The descendants of Utanga and Arerangi Tumu v The descendants of Iopu Tumu (Cook Islands)

An invalid land order made without jurisdiction may nevertheless fall within a statutory power to validate any invalid order, including one involving fundamental invalidity. Under section 416(1) of the Cook Islands Act 1915, validation requires a real precondition: the court must be satisfied, having regard to equity and good conscience, that the order ought to be validated. Consent cannot confer jurisdiction or override safeguards protecting indigenous land. Delay carries less weight where land is generally inalienable and title cannot be acquired by prescription. The validation failed because the evidence did not permit the required satisfaction.

The appellants challenged amendments made in 1912 to three Land Court orders made in 1905 concerning customary land in Rarotonga. The amendments removed the names of several members of the Tumu family and were made by a single judge. Proceedings were brought under section 390A of the Cook Islands Act 1915. Williams CJ found that the 1912 order was made without jurisdiction but validated it under section 416. The Court of Appeal of the Cook Islands dismissed the appeal. The central issues before the Board were whether the invalid order could be validated under section 416 and whether the requirement of equity and good conscience had been satisfied.

The Board, in the judgment delivered by Lord Walker and Lord Carnwath, allowed the appeal.

1. The 1912 amendments were made without jurisdiction. The only relevant power to reopen the 1905 orders was section 10(15A) of the 1902 Order in Council, which required an appeal within two months and a hearing before at least two judges. Section 13, permitting a European judge to sit alone, did not extend to that jurisdiction. The slip-rule power in section 25 could not authorise the substantive amendments, and consent could not confer jurisdiction. The doctrine of a de facto judge, discussed in Fawdry & Co (A Firm) v Murfitt [2003] QB 104, provided no assistance.
2. The amendments were invalid. The presumption concerning defects of practice or procedure under section 399 of the Cook Islands Act 1915 did not apply because section 399(2) excluded orders made without or in excess of jurisdiction.
3. Section 416(1) had a wide scope. The reference to any question as to the validity of an order included invalidity of any kind. There was no separate limitation for so-called flagrant invalidity. The Board doubted the utility of that expression in construing this particular statutory provision.
4. Equity and good conscience was a substantive precondition to validation, not a ritual formality. The lower courts had insufficient material to justify validation of an order which appeared to enrich the head of a family at the expense of junior members. Even free and informed consent could not override the protective land-law regime. The findings under section 390A could not restrict the matters relevant under section 416.
5. The lapse of time was less significant in a regime generally prohibiting alienation and excluding acquisition of title by prescription. Evidence of third-party interests was insufficiently established, although an undertaking might in principle protect existing rights.

The matter was remitted to the Court of Appeal to settle the form of the undertaking. On its provision, the validation order was to be set aside and the 1905 orders restored to their original form.

• Privy Council: Allowed the appeal, remitted the matter to the Court of Appeal to settle the form of an undertaking, and directed that the validation order be set aside and the 1905 orders restored on provision of the undertaking.
• Court of Appeal of the Cook Islands: Permission to appeal was granted on 28 November 2008. On 10 July 2009 the court dismissed the appeal and agreed that the 1912 order should be validated under section 416.
• High Court Land Division: On 24 June 2008 Williams CJ held that the 1912 order had been made without jurisdiction but that it could and should be validated under section 416.