Jovere v Makoto [1996] SBHC 67; HC-CC 138 of 1994 (18 November 1996)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 138 of 1994

ter">LUXTON JOVERE

-v-

JACOB MAKOTO AND

>Before: Awich, ich, J

Hearing: 14 November 1996-Ruling: 18 November 1996

Counsel:mpbell for the plaintiff; T Kama for the defendantndant

RULING

AWICH J:

The defendants, Jacob Makoto and North New Georgia Timber Corporation have applied for leave to enlarge time so that they may appeal against the judgment of Palmer, J, dated 14/8/96. They filed their application on 10/10/96. That would be 26 days after the time required to notify appeal had expired. Mr Makoto's explanation is that he became aware of the judgment only on 18/9/96 when he received a letter from his solicitor notifying him. That would be 4 days after the time to appeal had expired. He discussed the matter in his community and acted immediately.

The main ground of appeal, if leave is granted, will be that the judgment of 14/8/96 was delivered prematurely when the matter before the court was only interlocutory. The defendants also intend to raise the point that they would challenge the right of Eneveke tribe in Lupa Land.

The plaintiff /respondent oppose the application for leave, he had in fact applied to lift injunction over a sum of money the subject of distribution under the North New Georgia Timber Corporation Act. He contends that Mr Makoto did not pursue appeal vigorously. There were fast means to notify the applicant of the judgment; those means were not utilised without good reason. The respondent also submitted that the point of appeal, based on land ownership was not an issue so the appeal is baseless.

I thank learned Counsel Mr Campbell for the plaintiff for the most useful case law he cited about delay in noting appeal. From the case authorities cited, it is established in this jurisdiction and in Papua New Guinea that extension of time will not be given as a matter of course. There must be convincing reason for the delay. In my view the reason for the delay given by Mr Makoto is not convincing.

The other point for consideration is whether there is merit in the appeal. the applicants say that the final judgment was given when the court had before it only interlocutory matter to decide. If that is true the applicant would have missed out on the opportunity to plead fully and to present their case by evidence if they wished. In short they would have not been fully heard before their case was determined. On record there is a judgment dated 28/12/95 which dealt with direction matters; one would have thought that concluded interlocutory matters. On the other hand, it is not obvious from the record that after those items in the order for direction were complied with, the defendants could have not advanced their pleadings further in other ways. It is not obvious to me to say that pleadings have closed. Because of that doubt I am inclined to allow leave to enlarge time to appeal. It may also afford opportunity to raise on appeal the important question as to whether distribution of profits under the North New Georgia Corporation Act, excludes any challenge to status of the receivers based on their customary rights in Lupa Land or absence of those rights.

Leave is granted to enlarge time to appeal. The applicant is to file its appeal within 30 days of delivering this ruling. Because I did not consider the reasons given for delay in appealing convincing I deny the applicants costs of this application. No order for costs.

I must mention here that this application should have been presented to Palmer, J, whose judgment is to be appealed. Moreover, he dealt with the case at great length including delivering a detailed interlocutory judgment dated 25/12/95. In dealing with this application for leave, a very limited matter, I had to go back and read anew all the material on the file. Time could have been saved if the applicant had been made before Palmer, J.

Delivered this 18th day of November 1996.

At the High Court, Honiara

Sam Lungole-Awich
Judge