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Avi Avi Marina Ltd v Razak [1997] SBHC 62; HC-CC 232 of 1996 (15 October 1997)

HIGH COURT OF SOLOMON ISLANDS

Civil Cases No: 232 of 1996

AVI AVI MARINA LIMITED

-V-

LILIAN RAZAK

In the High Court of Solomon Islands
(LUNGOLE-AWICH, j)

Hearing: 30th September 1997
Judgment: 15th October 1997

Sol-law for plaintiff
A Nori for defendant

JUDGMENT

(LUNGOLE-AWICH): The notice of motion application of the applicant, the plaintiff, asked for 12 orders, and most of the 12 have subclauses. The twelfth is the usual further or other orders that the court may deem appropriate. The third to eleventh are direction orders concerning pleading or progress of the case. The second asked that this case, Civil case No. 232 of 1996, and another, Civil Case No. 76 of 1997, “be consolidated or tried together.” The parties are the same and the subject of the two cases is the same estate in land parcel No. 181-007-001. The first order sought is for interlocutory injunction restraining the presence of the respondents, the defendants, on the land parcel.

That there are triable issues in the case is obvious. The plaintiffs have a lease for 75 years in parcel No. 181-007-001. The defendants say that there was a mistake in the identity of the land leased; it was only part of the land that was leased. The Plaintiff denies mistake and says that it is the whole land leased. That is the first triable issue. From the affidavits filed on behalf of the plaintiff, they have prospects for success. Of course the result of the final determination may be different. The defendants have just applied, in case No. 76 of 1997, for rectification of the register of estate. They are yet to succeed. The second issue is whether the plaintiff has forfeited the lease by the notice of forfeiture served on the plaintiff by the defendants. Even in that issue the plaintiff has reasonable prospects for success. It pleaded tender of rentals which were said to have been unpaid and are in arrears. Another point to be determined is whether the forfeiture would meet the requirements of the Lands and Titles Act. The court is prepared to exercise its discretion and grant the application for interlocutory order of injunction.

In view of the facts of the case the terms of the interlocutory injunction will have to be restrictive so as to minimise damages. The order that the court makes are:

1. The defendants are restrained from further construction or effecting improvement on the building they occupy and from occupying any part of the land parcel No. 181-007-001 except the building they were in occupation of when this case was commenced, but may use any established access roads.
   
2. The plaintiffs are to provide undertaking as to damages to the extent of $50,000. The undertaking must be furnished in 14 days.
   
3. The defendants are restrained from interfering with the plaintiff in any way in its endeavour to carry out its works or business on the land, parcel No. 181-007-001.
   
4. The injunction order is to remain in force until case No. CC232/96 has been decided or until another order of this court is made.
   
5. Costs of this application are reserved.
   

It is my view that it is too early to decide the question of consolidating civil case No. 76/97 and this one, No. 232/96. Not all the issues have crystallised. Pleadings and exchanges of papers are to proceed in the normal way. It is also my view that it is not yet time to consider direction orders. Another point to consider is that it seems several facts are being contested, parties may wish to consider asking the court to convert this case commenced by originating summons to action by writ of summons.

Dated this 20th day of October 1997
At the High Court
Honiara

Sam Lungole-Awich
Judge