Mataiapo v Abera [1985] CKCA 2; CA 1.1985 (14 October 1985)

IN THE COURT OF APPEAL OF THE COOK ISLANDS
CA.1/85

IN THE MATTER
of the land known as Te Kauariki
Part Section 13I, Matavera

BETWEEN

TE UPOKO INGRAM TE PA MATAIAPO
OF RARATONGA
Appellant

AND

ABERA and NGAMARAMA AMARAMA
of Rarotonga, Public Servant and Married Woman
Respondents

Coram: Sir Thaddeus McCarthy (presiding) McMullin J
Sir Clinton Roper

Hearing: 29 August 1985

Counsel: Mr V.A.K.T. Ingram for appellant
Mr J.G. McFadzean for respondents

Judgment: 14.10.85

JUDGMENT OF THE COURT DELIVERED
BY SIR CLINTON ROPER

On the 19th March 1984 Dillon J made an order pursuant to s.50 of the Cook Islands Amendment Act 1946 granting Ngamarama and Abela Amarama a right of occupation of land known as Te Kauariki part Section 13^I Matavera. Section 50 so far as is relevant provides;

In any case where the Land Court is satisfied that it is the wish of the majority of the owners of any Native land that that land or any part thereof should be occupied by any person or persons (being Natives, or descendants of Natives), the Court may make an order accordingly granting the right of occupation of the land or part thereof to that person or those persons for such period and upon such terms and conditions as the Court thinks fit.

The Amaramas' application to the Court, which was on a standard form, sought the right of occupation for the purpose of a house site upon the grounds -

(1) That the majority of the landowners have consented to the granting of the right of occupation to the said applicant(s) and annexed hereto is a consent form signed by the said landowners.

The form provides for an alternative ground of application, which in the present case was not completed, which reads:

That at a meeting of the landowners held at .............on the ..... day of .......... 19.... the majority of the landowners consented to the granting of the right of occupation to the said applicant (s) and annexed hereto is a copy of the minutes of such meeting.

The consent form annexed to the application is headed:

WE the Landowners of TE KAUARIKI SECTION 13I Matavera DO HEREBY CONSENT to the granting of an OCCUPATION RIGHT for NGAMARAMA & ABELA AMARAMA of an area of approximately 100m² as shown in the map attached hereto for the purpose of a house site.

Then follow the names of 117 landowners, but counsel were agreed that there were in fact only 95 living owners. Of those, 28 indicated their consent either by personal signature or the signature of one holding a power of attorney, and the consent of a further 20 was indicated by someone signing on their behalf but not professing to be pursuant to a power of attorney. Forty seven did not sign, there being either a blank beside the name or the notation "New Zealand". There is no indication that any landowner signed in opposition so that prima facie the landowners had indicated their approval to the grant by a majority of one.

The Amaramas did not appear at the hearing before Dillon J for the reason that the application had been set down for hearing on the afternoon of the 19th March but was called and disposed of in the morning. Mrs Rima David, the Registrar of the Court on that day, happened to see Mr Beniamina Unu, Mrs Amarama's father, in the back of the Court and suggested that he appear in support. Mr Unu agreed to appear if the Judge was prepared to deal with the matter. Mr Unu then gave the following evidence before Dillon J:

Q. Anybody living or occupying this land?

A. Nobody living there. Only Poko Ingram [the appellant] was looking after the other piece, but not the section under question.

and at its conclusion the occupation order was made.

The appellant Mrs Ingram, who unfortunately has died since the present proceedings were filed, challenged the occupation order and on the 11th September 1984 Speight CJ granted an interim injunction restraining the Amaramas from continuing with the construction of their house. Mrs Ingram also applied for revocation of the order pursuant to s.390A of the Cook Islands Act, and annulment pursuant to s.391. Section 390A provides in short that the Court may amend, vary, cancel or revoke any order or decision based on any mistake error or omission whether of fact or law; and s.391 reads:

Annulment of orders obtained by fraud - The Land Court may at any time annul any order obtained by fraud.

When the applications for relief came before Dillon J counsel were agreed that the s.391 application should be dealt with first, with leave reserved to the parties to call further evidence on the s.390A application should its resolution prove necessary.

This present appeal is solely against Dillon J refusal to grant relief under s.391. The effect of s.390A is not involved. Delay could have been avoided if both applications had been heard together at first instance.

The appellant relies on three separate allegations of fraud, and Mr Ingram made it clear that it was deliberate deceit that was being alleged, not some form of constructive or equitable fraud. The burden of proof lying on a litigant who alleges fraud of this nature is not a light one. It can be satisfied on the probabilities, but only when they establish a clarity of proof which is commensurate with the seriousness of the allegation made. An appellate Court reviewing a finding that this required standard had not been met in the Court below, must remember that, and give full weight to any advantages which a trial Judge may have had from seeing and hearing the witnesses, advantages which are not available to the appellate Judges. The New Zealand Court of Appeal has often warned itself of this, see Newmark Engineering v. Jenkin [1980] 1 NZLR 504, 509, and most recently, the judgment of Cooke J. in Brown & Brown v. Wallis CA. 79/83 delivered 26 July 1985. It is our opinion that the Appeal Court of the Cook Islands should take a similar approach in similar cases.

