Descendants of Utanga and Arerangi Tumu v Descendants of Iopu Tumu [2009] CKCA 3; CA 3 of 2008 (10 July 2009)

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

CA NO. 3/08

IN THE MATTER of the Cook Islands Act 1915 ss 390A, 391 & 409(e)

AND

IN THE MATTER of the lands known as Mangaiti Kairoa 30 &54 No. 1, Auautangata 56,Vaitakaia 59, Nauparatoa 60,Te Matepa 61, Vairoa 64 & 64B(Ruatonga) Taurupau 69,Rarokava 70 Te Piri 73 (Takuvaine), Koterau 88, Taratiu93 (Ruatonga),Anga Kopua 125(Takuvaine), Rimatara 127N (Araitetonga) Nokii 182 (Ngatipa) Aretura & Takakoka188E N, Vaiokura19B,Rangimar191G (Upper Tupapa) - "the Tumu Lands"

BETWEEN

the descendants of Utanga and Arerangi Tumu
Appellants

AND

the descendants of lopu Tumu
Respondents

Before: Barker JA (Presiding)
Fisher JA
Grice JA

Counsel: Mr M C Mitchell for Appellants
Mrs T P Browne for Respondents

Date of hearing: 09 July 20091
Date of judgment: 10 July 2009

JUDGMENT OF THE COURT

1. In its judgment of 28 November 2008, this Court gave the appellant leave to appeal from part of the judgment of the Chief Justice given on 24 June 2008.

2. The part of the Chief Justice's judgment in respect of which leave to appeal was given was an order made under section 416 of the Cook Islands Act 1915("the Act") validating an order made in 1912 by Judge MacCormick in the Land Court of the times.

3. The facts giving rise to the order made in the High Court are set out fully in the judgment under appeal. They are not contested and can be summarised as follows:

(a) By Order-in-Council of 7 July 1902, the Governor of New Zealand, acting under enabling legislation, established "The Cook and Other Islands Land Titles Court" (the Land Court) which was to consist of no less than two judges one of whom should be the Chief Judge who had to be a European.

(b) By further Order-in-Council of 14 July 1902, Lt. Colonel Gudgeon was appointed Chief Judge and Pa Ariki was appointed a Judge.

(c) Pa Ariki died in 1906 and was not replaced. The Court continued to operate without being properly constituted.

(d) On 13 January 1912, Judge MacCormick was appointed a Judge of the Land Court but not Chief Judge. He purported to exercise jurisdiction in the Court on his own - despite the requirement for two Judges. Lt. Colonel Gudgeon had departed the Cook Islands in 1908.

(e) One of the orders made by Judge MacCormick was that of 30 May 1912 relating to the lands described in the intituling of this appeal in favour of lopu Tumu whose descendants are the present respondents. The present appellants are the descendants of Utanga and Arerangi Tumu who were parties to, the original application. It is not necessary to discuss the facts surrounding the original application in 1912. Adequate coverage can be found in the judgment under appeal and in the report prepared for the Chief Justice by Smith J in respect of the respondents' ultimately unsuccessful s. 390A application.

(f) Judge MacCormick seems to have recognised that there were defects in the constitution of the Court in a letter he wrote to the Minister in charge of Cook Islands Administration on 21 May 1912.

(g) On 11 August 1913, the Order-in-Council was amended to provide for the Court to consist of the Chief Judge and such other Judges as the Governor may appoint. The requirement for two judges to sit was abolished.

(h) Pursuant to this Order-in-Council, Lt. Colonel Gudgeon was re-appointed as Chief Judge for a period of three months. He was tasked with reviewing all Land Court orders made since the death of Pa Ariki and to take such action necessary to validate them. He did not make any amendment to the order under consideration in this appeal. He did correct others.

4. In the light of those facts, the Chief Justice rightly held that the 1912 order purported to have been made by Judge MacCormick, had been made without jurisdiction.

