Samatua v Cook Islands Government Property Corporation [2006] CKHC 12; OA 04 of 2006 (8 December 2006)

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

OA 4/06

IN THE MATTER of the Declaratory
Judgment Act 1908

AND

IN THE MATTER of the Penrhyn
(Ngaharakura Lease)
Facilitation Act 1992

AND

IN THE MATTER of an application by
REISURA SAMATUA
of Penrhyn Island for a
Declaratory Judgment
Applicant

AND

COOK ISLANDS GOVERNMENT
PROPERTY CORPORATION
A statutory corporation established pursuant to
the Cook Islands Government Property
Corporation Act 1969
Respondent

Counsel: Mrs Ngapare Samatua for Applicant
Mr Miles for Respondent

Date of hearing: 8 December 2006
Date of decision: 8 December 2006

JUDGMENT OF NICHOLSON J

[1] Reisura Samatua has applied for declaratory judgment answering two questions. The application affects the Cook Islands Government Property Corporation which I will call the Corporation, the Ministry of Marine Resources which I will call the Ministry and the Penrhyn Island Council which I will call the Council.

[2] When the application came before me on the 29th of June this year I ordered that the Corporation, the Ministry and the Council be served with the application. This was done and notices of opposition were filed by the Corporation and the Ministry.

[3] A letter was received by the Court dated 5 July 2006 signed by five people saying they were descendants of Revahua and Pangerua and stating that they objected to Reisura Samatua’s application. They said that no dissention existed except in Reisura’s mind.

[4[ When the application was called today Mrs Ngapare Samatua appeared saying that she was the wife of Reisura Samatua, he was on Penrhyn and she was representing him. She asked that the proceedings be conducted in Cook Islands Maori with English translation.

[5] Mr Miles appeared as counsel representing the Corporation. There was no appearance by or representation of the Ministry or the Council. I told Mrs Samatua that I would allow her to represent her husband. I said that I had read the documents filed in support of her husband’s application. I asked if she wanted to add anything to what was said in those documents or make statements on behalf of her husband. She said she did not and that she relied upon what was said in the documents. She requested that she be allowed to reply to anything which Mr Miles said. I said I would allow that.

[6] Mr Miles then made submissions in opposition to the application. After Mr Miles’ submission I asked Mrs Samatua if she wished to reply or to speak further to matters raised by the Corporation in their documents or by Mr Miles. She said she did not and relied upon what was said in the documents filed by her husband.

[7] Mr Samatua’s application asks for declarations answering two questions:

(i) Is the Penrhyn (Naharakura Lease) Facilitation Act 1992 a lease? Answer yes or no. I will call that Act the Penrhyn Lease Act.

(ii) Would I and my Revahua and Pangerua families be entitled to be paid and/or reimbursed for travel costs, court costs and just expenses on pursuing title updating duties under Sections 4 and 5 of the Penrhyn (Naharakura Lease) Facilitation Act 1992? Answer yes or no.

[8] The background facts as appear in the documents filed are that in a letter dated 20th April 2006 the Council requested Mr Samatua to vacate the Marine Resources house that he occupied and gave him till the 4th of May 2006 to do so. Mr Samatua replied in a short letter dated 25 April 2006 refusing to vacate.

[9] In a letter dated the 28th of April 2006 the Secretary of the Ministry advised Mr Samatua that he supported the Council’s decision that he vacate the house. He said that Mr Samatua’s access to the house was through his daughter in law Dorothy who was Manager of the Ministry hatchery. Shortly before Dorothy returned to Rarotonga, the Ministry advised Mr Samatua that as she was no longer going to live there the house was to be cleaned and vacated. He said that it had been more than two years since then and Mr Samatua had not vacated. The letter said that if Mr Samatua did not vacate the premises, according to the Council’s decision, the Ministry would consider Mr Samatua a willful trespasser and instruct the Police to have him removed.

[10] Mr Samatua replied by letter dated 3 May 2006 saying he was a landowner "you people have no lease, (words which seem to be) butt out you have re-entered my land."

[11] On the 27th of June 2006, Mr Samatua filed the present application. Then followed the order for service of the proceedings and the filing of notices of opposition as I have said.

[12] The legal position is governed by the provisions of the Penrhyn Lease Act. The background to the passing of that Act is contained in a copy of what was said in Parliament when the Act was passed on the 17th of December 1992. A copy of this is annexed to Mr Samatua’s affidavit. The essence of what was said was because of unresolved disputes as to ownership of the land, the Government was passing special legislation to create a lease of the land to allow the land to be used for facilities for the benefit of the people of Penrhyn Island and the Cook Islands.

[13] The background is also stated in the preamble provisions of the Act itself. The Act granted a lease of three blocks of Penrhyn land, the terms of the lease are stated in the schedule to the Act. They provided for payment of compensation and annual rent and payment of that compensation and rent.

[14] S. 3 of the Penrhyn Lease Act states: "Validation of leases. Each of the leased lands shall be deemed by operation of this Act to be validly and effectually leased by the owners thereof for themselves, their heirs and successors to the Cook Islands Government Property Corporation upon and subject to the terms of the leases.

[15] The effect of such a deeming provision was considered by the Chief Justice Sir Gaven Donne in the case Solicitor General v the owners of the lands comprising the Aitutaki Airport. The decision was given on the 26th of June 1981.

[16] With respect the Chief Justice correctly stated the law. I apply it in this case.

[17] I find that the lease as stated in the schedule of the Penrhyn Lease Act validly and effectually leased to the Corporation.

[18] I therefore answer Question 1. Yes. A valid and effective lease has been created by the Penrhyn Lease Act.

[19] I now deal with the second question. Sections 4 and 5 of the Penrhyn Lease Act preserve the rights of owners of the leased land to have ownership, occupation and other land interest matters decided by the Land Division of the High Court.

[20] Any person claiming to be an owner or have other interest in the leased land, can make an application to the Land Division of the High Court just as any person claiming an interest in land in the Cook Islands. Any question of costs relating to such application would be decided by the High Court according to the merits and law relating to that application. There is no provision in the Penrhyn Lease Act which authorizes or allows any other costs to be paid.

[21] I accordingly answer question 2, no.

[22] That disposes of this application. Whether or not Mr Samatua and his family are trespassers is a matter for consideration by the Corporation, the Ministry and the Council. This judgment does not in any way restrict any of them from enforcing their normal legal rights.

[23] I leave open the question of the costs of this application and hearing. If the Corporation, Ministry or Council seek costs it can do so by application filed and served on Mr Samatua. He will of course have the right to oppose such application.

C M Nicholson J