Purea v Guinea [2006] CKHC 27; PLT6.2004 (5 July 2006)

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

PLT NO. 6/2004

TAUTARA PUREA of Mauke,
Retired
Plaintiff

v.

KURA GUINEA of Rarotonga,
Occupation Unknown
Defendant

Counsels: Mr Little for the Plaintiff
Mr George for the Defendant

Date of Hearing: 5 July 2006

DECISION OF JUDGE NICHOLSON

Ruling Number 1

1. In this action the Plaintiff claims the sum of $32,428.00 being the damage alleged to have been caused by the removal of fixtures from a house at Kimiangatau Mauke after the Defendant had vacated that house in early November 2003

2. The claim is defended and in the statements of defense it was pleaded that the Plaintiff had no locus standi in the matter.

3. At the start of the hearing this morning Mr George applied for the action to be struck out at this stage upon that ground. He relied particularly upon the provisions of Section 451 of the Cook Islands Act 1915. That Section states no successor shall be capable of instituting in any Court other than the Land Court, any action or other proceeding relating to his interest as such successor until and unless a Succession Order has been made in his favour.

4. Mr George submitted that in absence of proof that such a Succession Order had been made the case in favour of the Plaintiff and the action must be struck out accordingly.

5. Mr Little submitted however that a Succession Order had been made in the Plaintiffs favour and that this action relates to the Plaintiffs interest under that Succession Order.

6. It is common ground that the house the subject of the dispute and its site which I understand is referred to as Te Vaiuna and which I will refer to as Te Vaiuna is part of a bigger section or piece of land of some 24.239 hectares. This bigger piece of land is described as Section Number 11A2 Vaiuna.

7. It is also common ground that an Occupation Order has not been made giving exclusive or limited occupation of Te Vaiuna to any particular person or persons.

8. The record of the Land Court handed to me by Mr Little shows that on the 3rd of October 1984 a Partition Order was made vesting Section 11A2 Vaiuna in 215 people these included the Plaintiff who is number 80 of the persons whom the Order states the land is vested in under that Partition Order.

9. The issue is whether in the absence of an Occupation Order, Section 451 requires that all people who have a Succession Order interest in a section of land be parties to instituting any action in any Court other than the Land Court or whether just one or a relatively small group of such people can institute such an action.

10. As a matter of primarily of interpretation of Section 451 I find that such person or small number of persons can. There is also the practical reality that unless this was so it may be and in particular with relation to this section land impossible for any action to be bought with relation to it. But my decision depends primarily upon the interpretation of Section 451 which refers specifically "no successors shall be capable of instituting of any Court other than the Land Court any action" and these are the important words "relating to his interest as such successor until and unless a Succession Order has been made in his favour".

11. That section does not stipulate to the exclusive interest or the sole interest in the land but simply the interest of the person applying or bringing the action.

12. If the legislature had intended that only all the people who had the total interest in the land could bring an action in my view it would have said so. It didn't.

13. So therefore in my view that Section can be interpreted as permitting any person who has an interest in land in his favour under a Succession Order bringing an action with relation to that piece of land. Now there may be practical consequences arising from this as to proof of what damage that particular person has suffered if he is just one of 215 persons in whom the land has been vested but nevertheless that is a practical matter which will need to be decided on the merits.

14. The practical reality which I consider supports that interpretation is that if it was necessary for all the persons who had an interest in a piece of land to bring an action any action could not be brought without all of them bringing it. Inreality this would probably be impossible. For example in this case it is probably impossible for all the 215 who according to the 1984 Partition Order had an interest to bring an action and its clear that since then the number of people who have an interest have increased by reason of Succession Orders made with relation to those of the 215 members who have died.

15. Also too in this case it would have the absurdity that as the defendant clearly has a interest in the land under a Succession Order she would have to be a party to an action against herself and that would be really not at all likely to say the least.

16. So I make that decision and do not dismiss the action upon this ground of no locus standi. As I say the situation of the limited interest of the Plaintiff may have practical consequences in assessing any issue of damage sustained by him or payable to him but we deal with that later.

17. If at the end of this action I find in favour of the Plaintiff then of course the defendant can challenge such a decision on any appropriate ground and one of them would probably be and it would be open to her to challenge the decision upon the ground that the ruling that I have just given is wrong. But that is irrelevant in the consideration now and I will proceed with the action accordingly.

Judge