Ingram v Amarama [1985] CKHC 9; HC App 003.1984 (1 February 1985)

IN THE HIGH COURT OF THE COOK ISLANDS
HELD AT RAROTONGA
(CIVIL DIVISION)

App.No. 3/84

IN THE MATTER OF THE LAND KNOWN AS
TE KAUARIKI, PART I, SECTION 13, MATAVERA.

BETWEEN

TE UPOKO INGRAM, TE PA MATAIPO,
OF RAROTONGA
Applicant

AND

ABERA AND NGAMARAMA AMARAMA
OF RAROTONGA PUBLIC SERVANT and MARRIED WOMAN
Defendants

JUDGEMENT OF DILLON J

These proceedings were commenced by Te Upoko Ingram, the Te Pa Mataiapo of Rarotonga, seeking three orders against the defendants, Mr and Mrs Amarama. The first order sought was an injunction to prohibit any further work on the building of a house which had commenced on an occupation right granted by this Court to the defendants on the land described as Te Kauariki Part I Section 13, Matavera. The Chief Justice granted an interim injunction on that application and recorded in a Memorandum dated 11 September 1984 the basis for the interim injunction and the procedure to be adopted for dealing with the two subsequent orders sought by the plaintiff. The plaintiff sought orders pursuant to the provisions of Section 390A or in the alternative Section 391 of the Cook Islands Act 1915 whereby the occupation right that had been granted on 19 March 1984 should be either varied, cancelled, revoked or annulled.

Mr Ingram acted for the applicant, his mother unfortunately has passed away since the proceedings were originally instituted. Mr Tylor appeared for the defendants, Mr and Mrs Amarama. It was agreed by counsel that the hearing which extended over three days should deal only with the application under section 391 reserving leave to either counsel to call further evidence on the Section 390A application should this be considered necessary following the outcome of the determination of the application under Section 391.

Mr Ingram relied on the evidence contained in the affidavit of the late Mrs Ingram; the affidavit of Mr R.J.A. Ingram, Mrs Ingram's husband who was not called on to give any additional evidence; the affidavit of Mrs David, Deputy Registrar of the High Court, who was called to give additional evidence at the hearing, Elizabeth Araiti who was the stenographer at the Court hearing on 19 March 1984; Tunganekore Manu who is Mrs Ingram's sister; Dan Kamana an owner and Member of Parliament; and finally Taramai Tetonga who is one of the Maitaiapo's and owner of the block.

All these witnesses contributed in their own way to a situation which can be conveniently summarised in the following way:

Mrs Ingram is the principal owner in this land which it is conceded is not title land. Nevertheless it is suggested by the Mataiapo that there is a custom which related to this land which requires in this case Mrs Ingram to call a meeting of owners and that this custom and requirement was not followed by the defendants. Mrs Amarama had discussed the question of an occupation right with Mrs Ingram over a long period of time involving years but no finality had ever been reached. Mrs Ingram, prior to leaving for New Zealand on one of her many visits, arranged with Mrs David, Deputy Registrar of the High Court who is in charge of the Land Section of that Court, to, as she says, "keep an eye out for any application coming before this Court affecting Te Pa Land" - that is lands belonging to Mrs Ingram or in which she had an interest. As a result of those instructions Mrs David enquired from Mrs Amarama's father when she happened to see him in Court on one occasion whether Mrs Ingram had been consulted or notified concerning the application which by then had been lodged for Mrs Amarama to secure an occupation right on this land in question. It has been suggested that his reply to Mrs David's enquiry was that "the papers have not been sent to her in New Zealand" – the "her" quoted in the quote referring to Mrs Ingram. It is common ground that no papers were ever sent to Mrs Ingram in New Zealand. Based on that reply by Mrs Amarama's father, who is not a party to the proceedings, Mrs David assumed that Mrs Ingram was aware of the application and assumed further that it was not necessary for her to get in touch with Mrs Ingram pursuant to the previous instructions that she had agreed to accept in this regard.

In due course the application came before the Court with neither Mr nor Mrs Amarama appearing. The significance of this is that Mrs Amarama's father happened to be in Court on the morning on a matter totally unconnected with this present application and as a result of Mrs David's enquiry he was persuaded by Mrs David to appear formally in support of his daughter's application for an occupation right; the application was granted; no objections were forthcoming and the matter was disposed of on the morning of the 19^th March 1984 when in actual fact it had been set down for hearing, and the defendants had assumed it would be heard, on the afternoon of that date. The defendants then proceeded to have the section surveyed, work commenced on laying the foundations of the house and it was only then that Mrs Ingram became aware that anybody was using land which she claims that she had occupied and used for a great number of years. It was then that the injunction and these applications followed.

