Mataiapo v Tuerei [2013] CKCA 2; CA 05.2013 (22 February 2013)

IN THE COURT OF APPEAL OF THE COOK ISLANDS
HELD AT RAROTONGA
CA NO'S 5/13, 6/13 & 7/13

IN THE MATTER of Sections 58(2)(b) of the Judicature Act 1980-81 and the Court of Appeal Rules 2012

AND

IN THE MATTER of an appeal against the decision of His Honour Justice Savage delivered 22 May 2013

AND

IN THE MATTER of
TARAARE MATAIAPO & OTHERS
First Appellant

AND

IN THE MATTER of the Descendants of
MAKEA DAVIDA AND MAKEA TE VAERUA
Second Appellant

AND

IN THE MATTER of the Blood Descendants of
MAKEA ARERA TEANUANUA TEREKURA VAKATINITINI AND NGAMARAMA A APAI TURURANGI
Third Appellant

AND

IN THE MATTER of the Descendants of
TUPA TUEREI, KOKAUA, TAMARANGATIRA, TUTINI, RIMA, MATA, TOREKA AND VAKATINI
First Respondents

AND

IN THE MATTER of the Successors of
MAKEA TAKAU
Second Respondent

AND

IN THE MATTER of the Successors of
PHILLIP NICHOLAS
Third Respondent

Coram: David Williams P
Barker JA
Paterson J

Judgment: 22 November 2013

Counsel: Mr Framhein for First Appellant
Mr Hunt for Second Appellant
Mr Manarangi for Third Appellant
Mrs Browne for First Respondent
Mrs Carr for the Second Respondent

JUDGMENT OF THE COURT

[1] This appeal from the Land Division (Savage J) was set down for hearing on Thursday 21 November 2013.

[2] The cases arise out of a series of applications filed pursuant to sections 421 and 423 of the Cook Islands Act 1915. S 421 which reads,

Investigation of title to customary land
The Land Court shall have exclusive jurisdiction to investigate the title to customary land and to determine the relative interests of the owners therein.
S 422 reads,

Native Customs to be recognised
Every title to and interest in customary land shall be determined according to the ancient custom and usage of the Natives of the Cook Islands.

[3] The Applicants needed to establish a preliminary jurisdictional fact, namely that the land in question was uninvestigated land. If not, the Applications had to be dismissed. This central issue turned upon whether all of Sections 227 and 228 were investigated at the same time Pokoinu Section 107 was investigated in 1905. If not, the Appellants sought the vesting of those uninvestigated lands in the blood descendants of the various Applicant families who claimed the lands based on native custom.

[4] After extensive hearings from 13 to 15 May inclusive and 20 to 22 May inclusive 2013, an oral judgment was delivered on 22 May finding that there were no uninvestigated lands and dismissing the Applications. At paragraph [10] of the judgment it was said:

... Yesterday afternoon during the course of her helpful submissions, Mrs Carr unravelled the logic or the underpinnings of the case as it had been presented and she revealed the prospect that the uninvestigated land had in fact been investigated. I ventilated this with the parties then and I received further submissions this morning for, if that was the case, there is no basis for the case to proceed and I agreed to issue a short judgment because if that was the case then the applications are mis-founded. I cannot redo what has already been done or, to put it another way, in terms of s 421 of the Cook Islands Act 1915, I have no jurisdiction.

[5] Appeals were lodged by the three unsuccessful Appellants on 11 November 2013, the Third Appellants filed an Application under Rule 39 of the Court of Appeal Rules for Leave to adduce further evidence namely,

1. Register of Titles, Orders on Investigation of Title and survey plans for sections 4C, 83J and 96 – 107 all of which are within the boundaries of the survey plan for the water catchment reserve;
   
2. Titles Survey Plan for Rarotonga incorporating the parcels of land referred to in paragraph 1 above;
   
3. Survey Plan 197.
   

These documents were included provisionally in Volume 3 of the Case on Appeal. None of the documents were before the Land Division.

[6] The grounds of the application were as follows:

• (i) The argument that the customary title to sections 227 and 228 was investigated by Chief Judge Gudgeon in 1905 at the time the customary title to section 107 was investigated was only raised in a substantive way in the High Court by the Second Respondent in the course of closing submissions.
  
• (ii) Although, the learned Judge in the High Court adjourned the proceeding over night for the parties to consider the argument of the Second Respondent, there was insufficient time for the Appellants to gather the evidence to rebut that argument.
  
