Walesaefala v Solomon Islands Water Authority [2022] SBHC 21; HCSI-CC 147 of 2015 (1 June 2022)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Walesaefala v Solomon Islands Water Authority
Citation:
Date of decision:	1 June 2022
Parties:	Francis Walesaefala and Elizabeth Walesaefala
Date of hearing:	20 May 2022
Court file number(s):	147 of 2015
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Keniapisia; PJ
On appeal from:
Order:	The amended application for striking succeeds by concession. No order on cost.
Representation:	Mr Upwe B for the Claimants/Respondents Mr Fa’aitoa G for the 1st Defendant/ Applicant Ms Fakari’i F for 2nd Defendants/Supports Applicant
Catchwords:
Words and phrases:
Legislation cited:	Solomon Islands Water Authority Act [cap 130], S 21, S 11 (1) (a) , S 12, S 13 (3), Solomon Islands (Civil Procedure) Rule, r9.75 (a)-(c), Limitation Act [cap 18] S 5, Land and Titles Act [cap 133] S 229
Cases cited:

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 147 of 2015

BETWEEN

FRANCIS WALESAEFALA AND ELIZABETH WALESAEFALA
(Claimants/ Respondents

AND

SOLOMON ISLANDS WATER AUTHORITY
(Also known as “Solomon Water”)
1^st Defendant/Applicant

AND:

ATTORNEY GENERAL
(Representing Commissioner of Lands and Registrar of Titles)
2^nd Defendant

Date of Hearing: 20 May 2022
Date of Ruling: 1 June 2022

Mr Upwe B for the Claimants/Respondents
Mr Fa’aitoa G for 1^st Defendant/Applicant
Ms Fakari’i F for 2^nd Defendant/Supports Applicant

RULING ON APPLICATION TO STRIKE CLAIM

1. Court convened this morning to hear Solomon Water’s application to strike the claim. Counsel Fa’aitoa took time to inform the Court about a concession, claimants made on the said application. The concession means the amended application and the substantive claim are terminating prematurely. This ruling will high light the grounds upon which the concessions have been reached. The grounds are mainly points of law, which shows, that the claim does not stand a chance to succeed or as Counsel put it, the claim is untenable.
2. A further amended claim was filed on 17/01/2018. The further amended claim shows that claimants became the registered owners of Perpetual Estate (“PE”) in PN 191-052-451, situated at Kombito, East Honiara in 2003. Statement of case disclosed that Solomon Water’s dam is built on claimants’ PN 191-052-451 (“PN 451”) – called Kombito Catchment Dam (“KCD”). Claimants alleged this is tantamount to trespass. So claimants seek compensation in this claim, for a quantum, in excess of $10.8 million Solomon dollars.
3. The history of KCD goes a long way back to 1964, when the Kombito area was declared as a Catchment Area under the Solomon Islands Water Authority Act (Cap 130) – “SIWA Act”. At independence, in 1978, Kombito became a Catchment Area under SIWA Act. The Act and Regulation – shows that Kombito Catchment Area (“KCA”) had both ground water catchment and spring source catchment. Once an area is declared a Catchment, under SIWA Act, all human activities on the land, will cease and the area will be under the control and management (ownership) of Solomon Water, for the purpose of supply of water, to urban populace, in this context, Honiara City.
4. Pre-independence, the KCD/KCA were situated on state owned land (PN 451). The Commissioner of Land (“COL”) held the PE in PN 451. From 2003 onward however, the COL gave the PE of PN 451 to claimants. The merit of the decision is outside the scope of this claim. However, one cannot go past, unnoticed, the unfortunate decision, COL made to give away PN 451 to private ownership. Claimants thought they could become rich overnight, now that a public utility asset (KCD/KCA), is sitting right on top of their property. Materials alleged claimants have attempted to shut the KCD from use, demanding compensation, for trespass. Government has to step in to avert a possibly fatal situation for Honiara City residents, that depend on KCD, for their water consumption.
5. And so claimants want Solomon Water to pay them compensation in the sum exceeding $10.8 million Solomon dollars. Claimants plead they have already received part payment ($150,000.00). This claim seeks to recover the outstanding balance.
6. Solomon Water entered amended defence on 28/2/2018. Solomon Water deny liability to pay compensation. Solomon Water contend that the KCA/KCD is under the control and authority of Solomon Water under Catchment Area(s) for Honiara City urban area – under the Regulation made pursuant to Section 21 of the SIWA Act. And that claimants have not established any basis in law or otherwise for Solomon Water to pay them compensation.
7. The Attorney General also entered defence. And say that Kombito is a Catchment Area, under Statute. And deny claimants are entitled to compensation. But admitted that COL did the unfortunate thing and transferred what is a Catchment Area (public utility asset) to private ownership. Defence is saying that the COL was wrong in giving away into private ownership, a land that accommodates a public utility asset – a source of clean water supply to parts of Honiara City like Kukum, Central Honiara, Panatina, Ranadi and even up to Henderson (the airport).

