Ariki v Upokotini [2006] CKCA 1; CA 17.2005 (2 June 2006)

IN THE COURT OF APPEAL OF THE COOK ISLANDS
HELD AT RAROTONGA

CA NO. 17/05

IN THE MATTER of Section 390A of the
Cook Islands Act 1915, Rule 338 of the Code of Civil
Procedure of the High Court 1981

AND

IN THE MATTER of the office of PA ARIKI

AND

IN THE MATTER of the determinations
of Dillon J and Greig CJ delivered in the High Court
at Rarotonga on 21 December 1990 and 2 July 2004
respectively that Pa Marie Teariki Upokotini is the
rightful holder of the office of Pa Ariki

AND

IN THE MATTER of an application for Rehearing by
PA MOEROA TETIANUI ARIKI of Rarotonga
Intended Appellant

AND

PA MARIE TEARIKI UPOKOTINI
Intended Respondent

Counsel: Mr JJ Ka, agent, for the intended Appellant in support (by leave of Court)
Mrs TP Browne for intended Respondent to oppose
Mr T Elikana for Solicitor-General as amicus curiae

Hearing: 31 May 2006
Judgment: 2 June 2006

JUDGMENT OF THE COURT

1. The intended Appellant seeks leave to appeal from the judgment of Williams, CJ delivered in the High Court on 25 October 2005.

2. The Chief Justice on that date made an order under s. 390A(3) of the Cook Islands Act 1915 ('the Act') adopting a report dated 22 September 2005 made by Smith J in the Land Division of the High Court. This report recommended the dismissal of an application brought by the intended appellant under s. 390A(1) to set aside applications determined by Dillon J on 21 December 1990 and Greig CJ on 2 July 2004 concerning the Office of Pa Ariki.

3. The application for rehearing was filed on 18 August 2005 accompanied by submissions and affidavits. On 30 August 2005, the Chief Justice granted the application by the intended respondent that the rehearing application be referred to the Land Division of the High Court for a report in terms of s. 390A(3). We were informed by Mrs Browne from the bar that such a reference is usual for such applications.

4. Smith J conducted a hearing at which both parties were represented before submitting his report. The Chief Justice decided to act on Smith J's recommendation in his report without a formal sitting and without hearing the parties further. He purported in this regard to act under s. 390A (3). He called for submissions on costs.

5. The intended appellant sought leave from the High Court to appeal to this Court from the decisions of the Chief Justice. It was submitted that s. 390A(2) was unconstitutional in that it states that there is no right of appeal from the refusal of the Chief Justice to make an order for rehearing under s. 390A(1).

6. Because of the constitutional argument, the Chief Justice, on 2 May 2006, removed into this Court the application for leave to appeal. He also requested the Registrar to advise the Solicitor-General of the application. Mr Elikana appeared on behalf of the Solicitor-General and made helpful submissions as amicus.

7. The application under s. 390A(1) had been lodged on behalf of the intended appellant by an agent, Mr Joseph Ka, who is not qualified as a barrister or solicitor in the Cook Islands or anywhere else. He had appeared before Smith J when he was making his enquiry as ordered by the Chief Justice. An agent who is not legally qualified may appear for a party in the Land Division with the approval of a Judge or Justice of the Peace (see Law Practitioners' Act 1993-4 s. 61(2)). Otherwise, s. 8(1) of that Act prevents persons not enrolled under the Act from acting in the High Court or Court of Appeal.

8. S. 42 of the Judicature Act 1980-1 gives a right of audience in the High Court to barristers and solicitors and to any agent for a party with leave of the Court, which can be withdrawn at any time.

9. Mr Ka applied to the Court to be heard on behalf of the intended appellant on the present application. The Court decided to allow him to do so on the grounds that he had legitimately been representing the Appellant as agent in the Land Division before Smith J and that his present application had been removed from the High Court to this Court. We granted leave to Mr Ka to appear with reluctance because the constitutional issues raised required the assistance of legal counsel. Mr Ka is not to consider our concession to him to appear before this Court on this occasion as a general permission for him to appear for other persons in this Court, even in land matters.

10. S. 390A (1) to (3) provides as follows:-

"390A. Amendment of Orders after title ascertained -

(2) Where through any mistake, error or omission whether of fact or of law however arising, and whether of the party applying to amend or not, the Land Court or the Land Appellate Court by its order has in effect done or left undone something which it did not actually intend to do or leave undone, or something which it would not by mistake, error or omission have done or left undone, or where the Land Court or the Land Appellate Court has decided any point of law erroneously, the Chief Judge may, upon the application in writing of any person alleging that he is affected by the mistake, error, omission or erroneous decision in point of law, make such order in the matter for the purpose of remedying the same or the effect of the same respectively as the nature of the case may require; and for any such purpose may if he deems it necessary or expedient to amend vary or cancel any order made by the Land Court or the Land Appellate Court or revoke any decision or intended decision of either of these Courts.

