Tekaha v Honiara Town Council [1997] SBHC 47; HC-CC 167 of 1997 (10 September 1997)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 167 of 1997

ter">COLLIN TEKAHA

v

HONIARA TOWN COUNCIL

Before: LUe: LUNGOLE-AWICH, J

Hearing: 10^th September 1997 - Judgment: 10^th September 1997

Counsel: A Nori for the plaintiff S Jackson for the the defendant

JUDGMENT

LUNGOLE-AWICH, J:

This case is about a piece of land at Rove in Honiara. The usual identity of the land by parcel number has not been given to court; it might well be that the number has not been yet allocated. Honiara Town Council, the defendant, has constructed a shop and market stall for fish thereon and has allowed the plaintiff, Mr. Collin Tekaha, to occupy it to run retail business. The agreement by which the plaintiff occupied the land is headed, "LICENCE TO OCCUPY PUBLIC LAND." The licencee is Collin Tekaha, the plaintiff, and the licensor is the Commissioner of Lands. The licence is for a fixed term of 12 months from 1.10.1996. The licencee is required to pay, "$200 per year." From those facts the court can at best only assume that the Commissioner of Lands intended to make a grant of long term interest to Honiara Town Council and by the time of the arrangement made by the Council with Mr. Tekaha the process of grant had not been completed.

In the law of landlord and tenant-lease, the lessee cannot challenge the authority of the lessor to lease, so the Town Council has locus standi in the matter. Moreover, Mr. Tekaha's claim for the right to remain on the land for more than 12 months is based on subsequent agreement with the Town Council. His claim is that he has since reached agreement with the Council to buy the interest of Town Council altogether. There is certainly triable issue and there is some prospect for success. The evaluation of what the agreed points amount to is to be left to await the final trial for final determination.

At the moment Mr. Tekaha operates a retail business on the land. Nothing was given about his revenue and therefore his profit in the business and nothing as to whether his losses will not be fully compensated for by payment of money. In those state of facts the court should normally refuse to grant injunction to maintain the status quo. On the other hand Honiara Town Council has done nothing at all about its case. It has in fact not even filed memorandum of appearance. There is no notice to oppose the application and no affidavit in opposition, on the case file. The court has to grant the application of the plaintiff, and order interlocutory injunction restraining the Council from evicting Mr. Tekaha from the land in Rove on which he operates a shop. No reason has been given for the Court to consider ordering the applicant to furnish security or undertaking for damages; no order is made for security or undertaking. The injunction is to last until determination of the case or until further order. Liberty is given to Town Council to apply for order discharging the injunction.

It is appropriate to make two direction orders: 1. The plaintiff is to list this case in not more than 60 days from today for the purpose of him reporting on the progress of the case towards trial, 2. In view of the apparent interest of the Commissioner of Lands, the plaintiff is to serve all case papers so far on the case file, and this judgment on the Commissioner of Lands.

No order as to costs of the application.

Dated this 10^th day of September 1997

At the High Court, Honiara

Sam Lungole-Awich,
Judge