This Amended Application

8. By amended application filed on 29/4/2022, Solomon Water wanted the Court to strike the further amended claim under Rule 9.75 (a) – (c). Additionally, for the Court to dismiss the said claim under Section 5 of the Limitation Act (Cap 18). Before hearing commenced, Counsel have reached consensus. Claimants have conceded that their claim is untenable. That it is clear from the further amended claim and the amended application that Section 5 of the Limitation Act (Cap 18) does apply. So the further amended claim is Statute barred.
9. Mr Fa’aitoa submitted that under Section 5 of the Limitation Act (Cap18) claimants could only lawfully file a claim in this Court, within 6 years, after the cause of action had accrued/arisen. That would be by 2008, because claimants took ownership of the KCA/KCD land in year 2003. By 2014/2015, when the claim was first filed, it was already 12 years from the date the cause of action (alleged trespass) arose/accrued. The said Section 5 of the Limitation Act (Cap 18) provides: -
   • “Except as otherwise provided in this Act, no action shall be brought, nor any arbitration shall commence, after the expiration of 6 years, from the date on which the cause of action accrued”.
10. So indeed at the time of filing the original claim in 2014/2015, the claim was already Statute barred by some 12 years. Former Counsel, who filed the original claim failed to detect, the Statute limitation brick wall, his client’s case was destined to hit.
11. Mr Fa’aitoa also submitted that concession was reached because claimants accepted that Solomon Water has statutory powers to enter on any land to construct water supply infrastructure and installation and enjoy immunity from civil liabilities. Counsel cited Section 11 (1) (a) and Section 12 of SIWA Act. Section 11 (1) (a) provides: -
    • “ The Authority may by its employees and authorised persons –
    • Enter and occupy land and there exercise any of its functions including the carrying out of any work on, below or above the surface of the land.”
12. Section 12; provides for the avenue and manner, in which reasonable compensation, may be paid to persons, whose land, Solomon Water has entered and used for any purposes relating to supply of water under SIWA Act. For instance, under Section 12 (3) compensation claim may be effective against Solomon Water within 6 months of the damage complained of.

Conclusion and Orders

13. In view of the claim being Statute barred and statutory powers vested on Solomon Water, to enter upon any land, for purpose of carrying out its functions, under SIWA Act, claimants concede that the claim is destined for striking out because, the claim and the reliefs sought are not tenable at law. There is no chance that the claim will succeed - claim has failed to disclose a reasonable cause of action (Rule 9.75 (b)). And is a ground for striking out.
14. Let me quickly put down for the record two unfortunate things, deduced from the materials. First the COL gave away crown land in 2003, in disregard to KCD/KCA, being a declared Catchment Area under SIWA Act and Regulations. Secondly, claimants got PN 451 for a mere $1,500.00 in 2003. And now they want to earn millions of dollars overnight, at the likely detriment to the greater public good of humanity - population of Honiara City, who depend on KCD for their livelihood. Claimants need to act with humanity and sincerity. And not to use their ownership to threaten lives, by closing the water source. Materials showed they attempted doing that at one stage forcing the Government to step in. If challenged the transfer of PN 451 to private ownership may become null and void, because the grant (agreement) had violated against Statute. Alternatively, the grant may likely amount to mistake. And hence a ground for rectification under the Lands and Titles Act (Cap 133) – Section 229. 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.
15. The amended application for striking succeeds by concession. No order on cost.

THE COURT
JUSTICE JOHN A KENIAPISIA
PUISNE JUDGE