Solomon Islands Water Authority v Commissioner of Lands [2015] SBHC 58; HCSI-CC 05 of 2014 (30 June 2015)

IN THE HIGH COURT OF SOLOMON ISLANDS
Maina J

Civil Jurisdiction
HC-SI CC: 5 of 2014

BETWEEN:

Solomon Islands Water Authority
Claimant

AND:

Commissioner of Lands
1st Defendant

AND:

Peter Pukuvati, Vincent Kurilau, Damaso Roko, Charles Keku Tsilivi, Sam Kulolo
2nd Defendants

Date of hearing: 14th April 2015
Date of Judgment: 30th June 2015

Radclyffe A for the Claimant
Hanu for the 1st Defendant
Tegavota P for the 2nd Defendant

JUDGMENT

Maina J:

The claimant seeks the following declarations and orders from questions and relief sought:

1. Is flowing water extracted by the claimant from the White River/Kongulae water source from Parcel no. 191-064-1 “property” for the purpose of section 8 of the constitution?
   
2. Is the claimant bound by the provision of the lease of Parcel no. 191-064-1 dated 28th November 1983 as varied on 8th January 1991 and made between the defendants?
   
3. Is clause 2 of the variation of the lease dated 8th January 1991 void for uncertainty?
   
4. A permanent injunction restraining the second defendants, servants, agents, relatives, associates, or people they claim to represent from closing or otherwise interfering in any way with the water supply.
   
5. Such other orders or relief as the court may think fit.
   
6. Cost.
   

Brief Background

The claimant is established under Solomon Islands Water Authority Act 1992 (SIWA) (Cap 130) and took over the functions of the Water Unit under the then Ministry of Works in 1993 or by virtue of the Act the function was devolved to SIWA.

The Functions of the SIWA is under section 7 of the Act.

Further section 59 (2) (c) of the Act provides:

“(c) all contracts and agreements entered into for the purposes of the Water Unit and subsisting on that date shall be deemed to be contracts and agreements entered into by the Authority”;

Prior to the establishing of the Solomon Islands Water Authority (SIWA), the Government through the 1st Defendants entered into land lease agreement with the 2nd Defendants who are joint owners of the Parcel no. 191-064-1 to extract water from a spring or water source for SIWA (the then Water Unit). The original lease dated 28th October 1983 and the variation of the lease dated 8th January 1991.

The claimant was not a party to the lease variation, however, by SIWA Act it assumed the function of former Water Unit and the contractual obligation of the 1st Defendant or behalf on Government and such affects its function to deliver the water services to the people in Honiara.

Locus Standi

The lease of Parcel no. 191-064-1 between the 1st Defendant and the 2nd Defendants dated 28th November 1983 and the variation of the lease dated 8th January 1991 is for the then Water Unit to provide water to Honiara. And therefore, by virtue of section 59 (2) of the SIWA Act, the claimant is bound by the consequences of the leases, thus it has a locus standi to seek relief.

Question 1

Is flowing water extracted by the claimant from the White River/Kongulae water source from Parcel no. 191-064-1 property for the purpose of section 8 of the constitution?

First, it should be noted the issue in this case relates to the water that is flowing or be properly described flowing from a spring or water source on the Parcel no. 191-064-1 property or land owned by the people represented by the defendants. The claimant by lease agreement of dated 28th November 1982 and the variation of the lease dated 8th January 1991 to extract and supply to the people in and around Honiara.

Mr. Radclyffe in his submission said that flowing water in a river or stream that comes out from a spring or other water source is not and cannot be owned by anyone. And the counsel for the 1st Defendant in its defence agrees that flowing water is not a property for the purpose of section 8 of the constitution. But Mr. Tegavota for the 2nd defendants in his defence and submission concedes or reluctantly accept that flowing water is not a property and a matter for the court to determine.