(3) Any order made by the Chief Justice upon any such proceedings amending, varying, or cancelling any prior order shall be subject to appeal in the same manner as any final order of [the Land Court] but there shall be no appeal against the refusal to make any such order. (Emphasis added).

(4) The Chief Judge may refer any such application to the Land Court for inquiry and report or otherwise deal with the application without holding formal sittings or hearing the parties in open Court."

11. S. 390A was inserted by the New Zealand Legislature into the Cook Islands Act 1915. The expression 'Chief Judge' and 'Land Court' must now refer to the 'Chief Justice' and 'the Land Division' of the High Court. See Article 48(2) of the Constitution. The Cook Islands Legislature has not repealed s. 390A which is still in full force and effect.

12. Article 60 of the Constitution deals with the jurisdiction of the Court of Appeal. Subsections (1) and (2) provide:

"Jurisdiction of Court of Appeal:

60. (1) Subject to the provisions of this Constitution, the Court of Appeal shall have jurisdiction to hear and determine any appeal from a judgment of the High Court.

(2) Subject to the provisions of this Constitution, and except where under any Act a judgment of the High Court is declared to be final, an appeal shall lie to the Court of Appeal from a judgment of the High Court" (Emphasis added).

13. The submission of counsel for the intended Respondent was that s. 60(2) of the Constitution is clear. S. 390A(2) expressly states that in a situation such as the present, where the Chief Justice has refused to make an order under s. 390A(1), there is a declaration in the Act that the judgment of the High Court is to be final.

14. In the Court's view, Mrs Browne's submission is unanswerable. Mr Ka's submissions concentrated on the possible unfairness of such a provision. He sought to touch on the merits of a possible appeal. However, such a provision is not unusual. See De Morgan v Director General of Social Welfare [1997] 3 NZLR 385 where the Privy Council held that it had no jurisdiction to consider an appeal from the New Zealand Court of Appeal in circumstances where legislation had stated that the decisions of that Court in certain types of cases were to be 'final' or 'final and conclusive'. Lord Browne-Wilkinson, delivering the advice of the Judicial Committee said at 381:

"In the present cases the New Zealand legislature has, on the true construction of the statutes, provided that the decision of the Court of Appeal shall be final. Since the Court of Appeal is the ultimate Court of Appeal locally situate in New Zealand, the only possible intendment of such words is to exclude the only remaining right of appeal i.e. appeal by special leave to the Privy Council. That being so, and there being no challenge to the powers of the New Zealand legislature to pass such legislation, the statutes effectively exclude any appeal to the Privy Council."

15. Accordingly, there is no right of appeal to this Court because the limitation of a right to appeal in s. 390A (2) is recognized by the Constitution. The application must therefore be dismissed. The Respondent is entitled to costs which we fix at $750 plus disbursements (if any) as fixed by the Registrar.

16. However, before parting with this case, the Court mentions one matter referred to by Mr Ka in his submissions. Namely, the constitutionality of s. 390A(3) which purports to give the parties no right to be heard by the Chief Justice before making an order under s. 390A(1) after he has received a report from the Land Division.

17. The relevant part of the Constitution in this context are Article 65(1) (d) which reads:

"Construction of law

65(1) Subject to subclause (2) of this Article and to subclause (2) of Article 64 hereof, every enactment shall be so construed and applied as not to abrogate, abridge, or infringe or to authorize the abrogation, abridgement, or infringement of any of the rights or freedoms recognized and declared by subclause (1) of Article 64 hereof, and in particular no enactment shall be construed or applied so as to -

(a) ......

(b) ......

(c) ......

(d) Deprive any person of the right to a fair hearing, in accordance with the principles of fundamental justice, for the determination of his rights and obligations before any tribunal or authority having a duty to act judicially; or..."

18. Mr Elikana submitted that a previous decision of this Court in Clarke v Karika [1985] LRC (Const.) 732 held that any law existing before the coming into force of the Constitution could not be said to be contrary to Article 64 of the Constitution which lay down fundamental human rights and freedoms. S. 390A was enacted prior to the coming into effect of the Constitution. We agree that Clarke's case applies to s. 390A and is therefore not amenable to challenge under Article 65 of the Constitution.

Barker JA
Henry JA
Paterson JA