The occupation right is for an area of 1113m² out of a total area of 2 ha approximately 5 acres and 1 rood which is bisected by a formed public road. There were 15 original owners in this title after various amendments. It is clear that Mrs Ingram is by far the largest owner of this land – according to my calculations she has 8 3/23^rd of a share out of 15 shares whereas Mrs Amarama's father and brothers and sisters have a 1/15^th share. It is clear therefore that Mrs Ingram has by far the largest shareholding in this land although it is conceded by counsel for Mrs Ingram that while she has a Mataiapo title this particular land is not title land. It is also clear from the evidence that Mrs Ingram over a number of years has occupied this block and planted on it. There is conflict however as to whether any use has been made of this land in latter years. There was conflict between the evidence of Tuakana Mataiapo and Tama Richmond on this point. The photographs that were submitted certainly indicate a lack of cultivation and show a wilderness type situation which is not consistent with reasonably recent cultivation. However I do not think this conflict is of such concern in arriving at a decision on this matter.

Mr Tylor relies on the affidavits which had been filed by Mr and Mrs Amarama and on the further evidence which they gave at the Court hearing. In addition Mrs Amarama's father, Beniamina Unu, was also called to give evidence as well as the witness concerning the condition of the citrus previously referred to Tama Richmond. The evidence adduced on behalf of the defendant can be summarised in the following way.

Mrs Amarama, over a period of years, endeavoured to secure approval from Mrs Ingram for an occupation right on this land in question but claimed that her attempts were frustrated because of Mrs Ingram's trips between Rarotonga and New Zealand; that finally she sought the assistance of Mr Short, a solicitor, and that as a result of his enquiries and the search of the title, that he arranged for a Form of Consent to be prepared which was then taken around the various owners of the land whose signatures are attached to that Consent and form the basis of the application to the Court when the occupation right was initially granted. In addition to Mr Short, Mrs Amarama was assisted by an experienced member of Mrs Short's firm who suggested apparently that further signatures where required in order to ensure that the Form of Consent would be acceptable to the Court. It is significant that Mrs Ingram's signature was not secured and Mrs Ingram's sister, Mrs Manu, did not sign although requested to do so. Having secured this Form of Consent the application was then lodged with the Land Court and in due course an order was made on 19 March 1984. The defendants claim that the father of Mrs Amarama had nothing to do with the negotiations concerning the owners and their signing of the Consent, that any observation that he made to Mrs David at the Land Court, which he denied making incidentally, would have been made without any knowledge by him of what his daughter was doing concerning the application. Mrs Amarama had arranged to attend the Court sitting on the afternoon of 19 March when the matter was set down for hearing, but was told at lunch time of that day that the matter had been disposed of and dealt with and an order made.

It is on the basis of these facts that Mr Ingram on behalf of the plaintiff now applies for an order under section 391 for cancellation of the occupation right. Section 391 provides –

"The High Court may at any time annul any order obtained by fraud."

It is from the facts to which I have referred and which I have summarised above that the application must establish that a fraud has been committed which would warrant the annulment or cancellation of the occupation right which was made on 19 March 1984. The applicant relies on three particular allegations of fraud against either the defendants or the defendant's agents. It will be convenient to set out these allegations and to consider them in detail.

(a) The applicant alleges that the defendants obtained their occupation right 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 that subsequently they represented to the Court that they had obtained the consent of the majority of the owners. Now Mr Ingram relies heavily on Maori custom as applying to Matavera land only that before the consent of any owners to any dealing in that land can be obtained a meeting of the owners must be called by the Mataiapo. He relies on Tuakana Mataiapo to establish this custom. Now neither Mrs Amarama nor her father were in my opinion aware of this custom. They were certainly aware of the respect to which the late Mrs Ingram was entitled as a Mataiapo and that they accorded her that respect by approaching her on many occasions. However they believed, Mr Short believed, and Mr Ingram conceded that this was not title land. In fact it was a surprise to the Court to learn of this custom which applies to Matavera land only and which apparently was unknown by Mr Short who was a very experienced solicitor in such matters because he proceeded, according to Mrs Amarama, to deal with the application for an occupation right by way of a formal written consent for all the owners to sign. Mr Ingram suggests that the Form of Consent which was taken around the owners for them to sign was in the nature of a "device" in order to overcome this question of Maori custom applying to this particular land only; that deceipt was involved in this approach; that this Form of Consent was used contrary to the direction by Mrs Ingram to have a meeting and that all in all not only has Maori custom been breached but the Court has been mislead. On that point it really would be very difficult to hold that fraud has been established because a Form of Consent has been used which is a form used by owners and accepted by the Court in probably 75-85% of the occupation rights that come before the Court. Further it was a form which was prepared by a solicitor who had searched the title and found that this land was not title land and who apparently was unaware of the special custom which Mr Ingram says applies to this land but does not apply to other land in Rarotonga. In those circumstances it could not be suggested that fraud has been established.

