IN THE SOLOMON ISLANDS COURT OF APPEAL

Case name: 	Seketala v Ches Investment Ltd 	
		
Citation:		
		
Decision date: 	12 February 2025	
		
Nature of Jurisdiction	Appeal from Judgment of The High Court of Solomon Islands (Bird J) 	
		
Court File Number(s):	55 of 2023	
		
Parties: 	John Seketala v Ches Investments Limited, Lever Solomons Limited 	
		
Hearing date(s): 	28 May 2024	
		
Place of delivery: 		
		
Judge(s): 	Muria P
Gavara-Nau JA
Lawry JA	
		
Representation: 	J Sullivan KC with E Soma for Appellant 
C Fakarii for the 1st Respondent
S Kabau for 2nd Respondent 

Catchwords: 	Summary judgment-whether interlocutory or final-extension of time-leave to appeal	
		
Words and phrases:		
		
Legislation cited:	Solomon Islands Courts (Civil Procedure) Rule 2007, r 9.57 and r 9.58, r 9.75
Court Of Appeal Act S 19
Halsbury’s Laws of England, 3rd edition, volume 26, para 504, 	
		
Cases cited:	Vi Jay Construction (PTY) Ltd v Eastern European Engineering Ltd, Salter Rex & Co v Ghosh [1971] 2 ALL ER 865, Standard Discount Co v La Grange [1877] 3 CPD 67, Bozson v Altrincham Urban District Council [1903] 1 KB 548, Hunt v Allied Bakeries Ltd, Anglo –Auto Finance (Commercial) Ltd v Robert Dick, White v Brunton [1984] 2 ALL ER 606, Shubrook v Tufnell [1882] 2 QBD 621, Salaman v Warner [1891] 1 QB 734, Bozson v Altrincham Urban District Council [1903] 1 KB 547, Hill v Fladgate [1910] 1 Ch 489, Jamaica Public Service Company Ltd v Rose Marie Samuels [2010] JMCA App 23, Kozy Harbour Ltd v Minnis [2019] CLE/gen/00555, Chhina v Ismail [2024] UKPC 10, Golden Springs Ltd v Paia [1999] SBCA 11, Mega Corporation Ltd v Lotinta [2003] SBCA 8, General Steel Industries Inc V Commissioner of Railways (NSW) [1964] HCA 69, Leslie Allison v Monique Medlin [1996] SBCA 103, Whistler v Hancock [1878] 3 QBD 83, Samuels v Linzi Dresses [1980] 1 ALL ER 803, R v Bloomsbury and Marylebone County Court, Ex parte Villerwest Ltd [1976] 1 ALL ER 897, Felix Ano Suva’ahu, Georde Kiriau Noa v Omex Ltd, Commissioner of Forest Resources and other [2001] SBHC 36, Wallis v Hepburn [1878] 3 QBD 84, King v Davenport [1874] 4 QBD 402, Script Phonography Co Ltd v Gregg [1990] 59 LJ ch 406, Chapman and Chapman v Australia Broadcasting Corporation [2000] SASC 146, Waterhouse v Reef Pacific Trading Ltd [1996] SBCA 5, [1983] EWCA	
		
