Walesaefala v Solomon Islands Water Authority [2024] SBCA 5; SICOA-CAC 13 of 2022 (31 May 2024)

IN THE SOLOMON ISLANDS COURT OF APPEAL

Case name:	Walesaefala v Solomon Islands Water Authority
Citation:
Decision date:	31 May 2024
Nature of Jurisdiction	Appeal from Judgment of The High Court of Solomon Islands (Keniapisia J)
Court File Number(s):	13 of 2022
Parties:	Francis & Elizabeth Walesaefala v Solomon Islands Water Authority, Attorney General
Hearing date(s):	22 May 2024
Place of delivery:
Judge(s):	Muria P Palmer JA Gavara-Nanu JA
Representation:	L Kwaiga for the Appellant L Hite 1st Respondent F Fakarii for 2nd Respondent
Catchwords:
Words and phrases:
Legislation cited:	Solomon Islands Water Act cap 180S 12 (3), S 18 and 19, S 3 (1) Limitation Act cap 18 S 17 and 39
Cases cited:	Australia in Australian Coal and Shale Employees Union v. The Commonwealth [1956] 94 C.L, House v. The King [1936] HCA 40, Sa’oghatoga v. Mugaba Atoll Resources Company [2015] SBCA 4,
ExTempore/Reserved:	Reserved
Allowed/Dismissed:	Allowed
Pages:	1-9

JUDGMENT OF THE COURT

1. The appellants filed a Category A Claim against the respondents in the High Court claiming SBD$10,850,000.00 in compensation for the use of their customary land by Solomon Islands Water Authority (“the first respondent” hereon). The land is described as Parcel Number 191-052-451, in Kobito and the claim relates specifically to the catchment area of the dam which supplies water to Honiara city (“the land “hereon).
2. Notably, the amount claimed was said to be the balance from the SBD 150,000.00 already paid to the appellants by the respondents. This amount was paid in three lots of SBD50, 000.00. on three separate occasions. The total amount claimed being SBD11, 000,000.00.
3. It is not disputed that the appellants are the owners of the land. They hold a Perpetual Estate over it.
4. In the court below, the respondents made an interlocutory application under Rule 9. 75 (a) and (b) of Civil Procedure Rules, 2007 to strike out the appellants’ claim for being frivolous and vexatious and not disclosing a reasonable cause.
5. The application was heard by the primary judge on 20 May 2022, the decision was given on 1^st June, 2022. In the decision the primary judge held that appellants had conceded among others, that their claim was statute barred. For that reason the primary judge held that there was no chance the claim could succeed if it proceeded to trial and struck it out.
6. The primary judge in his decision gave a brief history of the claim and how the first respondent came to occupy the land at independence in 1978. His Lordship held among others, that once the land was declared a catchment area of the dam, it became under the direct control and management of the first respondent for the purposes of supplying water to Honiara City.
7. The primary judge also found that appellants had conceded the authority of the first respondent to enter the land and construct and install infrastructure to supply water. Thus, it was also held that the first respondent is immune from any civil liabilities.
8. The Primary judge said the claimants could be compensated generally under s.12 (3) Solomon Islands Water Act.

Grounds of appeal

9. The appellant raised 5 grounds of appeal which may be summarized as follows:
   1. The learned primary judge erred in law when be held that appellants’ claim was statute barred under s.5 of the Limitation Act, Cap 18, without considering ss.17 and 39 of the Act.
   2. The learned primary judge erred in law when he held that s.12 of the Solomon Islands Water Authority Act, Cap.180 applied to the appellants’ claim without considering that the claim was related to compensation in respect of the catchment area covered under ss.18 and 19 of the Act. And not to any work undertaken by the first respondent as defined in s. 3 (1) of the Solomon Islands Water Authority Act.
   3. The learned primary judge erred in fact and law by misdirecting himself that the appellants had conceded the respondents’ strike out application. The learned judge also erred in law when he held that the appellants had conceded that s. 12 of the Solomon Islands Water Authority Act, Cap 180 applied to their claim.
   4. The learned primary judge misdirected himself when he found that the appellants’ claim did not disclose a reasonable cause of action, and was frivolous and vexatious under Rule 9. 75 (a) and (b) of Civil Procedure Rules, without considering s. 183 of the Land Title Act (as amended).
   5. The learned primary judge erred in fact and or in law in finding that the appellants’ claim did not disclose a reasonable cause of action under Rule 9.75 (b) of Civil Procedure Rules, when there were issues of law and fact which required proper and full determination in a trial.

