HERALD WEEKLY ISSUE 608: 21 March 2012

One appeal dismissed, one allowed in historic cases
Cook Islands legal history was made on 18-19 April 2012 when the Judicial Committee of the Privy Council in London, England heard two cases where the appellants were granted leave to appeal by the Cook Islands Court of Appeal.
The cases were heard together by Lords Phillips, Walker, Mance, Carnwath and Lady Hale.
On 22 October 2012 the Judicial Committee handed down their decisions.
In the case June Margaret Baudinet (Appellant) versus Ellen Tavioni and Meremaraea Velma Tinirau Macquarie (Respondent) the appeal was dismissed with Lord Mance delivering the majority decision (3-2). Lady Hale and Lord Walker held a different view.
In the case involving the descendants of Utanga and Arerangi Tumu (Appellants) versus the descendants of Iopu Tumu (Respondents) the appeal was allowed with Lords Walker and Carnwath giving the judgment of the Board.
Appearing for the Appellants in both cases were; Kate Davenport, Ross Holmes and Justin Wall. For the Respondent in both cases were; Rebecca Edwards, Tina Browne and Sarah Inder with Browne, Harvey and Associates instructing lawyers.
Both cases extend back to sittings of the Land Titles Court more than a hundred years ago.
In the case involving Baudinet and Tavioni, at issue is ownership of a parcel of land known as Tuarea Nui Section 40 in the vaka (tribal territory) of Takitumu on the south side of the island of Rarotonga.
The following is an extract from the decision.
“The land was awarded to Makea Nui Takau, the Ariki (tribal chief) of the Makea family who stemmed from Avarua on the north side of the island, by Order of the Land Titles Court dated 10 August 1903 in 1903. The appellant claims it for the Ngãti Raina family. The Makea and Ngãti Raina families are not related by blood. Some members of the Ngãti Raina family lived on the land until 1932, when they were evicted by Makea Nui Tinirau, the then Ariki of the Makea family. Since 1932 the Ngãti Raina have had a sense of grievance, which they have twice previously sought to pursue, on a different basis to the present, by the two previous sets of proceedings which came to court in 1937 and 1950.
The Land Titles Court began sitting on 2 April 1903. On 3 June 1903, the court heard a series of applications by Makea Nui Takau relating to various parcels of land, including Tuarea Nui Section 40. The Minute Book for the day, of which the Board has seen a colour photocopy, contains the following handwritten words (punctuation supplied):
“Makea applicant. Makea: I claim this land as my own land. No objections. Land awarded to Makea Takau. Land restricted from sale or lease except by permission of court. A life interest only no power of devise.”
The word “Court” is written above the word “Makea”, which has been crossed out with two short straight lines. The parties are agreed that the deletion was by a quill pen, that the word “court” appears to be in the same handwriting as the rest of the writing, and it corrects a typographical error. But the words “A life interest only no power of devise” have also been crossed out, with a single wavy line.
The factual question which arises is whether the Order drawn up and signed by Chief Judge Gudgeon on 10 August 1903 was correct in omitting the handwritten words.
The first issue in this appeal is whether the High Court of the Cook Islands has power, under section 44 of the Judicature Act 1980-81, to correct an alleged slip in an order made in the Cook and Other Islands Land Titles Court in 1903. If there is such a power, the next issue is whether there was a slip. If there was, the final issue is whether it should be corrected now. Included in the principal issue is whether the application to correct the alleged slip is foreclosed by or abusive in the light of two previous sets of proceedings brought by the appellant’s family in respect of the same land.
The application of the slip rule over a century after the relevant Order requires on any view to be clearly justified. In the above circumstances, the Board is not satisfied on the balance of probability that any slip has been shown, and it considers that Hingston J was wrong to conclude that one was. For these reasons, the Board will humbly advise Her Majesty that the decision of the Court of Appeal should be upheld, albeit on different grounds, and that the appeal should be dismissed.
The Board would add this. Whether or not there was any slip, it would be an uncovenanted and unintended windfall, if it now enabled the Ngãti Raina to achieve a complete re-opening of the whole title investigation which took place in 1903.
The present Ngãti Raina claim is, in effect, for a rehearing notwithstanding the refusal of such to them on the application they pursued in 1950 and notwithstanding that the 12 month period for such an application is long expired. A great deal of genealogical material has been gathered on their behalf in recent years, and an entirely new basis for a claim to title in respect of Section 40 has been developed on their behalf as a result. But, as the time limit in section 32 of the Cook Islands Amendment Act 1946 itself postulated, there must be a time when ancient claims come too late. Even if the Board was satisfied that a slip had probably occurred, the Board would in such circumstances have been disinclined to exercise the discretionary power available under section 44 of the Judicature Act 1980-1981.” -Charles Pitt

Herald Issue 608 21 March
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