Ex Tempore/Reserved:	Reserved	
		
Allowed/Dismissed:	Application allowed 	
		
Pages:	1-19	

JUDGMENT OF THE COURT
Introduction
1. 	This appeal had been listed for formal dismissal at the May Sitting of this Court for non-payment of security for costs. The appellant was ordered to pay security for costs in the sum of $30,000.00 within 21 days from 8 November 2023. The appellant failed to pay the security for costs and the appeal was listed for formal dismissal.
Brief background
2. 	For the purpose of this judgment, we note the following brief background of this appeal. The claimant in the Court below, now the first respondent in this appeal, brought a Claim in Category A, claiming trespass, removal of fence, permanent injunction and damages against the defendant, now the appellant in this appeal. The first respondent filed its claim on 20 June 2019. The appellant defaulted in filing a defence, resulting in the first respondent applying for default judgment on 24 September 2019. That application was refused by the learned judge on 8 June 2020 but ordered the appellant to file defence, which the appellant did on 17 June 2020. The appellant also filed a counter-claim against the first respondent and added the second respondent as a party to the Counter-claim.
3. 	In his Counterclaim, the appellant sought, inter alia declaration that the registrations of the FTE in Parcel Nos.192-018-93 and 192-018-96 in the first respondent's name were made by fraud or mistake and are void ab initio and are of no force or effect. As against the second respondent, the appellant claims specific performance of an agreement made between the second respondent and the appellant following, which the appellant went into occupation and actual possession of the land. The appellant had also made payment in the sum of $300,000 to the second respondent for the land he is occupying.
4. 	There has clearly been a series of defaults on the part of the appellant in complying with the procedures and directions of the Court in this matter, although the appellant tried to offer explanation for his defaults and non-compliance.
5. 	On 19 September 2023, the learned judge in the Court below, following an application by the first respondent, struck out the appellant's Amended Defence and Counterclaim filed on 28 August 2020 and entered judgment in favour of the first respondent as per their Statement of Case in their claim filed on 20 June 2019, under rules 9.57 and 9.58 of the Solomon Islands Courts (Civil Procedure) Rules (CPR). The Court below also ordered costs of the first and second respondents to be paid by the appellant.
The Notice of Appeal
6. 	On 19 October 2023 the appellant lodged a Notice of Appeal. However, on 31 October 2023 the respondents filed a Notice of Objection contending that the appellant required leave to appeal and that he had failed to seek leave to appeal. As a result of the objection by the respondents, the issues of whether leave is required or not has arisen and needed to be determined.
7. 	There is no evidence to show that question of whether leave is required or not has been dealt with. It is a question, which can easily be brought before a single judge of this Court to determine under section 19 of the Court of Appeal Act. That has not been done which necessarily affects the question of the payment of the security for costs. As correctly submitted by Mr. Sullivan KC that "the question before the Court is do we need leave or do we not need leave? Security is not payable until the need to appeal ..... if we need leave then we don't need to pay security until we have got leave to appeal. So this is something which should have been raised with the Court upon the Notice of Objection. "
8. 	It is unfortunate that the Notice of Objection has been by-passed and omitted to be dealt with. Consequently the questions of whether leave to appeal is or not required, as well as whether or not the security for costs should be paid by the appellant within the time directed by the Registrar have remained unresolved. We are therefore of the view that we must deal with the two questions first before this appeal can be considered by the Court.
9. 	The appellant filed his notice of appeal premised on the position that the judgment of the primary judge is a final judgment. On the other hand the objection by the respondents is that the judgment is interlocutory judgment and therefore leave is required.
10. 	In his submission, Mr. Sullivan KC appeared to have acknowledged his client's (appellant) sustained failure to comply with the Court's orders, directions and rules. Counsel, however, contended that in the nature of the application before the judge, there are orders which are, open to the judge to make including self-executed order, sometimes called unless Order, or guillotine order in the event of non-compliance within specified time. In this case, Mr. Sullivan KC stated that the respondent applied to strike out the appellant's Defence and Counterclaim on the basis that the appellant had no reasonable cause of action under rule 9.75 of the CPR.
