Samlimsan (SI) Ltd v Nakumora [2012] SBCA 8; CA-CAC 49 of 2011 (23 March 2012)

IN THE SOLOMON ISLANDS COURT OF APPEAL
NATURE OF JURISDICTION:	Appeal from Judgment of the High Court of Solomon Islands (Mwanesalua J)
COURT FILE NUMBER:	Civil Appeal Case No. CA. 49 of 2011 – Appeal from High Court Civil Case No. 58 of 2011
DATE OF HEARING:	16 March 2012
DATE OF JUDGMENT:	23 March 2012
THE COURT:	Sir Robin Auld, President
	Sir Gordon Ward, JA
	Justice Glen Williams, JA
PARTIES:	SAMLIMSAN (SI) LTD & AKOAI - Appellant
	-V-
	TARIHAO & NAKUMORA - Respondent
ADVOCATES:
Appellant:	M. Pitakaka
Respondent:	D. Marahare
KEY WORDS:	Practice, extension of time.
EX TEMPORE/RESERVED:	Reserved
ALLOWED/DISMISSED:	Dismissed
PAGES:	5

REASONS

[1] This is an application to extend time to file a notice of appeal from a decision of Mwanesalua J given on 14 November 2011 in which he struck out the defence of the present applicants, Samlimsan (SI) Ltd and Sylvester Akoia ("Samlimsan") for non-compliances under rule 23.4(a).

[2] The relevant parts of rule 23 apply where a party fails to comply with an order made in a proceeding dealing with the progress of the proceeding or steps to be taken in the proceeding; rule 23.1.

[3] Rule 23.4(a) provides:

"23.4 In cases of deliberate or sustained failure the court may make any one or more of the following orders including an order that is self executing in the event of non-compliance within a specified time:

(a) strike out the pleadings of the non-complying party ..."

[4] The application to strike out was filed by the present respondents, Francis Tarihao and Vincent Nakumora ("the respondents") on 24 August 2011 and included an application that Samlimsan be punished for contempt of court under rule 23.8 to 13 (incorrectly stated to be under 23(5)). The orders with which the defendants were alleged to have failed to comply were (a) interim orders dated 3 March 2011 by Chetwynd J and (b) directions given by Faukona J dated 5 August 2011.

[5] In summary, the orders of Chetwynd J restrained logging activities by Samlimsan on the lands in question, required payment into a trust account of the proceeds of all logs exported, gave directions for clearing remaining felled logs and for vacating the land and ordered a sworn statement of the various transactions in respect of the timber within 14 days.

[6] Samlimsan failed to comply despite oral and written demands. The appeal book contains letters from the respondents on 28 March, 5 April, 12 May, 6 June and 28 of June 2011. They were followed on 18 July 2011 by an application for orders punishing Samlimsan for contempt and seeking compliance with Chetwynd J's orders of 3 March 2011. The affidavit in support set out the history of Samlimsan's failure to comply and confirmed that, as at the date of filing, they had still taken no steps to comply or to deal with the allegation of contempt.

[7] The application was heard by Faukona J and his order of 5 August 2011 directed that the sworn statement originally required within 14 days of Chetwynd J's order be supplied or before 18 August 2011. This time limit, as with the earlier one, was not met.

[8] On 24 August 2011, the respondents applied to strike out the defence under Rule 23.4(a) for non-compliance. It was listed for hearing on 25 August and, in a statement dated 25 August 2011 by one Junior Pau for Samlimsan, an account was given of what is suggested by the respondents to be partial compliance only.

[9] The application to strike out the defence was heard by Mwanesalua J on 17 October 2011. He notes in his ruling that the lawyer for Samlimsan, Mr Pitakaka, was sick but states there was no sick leave certificate before the court. He therefore continued with the application and found:

"The first and second defendants did not comply with interim orders of the court perfected on 3 March 2011. Despite verbal and written reminders, and further directions order which lapsed on 18 August 2011, these two defendants continued to ignore the orders referred to above.