(b) The second basis of Mr Ingram's allegation of fraud is that the defendants wilfully mislead the Deputy Registrar into believing that Mrs Ingram had been notified of the application and that as a result the Deputy Registrar was mislead as to the true position existing. In this case there is a direct conflict. Mrs David has said that she asked Mrs Amarama's father about the application and as a result of his reply that the papers had been sent to Mrs Ingram in New Zealand, she was then satisfied that she had fulfilled her duty in looking after Mrs Ingram's interests. Mr Beniamina Unu denies having this conversation. I believe that he did have a conversation with Mrs David; I accept what Mrs David says and that as a result of his reply she believed that Mrs Ingram was aware of what was happening. It is suggested in support of the application that as a result of that misunderstanding the Deputy Registrar was induced to place the application for occupation right on the Panui. This cannot be accepted since the Deputy Registrar has no right to withhold the inclusion of an application on a Panui. Certainly Mrs David had a right to get in touch with Mrs Ingram once an application was received but in no way was she entitled to not advertise the application. However it must be remembered that this conversation was between Mrs David and Beniamina Unu. The defendants were not involved and apparently knew nothing of it. They were quite innocent of what had been discussed and what Mrs David had taken from the conversation. I am satisfied that Mrs David's understanding of the discussion was that Mrs Ingram knew about the application. I am also satisfied that if Mrs David took that interpretation from the conversation that she had with Beniamina Unu, that he did not intend to deceive Mrs David in the way that it ultimately resulted. I am satisfied from the whole of the evidence that Beniamina Unu instructed his daughter to deal with the matter of her occupation right; that any casual conversation that he might have had with Mrs David at the Land Court was not intended to deceive the Deputy Registrar; and I am further satisfied that whatever the conversation was at the Courthouse that it had satisfied Mrs David that Mrs Ingram was aware of the application. On that interpretation of the evidence I am satisfied that fraud has not been established.

(c) Finally it is suggested that the defendants obtained their occupation right by wilfully misrepresenting to the Court at the time the order was made that Mrs Ingram was not occupying the land. Here again the circumstances of the Court hearing are really essential to a proper consideration of this allegation of fraud. Mr and Mrs Amarama's application was set down for hearing on the afternoon of 19 March 1984. Mr David was aware of this but presumably because the Court was making better progress with the work in the morning than anticipated there was time available to put other cases on the list for hearing in the morning. Mrs David saw Mr Beniamina Unu in the back of the Court, he being there not for his daughter's application in the afternoon but for some other matter in which his wife was involved. At Mrs David's request he appeared on his daughter's application as a result of which an order was made. It is suggested that when he gave evidence that Mrs Ingram "was looking after the other piece but not the section in question" that this was intentional misrepresentation; that it was intended to deceive the Court; and that in fact it had misled the Court; and that this then is the basis of the allegation of fraud. The applicant includes in this submission the application; the Form of Consent; the sketch plan and the evidence given by Beniamina Unu. However when one considers that the application, the Consent, and the plan were all prepared by a solicitor and signed by the owners, then very clear evidence must be adduced in order to establish the serious allegation of fraud.

The applicant also relied heavily on the evidence of Beniamina Unu given at the Court hearing. It is suggested that this evidence is perjury and as such establishes fraud.