11. 	Not only that the learned judge in the Court below ordered the appellant's Defence and Counter-claim to be struck out, but as Mr. Sullivan KC said, the learned judge did not stop there. Her Ladyship went on to order judgment to be entered for the claimants/respondents as per the Statement of Claim, under rules 9.57 and 9.58 of the CPR. That was a summary judgment being entered against the defendant/appellants on 19 September 2023.
12. 	As correctly pointed out by Mr. Sullivan KC, the question for this Court is whether the summary Judgment made by the learned judge is final or interlocutory. Counsel submitted that in so far as the appellant is concerned, the learned judge's judgment is final and as such the appeal was filed in time. As to the security for costs, the Notice of Objection filed by the respondents contributed to the delay in complying with the Registrar's direction on the payment of the security for costs.
13. 	Mr. Fakarii of Counsel for the first respondent maintained that the judgment is an interlocutory judgment and leave to appeal is required. Counsel, however, stated that if this Court finds that the judgment of the learned judge in the Court below is final, then this Court should dismiss the appeal for non-compliance with directions by the Registrar on the payment of security for Costs.
14. 	Ms. Kabau of Counsel for the second respondent endorses the position taken by the first respondent. Counsel submitted that his client seeks this appeal to be dismissed because, if the judgment is a final judgment, the appellant failed to pay the security for costs in time and that the appellant has never applied for an extension of time to pay the security for costs out of time.
Is the judgment final or interlocutory
15. 	It is common ground that if the Order granting summary judgment by Bird J is final then the appeal filed by the appellant on 19th October 2023 was within time and the only issue to be resolved is that of the payment of security for costs. On the other hand, if the order is interlocutory, then leave to appeal must be sought, with the application for leave to appeal to be filed within 14 days of the decision of the Court granting summary judgment which counsel said, was 20 September 2023, the date of perfection of the Order.
16. 	From the case law authorities, it appears that the courts have generally settled on the applicable test as to whether a summary judgment is final or interlocutory. We are also fully alive to the fact that the determination of what is and what is not final or interlocutory judgment does not admit to ready answer: Vi.Jay Construction (PTY) Ltd v Eastern European Engineering Ltd Civil Appeal SCA MA 14/2020 (Seychelles  Court of Appeal). The Courts have applied what it said to be "two schools" of thoughts on the test to determine whether an order or judgment is final or interlocutory. These are described as the "application" test and the "Order" test which are best explained in Salter Rex & Co v Ghosh [1971] 2 All ER 865 where Lord Denning said:
	"There is a note in the Supreme Court Practice 1970 under RSC Ord.59, r4, from which it appears that different tests have been stated from time to time as to what is final and what is interlocutory. In Standard Discount Cov La Grange [1877] 3 CPD 67 and Salaman v Warner [1891] I QBD 734 Lord MR said that the test was the nature of the application to Court and not the nature of the Order which the Court eventually made. But in Bozson v Altrincham Urban District Council [I 903] 1 KB 548 the Court said that the test was the nature of the Order as made. Lord Alverstone CJ said that the test is: Does the judgment or order, as made, finally dispose of the rights of the parties? Lord Alverstone CJ was right in logic but Lord Esther MR was right in experience. Lord Esther MR 's test has always been applied in practice. For instance, an appeal from a judgment under RSC Ord. 14 (even apart from the new rule) have always been regarded as interlocutory and notice of appeal had to be lodged within 14 days. An appeal from an order striking out an action as being frivolous or vexatious, or as disclosing no reasonable cause of action or dismissing it for want of prosecution every such order is regarded as interlocutory: see Hunt v Allied Bakeries Ltd. So I would apply Lord Esther MR 's test to an order refusing a new trial. I look to the application for a new trial and not to an order made. If an application for a new trial were granted, it would clearly be interlocutory. So equally when it is refused, it is interlocutory. It was so held in an unreported case, Anglo-Auto Finance (Commercial) Ltd v Robert Dick, and we should follow it today. “
17. 	That case was concerned with an application for a new trial following the conclusion of a two-day trial in which the trial judge gave judgment for the plaintiff (Salter Rex & Co.). The defendant (Dr Ghosh) applied for a new trial after discovering some intervening matters, which Dr Ghosh said to have been overlooked by the trial judge. The judge refused to grant a new trial. Dr Ghosh appealed and lodged his Notice of Appeal four weeks after the Judge's refusal to grant a new trial, thinking that the judge's decision was final. The Officer of the Court refused to accept the notice of appeal on the basis that the judge's decision was interlocutory and an appeal against it should be an interlocutory appeal. As such the appeal should have been lodged within 14 days.
