order, an the judgment shall take effect from that
date:
Provided that by special leave of the Court a judgment may be
ante-dated or post-dated�...
Order
43, rule 3 of the High Court Rules was consideredaly C.J. in Liliau
v Trading Company (Solomons) Limited (No. 2) [1983] SILR 40. In
his judgement Daly C.J. said that Order 43, rule 3 above had the same effect
as was stated by Fry. L.J. in Re Suffield
& Watts, Ex p. Brown [1888] UKLawRpKQB 43; (1888) 20
Q.B.D. 693. That to say, that once the order or judgement is perfected, the
Court has no jurisdiction to alter it. But it can be altered
before it is
perfected (Also see Samson Siamakana v
Pirivosoro & Others
Civil Case No. 253/99) Daly C.J. however pointed that Order 43, rule 3 above
must be read in the context of the other
rules in Order 43. I think this is
correct when one further reads rule 6 of that same Order. Clearly, rule 6
cannot be
complied with until the order or judgement is perfected and served
upon the party required to comply with the Court Order or
judgement by the
Court. In this case, rule 6 was not complied with by the omission of an
indorsement of a memorandum
in the terms set out in rule 6 therein. The
Order I announced on 20th July 2001 is however of a different
nature in that it is in the nature of a penalty order for which
non-compliance does
not result in contempt of Court but rather the
Plaintiff�s action be struck out for non-compliance. It may be one of those
orders that do not attract the application of rule 6 of Order 43 above. The
problem in this case is that the 7 days I
specified in my ruling on 20th
July 2001 expired on 26th July 2001. The Plaintiff had failed to
comply with it. What the Plaintiff is asking for is extension of time to
allow
him to comply with my Order. There is nothing that is wrong with my
Order that calls for correction. I do not think Order 43,
rule 3 of the High
Court Rule is of application here. The Order of 20th July 2001
was in the Nature of an Order for direction coupled with a penalty Order.
The ruling on 20th July 2001 does however confirm that the Orders
for direction I announced on 20th July 2001 were done in my own
motion unasked by the parties. I must have done at under Order 63, rule 5 of
the High Court
Rules. I
would under the same Order and rule, vary Order 3 of my ruling on 20th
July 2001 by substituting 14 days for 7 days in order to cover the
Plaintiff�s situation. I would treat the Plaintiff�s
Summons as a Summons to
vary an Order for direction under order 33, rule 28 of the High Court Rules
and grant the application
on that basis. I grant the Plaintiff�s application
accordingly.
I think
the Plaintiff is now safe to proceeh whatever the next step inep in this
action.
lass="Mso="MsoNormal" align="center" style="text-align: center; margin-top: 1; margin-bottom: 1">
Frank
O. Kabui
Judge
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/sb/cases/SBHC/2001/58.html
