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HIGH COURT OURT OF SOLOMON ISLANDS
Civil Case No. 139 of 1997
DELUX INVESTMENTS LIMITED
(in liquidation)
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v
KANT KIM WUI SZETU
(Trading as Szetu
Enterprises)
<
High Court of Solomon Islands
Before: LUNG LUNGOLE-AWICH, J
Civil Case No. 139 of 1997
Hearing: 6 March 1998
Judgme March 1998
Counsel: J Sun for the plaintiff;
C Ashley the defendant
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JUDGMENT
(LUNGOLE-AWICH, J.):
The applicant, the defendant, appears to have a strong case establishing
triable issue if the pleadings so far
in this case is taken as evidence.
But pleadings are just that, they are averments to be proved. It is
established
practice that a party seeking interim or interlocutory
injunction must come to court on affidavit. That is because affidavit
is
evidence, at least prima facie evidence and for purposes of establishing
triable issue, sometimes described
as arguable case, prima facie
evidence suffices.
The The defendant's case which I say appears to be a strong case is stated
in his defence to the plaintiffs claim
for $85,000 said to be arrears of
rent. The defence is that there was a contract for the sale of the land
to
the defendant and that he paid deposit in pursuance of the contract.
The plaintiff seems to admit the contract, but pleads
that it terminated
because of the long time the transaction has taken. He advertised in the
newspaper, inviting
tender to buy the property. The defendant now has
applied for interlocutory injunction to last until the case is
concluded. Strong as it may appear in the defence, the facts must be
presented to court in the form of evidence, that
is in affidavit. They
have not been so presented, in affidavit.
It is not surprishat the two affidavits of M of Mr. Ashley filed in
support of the application do not go as far
as stating all the facts in
the averments in the defence. Mr. Ashley is only a solicitor/counsel for
the applicant
and has no personal knowledge of the facts in the
averments. In this jurisdiction solicitors seem not slow to swear
affidavit in support of client's case. It could be dangerous on
occasions.
This application cannot succeed because the affidaffidavits in support do not
avail sufficient evidence. I need
not deal with the question of security
for damages except to briefly state that in an application where the
applicant
asks for interim or interlocutory order to stop a business
transaction, it is almost certain that the applicant will be
asked to
provide security for damages or at least undertaking as to damages that
may result from the injunction
order. The application is dismissed.
Costs are awarded to the Respondent, the plaintiff.
Delivered this 6th day of March 1998
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