There appear to be other logs being exported which were extracted from the customary lands in this case [which] have not been processed through the Central Bank of Solomon Islands. The log shipments were seen from documents obtained by the Claimant from the office of the Commissioner of Forests. In the circumstances, I allow the application and grant the orders sought therein."

[10] Mr Pitakaka has filed a statement enclosing a sick certificate dated 17 October 2011 and explaining that he had sent it to the court on the same day. He asks this Court to consider that, if he had been heard by Mwanesalua J, he would have been able to explain his position in respect to the contempt allegation and that he would have submitted that he "required further time to file his response before the hearing". When asked the reason he had not already prepared for the hearing in advance of 17 October 2011, he explained he had been sick for the whole of that week and the preceding one. He also acknowledged that he had made no attempt to advise the court during that period of his probable need for an adjournment.

[11] This is an application to extend time to file a notice of appeal. It is not the appeal from Mwanesalua J's ruling but the similar nature of the events which led to the learned judge's decision in the court below must be relevant to our consideration of this application.

[12] It has long been accepted that the Court will not grant extensions of time as a matter of course. The burden is on the applicant to satisfy the Court that there is good reason for the delay and for any consequential extension of time and, in determining that, the Court will always consider whether there is arguable merit in the proposed grounds of appeal.

[13] This Court has, in previous appeals, adopted the well-known words of Lord Atkin in Evans v Bartlam [1937] AC 473 where he pointed out, in respect of a default judgment:

"The principle obviously is that, unless and until the Court has pronounced a judgment upon the merits or by consent, it is to have the power to revoke the expression of its coercive power where that has been obtained only by a failure to follow any of the rules of procedure."

[14] Those words still apply but the introduction of the new Solomon Islands Civil Procedure Rules in 2007 heralded a fundamental change in the Court's attitude to delay in court proceedings.

[15] Parties in civil claims should be entitled to expect that the case will proceed with reasonable expedition. All lawyers must appreciate that it is their responsibility to ensure that they and their clients comply promptly with all procedural requirements and, in particular, any orders by the court. Failure to do so is likely to result in orders for the strict application of the new Rules. The specific purpose of rule 23.4 is to prevent deliberate or sustained failure causing the degree of delay that has so often bedevilled actions in the past.

[16] The manner in which this appeal has been prosecuted so far unfortunately suggests the failures by the present applicants which led to Mwanesalua J's order have continued in respect of the appeal.

[17] The learned judge gave his ruling on 14 November 2011. In the meantime, counsel did nothing to enquire whether or not the hearing had been adjourned or when any decision would be delivered. Once the decision was delivered, he failed to file a notice of appeal within the time allowed. It was not until 29th of December 2011 that he filed this application to extend time.

[18] He explained to this Court that the reason for his failure was that he was involved in other cases in November and December and, sadly, that his father died on Christmas Day. We accept, of course, the profound effect of such a bereavement but we must take notice of the fact that the time to file his notice of appeal had expired some days previously. It is also noteworthy that, even when the application was filed, it was not accompanied by a sworn statement in support or by the proposed grounds; only a promise that a statement would follow. That statement and the draft grounds are now before the Court having only been sworn and filed on 15 March 2011; a month and a half later and the day before this hearing. We also note there has been no attempt by Samlimsan to deal with the alleged contempt throughout this period or, we were advised during this hearing, since.

[19] We accept that there are triable issues raised in the proposed appeal but the delay in bringing this application, although not very long, demonstrates an unfortunate continuation of the earlier delays and the reasons fall far short of persuading us to exercise our discretion to extend time.

[20] The application is refused with costs to the respondents. The judgment entered by the learned judge on 14 November 2011 must stand.

Sir Robin Auld,
President

Sir Gordon Ward, JA
Member

Justice Glen Williams, JA
Member