While there are certain rights that relates to flowing water, the flowing water is public right as the right to light and air. At common law it is described in Volume 49 Halsbury’s Law 4th Edition paragraph 368 in the following terms:

“368. Rights in flowing water at common law. Although certain rights as regards flowing water are incident to the right of riparian property, the water itself, whether flowing in a known and defined channel, or percolating through the soil, is not, at common law, the subject of property or capable of being granted to anybody. Flowing water is only publici juris in the sense that it is public or common to all who have the right of access to it”

Mr. Radcliff cited the High Court case in Talasasa v Attorney-General [1995] SBHC 27; HC-CC 043 of 1995 (15 May 1995) and Muria CJ, briefly touched on the issue of flowing water:

“Just before I leave this matter, a point has been raised by Counsel for the sixth defendant that nobody has absolute right over flowing water, citing the cases of Williams –v- Morland [1824] EngR 224; (1824) 107 E.R. 620, and Liggins –v- Inge [1831] EngR 706; (1831) 131 E.R. 263. This is the common law position and it is basically saying that no body can claim right of ownership in the flowing water itself. This common law principle is best described by D.E. Fisher in NATURAL RESOURCES LAW in Australia, A Macro-Legal System in Operation, The Law Book Company Limited (1987) pp. 383 – 384 where it is stated that:

First, there is water that simply collects or gathers either naturally or artificially on the surface of the land. Generally it belongs to the owner of the land. Then there is water that flows in a known and defined channel on the surface of the land or underground. Finally, water may flow underground in an unknown channel or merely percolate through the soil and lower strata. All of these forms of water are important. The last two categories moreover are similar. According to the common law, there can be no ownership of flowing water. Such water is publici juris. It is a matter of public not private right. The legal system affords access to such water for use by abstraction and the right is lost as soon as possession is abandoned. The use of water is thus related to but nevertheless separate from the ownership of land."

The plaintiff is obviously claiming the right over the flowing water in the Ziata River. As such I shall say no more on the issue at this stage, save to emphasise that when it comes to be considered, the court will have to bear in mind the guiding principles declared under the Constitution, one of which is that:

"the natural resources of our country are vested in the people and the government of Solomon Islands."

(see Preamble to the Constitution).'

The common law principle that flowing water is publici juris must therefore be considered in the light of the guiding Constitutional principle that I have just mentioned".

The question is who owns the flowing water? And I concur with Muria CJ, that to consider this issue or common law principles that flowing water is publici juris in the light of the guiding Constitutional principle.

The preamble of the Constitution of Solomon Islands which the Constitution is schedule to provide as quoted to by Muria CJ in Talasasa v Attorney-General that the natural resources of our country are vested in the people and the government of Solomon Islands.

By common knowledge, water comes out from defined channel or spring and can be collected or gathered either naturally or artificially on the surface of the land. And given the circumstance or nature of water, it is as air, wind and light, the law has not acknowledge the body of running water in Solomon Islands.

For the SIWA Act, it only provides for the establishment of a water authority for Solomon Islands, to provide for proper management and development of urban water resources and services and sewerage services and other matters connected therewith or incidental thereto. It does not sell water but charges the services of delivering water to users. Hence, the common law developed some rights as a response to the peculiar characteristics of water i.e. the riparian rights doctrine.

At this juncture it is clearly noted that in this claim, the riparian right is not an issue as the right of an owner of the land forming the bank of river or stream to use water from waterway for use on his land for drinking or irrigation. SIWA is concerned on the water coming out from the spring at the 2nd Defendants land Parcel no. 191-064-1.

Schedule 3 of the Constitution

The common law is part of the laws of Solomon Islands and on the application of law schedule 3 of the Constitution in clause 2:

"2.-(1) Subject to this paragraph, the principles and rules of the common law and equity shall have effect as part of the law of Solomon Islands, save in so far as:-

(a) they are inconsistent with this Constitution or any Act of Parliament;

(b) they are inapplicable to or inappropriate in the circumstances of Solomon Islands from time to time; or

(c) in their application to any particular matter, they are inconsistent with customary law applying in respect of that matter.

(2) The principles and rules of the common law and equity shall so have effect notwithstanding any revision of them by any Act of the Parliament of the United Kingdom which does not have effect as part of the law of Solomon Islands".

Applicability of the common law principles of flowing water in Solomon Islands
In common law, the position is that nobody can claim right of ownership in the flowing water. There is no difficulty with the Constitution or Acts of Parliament as I am not able find or have not cited any inconsistency with these common law principles. And the same can be said that no customs which may be said to be inconsistent with these principles.

On any particular question before a court, the determination shall be by reference to the operation Clause 2 of the Schedule of the Constitution, among other things, to the circumstances of the case, including the time and place of any relevant deal, act or event.