18. 	The Court in that case applied the "application" test, treating the decision of the trial judge refusing to grant a new trial as interlocutory and that the appeal against it to be treated as interlocutory. Here it is worth taking note of the observation by Lord Denning MR, that an appeal from a judgment made under O.14 of the RSC (Summary Judgment) "has always been regarded as interlocutory. " Similarly, Halsbury's Laws of England, 3rd edition, Volume 26, para. 504 buttressed Lord Denning MR's observation where it is stated that:
	"In general, orders in the nature of summary judgment where there has been no trial of the issues are interlocutory"
19. 	Subsequently in White v Brunton [1984] 2 All ER 606, the Court, after reviewing the earlier case law authorities on this subject, followed Salter Rex & Co v Ghosh. Sir John Donaldson MR observed in that case that the Court "is now clearly committed to the application approach as a general rule. "
20. 	In his observations, Sir John Donaldson MR recounted the history of the earlier cases on interlocutory or final Order. We can do no better than to set out what Sir John Donaldson MR said at pages 607-608 as follows:
	"In Shubrook v Tufnell [1882] 2 QBD 621; [1881] All ER Rep 180 Jessel MR and Lindley held, in effect, that an order is final if it finally determines the matter in litigation. Thus the issue of final or interlocutory depended on the nature and effect of the order as made. I refer to this as the 'order approach'. In Salaman v Warner [1891] 1 QB 734, in which Shubrook's case does not appear to have been cited, a Court of Appeal consisting of Lord Esher MR, Fry and Lopes LJJ held that a final order is one made on such an application or proceeding that, for whichever side the decision is given, it will, if it stands, finally determine the matter in litigation. Thus the issue of final or interlocutory depended on the nature of the application or proceedings giving rise to the order and not on the order itself. I refer to this as the 'application approach'. In Bozson v Altrincham UDC [1903] 1 KB 547 a Court of Appeal consisting of the Earl of Halsbury LC, Lord Alverstone CJ and Jeune P reverted to the order approach.
	In Re Page, Hill v Fladgate [1910] 1 Ch 489 a Court of Appeal consisting of Cozens-Hardy MR, Fletcher Moulton and Buckley LJJ refused to apply the order approach to a case of striking out the proceedings, but declined to propound any rule of general application.
	The next occasion on which the problem was looked at on broad lines of principle was in Salter Rex & Co v Ghosh [1971] 2 All ER 865, [1971] 2 QB 597, ·where Lord Denning MR, with the agreement of Edmund Davies and Stamp LJJ, considered and contrasted the judgment of Lord Esher MR in Salaman v Warner. Lord Denning MR said ([1971] 2 All ER 865 at 866, [1971} 2 QB 597 at 601):
	'Lord Alverston CJ was right in logic but Lord Esher MR was right in experience. Lord Esher MR 's test has always been applied in practice ... I would apply Lord Esher MR 's test to an order refusing a new trial. I look to the application for a new trial and not to the order made. If the application for a new trial were granted, it would clearly be interlocutory. So equally when it is refused, it is interlocutory .... 
	This question of "final" or "interlocutory" is so uncertain, that the only thing for practitioners to do is to look up the practice books and see what has been decided on the point. Most orders have now been the subject of decision. If a new case should arise, we must do the best we can with it. There is no other way.
	More recently in Steinway & Sons v Broadhurst-Clegg [1983] Times, 25 February, this court followed Salter Rex & Co v Ghosh and, applying the application approach to a judgment in default of defence, held that it was an interlocutory judgment. “
21. 	The Courts in the Caribbean, in Jamaica Public Service Company Ltd v Rose Marie Samuels [2010] JMCA App 23; Kozy Harbour Ltd v Minnis 2019/CLE/gen/00555 (Bahamas SC), and Chhina v Ismail [2024] UKPC 10 (Appeal from Eastern Caribbean Court of Appeal (British Virgin Islands), have also followed the general principles established in Salter Rex & Co v Ghosh and White v Brunton.
22. 	In our jurisdiction, this Court had also dealt with this issue of whether an order or judgment of the Court is final or interlocutory. The two cases referred to by Mr Sullivan KC are Golden Springs Ltd v Paia [1999] SBCA 11; CA-CAC 19 of 1998 (November 1999) and Mega Corporation Ltd v Lotinta [2003] SBCA 8; CA-CAC 006 of 2003 (14 July 2003). In the former, the subject matter before the Court was an appeal against a summary judgment, and in the latter this Court was concerned with an "unless order.”
