Ngametua v Moeau [1988] CKCA 1; CA 02.1985 (26 July 1988)

IN THE COURT OF APPEAL OF THE COOK ISLANDS
HELD AT WELLINGTON
C.A. 2/85

IN THE MATTER
Section 390A of the Cook Islands Act 1915

BETWEEN

NGAMETUA AND TAIMAU
being persons named by the Land Court
as owners in Te Arakura Section 83A Arorangi
Appellants

AND

METUA MOEAU
of Rarotonga, Landowner
Respondent

Coram:
Sir Clinton Roper (presiding)
Sir Peter Quilliam
Sir Barry O'Regan

Counsel:
Mr V.A.K.T. Ingram for Appellants
Mrs T.P. Browne for Respondent

Hearing: 7 July 1988
Judgment: 26 July 1988

JUDGMENT OF THE COURT

This is an appeal from an order of the Chief Justice, made pursuant to s. 390A of the Cook Islands Act 1915 on 20 November 1985, and adopting the opinion expressed in a Report by Dillon J under s. 390A (3).

The appeal relates to the title to land now known as Te Arakura Section 83A and B 1.2 and 3 Arorangi. The original title was created by an Order made on 30 June 1905 following a judicial investigation which allocated the land (subject to a life interest) to one Maria-A-Rongo. This order resulted from a dispute between two claimant families, Ngati Kaena and Ngati Manava. The Court found in favour of the Manava family and Maria was duly declared to be the original owner.

Maria-A-Rongo died without issue on the 2 May 1912, and on 23 October of that year a succession order was made in favour of Moeau m.a. and Taria m.a. The present Respondent, Metua Moeau, succeeded to both Moeau and Taria on their deaths, and now claims to be the sole successor. In 1942, however, the Appellant, Ngamatua, succeeded in obtaining an order adding his name to the title; and in 1944 Taimau obtained a similar order. In each case the applications by Ngamatua and Taimau were expressed to be for "Amendment of Title" by adding the name of the particular applicant. The result of these orders was that the title was then held by Metua Moeau for a one-half share, with Ngamatua and Taimau holding the other half share between them.

In 1983 an application was filed on behalf of the Respondent, Metua Moeau, for an order pursuant to s. 390A "to remedy by revocation" the orders of 1942 and 1944 upon the ground that the Court had lacked jurisdiction to make them. That application went before the Chief Justice who referred it to Dillon J for a report. In his report Dillon J expressed the opinion that the orders of 1942 and 1944 had indeed been made without jurisdiction. The Chief Justice, acting on that opinion, and with the consent of the Queen's Representative, made an order cancelling the orders of 1942 and 1944. It is from that order of the Chief Justice that the present appeal has been brought.

The relevant provisions of the Cook Islands Act are as follows:

1. Section 421 provides that the Land Court "shall have exclusive jurisdiction to investigate the title to customary land and to determine the relative interests of the owners thereof".

2. Section 423 provides that, on any such investigation and determination, the Court may make an order naming the persons found entitled and specifying their relative interests in the land.

3. Of particular importance is s. 428(1), which provides:

"(1) All Native land the title to which has been judicially investigated before the commencement of this Act, and which is held under any order or instrument of title made or issued by the Cook Islands Land Titles Court, is hereby declared to be Native freehold land vested for a legal estate in fee simple in the persons declared by that order or instrument of title to be the owners thereof or in their successors in title in the same manner as if a freehold order had been made under this Act, but subject to all rights, titles, estates, or interests lawfully vested in any other person."

4. Section 448 deals with succession orders and provides:

"On the death of a Native or descendant of a Native leaving any interest in Native freehold land the Land Court shall have exclusive jurisdiction to determine the right of any person to succeed to that interest, and may make in favour of every person so found to be entitled (hereinafter called a successor) an order (hereinafter called a succession order) defining the interest to which he is so entitled."

5. Section 450 provides:

"A succession order made in error may be at any time revoked by the Land Court, but no such revocation shall affect any interest therefore acquired in good faith and for value by any person claiming through the successor nominated by the order so revoked."

