HERALD WEEKLY ISSUE 608: 21 March 2012

Privy Council case descendants of Utanga and Arerangi Tumu (Appellants) v The descendants of Iopu Tumu (Respondents)
Ross Holmes, Instructing Lawyer for the Appellant, comments on the decision to allow the appeal.

1 By three orders made on 10 November 1905 by the Chief Judge, Colonel Gudgeon, the Appellant’s ancestors were included in the titles to the three lands.
2 On 13 May 1912 Judge MacCormick made an order amending the list of owners by striking out the names of the Appellant’s ancestors purportedly by consent.
3 John Scott (the husband of Tara Scott nee Utanga) after carrying [Ross Holmes] out detailed research believed that a grave injustice had occurred, and in 2001 lodged an application on behalf of the Appellants [Ross Holmes] seeking orders under s 390A of the Cook islands Act 1915 that the 1912 Order was invalid.
4 Chief Justice Williams while holding that the 1912 Order had been made without jurisdiction, as the order was not made by the Chief Judge and a second judge as required by the relevant Order in Council, made an order under section 416 of the Cook Islands Act 1915 validating the 1912 Order.
5 The Cook Islands Court of appeal upheld Chief Justice William’s decision to validate the 1912 Order.
6 John Scott obtained the opinion of an Auckland Queen’s Counsel who advised that there was no chance of an appeal to the Privy Council succeeding. Undeterred John Scott approached me, and I agreed to handle the appeal to the Privy Council for the Appellant’s.
7 The Privy Council concluded “it is clear that the amendments were made without jurisdiction, and were for that reason invalid….”
8 The Board held that “The problem in this case was not that the Land Court lacked power to do anything at all. Section 13 specifically empowered the European judge, sitting alone, to exercise all the powers of the court. But, as is common ground, this did not extend to the jurisdiction under section 10(15A) [the power to grant a rehearing], which in terms required two judges for its exercise.”
9 In relation to the power in section 416 of the Cook Islands Act 1915 to validate decisions of the Cook Islands Land Titles Court, the Board stated” Section 416 applies when there arises “any question ... as to the validity of any order” made by the Land Court. Those words are apt to include questions of validity of any kind, however “flagrant” the circumstances. There is no reason to limit their scope. On the contrary, given the highly confused state of the Land Court’s proceedings before the 1915 Act, it seems likely that the legislature would have wished to give the widest possible powers to remedy defects, so far as required by “equity and good conscience”. The courts below were accordingly right to hold that they had jurisdiction under section 416 to validate the 1912 Order. Nor was it necessary, as the Chief Justice seems to have thought, for it to be an error of “practice or procedure”.
10 This statement [Ross Holmes] establishes that the High Court has [Ross Holmes] wide powers to validate [Ross Holmes] invalid decisions [Ross Holmes] made by the Cook Islands Land Titles Court.
11 The Board reversed the decisions of the Chief Justice and the Court of Appeal in holding that the equitable and in good conscience requirements which needed to be satisfied before an order could be validated under section 416 had not been satisfied. In doing so they made the following observations which are have [Ross Holmes] in some cases in the past been overlooked by [Ross Holmes] Cook Islands Courts:
“60. On this point the courts below relied primarily on the 1912 Order having been made by consent. .. even free consent might not have been enough. One of the principal legislative purposes of the 1915 Act (reflected also in the 1902 Order in Council and the rules and regulations made under it) was to protect the indigenous people of the Cook Islands against exploitation, either by their own tribal chiefs or by people of European origin. Freehold native land was in general to be inalienable. Any permitted alienation was to be in writing. Partitions and exchanges were to be subject to the supervision of the Land Court to ensure fairness. These provisions, whether or not they may today seem paternalistic, have always been an essential part of the land law system in the Cook Islands, and in a system of that sort consent, even if assumed to have been freely given, is not sufficient to override its operation. ...
61. The courts below also attached weight to the lapse of time, and the likelihood of third parties having acquired interests in good faith. The period that has elapsed since the 1905 and 1912 Orders certainly is remarkable. But under a land law system which makes freehold native land generally inalienable (either inter vivos or by will), and which excludes the acquisition of title by prescription, lapse of time becomes less significant as a factor in the exercise of discretion. The appellants have had to undertake a heavy burden of research, much of it at archives outside the Cook Islands, in order to present their case, as the lower courts acknowledged. It might also be said that the lapse of time cuts both ways. It is, after all, the respondents who were seeking an order validating the 1912 Order, and they did so only by way of reaction to the appellants’ claim.”
12 In summary the importance of this case is that it establishes that the Courts in the Cook Islands have no jurisdiction to permit the alienation of freehold land, even by consent, subject to the limited exceptions provided for in the Cook Islands Act 1915. This [Ross Holmes] makes it clear that the Cook Islands Courts have no power to enter a judgment by consent on an application for investigation of title unless [Ross Holmes] they are satisfied that those awarded title were entitled to title in accordance with ancient native custom.
13 The significance of this case is that if names which were included in the initial orders on investigation of title have been subsequently deleted, the descendants of those persons deleted may in some cases be able to challenge those orders deleting their ancestors names[Ross Holmes] despite the deletion having been made many years ago.

Herald Issue 608 21 March
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