I will turn now to a consideration of Section 391 and the principles applying to this branch of the Law. Section 391 provides that the Court "may at any time annul any order obtained by fraud". In the main, fraud arises from either the acts of someone or circumstances surrounding a certain situation. It can be a statement of what is false or a suppression of what is true. It has been said that fraud is something dishonest and morally wrong. Now applying those principles to the present case, the applicant suggests that:

1. BECAUSE Maori custom peculiar to this land was not followed then this amounts to fraud. – But neither the Defendants; Mr Short their solicitor; Mr Beniamina Unu; Mr Dan Kavana the Member of Parliament; and all the owners who signed the Form of Consent filed in Court, apparently knew of this special custom which applies to this Matavera land only. Mr Kavana and a large number of other owners signed the consent form. If this procedure was contrary to Maori custom then certainly a large number of joint owners with the applicant have breached this custom. But is this not really ignorance of the Maori custom as applying to this particular section? It certainly does not amount to fraud.
   
2. BECAUSE the defendants father misled Mrs David the Deputy Registrar this amounts to fraud. – I have already considered the evidence on this allegation. I accept Mrs David had a conversation with Mr Beniamina Unu father of Mrs Amarama one of the Defendants; that as a result of that conversation Mrs David believed that Mrs Ingram was aware of the application; that as a further result of that conversation Mrs David did not notify Mrs Ingram of the application which otherwise she would have done. However it is also clear that:
   

(a) neither Defendants were aware of or had any knowledge of this casual conversation between Beniamina Unu and Mrs David,

(b) Beniamina Unu took no part in all the preliminary negotiations leading up to the Court hearing once his daughter asked Mr Short her Solicitor to act on her behalf – apart from actually signing the consent form.

That conversation; that understanding of the position by Mrs David; and that impression given by Beniamina Unu in the course of his talking with Mrs David is not fraud.

3. BECAUSE the Defendants father misled the Court that amounts to fraud. – However the circumstances of Beniamina Unu being in Court; and asked by Mrs David to appear on the case when the Defendants were going to deal with the matter in the afternoon are important considerations when considering this allegation of fraud. Against that background of how the case came to be dealt with are the two further important considerations:
   

(a) Mr Beniamina Unu stated in evidence that Mrs Ingram "was looking after the other piece but not the section in question." It is suggested that this is incorrect; and was said to mislead the Court. However I find from the evidence that while Mrs Ingram originally planted this land and maintained it for many years, its present condition clearly shows a complete lack of control upkeep and maintenance. From the photographs submitted it could be said that Mrs Ingram had abandoned both sides of the roadway. To this extent Mr Beniamina Unu may have been quite right in saying that Mrs Ingram was not looking after "the section in question." It certainly appears that she was not. In this statement, based on the clear evidence of abandonment, to be regarded as fraud? I do not think so.

(b) However more important is the fact that Mrs Ingram was residing in Rarotonga at the time of the Court hearing. Mrs David's brief was to look out for any applications dealing with Mrs Ingram's land while she was in New Zealand. But when this application came before the Court, a Panui of all the cases to be dealt with had been published and was available to Mrs Ingram; notices of all cases are included in the daily paper and notice is also given daily over the radio – whether radio notice was given on this occasion is not known. In any case Mrs Ingram was in Rarotonga and chose to ignore the extensive system of advertising which the Court provides so that objections can be dealt with.

Taking those considerations into account I cannot hold that the evidence given at the Court hearing was fraudulent. It may be that Mr Beniamina Unu was wrong in believing that because of the abandoned condition of the citrus trees Mrs Ingram had therefore abandoned them. He certainly had grounds for that belief. However whether he was right or wrong he certainly was not guilty of fraud.

It is conceded by Mr Ingram that Section 391 is discretionary and that even though fraud has been established the Court may nevertheless uphold or maintain an order or judgment obtained by fraud. However in this case I do not need to consider that question since I find that the applicant has not established fraud, the onus of proof being on her. The order sought is therefore refused.

At the commencement of this case leave was reserved to both counsel to call additional evidence if this was considered necessary on the Section 390A application. The Registrar is directed to ascertain from Counsel if additional witnesses are to be called; the time required for the Section 390A application; and to make a special fixture for the hearing and disposal of that application at the next Court sitting in March. The question of costs are in the meantime reserved.

There are two further matters of a general nature on which I would like to comment. Firstly there was a totally unexplained delay in my receiving Mr Ingram's final submissions which were posted from Rarotonga on the 24^th October 1984 but only received by me in New Zealand just prior to Christmas. The delay in this judgment is the result. Secondly the Court has been greatly assisted by the comprehensive and detailed submissions of both Counsel who are commended for their efforts.

1 February, 1985

DILLON J
Signed