UKPC 34
Privy Council Appeal No 0083 of 2010
The descendants of Utanga and Arerangi Tumu (Appellants) v The descendants of Iopu Tumu (Respondents)
From the Court of Appeal of the Cook Islands
JUDGMENT DELIVERED BY
LORD WALKER AND LORD CARNWATH
giving the judgment of the Board
22 OCTOBER 2012
Heard on 18-19 April 2012
(New Zealand and Cook Islands Bar)
(Instructed by Ross Holmes Lawyers L.P)
(New Zealand and Cook Islands Bar)
(Instructed by Brown Harvey & Associates P.C)
LORD WALKER AND LORD CARNWATH:
"Subject to the provisions of this Act, the laws in force in the said Islands at the commencement of this Act (including the local laws, customs, and usages of the Native inhabitants, in so far as the same are not repugnant to the general principles of humanity) shall continue until other provision is made, and, subject as aforesaid, the statute laws of New Zealand shall not be in force in the said Islands:
Provided that the Governor, by Order in Council, may from time to time direct that any of the laws in force in the said Islands at the commencement of this Act, may be modified or repealed."
By section 4 existing courts of justice in the Cook Islands were to continue, but subject to new rights of appeal to superior courts in New Zealand. Section 6 provided as follows:
"The Governor, by Order in Council, may from time to time establish a tribunal or appoint an officer or officers, with such powers and functions as he thinks fit, in order to ascertain and determine the title to land within the said Islands, distinguishing titles acquired by native customs and usage from titles otherwise lawfully acquired; and may provide for the issue of instruments of title, and generally make such provisions in the premises as he thinks fit."
Section 15 made provision for the setting aside of Crown lands.
"The Court shall consist of such Judges, not less than two, as the Governor may from time to time appoint. One of such Judges shall be the Chief Judge, who shall be a European."
"European" was defined as a person other than a Native, and "Native" as "an aboriginal native" of the Cook Islands. Section 10 set out the jurisdiction of the Land Court in numerous subsections, the first six being as follows:
"The Court shall have jurisdiction –
(1) To investigate the title to and to ascertain and determine the owners of any land within the said Islands, distinguishing titles acquired by Native custom and usage from titles otherwise lawfully acquired:
(2) To determine the relative interests in any land of the persons entitled thereto, and to partition any land among such persons:
(3) To effect an exchange between Natives on any land owned by them:
(4) To determine any successor:
(5) To grant probate of the will and letters of administration of the estate and effects of any Native now dead, or who shall hereafter die:
(6) To render any land inalienable, or to impose such limited restrictions on the alienation of any land as the Court may think fit, and to vary or remove any restrictions:"
Section 10 (15A) (which was, despite its unusual numbering, part of the statute from its original enactment) gave the Land Court jurisdiction,
"(15A) To rehear any claim or other matter whatsoever the finding in relation to which has been appealed against within two months from the date thereof. Every such rehearing shall take place before at least two Judges, and the finding thereon shall be final and conclusive, and shall be substituted for the original finding, which shall thereupon become void:"
Section 13 provided that the Chief Judge, or any other judge who was European, might exercise all the powers of the court while sitting alone. Section 25 provided as follows:
"All amendments necessary to remedy or correct defects or errors in any proceeding or document, or to give effect to or record the intended decision in any proceeding, may be made at any time by the Court, whether applied for or not, and upon such terms as to the Court may appear just."
| First Column
||Second Column||Third Column||Third Column|
|Name||Sex, and if Minor,
|Relative Interest||Part declared
"Although the Court commenced sitting in 1903 and had by 1910 investigated most of the titles in Rarotonga and many in Aitutaki, no attempt was made to record the Orders of the Court in a manner befitting their importance. It is only recently that a record existed whereby one could be sure of ascertaining the true position of the title to any Block, and it is only since owners have been able to discover the state of a title that mistakes, errors and omissions are alleged against it."
He also quoted Mr F D Baxter, an experienced solicitor:
"One has only to see the record books ... before these Registers were compiled [by the then Registrar Mr H J Morgan] to know that the position was chaotic. Not only are the old records dirty and untidy but also there are inter-alienations and notes written into them without apparent authority but would show that relevant information was scattered through numerous files (not necessarily in the Registrar's office) without adequate references to enable a searcher to trace the information directly."
". . . in Rarotonga however the Judge of the Land Titles Court was not entirely free to do justice without fear or favour. A more just and upright Judge that [sic than] Col. Gudgeon never existed, yet if he had, from the outset in Rarotonga, insisted upon the arikis proving their title against the occupiers, a start would never have been made to clothe the real owners with titles and trade would have languished to the discredit of his administration.