23. 	We need, not enter into detailed discussions of the two referenced cases. Suffice it to say that we agree with Mr. Sullivan KC that in Golden Springs Ltd v Paia, this Court considered the appeal in that case against a summary judgment as a final judgment. So that the issue before the court was not whether the judgment of the Court below was a summary judgment or an interlocutory judgment, rather the issue was whether on the evidence before the Court below the defendants/appellants had demonstrated that there are real "issues" of facts that ought to be put up for trial. This Court set aside the summary judgment and the case proceeded to trial.
24. 	In the course of the judgment in that case, this Court stated:
	"It is now well settled that under a procedure of the kind prescribed by Order 14, the defendant has only to show an arguable defence in order to secure a grant of leave to defend. “
25. 	We think that it is also worth noting the observations of Barwick CJ in General Steel Industries Inc.-v Commissioner of Railways (NSW) [1964] HCA 69; [1964] 112 CLR 125 at 128-129, quoted in Leslie Allison v Monique Medlin [l996] SBCA 23; CA-CAC 7 of 1996 (15 April 1996) where His Honour stated:
"The jurisdiction summarily to 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 necessary assistance from the parties to reach a definite and certain conclusion. "
26. 	The above observations are not directly relevant to the question before us in this appeal namely, whether the order of Bird J dated 19 September 2023 and perfected on 20 September 2023 was final or interlocutory. We referred to them for their importance in assisting trial judges bear in mind the principles applicable when considering whether to order summary judgments or not.
27. 	In Mega Corporation Ltd v Lotinta referred to by Mr. Sullivan KC, Palmer JA sitting as a Single Judge of this Court had to consider whether an "unless Order" was final or interlocutory for the purpose of deciding whether leave should be granted to appeal against the decision of the High Court (His Lordship's own decision) in which his Lordship held, applying the test in Bozson v Altrincham Urban District Council, that the unless order consented to by the parties was final and the court was functus officio in terms of the Consent Order,
28. 	In determining whether leave to appeal should be granted, his Lordship, after reviewing the various case law authorities including Bozson v Altrincham UDC, Whistler v Hancock [1878] 3 QBD 83, Samuels v Linzi Dresses [1980] 1 All ER 803, R v Bloomsbury and Marylebone County Court, ex parte Villerwest Ltd [1976] 1 All ER 897, Felix Ano Suva'ahu, Georde Kiriau Noa v Omex Ltd, Commissioner of Forest Resources and Others [2001] SBHC 36; HC-CC 173 of2000 (19 June 2001) and several others more authorities, held that even in an "unless order" the court retains the jurisdiction to extend time and for the grant of leave to appeal.
29. 	In our view, as that of his Lordship, Mega Corporation Ltd v Lotinta is authority for the proposition that an "unless order" is not a final order and that the Court retains the discretion to consider whether it should be set aside or to extend time or to grant leave to appeal against such order. In other words it must be regarded as an interlocutory order and not a final order.
30. 	Mr Sullivan KC submitted that Mega Corporation v Lotinta changes the long standing position that "unless orders" were final. We agree that older authorities such as Whistler v Hancock, (above); Wallis v Hepburn (1878) 3 QBD 84, King v Davenport [1879] 4 QBD 402 and Script Phonography Co Ltd v Gregg [1890] 59 LJ Ch 406 which are all referred to by his Lordship Palmer JA in Mega Corporation Ltd v Latinta, have all affirmed the position that an "Unless Order" was final and there was no jurisdiction to have it set aside or extend time to comply with the terms of the unless order since the action had been regarded "a dead action: Wallis v Hepburn and Script Phonography v Gregg, or that it "could not be kept alive:" Whistler v Hancock, per Cockburn CJ.
31. 	That long standing position established in Whistler v Hancock was no longer to be the same by 1976. In R v Bloomsbury and Marylebone County Court, ex parte Villerwest Ltd where Lord Denning said of whistler v Hancock:
	"I have one further observation to make. It is about Whistler v Hancock. It seems there to be suggested that if a condition is not fit/filled the action ceases to exist, as though no extension of time can be granted. I do not agree with that line of reasoning. Even though the action may be said to cease to exist, the Court always has power to bring it to life against, by extending the time. In my opinion, the County Court Judge had ample jurisdiction to make the order he did. "
32. 	The prevailing position now is that the "unless order" being final order, bringing an action to an end is no longer to be the case, and Whistler and v Hancock should no longer be followed. We express our endorsement of the position expounded in Mega Corporation Ltd v Lotinta (above).
