Moeau v Ngametua [1985] CKHC 8 (8 March 1985)

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 the land TE ARAKURA SECTION
83A & B1, 2, & 3, ARORANGI

BETWEEN

METUA MOEAU
of Rarotonga, Native Landowner
Applicant

AND

NGAMETUA and TAIMAU
being persons named by the
Land Court as owners in TE ARAKURA
SECTION 83A & B1, 2, 3, ARORANGI
Defendants

TO: The Chief Justice
High Court
RAROTONGA

Report by Dillon J.

This report deals with an application pursuant to the provisions of Section 390A of the Cook Islands Act 1915 referred to me by the Chief Justice and considered on the basis of a hearing at Rarotonga where both the Applicant and Defendants were represented by Counsel; and subsequent submissions which have been presented by Counsel for both the Applicant and the Defendants. The final submissions on behalf of the Applicant have just been received and will now enable me to finalise this report.

The application to the Chief Justice deals with the proposed revocation of two orders made by the Land Court Division, the first on 21 May 1942 and the second on 27 March 1944.

Retracing the background to the title to this land now known as Te Arakura Section 83A & B1, 2, & 3, Aorangi, the original title was created by an Order on Investigation made on 30 June 1905. Pursuant to that Order the Court awarded the land to Maria Jennings, also known as Maria-A-Rongo, subject to a life interest. Maria-A-Rongo died without issue on 2 May 1912 and on 23 October in the same year a Succession Order was made in favour of two brothers to succeed to Maria's interests – these successors were Moeau m.a.; and Taria m.a.

The Applicant in these proceedings is Metua Moeau and she succeeded to both Moeau and Taria above. It is Metua's application to have the1942 and 1944 Orders revoked; the Defendants are Ngametua and Taimau who were put in the title in 1942 and 1944 respectively.

Mr Ingram on behalf of the Defendants and their successors claims that the Defendants are entitled to be included in the title ownership as successors and for that purpose has submitted a geneology showing the Defendants as successors to Tauariki who was a daughter of Rongo, one of the five children of Manava. The geneology produced by Mr Ingram shows Moeau and Taria as the two sons of Kape, a brother of Rongo. Mr Ingram submits that Kape and Rongo being brothers and two of the children of Manava, that his clients as successors to Rongo are equally entitled to be included in the title in the same way as Moeau and Taria. Incidentally, Metua Moeau, the present Applicant, is shown in the geneology as a grandchild of Moeau and the great-grandchild of Kape.

On the other hand Mrs Brown for the Applicant points out that the Court Orders in 1942 and 1944 respectively were based on applications for an amendment to the title and that as such the Court had no jurisdiction to make such an Order, especially in relation to the provisions of Section 428 of the Cook Islands Act 1915. It is conceded by Mr Ingram for the Defendants that this Section has application in the present case since the title to this land had been judicially investigated and determined prior to 1915.

Prior to the 1942 and 1944 Orders, which I shall come to shortly, it is necessary to consider the investigations made both in 1905 and 1912.

In 1905 the Court made an Order on Investigation of Title allocating the land to Maria-A-Rongo subject to a life interest. This allocation in Maria's favour resulted from the dispute between two claimant families, Kaena and Manava. The Court found in favour of the Manava family and Maria was declared to be the original owner.

On 23 October 1912 the Succession Order was made in favour of Moeau m.a. and Taria m.a. The Order made in 1905 is preserved by the provisions of Section 428. The Order in 1912 is not affected by that Section since the 1912 Court hearing was not an Investigation of Title but was rather a Succession Order. I have attached to this report a photostat of Minute Book Number 6, page 55, where it states that

"....the Court is of the opinion that the proper successors to the deceased are Moeau and Taria."

Section 450 of the Cook Islands Act 1915 makes provision for the revocation of Succession Orders made in error subject to any interests that may have been acquired while the Succession Order was in force. The question here now before the Court is whether the Order made in 1912 was an exclusive succession in favour of Moeau and Taria, that is excluding all the other Manava family, or whether the other branches of that family were to be included or entitled to be included. What has actually happened in 1942 and 1944 is that applications have been lodged by Ngametua in 1942 and Taimau in 1944 for an amendment of this title and for their respective names to be included in it. If the application had been made by way of revocation and/or amendment to the original Succession Order and subsequently an Order had been made on that application then it is unlikely that this application would have been brought before the Court. However, the 1942 and 1944 applications were for an amendment of the title; and the Order made by the Judge at that time clearly states that the title be amended. The wording of the Order in part is as follows:

"Upon hearing the application and the parties claiming to be interested it is hereby ordered that the title to the said land be and the same is hereby amended by adding the name of Ngametua f.a. for one half share of the block."

An Order in exactly the same terms was sealed two years later in favour of Taimau.

It is clear that the Court both in 1942 and 1944 was not entitled to entertain the application for an amendment of the title based on an Order on Investigation of Title dated 1905 and preserved by Section 428. If it was an application to amend the 1912 Succession Order and that as a result of the hearing the Court was intending to alter that 1912 Order, then the Orders as sealed do not disclose that intention.

Counsel for the Defendants correctly summarises the position at the conclusion of his Supplementary Submissions when he states:

"...that the 1912 hearing was one for succession only. It was not a re-investigation of ownership as was the case in 1905..."

Mr Ingram then contended that Section 428 preserved the Defendants rights "to seek the revocation of the 1912 Order and substitution of the proper Succession Order." This he says is what was intended to be done in 1942 and 1944.

I do not believe this Court can speculate as to what the Court in 1942 and 1944 intended in the face of a so clearly worded Order "... that the title to the said land be and the same is hereby amended...".

That Order clearly purported to amend the title; the Court had no jurisdiction to make such an Order; the Order cannot now be interpreted as an Order amending the 1912 Succession Order.

It is my opinion that the Court in 1942 and 1944 erroneously assumed, as a matter of law, that there was jurisdiction to make such orders. No such jurisdiction exists.

Judge

8 March 1985