The Respondent's case is that the orders of 1942 and 1944 for "amendment of the title" were made without jurisdiction because of the limiting provisions of s. 428. The submission was that s. 428 preserved the order made in 1905 following investigation of title, and that the orders of 1942 and 1944 purported to amend that order. For the Appellants it was argued that the orders of 1942 and 1944, notwithstanding the way in which they were expressed (namely that the "title be amended") were actually succession orders which the Court had jurisdiction to make.

Two principal matters require determination; the first is whether s. 428 applies to succession orders made in respect of land to which there has been an order on investigation of title; and secondly, whether, in the present case, the orders of 1942 and 1944 were succession orders or orders amending an order made on investigation.

As to the first point it is our opinion that s. 428(1), as set out above, is effective to determine, as at the date when the order is made, the true owner of the land in question. Nowhere in the Act is there any provision enabling an order on investigation to be reviewed, amended or revoked. It follows that the order determines conclusively the person or persons entitled to the freehold interest at that time. It is the starting point for the determination of rights of ownership to the land. Plainly such an order cannot have been intended to preclude rights of succession to the owners so determined on investigation and the Act has provided the means by which succession is to be arrived at. It follows that s. 428(1) cannot, and does not, preclude the making of subsequent succession orders.

It was argued for the Respondent that the words in s. 428(1) "vested for a legal estate in fee simple in the persons declared by that order or instrument of title to be the owners thereof or in their successors in title...."meant that an order on investigation of title was determinative not only of the persons declared to be the owners but also of any succession order made prior to the enactment of the Cook Islands Act, and that since there was a succession order made in 1912 there could not, in 1942 and 1944, have been any variation of, or derogation from, that succession order. We do not accept that submission. We think the expression "or in their successors in title" refers to those persons who may subsequently, or from time to time, be found to be successors by virtue of an order made under the Act.

As to the second point, Dillon J attached considerable importance to the fact that each of the orders made in 1942 and 1944 was expressed to be an order "that the title....is hereby amended". He felt that in the face of such clear language it could not be said that the orders were indeed succession orders, while acknowledging that if they had indeed been orders amending an earlier succession order it was unlikely that the present proceedings would have been brought. With great respect we take a different view.

It was common ground, and we agree, that there was no jurisdiction in 1942 and 1944 to make an order which derogated from the order on investigation made in 1905. Mr Ingram agreed that if Maria-A-Rongo had left issue there would have been no dispute to succession. In the present case the orders in issue did not derogate from the order on investigation. It was open to the Court to consider whether there should be succession orders in respect of the interest originally held by Maria-A-Rongo and any order of succession subsequently made was, by virtue of s. 450, capable of being revoked and replaced by a fresh succession order made under s. 448. This view is, we think, supported by the words of s. 449 which provides that a succession order shall "while it remains in force" be conclusive proof of title.

What has happened in respect of this land is that the ownership was finally determined in 1905 in an order which held that the Manava family was alone entitled. Since then questions have arisen as to the correct orders of succession which should be made following the death of Maria-A-Rongo who was in 1905, the sole representative of the Manava family. Once a succession order was made there was a determination of the person or persons who had the right to be on the title, not by reason of any derogation from the order made in 1905, but in correct compliance with that order.

We think too much has been made of the fact that the orders of 1942 and 1944 were expressed to be made by way of "amendment to the title". That expression was probably literally correct because the effect of a new succession order was to alter the person or persons entitled to succeed (and therefore to be noted on the title). We cannot escape the conclusion that although incorrectly described, they were actually succession orders. As such they were made with jurisdiction.

It is to be noted that the 1942 and 1944 applications were not made on forms prescribed by statue or regulation. They were literally "home made" informal documents, which did not lend themselves to a strict interpretation. Nor were they applications which attacked the investigated titles of Maria-A-Rongo. On her death, she having no children, the persons entitled to succeed fell to be determined in accordance with native custom, and on the facts of the case it seems clear that the 1942 and 1944 applications sought rights by succession.

It follows from the opinions we have expressed that the order made by the Chief Justice cannot stand and that the appeal must be allowed. It may be that even now the title does not show the true position as to succession but that is not a matter we can resolve on this appeal.

The appeal is accordingly allowed and the order made by the Chief Justice is quashed.

We were informed by counsel that no order as to costs was sought.

SIR CLINTON ROPER (presiding)
SIR PETER QUILLIAM
SIR BARRY O'REGAN