33. 	With that in mind, we return to the Order, the subject of consideration in the present application. The Order made by her Ladyship Bird J comprises:
(i) 	I strike out the Defendant/Counterclaimant's Amended Defence and Counterclaim filed on 28 August 2020 under rule 23.4(a) and rule 9.75 of the CPR.
(ii) 	I enter judgment in favour of the Claimant/First Defendant by Counterclaim as per statement of case in their claim filed on 20 June 2019 under r.9.57 and 9.58 of the CPR.
(iii) 	Cost against the Defendant/Counterclaimant in favour of the Claimant/First Defendant by Counterclaim and also the Second Defendant by Counterclaim. 
34. 	Rules 9.57 and 9.58 provide for summary judgment, permitting the claimant (9.57) and the defendant (9.58) to apply for summary judgment. While the jurisdiction of the High Court to order summary judgment is not an issue in this appeal, we feel it necessary to point out that there was no application before the learned judge in the Court below for a summary judgment under rule 9.57 in this case. The application made by the Claimant/First Defendant by Counterclaim was for an order:
	"To strike out the Defence and Counterclaim of the Defendant/Counterclaimant for non-compliance with court orders and pursuant to rule 9.57, of the Solomon Islands Courts (Civil Procedure) Rules 2007 (CPR)."
35. 	It is appreciated that the High Court has inherent powers to control its proceedings. These include powers to strike out pleadings and to give judgment. This is the import of rule 9.75. See also Chapman and Chapman v Australian Broadcasting Corporation [2000] SASC 146.
36. 	Having said that, it is worth noting, especially by trial judges, that striking out pleadings and summary judgment are two procedural methods of terminating proceedings without having to go to trial under the civil procedure rules. See rules 9.57. 9.58, 9.72 to 9.74 and 9.75. The two methods are distinct and care must be exercised when applying the principles relevant to the two methods of early terminating proceedings between the parties. In Chapman and Chapman v Australian Broadcasting Corporation, the Full Court of the Supreme Court of South Australia, criticised the manner in which the applicant/defendant claimed both summary judgment and striking out of pleadings, relying on the affidavit which did not specify the basis for the relief he was seeking.
37. 	In the present case, the Claimant applied to strike out the Defence and Counterclaim and for judgment under rule 9.75 of the CPR. Whilst we appreciate the learned Judge's power to exercise her discretion under rule 9.75 following the striking out of the appellant's Defence and Counterclaim, we simply make the point that it seems to us, that on the materials before the learned Judge, it is unclear as to the basis for ordering a summary judgment, terminating the proceedings, in addition to the striking out of the appellant's Defence and Counterclaim for non-compliance with Court orders. We do not say that an application for striking out pleadings cannot lead to judgment: Chapman & Chapman v Australian Broadcasting Corporation. However, care must be exercised before terminating a proceeding summarily as the two options of terminating a proceeding are distinct methods and evidence must establish the bases for each of them.
38. 	We do not decide in this application the question of whether the summary judgment ordered by the learned Judge in the Court below was appropriate or not, since that is not the issue before us. We simply made the points (above) in the hope that they may assist trial judges who are very often confronted with applications relating to terminating proceedings without the need to go to trial. The question now before us is whether the summary judgment ordered by Bird J on 19 September 2023 and perfected on 20 September 2023 was interlocutory or final.
39. 	We have discussed above the question of whether a summary judgment is interlocutory or final and the authorities on the point. The two tests emerging from the case law authorities in determining whether an order is final or interlocutory are the "application" test, which depends on the nature of the application before the court: Salter Rex & Co v Ghosh; see also White v Brunton, and the "Order" test which depends on the nature of the Order made by the Court: Bozson v Altrincham Urban District Council.
40. 	We respectfully adopt the "application" test as applicable in Solomon Islands in determining whether an order for summary judgment is interlocutory or final. We applied the "application" test in the present case. The nature of the application before Bird J was clearly interlocutory and so the order made by Her Ladyship was interlocutory, and if the order was refused, it was equally to be regarded as interlocutory.
