In the Matter of Ngatipa Section 166 [1988] CKHC 4; APPLICATION No 251.1986 (12 May 1988)

IN THE HIGH COURT OF THE COOK ISLANDS
HELD AT RAROTONGA
(LAND DIVISION)
APPLICATION NO. 251/86

IN THE MATTER
of Section 450 of the COOK ISLANDS ACT 1915

AND

IN THE MATTER of
NGATIPA SECTION 166

JUDGMENT

This is an application by Mrs. Ruamataiti for whom Mrs. Browne acts, applying for revocation of a Succession Order made on 26 February 1951. The application refers to an Order made on 12 December 1950 but it is the earlier date which is applicable. The Succession Order was made to Miriama deceased. It is suggested that the Succession should be made to the four people named in the Application as the rightful successors to Miriama, and in support of that contention reference is made to Minute Book 13/319 and 20/363.

The application is opposed by Tepoava Raitia and his sister who have succeeded to their father's interest in this house site area.

Before proceeding to consider the merits of this application, I think it desirable to record the historical background because it is this which the objectors rely on and it is this background which consideration must be given to. This more especially as the objectors concede that the rightful successors to Miriama are in fact the four persons named in the application - that is not limited to the objectors' family only as the Court records would disclose.

Dealing now with the historical background, Section 166 is a house site at Ngatipa. To appreciate the establishment of these house sites we have the advantage of referring to various minute books and I quote extracts from two only.

Firstly in Minute Book 1, Page 67-69, the Court in 1903 considered the various occupation rights, obligations and entitlements. In part the Court said this:

"But on all other sections there are occupation rights which in many instances give a title superior to that of the real owner of the land. It will therefore be our duty to define those rights and in doing so we will follow the arrangements made with the Mission."

Again on Page 68 there is that reference:

"The arrangement as we read it is this. That all those who built houses should have an inalienable right to live on the piece of land chosen by them so long as the family lived or continued to occupy the land."

Subsequently on 10 March 1908 the then Chief Judge recorded in Minute Book 4/47A a decision relating to housed sites under the principle of the Akonoanga Oira. He stated as follows:

"The arrangement made in the early days of the Mission between the Orometua and the Arikis whereby house sites were given free of rent or Atinga to such people as desired to live near to the Church and receive instruction both religious and otherwise was not only beneficial to the people but most generous on the part of the Atua Enua and the Court has in every instance tried to give effect to this arrangement in the spirit in which it was conceived.

While there were but few Europeans on the Islands the arrangements was a good one for there was neither leasing nor payment of rent; but about the time this Court was first constituted there was some trouble at Arorangi when a certain man leased his house and the Atua Enua thought she had a right to a large share of the rent. It was this small disagreement that caused the Court to bring the old agreement into the Court and give it the mana of the Court and Law in order that the rights of the villagers should be forever maintained.

The position now is that each house owner is under the protection of the Law and - subject to a proper recognition of the rights of the Atua Enua - is the absolute owner of the house and can either sell or lease that right to a stranger whether Maori or foreigner. In such a case he merely sells the buildings he has erected and the right to live in them.

The obligations to the Atua Enua continues no matter who lives on the land. Such is the position of the occupier and I will now define that of the Ariki or Atua Enua.

The original arrangement was that the people should pay no Atinga. But the Court has given them extended powers and privileges and must therefore define with equal clearness the position of the overlord. The Court awards the land to the various applicants as per the Orders made in each block, but orders that each house site shall pay to the Atua Enua the sum of 1 shilling in the month of January in each every year commencing in January 1909."

The objectors claim with certain justification that it is against that background of how these house sites were established that the Court must consider the various Orders that have been made from time to time in relation to this particular house site Section 166. The objectors refer to the Order of Investigation of title which was made in 1908 on the same day that Chief Judge Gudgeon delivered his decision just referred to. On the Order of Investigation the land was invested in the four people there named but with the record being noted that it was for an occupation right and an entitlement for their direct descendants.

Now a consideration of the various Minute Books which have been referred to the Court clearly disclose that Araitia No. 1 in the Order of Investigation erected the original house on this site; that he brought up as a feeding child Araitia Te Puretu who has now been succeeded by the two objectors, his son and daughter respectively. I have been referred to Minute Books 13/319; 24/176 - 177; 20/363 - 365 and 62/36. These Minute Books clearly show a pattern of continuity of occupation and ownership insofar as Araitia and his successors are concerned. It is also clear from the Minute Books, as well as from the Title itself of course, that the area of 20 Ars is probably even too small for one house site and is no doubt the reason behind the Court in 1951 recording the right of Araitia to succeed solely to his mother Miriama.

The records disclose that the house on this land was originally owned and occupied by Araitia prior to 1904. He died somewhere about 1916 according to the Minute Books. The records also disclose that Araitia Te Puretu lived in the house as a child and was brought up by Araitia as a feeding child. He was living in the house at the time he went away to the 1915 war and at the end of the war he returned to the house. All in all the clear pattern and intention both of the Court and of all the owners was that for pattern and intention both of the Court and of all the owners was that for this very small piece of land there should be one occupier only. The unchallenged occupation of the house site from prior to 1904 to the present time is clear evidence that the succession order was not made as a result of an error but was made as a result of an arrangement which gave effect to and recognized the principles of such house sites under the Akonoanga Oire. The applicant in this case has not taken into account these principles, nor that the land has been vested for an occupation right which of necessity must differentiate between vesting land and the vesting land for an occupation right.

This application has been made under Section 450 which provides that a Succession Order made in error may be at any time revoked by the Court. There are two aspects to be considered. Firstly, has there been an error; secondly if there has been an error, should the Court exercise a discretion inherent in the Application of Revocation. In considering those principles it is clear to the Court that there has been no error. Occupation of the house site has been continuous; has been in accordance with the principles enunciated as far back as 1908 by Chief Judge Gudgeon; and that the house site itself limited as it is in area, can only justify occupancy by one family. This situation has been recognized by all the other members of the family who over the last 80 years have raised no objection to the objectors or their predecessors entitle occupying the land. Further, if there had in fact been an error, which is a fact I have not found, then because of the matters which I have alluded to this is clearly a case which, in my opinion, I should use my discretion in refusing to revoke a Succession Order and so upset the continuity of occupancy extending over the last 80 years.

For all the above reasons the application is declined and the objections are upheld.

DILLON J.
JUDGE

12/5/88