Throughout his judgments one senses his exasperation at being forced to adjudicate in favour of noble applicants for no reason other than that the real owners offered no opposition to their arikis, Mata'iapos or rangatiras [different degrees of tribal status] as the case may be. In some cases these real owners may have permitted the Court to assume a tacit consent through apathy or a natural dullness; but in far too many cases it appears that the owners were afraid to oppose their upper class."
"The proceedings in the Land Titles Court from the 7th Feb 1906 to the 19th August 1913 (both dates inclusive) require to be validated, as there was no properly constituted Court during that period, though a great many claims were adjudicated upon..."
The Cook Islands Act 1915
Section 399 Validity of orders
(1) No order of the Land Court shall be invalid because of any error, irregularity, or defect in the form thereof or in the practice or procedure of the Court, even though by reason of that error, irregularity, or defect the order was made without or in excess of jurisdiction.
(2) Nothing in the foregoing provisions of this section shall apply to any order which in its nature or substance and independently of its form or of the practice or procedure of the Court was made without or in excess of jurisdiction.
(3) Every order made by the Land Court shall be presumed in all Courts and in all proceedings to have been made within the jurisdiction of the Court, unless the contrary is proved or appears on the face of the order."
Section 415 Drawing up of orders heretofore made
Any order made by the Cook Islands Land Titles Court which has not been drawn up, signed and sealed before the commencement of this Act may be drawn up, signed, and sealed by any Judge of the Land Court, and shall take effect as from the making thereof.
Section 416 Validation of former orders
(1) When any question arises as to the validity of any order made by the Cook Islands Land Titles Court before the commencement of this Act, and the Land Court is satisfied that having regard to equity and good conscience such order ought to be validated, the Land Court may by order validate the same accordingly.
(3) No such order shall be signed or sealed until and unless it has been assented to by the Attorney-General in writing…."
"… through any mistake, error, or omission whether of fact or of law however arising, and whether of the party applying to amend or not, [the Land Court]… by its order has in effect done or left undone something which it did not actually intend to do or leave undone, or something which it would not but for that mistake, error, or omission have done or left undone, or where [the Land Court] … has decided any point of law erroneously,…"
An order made by the Chief Judge under this section amending, varying, or cancelling any prior order was subject to appeal, but there was to be no appeal against the refusal to make any such order.
Orders in 1905 and 1912 relating to the three plots
"I make this request to the Court to amend certain lists of names in the Tumu lands. When I first put the names in I was ignorant as to the effect this would have in future years, but now I see that there will be a lot of trouble. My family are in all the lands and it is not that I want to deprive them of any land…"
Nothing seems to have happened until 29 February 1912 (shortly after the appointment of Judge MacCormick), when the letter was advertised as an amendment application in the Cook Islands Gazette.
"we approve of that request because we did not join in helping Tumu during the proceedings and disputes before the Land Titles Court. He has not however forgotten us."
The letter then referred to other lands which Iopu Tumu "has put in our names."
"Appln made in 1908 by lopu Tumu to amend list of owners by striking out certain names. He put the names in himself but by a family arrangement it is desired to take them out.
Mere, Arapu, Makiroa Arerangi (nieces of Iopu Tumu) are present and desire their names taken out as they have their shares of the family lands elsewhere. Maria Arerangi their sister is dead without issue and they are her successors. The only other owner is Utanga Tumu brother of Iopu. He has signed a consent to his name being excind. The 3 lands altogs [sic] contain about 12 acres and it is said that Tumu is the only one who has occupation.
Order by consent that the 5 names be deleted from the orders of the 3 lands."
"There is one aspect of my Land Titles Court work here on which I think I should report to you now.
A considerable number of applications have been made for amendment or reopening of existing titles to land, practically applications for rehearing. The Court at present has no power to grant any such applications.
Nor do I think that it would be wise to give any general power of the kind as it appears to me it would be taken advantage of and be the cause of rehearing of a very large number of titles, although an error had been shown, it would in fact have the same disastrous effect here as section 50 of the Native Land Act 1909 had in New Zealand. Great expense and delay would be caused if any such general power of rehearing be granted. You will understand I am referring to old titles in respect of which the time for appeal had gone by.
Nevertheless recognising that injustice may have occurred I have thought it advisable to hear every such application brought before me with the intent that if I were satisfied that a real injustice had taken place I would make some recommendation to remedy it. In one or two instances I made amendments by consent of parties concerned where manifest slips had occurred.
But apart from that I have not so far come across a case where it seemed to me that the applicants for rehearing would have any prospect of ultimate success. At present therefore I see no need for taking any action at all.
If later on I do come across a case that seems to call for action I shall report to you especially upon it."
The commencement of these proceedings
"(a) There was no jurisdiction to make the 1912 order because the form of application or transaction, namely an amendment, was not contemplated or recognized in the jurisdiction given to the Court.
(b) The Court was not properly constituted because there was no Chief Judge.