In considering of the applicability or inappropriateness in the circumstances of Solomon Islands from time to time, I must not take it for granted that the common law principles should apply and or care must be taken in rejecting the principles. A similar consideration must also be placed on the consistency with the customary law and in particular to the unwritten nature and likely change of the custom from time to time.

Further, Common Law cannot be applied just because it is not inconsistent with constitution and statutes but importantly rendered necessary in the local circumstances. This is best described by Lord Denning in the case of Nyali Ltd. V. Attorney-General [1956] 1 QB 1, when said:

"The next proviso provides, however, that the common law is to apply 'subject to such qualifications as local circumstances render necessary.' This wise provision should, I think, be liberally construed. It is a recognition that the common law cannot be applied in a foreign land without considerable qualification. Just as with an English oak, so with the English Common Law. You cannot transplant it to the African continent and expect it to retain the tough character which it has in England. It will flourish indeed, but it needs careful tending, so with the common law. It has many principles of manifest justice and good sense which can be applied with advantage to peoples of every race and colour all the world over: but it has also many refinements, subtleties and technicalities which are not suited to other folk. These off-shoots must be cut away. In these far-off lands the people must have a law which they understand and which they will respect. The common law cannot fulfil this role except with considerable qualifications".

With that the task of making these qualifications is entrusted to the judges of these lands. It is a great task which calls for all their wisdom.

With the circumstances, it depends on what the principle is dealing with, a question of custom, a system of government or the law as provided by the Constitution or statutes of this country.

In this case, we are dealing the rights of people on the natural resources of our country that are vested by the Constitution in them and the government of Solomon Islands and the right of people who are owners of the land that we can access the use of the natural resources (water). Providing water by plumbing through pipes is an introduced system otherwise the common system for the people of this country is by collecting water at the sites, springs, riverbanks or streams.

In spite of what we may say, it is common knowledge that water is essentially or necessity of the human being. It is always advocated by health officials in public talks and media etc that "water is life". This sum up what I would say on the qualifications as local circumstances render necessary or local circumstances on applying this common law on water.

The question to ask here is whether the laws or Acts expressly or impliedly provides for the ownership of flowing water which would give this Court assistance in coming to a conclusion on this matter, but I have allude earlier both the Constitution and statutes made no provisions for the ownership of flowing water in Solomon Islands.

And I am satisfied that the common law principles of nobody own flowing water is not inconsistent with any law or Acts and; its applicability or appropriateness in the circumstances of Solomon Islands is not inconsistent with the Schedule 3 of the Constitution and therefore make a ruling that it is the law in Solomon Islands on the flowing water.

Nobody owns flowing water in Solomon Islands and it is of public right and on that ruling, flowing water extracted by the claimant at the White River/Kongulae water source from Parcel no. 191-064-1 is not property for the purpose of section 8 of the Constitution.

Question 2

Is the claimant bound by the provision of the lease of Parcel no. 191-064-1 dated 28th November 1983 as varied on 8th January 1991 and made between the defendants?

The claimant is established by Act of Parliament of the Solomon Islands "Water Authority Act" (Cap 130) and by section 7 of the Act it assumed the function of providing the water services to the people of Honiara from the then Water Unit of the Ministry of Works.

The 1st Defendants entered into land lease agreement with the 2nd Defendants who are joint owners of the Parcel no. 191-064-1 to extract water from a spring or water source for SIWA (the then Water Unit). The original lease dated 28th October 1983 and the variation of the lease dated 8th January 1991.

And by virtue of section 59 (2) © of the SIWA Act, all contracts and agreements entered into for the purposes of the Water Unit and subsisting on that date shall be deemed to be contracts and agreements entered into by the Authority; thereby the claimant is bound by the consequences of the leases.

Therefore the claimant is bound by the law of the lease of Parcel no. 191-064-1 dated 28th November 1983 as varied on 8th January 1991 that were entered into by the defendants.

Question 3

Is clause 2 of the variation of the lease dated 8th January 1991 void for uncertainty?

Clause 2 of the variation as amended and submitted by Mr. Radclyffe now to be read as:

"2. The rent shall be reviewed every (5) years on the basis of increasing the previous years by 25% of the total unit consumption with the first revision taking effect from 2nd January 1991".

Mr Radcliff in his submission said that the claimant object to this as it purports to calculate the rent by reference to the amount of water consumed or supplied by SIWA from the water source. If flowing water cannot be owned by the second Defendant or anyone else then they cannot charge the Government or SIWA for the water supplied. All they are entitled to is reasonable rent for the use by SIWA of the land and access to it.

