In re Mata Nicholas [1984] CKHC 4 (17 August 1984)

IN THE HIGH COURT OF THE COOK ISLANDS
HELD AT RAROTONGA
(LAND DIVISION)

IN THE MATTER OF Section 390A
of the Cook Islands Act 1915

AND

IN THE MATTER OF an application for
Amendment of Order by MATA NICHOLAS

Date of Judgment: 17 August 1984

DECISION OF SPEIGHT C.J.

I am dealing with an application under Section 390A of the Cook Islands Act 1915 wherein Mata Nicholas seeks to have me make an Order remedying an alleged mistake, error, omission or erroneous decision relating to Orders made by the Land Court and the Land Appellate Court in 1943 and 1947. In view of the provisions of sub-section (9) of that section, consent of the Queen's Representative has been obtained to the exercise of this jurisdiction.

Three applications were made by the applicant viz., the present application to me as Chief Justice and applications under section 391 and 450 to the Land Division.

These all touch on Orders relating to the paternity of one, Ramea who was held in those proceedings by the Land Court and the Land Appellate Court to be the son of one, Maanga. In, accordance with normal practice I directed Mr Justice Dillon to make inquiry and to report to me on the matter raised in respect of Section 390A and I have his report dated 12th March 1984.

In his report he also gave progress results in respect of inquiries which he had made into the other two matters which are strictly within the jurisdiction of the Land Division. For this purpose, he heard evidence of many witnesses stretching over several days concerning the genealogy of Ramea and in particular a review of all the evidence relevant to that matter including an examination of the findings of the Courts in the 1940s.

The Section 391 application alleged that the Land Court Order of 29 September 1943 had been obtained by fraud and should be annulled. Having reviewed the evidence, he held this application was not made out and dismissed it. Different considerations needed to be taken into account in respect of the Section 450 application because under that section, the Land Division appears to have the same power as does the Chief Justice under Section 390A viz., to revoke a Succession Orders made in error - 390A of course is not confined to Succession Orders but can relate to any land matters. Nevertheless, in this particular case, the matters under review by Dillon J. and by me are identical and the powers under 390A are general whereas the powers under 450 are specific. Dillon J. has reviewed the evidence given before him and also forwarded me a full transcript of that evidence and all this I have read together with the files relating to the earlier hearings. The Judge however, very properly said, that he would not express his opinion on the evidence he had heard because to do so might exercise an undue influence on me in exercising my powers under Section 390A. Accordingly he adjourned the Section 450 application without expressing views on the evidence presented.

I wish to make the following general observations. Section 390A at first reading, gives the powers of being a procedural remedy for attending to slips or mistakes in the exercise of a court function or any errors of laws particularly of such matters as jurisdiction, and I have previously acted under that section to correct jurisdictional errors.

Nevertheless, the wording of the section is extremely wide and read without limitation would enable a Chief Justice to exercise a general right to rehearing of any matter in the Land Division on any ground at any time. In view of the limitations on rights of appeal which are imposed elsewhere in the Act, I do not think it was intended to be as all encompassing as this. I do not propose to make any general ruling to cover all types of applications which may overlap or encroach upon other provisions in the Act. This must be left until individual cases occur.

However, I am quite clear as to what the situation ought to be in the present instance. If I could detect obvious jurisdictional errors or erroneous decisions on points of law made at any of the hearings in 1943 or 1946, I would so rule. But none are apparent. The other matter which might arise is whether the evidence recently taken and the submissions extensively canvassed in front of Dillon J. called for the earlier Succession Order to be revoked. That is a matter in which Dillon J. who is the specialist experienced in the field of land law and who heard and saw the witnesses, is much better placed than am I and I decline to trespass into an area which is more properly before him. I restrict myself to say that nothing that I have read in any of the material moves me to act under Section 390A and that application is dismissed but without prejudice to the continuation and determination by Dillon J. of the Section 450 application based on all that he has had before him.