41. 	The appellant filed amended defence and further amended defence and counterclaimed, pleading fraud or mistake against the first respondent, and breach of contract and specific performance against the second respondent. The applicant's claims are denied by the respondents. The learned Judge ordered summary judgment which essentially was premised on the failure by the appellant to comply with the previous orders and directions of the Court. The appellant's defence and counterclaims were denied by the respondents and despite materials raised in those defence and counterclaims which presented challenges to the respondents' claims that may well require the Court's consideration. Now as a consequence of the summary judgment, issue raised by the appellant's defence and counterclaims would not be re-opened and considered unless the summary judgment is reversed on appeal. But it does not necessarily mean that the rights of the parties in the case have been disposed of finally. There are still matters pleaded in the defence and counterclaims by the appellant, including breach of contract and specific performance, that are yet to be considered.
42. 	That being the case, a summary judgment, the nature of which does not finally dispose of the rights of the parties to a dispute is properly to be regarded as interlocutory. This, in our firm view, is the position in the present case.
43. 	In the circumstances of this case, we hold that the summary judgment ordered by Her Ladyship, Bird J, on 19 September 2023 and perfected on 20 September 2023, is interlocutory, applying the test in Salaman v Warner; Salter Rex & Co v Ghosh and White v Brunton. Our finding would also have been the same, even if we applied the test in Bozson v Altrincham UDC. But that would be an exception to the rule.
44. 	Having determined that the summary judgment made by Bird J on 19 September 2023 is interlocutory the appeal period against that judgment is 14 days from 20 September 2023, the date the Order of the Court was perfected. The appellant filed his Notice of Appeal on 19 October 2023, which was late and done without leave of the Court as required by rule 10(2) of the Court of Appeal Rules.
45. 	Mr. Sullivan KC accepted that if we find that the summary judgment ordered by Bird J is interlocutory, the appellant would need to seek extension of time to apply for leave to appeal. We will now proceed to consider whether the appellant has made good his case for an extension of time to apply for leave to appeal out of time.
Extension of time.
46. 	The reason for being out of time to apply for leave to appeal in this case clearly cannot be attributed to any act or omission on the part of the appellant. The reason was precisely for the same error or mistake admitted to by the applicant's Counsel in Salter Rex Co. v Ghosh, namely, that the lawyers for the appellant in the present case mistakenly thought that the order made by the learned judge in the Court below is a final order and that they had 30 days within which to appeal. For such a mistake lord Denning MR, in Salter Rex & Co. v Ghosh expressed his concern this way:
"So the applicant is out of time His Counsel admitted that it was his, Counsel's mistake and asked us to extend the time. The difference between two weeks and four weeks is not much. If the applicant had any merits which were worthy of consideration we could certainly extend time. We never like a litigant to suffer by the mistake of his lawyers. "
47. 	Like Lord Denning MR, we too, in the present case, "never like a litigant to suffer by the mistake of his lawyers." The appellant, Mr Seketala, in the present case should not have to suffer by the mistake of his lawyers for taking the view that the judgment of Her Ladyship, Bird J, is final.
48. 	We bear in mind the principles laid down in Price Waterhouse v Reef Pacific Trading Ltd [1996] SBCA 5; CA-CAC 5 of 1995 (29 April 1996) in exercising this Court's discretion under section 19 (b) of the Court of Appeal Act. Accordingly, we exercise the Court's discretion and grant extension of time to the appellant to apply for leave to appeal.
49. 	The appeal raises questions of general importance relating to the judicial duty to properly consider, issues and questions arising for determination in an application to summarily terminate an action. Accordingly, we also grant leave to the appellant to appeal against the summary judgment given by Bird J on 19 September 2023 and perfected on 20 September 2023.
50. 	We do not see any reason why the applicant should not have leave nunc pro tunc for the filing of the Notice of Appeal filed on 19 October 2023. The time for filing the appeal is therefore extended to 19 October 2023 and Notice of Appeal filed on that date is to stand. Further, leave is also granted to amend the Notice of Appeal in the form of the proposed Amended Notice of Appeal marked "A" and annexed to the applicant/appellant's application.
51. 	In the circumstance, we extend time also for the filing of any further record of appeal (if necessary) which must be done at a date fixed by the Registrar, which time must not be more than 14 days from the date of this judgment.
52. 	The judgment and/or orders made by Bird J on 19 September 2023, and perfected on 20 September 2023 are stayed pending the determination of the appeal.
53. 	On the question of costs we order that the costs of this application should be costs in the appeal.
Muria
Gavara-Nanu JA
Lawry JA