On that basis, Mr. Radclyffe said the amended clause makes no sense and is void for uncertainty.

On this question, the First defendant seems to agree with the claimant that this clause 2 is void for the reason of uncertainty. They submitted that clause 2 of the variation of the lease purports to increase the annual rent by 25% based on the total unit of water consumed, while this is a rent of the land and not the water consumed. However, they submitted that the question needs to be considered with the riparian rights to the land.

On this riparian rights as I have alluded earlier, SIWA is concerned on the water coming out from the spring at the 2nd Defendants land Parcel no. 191-064-1.

Mr. Tegavota for the 2nd defendants in his defence and submission concedes or that as it stands this clause is proper and subject to its interpretation and determination as to its validity. He said that a review of the lease is overdue and this action is a reflection of the problem that could have resolved had the lease been reviewed by the parties.

The Court

The two facts are clear here that nobody owns water and its public right and all parties in this case desire the court determine the issue relates to this Clause 2.

There is no dispute on the entire Lease Variation dated 8th January 1991 except on parts the clause 2 that relates to increase of rent on the reason of uncertainty. From the submissions all the parties seems to imply that uncertainty. In other words, there is nothing wrong on the rent of Parcel no. 191-064-1 except the basis of increasing the rent every five years to be calculated on the total water consumed or supplied by SIWA from the water source.

Both defendants were not able to indicate any reasons for the clause 2 or the basis of calculating the increase of the rent with the total water consumed or supplied by SIWA. That may be viewed as to their positions or uncertainty of Clause 2 in the Variation of the Lease. This is so as at least they said something of the inclusion that provision in the lease.

Schedule 2 of the Original Lease provides that the land is to be used only for the construction of pipelines and associated facilities (including a site for pump attendant's house) for providing water for Honiara. There are two parts or elements here, one is to the use of the land and the other is providing water for Honiara. The former is that subject to rent and the amount is varied or by the total water consumed or supplied by SIWA of 8th January 1991 to $32,000.00. And a distinct other is the use of the flowing water or providing of water for Honiara which cannot make any value to the land that is subject to rent. Rent of property must be certain and any review or increase is to be directly relates to the property owned and subject for the lease. It cannot be based on a distinct matter.

For this clause 2 or section 2 of Lease Variation of 8th January 1991, any increase rent of 25% be determined from water consumed or total unit consumption. It may not be so because the water is owned by the defendants.

To that effect, I rule that clause 2 of the variation of the lease dated 8th January 1991 do not have basis and therefore is void for uncertainty.

4. Permanent Injunction

On the relief for a permanent injunction, Mr Radclyffe submitted that from time to time, closer by the 2nd Defendant or members of their tribes and others have cut the off the water supply or interfered with it thereby caused great inconvenience to SIWA and the people of Honiara. But the dispute is just over the payment and do not give them right to close the water supply.

I noted Mr. Tegavota's response to this issue on his defence, however, it is common knowledge that water supply to Honiara have been disturbed when there is problem rents to the payment of the rent.

A lease of the property was made on 28th November 1983 to access the water and is for 75 years except clause 2 in the lease variation in 21st January 1991, which I have ruled to be void of uncertainty. The fact or situation as highlighted by Mr. Radcly ffe that from time to time closer by the 2nd Defendants or members of their tribes and others have cut the off the water supply when issue of rent comes up.

I am satisfied with the relief sought for permanent injunction is therefore granted.

ORDERS

1. Nobody owns flowing water in White River/Kongulae water source from Parcel no. 191-064-1 property and it is of public right.
   
2. Flowing water extracted by the claimant at the White River/Kongulae water source from Parcel no. 191-064-1 is not property for the purpose of section 8 of the Constitution.
   
3. By virtue of section 59 (2) © of the SIWA Act, the claimant is bound to all contracts and agreements and so the lease of Parcel no. 191-064-1 dated 28th November 1983 as varied on 8th January 1991 that were made between the defendants.
   
4. Clause 2 in the Lease Variation dated 8th January 1991 is void for uncertainty.
   
5. A permanent injunction restraining the second defendants, servants, agents, relatives, associates, or people they claim to represent from closing or otherwise interfering in any way with the water supply.
   
6. Costs for claimant.
   

Leonard R. Maina
Puisne Judge