• (iii) Survey Plan 197 (being the survey plan that was before Chief Judge Gudgeon at the time he investigated section 107) could not be found at the office of the Chief Surveyor or amongst the Land Registry records before and during the High Court proceedings and was finally located amongst old archived Survey Office records following the High Court hearing.
  
• (iv) The further evidence to be adduced shows that the parcels of land comprising the water catchment reserve (which included sections 227 and 228) were not investigated until after May 1913.
  
• (v) Having regard to the fact that the parcels of land within the water catchment reserve were not invesitigated until after May 1913 and to survey plan 197, Chief Justice Gudgeon was in all probability only investigating the title to the land within survey plan 197.
  

[7] There were supporting affidavits from Mata John and Edward Drollet dealing with the matters referred to in paragraph 22 of this Court's decision in Crocombe v Collector of Inland Revenue:

[22] First it must be shown that the proposed fresh evidence could not have been obtained with reasonable diligence for use at the trial. Secondly, the evidence must be such that, if given, it could alter the outcome of the case, although it need not be decisive. Thirdly, the evidence must be such as is presumably to be believed. In other words, the evidence must be apparently credible though it need not be incontrovertible.

[8] On 21 November this Court heard submission on the application. Mr Framhein, Agent for First Appellants and Mr Hunt, Agent for Second Appellants, supported the application.

[9] Mrs Browne for First Respondent opposed the application on three grounds:

1. The evidence is not "fresh". The documents could, with reasonable diligence, have been produced at the hearing in the Lower Court. The Third Appellant had a duty to produce all their evidence at the hearing save what cannot reasonably be discovered.
   
2. The circumstances are not exceptional as to allow this evidence to be adduced.
   
3. Given His Honour's findings it is unlikely that the further evidence would have made any difference to the result of the case.
   

[10] As noted above Mrs Browne contended in her written submissions that the new evidence could with reasonable diligence have been produced at the Lower Court hearing. However, having read the affidavits of Mr John and Mr Drollett we have no hesitation in rejecting this contention. We accept Mr Manarangi's submission that the suggestion that Sections 227 and 228 had been investigated in 1905 at the same time that Pokoinu Section 107 was investigated was only squarely advanced on the last day of the hearing. This was confirmed by Savage J in the passage in his judgment cited in paragraph [4] above. Moreover reasonable efforts had been made before the hearing to locate Survey Plan 197 within the Survey Department. It was only after the hearing that Mr Drollett was able to locate the plan by approaching an employee of the Ministry of Justice known to be very experienced in locating and researching land matters.

[11] Therefore the only issue remaining for determination is whether the new evidence is credible evidence which could alter the outcome of the case. We have carefully considered the contentions of Mrs Browne to the contrary. However, we have been persuaded by the analysis contained in paragraphs 29 to 40 of the Third Appellant's submissions of 11 November 2013 that the new evidence and especially Plan 197 could alter the outcome of the case. Whether it will eventually do so is of course an entirely different matter. We do not consider it appropriate in this judgment to analyse in detail the competing contentions of Mr Manarangi and Mrs Browne on this issue lest we unwittingly influence the trial judge who must now reconsider the matter.

[12] The Third Appellants are entitled to an Order admitting the new evidence. Accordingly, there will be orders:

• (a) Setting aside the judgment of Savage J dated 22 May 2013. (It is to be understood that this is a necessary procedural formality and is not to be taken as an indication of the correctness or otherwise of the judgment of Savage J on the evidence before him.)
  
• (b) Admitting into evidence all of the documents in Case on Appeal Volume 3 with the weight, if any, to be given to such evidence to be decided by Savage J.
  
• (c) Remitting the matter to Savage J for rehearing and re-determination.
  
• (d) All questions of costs are reserved.
  

The appeals are disposed of accordingly.

Late Submissions of Second Respondent

[13] First Appellant by memorandum dated 15 November 2013 objects to the late filing in this Court of the Submissions of Second Respondent dated 15 November 2013.

[14] No application for an extension of time has been filed by Second Respondents. First Appellant requests the Court of Appeal "to disregard and strike out those submissions".

[15] Second Respondent has since filed an application for leave to file these out of time submissions explaining inter alia the reasons for the late filing.

[16] In view of the decisions of this Court under paragraph [12] above this procedural issue has become moot. The Second Respondent may present these Submissions at the rehearing before Savage J.

David Williams P
President

Sir Ian Barker JA

Barry Paterson J