5. In its earlier judgment, the Court raised the possible application to the situation described above of the doctrine of the de-facto judge. The Court is now satisfied that this doctrine has no application on the facts of the present case.

6. Cases on the doctrine, such as re Aldridge (1893) 15 NZLR 361 and Mills & Ors v The State (2005) FJCA 6, show that the defect in appointment should be unknown to the alleged judge and the public at the time jurisdiction was purported to be exercised. Judge MacCormick clearly knew the provisions governing the exercise of jurisdiction but ignored them. It is hard to be critical of someone operating in the early days of the twentieth century when the New Zealand colonial administration of the Cook Islands was in its infancy and communications were rudimentary.

7. The Chief Justice having found that the 1912 order had been made without jurisdiction, considered that the irregularity was one of the "practice and procedure" of the Court and did not go to the substance. He therefore applied s. 416(1) and held that principles of equity and good conscience dictated that the 1912 order be validated.

8. The relevant sections of the Act read as follows:

"Section 399 Validity of orders

"(1) No order of the [Land Court] shall be invalid because of any error, irregularity, or defect in the form thereof or in the practice of procedure of the Court, even though by reason of that error, irregularity, or defect the order was made without or in excess of jurisdiction.

(2) Nothing in the foregoing provisions of this section shall apply to any order which in its nature or substance and independently of its form or of the practice or procedure of the Court was made without or in excess of jurisdiction.

(3) Every order made by [the Land Court] shall be presumed in all Court and in all proceedings to have been made within the jurisdiction of the Court, unless the contrary is proved or appears on the fact of the order.

Section 415 Drawing up of orders heretofore made

Any order made by the Cook Islands Land Titles Court which has not been drawn up, signed, and sealed before the commencement of this Act may be drawn up, signed and sealed by a Judge of [the Land Court], and shall take effect as from the making thereof.

Section 416 Validation of former orders

(1) When any question arises as to the validity of any order made by the Cook Islands Land Titles Court before the commencement of this Act, and [the Land Court] is satisfied that having regard to equity and good conscience such order ought to be validated, [the Land Court] may by order validate the same accordingly.

(2) No such order shall of any force or effect until drawn up, signed and sealed.

(3) No such order shall be signed or sealed until and unless, it has been assented to by the Attorney-General in writing.

(4) Every such order shall take effect as from the date of the "order validated thereby."

9. In the view of this Court, the Chief Justice was right to validate the 1912 order. He noted that the necessary consent of the Attorney-General under s 416(3) had been obtained.

10. We interpret the legislation in the context of this case:

(a) S 399(1) validates orders made because of any irregularity, error or defect in form or in the practice and procedure of the Court, even though such orders may have been made without or in excess of jurisdiction. Such orders do not need to be validated by the Court.

(b) S 399(2) prevents the application of s 399(1) to orders made without jurisdiction which do not come without jurisdiction which do not come within the parameters of s399(1).

(c) The purported order of Judge MacCormick was not encompassed by s 399(1). He lacked fundamental jurisdiction and his purported exercise of it could not be considered a matter of 'practice or procedure.

(d) Accordingly, s416(1) applied to Judge MacCormick's order and the only question for the Court is whether it is satisfied having regard to equity and good conscience, that the order should be validated.

11. This Court agrees with the Chief Justice that the equity and good conscience of the situation requires a validation order to be made. The land concerned has been leased and subdivided many times over the last 97 years. Many persons unconnected with the ancient dispute of 1912 have acquired rights in good faith. It could be unconscionable to expose such persons to the uncertainty that would be generated by a refusal to validate the 1912 order. Moreover, we agree with the Chief Justice that the fact that the order was made by consent strengthens the notion of equity and good conscience applying.

12. Consequently the Court concludes that the validating order made by the Chief Justice under s 416(1) was entirely proper in the circumstances.

13. The appeal is •therefore dismissed with costs of $2000 plus disbursements to the Respondents.

Barker JA

Fisher JA

Grice JA

Solicitors:
Charles Little PC for applicants
Browne Harvey and Associates PC for respondents