(c) The Court was not constituted because Judge MacCormick was never appointed a Judge of the Court. (See Applicants' Appendix VII Minute Book at p302 reply by High Commissioner 28 August 1912).
(d) The 1912 order was invalid on various procedural grounds including absence of use of proper form, lack of sufficient notice, not initialed or signed by Judge or Chief Judge.
(e) The 'family arrangement' or agreement mentioned in 1908-1912 by the applicant was an exchange of land and the landowners who purported to consent to the order as made did not understand that and did not give free and informed consent.
(f) The order was obtained by fraud on the Court in which officers of the Court were party to or acquiesced in, by suppressing or failing to inform the Court of the true nature of the transaction. I understand that it is agreed that this is a matter which is separate from the 390A application and is to be dealt with in different proceedings. I need not consider this point further. I observe as a caveat to that, that if the Court was to proceed under section 416 Cook Islands Act it would be difficult to be affirmative in equity, and good conscience with fraud allegations unresolved."
The judgment of Williams CJ
"(a) Was the 1912 Order invalid for any of the following reasons:
(i) mistake, error or omission of fact or law in terms of section 390A(1) of the Cook Islands Act 1915 (e.g. lack of consent, incorrect family arrangement);
(ii) lack of jurisdiction; or
(iii) failure to fulfil certain formality requirements.
(b) if yes to (i) above, what remedy must follow under section 390A(1);
(c) If yes to (ii) or (iii) above, can the order nevertheless be validated by virtue of section 416 of the Cook Islands Act 1915."
The grounds of appeal to the Board
(1) The 1912 Order was made without jurisdiction and was therefore invalid from its inception.
(2) In consequence, there was no jurisdiction under section 416 of the Cook Islands Act 1915 to validate it in accordance with the equity and good conscience proviso.
(3) Alternatively, if there was such jurisdiction, the decisions reached by the Chief Justice and the Court of Appeal regarding equity and good conscience were flawed.
"For whatever reason, Utanga and Arerangi consented to the removal of their names. That removal does not seem so odd in the light of the agreement of the parties that prior to 1905, only the Tumu name appeared on the titles. That fact would appear to support the respondents' argument that the addition of the names in 1905 was in fact an error which the 1908/1912 application sought to correct."
(1) On 10 April 1905 the Chief Judge considered applications relating to sections 69 (Taurupau) and 70 (Rarokava). The manuscript notes show that Tumu appeared and claimed these lands, and that in respect of section 69 the Chief Judge made an order in favour of Tumu and his two siblings and three nieces (and in favour of Kairangi for a life interest), all the names except Tumu's being written in small script, suggesting an insertion. In respect of section 70 both the manuscript and the typed minutes are hard to decipher, but appear to state "Order in favour of Tumu a [male adult] and those in section 69 same obligations as regards Ariki House".
(2) On 18 April 1905 there seems to have been a lengthy hearing on section 73 (Te Piri). The Chief Judge's notes record the evidence, with his own comments. They conclude "the Court holds that Te Piri is the land of Tumu and awards it to him". But this is immediately followed by an order in favour of Tumu Iopu (is uncertain whether this is one or two persons) and Iopu's siblings and nieces, these names having no appearance of being written in later. But then Tumu is recorded as having said "I ask that my name only be put in". Another quite different claimant, Tamarua, then joined in to challenge the order. So the Chief Judge adjourned the hearing.
(3) The adjourned hearing continued on 19 April 1905. The Chief Judge's notes record "in every sense this has been a most unsatisfactory case". He then described in detail the lack of merits in Tamarua's case, adding (and this is perhaps indicative of his experience in the Land Court) "Parakoti whose role in life appears to be to bolster up bad cases had better have kept out of this. He is always on the wrong side and his action is mischievous". The minutes conclude "Order on page 380 of Book 1". This was the order set out in (2) above.
(4) Minute Book No 2, page 142 has an entry in these terms (with the omission of notes of court fees) "Tumu's lands. Many names added to list as follows: Utanga, Mere Arerangi, Arapou Arerangi, Maria Arerangi, Makiroa Arerangi. Sitting held on 1st August 1905 to fix perman[en]tly list of names in above two sections." It seems very probable that this entry referred to sections 69 and 70. It is a matter of conjecture whether it was at this stage that more names were added to the minutes of the hearing on 10 April 1905.
Invalidity of the 1912 Order
"It is hard to be critical of someone operating in the early days of the twentieth century when the New Zealand colonial administration of the Cook Islands was in its infancy and communications were rudimentary."
However, neither he, nor anyone else who was familiar with the 1902 Order in Council, can have had any real doubt about the legal position. For this reason, and with respect to the arguments of the respondents, the Board does not consider that any help is to be gained from the doctrine of "de facto judge" (see Hale LJ in Fawdry & Co (A Firm) v Murfitt  QB 104, para 22). This point was mentioned by the Court of Appeal in granting leave, but rightly not pursued in their substantive judgment.
