Luilamo v Development Bank of Solomon Islands [2005] SBCA 13; CA-CAC 018 of 2005 (4 August 2005)

IN THE SOLOMON ISLANDS COURT OF APPEAL

NATURE OF JURISDICTION: Appeal from an Order of the High Court of Solomon Islands (Mwanesalua J)

COURT FILE NUMBER: Civil Appeal No. 018 of 2005

(On Appeal from High Court Civil Case No: 360/96)

DATE OF HEARING: 27^th July 2005
DATE OF JUDGMENT: 4^th August 2005

THE COURT: Lord Slynn of Hadley P, Adams and Naqiolevu JJA.

PARTIES: GEORGE LUILAMO

(Appellant)

-v-

DEVELOPMENT BANK OF SOLOMON ISLANDS

(Respondent)

ADVOCATES: Appellant: Patrick Lavery

Respondents: Andrew GH Nori

ALLOWED/DISMISSED: APPEAL DISMISSED

PAGES: 1 - 4

JUDGMENT

This is an appeal from an Order of Mwanesalua J of the 12^th of May 2005 granting leave to execute and enforce the original order of the 23^rd July 1997 granted by Awich J.

The grounds of appeal may be summarized as follows:

1. The Learned Judge erred In both law and practice the granting Leave for the Respondent for execute a judgment against the appellant dated the 23^rd of July 1999 contrary to the provisions of Order 45 Rule 22 of the High Court (Civil Procedure) Rules 1964 which permits execution within six years.
   
2. The respondent’s application was for discretionary leave as pro vided by Rule 23(a) but not supported by any evidence of the reasons for the delay in execution of the Judgments some 8 years later.
   
3. The Learned Judge erred in law in that he did not apply his mind to the fact that Rules 22 is intended to restrict the rights of those entitled to execute judgments and to give those whom judgments have been made protection.
   

SUMMARY

1. The Specially Endorsed Writ of Summons was filed by the Plaintiff in Civil Action No. 360 of 1996 on the 5^th of December 1996, claiming from the First Defendant the sum of $70,318.27 and interest at the rate of 14% per annum from the 30^th September 1996 until payment of the debt; and against the First and Second Defendant the sum of $70,318.27 as moneys due and owing pursuant to the charge with Interest thereon at the rate of 14% per annum from 30^th September 1996. Leave to enforce the Defendants charge over Parcel No: 191-050-21 and costs.
   
2. Judgment in Default of Appearance was filed on the 26^th May 1997.
   
3. Order for Judgment of Default of Appearance was entered by the Court on the 23^rd July 1997.
   
4. No further application was made for the execution of the judgment until the summon was filed and heard by Mwanesalua J on the 14^th of April 2005, wherein he granted leave for the execution and enforcement of the order of 13th July 1997.
   

The appellant’s case rest on the provisions of Order 45 Rule 22 of the High Court (Civil Procedure) Rules 1964 which entitled a successful party to proceed to execution of the order within a period of 6 years. The appellant’s case in essence is that the respondent did not proceed to execute the order obtained within the period of 6 years as required by the provision of Order 45 Rule 22. Therefore the application is outside the limitation period.

ORDER 45 RULE 22

“As between the Original parties to a judgment or order execution may issue at any time within six years from the recovery of the judgment, or the date of the order.”

The respondent’s case is that Order 45 Rule 22 is neither restrictive nor mandatory. The language In Rule 22 connotes a discretion, which means that an omission or failure to execute judgment within the time limit of 6 years does not bar the party from seeking execution. Rule 23 is clearly an extension to rule 22 which enables a party entitled to execution to apply to the court for leave to issue execution.

ORDER 45 RULE 23

(a) “where six years have elapsed since the judgment or date of the order, or any change has taken place by death or otherwise in the party entitled or liable to execution.”

“the party alleging himself to be entitled to execution may apply to the court for leave to issue accordingly. And the court may if satisfied that the party so applying is entitled to issue execution make an order to that effect.”

We consider the court below has properly exercised the power to make the order granting leave to issue execution being satisfied that the plaintiff was entitled to execution. That is all it is required to do. The important consideration is for the court to be satisfied that a party seeking leave has successfully obtained a judgment from the Court, and is entitled to execution and if so satisfied, may exercise the discretion to grant leave. We consider it is important for the court to keep control of its proceedings and it must be able to make the appropriate order.

We therefore dismiss the appeal with costs.

President, SI Court of Appeal
Judge of Appeal
Judge of Appeal