Solomon Kitano Mendana Hotel v Apato [2011] SBHC 91; HCSI-CC 08 of 2011 (13 September 2011)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Faukona, J)

Civil Case No. 8 of 2011

BETWEEN:

SOLOMON KITANO MENDANA HOTEL
Claimant

AND:

MARTHA APATO
Defendant

Date of Hearing: 9th September 2011.
Date of Decision: 13th September 2011.

Mr G. Faaitoa for the Claimant.
Mr A. Hou for the Defendant.

DECISION ON APPLICATION TO STAY ENFORCEMENT ORDERS.

Faukona, J: This is an application by the Defendant to stay enforcement orders made by this Court on 13th July 2011. The Orders of 13th July 2011 authorised the Sheriff of the High Court to;

(a) Recover from the Defendant a dwelling unit in the Claimant's property situated upon Parcel Numbers 191-005-59 and 191-005-6 at Point Cruz.

(b) Recover from the Defendant the sum of $14,152.00 being for enforcement application cost and cost for obtaining the judgment.

2. The Defendant is a former employee of the Claimant. After some years of working she decided to resign. During her term of employment she was allowed to occupy a dwelling unit owned by the Claimant in those two parcel numbers of land above.

3. On 13th February 2009, the Defendant by way of a letter gave notice for her resignation. In the letter she stated that 12th March 2009 was supposed to be the last day of her employment.

4. The resignation was accepted by the Personnel Manager on behalf of the Claimant Company per his letter dated 11th March, 2009. Paragraph 3 of that letter expressly stated that the Defendant to return Hotel uniforms and to sign a MOU. The MOU was not signed immediately but fifteen (15) months later. Noted on the MOU is clause 2 (iv) which states, "Mendana will raise payment only after evacuation and the house is emptied on 1st July 2010".

5. The Defendant after eventual formal resignation on 12th March 2009, did not vacate the dwelling unit. Her argument is that there was an agreement that the Claimant would pay her entitlements within three months from the date of her resignation. That agreement may be verbal, but there was no evidence of it, apart from asserting it. Nevertheless, the Defendant relies on the MOU agreement. Months after she had formally resigned she continued to make regular checks on the Claimant's office in regards to when her entitlements be paid. Until this case was filed she is yet to be paid.

6. The parties seem to be firm on their versions of what transpired, and no one dare not to make a move. The Claimant expected the Defendant to vacate the property before her entitlements can be paid. The Defendant relies on the agreement that only if she is paid her entitlements she will definitely move out. She did not deny the rights of ownerships by the Claimant to the property. All she waited for is her payment.

7. Whatever course the parties anticipated was anticipation in vain. Their explanations sound plausible but derived from mythical assertions. The Defendant cannot be held at ransom to allow the Claimant at bay and continue to occupy the property whilst waiting for her payments. Likewise the Claimant cannot withhold the payments due to the Defendant as her entitlement. Either the Defendant moved out and sues the Claimant for non-payment of her entitlements, or the Claimant paid the entitlements and sought order for eviction.

8. Nothing occurred until the Claimant files this case for eviction Orders. I think it is about time that an action must be taken. Had it not, the issue between the parties will linger on for some more years.

9. Having considered the circumstances of this case and the fact that the parties are conscious in making the first move, in case it causes some negative throw back perhaps; it is significant that the Court must intervene to resolve the problem.

10. The only logical intervention is that this application to stay enforcement orders be dismissed. The basis, upon which this decision is reached, is to allow the Defendant to move out from the premises whilst the quantum figure payable in terms of the Defendants entitlement is negotiated. Should there be no agreement in relation to an amount then, let the matter be sorted out in an appropriate Court of law.

11. Meantime I affirm the Orders made by this Court on 13th July 2011 as still enforceable.

Order of the Court.

1. Application dismissed.

2. Enforcement orders made by this Court on 13th July 2011, affirms.

3. Cost of this application is borne by the Defendant.

The Court.