(1) the lack of a second judge (as required by section 3 of the 1992 Order in Council) between 1906 and 1913 meant that during that period there was no Land Court in existence, and therefore no power to do anything (whether valid or invalid);
(2) alternatively, section 416 should not be read as covering "flagrant invalidity" such as occurred in this case.
"When a decision of an administrative authority is affected by some defect or irregularity and the consequence has to be determined, the tendency now increasingly evident in administrative law is to avoid technical and apparently exact (yet deceptively so) terms such as void, voidable, nullity, ultra vires. Weight is given rather to the seriousness of the error and all the circumstances of the case. Except perhaps in comparatively rare cases of flagrant invalidity, the decision in question is recognised as operative unless set aside. The determination by the Court whether to set the decision aside or not is acknowledged to depend less on clear and absolute rules than on overall evaluation; the discretionary nature of judicial remedies is taken into account." (Emphasis added)
The respondents accept that "flagrant invalidity" of the kind referred to by Cooke J, cannot be corrected under section 416, but argue that such cases are exceptional and that this case is not among them. They point out that the 1912 Order was made at a time when the facts relating to the 1905 Orders were fresh in everyone's minds, and that the affected parties were all in court and gave their consent. Neither they, nor their descendants, challenged the decision during their lifetimes, and while their recollections could be tested. The 1912 Order has been treated as valid by all parties for nearly a century until the present proceedings.
Equity and good conscience
"133. The question that remains is the operation of the principles of 'equity and good conscience' within section 416(1). The applicants contended that in this case, principles of equity and good conscience dictate that the 1912 Order not be validated. The Court must disagree for two reasons.
134. First, the applicants, although citing the proviso contained in section 416(1), have failed to actually identify those facts which support the application of this 'equitable proviso'. Presumably the applicants would have raised the fact that Iopu Tumu was deceitful, greedy and that he had struck up a special relationship with Savage, who himself was of questionable character. There is no real proof of any of these things and the Court doubts whether they would qualify as triggering the proviso. Situations that may trigger a proviso would be, for example, an equitable estoppel. This may include a scenario where all parties had proceeded as if the Order had not been made and those persons who had been included in the 1905 Orders had gone about cultivating their land and had lived there for the last 100 years. That is not the case for the present applicants in relation to the three sections at Takuvaine.
135. Secondly, this is a situation where the Order in question was signed by consent. The consensual nature of the Order strongly suggests that it would be contrary to the principles of equity and good conscience not to validate it."
The Court of Appeal reached the same conclusion (para 11):
"This Court agrees with the Chief Justice that the equity and good conscience of the situation requires a validation order to be made. The land concerned has been leased and subdivided many times over the last 97 years. Many persons unconnected with the ancient dispute of 1912 have acquired rights in good faith. It could be unconscionable to expose such persons to the uncertainty that would be generated by a refusal to validate the 1912 order. Moreover, we agree with the Chief Justice that the fact that the order was made by consent strengthens the notion of equity and good conscience applying."
(1) The Chief Justice (and in agreeing with him, the Court of Appeal) wrongly placed the burden of proof on the appellants to show why validation should not occur.
(2) Even accepting that the 1912 Order was not wholly without effect, the intensity or degree of the invalidity remains highly relevant to the exercise of jurisdiction under section 416. The courts below failed to pay regard to the nature of the invalidity.
(3) The courts below failed to pay due regard to the general concept of the inviolability of orders on investigation of title, which was implicit in the 1902 Order in Council, and confirmed by the 1915 Act and the Constitution of the Cook Islands.
(1) Consent They question the weight placed by the courts below on the parties' consent, given that consent of the appellant's ancestors could not have enlarged the jurisdiction of the court, nor enable it to give effect, even by agreement, to an alteration which the law did not authorise.
(2) Lapse of time The delay is explicable on the basis that the historical information needed to challenge the 1912 Order was not available until the historical research required for the present applications. In any event, "equity and good conscience" do not justify allowing an unauthorised excess of power to gain force merely by the passage of time. Section 641(3) of the 1915 Act provides that "No right, title, estate, or interest in Native Land shall be acquired or lost by prescription."
(3) Third party interests The appellants point to the lack of specific evidence as to the existence or extent of third party interests. It was incumbent on the respondents to provide the evidential foundation for their application under section 416, and in the absence of such evidence the court's conclusion was mere conjecture. In any event, this concern is met by the appellants' undertaking to respect third party rights acquired for value and in good faith, and their willingness to accept an order that all recorded leases and occupation rights in favour of the respondents should continue until their expiry on the same terms as previously.
The Board's conclusions