Carmel v Satya [1996] SBHC 39; HC-CC 179 of 1996 (15 August 1996)

HIGH COURT OF SOLOMON ISLANDS

align="center" style="margin-top: 1; margin-bottom: 1">Civil Case No. 179 of 1996

ANTHONY CARMEL

alignter" sty" style="margimargin-top: 1; margin-bottom: 1"> v

NARAYAN SATYA

Before: Awi: Awich, J

Hearing. 25 My 1996

Judgment: 15 A 15 August 1996

Counsel: A Nori for Plaintiff;

A Radclyffe for Defendant

INTERLOCUTORY JUDGEMENT

S. LUNGOLE - AWICH J:

Mr Anthony Carmel, the plaintiff, has hhas had writ of summons issue on 3 July 1996, in which he claims specific performance on a contract of sale of interest in land, damages for breach of the contract, in the damages he would like to include those arising from, "mental anguish and nervous break-down." The defendant has filed defence on 16 July 1996. He denies there was a contract of sale of the interest in the land.

The plaintiff has come to court at this stage, by summons, applying for interlocutory reliefs as follows:

"16. (1) The defendant, his family members, servants or agents be restrained from entering, excepts for viewing and inspection, the house situated in Parcel No:191-029-114 and from evicting the plaintiff from the said house until trial or further orders.

(2) All rental due for the house under terms of the tenancy agreement entered into between the plaintiff and the defendant dated 28 November 1995 be paid into a trust account in the joint names of the parties' solicitors, to be interest bearing, less withholding tax.

(3) Costs be costs in the cause. "

In support of the application, the plaintiff swore a very detailed affidavit, outlining events from 1990 when on voluntary and a friend's basis he looked after the defendant's house which was then being rented by someone, while the defendant was away in Canada. Eventually the plaintiff became the tenant on a verbal agreement, subsequently written and signed on 28 November 1995, now exhibit AC3. The plaintiff says that he rented the premises on the understanding that the defendant agreed to selling it to the plaintiff. As the result of that agreement, they instructed a solicitor, Mr Kama, to draw the contract of sale, exhibit AC1. The defendant then refused to sign and refused to sell.

It would have been of much help to the court if the defendant filed a replying affidavit dealing with the details that the plaintiff deposed to. The court's decision would certainly have been quicker.

From the affidavit of the plaintiff, the defendant is in the process of selling his interest in the land. That may be the reason why the plaintiff, in paragraph (1) of his application, seeks an injunction restraining the defendant from entering the premises except for inspection purposes.

An interlocutory injunction can only be sought on evidence that reveals prospect for success, as rightly submitted by learned Counsel Mr Nori for the plaintiff, and the principle as to adequacy of evidence, as stated by Palmer J in the case of Guadalcanal Resources Development -v- Dasol Limited and Others Civil Case No.102 of 1996 cited by Mr Nori, is correct. Do we have such evidence in this case? The answer in my judgment is no. The preamble in exhibit AC3, the "tenancy agreement", between the parties does not state that the parties intended sale and purchase, despite the fact that at B it is stated:

"WHEREAS .......................

A.......................

B. The Tenant has occupied the demised premises for the past 37 months on a month to month tenancy and is still in occupation. "

If sale and purchase were agreed upon, that was the place to mention it.

Even more far reaching is the agreement at paragraph 1 of exhibit AC3. It is stated there clearly that the relationship between the parties shall be strictly that of tenancy only. The paragraph reads:

"IT IS AGREED BY AND BETWEEN the parties as follows:

TENANCY

The Landlord agrees to let and the Tenant agrees to continue possession of the demised premises on a month-to-month tenancy commencing on the date of execution of this Agreement, 28th November, 1995, and the relationship between the parties shall strictly be tenancy only. "

The plaintiff has also submitted that apart from the tenancy agreement, the parties had orally agreed to sale and purchase, and that the oral agreement has been partly acted upon. Presumably he meant, by the tenant taking occupation, so that the requirement of S.107 of Lands and Titles Act was compiled with. The evidence shows otherwise. It is clear from the written lease that the occupancy was from 28 November 1995, and that it was the result of a tenancy agreement without qualifying it with sale.

The order sought at paragraph 2 of the application baffles me. There is a signed agreement to let the premises, in it the plaintiff agreed to pay rental of $3,000 per month. It appears it is common ground that before the written lease, the plaintiff was a tenant on a monthly basis in a verbal agreement, also on an agreed sum as monthly rental. I see no reason why the defendant should not continue to receive the rentals. Should the plaintiff proceed to the main trial of the case and should he succeed, then if according to the agreement, the rentals were to be taken into account for purposes of the purchase, then he will lose nothing.

The application is dismissed. Both orders sought are refused. The plaintiff to pay the costs of the application.

Dated at the High Court, at Honiara
this 15th day of August 1996.

S. Lungole-Awich
Judge