Submissions

10. The counsel for the appellants submitted that the appellants’ claim raised serious factual and legal issues which could only be properly determined at a trial. The claim could not be properly determined in an interlocutory application as happened here. It was therefore submitted that the primary judge erred in striking out the appellants claim.
11. The counsel submitted that the appeal should be allowed and the decision of the primary judge set aside and the matter remitted to the High Court for the appellants’ claim to be tried.
12. The counsel for the first respondent submitted that the appellants’ claim did not disclose a reasonable cause of action and the appellants failed to disclose the losses they suffered. Thus, it was argued that primary judge was right in striking the claim out. It was argued that the appellants could not rely ss.18 and 19 of the Solomon Islands Water Authority Act, because they failed to disclose their losses.
13. The counsel for the second respondent basically argued in support of the arguments advanced by counsel for the first respondent.
14. The counsel for the appellants in response reiterated that there were serious issues of fact and law and the primary judge should have refused the respondents’ application to strike out and ordered the issues to proceed to trial.

Consideration

15. The decision appealed against here relates to exercise of discretion regarding practice and procedure. It is trite law that for the appeal to succeed the appellants must demonstrate that the learned primary judge erred in exercising his discretion in striking out the appellants’ claim. The oft cited principles which an appellate court should have regard to when deciding whether it should interfere with the decision of the primary judge were succinctly stated by Kitto J. of the High Court of Australia in Australian Coal and Shale Employees Union v. The Commonwealth [1953] HCA 25; [1956] 94 C.L.R 621 at 627. These principles have been widely adopted by the courts in this and other jurisdictions. His Honour stated the principles in this way:
    • “The appellant Court will not interfere with a discretionary judgment on a procedural matter within its jurisdiction except where the exercise of that discretion is wrong. A discretionary judgment will be set aside if an identifiable error occurred in the exercise of the discretion. Alternatively, it may be set aside where there is no identifiable error, but the resulting judgment or order is unreasonable or plainly unjust” and such an error can be inferred.”
16. These principles were stated broadly by the High Court in a much earlier case of House v. The King [1936] HCA 40; (9136) 55 C.L.R 499 at 504 505 per Dixon, Evatt and McTiernan JJ. Their Honours said:
    • “The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure to properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”
17. Having regard to these principles, we find that there are matters which the learned primary judge failed to consider or overlooked, the obvious one being that the respondents had already made SBD150, 000.00 to the appellants in three different occasions as compensation for the land. There is evidence that the parties had some discussions on the appellants’ claims possibly for more compensation over the use of the subject land. The issue appears from the materials before the court to be an ongoing one. The other pertinent matter which the primary judge appears to have overlooked is that the appellants held a perpetual estate over the land, after the ownership of the land was transferred to the appellants by the Commissioner of lands. Thus, the appellants’ ownership rights over the land is not in dispute, and in our view, these issues could only be fully and properly determined in a trial.
18. It is also an established principle that where a statement of claim discloses some cause of action or raises some question of fact that in itself requires full trial, and the claim should not be struck out in an interlocutory application as happened here. A primary court should exercise its discretion sparingly in striking out claims and only in obvious and clear cases. See, Sa’oghatoga v. Mugaba Atoll Resources Company [2015] SBCA 4.
19. The issue of whether the appellants’ case was statute barred was a core issue which in our view required a full determination in a trial because for the appellants, the issue of compensation for their land was an ongoing one. The case of Sa’oghatoga v. Mugaba Atoll Resources (supra) is the case in point. There, this court said:
    • “...A claim of trespass is undoubtedly a reasonable cause of action in itself and, if the claim is brought by a person entitled to bring it, that is generally sufficient to defeat an application to strike it out. Even if, as in the present case, there is evidence produced by the party applying to strike out which strongly challenges the claim, the final decision of what has been proved on balance is a matter for trial judge, who will see and near the whole of the evidence”.
20. The appellants’ claim was based on trespass into their land. In this regard, we also note that the learned primary judge ironically said the following in his concluding remarks: -
    • “This may be the right time for responsible authorities to correct the unfortunate decision that the COL made in 2003. The cause of action may still be ongoing”. (Our underlining).
21. In this remark, the primary judge appears to have been referring to the transfer of the ownership of the subject land to the appellants by the Commissioner of lands.
22. For the foregoing reasons, we allow the appeal and set aside the orders of the primary judge.
23. The matter is remitted to the High Court to be fully tried.
24. The respondents will pay the appellants’ costs of and incidental to this appeal, which if not otherwise agreed are to be taxed.

Muria P
Palmer JA
Gavara-Nanu JA