This is the first allegation:

The respondents obtained their occupation right order by fraud in that they did not call a meeting of owners when they knew or ought to have known that this was essential to obtaining consent, and then subsequently represented to the court that they had the consent of the majority of owners;

Mrs Ingram, who was Te Pa Mataiapo, held by far the largest interest in the land in question, and there was evidence that a Maori custom applied to Matavera land to the effect that before consent could be given to an occupation right, or any other dealing, a meeting of landowners must be called by the Mataiapo - in this case Mrs Ingram. It was said that this was a custom peculiar to Matavera land. The "custom" appeared to come as a surprise to Dillon J, who commented that probably 75-85% of the occupation right applications that come before the Court rely on, the form of consent used in the present case.

It is clear that Mrs Ingram had always been strongly opposed to any grants of occupation in respect of this land, and indeed it seems that Mrs Amarama had tried for years to get Mrs Ingram to agree to a right of occupation, without success. As early as 1981 Mr Unu had discussed the question of an occupation right for his daughter with Mrs Ingram and although when giving evidence before Dillon J he seemed vague as to the details of the conversation there is not much doubt that the matter of a meeting was raised. Nothing more was done, presumably because Mrs Ingram was about to leave for a holyday in New Zealand. It would seem that Mrs Amarama did not relish the thought of a meeting at which Mrs Ingram as Mataiapo might well be able to influence the landowners to give consent. In the end Mrs Amarama consulted a solicitor, Mr Short, who prepare the form of consent which was circulated among the landowners resident in Rarotonga over a period of some two years. Mrs Ingram's consent was not sought.

Dillon J concluded that in the circumstances fraud had not been proved and we certainly are in no position to dissent from that. Even accepting that the Amaramas adopted the consent procedure because they knew a meeting called by the Mataiapo might go against them does not justify a finding of fraud. Section 50 simply requires the Court to be satisfied as to the wishes of the majority of the landowners. There is no requirement as to how their views will be ascertained, and in the result the Amaramas followed the current practice of securing the signature of the majority of those who could be seen possible applicants for occupation rights.

This is the second allegation of fraud:

Respondents obtained their occupation right order by fraud in that they or their agent misled the Deputy Registrar of the Court into believing that they had notified the appellant in these proceedings of their application thereby inducing the Deputy-Registrar to set that application down for hearing without advising the appellant herein as previously arranged.

From time to time Mrs Ingram, who made frequent trips to New Zealand, had asked Mrs Rima David, whose particular responsibility was in the Land Division of the Court, "to keep an eye out" for any applications coming before the Court affecting Te Pa lands, and to make sure that they were brought to her notice. Mrs David deposed that some time in early 1984 when she was preparing the Panui for the cases to be heard on the 19th March, which included the Maramas' application, Mr Unu happened to call to the office. She said she asked him whether Mrs Ingram was aware of his daughter's application, and was told that "the papers have been sent to her in New Zealand". Having received that assurance Mrs David said she put the application in the Court list and did not contact Mrs Ingram. Mr Ingram submitted that Mrs David had been "included" to include the Amaramas' application in the Panui but we note from Dillon J's judgment that Mrs David would have had no authority to exclude the application from the list.

This is the cross-examination of Mr Unu on this conversation which according to Mrs David took place some weeks before the Court hearing of the 19th March:

Q. Now refer to Rima David – before Ngamarama case on panui she spoke to you. Do you agree.

A. I did not talk to her.

Q. Are you certain. You didn't talk before court case.

A. I am certain I didn't see her at Registry.

Interpreter to read Rima David's affidavit para 4.

A. When I was referring to the Register here I did not come here to give the answers I went and gave answers at the centre.

Q. Mrs David says you came into Registry and she talked to you before the court hearing. Is she right or wrong.

A. I swear before God Almighty that I did not appear before this Registry.

Q. Is Mrs David lying.

A. I cannot say Mrs David is lying what I know I answer the question at Nikao.

Reads Mrs David's evidence – papers sent to Poko in NZ is she right.

The basis for this allegation was Mr Unu's evidence on the 19th March that nobody was living on the land and that Te Upoko Ingram "was looking after the other piece but not the section under question". Existing occupation by another must of course be a relevant consideration when the Court is asked to make an occupation order and it was submitted that in this case Mr Unu deliberately misled the Court by denying Mrs Ingram's occupation. It is clear that Mrs Ingram had planted the land, including the area in dispute, with citurs, and from the evidence in 1970 proceedings it seems this would have been in about 1957. There was evidence, including photographs, before Dillon J, from which he concluded that there as now "clear evidence of abandonment " of the land, it having an appearance consistent with complete lack of "control, upkeep and maintenance", which justified Mr Unu's comment that Mrs Ingram was not looking after it.

One problem that Dillon J did not expressly deal with was Mr Unu's denial that he had said that Mrs Ingram was not looking after the land in question, when it is pretty clear from the record and the evidence of the stenographer present on the day that he had.

It was submitted by Ingram that Mr Unu, being well aware that Mrs Ingram was looking after the land, deliberately deceived the Court and that his subsequent denial of the statement was a clear indication of his fraudulent intent. The problem with that submission is that there is acceptable evidence that in fact Mrs Ingram was not then looking after the land. Why Mr Unu should have denied a statement which he must have made is certainly not explained, but Dillon J was entitled to say that that of itself did not call for a finding of fraud and we agree.

The appeal is therefore dismissed with costs to the respondents in the sum of $400 with disbursements as fixed by the Registrar.

Solicitors
V.A.K.T. Ingram, Raratonga, for appellant
Short & Tylor, Raratonga, for respondents